Opinion
No. COA12–1459.
2013-06-18
STATE of North Carolina v. Calvin JONES.
Attorney General Roy Cooper, by Assistant Attorney General Phyllis A. Turner, for the State. Irving Joyner, for defendant-appellant.
Appeal by defendant from judgment entered 24 April 2012 by Judge Benjamin G. Alford in Craven County Superior Court. Heard in the Court of Appeals 3 June 2013. Attorney General Roy Cooper, by Assistant Attorney General Phyllis A. Turner, for the State. Irving Joyner, for defendant-appellant.
ELMORE, Judge.
Calvin Jones (defendant) appeals from a judgment entered upon his conviction for assault with a deadly weapon inflicting serious injury (AWDWISI). Because we find substantial evidence of the offense and no error in the trial court's instruction that the blade used in the alleged assault was a deadly weapon, we find no error as to defendant's conviction. We vacate the restitution award for lack of supporting evidence and remand for further proceedings.
Defendant and Jameal Staten engaged in a fistfight on 26 April 2010. In the midst of the fray, defendant turned his back to Staten briefly before turning around and “swinging wildly” at him. Staten began “bleeding everywhere” from his arm. Bystanders interceded, and pulled Staten into a store and called 911. He was transported by ambulance to the emergency room and treated for lacerations to his arms and chest. At the time of his arrest, defendant admitted fighting with Staten but denied cutting him. Although Staten reported being cut by a razor blade or box cutter, no weapon was ever observed or found.
Although the trial transcript renders the victim's name as “Jamil Staton,” we have adopted the spelling found on the arrest warrant and indictment in the record on appeal.
Defendant was then charged with ADWIKSI. He was convicted and sentenced to 29–44 months imprisonment. Defendant now appeals.
On appeal, defendant challenges the trial court's denial of his motion to dismiss the AWDWISI charge based on insufficient evidence that he used a deadly weapon or that Staten sustained a serious injury. We employ a familiar standard of review to address this claim:
... [T]his Court determines whether the State presented substantial evidence in support of each element of the charged offense. Substantial evidence is relevant evidence that a reasonable person might accept as adequate, or would consider necessary to support a particular conclusion.... [I]f there is substantial evidence—whether direct, circumstantial, or both—to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.
State v. Abshire, 363 N.C. 322, 327–28, 677 S.E.2d 444, 449 (2009) (citations and quotations omitted).
Noting that no witness saw or recovered a weapon, defendant argues that the State “failed miserably to present evidence that any instrument which could be considered as a deadly weapon was used during the fight[.]” We disagree.
Here, the treating physician described Staten's three lacerations as caused by “something like either a razor blade or a box cutter[.]” The investigating officer likewise characterized the injuries as “a razor cut” and “typical of razor blade cut[.]” Given Staten's account of defendant “swinging wildly” at him before these injuries appeared, the State adduced substantial circumstantial evidence of defendant's use of a deadly weapon. See State v. Gilliland, 66 N.C.App. 372, 373, 311 S.E.2d 40, 41 (1984) (holding that the State's evidence that “the victim was severely cut” was sufficient to provide an inference that the defendant used a knife to injure him).
To the extent that defendant now argues a fatal variance between the indictment's allegation of “a razor blade” and witness testimony of a “box cutter,” we find that he failed to preserve this issue by raising it in his motion to dismiss at trial. State v. Redman, ––– N.C.App. ––––, –––, 736 S.E.2d 545, –––– (2012) (citing State v. Curry, 203 N.C.App. 375, 384, 692 S.E.2d 129, 137,appeal dismissed and disc. review denied,364 N.C. 437, 702 S.E.2d 496 (2010)). Moreover, our Supreme Court has used the terms “utility knife,” “carton cutter,” and “box cutter” interchangeably to describe a cutting tool with a razor-edged blade. State v. Torain, 316 N.C. 111, 119–22, 340 S.E.2d 465, 470–71 (1986).
We further find substantial evidence of “serious injury” to Staten. “[A]s long as the State presents evidence that the victim sustained a physical injury as a result of an assault by the defendant, it is for the jury to determine the question of whether the injury was serious.” State v. Alexander, 337 N.C. 182, 189, 446 S.E.2d 83, 87 (1994). Here, the physician testified that Staten had “big lacerations” on his arms and a laceration to his left chest that “went all the way through the skin ... down to the rib. I could see the rib bones in the musculature of the chest through the laceration.” “Close to fifty” staples were required to close the wounds. A photograph of the injuries was published to the jury. Such evidence was sufficient to withstand a motion to dismiss. See State v. White, 270 N.C. 78, 79, 153 S.E.2d 774, 775 (1967) (neck wound “1/2 inch deep at places”); State v. Kinsey, 17 N.C.App. 57, 60, 193 S.E.2d 430, 431 (1972) (“long cut across his neck” requiring thirty stitches).
Defendant next challenges the trial court's instruction to the jury that “[a] box cutter or a razor is a deadly weapon” as a matter of law. We find no merit to this claim. “It has long been the law of this state that ‘[w]here the alleged deadly weapon and the manner of its use are of such character as to admit of but one conclusion, the question as to whether or not it is deadly ... is one of law, and the Court must take the responsibility of so declaring.’ “ Torain, 316 N.C. at 119, 340 S.E.2d at 470 (quoting State v. Smith, 187 N.C. 469, 470, 121 S.E. 737, 737 (1924)) (emphasis in original). A razor-sharp weapon wielded in a manner resulting in the deep chest laceration and other wounds sustained by Staten is doubtless a deadly weapon per se. See Id. at 122,340 S.E.2d at 471 (quoting State v. Wiggins, 78 N.C.App. 405, 407, 337 S.E.2d 198, 199 (1985)).
Defendant also challenges the trial court's restitution award of $1,681.56 on the ground that it is not supported by “evidence adduced at trial or at sentencing.” State v. Wilson, 340 N.C. 720, 726, 459 S.E.2d 192, 196 (1995). The State concedes, and we agree, that the record lacks evidentiary support for the amount imposed. Accordingly, we vacate the restitution order and remand for further proceedings. State v. McNeil, 209 N.C.App. 654, 668, 707 S.E.2d 674, 685 (2011).
No error in part; vacated and remanded in part. Judges McGEE and STEPHENS concur.
Report per Rule 30(e).