State v. Bennett ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1058
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Haywood County
Nos. 12CRS052488
12CRS001115
CHAD NATHAN BENNETT
Appeal by Defendant from judgment entered 13 February 2013
by Judge F. Lane Williamson in Haywood County Superior Court.
Heard in the Court of Appeals 19 February 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Anne G. Kirby, for the State.
Marie H. Mobley, for Defendant.
DILLON, Judge.
Chad Nathan Bennett (“Defendant”) appeals from judgment
entered 13 February 2013 upon his convictions by a jury of
robbery with a dangerous weapon and his admission of having
attained the status of habitual felon. Defendant’s sole
argument on appeal is that the trial court committed plain error
by instructing the jury that the knife used by Defendant during
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the robbery in this case was, per se, a dangerous weapon. We
conclude Defendant had a fair trial, free from reversible error.
The evidence of record tends to show the following: On 11
July 2012, at approximately 3:30 a.m., Darrin Shane Rich arrived
at the Hardee’s in Canton, North Carolina, where he was
employed. After exiting his vehicle, Mr. Rich saw Defendant
approaching with what appeared to Mr. Rich to be a knife in
Defendant’s hand and asking Mr. Rich to give him his wallet.
Mr. Rich testified that he saw “the shimmer or reflection of
light off the blade[,]” and became “scared” of “what could
potentially happen.” Mr. Rich elaborated: “[G]etting hurt, or
in the situation, [I] could lose my life.” Defendant grabbed
Mr. Rich’s wallet from him and “took off running up the street.”
Mr. Rich called 9-1-1 and reported that his wallet was stolen
“at knifepoint[.]”
A few days later, Mr. Rich picked Defendant out of a line-
up, identifying him as the perpetrator of the robbery. The
knife was never found. Defendant was indicted on charges of
robbery with a dangerous weapon and of having attained the
status of habitual felon. Defendant did not testify at trial.
The jury found Defendant guilty of robbery with a dangerous
weapon, and Defendant pled guilty to having attained the status
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of habitual felon. The trial court entered a judgment
consistent with the foregoing, sentencing Defendant to 115 to
150 months incarceration.
As a preliminary matter, Defendant did not give notice of
appeal in open court following his sentencing. However, it
appears that Defendant gave pro se written notice of appeal from
the above judgments, which was filed on 20 February 2013. North
Carolina Rule of Appellate Procedure 4(a)(2) states that if a
defendant does not give oral notice of appeal, he may also take
appeal by “filing notice of appeal with the clerk of superior
court and serving copies thereof upon all adverse parties within
fourteen days after entry of judgment or order[.]” N.C.R. App.
P. 4(a)(2). Subsection (b) of Rule 4 also requires that the
notice of appeal include the names of the parties, the judgment
from which appeal is being taken, the Court appealed from, and
signature from counsel or the party not represented by counsel.
N.C.R. App. P. 4(b). Even though Defendant’s written notice of
appeal was filed within fourteen days of his judgment, included
the name of the parties, the judgment appealed from, and his
signature, there is no indication that he served copies on the
adverse party, the Haywood County District Attorney, or included
the Court he was appealing from. Therefore, the notice is
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deficient. “[W]hen a defendant has not properly given notice of
appeal, this Court is without jurisdiction to hear the appeal.”
State v. McCoy, 171 N.C. App. 636, 638, 615 S.E.2d 319, 321
(2005). However, Defendant filed a petition for writ of
certiorari on 25 October 2013. Given the pro se nature of
Defendant’s notice of appeal and its substantial compliance with
Rule 4, we allow Defendant’s petition for writ of certiorari and
address the merits of his appeal.
I: Jury Instruction; Plain Error
In Defendant’s sole argument on appeal, he contends the
trial court committed plain error by instructing the jury that
the knife in this case was, per se, a dangerous weapon. We
disagree.
“[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.”
