              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA18-233

                                Filed: 19 March 2019

Rowan County, Nos. 13 CRS 56988-90

STATE OF NORTH CAROLINA

             v.

JEFF DAVID STEEN


      Appeal by defendant from judgment entered 1 February 2017 by Judge

Nathaniel J. Poovey in Rowan County Superior Court. Heard in the Court of Appeals

28 November 2018.


      Attorney General Joshua H. Stein, by Assistant Attorney General Mary Carla
      Babb, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S.
      Zimmer, for defendant-appellant.


      DAVIS, Judge.


      In this case, we address several issues arising under the felony murder rule.

Jeff David Steen (“Defendant”) appeals from his convictions for first-degree murder,

attempted first-degree murder, and robbery with a dangerous weapon. On appeal,

Defendant argues that the trial court erred by (1) limiting the scope of his expert

witness’s testimony regarding the reliability of the victim’s identification of him as

the perpetrator of an assault upon her; (2) instructing the jury that hands and arms

can constitute deadly weapons in connection with the crime of attempted murder

under the felony murder rule; and (3) referencing a garden hoe as a deadly weapon
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possibly used by the victim’s assailant in its jury instructions despite the absence of

evidence that a hoe was actually used in assaulting the victim. After a thorough

review of the record and applicable law, we conclude that Defendant received a fair

trial free from prejudicial error.

                       Factual and Procedural Background

      In 2013, J.D. Furr, Defendant’s 87 year-old grandfather, and Sandra Steen

(“Sandra”), Defendant’s 62 year-old mother, lived on a farm in Rowan County.

Defendant was forty years old and lived twenty minutes away from the farm in Stanly

County.

      In January 2013, Defendant borrowed $1,000 from Furr to pay for repairs to

his car and promised to pay the money back within two weeks. By June 2013, he had

paid back approximately $550 and had reached an agreement with Furr to perform

work on the farm as a means of satisfying the remaining portion of the debt.

      In the fall of 2013, Sandra took out a $3,084.64 loan, in part, to assist

Defendant with making his car payments. Defendant agreed to make monthly loan

payments to Sandra beginning in October 2013 and promised to pay off the entirety

of the loan by January 2014. He had been borrowing money from his mother since

he was a teenager and owed her a total amount of between $4,000 and $6,000. Sandra

testified that “right before” 5 November 2013 both she and Furr separately informed




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Defendant that they would not loan him any more money. As of 5 November 2013,

Defendant’s checking account contained a balance of only $3.64.

      On the evening of 5 November 2013, Defendant was at the farm fixing a ceiling

fan for his grandfather. After completing his work on the fan, Sandra gave him the

bill for that month’s loan payment, and Defendant told her he would “take care of it.”

Sandra then went to her car to retrieve some items that she intended to store in a

nearby outbuilding. While she was doing so, Defendant came out of the house and

told her that he had to go to work. Sandra later testified that she did not recall either

hearing Defendant get into his vehicle or hearing his car drive away.

      Upon retrieving the items intended for storage from her vehicle, Sandra went

inside the outbuilding. After remaining there for five to ten minutes, she thought she

heard raised voices and believed that Furr might be calling for her. She had begun

walking in the direction of the house when she felt someone place their right arm

around her neck.

      At trial, Sandra testified that she initially believed that Defendant had

wrapped his arm around her neck as a joke to “play a trick on [her].” As the assailant

began tightening his grip around her neck, however, she realized the person was

“trying to kill [her].” Her attacker was wearing a dark-colored ski mask, and Sandra

could not see his face except for his eyes. The assailant then placed his left hand over




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her nose and mouth. Sandra testified that at that point she “started trying to punch

or grab whatever [she] could, and then everything went black.”

      Defendant testified on his own behalf at trial. He stated that on the night of 5

November 2013, he clocked in at his workplace at approximately 10:30 p.m. and

worked from 11:00 p.m. until 7:00 a.m. Following the conclusion of his shift, he went

back to his home to change clothes and then drove to his grandfather’s farm to work

on a fence. Defendant reached the farm at approximately 8:00 a.m.

      Upon arrival, Defendant saw his mother lying near the driveway close to the

storage building. He approached her and saw that her face was swollen, one of her

eyes was shut, and there was “blood all around” her. Defendant asked her what had

happened, and she responded that she needed help. As he was speaking to Sandra,

he noticed his grandfather “laying down at the foot of the steps” of the house. He

called 911, and after he explained the circumstances the dispatcher told him to check

on his grandfather.

      Defendant found Furr lying by the back door of the farmhouse. There was a

lot of blood “pooled up” by his head area. Defendant shook Furr and realized that he

was dead. Defendant also picked up his grandfather’s wallet and then placed it back

on the ground without removing any of its contents.        At that point, Defendant

returned to his mother. It was a cold morning, and he observed that she was shaking

and that “her whole body was freezing” cold. After unsuccessfully searching for



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blankets with which to cover his mother in order to keep her warm, Defendant lay

down next to Sandra and held her until EMS personnel arrived.

