                                NO. COA13-1235

                     NORTH CAROLINA COURT OF APPEALS

                              Filed: 17 June 2014


STATE OF NORTH CAROLINA


    v.                                    Rutherford County
                                          No. 11 CRS 52801
                                              12 CRS 1594

HOWARD JUNIOR EDGERTON



    Appeal by defendant from judgment entered 21 March 2013 by

Judge   Gary   M.   Gavenus    in   Rutherford   County   Superior    Court.

Heard in the Court of Appeals on 20 March 2014.


    Attorney General Roy Cooper, by Assistant Attorney General
    Teresa M. Postell, for the State.

    Michael E. Casterline, for defendant-appellant.

    HUNTER, JR., Robert N., Judge.


    Howard     Junior   Edgerton     (“Defendant”)   appeals   from    a   21

March 2013 judgment sentencing him as a level VI offender for

violating a domestic violence protective order (“DVPO”) with a

deadly weapon.      Defendant argues that the trial court erred by

failing to instruct the jury on the lesser-included misdemeanor

offense of violation of a DVPO.        We agree and order a new trial.
                                            -2-
                         I. Facts & Procedural History

      Defendant was indicted on 9 July 2012 for violating a DVPO

with a deadly weapon in 11 CRS 052801, and with assault with a

deadly    weapon       with      intent    to     kill     (“AWDWIK”),        assault    by

strangulation, and second-degree kidnapping in 11 CRS 052829.

Defendant was indicted with AWDWIK and second-degree kidnapping

in 11 CRS 052830 and 11 CRS 052831.                      On 9 July 2012, Defendant

was     charged       with    habitual     felon      status       in   12    CRS     1594.

Defendant stood trial on 18–21 March 2013 in Rutherford County

Superior Court.          The record and trial transcript tended to show

the following facts.

      Brandon Hamilton (“Mr. Hamilton”) testified first for the

State.      Mr.       Hamilton    said    Jacquie        King   (“Ms.   King”),        Amber

Harkless (“Ms. Harkless”), and Dianna Moore (“Ms. Moore”) drove

to pick up Defendant around 9:30 or 10:00 p.m. on 27 August

2011.     The group was traveling to the “Boom Boom Room,” which

Mr. Hamilton described as a “bootlegger” in Lake Lure, where the

group    “had     a   few    drinks.”       Mr.    Hamilton      said    he    knew     that

Defendant and Ms. King were previously in a relationship before

the evening’s events took place.

      Mr. Hamilton described Defendant as “cool” and “laid back”

initially,      but     then     said     Defendant       became    angry      after    Mr.
                                         -3-
Hamilton “complimented [Ms. King] on her weight loss.”                            After

Mr. Hamilton made these remarks, Mr. Hamilton said the situation

escalated and that Defendant threatened him.                      After Defendant

levied    these      threats,   the   group     got    into     the    car   to   take

Defendant home, whereupon Defendant started hitting Ms. King and

brandished a pocket knife.            After the group stopped the car,

Defendant left the vehicle, re-entered, and then began “sawing

[Ms. King’s] neck with a dull knife.”                 Mr. Hamilton said he knew

it was a dull knife because “if it was a sharp knife, I am

pretty sure – he was sawing at it – she would be dead right

now.”

       Mr. Hamilton told Ms. Harkless and Ms. King to leave the

car,    and    Defendant     continued    to    threaten        them    both.      Ms.

Harkless      then   drove   Defendant     to   his    home     and    later    called

police, who met Defendant at his home.                 Mr. Hamilton spoke with

police when they arrived but did not give a statement at that

time.     Mr. Hamilton said Ms. King had “road rash and scars on

her neck.       She had a few knots on her.”            Mr. Hamilton said that

Defendant’s sawing of Ms. King’s neck produced only scratches

because       the    knife   was   “completely         dull.”          Mr.   Hamilton

eventually gave a statement to police.
                                          -4-
       Ms. King testified at trial, saying she was in an abusive

relationship with Defendant.                 Ms. King said she was afraid of

Defendant and that Defendant

               beat me, punch[ed] me in my face. One time
               he kicked me down probably a 20-foot
               embankment. It was so many things.    It was
               abuse every day.    Hit me.    He would get
               drunk and punch me in my face, kick me. He
               tried to burn my trailer one time.        He
               pulled my mattress into the middle of my
               trailer. I had people staying with me that
               had a baby, and he said get your baby out of
               the house because I am about to burn this
               down.

