An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                 NO. COA13-1238
                         NORTH CAROLINA COURT OF APPEALS

                                Filed: 5 August 2014


STATE OF NORTH CAROLINA

      v.                                           Henderson County
                                                   No. 12 CRS 961
CHARLES STEVENS BLOW, JR.,
          Defendant.


      Appeal by defendant from judgment entered 12 June 2013 by

Judge   Alan    Z.     Thornburg     in    Henderson       County    Superior     Court.

Heard in the Court of Appeals 5 March 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      M. Elizabeth Guzman, for the State.

      Paul F. Herzog for defendant-appellant.


      GEER, Judge.


      Defendant      Charles       Stevens        Blow,    Jr.     appeals     from    his

conviction of possession of a weapon by a prisoner.                            Defendant

primarily      argues    that   the       trial    court    erred    in   denying      his

motion to dismiss because the State did not present evidence

that defendant knew that possession of a fingerprick needle was

unauthorized      or     that   he    knew        the     needle    was      capable   of

inflicting serious bodily injury.                  We hold that under the plain
                                          -2-
language of the statute, the offense of possession of a weapon

by a prisoner is a strict liability offense, and the State was

not required to present evidence of defendant's knowledge.                       We,

therefore, hold that the trial court properly denied the motion

to dismiss.

                                         Facts

      The State's evidence tended to show the following facts.

Defendant     was   an    inmate    at    the    Henderson     County    Detention

Center.      On 1 April 2012, jail officers received an anonymous

tip that defendant had a diabetic fingerprick needle                        in his

cell.     Deputy Douglas Collins of the Henderson County Sheriff's

Office searched defendant for needles or other contraband, but

did not find anything.             He then asked defendant if he had a

diabetic fingerprick needle, and defendant admitted that he had

one on his desk in his cell.

      Deputy    Collins    searched       defendant's   cell    and     seized   the

needle.      When Deputy Collins informed defendant that the needle

was considered a weapon, defendant replied, "Oh, I didn’t know

it   was."     Defendant    was     not    diabetic   and    did   not   have    any

health-related reason to have a needle in his possession.

      On 23 July 2012, defendant was indicted for possession of a

weapon by a prisoner in violation of N.C. Gen. Stat. § 14-258.2.
                                         -3-
At trial, Deputy Collins testified that inmates were not allowed

to keep needles in their cells:

             Due to its extremely sharp nature and
             ability to weaponize the object, it can be
             used   against    staff   and   other   inmates.
             Common DOC practice between inmates, that's
             the Department of Corrections, they will
             take the sharp end of the needle, they can
             rub it in their own feces or urine or any
             other bodily fluid and use that to stab
             another inmate or staff causing serious
             infection.      Other communicable diseases,
             such   as   HIV    or   hepatitis   are   common
             throughout prisons.        Those can be sent
             through the needle. Also it can be used as
             a dart.

         Defendant testified on his own behalf at trial that he had

found the needle on the floor in the common room, picked it up,

and put it in his pocket.                He used the needle to clean his

fingernails,       and   had   not   altered   the   needle   in   any   way   or

attempted to use it for any other purpose.               He kept the needle

on his desk and did not attempt to hide or conceal it.                     When

asked about the needle, he told the officers exactly where it

was, and they retrieved it.               On cross-examination, defendant

admitted that he was not diabetic.

         The jury found defendant guilty on the charge of possession

of   a    weapon   by    a   prisoner.     Defendant   was    sentenced   to    a

presumptive-range term of six to 17 months imprisonment.                       His

sentence was suspended, and defendant was placed on supervised
                                    -4-
probation for 24 months.           Defendant timely appealed to this

Court.

                                     I

    Defendant     first   argues    that   the   trial   court     erred   in

denying his motion to dismiss the charge of possession of a

weapon by a prisoner.        "This Court reviews the trial court's

denial of a motion to dismiss de novo."              State v. Smith, 186

N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007).            "'Upon defendant's

motion for dismissal, the question for the Court is whether

there is substantial evidence (1) of each essential element of

the offense charged, or of a lesser offense included therein,

and (2) of defendant's being the perpetrator of such offense.

If so, the motion is properly denied.'"             State v. Fritsch, 351

N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (quoting State v.

Barnes,   334   N.C.   67,   75,     430   S.E.2d     914,   918   (1993)).

"Substantial evidence is such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion."                State

v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980).