      Paramedics transported Sandra to Stanly Regional Medical Center, and she

was subsequently airlifted from that location to Carolinas Medical Center (“CMC”) in

Charlotte. At CMC, she was diagnosed with a skull fracture, multiple rib fractures,

a collapsed lung, and hypothermia. The treating physician noted that Sandra had

suffered an “assault [by] unspecified means.”

      It was determined by autopsy that Furr died from blunt force injuries to his

head and neck. An officer responding to the 911 call testified that Furr’s body was

within “eyesight of where [Sandra] was assaulted[.]” A garden hoe containing Furr’s

blood on it was found near his body.       The medical examiner testified that the

possibility Furr had been beaten with the garden hoe was “consistent with most, if

not all, of [Furr’s] injuries.” Furr’s wallet was found near his body with his blood on

it. The money that the wallet normally contained had been removed. Other than the

money taken from Furr’s wallet, nothing else was taken or missing from the farm or

its outbuildings. No unfamiliar vehicles or individuals were seen by neighbors in the

area of the farm on the night of 5 November 2013.

      Defendant cooperated with law enforcement officers during their investigation

and consistently denied any involvement in the assault of his mother or the murder

of his grandfather. Officers responding to the scene observed that he had multiple



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scratches on both of his arms as well as an injury to his upper lip. No blood was found

in Defendant’s vehicles. His clothing was not examined for the presence of blood.

      With regard to the scratches on his arm, Defendant told officers at the crime

scene that Sandra had scratched him that morning while he was holding her as he

waited for the arrival of paramedics. The day after the attacks, he told a cousin that

he thought he could have gotten the scratches at work.          During a subsequent

interview with law enforcement officers, Defendant stated that he might have

scratched his arms on a door frame while fixing Furr’s ceiling fan.

      The North Carolina State Crime Laboratory performed both fingerprint and

DNA testing on the garden hoe. No latent fingerprints were found on the hoe. The

DNA taken from both the hoe and Furr’s wallet matched Furr but did not match

Defendant.    Testing performed on scrapings taken from Sandra’s fingernails

indicated that the DNA contained therein matched Sandra and excluded Defendant.

In addition, a hair contained in the fingernail scrapings belonged to Sandra.

      Sandra was interviewed by law enforcement officers on multiple occasions

while she was hospitalized. Her first interview occurred on 6 November 2013 in the

emergency room at Stanly Regional Medical Center. She told the officers that she

was attacked from behind about ten minutes after Defendant had left the farm by

someone wearing a dark-colored ski mask and dark clothing and that she blacked out

after being hit on the head with “something hard.” Sandra further stated that her



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attacker was muscular, had dark eyes, and could have been either white or “Mexican.”

She also told officers that the assailant could not have been Defendant because he

was taller than the person who attacked her.

      Later that same day, after being transferred to CMC, Sandra gave another

interview. During her second interview, officers asked her if she thought that it could

have been Defendant who assaulted her. She responded that it could not have been

him because Defendant was too tall and he was “tore all to pieces” upon discovering

her and Furr’s body the morning after the attacks. Also during this interview, one of

the officers asked Sandra: “What would you think if I told you that Jeff had a whole

lot of scratches on his arm? Would you think that maybe Jeff done it again like you

did at first?” In response, she reiterated that her attacker could not have been

Defendant and stated that he might have scratched his arm while working on the

ceiling fan earlier that day.

      Officers conducted a third interview with Sandra the following day. She told

them that if they were considering Defendant as a suspect they were “barking down

the wrong tree.”     She also stated that she thought she remembered hearing

Defendant’s car leave the farm on the night of the attacks and that she might have

scratched him the morning after the attack while he was holding onto her.

      Sandra gave her final recorded statement to law enforcement officers on 21

November 2013.      Her recollection of the assault on this occasion was markedly



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different from the prior occasions on which she was interviewed.           During this

interview, she stated that she saw Defendant’s face when her attacker opened her

eye to see whether she was dead or alive. She further told the officers that she had

previously been in denial but now believed that her son was, in fact, her attacker.

      On 9 December 2013, Defendant was indicted on charges of first-degree

murder, attempted first-degree murder, and robbery with a dangerous weapon. His

trial began on 9 January 2017 in Rowan County Superior Court before the Honorable

Nathaniel J. Poovey.

      At trial, Sandra testified that she had seen Defendant’s face during the attack

and that a traumatic brain injury counselor at CMC had assisted her in coming to

this realization. The following exchange occurred on cross-examination between

Sandra and counsel for Defendant with regard to inconsistencies between her pre-

trial statements to law enforcement officers and her testimony at trial:

             [DEFENSE COUNSEL]: When the detective asked you
             about where you saw the mask or the face, you told him it
             was one of these pull over masks . . . didn’t you?

             [SANDRA]: There was no mask. There was no mask.

             [DEFENSE COUNSEL]: The kind of -- the kind of mask
             where you wear when you go rob somebody. Isn’t that what
             you said?

