State v. Blow ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1238
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
STATE OF NORTH CAROLINA
v. Henderson County
No. 12 CRS 961
CHARLES STEVENS BLOW, JR.,
Defendant.
Appeal by defendant from judgment entered 12 June 2013 by
Judge Alan Z. Thornburg in Henderson County Superior Court.
Heard in the Court of Appeals 5 March 2014.
Attorney General Roy Cooper, by Assistant Attorney General
M. Elizabeth Guzman, for the State.
Paul F. Herzog for defendant-appellant.
GEER, Judge.
Defendant Charles Stevens Blow, Jr. appeals from his
conviction of possession of a weapon by a prisoner. Defendant
primarily argues that the trial court erred in denying his
motion to dismiss because the State did not present evidence
that defendant knew that possession of a fingerprick needle was
unauthorized or that he knew the needle was capable of
inflicting serious bodily injury. We hold that under the plain
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language of the statute, the offense of possession of a weapon
by a prisoner is a strict liability offense, and the State was
not required to present evidence of defendant's knowledge. We,
therefore, hold that the trial court properly denied the motion
to dismiss.
Facts
The State's evidence tended to show the following facts.
Defendant was an inmate at the Henderson County Detention
Center. On 1 April 2012, jail officers received an anonymous
tip that defendant had a diabetic fingerprick needle in his
cell. Deputy Douglas Collins of the Henderson County Sheriff's
Office searched defendant for needles or other contraband, but
did not find anything. He then asked defendant if he had a
diabetic fingerprick needle, and defendant admitted that he had
one on his desk in his cell.
Deputy Collins searched defendant's cell and seized the
needle. When Deputy Collins informed defendant that the needle
was considered a weapon, defendant replied, "Oh, I didn’t know
it was." Defendant was not diabetic and did not have any
health-related reason to have a needle in his possession.
On 23 July 2012, defendant was indicted for possession of a
weapon by a prisoner in violation of N.C. Gen. Stat. § 14-258.2.
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At trial, Deputy Collins testified that inmates were not allowed
to keep needles in their cells:
Due to its extremely sharp nature and
ability to weaponize the object, it can be
used against staff and other inmates.
Common DOC practice between inmates, that's
the Department of Corrections, they will
take the sharp end of the needle, they can
rub it in their own feces or urine or any
other bodily fluid and use that to stab
another inmate or staff causing serious
infection. Other communicable diseases,
such as HIV or hepatitis are common
throughout prisons. Those can be sent
through the needle. Also it can be used as
a dart.
Defendant testified on his own behalf at trial that he had
found the needle on the floor in the common room, picked it up,
and put it in his pocket. He used the needle to clean his
fingernails, and had not altered the needle in any way or
attempted to use it for any other purpose. He kept the needle
on his desk and did not attempt to hide or conceal it. When
asked about the needle, he told the officers exactly where it
was, and they retrieved it. On cross-examination, defendant
admitted that he was not diabetic.
The jury found defendant guilty on the charge of possession
of a weapon by a prisoner. Defendant was sentenced to a
presumptive-range term of six to 17 months imprisonment. His
sentence was suspended, and defendant was placed on supervised
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probation for 24 months. Defendant timely appealed to this
Court.
I
Defendant first argues that the trial court erred in
denying his motion to dismiss the charge of possession of a
weapon by a prisoner. "This Court reviews the trial court's
denial of a motion to dismiss de novo." State v. Smith, 186
N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). "'Upon defendant's
motion for dismissal, the question for the Court is whether
there is substantial evidence (1) of each essential element of
the offense charged, or of a lesser offense included therein,
and (2) of defendant's being the perpetrator of such offense.
If so, the motion is properly denied.'" State v. Fritsch, 351
N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (quoting State v.
Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)).
"Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." State
v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980).