    Defendant was charged with possession of a weapon by a

prisoner in violation of N.C. Gen. Stat. § 14-258.2(a) (2013),

which provides:

          Any person while in the custody of the
          Section of Prisons of the Division of Adult
          Correction, or any person under the custody
          of any local confinement facility as defined
                                   -5-
             in G.S. 153A-217, who shall have in his
             possession     without     permission      or
             authorization a weapon capable of inflicting
             serious bodily injuries or death, or who
             shall fabricate or create such a weapon from
             any source, shall be guilty of a Class H
             felony; and any person who commits any
             assault   with  such   weapon   and   thereby
             inflicts bodily injury or by the use of said
             weapon effects an escape or rescue from
             imprisonment shall be punished as a Class F
             felon.

       Defendant argues that N.C. Gen. Stat. § 14-258.2(a) should

not be read as a strict liability offense.         Instead, defendant

argues that the statute should be read as requiring the State to

prove:

             1.   The person charged possessed a "weapon
                  capable of inflicting serious bodily
                  injuries or death," and;

             2.   The   person   charged  possessed   the
                  implement knowing that he was doing so
                  "without permission or authorization"
                  from the incarcerating authority or its
                  agents, and;

             3.   The person charged knew or should have
                  known that the implement in question
                  was "capable of inflicting serious
                  bodily injuries or death . . ."

(Quoting N.C. Gen. Stat. § 14-258.2(a).)           Defendant concedes

that   the   State   presented   sufficient   evidence   of   the   first

element, but argues that the State failed to present sufficient

evidence of his proposed second and third elements.
                                -6-
    "Whether a criminal intent is a necessary element of a

statutory offense is a matter of construction to be determined

from the language of the statute in view of its manifest purpose

and design."   State v. Hales, 256 N.C. 27, 30, 122 S.E.2d 768,

771 (1961).    It is well settled that "when the language of a

statute is clear and unambiguous there is no room for judicial

construction and the court must give the statute its plain and

definite meaning . . . ."    State v. Williams, 291 N.C. 442, 446,

230 S.E.2d 515, 517 (1976).     "Thus, in effectuating legislative

intent, it is the duty of the courts to give effect to the words

actually used in a statute and not to delete words used or to

insert words not used."     State v. Watterson, 198 N.C. App. 500,

505, 679 S.E.2d 897, 900 (2009).

    In Staples v. United States, 511 U.S. 600, 128 L. Ed. 2d

608, 114 S. Ct. 1793 (1994), the United States Supreme Court set

out a multi-factor test for deciding whether the legislature

intended, when enacting a statute, to create a strict liability

offense.   In an opinion adopting Staples, this Court summarized

the factors Staples required to be considered:

           (1) the background rules of the common law
           and its conventional mens rea requirement;
           (2) whether the crime can be characterized
           as a public welfare offense; (3) the extent
           to which a strict-liability reading of the
           statute would encompass innocent conduct;
           (4) the harshness of the penalty; (5) the
           seriousness of the harm to the public; (6)
                                      -7-
           the ease or difficulty of the defendant
           ascertaining the true facts; (7) relieving
           the   prosecution   of    time-consuming and
           difficult proof of fault; and (8) the number
           of prosecutions expected.

Watterson, 198 N.C. App. at 507, 679 S.E.2d at 901.

    In Watterson, the defendant was charged with possession of

a weapon of mass death and destruction in violation of N.C. Gen.

Stat. § 14-288.8(a) for possessing a shot gun that had a barrel

less than 18 inches in length.           This Court, after applying the

Staples factors, concluded that "the General Assembly did not

intend for the State to prove that a defendant knew of the

physical characteristics of the weapon that made it unlawful

under N.C. Gen. Stat. § 14–288.8."             Watterson, 198 N.C. App. at

512, 679 S.E.2d at 904.

    With    respect    to    the    Staples   factors,   we    note   that   the

General   Assembly    has    made   explicit    its   policy   that   "[l]ocal

confinement facilities should provide secure custody of persons

confined therein in order to protect the community and should be

operated so as to protect the health and welfare of prisoners

and provide for their humane treatment."                 N.C. Gen. Stat. §

153A-216(1) (2013).         Thus, just as the offense of possession of

a weapon of mass destruction is intended to protect the public

safety by "exclud[ing] completely the existence of weapons of

mass death and destruction from the public sphere," Watterson,
                                                   -8-
198 N.C. App. at 510, 679 S.E.2d at 903, possession of a weapon

by a prisoner is intended to protect the safety of prisoners and

DOC    staff         by       completely          ridding        weapons        from     prisons.

Interpreting N.C. Gen. Stat. § 14-258.2(a) as a strict liability

offense is consistent with this policy.