             [SANDRA]: There was no mask. I had been dreaming all
             kind of crazy dreams laying up there in ICU.

             [DEFENSE COUNSEL]: You stayed consistent from the


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             first statement to this statement the next day that the
             individual had a mask. You stayed consist[ent] with [the]
             fact that he was larger than you, taller than you and
             muscular.

             [SANDRA]: I was trying my best to figure it out.

             [DEFENSE COUNSEL]: Well, why didn’t you tell them
             you didn’t -- you don’t know?

             [SANDRA]: Because they was wanting something, and I
             was just making up stuff. Just -- whatever was in my head,
             I thought it was real.

             [DEFENSE COUNSEL]: Well, you --

             [SANDRA]: I thought it was real until that lady said what
             she did. And when she said what she did about traumatic
             brain injuries, that you don’t know when they happen, but
             you know before and after and that’s when I was able to
             put into place that was [Defendant’s] arm coming around
             my neck, that was [Defendant] choking me, and then it was
             [Defendant] knocking me out.

             And then when my left eyelid was raised up, that was
             [Defendant’s] face in front of me. And because we have two
             really bright yard lights, I was able to see his [face] very
             clearly. And I thought he was there to help me.

      Defendant offered testimony from Dr. George Corvin as an expert witness in

general and forensic psychiatry who was qualified to testify with regard to “a

psychiatric symptom” known as “confabulation.”           A voir dire hearing took place

outside the presence of the jury concerning the permissible scope of his testimony.

      On voir dire, Dr. Corvin defined confabulation as “the spontaneous production

of false memories or distorted memories in patients who have . . . sustained closed


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head injuries or other medical trauma resulting in periods of amnesia.” He further

explained that “induced confabulation” can occur where a person in a position of

authority or trust tells or implies to an individual suffering from amnesia what

actually occurred during a period of time for which the individual has no genuine

memories. At the conclusion of the voir dire hearing, the trial court ruled that Dr.

Corvin would be permitted to testify generally about “those who are susceptible and

the risk factors for confabulation,” but would not be permitted to testify as to whether

specific questions that officers had asked Sandra could have caused confabulation to

actually occur.

      Dr. Corvin subsequently testified before the jury, explaining what

confabulation is and how it can occur. Although he did not testify with regard to the

specific manner in which Sandra was questioned by law enforcement officers, he

stated that she would “have an elevated propensity for both the experience of amnesia

but also to experience confabulation as a result of that amnesia. Both from her

psychological and physical trauma.”

      Defendant testified on his own behalf. He denied attacking his mother or

grandfather and stated that he was either at home or at work when the crimes

occurred. He testified that he had been unaware that he had scratches on his arms

at the time when officers first brought the scratches to his attention and that he told

them his mother had scratched him because it “was the first thing that popped in



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[his] mind.” He explained that he later told officers that he scratched himself while

working on his grandfather’s fan because he was trying to retrace his steps and

“figure anything that might have happened that could have caused . . . a scratch on

[his] arm.” Defendant also testified that he had a cat that “liked to scratch [him]

sometimes” but that he likely received the majority of the scratches performing

“activities around the house or working.” On cross-examination, he acknowledged

that he did not know the actual origin of the scratches.

      At the charge conference, the trial court informed counsel that it intended to

instruct the jury on first-degree murder based upon theories of premeditation and

deliberation, lying in wait, and felony murder predicated on the underlying felony of

robbery with a dangerous weapon. The State requested that the court also instruct

the jury on the theory of felony murder based on the underlying felony of attempted

murder with a deadly weapon. The prosecutor asserted that — for purposes of her

requested instruction — either Defendant’s hands and arms or the garden hoe

constituted deadly weapons. Counsel for Defendant objected on the ground that the

State had presented insufficient evidence that a deadly weapon was used in the

attempted murder of Sandra so as to warrant the instruction. After hearing the

arguments of counsel, the trial court stated its intention to give the State’s requested

instruction.




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       On 1 February 2017, the jury convicted Defendant of first-degree murder,

attempted first-degree murder, and robbery with a dangerous weapon. The jury

specified on the verdict sheet that the first-degree murder conviction was based solely

upon the felony murder rule predicated on the underlying felony of attempted first-

degree murder.1        The trial court arrested judgment on the attempted murder

conviction and sentenced Defendant to life imprisonment without the possibility of

parole for the first-degree murder conviction. Defendant was also sentenced to a term

of 64 to 89 months imprisonment for the robbery with a dangerous weapon conviction.

Defendant gave timely notice of appeal to this court.

