State v. Edgerton

NO. COA13-1235

NORTH CAROLINA COURT OF APPEALS

Filed: 17 June 2014

STATE OF NORTH CAROLINA

v. Rutherford County
No. 11 CRS 52801
12 CRS 1594

HOWARD JUNIOR EDGERTON

Appeal by defendant from judgment entered 21 March 2013 by

Judge Gary M. Gavenus in Rutherford County Superior Court.

Heard in the Court of Appeals on 20 March 2014.

Attorney General Roy Cooper, by Assistant Attorney General
Teresa M. Postell, for the State.

Michael E. Casterline, for defendant-appellant.

HUNTER, JR., Robert N., Judge.

Howard Junior Edgerton (“Defendant”) appeals from a 21

March 2013 judgment sentencing him as a level VI offender for

violating a domestic violence protective order (“DVPO”) with a

deadly weapon. Defendant argues that the trial court erred by

failing to instruct the jury on the lesser-included misdemeanor

offense of violation of a DVPO. We agree and order a new trial.
 -2-
I. Facts & Procedural History

Defendant was indicted on 9 July 2012 for violating a DVPO

with a deadly weapon in 11 CRS 052801, and with assault with a

deadly weapon with intent to kill (“AWDWIK”), assault by

strangulation, and second-degree kidnapping in 11 CRS 052829.

Defendant was indicted with AWDWIK and second-degree kidnapping

in 11 CRS 052830 and 11 CRS 052831. On 9 July 2012, Defendant

was charged with habitual felon status in 12 CRS 1594.

Defendant stood trial on 18–21 March 2013 in Rutherford County

Superior Court. The record and trial transcript tended to show

the following facts.

Brandon Hamilton (“Mr. Hamilton”) testified first for the

State. Mr. Hamilton said Jacquie King (“Ms. King”), Amber

Harkless (“Ms. Harkless”), and Dianna Moore (“Ms. Moore”) drove

to pick up Defendant around 9:30 or 10:00 p.m. on 27 August

2011. The group was traveling to the “Boom Boom Room,” which

Mr. Hamilton described as a “bootlegger” in Lake Lure, where the

group “had a few drinks.” Mr. Hamilton said he knew that

Defendant and Ms. King were previously in a relationship before

the evening’s events took place.

Mr. Hamilton described Defendant as “cool” and “laid back”

initially, but then said Defendant became angry after Mr.
 -3-
Hamilton “complimented [Ms. King] on her weight loss.” After

Mr. Hamilton made these remarks, Mr. Hamilton said the situation

escalated and that Defendant threatened him. After Defendant

levied these threats, the group got into the car to take

Defendant home, whereupon Defendant started hitting Ms. King and

brandished a pocket knife. After the group stopped the car,

Defendant left the vehicle, re-entered, and then began “sawing

[Ms. King’s] neck with a dull knife.” Mr. Hamilton said he knew

it was a dull knife because “if it was a sharp knife, I am

pretty sure – he was sawing at it – she would be dead right

now.”

Mr. Hamilton told Ms. Harkless and Ms. King to leave the

car, and Defendant continued to threaten them both. Ms.

Harkless then drove Defendant to his home and later called

police, who met Defendant at his home. Mr. Hamilton spoke with

police when they arrived but did not give a statement at that

time. Mr. Hamilton said Ms. King had “road rash and scars on

her neck. She had a few knots on her.” Mr. Hamilton said that

Defendant’s sawing of Ms. King’s neck produced only scratches

because the knife was “completely dull.” Mr. Hamilton

eventually gave a statement to police.
 -4-
Ms. King testified at trial, saying she was in an abusive

relationship with Defendant. Ms. King said she was afraid of

Defendant and that Defendant

beat me, punch[ed] me in my face. One time
he kicked me down probably a 20-foot
embankment. It was so many things. It was
abuse every day. Hit me. He would get
drunk and punch me in my face, kick me. He
tried to burn my trailer one time. He
pulled my mattress into the middle of my
trailer. I had people staying with me that
had a baby, and he said get your baby out of
the house because I am about to burn this
down.