Defendant was charged with possession of a weapon by a
prisoner in violation of N.C. Gen. Stat. § 14-258.2(a) (2013),
which provides:
Any person while in the custody of the
Section of Prisons of the Division of Adult
Correction, or any person under the custody
of any local confinement facility as defined
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in G.S. 153A-217, who shall have in his
possession without permission or
authorization a weapon capable of inflicting
serious bodily injuries or death, or who
shall fabricate or create such a weapon from
any source, shall be guilty of a Class H
felony; and any person who commits any
assault with such weapon and thereby
inflicts bodily injury or by the use of said
weapon effects an escape or rescue from
imprisonment shall be punished as a Class F
felon.
Defendant argues that N.C. Gen. Stat. § 14-258.2(a) should
not be read as a strict liability offense. Instead, defendant
argues that the statute should be read as requiring the State to
prove:
1. The person charged possessed a "weapon
capable of inflicting serious bodily
injuries or death," and;
2. The person charged possessed the
implement knowing that he was doing so
"without permission or authorization"
from the incarcerating authority or its
agents, and;
3. The person charged knew or should have
known that the implement in question
was "capable of inflicting serious
bodily injuries or death . . ."
(Quoting N.C. Gen. Stat. § 14-258.2(a).) Defendant concedes
that the State presented sufficient evidence of the first
element, but argues that the State failed to present sufficient
evidence of his proposed second and third elements.
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"Whether a criminal intent is a necessary element of a
statutory offense is a matter of construction to be determined
from the language of the statute in view of its manifest purpose
and design." State v. Hales, 256 N.C. 27, 30, 122 S.E.2d 768,
771 (1961). It is well settled that "when the language of a
statute is clear and unambiguous there is no room for judicial
construction and the court must give the statute its plain and
definite meaning . . . ." State v. Williams, 291 N.C. 442, 446,
230 S.E.2d 515, 517 (1976). "Thus, in effectuating legislative
intent, it is the duty of the courts to give effect to the words
actually used in a statute and not to delete words used or to
insert words not used." State v. Watterson, 198 N.C. App. 500,
505, 679 S.E.2d 897, 900 (2009).
In Staples v. United States, 511 U.S. 600, 128 L. Ed. 2d
608, 114 S. Ct. 1793 (1994), the United States Supreme Court set
out a multi-factor test for deciding whether the legislature
intended, when enacting a statute, to create a strict liability
offense. In an opinion adopting Staples, this Court summarized
the factors Staples required to be considered:
(1) the background rules of the common law
and its conventional mens rea requirement;
(2) whether the crime can be characterized
as a public welfare offense; (3) the extent
to which a strict-liability reading of the
statute would encompass innocent conduct;
(4) the harshness of the penalty; (5) the
seriousness of the harm to the public; (6)
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the ease or difficulty of the defendant
ascertaining the true facts; (7) relieving
the prosecution of time-consuming and
difficult proof of fault; and (8) the number
of prosecutions expected.
Watterson, 198 N.C. App. at 507, 679 S.E.2d at 901.
In Watterson, the defendant was charged with possession of
a weapon of mass death and destruction in violation of N.C. Gen.
Stat. § 14-288.8(a) for possessing a shot gun that had a barrel
less than 18 inches in length. This Court, after applying the
Staples factors, concluded that "the General Assembly did not
intend for the State to prove that a defendant knew of the
physical characteristics of the weapon that made it unlawful
under N.C. Gen. Stat. § 14–288.8." Watterson, 198 N.C. App. at
512, 679 S.E.2d at 904.
With respect to the Staples factors, we note that the
General Assembly has made explicit its policy that "[l]ocal
confinement facilities should provide secure custody of persons
confined therein in order to protect the community and should be
operated so as to protect the health and welfare of prisoners
and provide for their humane treatment." N.C. Gen. Stat. §
153A-216(1) (2013). Thus, just as the offense of possession of
a weapon of mass destruction is intended to protect the public
safety by "exclud[ing] completely the existence of weapons of
mass death and destruction from the public sphere," Watterson,
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198 N.C. App. at 510, 679 S.E.2d at 903, possession of a weapon
by a prisoner is intended to protect the safety of prisoners and
DOC staff by completely ridding weapons from prisons.