                                             Analysis

       In this appeal, Defendant makes three primary arguments. First, he contends

that the trial court erred by prohibiting Dr. Corvin from testifying concerning the

impact of specific leading questions asked by law enforcement officers during their

interviews with Sandra. Second, he argues that instructing the jury that hands and

arms can constitute deadly weapons for purposes of the felony murder rule

constituted error. Finally, he asserts that the court improperly instructed the jury

that it could convict him of first-degree murder under the felony murder rule if it

found that he attempted to murder Sandra with a garden hoe because no evidence



       1  The jury specifically rejected the State’s alternative theories of first-degree murder based
upon (1) premeditation and deliberation; (2) lying in wait; and (3) felony murder with the underlying
felony being robbery with a dangerous weapon.

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was introduced that a hoe was used in the attack on Sandra. We address each

argument in turn.

I.   Testimony of Dr. Corvin

      Defendant first contends that the trial court abused its discretion by

improperly limiting the scope of the testimony of his expert witness, Dr. Corvin. He

argues that had Dr. Corvin been permitted to testify about the possible impact upon

Sandra’s memory of specific leading questions posed to her by law enforcement

officers there exists “a reasonable possibility Dr. Corvin’s testimony may have

impacted the outcome of the trial[.]” We disagree.

      The admissibility of expert witness testimony is governed by Rule 702 of the

North Carolina Rules of Evidence. Rule 702 provides, in pertinent part, as follows:

             (a) If scientific, technical or other specialized knowledge
                 will assist the trier of fact to understand the evidence
                 or to determine a fact in issue, a witness qualified as an
                 expert by knowledge, skill, experience, training, or
                 education, may testify thereto in the form of an opinion,
                 or otherwise, if all of the following apply:

                (1) The testimony is based upon sufficient facts or data.

                (2) The testimony is the product of reliable principles
                    and methods.

                (3) The witness has applied the principles and methods
                    reliably to the facts of the case.

N.C. R. Evid. 702(a).




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       A trial court’s ruling on “whether the proffered expert testimony meets Rule

702(a)’s requirements of qualification, relevance, and reliability . . . will not be

reversed on appeal absent a showing of abuse of discretion.” State v. McGrady, 368

N.C. 880, 893, 787 S.E.2d 1, 11 (2016) (citation and quotation marks omitted). “[A]

trial court may be reversed for abuse of discretion only upon a showing that its ruling

was manifestly unsupported by reason and could not have been the result of a

reasoned decision.” Id. (citation, quotation marks, and brackets omitted). Moreover,

an evidentiary error “is not prejudicial unless there is a reasonable possibility that,

had the error in question not been committed, a different result would have been

reached at the trial.” State v. Mason, 144 N.C. App. 20, 27, 550 S.E.2d 10, 16 (2001)

(citation, quotation marks, and brackets omitted).

       At trial, Dr. Corvin was permitted to define confabulation for the jury and to

explain the manner in which it could affect the memories of persons afflicted with

periods of amnesia following a traumatic injury. He further testified that based on

his review of Sandra’s medical records2 a risk of confabulation existed due to the

nature and location of the traumatic brain injury that she suffered as a result of the

attack. Dr. Corvin also explained the concept of “induced confabulation”:

              [A]s human beings, we always look for cues. And -- so if
              somebody is talking to us, they may say things or ask
              things that imply what -- what the answer is about what
              happened during the time in question. And in induced

       2  Dr. Corvin did not personally meet with Sandra. His testimony was based entirely on his
review of her medical records and the statements she gave to law enforcement officers.

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             confabulation, what happens is you pick up these cues. You
             pick up the positive, sort of, feedback that you get from
             giving the right answer.

             And what happens is that those things that you’re hearing
             in your environment, suddenly will be -- not suddenly --
             gradually will become your memory. And -- so you might
             talk to -- let’s say you have amnesia for a period of time
             after an accident and your wife or husband was there. And
             they tell you, kind of, what they say happened. You don’t
             know what happened.

             Well, after a time of talking to him about it, you
             may . . . remember it yourself. Not -- you don’t remember
             it such that your husband or wife told you, you remember
             it and that’s called induced confabulation. You get help
             filling in the gaps, but you’re unaware of it as it’s
             happening.

      Although the trial court prohibited Dr. Corvin from proceeding to testify as to

the relationship between any specific questions that officers asked Sandra and the

potential for confabulation to have occurred regarding her identification of Defendant

as her attacker, Defendant’s counsel made the following statements during his

closing argument to the jury:

             On November 6th at CMC, [Sandra] talked to [law
             enforcement officers], and when she gave those statements
             she said, “I didn’t see who it was. He had a mask on, a ski
             mask. He was too tall -- or was too short to be Jeff. Jeff’s
             taller. He had dark eyes. I couldn’t see his face. I saw his
             beady eyes.” That’s what you heard, and that didn’t match
             the theory of the police officers.

             So what did they do? They went back up there November
             7th, and I think one of them, either Detective Loflin or
             Detective Allen, said, “You know, Sandra, we hope this is


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             the last time we got to come up here, and they spent the
             next how many ever minutes, hour trying to get her to tell
             them it was [Defendant]. How did they do that? Well, you
             know, “Hey, Detective Allen, aren’t you going to tell them
             about [Defendant’s] scratches? Tell her -- well, tell her
             about those.[”] [“]Well -- well, Sandra, what do you think
             if I told you [Defendant] had some? Would you think it’s
             him then?[”]

             ....