Ms. King said she stayed in a relationship with Defendant

because she was “scared of him” Ms. King later obtained a one-

week temporary restraining order in April 2011 after she said

Defendant “pulled a shotgun on” her and her friend. Ms. King

later received a year-long DVPO requiring Defendant to avoid all

contact with Ms. King.

After the DVPO was granted, Ms. King said Defendant

continued to seek contact with her. Eventually Ms. King “went

back to him” because she said Defendant “acted like he had

changed – like he wasn’t going to be abusive anymore.” Ms.

King said Defendant was “[c]alm, respectful, not aggressive at

all” when he visited her home the two weeks prior to the evening

at issue.
 -5-
Ms. King said the trip to the Boom Boom Room was the first

time that she went out to a club with Defendant since obtaining

the DVPO. Ms. King also said Defendant was calm at first during

the group’s time at the Boom Boom Room, but that Defendant

became aggressive and began to accuse her of having sexual

relations with other members of the group. Ms. King said she

began to get nervous and wanted to leave Defendant at the Boom

Boom Room, but that Defendant was insistent that he be brought

home. After the group allowed him to travel with them, Ms. King

said Defendant became “wild” and that he began punching Ms. King

in the face.

Ms. Harkless stopped the vehicle when she realized that

Defendant was hitting Ms. King. Mr. Hamilton, Ms. Moore, and

Defendant exited the vehicle and Mr. Hamilton and Ms. Moore

confronted Defendant. Ms. King said that Defendant began to

chase Ms. Moore and Mr. Hamilton with a knife and that Defendant

was trying to inflict injuries with the knife. Ms. King said

Defendant then reentered the vehicle, ordered Ms. Harkless to

drive, and began “cutting [Ms. King’s] throat.” Ms. King said

Defendant continued to choke her and told her she would die that

evening. Ms. King also said Defendant wasn’t “slicing [her]

throat” but that Defendant was “digging in with the knife and
 -6-
cutting knicks on my neck, cutting parts of my neck.” Ms. King

said the cuts on her neck bled, but she did not know the amount

of blood produced by the cuts.

Ms. King said she was able to dislodge a car door while the

vehicle was still traveling around 40 to 50 miles per hour

toward Defendant’s father’s home, where Defendant lived. As the

car approached the home at around 5 to 10 miles per hour, Ms.

King said she was pushed by Defendant from the vehicle. Twenty

minutes later, Ms. King said a number of police officers

returned with Defendant in custody. Ms. King said Defendant was

“beating his head against the police window and screaming [her]

name” while officers took photos of her injuries.

Ms. King also described her interview with Detective Ricky

McKinney (“Detective McKinney”) of the Rutherford County

Sheriff’s Department. Ms. King initially told Detective

McKinney that she met Defendant at the Boom Boom Room rather

than that the group had picked Defendant up beforehand. Ms.

King said her statement was not true and that she told Detective

McKinney this because she did not want to disappoint her family.

Ms. King also gave a statement to Detective McKinney, which also

contained an incorrect statement about the composition of the

group who traveled to the Boom Boom Room.
 -7-
Corporal Stephen Ellis (“Corporal Ellis”) testified next at

trial. Corporal Ellis responded to a 911 hang-up call and

information that Defendant “was assaulting people” in a vehicle.

Corporal Ellis traveled toward Defendant’s residence and located

Ms. King laying on the ground alongside Grassy Knob Road.

Corporal Ellis spoke with Ms. King about the evening’s events

and said she was afraid and “visibly upset.” Ms. King led

Corporal Ellis to Defendant’s residence because Corporal Ellis

had information that Defendant was possibly holding Ms. Harkless

against her will. Corporal Ellis arrested Defendant, whom

Corporal Ellis said became belligerent after being arrested.

Corporal Ellis took Defendant back to where he originally

found Ms. King and began to complete an incident report, to

photograph Ms. King’s injuries, and to take statements from Ms.

