An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1058
                         NORTH CAROLINA COURT OF APPEALS

                                Filed: 6 May 2014


STATE OF NORTH CAROLINA

      v.                                       Haywood County
                                               Nos. 12CRS052488
                                                    12CRS001115

CHAD NATHAN BENNETT



      Appeal by Defendant from judgment entered 13 February 2013

by Judge F. Lane Williamson in Haywood County Superior Court.

Heard in the Court of Appeals 19 February 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Anne G. Kirby, for the State.

      Marie H. Mobley, for Defendant.


      DILLON, Judge.


      Chad      Nathan   Bennett    (“Defendant”)      appeals    from     judgment

entered    13    February    2013   upon   his   convictions      by   a   jury   of

robbery with a dangerous weapon and                 his admission        of having

attained     the    status    of    habitual     felon.       Defendant’s      sole

argument on appeal is that the trial court committed plain error

by instructing the jury that the knife used by Defendant during
                                          -2-
the robbery in this case was, per se, a dangerous weapon.                           We

conclude Defendant had a fair trial, free from reversible error.

     The evidence of record tends to show the following:                       On 11

July 2012, at approximately 3:30 a.m., Darrin Shane Rich arrived

at   the    Hardee’s      in   Canton,     North      Carolina,     where   he     was

employed.     After exiting his vehicle, Mr. Rich saw Defendant

approaching with what appeared to Mr. Rich to be a knife in

Defendant’s hand and asking Mr. Rich to give him his wallet.

Mr. Rich testified that he saw “the shimmer or reflection of

light   off   the       blade[,]”   and   became      “scared”    of   “what     could

potentially happen.”           Mr. Rich elaborated:         “[G]etting hurt, or

in the situation, [I] could lose my life.”                    Defendant grabbed

Mr. Rich’s wallet from him and “took off running up the street.”

Mr. Rich called 9-1-1 and reported that his wallet was stolen

“at knifepoint[.]”

     A few days later, Mr. Rich picked Defendant out of a line-

up, identifying him as the perpetrator of the robbery.                            The

knife was never found.              Defendant was indicted on charges of

robbery    with     a   dangerous    weapon     and   of   having      attained    the

status of habitual felon.            Defendant did not testify at trial.

The jury found Defendant guilty of robbery with a dangerous

weapon, and Defendant pled guilty to having attained the status
                                     -3-
of    habitual     felon.     The    trial   court   entered     a    judgment

consistent with the foregoing, sentencing Defendant to 115 to

150 months incarceration.

      As a preliminary matter, Defendant did not give notice of

appeal in open court following his sentencing.                 However, it

appears that Defendant gave pro se written notice of appeal from

the above judgments, which was filed on 20 February 2013.                North

Carolina Rule of Appellate Procedure 4(a)(2) states that if a

defendant does not give oral notice of appeal, he may also take

appeal by “filing notice of appeal with the clerk of superior

court and serving copies thereof upon all adverse parties within

fourteen days after entry of judgment or order[.]”               N.C.R. App.

P. 4(a)(2).        Subsection (b) of Rule 4 also requires that the

notice of appeal include the names of the parties, the judgment

from which appeal is being taken, the Court appealed from, and

signature from counsel or the party not represented by counsel.

N.C.R. App. P. 4(b).        Even though Defendant’s written notice of

appeal was filed within fourteen days of his judgment, included

the name of the parties, the judgment appealed from, and his

signature, there is no indication that he served copies on the

adverse party, the Haywood County District Attorney, or included

the   Court   he   was   appealing   from.    Therefore,   the       notice   is
                                    -4-
deficient.    “[W]hen a defendant has not properly given notice of

appeal, this Court is without jurisdiction to hear the appeal.”

State v. McCoy, 171 N.C. App. 636, 638, 615 S.E.2d 319, 321

(2005).      However,   Defendant   filed   a   petition   for   writ   of

certiorari on 25 October 2013.            Given the pro se nature of

Defendant’s notice of appeal and its substantial compliance with

Rule 4, we allow Defendant’s petition for writ of certiorari and

address the merits of his appeal.

                  I: Jury Instruction; Plain Error

    In Defendant’s sole argument on appeal, he contends the

trial court committed plain error by instructing the jury that

the knife in this case was, per se, a dangerous weapon.                 We

disagree.