             You know, Dr. Corvin came in here and testified, “You
             know, when you have a traumatic brain injury . . . you’re
             more susceptible to being” -- to what he called
             “confabulated.” That’s a word I had never heard before this
             case. But essentially it means you’re more susceptible to
             agreeing with what they want you to say, and that’s exactly
             what happened.

      Even assuming, without deciding, that the limitation on Dr. Corvin’s testimony

by the trial court constituted error, we are unable to agree with Defendant that any

such error rose to the level of reversible error. As noted above, in his testimony Dr.

Corvin defined the concept of induced confabulation for the jury and explained why

Sandra’s injury placed her at risk of creating memories that were not genuine.

Furthermore, in his closing argument Defendant’s counsel made clear to the jury the

defense’s theory that the manner in which Sandra was questioned by law

enforcement officers caused her to create false memories of the attack.

      As a result, jurors were expressly given the opportunity to consider the

possibility that Sandra’s identification of Defendant was the result of confabulation.

Therefore, Defendant has failed to show a reasonable possibility that a different


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result would have been reached had Dr. Corvin been permitted to testify without

restriction. See In re Chasse, 116 N.C. App. 52, 60, 446 S.E.2d 855, 860 (1994)

(exclusion of expert testimony was harmless error where error was not prejudicial).

II.   Jury Instructions

       A. Hands and Arms as Deadly Weapons for Purposes of Felony Murder
          Rule

       Defendant next argues that the trial court erred by charging the jury that his

hands and arms could constitute deadly weapons for purposes of the felony murder

rule based upon the underlying felony of attempted murder with a deadly weapon.

He contends that “[a]llowing hands and arms to be a deadly weapon when an adult

is killed vastly and improperly expands the felonies which could support a conviction

for felony murder.” We disagree.

       In the present case, the trial court instructed the jury, in pertinent part, as

follows:

             I further charge that for you to find the defendant guilty of
             first-degree murder under the first-degree felony murder
             rule based upon the underlying felony of attempted first-
             degree murder, the State must prove four things beyond a
             reasonable doubt:

             ....

             And fourth, that the attempted first-degree murder was
             committed with the use of a deadly weapon. The State
             contends and the defendant denies that the defendant used
             his hands and/or arms, and or a garden hoe as a deadly
             weapon.


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               A deadly weapon is a weapon which is likely to cause death
               or serious bodily injury. In determining whether the
               instrument is a deadly weapon, you should consider its
               nature, the manner in which it was used and the size and
               strength of the defendant as compared to the victim.

         “Our Court reviews a trial court’s decisions regarding jury instructions de

novo.”    State v. Jenkins, 202 N.C. App. 291, 296, 688 S.E.2d 101, 105 (citation

omitted), disc. review denied, 364 N.C. 245, 698 S.E.2d 665 (2010). “First-degree

murder by reason of felony murder is committed when a victim is killed during the

perpetration or attempted perpetration of certain enumerated felonies or a felony

committed or attempted with the use of a deadly weapon.” State v. Gibbs, 335 N.C.

1, 51, 436 S.E.2d 321, 350 (1993) (citation omitted), cert. denied, 512 U.S. 1246, 129

L. Ed. 2d 881 (1994); see also N.C. Gen. Stat. § 14-17(a) (2017) (a murder “committed

in the perpetration or attempted perpetration of any arson, rape or a sex offense,

robbery, kidnapping, burglary, or other felony committed or attempted with the use

of a deadly weapon” constitutes first-degree murder).

         This Court has repeatedly held that hands, arms, and feet can constitute

deadly weapons in certain circumstances “depending upon the manner in which they

were used and the relative size and condition of the parties.” State v. Allen, 193 N.C.

App. 375, 378, 667 S.E.2d 295, 298 (2008) (citation omitted); see also State v. Harris,

189 N.C. App. 49, 60, 657 S.E.2d 701, 709 (2008) (jury was “properly allowed to

determine whether Defendant’s hands and feet constituted deadly weapons” where


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male defendant outweighed female victim by 65 pounds); State v. Jacobs, 61 N.C.

App. 610, 611, 301 S.E.2d 429, 430 (fists could have constituted deadly weapons

where defendant was 39 year-old male and victim was 60 year-old female), disc.

review denied, 309 N.C. 463, 307 S.E.2d 368 (1983).

      Although our appellate courts have not specifically addressed whether hands

and arms may constitute deadly weapons for purposes of the crime of attempted

murder under the felony murder rule, our Supreme Court has held that the offense

of felony child abuse could serve as the predicate felony for felony murder where the

defendant used his hands as a deadly weapon in the course of committing the abuse.

