{ "id": 11649202, "name": "STATE OF NORTH CAROLINA v. JIMMY LEE ALLRED", "name_abbreviation": "State v. Allred", "decision_date": "1998-04-07", "docket_number": "No. COA97-522", "first_page": "232", "last_page": "236", "citations": [ { "type": "official", "cite": "129 N.C. App. 232" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "45 S.E.2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1947, "pin_cites": [ { "page": "135" } ], "opinion_index": 0 }, { "cite": "228 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625474 ], "year": 1947, "pin_cites": [ { "page": "232" } ], "opinion_index": 0, "case_paths": [ "/nc/228/0228-01" ] }, { "cite": "333 S.E.2d 708", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "718" } ], "opinion_index": 0 }, { "cite": "314 N.C. 337", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4695126 ], "year": 1985, "pin_cites": [ { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0337-01" ] }, { "cite": "347 S.E.2d 7", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "18" } ], "opinion_index": 0 }, { "cite": "317 N.C. 417", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4773087 ], "year": 1986, "pin_cites": [ { "page": "436" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0417-01" ] }, { "cite": "432 S.E.2d 887", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "889" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 649", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523369 ], "year": 1993, "pin_cites": [ { "page": "654" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0649-01" ] }, { "cite": "456 S.E.2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "340 N.C. 115", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790243, 790151, 790219, 790263, 790076 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/340/0115-05", "/nc/340/0115-01", "/nc/340/0115-04", "/nc/340/0115-03", "/nc/340/0115-02" ] }, { "cite": "454 S.E.2d 259", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "339 N.C. 616", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558083, 2558763, 2557901, 2559023, 2557115 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/339/0616-03", "/nc/339/0616-02", "/nc/339/0616-04", "/nc/339/0616-05", "/nc/339/0616-01" ] }, { "cite": "215 S.E.2d 598", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "602-03" } ], "opinion_index": 0 }, { "cite": "288 N.C. 34", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564656 ], "year": 1975, "pin_cites": [ { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0034-01" ] }, { "cite": "450 S.E.2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "540", "parenthetical": "quoting State v. Pearson, 288 N.C. 34, 39, 215 S.E.2d 598, 602-03 (1975)" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 239", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524959 ], "year": 1994, "pin_cites": [ { "page": "241", "parenthetical": "quoting State v. Pearson, 288 N.C. 34, 39, 215 S.E.2d 598, 602-03 (1975)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0239-01" ] }, { "cite": "237 S.E.2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "747" } ], "opinion_index": 0 }, { "cite": "293 N.C. 353", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564175 ], "year": 1977, "pin_cites": [ { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0353-01" ] } ], "analysis": { "cardinality": 530, "char_count": 10578, "ocr_confidence": 0.767, "pagerank": { "raw": 1.2982790498250206e-07, "percentile": 0.6215451171091442 }, "sha256": "312a9389197cf91447ab0104994b8244ae3fd5db217f83cf265d2ea33e9e07e9", "simhash": "1:c75e880006a734b9", "word_count": 1800 }, "last_updated": "2023-07-14T18:14:06.814789+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHN and MARTIN, Mark D., concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JIMMY LEE ALLRED" ], "opinions": [ { "text": "GREENE, Judge.\nJimmy Lee Allred (Defendant) appeals from a conviction for assault with a deadly weapon.\nOn 31 October 1995, an altercation occurred between three inmates of the Guilford County Jail. Christopher Van King (King) testified for the State that he and Defendant began to argue because King and another inmate were talking near the television in the \u201cday room,\u201d an area containing two picnic tables, a television, telephones, and a commode. King stated that inmates can leave the day room to \u201cget snacks,\u201d and that after he and Defendant argued, Defendant and Robert Foust (Foust) left the day room. King stated that when they returned, Defendant had a \u201cshank,\u201d a knife made from \u201csome type of metal razor inserted in a pen, plastic part of a pen.\u201d At that point, King testified that \u201cFoust swung at me and knocked my glasses off. As I swung back, [Defendant] stabbed me in the left shoulder [and] the back.\u201d King stated that, just before the officers arrived to break up the fight, Defendant flushed the shank down the commode in the day room.