Interpreting N.C. Gen. Stat. § 14-258.2(a) as a strict liability
offense is consistent with this policy.
Defendant does not, however, specifically address the
Staples factors or Watterson. Consequently, he makes no
argument that the offense of possession of a weapon by a
prisoner is materially distinguishable from the offense of
possession of a weapon of mass destruction addressed in
Watterson such that application of the Staples factors would
require that the State prove an element of knowledge or intent.
While defendant does not specifically address the relevance
of the State's policy of reducing violence and protecting the
health, welfare, and safety of prisoners and DOC staff to the
question of the legislature's intent, he does argue, consistent
with one of the Staples factors, that the statute could
encompass innocent behavior and, in addition, that reading into
the statute an element of intent is necessary in order to
promote principles of fairness. Defendant points to the
following questions submitted to the trial court by the jury
during deliberations:
Number one . . . : What orientation is
given prisoners upon arrival at detention?
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What items . . . may a prisoner have in
their possession?
And then number two says: Please repeat
judge's instructions as to what jury is to
find. Is jury to consider intent?
Defendant argues that these questions show that the jury
recognized an inherent unfairness in the plain language of the
statute.
Defendant's argument regarding "fairness" would apply with
respect to many strict liability statutes. And, the issue
before the Court is not whether we believe the statute raises
concerns about fairness, but rather whether the legislature
intended to create a strict liability offense. It is not our
role -- or the role of the jury -- to "superimpose[e] provisions
or limitations not contained within the statute." Williams, 291
N.C. at 446, 230 S.E.2d at 517. When the plain meaning of the
statute falls within constitutional limits, "[t]he question of
the wisdom or propriety of statutory provisions is not a matter
for the courts, but solely for the legislative branch of the
state government." Ferguson v. Riddle, 233 N.C. 54, 57, 62
S.E.2d 525, 528 (1950). Because defendant has not specifically
addressed the relevance of the State's public policy regarding
safety in prisons and jails to determining the General
Assembly's intent, he has not demonstrated that any other
factors sufficiently override that factor so as to suggest that
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the legislature did not intend to create a strict liability
offense.
The State presented substantial evidence of the only two
elements required under the plain language of the statute: that
defendant was in the custody of a local confinement facility and
that he possessed without authorization or permission a weapon
capable of inflicting serious bodily injuries or death. We,
therefore, hold that the trial court did not err in denying
defendant's motion to dismiss the charge of possession of a
weapon by a prisoner.
II
Defendant next argues that the trial court erred in failing
to adequately instruct the jury as to the nature of the weapon,
and in failing to define the term "serious bodily injury."
Because defendant did not object to the instruction at trial, he
contends that the instructions constituted 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 affect[s] the fairness,
integrity or public reputation of judicial
proceedings[.]
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State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)
(internal citations and quotation marks omitted).
The trial court used N.C.P.I., Crim. 280.43, UNAUTHORIZED
POSSESSION OR FABRICATION OF DANGEROUS WEAPON BY PRISONER and
charged the jury, consistent with the pattern instruction, as
follows:
Now, the defendant has been charged
with possession, without permission or
authorization, of a weapon capable of
inflicting serious injuries or death while
he was in the custody of a local confinement
facility.
For you to find the defendant guilty of
this offense the State must prove two things
beyond a reasonable doubt.
First, that the defendant had in his
possession, without permission or
authorization, a weapon capable of
inflicting serious bodily injury or death.
In determining whether the diabetic
fingerprick instrument, also known as a
lancet, is capable of inflicting bodily
injury or death, you should consider the
nature of the weapon and the manner in which
it could be used.
And second, at that time the defendant
was under the custody of a local confinement
facility. The Henderson County Detention
Facility is a local confinement facility.
