State v. Watkins
| Citation | 857 S.E.2d 366 (Table) |
| Decision Date | 04 May 2021 |
| Docket Number | No. COA20-397,COA20-397 |
| Parties | STATE of North Carolina v. James Edward WATKINS, Jr. |
| Court | Court of Appeal of North Carolina (US) |
Attorney General Joshua H. Stein, by Assistant Attorney General Barry H. Bloch, for the State.
Gilda C. Rodriguez, for defendant-appellant.
¶ 1 Defendant James Edward Watkins, Jr., appeals from a judgment entered upon a jury's verdicts finding him guilty of assault with a deadly weapon inflicting serious injury and attaining the status of a habitual felon. After careful review, we reverse and remand for a new trial.
¶ 2 At approximately 2:40 a.m. on 23 September 2018, Officers K.M. Nutter and T.L. Carver of the Greensboro Police Department responded to a reported stabbing on Huffman Street. There, the officers spoke with Nicolas Diaz-Mendez, who appeared to be suffering from deep lacerations
to his forearms and head. Diaz-Mendez mentioned Defendant by name, and told Officer Carver that Defendant, Defendant's girlfriend, and three others walked up and assaulted him. Diaz-Mendez told Officer Carver that he thought Defendant "cut him with a box cutter or a broken bottle" and that "his wallet was missing." Officer Carver also spoke with Diaz-Mendez's son, who said that he had last seen Defendant "approximately two hours prior."
¶ 3 Meanwhile, a bystander directed Officer Nutter to another injured man at a nearby residence on Huffman Street. There, Officer Nutter saw Pedro Oyuqui, who was also suffering from deep lacerations
and bleeding from his head, and was losing consciousness. Officer Nutter observed broken glass and beer bottles, as well as a large amount of blood on the porch and general surrounding area.
¶ 4 The bystander then directed Officer Nutter to another residence, approximately 100 to 150 yards away, where Officer Nutter encountered Defendant. Defendant initially denied any knowledge of these events, but when Officers Nutter and Carver returned later with their sergeant, Defendant claimed that one of a group of Hispanic men had asked his girlfriend if she would have sex with them for money. Defendant said that he told the men that "there would be problems if they continued to speak to his girlfriend[,]" but denied that any further altercation occurred. Defendant gave the officers consent to search his home, and although they did not find a weapon, a wallet, or any blood inside the residence, they did find a small amount of blood on Defendant's hands and clothes.
¶ 5 On 26 November 2018, a Guilford County grand jury returned indictments charging Defendant with felony robbery with a dangerous weapon and felony assault with a deadly weapon inflicting serious injury. The robbery indictment listed Diaz-Mendez as the victim, the wallet as the stolen property, and the dangerous weapon as a "glass bottle," while the assault indictment listed Oyuqui as the victim but did not specify a deadly weapon. On 1 April 2019, a grand jury returned another indictment charging Defendant with attaining the status of a habitual felon.
¶ 6 Defendant's case first came on for the disposition of pre-trial matters on 2 October 2019 in Guilford County Superior Court before the Honorable Eric C. Morgan. The next day, before trial began and with defense counsel's consent, the State moved to continue trial of this case, which the trial court granted. On 21 October 2019, the grand jury returned superseding indictments charging Defendant with felony robbery with a dangerous weapon and felony assault with a deadly weapon inflicting serious injury. The superseding robbery indictment described the dangerous weapon as a machete rather than a glass bottle. The superseding assault indictment added a second count of felony assault, as to Diaz-Mendez, and listed a machete as the deadly weapon for both counts.
¶ 7 On 4 November 2019, Defendant's case came on for trial in Guilford County Superior Court, the Honorable R. Stuart Albright presiding. On 7 November 2019, the jury returned its verdicts finding Defendant not guilty of robbery with a dangerous weapon and not guilty of assault with a deadly weapon inflicting serious injury as to Oyuqui, but guilty of assault with a deadly weapon inflicting serious injury as to Diaz-Mendez. Following a second phase of trial, the jury also found Defendant guilty of attaining the status of a habitual felon.
¶ 8 The trial court sentenced Defendant to a term of 100 to 132 months in the custody of the North Carolina Division of Adult Correction. Defendant gave oral notice of appeal in open court.
