An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-40
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 1 July 2014


STATE OF NORTH CAROLINA

      v.                                      Johnston County
                                              No. 12CRS002813
TERRY LYNN HALL
     Defendant.


      Appeal by Defendant from judgment entered 28 June 2013 by

Judge Kendra D. Hill in Johnston County Superior Court.                        Heard

in the Court of Appeals on 5 May 2014.


      Attorney General Roy A. Cooper, III, by Special                         Deputy
      Attorney General Harriet F. Worley, for the State.

      Sharon L. Smith, for Defendant-appellant.


      DILLON, Judge.


      Terry Lynn Hall (“Defendant”) appeals from convictions for

two counts of assault with a deadly weapon, felony possession of

cocaine, and attaining the status of an habitual felon.                      For the

following reasons, we find no error in Defendant’s trial.

      Defendant was indicted separately on one charge of felony

possession     of   cocaine,     two   counts    of   assault    with    a    deadly

weapon with intent to kill inflicting serious injury and for
                                      -2-
attaining the status of habitual felon.            Defendant was tried on

these charges at the 24 June 2013 Criminal Session of Johnston

County Superior Court.        The State’s evidence tended to show that

shortly after midnight on 10 August 2012, Willie James Walker,

who lived in a homeless shelter in Raleigh, had been drinking

beer and using cocaine, and went to the parking lot of a service

station   in   Smithfield      to   panhandle.      Mr.     Walker    observed

Defendant in the parking lot and approached Defendant to ask him

what he wanted.      Defendant told him that he was looking to buy

some crack cocaine.           Mr. Walker told Defendant that he knew

someone that sold crack cocaine just around the corner and he

would   take   him   there.     Mr.   Walker    hoped   that   if    he   helped

Defendant get some, he would share with him.              After he rode down

the street in Defendant’s car and stopped, Defendant gave Mr.

Walker a one-hundred dollar bill, even though he only wanted

fifty-dollars-worth of crack cocaine, and Defendant wanted his

change.

    Mr. Walker ultimately found Willie Watson, who told him

where he could buy some cocaine.               However, before Mr. Walker

could go buy the cocaine, Defendant got out of his car and

started fighting with Mr. Watson, and then he started cutting

both Mr. Walker and Mr. Watson with a razor blade knife.                    Mr.
                                     -3-
Walker testified that it was Defendant who started the fight.

Mr. Walker testified that after Defendant attacked them, he and

Mr. Watson ran into some bushes to hide.               Defendant, however,

got back into his car and came after them, running his car into

Mr. Walker’s right side and knocking Mr. Walker against a tree.

Defendant retrieved his money from Mr. Walker, then hit a picket

fence before leaving the scene in his car.

    Officer        Victor   Denoble,       of    the   Smithfield     Police

Department, responded to a call and arrived at the scene around

12:25 a.m. where he discovered fencing, wooden posts and debris

in the roadway.       Mr. Walker was lying down on the side of the

road covered in blood, and Mr. Watson was waiving at Officer

Denoble to stop.       Mr. Watson, while pointing down the street,

said, “He’s down there, he’s down there[.]”            Officer Denoble saw

Defendant’s vehicle getting ready to make a left hand turn and

initiated a stop on the vehicle.           Upon approaching the vehicle,

Office Denoble saw blood on the side of Defendant’s car door and

on Defendant’s shirt.       He placed Defendant in handcuffs.           Upon

further inspection of the area, Officer Denoble found a piece of

the same type of fencing he observed in the roadway stuck in the

left side wheel well of Defendant’s car, a green razor blade

knife   on   the   floorboard   of   the   car   underneath   the   steering
                                -4-
wheel, and a fifty dollar bill covered in blood 10 to 15 feet

from Defendant’s car.     Officer Denoble arrested Defendant and

took him to the Smithfield Police Department.

       Other officers arrived at the crime scene and observed that

someone had backed into a picket fence in someone’s yard as

there were pieces of vehicle metal molding and a reflector on

the back side of the damaged fence.     They also observed damage

to Defendant’s car, as it appeared it was missing the piece of

molding and reflector which matched the fender collected at the

crime scene.

       As a result of this altercation, Mr. Walker was treated for

lacerations to his left jaw, left forearm, stomach, and back and

was given intravenous fluids due to a risk of going into shock

from the loss of blood.     Likewise, Mr. Watson was treated for

lacerations to his side, back, and neck.    The laceration on his

neck was deep and wide and close to the jugular vein and carotid

artery.

