NORTH CAROLINA COURT OF APPEALS
21 October 2008
STATE OF NORTH CAROLINA
No. 02 CRS 59462
JASON W. ALLEN
Appeal by defendant from judgment entered 11 June 2007 by
Judge Phyllis Gorham in Onslow County Superior Court. Heard in the
Court of Appeals 27 August 2008.
Court of Appeals
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Kimberly D. Potter, for the State.
William D. Spence, for defendant-appellant.
On 13 June 2007, Jason W. Allen (“defendant”) was convicted of
assault with a deadly weapon inflicting serious injury, felonious
larceny of a motor vehicle, and felonious possession of a stolen
The trial court arrested judgment on the charge of
felonious possession of a stolen vehicle; the remaining charges
presumptive range to twenty-seven to forty-two months imprisonment.
Defendant appeals. For the reasons stated below, we hold no error.
As of 7 September 2002, defendant had been living with Susan
Clarkson (“Clarkson”) in her Jacksonville, North Carolina residence
for approximately two months.
On 7 September 2002, Clarkson and
defendant invited Clarkson’s friend, George Wilhelm (“Wilhelm”) for
Throughout the evening, Clarkson, Wilhelm, and defendant
ate food and drank various alcoholic beverages. At some point that
evening, Clarkson and Wilhelm danced together.
defendant became upset and stated to Clarkson that it made him
Around midnight that evening, Clarkson hugged Wilhelm in her
doorway as Wilhelm departed.
Clarkson then began to walk through
her home to her master bedroom when defendant struck her from
behind in the back of her head with his fist.
that defendant then punched her in the face repeatedly, held her
down by her neck, spat on her, and threw her around her bedroom
onto the floor and the bed. Clarkson eventually lost consciousness
from the repeated punches to her head.
When Clarkson regained consciousness, she called 911 and
received medical treatment from EMS and at the hospital.
Clarkson did not suffer any fractures as a result of the assault,
her face remained extremely bruised and swollen for over a month.
Following defendant’s assault, Clarkson learned that her 1995
Ford Explorer, valued at $10,000.00 and which had been at her
residence on 7 September 2002, was missing.
The car was recovered
more than a week later in Norfolk, Virginia where defendant had
permission to use her car on either 7 or 8 September 2002.
On appeal, defendant first contends that the trial court erred
by denying defendant’s motion to dismiss the assault with a deadly
weapon inflicting serious injury charge at the close of all the
-3evidence because the evidence was insufficient to establish every
element of the crime.
Specifically, defendant argues that (1) the
use of his hands and fists during his assault did not constitute
the use of a deadly weapon; and (2) defendant did not inflict
serious injury upon Clarkson.
In order to survive a motion to dismiss based upon the
sufficiency of the evidence, the State must present substantial
evidence of each essential element of the charged offense and of
defendant’s being the perpetrator. State v. Fritsch, 351 N.C. 373,
378, 526 S.E.2d 451, 455 (2000).
“Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” State v. Blake, 319 N.C. 599, 604, 356
S.E.2d 352, 355 (1987) (internal citations and quotation marks
The reviewing court must view the evidence in the light
most favorable to the State, giving the State the benefit of all
reasonable inferences that can be drawn from the evidence. Fritsch,
351 N.C. at 378–79, 526 S.E.2d at 455.
Defendant was convicted of assault with a deadly weapon
Statutes, section 14-32(b). “The elements of a charge [pursuant to
section] 14-32(b) are (1) an assault (2) with a deadly weapon (3)
inflicting serious injury (4) not resulting in death.” State v.
Woods, 126 N.C. App. 581, 592, 486 S.E.2d 255, 261 (1997) (quoting
State v. Aytche, 98 N.C. App. 358, 366, 391 S.E.2d 43, 47 (1990)).
An assailant’s hands may be considered deadly weapons for the
purpose of the crime of assault with a deadly weapon inflicting
-4serious injury depending upon the manner in which they were used
and the relative size and condition of the parties. See, e.g.,
State v. Harris, __ N.C. App. __, __, 657 S.E.2d 701, 708–09 (2008)
(substantial evidence of defendant’s use of his hands as a deadly
weapon when the 175 pound defendant caused hand-print bruises on
the 110 pound victim’s arms, thighs, and buttocks, as well as
bruises on the victim’s neck which could have been the cause of the
victim’s swollen mouth, tongue, and throat); State v. Rogers, 153
evidence of defendant’s use of his hands as a deadly weapon when
defendant was six feet two inches tall and weighed 165 pounds and
struck victim in her face, breaking her nose, cheekbone, and jaw
when victim was five feet three inches tall and weighed ninety-nine
pounds); State v. Grumbles, 104 N.C. App. 766, 769–71, 411 S.E.2d
407, 409–10 (1991) (substantial evidence of defendant’s use of his
hands as a deadly weapon when the 175 pound defendant hit and
choked the 107 pound victim leaving marks on her neck and causing
facial swelling and a broken jaw).