\nFoust testified for the State, offering the following description of the item used by Defendant to stab King:\nQ: And what did [Defendant] use to stab [King]?\n[Foust]: A pen. All I saw him use was a pen.\nQ: And what did you see about that pen?\n[Foust]: All I see, it was a pen. All pens are sharp. I just seen a pen. Whether it was a piece of metal or a piece of anything on it, I didn\u2019t see. I seen a ink pen.\nFoust continued to state, throughout his testimony, that \u201call I seen was a pen.\u201d\nThe officer who investigated the incident, Jerry L. Ford (Officer Ford), testified that King stated that he was stabbed by Defendant with a shank, which he described as:\n[A] typical pen, a Bic pen or whatever, and they would use a lighter to melt one end of the pen, and once the plastic begins to get softened \u2014 a lot of times the inmates have razors to shave with and sometimes the officers don\u2019t get \u2018em back, so when they have one of the razors extra, by the pen being melted, he would just slide that \u2014 they would just slide the piece of razor blade to the soft portion of the pen and once the pen got hardened, that\u2019s when the blade was stiffening and it wouldn\u2019t be able to come out and they \u2014 and [King] told me that\u2019s how they made the homemade shank out of the pen.\nKing told Officer Ford that this was the type of weapon used by Defendant to stab him. Officer Ford described King\u2019s wound as \u201cnot a wound that was just basically used by a pen, ... it wasn\u2019t just circular. It. . . had an indention to where it was something flat and then it went outward, whereas a pen, you would have, like, a puncture wound and that was the difference between the two.\u201d\nBoth of King\u2019s wounds were about one-eighth to one-quarter of an inch wide and less than an inch long. King was taken to the infirmary after the altercation, where both wounds were cleaned and bandaged. Neither wound required stitches.\nDefendant did not testify. Rodney Crite (Crite), a defense witness, testified that King and Defendant argued, and then Foust swung at King to start the physical altercation. When asked if Defendant stabbed King with a shank, Crite responded: \u201cI can\u2019t say that if it was a shank or what.\u201d William H. Anderson, another defense witness, testified that King \u201cadvanced on [Defendant]\u201d to start the fight. Both defense witnesses testified either that they did not \u201csee\u201d or could not \u201crecall\u201d a shank.\nDefendant was indicted for \u201cus[ing] a homemade knife called a shank, a deadly weapon, to assault and inflict serious injury upon [King] by stabbing the victim in the shoulder area causing a stab wound which required medical treatment.\u201d At the close of all the evidence, Defendant requested jury instructions on self-defense and on the lesser included offense of simple assault. The trial court denied both requests. During its charge to the jury, the trial court described the weapon used by Defendant to stab King as \u201cthe shank, the homemade knife or the pen with the razor in it.\u201d Defendant objected to this description, but had trouble articulating a basis for this objection, and the trial court did not change the jury charge. The jury acquitted Defendant of assault with a deadly weapon inflicting serious injury, but found him guilty of the lesser included offense of assault with a deadly weapon.\nThe issues are whether: (I) the evidence supported a jury instruction on self-defense; and (II) the evidence supported a jury instruction on the lesser included offense of simple assault.\nI\nA defendant is entitled to a jury instruction on self-defense when there is evidence from which the jury could infer that he acted in self-defense. State v. Marsh, 293 N.C. 353, 354, 237 S.E.2d 745, 747 (1977). The right of self-defense is only available, however, to \u201ca person who is without fault, and if a person voluntarily, that is aggressively and willingly, enters into a fight, he cannot invoke the doctrine of self-defense unless he first abandons the fight, withdraws from it and gives notice to his adversary that he has done so.\u201d Id. Furthermore, when confronted with a nonfelonious assault, a party is required to retreat \u201cif there is any way of escape open to him.\u201d State v. Brown, 117 N.C. App. 239, 241, 450 S.E.2d 538, 540 (1994) (quoting State v. Pearson, 288 N.C. 34, 39, 215 S.E.2d 598, 602-03 (1975)), cert. denied, 339 N.C. 616, 454 S.E.2d 259 and 340 N.C. 115, 456 S.E.2d 320 (1995). We consider the facts in the light most favorable to Defendant in determining whether the trial court should have instructed the jury on self-defense. State v. Moore, 111 N.C. App. 649, 654, 432 S.E.2d 887, 889 (1993).