Ms.    King    said    she     stayed   in     a   relationship    with   Defendant

because she was “scared of him”                 Ms. King later obtained a one-

week temporary restraining order in April 2011 after she said

Defendant “pulled a shotgun on” her and her friend.                          Ms. King

later received a year-long DVPO requiring Defendant to avoid all

contact with Ms. King.

       After     the    DVPO    was     granted,     Ms.    King   said   Defendant

continued to seek contact with her.                  Eventually Ms. King “went

back   to     him”    because    she    said    Defendant    “acted   like    he   had

changed – like he wasn’t going to be abusive anymore.”                             Ms.

King said Defendant was “[c]alm, respectful, not aggressive at

all” when he visited her home the two weeks prior to the evening

at issue.
                                      -5-
      Ms. King said the trip to the Boom Boom Room was the first

time that she went out to a club with Defendant since obtaining

the DVPO.    Ms. King also said Defendant was calm at first during

the   group’s   time   at    the   Boom    Boom   Room,   but   that   Defendant

became   aggressive    and    began   to    accuse   her   of   having    sexual

relations with other members of the group.                 Ms. King said she

began to get nervous and wanted to leave Defendant at the Boom

Boom Room, but that Defendant was insistent that he be brought

home.    After the group allowed him to travel with them, Ms. King

said Defendant became “wild” and that he began punching Ms. King

in the face.

      Ms. Harkless stopped the vehicle when she realized that

Defendant was hitting Ms. King.              Mr. Hamilton, Ms. Moore, and

Defendant exited the vehicle and              Mr. Hamilton and Ms. Moore

confronted Defendant.         Ms. King said that Defendant began to

chase Ms. Moore and Mr. Hamilton with a knife and that Defendant

was trying to inflict injuries with the knife.                  Ms. King said

Defendant then reentered the vehicle, ordered Ms. Harkless to

drive, and began “cutting [Ms. King’s] throat.”                  Ms. King said

Defendant continued to choke her and told her she would die that

evening.    Ms. King also said Defendant wasn’t “slicing [her]

throat” but that Defendant was “digging in with the knife and
                                        -6-
cutting knicks on my neck, cutting parts of my neck.”                      Ms. King

said the cuts on her neck bled, but she did not know the amount

of blood produced by the cuts.

    Ms. King said she was able to dislodge a car door while the

vehicle    was   still    traveling     around    40    to   50   miles    per   hour

toward Defendant’s father’s home, where Defendant lived.                     As the

car approached the home at around 5 to 10 miles per hour, Ms.

King said she was pushed by Defendant from the vehicle.                       Twenty

minutes    later,   Ms.    King    said    a     number      of   police    officers

returned with Defendant in custody.               Ms. King said Defendant was

“beating his head against the police window and screaming [her]

name” while officers took photos of her injuries.

    Ms. King also described her interview with Detective Ricky

McKinney    (“Detective      McKinney”)          of    the    Rutherford      County

Sheriff’s    Department.          Ms.     King    initially       told     Detective

McKinney that she met Defendant at the Boom Boom Room rather

than that the group had picked Defendant up beforehand.                           Ms.

King said her statement was not true and that she told Detective

McKinney this because she did not want to disappoint her family.

Ms. King also gave a statement to Detective McKinney, which also

contained an incorrect statement about the composition of the

group who traveled to the Boom Boom Room.
                                           -7-
       Corporal Stephen Ellis (“Corporal Ellis”) testified next at

trial.        Corporal       Ellis    responded    to    a     911    hang-up     call    and

information that Defendant “was assaulting people” in a vehicle.

Corporal Ellis traveled toward Defendant’s residence and located

Ms.    King    laying    on     the    ground     alongside          Grassy   Knob    Road.

Corporal Ellis spoke with Ms. King about the evening’s events

and said she was afraid and “visibly upset.”                              Ms. King led

Corporal Ellis to Defendant’s residence because Corporal Ellis

had information that Defendant was possibly holding Ms. Harkless

against      her     will.      Corporal       Ellis    arrested       Defendant,        whom

Corporal Ellis said became belligerent after being arrested.

       Corporal Ellis took Defendant back to where he originally

found Ms. King and began to complete an incident report, to

photograph Ms. King’s injuries, and to take statements from Ms.

