An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-967
                         NORTH CAROLINA COURT OF APPEALS

                             Filed: 18 February 2014


STATE OF NORTH CAROLINA

      v.                                      Alamance County
                                              Nos. 12 CRS 53844
DERRICK LAMONT LEATH                               13 CRS 610



      Appeal by Defendant from judgment entered 11 April 2013 by

Judge James E. Hardin, Jr., in Alamance County Superior Court.

Heard in the Court of Appeals 27 January 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Robert K. Smith, for the State.

      Todd A. Smith for Defendant.


      DILLON, Judge.


      Derrick Lamont Leath (“Defendant”) appeals from a judgment

entered upon his conviction for assault with a deadly weapon

inflicting serious injury (“AWDWISI”) and his guilty plea to

habitual felon status.          Because we find substantial evidence of

Defendant’s use of a deadly weapon to assault his victim and

further     find    no    constitutionally       deficient      performance       by
                                          -2-
defense counsel, we hold that Defendant received a fair trial,

free from prejudicial error.

      The State’s evidence tended to show that, on the night of

24 June 2012, Abjul Shields and Quixote Clark were working as

members of the security team at Club 778 on Graham-Hopedale Road

in Burlington, North Carolina.              Shortly after midnight, Shields

walked to the rear of the club and observed Defendant cursing

and threatening Clark.              When Defendant ignored his request to

leave,      Shields    moved    between     Defendant     and   Clark       and     told

Defendant, “[T]his is not what you want to do.”                     Defendant threw

a   punch    at   Shields,     striking    him    on   the   side    of    the     face.

Despite landing with “[n]ot too much” force, the blow opened a

five-inch     laceration       on   Shield’s     cheek   requiring        twenty-nine

sutures to close.         As Defendant ran, Shields entered a restroom

to examine his face, which “looked like a fish.”                          Shields was

transported       by   ambulance     to   the    emergency   room,     where       staff

treated the cut to his face and smaller laceration on his left

wrist.

      Within      minutes      of   the   foregoing      encounter,        Clark     saw

Defendant in front of the club “[t]rying to leave.”                          When he

attempted to subdue Defendant, Clark observed a razor blade in

Defendant’s right hand “between his thumb and his forefinger.”
                                          -3-
Defendant swung at Clark twice with the blade before leaving

with an associate in a burgundy truck.

      The jury found Defendant guilty of AWDWISI upon Shields but

not   guilty   of    assault      with    a   deadly     weapon   upon      Clark,   who

accused Defendant of striking him with a beer bottle prior to

the assault on Shields.           After Defendant pled guilty to being an

habitual    felon,    the    trial       court   sentenced     him     to   an   active

prison term of 90 to 120 months.                        Defendant gave notice of

appeal in open court.

      Defendant      first   claims       that     the    trial   court      erred    in

denying his motion to dismiss the AWDWISI charge based on the

lack of evidence that he employed a deadly weapon in assaulting

Shields.    We do not agree.

      The   trial    court’s       denial     of    a    motion   to     dismiss     for

insufficient evidence is reviewed de novo.                    State v. Lowery, __

N.C. App. __, __, 743 S.E.2d 696, 698-99, disc. review denied,

__ N.C. __, 749 S.E.2d 858 (2013).                   In conducting our review,

“this Court determines whether the State presented substantial

evidence in support of each element of the charged offense.

Substantial    evidence      is    relevant        evidence   that     a    reasonable

person might accept as adequate, or would consider necessary to

support a particular conclusion.”                  State v. Abshire, 363 N.C.
                                           -4-
322, 327-28, 677 S.E.2d 444, 449 (2009) (citations and quotation

marks omitted).

       Defendant does not challenge the evidence that he assaulted

or inflicted a serious injury upon Shields.                    Accordingly, we

need   only      determine     whether     the   State   adduced     “substantial

evidence – whether direct, circumstantial, or both – to support

a finding” that Defendant committed the assault with a deadly

weapon.     Id. at 328, 677 S.E.2d at 449 (quotation omitted); see

also State v. Jones, 353 N.C. 159, 164, 538 S.E.2d 917, 922

(2000) (listing elements of AWDWISI).                  “An instrument which is

likely     to     produce    death    or     great   bodily   harm     under   the

circumstances       of   its    use   is    properly     denominated    a   deadly

weapon.”        State v. Joyner, 295 N.C. 55, 64, 243 S.E.2d 367, 373

(1978).

       While it is true that no witness saw Defendant use a weapon

to cut Shields, Clark testified that he saw a razor blade in

Defendant’s right hand moments after Defendant opened a five-

inch laceration on Shields’ face by means of a single punch

delivered with little force.               The treating physician described

the wound as a “clean” cut, “almost surgical” in nature, and

“obviously” produced by “a very sharp blade, a very straight
                                       -5-
blade, a knife, a razor blade, a box cutter.”1                    We believe a

reasonable juror could find this circumstantial evidence more

than sufficient to establish Defendant’s use of a razor blade in

a manner rendering it a deadly weapon.             See State v. Gilliland,

66 N.C. App. 372, 373, 311 S.E.2d 40, 41 (1984); see also State

v. Torain, 316 N.C. 111, 121, 340 S.E.2d 465, 471, cert. denied,

479 U.S. 836, 93 L. Ed. 2d 77 (1986).

      Defendant next asserts that his trial attorney violated his

constitutional       right   to   effective     assistance   of    counsel       by

allowing     Burlington      Police    Officer     Neal   Doss     to   testify

regarding    prior    out-of-court     statements    made    by   Shields    and

Clark on the night of the assault which were inconsistent with

their sworn testimony at trial.              Noting Shields’ testimony that

he never saw Defendant with a weapon, Defendant faults counsel

for allowing Officer Doss to recount Shields’ statement that he

had   been   “cut”    by   Defendant   while    attempting   to    break    up    a

“fight” between Defendant and another party.              Similarly, Officer

Doss testified that Shields and Clark both claimed to have seen

a female hand Defendant a razor blade before he struck Shields.