    “[W]here the alleged deadly weapon and the manner of its

use are of such character as to admit of but one conclusion, the

question as to whether or not it is deadly . . . is one of law,

and the Court must take the responsibility of so declaring.”

State v. Torain, 316 N.C. 111, 119, 340 S.E.2d 465, 470, cert

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

quotation marks omitted) (emphasis in original).            Only “where

the instrument, according to the manner of its use or the part

of the body at which the blow is aimed, may or may not be likely
                                         -5-
to produce such results, its allegedly deadly character is one

of fact to be determined by the jury.”                 Id. at 120, 340 S.E.2d

at 470 (citations omitted).          “The distinction between a weapon

which is deadly or dangerous per se and one which may or may not

be deadly or dangerous depending upon the circumstances is not

one that lends itself to mechanical definition.”                      Id. at 121,

340 S.E.2d at 471.            “Nevertheless, the evidence in each case

determines   whether      a    certain    kind    of   [weapon]       is   properly

characterized as a lethal device as a matter of law or whether

its nature and manner of use merely raises a factual issue about

its potential for producing death.”                State v. Sturdivant, 304

N.C. 293, 301, 283 S.E.2d 719, 726 (1981) (citations omitted).

Depending on the evidence in each case, our appellate courts

have held that a trial court did not err by instructing the jury

that a knife was, per se, a dangerous weapon.                    See Torain, 316

N.C. at 115-16, 340 S.E.2d at 467-68 (reviewing for plain error,

but   concluding   “the       challenged       instruction   .    .   .    did   not

constitute error at all,” when the trial court instructed the

jury that “a utility knife is a dangerous or deadly weapon,”

upon evidence that the defendant used a utility knife during the

perpetration of a first-degree rape to cut the clothes off of

the victim).   However, as a general rule, our appellate courts
                                     -6-
have held that a knife is not always a dangerous weapon per se;

instead, the circumstances of the case are determinative.                    See

State v. Smallwood, 78 N.C. App. 365, 368, 337 S.E.2d 143, 144-

45 (1985).

    Defendant    did    not   object    to   the   instruction    at   issue;1

therefore, we must review for plain error.            “In criminal cases,

an issue 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), cert. denied, 555 U.S. 835, 172 L. Ed.

2d 58 (2008).    Plain error arises when the error is “‘so basic,

so prejudicial, so lacking in its elements that justice cannot

have been done[.]’”       State v. Odom, 307 N.C. 655, 660, 300

S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676

F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74

L. Ed. 2d. 513 (1982)).       “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

1
  Defendant did, however, request an instruction on common law
robbery – a request which the trial court granted.
                                           -7-
different result.”           State v. Jordan, 333 N.C. 431, 440, 426

S.E.2d 692, 697 (1993).

    In this case, assuming arguendo the trial court erred by

instructing the jury that the knife was, per se, a dangerous

weapon, we believe the trial court did not commit plain error.

Specifically, Defendant has not shown that the “jury probably

would have reached a different result[,]”                   Jordan, 333 N.C. at

440, 426 S.E.2d at 697, had the trial court allowed the jury to

determine whether the knife was a dangerous weapon.                             Rather,

although Mr. Rich’s description of the knife was brief, and left

open the possibility that something other than a knife reflected

light from Defendant’s hand, the testimony was not contradicted.

Defendant produced no evidence at trial tending to show that he

did not have a knife; in fact, Defendant did not present any

evidence at all.        Mr. Rich also testified that, after he saw the

shimmer    of    a   blade    during   the       robbery,   he    was    “scared”      of

“getting hurt, or . . . los[ing] [his] life.”                      We believe the

evidence    in       this    case    was    such     that   the     trial       court’s

instruction      –   that    the    knife    in    this   case    was,    per    se,   a

dangerous weapon – did not constitute plain error.                       See State v.

Allen, 317 N.C. 119, 124, 343 S.E.2d 893, 897 (1986) (stating

that “[w]hen a robbery is committed with what appeared to the
                               -8-
victim to be a . . . dangerous weapon capable of endangering or

threatening the life of the victim and there is no evidence to

the contrary, there is a mandatory presumption that the weapon

was as it appeared to the victim to be”).

    NO ERROR.

Judge BRYANT and Judge STEPHENS concur.

Report per Rule 30(e).