King and Ms. Harkless. Corporal Ellis also said Defendant

became irate in the back of his patrol vehicle and hit his head

against the car’s windows. Corporal Ellis said Ms. King had

“lots of red marks on her chest and around her neck area, . . .

visible nicks or cuts to the top of her throat” and several

bruises. Corporal Ellis also observed blood on Ms. King’s

shirt.
 -8-
Officer Tyler Greene (“Officer Greene”) was with Corporal

Ellis on the evening at issue in this case. Officer Greene

recounted similar statements as Corporal Ellis. Officer Greene

said he observed cuts on Ms. King’s neck and chin, but that they

were difficult to see in the photograph presented at trial.

Detective McKinney testified at trial. Detective McKinney

interviewed Ms. King, Ms. Harkless, and Ms. Moore two days after

the events in question at the sheriff’s office on 29 August

2011. Mr. Hamilton did not provide a statement at that time.

Forensics Investigator Bruce Green testified that Ms. King

brought a shirt to the sheriff’s office on 31 August 2011, which

Mr. Green identified as a shirt with blood staining.

The State rested its case and Defendant made a motion to

dismiss. The trial court granted Defendant’s motion with

respect to all charges involving Ms. Harkless (11 CRS 52830) and

Ms. Moore (11 CRS 52831). The trial court also dismissed the

kidnapping charge involving Ms. King in 11 CRS 52829, but denied

the motion as relating to the remaining charges. Defendant did

not present any evidence. The jury found Defendant guilty of

violating the DVPO with a deadly weapon in 11 CRS 52801, but not

guilty of the remaining offenses. Defendant then entered a

guilty plea to Habitual Felon status and was sentenced in the
 -9-
aggravated range for a Class C felony as a prior record level

VI. Defendant was sentenced to an active term of 168 to 211

months. Defendant filed written notice of appeal on 16 April

2013.

II. Jurisdiction & Standard of Review

Defendant appeals pursuant to N.C. Gen. Stat. §§ 7A-27(b),

15A-1444(a) (2013). However, Defendant did not timely file his

notice of appeal in violation of N.C. R. App. P. 4. Failure to

comply with Rule 4 constitutes a jurisdictional default, which

“precludes the appellate court from acting in any manner other

than to dismiss the appeal.” Dogwood Dev. & Mgmt. Co. v. White

Oak Transp. Co., 362 N.C. 191, 197, 657 S.E.2d 361, 365 (2008).

Accordingly, we dismiss Defendant’s appeal, but, in our

discretion, we allow Defendant’s petition for writ of certiorari

to review the merits of his arguments pursuant to N.C. R. App.

P. 21.

On appeal, Defendant argues that the trial court erred in

refusing to instruct the jury on a lesser-included misdemeanor

offense of violating a DVPO when it instructed the jury on

violating a DVPO with a deadly weapon. Defendant did not object

to the jury instruction at issue here, meaning that it was not

preserved for appeal. However, “[i]n criminal cases, an issue
 -10-
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).

“To establish plain error, defendant must show that the

erroneous jury instruction was a fundamental error—that the

error had a probable impact on the jury verdict.” State v.

Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012). “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 different result.” State v.

Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).

III. Analysis

We hold that because the trial court concluded that the

knife used in this case was not a deadly weapon per se, the

trial court should have instructed the jury on the lesser-

included misdemeanor offense of violating a DVPO. We also hold

that failing to instruct the jury on the lesser included
 -11-
misdemeanor offense was plain error because it likely affected

the outcome in this case.

In State v. Weaver, our Supreme Court adopted a

definitional test for determining whether one crime is a lesser

included offense of another crime. 306 N.C. 629, 635, 295

S.E.2d 375, 378–79 (1982), disapproved of on other grounds by

State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993). That test

requires that

all of the essential elements of the lesser
crime must also be essential elements
included in the greater crime. If the
lesser crime has an essential element which
is not completely covered by the greater
crime, it is not a lesser included offense.
The determination is made on a definitional,
not a factual basis.

Id. at 535, 295 S.E.2d at 379.