Given “the lack of evidence that [he] had a razor blade on that

evening,” Defendant faults his counsel for (1) failing to object

1
 Defendant conceded at trial that Shields’ wounds would support a
finding of “serious injury.”
                                             -6-
when Officer Doss testified about these statements on direct

examination, and (2) calling additional attention to these prior

statements in cross-examining Officer Doss.

       In reviewing claims of ineffective assistance of counsel,

we     apply    the       two-part    test      established     in     Strickland   v.

Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984), and adopted

for state constitutional purposes in State v. Braswell, 312 N.C.

553, 562-63, 324 S.E.2d 241, 248 (1985).                      Defendant must show

that    (1)    his    counsel’s      performance      fell    “below     an   objective

standard of reasonableness[,]” and (2) “there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” State v.

Waring, 364 N.C. 443, 502, 701 S.E.2d 615, 652 (2010) (quoting

Strickland, 466 U.S. at 688, 694, 80 L. Ed. 2d at 693, 698),

cert. denied, __ U.S. __, 181 L. Ed. 2d 53 (2011) (quotation

marks omitted).

       Typically, claims of ineffective assistance of counsel are

more appropriately addressed in a collateral proceeding, which

allow for the development of additional evidence outside the

trial record.         See State v. Lawson, 159 N.C. App. 534, 545, 583

S.E.2d 354, 361 (2003).              However, such “claims brought on direct

review    will       be   decided    on   the      merits   when   the   cold   record
                                             -7-
reveals that no further investigation is required[.]”                           State v.

Phillips,      365     N.C.    103,    144,        711   S.E.2d     122,      151    (2011)

(quotation omitted), cert. denied, __ U.S. __, 182 L. Ed. 2d 176

(2012).      Moreover, under Strickland and its progeny, we “need

not determine whether counsel made errors if the record does not

show a reasonable probability that a different verdict would

have    been     reached       in    the     absence      of     counsel’s      deficient

performance.”         State v. Banks, 163 N.C. App. 31, 36, 591 S.E.2d

917, 921, disc. review denied, 358 N.C. 377, 597 S.E.2d 767

(2004) (citing Braswell, 312 N.C. at 563, 324 S.E.2d at 248-49).

       The     record    before       this     Court     shows      that,      throughout

Defendant’s       trial,       his    counsel        pursued       the     strategy      of

discrediting         Shields    and    Clark       in    the     eyes    of    the    jury.

Highlighting the multiple inconsistencies between the in-court

and out-of-court statements of the complainants was an obvious

tactic in furtherance of this strategy.                    See generally State v.

Bishop, 346 N.C. 365, 387, 488 S.E.2d 769, 780 (1997) (stating

that “[p]rior statements of a witness which are inconsistent

with his present testimony are not admissible as substantive

evidence because of their hearsay nature[;]                             [e]ven so, such

prior inconsistent statements are admissible for the purpose of

impeachment”)        (quotation       omitted).          Prior    to     Officer     Doss’s
                                               -8-
testimony,   counsel         had    vigorously         cross-examined           Shields   and

Clark about the discrepancies between their testimony and their

statements to investigators.                   Counsel elicited an admission from

Shields that he told the prosecutor that he knew Defendant “in

the   community”       and    “had       seen        him   at      the   club    two    times

before[,]” contradicting his testimony that he did not know and

had never seen Defendant prior to 24 June 2012.                           Shields further

conceded having told Officer Doss that Defendant “cut [him] with

a blade given to him by some unknown black female[,]” despite

the fact that he had not seen Defendant possess a weapon or

interact   with    a    woman.           Likewise,         Clark    admitted      on   cross-

examination that he “lie[d]” when he told police that he saw a

woman hand Defendant a razor.                   We believe that counsel’s use of

Officer Doss’s testimony as another opportunity to impeach the

complainants’     credibility            was    a    sound    tactical     decision       well

within the broad discretion granted to defense counsel under the

Sixth Amendment.        See State v. Milano, 297 N.C. 485, 495, 256

S.E.2d 154, 160 (1979) (noting that “whether and how to conduct

cross-examination”       is        the    “exclusive         province     of    the    lawyer

after consultation with his client”), overruled on other grounds

by State v. Grier, 307 N.C. 628, 300 S.E.2d 351 (1983).                                Indeed,
                                          -9-
the jury acquitted Defendant of assaulting Clark with a beer

bottle.

      Assuming      arguendo       counsel’s     handling     of    Officer     Doss’s

testimony was objectively unreasonable, we find no probability

that it impacted the verdict in this cause.                        The trial court

instructed    the    jury    that    it   “must       not   consider      [witnesses’]

earlier statements as evidence of the truth of what was said at

that earlier time because it was not made under oath at this

trial[,]” but could consider the consistency or inconsistency of

a   prior   statement     “in      deciding     whether     you    will    believe   or

disbelieve the witness’s testimony.”                    Inasmuch as “[t]he law

presumes    that    the     jury    follows     the    judge’s     instructions[,]”

State v. Hopper, 292 N.C. 580, 589, 234 S.E.2d 580, 585 (1977),

we deem this instruction sufficient to foreclose any showing of

prejudice from counsel’s supposed error, particularly under the

heightened    Strickland           standard.          Defendant’s         argument   is

overruled.

      NO ERROR.

      Chief Judge MARTIN and Judge HUNTER, JR., concur.

      Report per Rule 30(e).