       Defendant          does      not,      however,       specifically         address       the

Staples       factors         or    Watterson.             Consequently,         he    makes       no

argument      that        the      offense     of    possession      of     a     weapon      by    a

prisoner      is     materially          distinguishable           from     the       offense      of

possession         of     a     weapon       of     mass    destruction          addressed         in

Watterson such that application of the Staples factors would

require that the State prove an element of knowledge or intent.

       While defendant does not specifically address the relevance

of the State's policy of reducing violence and protecting the

health, welfare, and safety of prisoners and DOC staff to the

question of the legislature's intent, he does argue, consistent

with    one     of      the        Staples     factors,       that    the       statute       could

encompass innocent behavior and, in addition, that reading into

the    statute       an    element       of       intent    is    necessary       in    order      to

promote       principles           of   fairness.            Defendant      points       to     the

following questions submitted to the trial court by the jury

during deliberations:

                   Number one . . . : What orientation is
              given prisoners upon arrival at detention?
                                           -9-
            What items . . .            may a prisoner have in
            their possession?

                 And then number two says: Please repeat
            judge's instructions as to what jury is to
            find. Is jury to consider intent?

Defendant       argues    that     these     questions      show   that        the   jury

recognized an inherent unfairness in the plain language of the

statute.

    Defendant's argument regarding "fairness" would apply with

respect    to    many    strict     liability         statutes.    And,    the       issue

before the Court is not whether we believe the statute raises

concerns    about       fairness,    but    rather       whether   the    legislature

intended to create a strict liability offense.                        It is not our

role -- or the role of the jury -- to "superimpose[e] provisions

or limitations not contained within the statute."                     Williams, 291

N.C. at 446, 230 S.E.2d at 517.                  When the plain meaning of the

statute falls within constitutional limits, "[t]he question of

the wisdom or propriety of statutory provisions is not a matter

for the courts, but solely for the legislative branch of the

state government."           Ferguson v. Riddle, 233 N.C. 54, 57, 62

S.E.2d 525, 528 (1950).             Because defendant has not specifically

addressed the relevance of the State's public policy regarding

safety     in    prisons     and     jails       to     determining      the     General

Assembly's      intent,     he    has   not      demonstrated      that    any       other

factors sufficiently override that factor so as to suggest that
                                    -10-
the legislature did not intend to create a strict liability

offense.

      The State presented substantial evidence of the only two

elements required under the plain language of the statute: that

defendant was in the custody of a local confinement facility and

that he possessed without authorization or permission a weapon

capable of inflicting serious bodily injuries or death.                  We,

therefore, hold that the trial court did not err in denying

defendant's motion to dismiss the charge of possession of a

weapon by a prisoner.

                                     II

      Defendant next argues that the trial court erred in failing

to adequately instruct the jury as to the nature of the weapon,

and   in   failing   to   define   the    term   "serious   bodily   injury."

Because defendant did not object to the instruction at trial, he

contends that the instructions constituted plain error.

            For error to constitute plain error, a
            defendant    must    demonstrate   that   a
            fundamental error occurred at trial.     To
            show that an error was fundamental, a
            defendant must establish prejudice -- that,
            after examination of the entire record, the
            error had a probable impact on the jury's
            finding that the defendant was guilty.
            Moreover, because plain error is to be
            applied   cautiously   and    only  in  the
            exceptional case, the error will often be
            one that seriously affect[s] the fairness,
            integrity or public reputation of judicial
            proceedings[.]
                               -11-


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

(internal citations and quotation marks omitted).

    The trial court used N.C.P.I., Crim. 280.43, UNAUTHORIZED

POSSESSION OR FABRICATION OF DANGEROUS WEAPON BY PRISONER and

charged the jury, consistent with the pattern instruction, as

follows:

                Now, the defendant has been charged
           with   possession,  without  permission   or
           authorization,   of  a  weapon  capable   of
           inflicting serious injuries or death while
           he was in the custody of a local confinement
           facility.

                For you to find the defendant guilty of
           this offense the State must prove two things
           beyond a reasonable doubt.

                First, that the defendant had in his
           possession,      without     permission     or
           authorization,     a   weapon    capable    of
           inflicting serious bodily injury or death.
           In    determining    whether   the    diabetic
           fingerprick instrument, also known as a
           lancet, is capable of inflicting bodily
           injury or death, you should consider the
           nature of the weapon and the manner in which
           it could be used.

                And second, at that time the defendant
           was under the custody of a local confinement
           facility.    The Henderson County Detention
           Facility is a local confinement facility.