State v. Torain, 316 N.C. 111, 119, 340 S.E.2d 465, 470, cert
denied, 479 U.S. 836, 93 L. Ed. 2d 77 (1986) (citations and
quotation marks omitted) (emphasis in original). Only “where
the instrument, according to the manner of its use or the part
of the body at which the blow is aimed, may or may not be likely
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to produce such results, its allegedly deadly character is one
of fact to be determined by the jury.” Id. at 120, 340 S.E.2d
at 470 (citations omitted). “The distinction between a weapon
which is deadly or dangerous per se and one which may or may not
be deadly or dangerous depending upon the circumstances is not
one that lends itself to mechanical definition.” Id. at 121,
340 S.E.2d at 471. “Nevertheless, the evidence in each case
determines whether a certain kind of [weapon] is properly
characterized as a lethal device as a matter of law or whether
its nature and manner of use merely raises a factual issue about
its potential for producing death.” State v. Sturdivant, 304
N.C. 293, 301, 283 S.E.2d 719, 726 (1981) (citations omitted).
Depending on the evidence in each case, our appellate courts
have held that a trial court did not err by instructing the jury
that a knife was, per se, a dangerous weapon. See Torain, 316
N.C. at 115-16, 340 S.E.2d at 467-68 (reviewing for plain error,
but concluding “the challenged instruction . . . did not
constitute error at all,” when the trial court instructed the
jury that “a utility knife is a dangerous or deadly weapon,”
upon evidence that the defendant used a utility knife during the
perpetration of a first-degree rape to cut the clothes off of
the victim). However, as a general rule, our appellate courts
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have held that a knife is not always a dangerous weapon per se;
instead, the circumstances of the case are determinative. See
State v. Smallwood, 78 N.C. App. 365, 368, 337 S.E.2d 143, 144-
45 (1985).
Defendant did not object to the instruction at issue;1
therefore, we must review for plain error. “In criminal cases,
an issue that was not preserved by objection noted at trial and
that is not deemed preserved by rule or law without any such
action 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); see also State v. Goss, 361 N.C. 610, 622, 651
S.E.2d 867, 875 (2007), cert. denied, 555 U.S. 835, 172 L. Ed.
2d 58 (2008). Plain error arises when the error is “‘so basic,
so prejudicial, so lacking in its elements that justice cannot
have been done[.]’” State v. Odom, 307 N.C. 655, 660, 300
S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676
F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74
L. Ed. 2d. 513 (1982)). “Under the plain error rule, defendant
must convince this Court not only that there was error, but that
absent the error, the jury probably would have reached a
1
Defendant did, however, request an instruction on common law
robbery – a request which the trial court granted.
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different result.” State v. Jordan, 333 N.C. 431, 440, 426
S.E.2d 692, 697 (1993).
In this case, assuming arguendo the trial court erred by
instructing the jury that the knife was, per se, a dangerous
weapon, we believe the trial court did not commit plain error.
Specifically, Defendant has not shown that the “jury probably
would have reached a different result[,]” Jordan, 333 N.C. at
440, 426 S.E.2d at 697, had the trial court allowed the jury to
determine whether the knife was a dangerous weapon. Rather,
although Mr. Rich’s description of the knife was brief, and left
open the possibility that something other than a knife reflected
light from Defendant’s hand, the testimony was not contradicted.
Defendant produced no evidence at trial tending to show that he
did not have a knife; in fact, Defendant did not present any
evidence at all. Mr. Rich also testified that, after he saw the
shimmer of a blade during the robbery, he was “scared” of
“getting hurt, or . . . los[ing] [his] life.” We believe the
evidence in this case was such that the trial court’s
instruction – that the knife in this case was, per se, a
dangerous weapon – did not constitute plain error. See State v.
Allen, 317 N.C. 119, 124, 343 S.E.2d 893, 897 (1986) (stating
that “[w]hen a robbery is committed with what appeared to the
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victim to be a . . . dangerous weapon capable of endangering or
threatening the life of the victim and there is no evidence to
the contrary, there is a mandatory presumption that the weapon
was as it appeared to the victim to be”).
NO ERROR.
Judge BRYANT and Judge STEPHENS concur.
Report per Rule 30(e).