Under the definitional test, the misdemeanor crime of

violating a DVPO1 is a lesser included offense of the felony

crime of violating a DVPO with a deadly weapon.2 Both crimes

have identical elements of (i) knowingly (ii) violating a (iii)

valid DVPO, except that the felony offense includes an

additional element that the perpetrator be in “possession of a

deadly weapon on or about his or her person or within close

1
N.C. Gen. Stat. § 50B-4.1(a) (2013).
2
N.C. Gen. Stat. § 50B-4.1(g) (2013).
 -12-
proximity to his or her person.” Compare N.C. Gen. Stat. § 50B-

4.1(a) with N.C. Gen. Stat. § 50B-4.1(g). The felony offense

also explicitly references the misdemeanor offense. N.C. Gen.

Stat. § 50B-4.1(g) (“Unless covered under some other provision

of law providing greater punishment, any person who, while in

possession of a deadly weapon on or about his or her person or

within close proximity to his or her person, knowingly violates

a valid protective order as provided in subsection (a) of this

section by failing to stay away from a place, or a person, as so

directed under the terms of the order, shall be guilty of a

Class H felony.”).

As the misdemeanor violation of a DVPO is a lesser included

offense of the felony violation of a DVPO, Defendant was also

entitled to a jury instruction on that charge “‘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 (1973)). The dispositive

factor is the presence of evidence to support a conviction of

the lesser-included offense. Id. As such, we must determine

whether the jury could have rationally found that the knife used

by the Defendant did not constitute a deadly weapon and also
 -13-
whether there is evidence to support a conviction of misdemeanor

violation of a DVPO.

In North Carolina, a “deadly weapon is one which, under the

circumstances of its use, is likely to cause death or great

bodily harm.” State v. Walker, 204 N.C. App. 431, 444, 694

S.E.2d 484, 493 (2010). Generally, a weapon is determined to be

“deadly” depending on its use and its characteristics. However,

North Carolina courts have found some weapons to constitute

deadly weapons per se. “Some weapons are per se deadly, e.g. a

rifle or pistol: others, owing to the great and furious violence

and manner of use, become deadly.” State v. Cauley, 244 N.C.

701, 707, 94 S.E.2d 915, 920 (1956). This Court has found that

knives are not always dangerous weapons per se and that the

circumstances of each case are determinative. See State v.

Smallwood, 78 N.C. App. 365, 368, 337 S.E.2d 143, 144–45 (1985).

In this case, the trial court concluded that the knife used

by the Defendant was not a deadly weapon per se, as evidenced by

the trial court’s decision not to instruct the jury that the

weapon used by the Defendant was deadly as a matter of law. The

trial court instructed the jury that in order to find the

Defendant guilty of violating a DVPO while in possession of a

deadly weapon, the jury must “consider the nature of the knife,
 -14-
the manner in which it was used, and the size and strength of

the defendant as compared to the victim.” The record also shows

conflicting evidence as to whether or not the knife used by the

Defendant on the victim was capable of producing death or great

bodily harm. For example, Mr. Hamilton stated that the knife

was so dull that even though Defendant was “sawing” Ms. King’s

neck with the pocket knife, Ms. King was left with only “knicks”

on her neck. However, the jury may also consider the nature of

the knife’s use, the size of the knife, and the strength of the

party when determining whether the knife is a deadly weapon.

State v. Palmer, 293 N.C. 633, 643, 239 S.E.2d 406, 413 (1977)

(“If there is a conflict in the evidence regarding either the

nature of the weapon or the manner of its use, with some of the

evidence tending to show that the weapon used or as used would

not likely produce death or great bodily harm and other evidence

tending to show the contrary, the jury must, of course, resolve

the conflict.”). Therefore, the trial court correctly determined

that the knife used by the Defendant in this case was not a

deadly weapon per se, and properly left this determination to

the jury.

Having instructed the jury to determine whether the knife

used in this case constituted a deadly weapon, the trial court
 -15-
should have next instructed the jury on the lesser-included

misdemeanor offense. This Court was presented with a similar

issue in Tillery.

