{
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    "judges": [
      "Judges ELMORE and STROUD concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. TRONE BRONKEITH TILLERY"
    ],
    "opinions": [
      {
        "text": "STEELMAN, Judge.\nHaving correctly determined that the jury must decide whether a \u201c2x4 board\u201d was a deadly weapon for purposes of a felony assault, the trial court erred in not submitting the lesser included offense of assault inflicting serious injury to the jury.\nThe State\u2019s evidence at trial tended to show that, on the evening of 1 May 2005, Scott Lewis suffered a fractured skull, a broken jaw, and other injuries as the result of a severe beating that took place at defendant\u2019s home at the hands of two men. Lewis and others had been working at the defendant\u2019s home throughout the afternoon, and the defendant was present. There was no trouble during the daylight hours. Crack cocaine and marijuana were available, and the victim acknowledged using drugs that day. Later in the evening, a friend of the defendant, known to Lewis only by his nickname of \u201cB,\u201d arrived. The beating occurred after B\u2019s arrival. Lewis\u2019 skull was cracked in two places, he suffered a brain hemorrhage, his jaw was broken, and four of his teeth were knocked loose. He spent several days in intensive care and was out of work for six months.\nDefendant was indicted for assault with a deadly weapon with intent to kill inflicting serious injury. The indictment identified the deadly weapon as \u201ca 2x4 board, a deadly weapon[.]\u201d\nAt trial, Lewis identified the defendant as one of two men who had \u201cstomped and kicked and beat [him] repeatedly.\u201d When asked to \u201cstart from the beginning,\u201d Lewis responded that \u201c[I]t was late evening before his friend got there. And all I remember is the first flash of when the two by four hit me in my face.\u201d Lewis could not identify which of the men wielded the two by four, but was certain that there were two men. He testified that he had known the defendant for three or four months, but knew him only as \u201cWeasel.\u201d He had only seen \u201cB\u201d once or twice.\nLewis was interviewed on the evening of the assault. Deputy Owens testified that Lewis told him that \u201csome guys . . . had hit him with a two by four and stomped him and beat him\u201d and identified his attacker as \u201cB.\u201d Owens denied that the victim had identified \u201cWeasel\u201d as one of his attackers. The victim\u2019s father and Corporal Sewell both testified that the victim identified both \u201cB\u201d and \u201cWeasel\u201d as his attackers. The officers never determined the identity of \u201cB\u201d and never found a bloodstained two by four board or any other bloodstained lumber or implement at defendant\u2019s house or yard.\nThe defendant presented no evidence but moved the Court to dismiss the charges. This motion was denied. The trial court instructed the jury on assault with a deadly weapon with intent to kill inflicting serious injury and assault with a deadly weapon inflicting serious injury but denied the defendant\u2019s request to instruct the jury on the lesser-included charge of misdemeanor assault inflicting serious injury. The trial court gave a peremptory instruction on the element of serious injury, but gave the following instruction concerning the \u201cdeadly weapon\u201d element of the charge:\n[T]hat the defendant used a deadly weapon. A deadly weapon is a weapon which is likely to cause death or serious bodily injury. In determining whether a two by four board was a deadly weapon, you should consider the nature of a two by four board, the manner in which i[t] was used, and the size and strength of the defendant as compared to the victim.\nThe jury returned a verdict of guilty of assault with a deadly weapon inflicting serious injury. Defendant was sentenced to a term of thirty-four to fifty months\u2019 imprisonment. Defendant appeals.\nIn his first argument, defendant contends that the trial court erred in refusing to instruct the jury on the lesser-included offense o\u00ed misdemeanor assault inflicting serious injury. We agree.\nMisdemeanor assault inflicting serious injury is a lesser included offense of assault with a deadly weapon inflicting serious injury. State v. Lowe, 150 N.C. App. 682, 685, 564 S.E.2d 313, 315 (2002).\nThe primary distinction between felonious assault under G.S. \u00a7 14-32 and misdemeanor assault under G.S. \u00a7 14-33 is that a conviction of felonious assault requires a showing that a deadly weapon was used and serious injury resulted, while if the evidence shows that only one of the two elements was present, i.e., that either a deadly weapon was used or serious injury resulted, the offense is punishable only as a misdemeanor.\nId., 564 S.E.2d at 316 (quoting State v. Owens, 65 N.C. App. 107, 110-11, 308 S.E.2d 494, 498) (1983). In Lowe, the victim was severely beaten and testified at trial that \u201che was hit and \u2018stomped\u2019 and probably beaten with the lid of the commode[.]