In State v. Pierce, 346 N.C. 471, 488 S.E.2d 576 (1997), the defendant was an adult

male who violently shook his two-and-a-half year-old niece, resulting in the child’s

death. Id. at 493, 488 S.E.2d at 589. The Court stated that “[w]hen a strong or

mature person makes an attack by hands alone upon a small child, the jury may infer

that the hands were used as deadly weapons.” Id. Consequently, the Supreme Court

concluded that the evidence “was sufficient to permit the jury to conclude that

defendant committed felonious child abuse and that he used his hands as deadly

weapons. Thus, the trial court did not err by refusing to grant defendant’s motion to

dismiss the charge of first-degree murder under the felony murder rule.” Id.

      Defendant argues that the Supreme Court’s holding in Pierce should be

confined to the child abuse context. In his brief, he contends that “[h]ands may be a



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deadly weapon for purposes of felony assault and felony murder based on felony child

abuse depending on the circumstances, but not for purposes of felony murder when

the predicate felony is the attempted murder of an adult.” However, he presents no

compelling argument as to why children should be treated differently from vulnerable

adults in this context or why jurors should not be permitted to make such a

determination for themselves.

      Here, Defendant was 40 years old and Sandra was 62 years old. He was 5 feet,

11 inches tall and weighed 210 pounds while she was 5 feet, four inches tall and

weighed 145 pounds. During the assault, Sandra’s assailant engaged in a violent

attack on her while using his hands and arms that resulted in extensive injuries to

her, including multiple rib fractures and a collapsed lung. Thus, we are of the view

that the question of whether Defendant’s hands and arms constituted deadly weapons

was a matter for determination by the jurors and that the trial court therefore did

not err by submitting this issue to the jury. See State v. Grumbles, 104 N.C. App.

766, 770, 411 S.E.2d 407, 410 (1991) (issue of whether defendant’s hands were deadly

weapons was properly submitted to jury where evidence showed “the great disparity

in the size of the victim and defendant”).

      Nor are we persuaded by Defendant’s alternative argument that a weapon

must be “external” in order to constitute a deadly weapon for purposes of the felony

murder rule. In support of this proposition, he directs our attention to State v.



                                         - 20 -
                                   STATE V. STEEN

                                  Opinion of the Court



Hinton, 361 N.C. 207, 639 S.E.2d 437 (2007). In Hinton, our Supreme Court held

that the defendant’s hands and feet could not constitute dangerous weapons under

N.C. Gen. Stat. § 14-87(a), the statute criminalizing robbery with a dangerous

weapon. Id. at 211-12, 639 S.E.2d at 440. In reaching this determination, the Court

noted that N.C. Gen. Stat. § 14-87(a) “prohibits the use or threatened use of any

firearms or other dangerous weapon, implement or means” in the course of a robbery.

Id. at 211, 639 S.E.2d at 440 (emphasis added and quotation marks omitted). As a

result, the Supreme Court concluded that “the General Assembly intended to require

the State to prove that a defendant used an external dangerous weapon before

conviction under the statute is proper.” Id. at 211-12, 639 S.E.2d at 440 (emphasis

added).

      We decline Defendant’s invitation to extend the holding of Hinton beyond the

parameters of the particular context in which it was decided. Unlike N.C. Gen. Stat.

§ 14-87, N.C. Gen. Stat. § 14-17 (the statute governing felony murder) contains no

language suggesting any intent by the General Assembly to limit the possible types

of weapons that can qualify as “deadly weapons” for purposes of the felony murder

rule to external weapons. Therefore, this argument is overruled.

      B. Sufficiency of Evidence to Support Reference to Garden Hoe in
         Jury Instructions

      Finally, Defendant argues that the trial court erred by instructing the jury that

it could convict him of first-degree murder if it found that he attempted to murder


                                         - 21 -
                                   STATE V. STEEN

                                  Opinion of the Court



Sandra with a garden hoe — as an alternative type of deadly weapon — because

insufficient evidence existed that the hoe was used in the attack on his mother. He

contends that “[i]t was pure speculation that the hoe was used in [Sandra’s]

attempted murder” and that, for this reason, the reference to the hoe in the

instruction constituted reversible error given prior decisions from North Carolina

courts prohibiting jury instructions on theories of guilt not supported by the evidence

presented at trial.

      The State, conversely, contends that (1) the weapons identified in the

challenged portion of the jury instructions were merely “evidentiary components”

rather than distinct theories of the crime of attempted murder such that any error in

mentioning the garden hoe was not prejudicial; (2) the reference to the garden hoe

was, in fact, sufficiently supported by the evidence; and (3) even assuming arguendo

that the reference to the garden hoe was erroneous, Defendant cannot demonstrate

that he was prejudiced by the instruction.

      As noted above, the specific portion of the jury instruction referencing the

garden hoe stated as follows:

             [T]hat the attempted first-degree murder was committed
             with the use of a deadly weapon. The State contends and
             the defendant denies that the defendant used his hands
             and/or arms, and or a garden hoe as a deadly weapon.

(Emphasis added.)