In the case sub judice, the State presented evidence that
defendant was twenty-five years old, seven inches taller, and forty
pounds heavier than Clarkson who was thirty-eight years old.
Defendant struck repeated blows to Clarkson’s head and face with
his hands and fists. Clarkson suffered traumatic head injuries and
extreme facial bruising and swelling, as well as bleeding from her
left ear and nose.
Additionally, Clarkson’s left eye was swollen
shut for over a month, the inside of her ear was damaged, and the
-5inside of her mouth was “chewed up.”
As a result of defendant’s
blows to Clarkson’s head and face, she lost consciousness.
she awoke, she remained disoriented.
Accordingly, we hold the State presented substantial evidence
of defendant’s use of his hands as deadly weapons and that Clarkson
suffered severe injury as a result.
That she did not ultimately
suffer any fractures as a result of the assault is relevant, but
not determinative as to whether she sustained severe injury.
weakness in the State's evidence or discrepancy between the State's
evidence and [d]efendant's testimony was for the jury to consider.”
Harris, __ N.C. App. at __, 657 S.E.2d at 709.
The trial court did
not err in denying defendant’s motion to dismiss the assault with
a deadly weapon inflicting serious injury charge.
Defendant requests that we reconsider the analysis provided in
the first footnote of Harris which maintains the use of hands as
deadly weapons for purposes of the crime of assault with a deadly
decision in State v. Hinton, 361 N.C. 207, 210, 639 S.E.2d 437,
We agree with the analysis set forth in Harris, and
we hold that precedent set forth in Hinton does not control in the
case sub judice.
In Harris, we specifically noted that the Supreme Court’s
holding in Hinton neither addressed nor distinguished the statutory
rule of law germane to both Harris and the case sub judice, North
Carolina General Statute, section 14-32(b). See Harris, __ N.C.
App. at __, 657 S.E.2d at 708–09 n.1, and N.C. Gen. Stat. § 14-
defendant’s hands are not a deadly weapon for purposes of the crime
of robbery with a dangerous weapon as set forth in North Carolina
General Statutes, section 14-87. Hinton, 361 N.C. at 208, 639
S.E.2d at 438.
The Court explained
[i]t is true assault with a deadly weapon is a
lesser included offense of robbery with a
dangerous weapon. . . .
However, the fact
that assault with a deadly weapon is a lesser
included offense of robbery with a dangerous
weapon does not mean that the scope of the
weapon elements must be identical for each
offense. The fact that every dangerous weapon
section] 14-87 would also be a deadly weapon
for purposes of assault with a deadly weapon
does not necessitate that all deadly weapons
for purposes of assault with a deadly weapon
are dangerous weapons under N[orth Carolina
General Statutes, section] 14-87.
doctrine of lesser included offenses moves
downstream, not upstream . . . .
Hinton, 361 N.C. at 210, 639 S.E.2d at 439–40 (first emphasis in
original) (second emphasis added).
For these reasons, we decline
to reconsider the first footnote in Harris.
Hinton does not
control the case sub judice.
Defendant next contends that the trial court erred by denying
defendant’s motion to dismiss the felonious larceny of a motor
vehicle charge at the close of all the evidence because the
evidence was insufficient to establish every element of the crime.
We note that the relevant statutory citation in Harris refers
to the 2007 version of the North Carolina General Statutes;
however, section 14-32(b) was not amended between 2005 and 2007.
-7As stated above, in order to survive a motion to dismiss based
substantial evidence of each essential element of the charged
offense and of defendant’s being the perpetrator. Fritsch, 351 N.C.
at 378, 526 S.E.2d at 455.
“Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.” Blake, 319 N.C. at 604, 356 S.E.2d at 355 (internal
citations and quotation marks omitted).
The court must view the
evidence in the light most favorable to the State, giving the State
the benefit of all reasonable inferences that can be drawn from the
evidence. Fritsch, 351 N.C. at 378–79, 526 S.E.2d at 455.
Defendant was convicted of felonious larceny of a motor
vehicle in violation of North Carolina General Statutes, section
“The essential elements of a larceny are that the
defendant (1) took the property of another; (2) carried it away;
(3) without the owner’s consent; and (4) with the intent to deprive
the owner of [the] property permanently.” State v. Perry, 305 N.C.
225, 233, 287 S.E.2d 810, 815 (1982).
North Carolina General
Statutes, section 14-72(a) provides that when the value of the
stolen goods exceeds $1,000.00, the crime is a Class H felony. See
N.C. Gen. Stat. § 14-72(a) (2005).
