State v. Blow

An unpublished opinion of the North Carolina Court of Appeals does not constitute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
 -2-
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.
 -3-
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
 -4-
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
 -5-
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.
 -6-
"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)
 -7-
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,
 -8-
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?
 -9-
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
 -10-
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[.]
 -11-

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
 -12-
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
 -13-
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
 -14-
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.
 -15-
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).