King   and     Ms.    Harkless.         Corporal       Ellis    also     said    Defendant

became irate in the back of his patrol vehicle and hit his head

against the car’s windows.                 Corporal Ellis said Ms. King had

“lots of red marks on her chest and around her neck area, . . .

visible nicks or cuts to the top of her throat” and several

bruises.        Corporal       Ellis    also    observed       blood     on     Ms.   King’s

shirt.
                                    -8-
     Officer Tyler Greene (“Officer Greene”) was with Corporal

Ellis on the evening at issue in this case.               Officer Greene

recounted similar statements as Corporal Ellis.           Officer Greene

said he observed cuts on Ms. King’s neck and chin, but that they

were difficult to see in the photograph presented at trial.

     Detective McKinney testified at trial.          Detective McKinney

interviewed Ms. King, Ms. Harkless, and Ms. Moore two days after

the events in question at the sheriff’s office on 29 August

2011.   Mr. Hamilton did not provide a statement at that time.

Forensics   Investigator    Bruce    Green    testified   that   Ms.   King

brought a shirt to the sheriff’s office on 31 August 2011, which

Mr. Green identified as a shirt with blood staining.

     The State rested its case and Defendant made a motion to

dismiss.     The   trial   court    granted   Defendant’s    motion    with

respect to all charges involving Ms. Harkless (11 CRS 52830) and

Ms. Moore (11 CRS 52831).          The trial court also dismissed the

kidnapping charge involving Ms. King in 11 CRS 52829, but denied

the motion as relating to the remaining charges.            Defendant did

not present any evidence.          The jury found Defendant guilty of

violating the DVPO with a deadly weapon in 11 CRS 52801, but not

guilty of the remaining offenses.             Defendant then entered a

guilty plea to Habitual Felon status and was sentenced in the
                                        -9-
aggravated range for a Class C felony as a prior record level

VI.     Defendant was sentenced to an active term of 168 to 211

months.    Defendant filed written notice of appeal on 16 April

2013.

                II. Jurisdiction & Standard of Review

      Defendant appeals pursuant to N.C. Gen. Stat. §§ 7A-27(b),

15A-1444(a) (2013).        However, Defendant did not timely file his

notice of appeal in violation of N.C. R. App. P. 4.                 Failure to

comply with Rule 4 constitutes a jurisdictional default, which

“precludes the appellate court from acting in any manner other

than to dismiss the appeal.”            Dogwood Dev. & Mgmt. Co. v. White

Oak Transp. Co., 362 N.C. 191, 197, 657 S.E.2d 361, 365 (2008).

Accordingly,     we   dismiss      Defendant’s      appeal,      but,   in     our

discretion, we allow Defendant’s petition for writ of certiorari

to review the merits of his arguments pursuant to N.C. R. App.

P. 21.

      On appeal, Defendant argues that the trial court erred in

refusing to instruct the jury on a lesser-included misdemeanor

offense   of   violating    a    DVPO   when   it   instructed    the   jury   on

violating a DVPO with a deadly weapon.              Defendant did not object

to the jury instruction at issue here, meaning that it was not

preserved for appeal.           However, “[i]n criminal cases, an issue
                                       -10-
that was not preserved by objection noted at trial and that is

not deemed preserved by rule or law without any such action

nevertheless may be made the basis of an issue presented on

appeal when the judicial action questioned is specifically and

distinctly contended to amount to plain error.”                  N.C. R. App. P.

10(a)(4); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d

867, 875 (2007).

        “To establish plain error, defendant must show that the

erroneous    jury    instruction       was   a   fundamental      error—that        the

error had a probable impact on the jury verdict.”                           State v.

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

the plain error rule, defendant must convince this Court not

only that there was error, but that absent the error, the jury

probably    would    have    reached    a    different     result.”         State    v.

Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).

                                   III. Analysis

       We hold that because the trial court concluded that the

knife used in this case was not a deadly weapon per se, the

trial   court     should    have    instructed      the   jury   on   the    lesser-

included misdemeanor offense of violating a DVPO.                     We also hold

that    failing     to   instruct    the     jury    on   the    lesser     included
                                          -11-
misdemeanor offense was plain error because it likely affected

the outcome in this case.

       In     State     v.     Weaver,     our     Supreme     Court     adopted       a

definitional test for determining whether one crime is a lesser

included      offense    of    another    crime.      306    N.C.     629,   635,    295

S.E.2d 375, 378–79 (1982), disapproved of on other grounds by

State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993).                        That test

requires that

               all of the essential elements of the lesser
               crime   must  also   be  essential  elements
               included in the greater crime.       If the
               lesser crime has an essential element which
               is not completely covered by the greater
               crime, it is not a lesser included offense.
               The determination is made on a definitional,
               not a factual basis.