In Tillery, the Defendant used a 2x4 board in the course of

an assault. 186 N.C. App. at 447, 651 S.E.2d at 292. The trial

court instructed the jury on the offense of assault with a

deadly weapon inflicting serious injury, but refused to instruct

on the lesser-included offense of misdemeanor assault inflicting

serious injury. Id. at 448, 651 S.E.2d at 293. On appeal, the

Defendant argued that the trial court erred in refusing to

instruct on the lesser-included misdemeanor. Id. at 449, 651

S.E.2d at 293. This Court agreed, holding that because the

trial court did not find the 2x4 board to be a deadly weapon per

se, the trial judge should have instructed the jury on the

lesser-included offense of misdemeanor assault inflicting

serious injury. Id. at 451, 651 S.E.2d at 294; see also State

v. Lowe, 150 N.C. App. 682, 686, 564 S.E.2d 313, 316 (2002)

(finding plain error for the trial court’s failure to instruct

the jury on the lesser-included misdemeanor assault charge, when

“[t]here is sufficient evidence from which the jury could find

that the [weapons used] were not used as deadly weapons”).
 -16-
Here, as in Tillery, the evidence presented at trial

conflicted over whether the weapon used by the Defendant

constituted a deadly weapon. In both cases, the only element

that distinguished the felony offense from the misdemeanor

offense was the Defendant’s use of a deadly weapon in the course

of the crime. We hold that, in this case, based on conflicting

evidence of the knife’s deadly qualities, a jury could have

rationally found the Defendant guilty of the lesser-included

offense of misdemeanor violation of a DVPO.

We must next consider whether the trial court’s failure to

instruct the jury on the lesser-included misdemeanor offense

rose to the level of plain error. “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.” State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375,

378–79 (1983) (quotation marks and citation omitted).

Here, the State presented a strong case for the lesser-

included violation of the DVPO. Defendant signed the DVPO. The

timeframe for the DVPO was in effect at the time of the

incident. The DVPO was filed on 18 May 2011, was effective

until 18 May 2012, and the incidents at issue occurred on 27
 -17-
August 2011, clearly within the time period of the DVPO. There

was also extensive testimony that Defendant contacted and sought

contact with Ms. King, which concerns whether he knowingly

violated the DVPO.

At trial, Defendant was found guilty of violating the DVPO

with a deadly weapon; all other charges were dismissed or

Defendant was found not guilty by the jury. The jury returned a

not guilty verdict for two charges that included an element of a

deadly weapon, including assault with a deadly weapon under N.C.

Gen. Stat. § 14-32(b) (2013). It is unclear whether the jury

considered the knife a “deadly weapon” as to that charge, or

whether the jury did not consider the injuries Ms. King

sustained to be “serious” under § 14-32. However, the record

shows there was extensive testimony about bruising, cuts, and

other injuries to Ms. King, as well as testimony that

Defendant’s knife was very dull. Whether the jury did or did

not believe the knife was a deadly weapon, however, there was

not a sentencing option to find Defendant guilty solely of

violating the DVPO. With the elements of the misdemeanor DVPO

violation likely met, the jury’s only method to sentence

Defendant for violating the DVPO was through the felony

violation of a DVPO with a deadly weapon. The lack of the
 -18-
misdemeanor sentencing option, in light of the jury’s finding

that Defendant was not guilty of assault with a deadly weapon or

AWDWIK, likely impacted the jury’s finding of guilt on the

felony charge. Accordingly, the trial court’s failure to

instruct on the misdemeanor of violating the DVPO rose to the

level of plain error. As such, we remand this matter for a new

trial. In light of our decision, we decline to address

Defendant’s remaining assignments of error.

IV. Conclusion

For the reasons stated above, we order a

NEW TRIAL.

Judge STROUD concurs.

Judge DILLON dissents in a separate opinion.
 NO. COA13-1235

NORTH CAROLINA COURT OF APPEALS

Filed: 17 June 2014

STATE OF NORTH CAROLINA

v. Rutherford County
No. 11 CRS 52801
12 CRS 1594
HOWARD JUNIOR EDGERTON

DILLON, Judge, dissenting.