Defendant limits his contention to the argument that the State
did not present substantial evidence sufficient to reach the jury
as to defendant’s intent to deprive Clarkson permanently of her
However, our Supreme Court has explained
the intent to permanently deprive need not be
established by direct evidence but can be
-8inferred from the surrounding circumstances.
[Furthermore,] the abandonment of a vehicle .
. . places it beyond a defendant’s power to
return the property and shows a total
indifference as to whether the owner ever
State v. Kemmerlin, 356 N.C. 446, 474, 573 S.E.2d 870, 889–90
(2002) (internal citations and quotation marks omitted).
In the case sub judice, the evidence tended to show that after
the assault on 8 September 2002, defendant took Clarkson’s Ford
Virginia, where he remained for several days before making his way
to Naples, Florida to start a new life.
On 15 September 2002, the
abandoned vehicle was located in Norfolk, Virginia.
abandonment of the vehicle in Norfolk, Virginia placed the vehicle
indifference as to whether Clarkson ever recovered it.
defendant intended to permanently deprive Clarkson of her vehicle.
The trial court did not err in denying defendant’s motion to
dismiss the felonious larceny of a motor vehicle charge.
instructing the jury on defendant’s flight.
“This Court reviews jury instructions only for abuse of
Abuse of discretion means manifestly unsupported by
-9reason or so arbitrary that it could not have been the result of a
reasoned decision.” State v. Bagley, __ N.C. App. __, __, 644
S.E.2d 615, 622 (2007) (internal citations and quotation marks
We review jury instructions contextually and in their
entirety. State v. Glynn, 178 N.C. App. 689, 693, 632 S.E.2d 551,
554, disc. rev. denied, 360 N.C. 651, 637 S.E.2d 180 (2006).
party asserting error also bears the burden of showing that the
instruction. State v. Blizzard, 169 N.C. App. 285, 297, 610 S.E.2d
245, 253 (2005).
“Mere evidence that [the] defendant left the scene of the
crime is not enough to support an instruction on flight.
also must be some evidence that [the] defendant took steps to avoid
apprehension.” See State v. Lloyd, 354 N.C. 76, 119, 552 S.E.2d
596, 625–26 (2001) (flight instruction upheld when the defendant
left murder scene, failed to obtain help for victim, arranged
surrender with police officers, but drove around and stopped at
multiple gas stations to clear his head before turning himself in
to police officers) (quoting State v. Thompson, 328 N.C. 477, 490,
402 S.E.2d 386, 392 (1991)); State v. Grooms, 353 N.C. 50, 80, 540
S.E.2d 713, 732 (2000), cert. denied, 534 U.S. 838, 151 L. Ed. 2d
54 (2001) (flight instruction upheld when defendant telephoned a
friend from a bus station asking for twenty dollars to leave town).
Recently, this Court noted that “an action that was not part of
[d]efendant’s normal pattern of behavior . . . could be viewed as
a step to avoid apprehension.” State v. Shelly, 181 N.C. App. 196,
-10209, 638 S.E.2d 516, 526, disc. rev. denied, 361 N.C. 367, 646
S.E.2d 768 (2007) (flight instruction upheld when defendant left
the scene of a shooting and spent the night at the home of his
cousin’s girlfriend rather than returning home).
In the instant case, defendant stole Clarkson’s vehicle to
facilitate his departure from the scene of the assault.
made no effort to contact the authorities, to obtain help for
Clarkson, or to surrender himself.
Instead, defendant drove from
abandoned Clarkson’s vehicle.
Defendant testified that after
spending a few days in Norfolk, Virginia, he made his way to
Naples, Florida to start a new life.
On 8 September 2002, a
warrant for defendant’s arrest was issued in Jacksonville, North
Defendant was not arrested, however, until 23 August
2006 when he finally was located in Naples, Florida.
facts, there was no error in the trial court’s instruction on
Defendant next asserts that the trial court committed plain
error in peremptorily instructing the jury that hands and fists are
a deadly weapon.
instructions at trial.
As such, defendant failed to preserve this
issue for appellate review and is limited to plain error review.
See N.C. R. App. P. 10(b)(2), 10(c)(4) (2007), and State v.
Goforth, 170 N.C. App. 584, 587, 614 S.E.2d 313, 315 (2005).
[T]he plain error rule . . . is always to be
applied cautiously and only in the exceptional
-11case where, after reviewing the entire record,
it can be said the claimed error is a
fundamental error, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done, or where [the
error] is grave error which amounts to a
denial of a fundamental right of the accused,
or the error has resulted in a miscarriage of
justice or in the denial to appellant of a
fair trial or where the error is such as to
seriously affect the fairness, integrity or
public reputation of judicial proceedings or
where it can be fairly said the instructional
mistake had a probable impact on the jury’s
finding that the defendant was guilty.
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(brackets in original) (internal quotation marks omitted) (quoting
United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.) (emphasis
in original) (second brackets in original) (footnote call numbers
omitted), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)).