¶ 9 On appeal, Defendant argues that the trial court committed plain error by failing to instruct the jury on the lesser-included offense of assault inflicting serious injury.
¶ 10 "In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved ... nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error." N.C.R. App. P. 10(a)(4). Defendant acknowledges that his counsel did not object to the failure to instruct that he now "specifically and distinctly" contends was plain error.
For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice—that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affects the fairness, integrity or public reputation of judicial proceedings[.]
State v. Lawrence , 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citations and internal quotation marks omitted).
¶ 11 It is axiomatic that a criminal defendant "is entitled to an instruction on a lesser[-]included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater." State v. Tillery , 186 N.C. App. 447, 450, 651 S.E.2d 291, 294 (2007) (quoting Keeble v. United States , 412 U.S. 205, 208, 36 L. Ed. 2d 844, 847 (1973) ). When considering whether to instruct the jury on a lesser-included offense, "the trial court must determine whether (1) the lesser offense is, as a matter of law, an included offense for the crime for which the defendant is indicted and (2) there is evidence in the case which will support a conviction of the lesser[-]included offense." State v. Smith , 186 N.C. App. 57, 65, 650 S.E.2d 29, 35 (2007) (citation and internal quotation marks omitted).
¶ 12 However, "[t]he trial court may refrain from submitting the lesser offense to the jury only where the evidence is clear and positive as to each element of the offense charged and no evidence supports a lesser-included offense." Tillery , 186 N.C. App. at 450, 651 S.E.2d at 294 (citation and internal quotation marks omitted). "When determining whether there is sufficient evidence for submission of a lesser[-]included offense to the jury, we view the evidence in the light most favorable to the defendant." State v. Clark , 201 N.C. App. 319, 323, 689 S.E.2d 553, 557 (2009) (citation omitted).
¶ 13 "Misdemeanor assault inflicting serious injury is a lesser[-]included offense of assault with a deadly weapon inflicting serious injury." Tillery , 186 N.C. App. at 449, 651 S.E.2d at 293. The "primary distinction" between the felony of assault with a deadly weapon inflicting serious injury and the lesser-included misdemeanor of assault inflicting serious injury is that "a conviction of felonious assault requires a showing that a deadly weapon was used and serious injury resulted[.]" Id. (citation omitted). By contrast, "if the evidence shows that only one of the two elements was present, i.e., that either a deadly weapon was used or serious injury resulted, the offense is punishable only as a misdemeanor." Id. (citation omitted).
¶ 14 On appeal, Defendant argues that the evidence, viewed in the light most favorable to him, "would have permitted the jury rationally to find that [he] did not use a deadly weapon during the assault" on Diaz-Mendez and thus, the trial court should have instructed the jury on the lesser-included offense of assault inflicting serious injury. At trial, the court instructed the jury on assault with a deadly weapon inflicting serious injury and the lesser-included felony offense of assault with a deadly weapon, but not the lesser-included misdemeanor offense of assault inflicting serious injury.1 Accordingly, at issue is whether the evidence at trial was "clear and positive" as to Defendant's use of a deadly weapon, and that serious injury resulted, such that "no evidence support[ed] a lesser-included offense." Id. at 450, 651 S.E.2d at 294 (citation omitted).
¶ 15 During the charge conference, the trial court concluded that the machete alleged to have been used by Defendant—which was estimated to be 12 inches long "at minimum"—was a dangerous or deadly weapon per se. Although the weapon itself was not admitted into evidence, the trial court based its conclusion on Diaz-Mendez's "unequivocal" testimony about the length of the blade on the weapon "that he called a machete or large knife" and on the extent of the victims’ injuries as shown in photographs. The trial court reasoned that "it was obvious that [the weapon] was a very sharp object, given the injuries that were inflicted on both of the alleged victims in this case, if you believe the testimony." The trial court also cited several opinions of this Court in which we upheld conclusions that various similar knives were dangerous or deadly weapons per se. See State v. Wiggins , 78 N.C. App. 405, 407, 337 S.E.2d 198, 199 (1985) (a box cutter); State v. Roper , 39 N.C. App. 256, 257, 249 S.E.2d 870, 871 (1978) (a pocketknife); State v. Parker , 7 N.C. App. 191,...
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