Id. at 535, 295 S.E.2d at 379.

       Under    the     definitional      test,     the   misdemeanor        crime    of

violating a DVPO1 is a lesser included offense of the felony

crime of violating a DVPO with a deadly weapon.2                         Both crimes

have identical elements of (i) knowingly (ii) violating a (iii)

valid       DVPO,     except    that     the     felony     offense     includes      an

additional element that the perpetrator be in “possession of a

deadly weapon on or about his or her person or within close



1
    N.C. Gen. Stat. § 50B-4.1(a) (2013).
2
    N.C. Gen. Stat. § 50B-4.1(g) (2013).
                               -12-
proximity to his or her person.”      Compare N.C. Gen. Stat. § 50B-

4.1(a) with N.C. Gen. Stat. § 50B-4.1(g).        The felony offense

also explicitly references the misdemeanor offense.       N.C. Gen.

Stat. § 50B-4.1(g) (“Unless covered under some other provision

of law providing greater punishment, any person who, while in

possession of a deadly weapon on or about his or her person or

within close proximity to his or her person, knowingly violates

a valid protective order as provided in subsection (a) of this

section by failing to stay away from a place, or a person, as so

directed under the terms of the order, shall be guilty of a

Class H felony.”).

    As the misdemeanor violation of a DVPO is a lesser included

offense of the felony violation of a DVPO, Defendant was also

entitled to a jury instruction on that charge “‘if the evidence

would permit a jury rationally to find him guilty of the lesser

offense and acquit him of the greater.’”      State v. Tillery, 186

N.C. App. 447, 450, 651 S.E.2d 291, 294 (2007) (quoting Keeble

v. United States, 412 U.S. 205, 208 (1973)).        The dispositive

factor is the presence of evidence to support a conviction of

the lesser-included offense.    Id.     As such, we must determine

whether the jury could have rationally found that the knife used

by the Defendant did not constitute a deadly weapon and also
                                    -13-
whether there is evidence to support a conviction of misdemeanor

violation of a DVPO.

    In North Carolina, a “deadly weapon is one which, under the

circumstances of its use, is likely to cause death or great

bodily harm.”      State v. Walker, 204 N.C. App. 431, 444, 694

S.E.2d 484, 493 (2010).       Generally, a weapon is determined to be

“deadly” depending on its use and its characteristics. However,

North   Carolina   courts    have   found   some   weapons      to    constitute

deadly weapons per se.       “Some weapons are per se deadly, e.g. a

rifle or pistol: others, owing to the great and furious violence

and manner of use, become deadly.”            State v. Cauley, 244 N.C.

701, 707, 94 S.E.2d 915, 920 (1956).           This Court has found that

knives are not always dangerous weapons per se and that the

circumstances of each case are determinative.                   See State v.

Smallwood, 78 N.C. App. 365, 368, 337 S.E.2d 143, 144–45 (1985).

    In this case, the trial court concluded that the knife used

by the Defendant was not a deadly weapon per se, as evidenced by

the trial court’s decision not to instruct the jury that the

weapon used by the Defendant was deadly as a matter of law.                   The

trial   court   instructed    the   jury    that   in   order    to    find   the

Defendant guilty of violating a DVPO while in possession of a

deadly weapon, the jury must “consider the nature of the knife,
                              -14-
the manner in which it was used, and the size and strength of

the defendant as compared to the victim.”   The record also shows

conflicting evidence as to whether or not the knife used by the

Defendant on the victim was capable of producing death or great

bodily harm.   For example, Mr. Hamilton stated that the knife

was so dull that even though Defendant was “sawing” Ms. King’s

neck with the pocket knife, Ms. King was left with only “knicks”

on her neck.   However, the jury may also consider the nature of

the knife’s use, the size of the knife, and the strength of the

party when determining whether the knife is a deadly weapon.

State v. Palmer, 293 N.C. 633, 643, 239 S.E.2d 406, 413 (1977)

(“If 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.”). Therefore, the trial court correctly determined

that the knife used by the Defendant in this case was not a

deadly weapon per se, and properly left this determination to

the jury.

    Having instructed the jury to determine whether the knife

used in this case constituted a deadly weapon, the trial court
                                             -15-
should      have   next    instructed          the    jury    on   the    lesser-included

misdemeanor offense.             This Court was presented with a similar

issue in Tillery.