I do not agree with the majority that any error by the

trial court in failing to instruct the jury on the lesser-

included misdemeanor domestic violence protective order (“DVPO”)

violation rose to the level of plain error; and, therefore, I

respectfully dissent.

A person who knowingly violates a DVPO commits a

misdemeanor, see N.C. Gen. Stat. § 50B-4.1(a) (2013); unless

the person who violates the DVPO does so “while in the

possession of a deadly weapon on or about his or her person or

within close proximity to his or her person[,]” in which case

that person is guilty of a felony. N.C. Gen. Stat. § 50B-

4.1(g). As the majority correctly points out, the question is

whether any error by the trial court in failing to instruct the

jury on the lesser misdemeanor DVPO in the present case rose to
 -2-
the level of plain error; that is, whether the jury probably

would have convicted Defendant of misdemeanor DVPO, thereby

concluding that the State had failed to prove that the knife was

a “deadly weapon.” State v. Lawrence, 365 N.C. 506, 518, 723

S.E.2d 326, 334 (2012).

The pocketknife, which Defendant brandished in the victim’s

face and about her neck while choking her and threatening to

kill her, had a blade which was described at trial as a “little

duller than average.” I certainly believe it is possible that

the jury could have determined that the knife was not a deadly

weapon, and would have, therefore, convicted Defendant of only a

misdemeanor DVPO violation had it been instructed on this

lesser-included offense. However, I also believe that the

evidence was sufficient to sustain the finding that the knife

was, indeed, a deadly weapon. Accordingly, I cannot say that the

jury “probably” would have convicted Defendant of a misdemeanor

DVPO if given that option.

The majority argues that the failure to instruct on a

misdemeanor DVPO violation had a “probable impact” because the

jury’s verdict to convict on the felony DVPO violation was

inconsistent with their decision to acquit Defendant of assault

with a deadly weapon and AWDWIK, crimes which require a finding
 -3-
that Defendant possessed a deadly weapon. In explaining

inconsistent verdicts, our Supreme Court has stated as follows:

[Inconsistent verdicts] should not
necessarily be interpreted as a windfall to
the Government at the defendant’s expense.
It is equally possible that the jury,
convinced of guilt, probably reached its
conclusion on [one offense], and then
through mistake, compromise, or lenity,
arrived at an inconsistent conclusion on the
[other offense].

. . . .

Inconsistent verdicts therefore present a
situation where “error,” in the sense that
the jury has not followed the court’s
instructions, most certainly has occurred,
but it is unclear whose ox has been gored.
Given the uncertainty, and the fact that the
Government is precluded from challenging the
acquittal, it is hardly satisfactory to
allow the defendant to receive a new trial
on the conviction as a matter of course.

State v. Mumford, 364 N.C. 394, 399-400, 699 S.E.2d 911, 915

(2010) (quoting United States v. Powell, 469 U.S. 57, 83 L. Ed.

2d 461 (1984)). Therefore, following our Supreme Court’s

rationale in Mumford, I cannot say that, in the present case, it

is probable the jury would have acquitted Defendant of a felony

DVPO violation based on its acquittal of the assault charges.

It is “equally possible” that the jury was convinced of

Defendant’s guilt of the Chapter 50B charge, but that it reached

an inconsistent verdict on the Chapter 14 assault charges –
 -4-
assuming that the verdicts were, indeed, inconsistent3 – through

“mistake, compromise or lenity[.]” Id.

3
It is possible that the jury’s verdicts were not
inconsistent. Specifically, whether a weapon is deadly in the
context of the Chapter 14 assault crimes for which Defendant was
acquitted might depend on the “circumstances of [the weapon’s]
use,” State v. Lowe, 150 N.C. App. 682, 686, 564 S.E.2d 313, 316
(2002), whereas the Chapter 50B felony for which Defendant was
convicted does not require that the defendant “use” the weapon
at all, but only that he possessed it when he violated the DVPO.
Accordingly, the jury may have determined that the knife was a
deadly weapon, but that he did not use it in a manner which was
likely to cause death.