                                         - 22 -
                                    STATE V. STEEN

                                   Opinion of the Court



      It is well established that “[a] trial judge should not give instructions which

present to the jury possible theories of conviction not supported by the evidence.”

State v. Odom, 99 N.C. App. 265, 272, 393 S.E.2d 146, 150 (citations omitted), disc.

review denied, 327 N.C. 640, 399 S.E.2d 332 (1990). However, “[i]f a party requests

a jury instruction which is a correct statement of the law and which is supported by

the evidence, the trial judge must give the instruction at least in substance.” State v.

Cornell, 222 N.C. App. 184, 191, 729 S.E.2d 703, 708 (2012) (citation omitted).

      Our Supreme Court has recently addressed the scenario in which a trial court

instructs the jury disjunctively as to two distinct theories of a crime where one of the

theories was unsupported by the evidence. In State v. Malachi, __ N.C. __, 821 S.E.2d

407 (2018), the defendant was charged with possession of a firearm by a felon and

carrying a concealed weapon after officers discovered a handgun in the waistband of

his pants. Id. at __, 821 S.E.2d at 410. With regard to the possession of a firearm by

a felon charge, the trial court instructed the jury on the principles of both actual and

constructive possession. Id. On appeal, this Court held that the trial court committed

reversible error by instructing the jury on the theory of constructive possession where

“the State’s evidence supported an instruction only for actual possession[.]” State v.

Malachi, __ N.C. App. __, __, 799 S.E.2d 645, 649 (2017), reversed, __ N.C. __, 821

S.E.2d 407 (2018).




                                          - 23 -
                                    STATE V. STEEN

                                   Opinion of the Court



      The Supreme Court reversed the decision of this Court, holding that although

the trial court did, in fact, err by instructing the jury on constructive possession, the

error was not prejudicial to the defendant. Malachi, __ N.C. at __, 821 S.E.2d at 422.

In holding that a defendant’s challenge to a jury instruction that permitted conviction

under a theory unsupported by the evidence is subject to “traditional harmless error

analysis,” the Court explained its reasoning as follows:

             As a general proposition, a defendant seeking to obtain
             appellate relief on the basis of an error to which he or she
             lodged an appropriate contemporaneous objection at trial
             must establish that there is a reasonable possibility that,
             had the error in question not been committed, a different
             result would have been reached at the trial out of which the
             appeal arises. However, the history of this Court’s
             decisions in cases involving the submission of similar
             erroneous instructions and our consistent insistence that
             jury verdicts concerning a defendant’s guilt or innocence
             have an adequate evidentiary foundation persuade us that
             instructional errors like the one at issue in this case are
             exceedingly serious and merit close scrutiny to ensure that
             there is no reasonable possibility that the jury convicted
             the defendant on the basis of such an unsupported legal
             theory. However, in the event that the State presents
             exceedingly strong evidence of defendant’s guilt on the
             basis of a theory that has sufficient support and the State’s
             evidence is neither in dispute nor subject to serious
             credibility-related questions, it is unlikely that a
             reasonable jury would elect to convict the defendant on the
             basis of an unsupported legal theory.

Id. at __, 821 S.E.2d at 421 (internal citation and quotation marks omitted).

      Defendant argues that the challenged instruction was both erroneous and

prejudicial under the standard set out by the Supreme Court in Malachi. He contends


                                          - 24 -
                                    STATE V. STEEN

                                   Opinion of the Court



that absent the reference to the garden hoe “there is a reasonable possibility

that . . . the jury would have returned a different verdict[.]” For the reasons set out

below, however, we hold that any error resulting from this instruction was harmless

even assuming that (1) the weapons listed in the challenged instruction did, in fact,

constitute separate and distinct theories of the crime of attempted murder; and (2)

the reference to the garden hoe was unsupported by the evidence.

      Sandra testified that her attacker grabbed her from behind and tightly

wrapped his right arm around her neck before placing his left hand over her nose and

mouth. A struggle then ensued between Sandra and her attacker until she lost

consciousness. The injuries Sandra sustained included a skull fracture, multiple rib

fractures, and a collapsed lung.     Such testimony clearly constitutes substantial

evidence to support an instruction that hands and arms were used as weapons during

the attack on her. Conversely, although the evidence plainly established that the

garden hoe was used to murder Furr, no evidence was presented specifically linking

the garden hoe to Sandra’s attack. Thus, evidence was presented in support of only

one of the deadly weapon theories instructed on by the trial court — that is, the theory

that Defendant attempted to murder Sandra with his hands and arms. Based on our

application of the principles articulated by the Supreme Court in Malachi, however,

we conclude the error in referencing the hoe was harmless.