      In Tillery, the Defendant used a 2x4 board in the course of

an assault.        186 N.C. App. at 447, 651 S.E.2d at 292.                      The trial

court    instructed       the    jury     on    the    offense     of    assault     with   a

deadly weapon inflicting serious injury, but refused to instruct

on the lesser-included offense of misdemeanor assault inflicting

serious injury.         Id. at 448, 651 S.E.2d at 293.                    On appeal, the

Defendant      argued     that    the     trial       court    erred     in   refusing      to

instruct on the lesser-included misdemeanor.                             Id. at 449, 651

S.E.2d at 293.            This Court agreed, holding that because the

trial court did not find the 2x4 board to be a deadly weapon per

se,   the    trial   judge       should      have     instructed       the    jury   on   the

lesser-included           offense       of     misdemeanor         assault      inflicting

serious injury.           Id. at 451, 651 S.E.2d at 294; see also State

v. Lowe, 150 N.C. App. 682, 686, 564 S.E.2d 313, 316 (2002)

(finding plain error for the trial court’s failure to instruct

the jury on the lesser-included misdemeanor assault charge, when

“[t]here is sufficient evidence from which the jury could find

that the [weapons used] were not used as deadly weapons”).
                                               -16-
       Here,    as    in    Tillery,         the      evidence       presented       at    trial

conflicted      over       whether       the    weapon        used    by      the    Defendant

constituted a deadly weapon.                    In both cases, the only element

that    distinguished        the       felony        offense     from      the      misdemeanor

offense was the Defendant’s use of a deadly weapon in the course

of the crime.         We hold that, in this case, based on conflicting

evidence of the knife’s deadly qualities, a jury could have

rationally     found       the    Defendant          guilty    of    the    lesser-included

offense of misdemeanor violation of a DVPO.

       We must next consider whether the trial court’s failure to

instruct    the      jury   on     the    lesser-included            misdemeanor          offense

rose to the level of plain error.                     “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.”        State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375,

378–79 (1983) (quotation marks and citation omitted).

       Here, the State presented a strong case for the lesser-

included violation of the DVPO.                    Defendant signed the DVPO.                  The

timeframe      for    the    DVPO      was      in    effect     at     the      time     of   the

incident.       The DVPO was filed on 18 May 2011, was effective

until 18 May 2012, and the incidents at issue occurred on 27
                                              -17-
August 2011, clearly within the time period of the DVPO.                                   There

was also extensive testimony that Defendant contacted and sought

contact         with    Ms.   King,      which    concerns        whether     he    knowingly

violated the DVPO.

       At trial, Defendant was found guilty of violating the DVPO

with       a    deadly    weapon;       all   other       charges    were     dismissed       or

Defendant was found not guilty by the jury.                          The jury returned a

not guilty verdict for two charges that included an element of a

deadly weapon, including assault with a deadly weapon under N.C.

Gen. Stat. § 14-32(b) (2013).                     It is unclear whether the jury

considered the knife a “deadly weapon” as to that charge, or

whether         the    jury      did    not   consider       the     injuries       Ms.     King

sustained to be “serious” under § 14-32.                            However, the record

shows there was extensive testimony about bruising, cuts, and

other          injuries     to    Ms.    King,       as    well     as     testimony        that

Defendant’s knife was very dull.                       Whether the jury did or did

not believe the knife was a deadly weapon, however, there was

not    a       sentencing     option     to     find   Defendant         guilty    solely     of

violating the DVPO.               With the elements of the misdemeanor DVPO

violation         likely      met,      the   jury’s       only     method    to        sentence

Defendant         for     violating       the     DVPO     was      through       the     felony

violation of a DVPO with a deadly weapon.                                The lack of the
                                      -18-
misdemeanor sentencing option, in light of the jury’s finding

that Defendant was not guilty of assault with a deadly weapon or

AWDWIK,   likely    impacted    the    jury’s   finding   of   guilt   on   the

felony    charge.     Accordingly,       the    trial   court’s   failure    to

instruct on the misdemeanor of violating the DVPO rose to the

level of plain error.         As such, we remand this matter for a new

trial.      In   light   of    our    decision,   we    decline   to   address

Defendant’s remaining assignments of error.

                               IV. Conclusion

    For the reasons stated above, we order a

    NEW TRIAL.

    Judge STROUD concurs.

    Judge DILLON dissents in a separate opinion.
                                    NO. COA13-1235

                         NORTH CAROLINA COURT OF APPEALS

                                  Filed: 17 June 2014


STATE OF NORTH CAROLINA

      v.                                        Rutherford County
                                                No. 11 CRS 52801
                                                    12 CRS 1594
HOWARD JUNIOR EDGERTON



      DILLON, Judge, dissenting.