So if you find from the evidence beyond
a reasonable doubt that on or about the
alleged date while he was in the custody of
a local confinement facility, the defendant
had in his possession, without permission or
authorization, a weapon which was capable of
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inflicting serious bodily injury or death,
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, it would be your duty to return a
verdict of not guilty.
(Emphasis added.)
Defendant points out that this jury instruction referred to
three different types of injuries that the weapon could be
capable of inflicting: "serious injuries," "serious bodily
injury," and "bodily injury." Each of these phrases is a term
of art -- a "word or phrase having a specific, precise meaning
in a given specialty, apart from its general meaning . . . ."
Black's Law Dictionary, 1610 (9th ed. 2009). Defendant argues
that the use of three similar but different terms of art in the
instruction created confusion for the jury and, because the
statute only prohibited possession of weapons capable of
inflicting "serious bodily injury," the trial court should have
defined that term for the jury.
Neither N.C. Gen. Stat. § 14-258.2 nor the pattern jury
instruction defines "serious bodily injury." Our legislature
has, however, defined "serious bodily injury" for purposes of
assault inflicting serious bodily injury as
bodily injury that creates a substantial
risk of death, or that causes serious
permanent disfigurement, coma, a permanent
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or protracted condition that causes extreme
pain, or permanent or protracted loss or
impairment of the function of any bodily
member or organ, or that results in
prolonged hospitalization.
N.C. Gen. Stat. § 14-32.4(a) (2013).
At trial, defendant did not make any significant challenge
to the State's contention that the fingerprick needle was
capable of inflicting serious bodily injury. The State
presented evidence regarding the harm that the needle could
cause, including the "[c]ommon . . . practice between inmates"
in prisons to weaponize the needle by rubbing it in feces and
urine in order to cause serious infection or transmit serious
communicable diseases. On cross-examination, defendant did not
address that part of the officer's testimony, but rather
elicited only that defendant had made no attempt to weaponize
the needle and had not used the needle against any other person.
In addition, the only evidence presented by defendant was his
own testimony that he found the needle and used it to clean his
fingernails and that he did not make any attempt to alter or
change it.
Because defendant does not dispute that the State's
evidence was sufficient to prove the element that the needle was
capable of inflicting serious bodily injury and because
defendant presented no contrary evidence, defendant has not
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shown that the jury instructions had a probable impact on the
verdict. Indeed, on appeal, defendant does not argue that there
was a probable impact on the verdict, but rather contends
generally that the inadequacies in the instructions amounted to
fundamental error warranting a new trial.
However, in the seminal "plain error" case, our Supreme
Court explained that "[t]he adoption of the 'plain error' rule
does not mean that every failure to give a proper instruction
mandates reversal regardless of the defendant's failure to
object at trial." State v. Odom, 307 N.C. 655, 660, 300 S.E.2d
375, 378 (1983). Instead, the Court held, "even when the 'plain
error' rule is applied, '[i]t is the rare case in which an
improper instruction will justify reversal of a criminal
conviction when no objection has been made in the trial court.'
. . . In deciding whether a defect in the jury instruction
constitutes 'plain error,' the appellate court must examine the
entire record and determine if the instructional error had a
probable impact on the jury's finding of guilt." Id. at 660-61,
300 S.E.2d at 378-79 (quoting Henderson v. Kibbe, 431 U.S. 145,
154, 52 L. Ed. 2d 203, 212, 97 S. Ct. 1730, 1736 (1977)).
Because defendant has failed to show that any instructional
errors had a probable effect on the jury, he has failed to
establish plain error.
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Although we hold that the jury instruction did not result
in plain error in this case, we acknowledge that the pattern
jury instruction's use of "serious injuries," "serious bodily
injury," and "bodily injury," is troublesome given the distinct
definitions given to those phrases in different contexts.
Because, however, defendant failed to object at trial, we need
not address whether the pattern instruction would constitute
reversible error if the issue were properly preserved for
review.
No error.
Judges ROBERT C. HUNTER and McCULLOUGH concur.
Report per Rule 30(e).