                                          - 25 -
                                        STATE V. STEEN

                                       Opinion of the Court



       First, the most critical piece of evidence for the State was Sandra’s

identification of Defendant as her attacker. The jury had a full and fair opportunity

to evaluate the reliability of her testimony in light of the conflicting pre-trial

statements she made to law enforcement officers on this subject and the testimony of

Dr. Corvin regarding confabulation. In finding Defendant guilty, the jury clearly

determined that her identification of Defendant was reliable. It cannot reasonably

be argued that the brief reference to the hoe in the jury instructions impacted the

jury’s decision to accept her trial testimony regarding Defendant’s guilt as true.3

       We are unable to construe Malachi as requiring a finding of reversible error

under these circumstances.          While the circumstances at issue in Malachi were

somewhat different than those existing here, the essence of the Supreme Court’s

decision was that errors by a trial court in instructing the jury on a theory of guilt

unsupported by the evidence are subject to a harmless error analysis. In the present

case — for the reasons set out above — we cannot see how the brief reference to the

garden hoe in the jury instructions could have affected the jury’s determination as to

the credibility of Sandra’s identification of Defendant and, therefore, its verdict.

Accordingly, we hold that the trial court did not commit reversible error in its

instructions to the jury.

                                          Conclusion


       3  We note that the State’s closing argument did not even mention the hoe as having been used
in the attack on Sandra.

                                               - 26 -
                                  STATE V. STEEN

                                 Opinion of the Court



      For the reasons stated above, we conclude that Defendant received a fair trial

free from prejudicial error.

      NO PREJUDICIAL ERROR.

      Judge BERGER concurring in separate opinion.

      Judge HUNTER, JR. concurring in part, dissenting in part by separate
      opinion.




                                        - 27 -
 No. COA18-233 – State v. Steen


       BERGER, Judge, concurring in separate opinion.


       I concur with the majority opinion, but would conclude that the instruction

provided by the trial court regarding the garden hoe was supported by the evidence.

       Even though Ms. Steen lost consciousness during the attack, she told

investigators that she had been hit in the head with something hard. She testified

that

             [t]he first time, I was hit on the side of my head. I had – I
             had fractures on my skull. That’s what knocked me out the
             first time and put me on the ground. And then that’s when
             I seen [Defendant] when he raised my left eyelid up, and
             then I was blacked out again. That would have been the
             second blow to my head that put the hole in the back of my
             head.

Ms. Steen also testified that Defendant “knock[ed] me out,” that she had been “beaten

in the head,” and that she “did not want to believe that my son would knock a hole in

my head.”

       Evidence presented at trial showed, in addition to a collapsed lung, that Ms.

Steen also suffered multiple rib fractures, a fracture to her skull, brain

hemorrhaging, and traumatic brain injury. These are not the types of injuries that

would customarily be associated with an assault in which the perpetrator simply

choked the victim. The jury could reasonably infer that Ms. Steen’s injuries were

inflicted with a blunt force object.
                                   STATE V. STEEN

                                BERGER, J., concurring



      There was a blunt force object within eyesight of the area where Ms. Steen had

been assaulted: the garden hoe which had been used to murder Mr. Furr. This blunt

force object was used by the same perpetrator who attacked Ms. Steen. The garden

hoe was used in the same time period as the assault on Ms. Steen, and it was used in

close proximity to Ms. Steen.

      The evidence presented supported the jury instruction regarding the garden

hoe, and I would conclude that the trial court’s instruction was not in error.




                                           2
      No. COA18-233 State v. Steen

             HUNTER, Judge, concurring in part, dissenting in part.

      While I concur with the majority’s analysis on the remaining issues, I

respectfully dissent on the issue of whether Defendant has demonstrated reversible

error from the trial court’s erroneous jury instruction referencing the hoe as a weapon

used in the attack on Sandra. In State v. Malachi, __ N.C. __ 821 S.E.2d 407 (2018)

our Supreme Court expressly noted that harmless error was most likely to exist in

cases where the State presents strong evidence of guilt that is not “subject to serious

credibility-related questions[.]” Id. at __, 821 S.E.2d at 421.

      In the present case, the majority rests its conclusion on the fact that the jury’s

verdict must mean that it found Sandra’s identification of Defendant as her attacker

to be credible. However, given the various widely conflicting pre-trial statements that

she gave –all but one of which flatly denied that Defendant was her assailant – her

testimony clearly raised, in my view, the sort of serious credibility questions

contemplated by the Supreme Court in Malachi .

      Moreover, the remaining evidence presented by the State was far from

conclusive as to Defendant’s guilt. No fingerprints were found on the garden hoe. The

DNA profile obtained from the hoe did not match Defendant, nor did the DNA

obtained from Furr’s wallet. Likewise, testing performed on scrapings taken from

Sandra’s fingernails excluded Defendant as a contributor. Indeed, the DNA sample

taken from these scrapings not only excluded Defendant but also contained an allele

from an unknown third party that was neither Defendant nor Sandra.                 Law

enforcement also found no blood in Defendant’s vehicles and did not test his clothes
                                     STATE V. STEEN

                                  BERGER, J., concurring



for the presence of blood. In short, no physical evidence of any kind linked Defendant

to the crimes.

      For these reasons, I believe Defendant has shown that he is entitled to a new

trial. Accordingly, I respectfully dissent.




                                              2