      I do not agree with the majority that any error by the

trial     court   in    failing    to    instruct    the    jury      on    the   lesser-

included misdemeanor domestic violence protective order (“DVPO”)

violation rose to the level of plain error; and, therefore, I

respectfully dissent.

      A    person       who   knowingly       violates      a        DVPO    commits    a

misdemeanor,        see N.C. Gen. Stat. § 50B-4.1(a) (2013); unless

the     person    who    violates       the   DVPO   does       so    “while      in   the

possession of a deadly weapon on or about his or her person or

within close proximity to his or her person[,]” in which case

that person is guilty of a felony.                    N.C. Gen. Stat. § 50B-

4.1(g).     As the majority correctly points out, the question is

whether any error by the trial court in failing to instruct the

jury on the lesser misdemeanor DVPO in the present case rose to
                                      -2-
the level of plain error; that is, whether the jury probably

would    have   convicted   Defendant       of   misdemeanor       DVPO,    thereby

concluding that the State had failed to prove that the knife was

a “deadly weapon.”        State v. Lawrence, 365 N.C. 506, 518, 723

S.E.2d 326, 334 (2012).

    The pocketknife, which Defendant brandished in the victim’s

face and about her neck while choking her and threatening to

kill her, had a blade which was described at trial as a “little

duller than average.”        I certainly believe it is possible that

the jury could have determined that the knife was not a deadly

weapon, and would have, therefore, convicted Defendant of only a

misdemeanor     DVPO    violation    had    it    been     instructed      on   this

lesser-included     offense.        However,     I   also    believe    that     the

evidence was sufficient to sustain the finding that the knife

was, indeed, a deadly weapon. Accordingly, I cannot say that the

jury “probably” would have convicted Defendant of a misdemeanor

DVPO if given that option.

    The    majority     argues   that      the   failure     to    instruct     on   a

misdemeanor DVPO violation had a “probable impact” because the

jury’s   verdict   to    convict    on   the     felony     DVPO   violation     was

inconsistent with their decision to acquit Defendant of assault

with a deadly weapon and AWDWIK, crimes which require a finding
                                         -3-
that     Defendant     possessed    a     deadly     weapon.         In   explaining

inconsistent verdicts, our Supreme Court has stated as follows:

             [Inconsistent    verdicts]     should    not
             necessarily be interpreted as a windfall to
             the Government at the defendant’s expense.
             It is equally possible that the jury,
             convinced of guilt, probably reached its
             conclusion   on  [one  offense],   and  then
             through mistake, compromise, or lenity,
             arrived at an inconsistent conclusion on the
             [other offense].

             . . . .

             Inconsistent verdicts therefore present a
             situation where “error,” in the sense that
             the jury has not followed the court’s
             instructions, most certainly has occurred,
             but it is unclear whose ox has been gored.
             Given the uncertainty, and the fact that the
             Government is precluded from challenging the
             acquittal, it is hardly satisfactory to
             allow the defendant to receive a new trial
             on the conviction as a matter of course.

State v. Mumford, 364 N.C. 394, 399-400, 699 S.E.2d 911, 915

(2010) (quoting United States v. Powell, 469 U.S. 57, 83 L. Ed.

2d   461    (1984)).      Therefore,       following     our     Supreme     Court’s

rationale in Mumford, I cannot say that, in the present case, it

is probable the jury would have acquitted Defendant of a felony

DVPO violation based on its acquittal of the assault charges.

It     is   “equally    possible”       that   the    jury     was    convinced   of

Defendant’s guilt of the Chapter 50B charge, but that it reached

an inconsistent verdict on the Chapter 14 assault charges                          –
                               -4-
assuming that the verdicts were, indeed, inconsistent3 – through

“mistake, compromise or lenity[.]”   Id.




3
     It is possible that the jury’s verdicts were            not
inconsistent.   Specifically, whether a weapon is deadly in the
context of the Chapter 14 assault crimes for which Defendant was
acquitted might depend on the “circumstances of [the weapon’s]
use,” State v. Lowe, 150 N.C. App. 682, 686, 564 S.E.2d 313, 316
(2002), whereas the Chapter 50B felony for which Defendant was
convicted does not require that the defendant “use” the weapon
at all, but only that he possessed it when he violated the DVPO.
Accordingly, the jury may have determined that the knife was a
deadly weapon, but that he did not use it in a manner which was
likely to cause death.