\u201d Id. at 684, 564 S.E.2d at 315. The trial court did not instruct the jury on misdemeanor assault inflicting serious injury. Id. Since the defendant failed to preserve the issue at trial, this Court reviewed the issue on a \u201cplain error\u201d standard. Id. at 685, 564 S.E.2d at 315. Finding that there was no \u201cconclusive evidence\u201d that a deadly weapon was used, this Court reversed the conviction. Id. at 685, 687, 564 S.E.2d at 316-17.\nIn order for the State to prove assault with a deadly weapon inflicting serious injury, it had to prove that a deadly weapon was used. In State v. Whitaker, 316 N.C. 515, 342 S.E.2d 514 (1986), our Supreme Court stated:\nWhen any evidence presented at trial would permit the jury to convict defendant of the lesser included offense, the trial court must instruct the jury regarding that lesser included offense. Failure to so instruct the jury constitutes reversible error not cured by a verdict of guilty of the offense charged.\nId. at 520, 342 S.E.2d at 518 (internal citations omitted). A \u201cdefendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.\u201d Keeble v. United States, 412 U.S. 205, 208, 36 L.E.2d 844, 847 (1973). \u201cThe trial court may refrain from submitting the lesser offense to the jury only where the \u2018evidence is clear and positive as to each element of the offense charged\u2019 and no evidence supports a lesser-included offense.\u201d State v. Lawrence, 352 N.C. 1, 19, 530 S.E.2d 807, 819 (2000) (quoting State v. Peacock, 313 N.C. 554, 558, 330 S.E.2d 190, 193 (1985)). \u201cThe determining factor is the presence of evidence to support a conviction of the lesser included offense.\u201d State v. Boykin, 310 N.C. 118, 121, 310 S.E.2d 315, 317 (1984).\nIn State v. Palmer, 293 N.C. 633, 634, 239 S.E.2d 406, 407 (1977), the indictment charged that the defendant used \u201ca stick, a deadly weapon[.]\u201d At trial, the State\u2019s evidence tended to show that there were two assaults, one in which the defendant caused minor injury to the victim\u2019s arms by hitting him with a stick, and another where the defendant used no implement but beat the victim in the head, causing loss of ten teeth and severe bruising. Id. at 640-41, 239 S.E.2d at 411. The Supreme Court held that, as the stick was not a deadly weapon as a matter of law, the trial court\u2019s failure to instruct the jury on the lesser-included offense of simple assault was reversible error. Id. at 642-44, 239 S.E.2d at 412-13; accord State v. Smith, 186 N.C. App. 57, 650 S.E.2d 29 (2007).\nCiting to the 1924 case State v. Smith, the Supreme Court clearly enunciated the test for when a jury must determine whether an object is a \u201cdeadly weapon.\u201d\n\u201c \u2018Where the alleged deadly weapon and the manner of its use are of such character as to admit of but one conclusion, the question as to whether or not it is deadly within the foregoing definition is one of law, and the Court must take the responsibility of so declaring. . . . But where it may or may not be likely to produce fatal results, according to the manner of its use, or the part of the body at which the blow is aimed, its alleged deadly character is one of fact to be determined by the jury.\u2019 (Citation omitted.)\u201d\nIf 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.\nPalmer, 293 N.C. at 643, 239 S.E.2d at 413 (quoting State v. Smith, 187 N.C. 469, 470, 121 S.E. 737 (1924)).\nIn the instant case, the trial judge correctly concluded that the issue of whether or not the \u201c2x4 board\u201d was a deadly weapon was one for the jury to determine, and did not give a peremptory instruction on that element of the assault charge. Having made the determination that the \u201c2x4 board\u201d was not per se a deadly weapon, the trial judge should have instructed the jury on the lesser included offense of assault inflicting serious injury. We hold that this omission constitutes reversible error, and this matter must be remanded for a new trial.\nIn light of our decision, we decline to address defendant\u2019s remaining assignments of error.\nNEW TRIAL.\nJudges ELMORE and STROUD concur.",
        "type": "majority",
        "author": "STEELMAN, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Barbara A. Shaw, for the State.",
      "Haral E. Carlin, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. TRONE BRONKEITH TILLERY\nNo. COA07-23\n(Filed 16 October 2007)\nAssault\u2014 board as deadly weapon \u2014 lesser included offense\nThe trial judge in a felony assault prosecution correctly concluded that the issue of whether a 2x4 board was a deadly weapon was for the jury, but should then have instructed on the lesser included misdemeanor of assault inflicting serious injury.\nAppeal by defendant from judgment entered 27 July 2006 by Judge W. Russell Duke, Jr. in Edgecombe County Superior Court. Heard in the Court of Appeals 30 August 2007.\nAttorney General Roy Cooper, by Assistant Attorney General Barbara A. Shaw, for the State.\nHaral E. Carlin, for defendant-appellant."
  },
  "file_name": "0447-01",
  "first_page_order": 477,
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