                So if you find from the evidence beyond
           a reasonable doubt that on or about the
           alleged date while he was in the custody of
           a local confinement facility, the defendant
           had in his possession, without permission or
           authorization, a weapon which was capable of
                                        -12-
           inflicting serious bodily injury or death,
           it would be your duty to return a verdict of
           guilty.

                If you do not so find or have a
           reasonable doubt as to one or more of these
           things, it would be your duty to return a
           verdict of not guilty.

(Emphasis added.)

    Defendant points out that this jury instruction referred to

three   different    types     of    injuries     that     the   weapon    could    be

capable   of     inflicting:        "serious    injuries,"        "serious   bodily

injury," and "bodily injury."            Each of these phrases is a term

of art -- a "word or phrase having a specific, precise meaning

in a given specialty, apart from its general meaning . . . ."

Black's Law Dictionary, 1610 (9th ed. 2009).                      Defendant argues

that the use of three similar but different terms of art in the

instruction    created   confusion       for    the    jury      and,   because    the

statute   only     prohibited        possession       of   weapons      capable    of

inflicting "serious bodily injury," the trial court should have

defined that term for the jury.

    Neither N.C. Gen. Stat. § 14-258.2 nor the pattern jury

instruction defines "serious bodily injury."                      Our legislature

has, however, defined "serious bodily injury" for purposes of

assault inflicting serious bodily injury as

           bodily injury that creates a substantial
           risk of death, or that causes serious
           permanent disfigurement, coma, a permanent
                                        -13-
            or protracted condition that causes extreme
            pain, or permanent or protracted loss or
            impairment of the function of any bodily
            member   or  organ,   or   that results  in
            prolonged hospitalization.

N.C. Gen. Stat. § 14-32.4(a) (2013).

      At trial, defendant did not make any significant challenge

to   the   State's     contention       that   the     fingerprick     needle      was

capable     of     inflicting    serious       bodily    injury.        The     State

presented    evidence      regarding     the    harm    that    the   needle    could

cause, including the "[c]ommon . . . practice between inmates"

in prisons to weaponize the needle by rubbing it in feces and

urine in order to cause serious infection or transmit serious

communicable diseases.           On cross-examination, defendant did not

address     that    part   of    the    officer's       testimony,     but     rather

elicited only that defendant had made no attempt to weaponize

the needle and had not used the needle against any other person.

In addition, the only evidence presented by defendant was his

own testimony that he found the needle and used it to clean his

fingernails and that he did not make any attempt to alter or

change it.

      Because      defendant     does    not     dispute       that   the     State's

evidence was sufficient to prove the element that the needle was

capable     of     inflicting     serious      bodily      injury     and     because

defendant    presented      no   contrary      evidence,       defendant     has   not
                                       -14-
shown that the jury instructions had a probable impact on the

verdict.    Indeed, on appeal, defendant does not argue that there

was   a   probable   impact    on    the     verdict,    but    rather     contends

generally that the inadequacies in the instructions amounted to

fundamental error warranting a new trial.

      However, in the seminal "plain error" case, our Supreme

Court explained that "[t]he adoption of the 'plain error' rule

does not mean that every failure to give a proper instruction

mandates    reversal    regardless      of    the    defendant's        failure   to

object at trial."       State v. Odom, 307 N.C. 655, 660, 300 S.E.2d

375, 378 (1983).       Instead, the Court held, "even when the 'plain

error' rule is applied, '[i]t is the rare case in which an

improper    instruction       will   justify        reversal     of    a   criminal

conviction when no objection has been made in the trial court.'

. . .      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."                     Id. at 660-61,

300 S.E.2d at 378-79 (quoting Henderson v. Kibbe, 431 U.S. 145,

154, 52 L.     Ed.   2d 203, 212,          97 S.     Ct. 1730, 1736        (1977)).

Because    defendant    has   failed    to    show    that     any    instructional

errors had a probable effect on the jury, he has failed to

establish plain error.
                                        -15-
      Although we hold that the jury instruction did not result

in plain error in this case, we acknowledge that the pattern

jury instruction's use of "serious injuries," "serious bodily

injury," and "bodily injury," is troublesome given the distinct

definitions      given    to    those    phrases      in   different    contexts.

Because, however, defendant failed to object at trial, we need

not   address    whether      the    pattern   instruction    would    constitute

reversible      error    if    the    issue    were   properly   preserved   for

review.


      No error.

      Judges ROBERT C. HUNTER and McCULLOUGH concur.

      Report per Rule 30(e).