\nIn this case, the evidence reveals that Defendant aggressively and willingly entered the fight and did not withdraw. King was fighting with Foust when Defendant stabbed King in the shoulder with the shank. Even assuming that Defendant did not initiate the fight, he is not entitled to a charge on self-defense. All the evidence reveals that King was unarmed. Regardless of who started the altercation, therefore, Defendant was required to retreat from the nonfelonious assault rather than escalate the incident through the use of a weapon. Defendant could have retreated by leaving the day room (as he had done earlier in the evening), or he could have summoned the available officers. The trial court therefore did not err in refusing to instruct the jury on self-defense.\nII\nDefendant contends that Foust\u2019s testimony contradicted the State\u2019s evidence that Defendant stabbed King with a deadly weapon, thereby requiring submission of the lesser included offense of simple assault. We disagree.\nInstructions on a lesser included offense are required only when there is conflicting evidence as to a crucial element of the offense charged, State v. Johnson, 317 N.C. 417, 436, 347 S.E.2d 7, 18 (1986), and the evidence supports the elements of the lesser included offense, State v. Williams, 314 N.C. 337, 351, 333 S.E.2d 708, 718 (1985).\nThe evidence in this case undisputedly reveals that King received stab wounds during the altercation with Defendant. Foust\u2019s testimony did not conflict with the State\u2019s evidence that Defendant stabbed King with a shank. Foust testified: \u201cI just seen a pen. Whether it was a piece of metal or apiece of anything on it, I didn\u2019t see. I seen a ink pen.\u201d (Emphasis added). Foust never testified that Defendant used an unaltered ballpoint pen to stab King; instead, Foust testified that a ballpoint pen was all that he saw. Foust\u2019s testimony, read in its entirety, supports rather than contradicts the State\u2019s case that Defendant stabbed King with a shank made from a ballpoint pen. The record therefore reveals no conflicting evidence on this element of the State\u2019s case which would support submission of the lesser included offense of simple assault.\nFurthermore, a shank made by attaching a razor blade to a ballpoint pen would properly be denominated a deadly weapon as a matter of law when used to stab another person, because it \u201cis likely to produce death or great bodily harm under the[se] circumstances.\u201d State v. Randolph, 228 N.C. 228, 232, 45 S.E.2d 132, 135 (1947).\nDefendant also contends that the trial court erred in describing the weapon used by Defendant as \u201cthe shank, the homemade knife or the pen with the razor in it\u201d during the jury instructions. Having found that the State\u2019s evidence as to the weapon used by Defendant to stab King was uncontradicted in the record, we cannot say that this description constitutes an error.\nNo error.\nJudges JOHN and MARTIN, Mark D., concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley,- by Assistant Attorney General Julia R. Hoke, for the State.", "Donald E. Gillespie, Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JIMMY LEE ALLRED\nNo. COA97-522\n(Filed 7 April 1998)\n1. Assault and Battery \u00a7 101 (NCI4th)\u2014 self-defense\u2014 instruction not given \u2014 prison fight\nThe trial court did not err in an assault prosecution by refusing to instruct the jury on self-defense where defendant stabbed another inmate during a prison fight. Even assuming that defendant did not initiate the fight, the evidence reveals that defendant aggressively and willingly entered the fight, that defendant did not withdraw and that the victim was unarmed. Regardless of who started the altercation, defendant was required to retreat rather than escalate the incident through the use of a weapon.\n2. Assault and Battery \u00a7 116 (NCI4th)\u2014 assault with a deadly weapon \u2014 prison fight \u2014 pen or shank \u2014 submission of simple assault not required\nThe evidence in a prosecution for assault with a deadly weapon arising from a prison fight did not support a jury instruction on the lesser-included offense of simple assault where the evidence undisputedly revealed that the victim received stab wounds during the altercation with defendant. Testimony that another inmate saw only a ballpoint pen did not contradict the State\u2019s case that defendant stabbed the victim with a shank made from a ballpoint pen.\n3. Assault and Battery \u00a7 28 (NCI4th)\u2014 assault with a deadly weapon \u2014 prison fight \u2014 instructions\u2014weapon described as shank\nThe trial court did not err during an assault prosecution arising from prison fight by describing the weapon used by defendant as a \u201cshank, the homemade knife or pen with the razor in it\u201d where the State\u2019s evidence of the weapon used by defendant was uncontradicted.\nAppeal by defendant from judgment filed 19 December 1996 by Judge Thomas W. Seay, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 14 January 1998.\nAttorney General Michael F. Easley,- by Assistant Attorney General Julia R. Hoke, for the State.\nDonald E. Gillespie, Jr., for defendant appellant." }, "file_name": "0232-01", "first_page_order": 272, "last_page_order": 276 }