State v. Pettis, COA24-358, ___ N.C. App. ___ (Dec. 3, 2024)

In this New Hanover County case, defendant appealed his conviction for assault with a deadly weapon inflicting serious injury, arguing error in peremptorily instructing the jury that, as matters of law, a glass bottle is a deadly weapon and the victim’s injury was a serious injury. The Court of Appeals found no reversible error.

The charge against defendant resulted from a bar fight in Wilmington where defendant struck the victim with a glass beer bottle, causing a cut that required 35 stitches. At the charge conference, “the trial court informed counsel that it planned on instructing the jury that the victim’s injury was serious as a matter of law and that a glass beer bottle is a deadly weapon as a matter of law.” Slip Op. at 2. Defense counsel only objected to the instruction on the glass bottle as a deadly weapon.

Taking up defendant’s arguments, the Court of Appeals first considered whether it was plain error to consider the cut a serious injury as a matter of law. The court dispensed with this argument by determining defendant “failed to meet his burden of showing that the jury probably would have found that the victim’s facial laceration requiring thirty-five stitches was not a serious injury.” Id. at 4. Moving to the glass bottle, the court looked to State v. Morgan, 156 N.C. App. 523 (2003), and concluded that in the circumstances of this case, the bottle represented a deadly weapon and it was not error to instruct the jury as such.