State v. Webster, COA23-68, ___ N.C. App. ___ (Nov. 21, 2023)

In this Forsyth County case, defendant appealed her conviction for assault with a deadly weapon inflicting serious injury, arguing error in (1) instructing the jury that the knife was a deadly weapon per se, and (2) declining to instruct the jury on the lesser-included offense of misdemeanor assault inflicting serious injury. The Court of Appeals found no error. 

At a Father’s Day cookout in 2021, defendant and the victim, a woman who was serving macaroni and cheese, began to argue. Over the course of the day, the two had several confrontations about whether defendant was entitled to be served any of the macaroni and cheese. The confrontations led to a fight, where defendant slashed the victim several times with a small pocketknife, causing injuries to her face, arms, and torso. At trial, defense counsel requested that the jury be instructed on lesser included offenses and that the knife did not constitute a per se deadly weapon, but the trial court overruled this request and did not instruct on lesser included offenses. 

Reviewing (1), the Court of Appeals noted that the knife in question was not admitted into evidence at trial. Defendant argued that without the knife in evidence and without testimony of its character and appearance, it was improper to instruct the jury that it was a deadly weapon. The court disagreed, explaining “although the State bears the burden of proving, inter alia, the use of a deadly weapon, the State is not required to producethe alleged weapon to obtain a conviction for an assault involving a deadly weapon.” Slip Op. at 12. The court also disagreed with defendant about the evidence of the knife, as body-cam footage of defendant describing the knife was in the record, as well as evidence of the injuries sustained by the victim. After determining the trial court properly instructed the jury that the knife was a deadly weapon, the court concluded that (2) was also properly decided, explaining that the State’s evidence supported every element of the crime charged and “there was no conflicting evidence relating to any element of the charged crime.” Id. at 15 (cleaned up).