The appellate court must be convinced upon review of the entire
record that a different verdict probably would have been reached
but for the error. See State v. Cummings, 361 N.C. 438, 470, 648
S.E.2d 788, 807 (2007); Odom, 307 N.C. at 661, 300 S.E.2d at
In the case sub judice, defendant takes issue with the trial
court’s statement that “[h]ands and fists are a deadly weapon.”
Reading this instruction alone, defendant’s argument might have
contextually and in their entirety. Glynn, 178 N.C. App. at 693,
632 S.E.2d at 554.
In pertinent part, the trial court instructed
the jury as follows:
The defendant has been charged with assault
with a deadly weapon inflicting serious
-12injury. For you to find the defendant guilty
of this offense, the State must prove three
things beyond a reasonable doubt:
First, the defendant assaulted the victim by
intentionally and without justification or
excuse  hitting the victim in the head and
face several times.
Intent is a mental
attitude seldom provable by direct evidence.
It must ordinarily be proved by circumstances
from which it may be inferred. You arrive at
the intent of a person by such just and
reasonable deductions from the circumstances
given as a reasonably prudent person would
ordinarily draw therefrom.
Second, the defendant used a deadly weapon. A
deadly weapon is a weapon which is likely to
cause death or serious bodily injury. Hands
and fists are a deadly weapon.
In determining whether hands and fists were a
deadly weapon, you should consider the nature
of the hands and fists, the manner in which
they were used and the size and strength of
the defendant as compared to the victim.
Third, that the defendant inflicted serious
injury upon the victim.
Serious injury is
If you find from the evidence beyond a
reasonable doubt that on or about September 8,
2002, the defendant intentionally hit the
victim on the head and face several times with
his hands and fists and that his hands and
fists were a deadly weapon thereby inflicting
serious injury upon the victim, nothing else
appearing, it would be your duty to return a
verdict of guilty. If you do not so find or
have a reasonable doubt as to one or more of
these things, you must return a verdict of not
While it might have been more prudent for the
trial court to instruct that hands and fists have been found to be
a deadly weapon, when we read the instructions together, it becomes
apparent that the trial court properly charged the jury to make the
-13determination whether hands and fists were a deadly weapon beyond
a reasonable doubt based on the evidence and in light of specified
Thus, we cannot say that the singular statement
complained of by defendant was such a “fundamental error, something
so basic, so prejudicial, so lacking in its elements that justice
cannot have been done.” Odom, 307 N.C. at 660, 300 S.E.2d at 378
(quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.)
(emphasis in original), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d
Furthermore, the State presented evidence that defendant was
seven inches taller than Clarkson and outweighed her by forty
Defendant repeatedly punched Clarkson’s head and face
causing severe injury including unconsciousness, disorientation,
bleeding, and extreme swelling and bruising that lasted for a
Clarkson to the ground, sat on top of her arms, and repeatedly hit
her in the face “fast.”
Under our well-established standard of
review, in view of the evidence presented as well as the jury
instructions as a whole, defendant fails to establish that the
verdict probably would have been different but for the singular
We hold there is no plain error on these facts.
In his final argument, defendant contends that the trial court
abused its discretion and committed plain error in failing to
instruct the deadlocked jury as required by North Carolina General
Statutes, section 15A-1235(c).
“To find plain error, the error in
a trial court’s instructions to the jury must have been ‘so
-14fundamental that it denied the defendant a fair trial and quite
probably tilted the scales against [the defendant].’” State v.
Boston, __ N.C. App. __, __, 663 S.E.2d 886, 891 (2008) (brackets
in original) (quoting State v. Collins, 334 N.C. 54, 62, 431 S.E.2d
188, 193 (1993)).
North Carolina General Statutes, section 15A-
deliberations within the trial court’s discretion by stating “the
judge may require the jury to continue its deliberations . . . .”
N.C. Gen. Stat. § 15A-1235(c) (2007) (emphasis added).
“[t]he judge may not require or threaten to require the jury to
deliberate for an unreasonable length of time or for unreasonable
In the instant case, after approximately two and one half
hours of deliberation, the trial court received a note from the
jury stating that the jury “cannot come to a consensus as a team on
Count I . . . .”
The trial court responded
[w]hat I am going to do is I am going to send
you back into the jury room to continue
deliberating. Before that, however, I do want
to ask you if you want to take an afternoon
recess at this time. I’ll be glad to give you
a [fifteen] minute recess at this time.
deliberations for another hour at which time the jury returned a
verdict of defendant’s guilt.
On these facts, we cannot say that
the trial court abused its discretion. See State v. Hagans, 177
discretion when trial court provided supplemental instructions and
-15allowed jury to deliberate further after one day).
final argument is without merit.
Judges BRYANT and ARROWOOD concur.