       Defendant testified at trial that he acted in self-defense

as he feared that Mr. Watson and Mr. Walker were going to rob

him.    Defendant also testified that after he cut both victims,

one of them told him to wait while he gave him his money back.

Defendant waited in his car and one of the victims went into a
                                           -5-
house and returned with Defendant’s $50 and gave it to him,

while he was bleeding.               However, Defendant admitted that he

never saw either Mr. Walker or Mr. Watson with a weapon before

he cut them and that he was taller and younger than either of

them.     Defendant also testified that he did not remember hitting

the fence because it was “foggy” and “messy” outside, and he was

“terrified trying to get away from [that] place.”

     On    27   June   2013,   a     jury    found      Defendant      guilty      of   two

counts    of    assault     with    a     deadly    weapon      inflicting         serious

injury.         Defendant    pled       guilty     to     the   charge        of    felony

possession of cocaine and of attaining the status of an habitual

felon, while reserving the right to appeal his convictions for

assault with a deadly weapon inflicting serious injury.                                 The

trial court consolidated Defendant’s convictions and sentenced

him based on his habitual felony status to a term of 88 to 118

months of imprisonment.            Defendant gave oral notice of appeal.

     ________________________________________________________

     In his only argument on appeal, Defendant, citing State v.

Thompson,      328   N.C.   477,    402    S.E.2d       386   (1991)    and    State    v.

Holland, 161 N.C. App. 326, 588 S.E.2d 32 (2003), contends that

the trial court erred in instructing the jury on flight because

there was no evidence showing that his departure from the crime
                                          -6-
scene “was carried out with a consciousness of guilt and in an

effort to avoid apprehension or prosecution” because he was not

speeding or driving erratically to elude police and did not

dispose of the razor blade knife or attempt to destroy evidence.

Defendant contends that the evidence shows that he merely left

the scene of the fight because he was “terrified”, which is

insufficient to support an instruction on flight.                         Defendant

concludes that this instruction regarding flight was prejudicial

to   his      self-defense    argument      at   trial     and   therefore   he    is

entitled to a new trial.

         As a general rule, a defendant’s flight is admissible as

evidence of guilt, State v. Self, 280 N.C. 665, 672, 187 S.E.2d

93, 97 (1972), but does not create a presumption of guilt but

may be considered with other factors “in deciding whether the

circumstances       amount    to   an     admission   of    guilt   or   reflect   a

consciousness of guilt.”             State v. Rainey, 198 N.C. App. 427,

439, 680 S.E.2d 760, 770 (citation and quotation marks omitted),

appeal dismissed and          disc. review denied, 363 N.C. 661, 686

S.E.2d 903 (2009).           “A flight instruction is proper so long as

there is some evidence in the record reasonably supporting the

theory that defendant fled after commission of the crime charged

.    .    .   .    The   fact      that    there   may     be    other   reasonable
                                         -7-
explanations        for    defendant’s    conduct      does       not   render    the

instruction improper.”          State v. Norwood, 344 N.C. 511, 534, 476

S.E.2d 349, 359 (1996) (citation and quotation marks omitted),

cert. denied, 520 U.S. 1158, 137 L. Ed. 2d 500 (1997).                      However,

“[m]ere evidence that defendant left the scene of the crime is

not enough to support an instruction on flight[;] [t]here] must

also    be   some    evidence    that    defendant         took   steps    to    avoid

apprehension.”       State v. Blakeney, 352 N.C. 287, 314, 531 S.E.2d

799, 819 (2000).          Also, “[e]vidence that the defendant hurriedly

left the crime scene without rendering assistance to the . . .

victim may warrant an instruction on flight.”                     State v. Taylor,

362 N.C. 514, 540, 669 S.E.2d 239, 262 (2008).                    When a defendant

challenges a jury instruction, in making our determination we

consider the evidence presented in the light most favorable to

the    State.       Norwood,    344   N.C.     at   535,    476   S.E.2d    at   360.

“[Arguments] challenging the trial court’s decisions regarding

jury instructions are reviewed de novo by this Court.”                     State v.

Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009).

“Where jury instructions are given without supporting evidence,

a new trial is required.”             State v. Porter, 340 N.C. 320, 331,

457 S.E.2d 716, 721 (1995) (citation omitted).
                                      -8-
       Over    Defendant’s     objection,      the    trial   court   gave    the

following jury instruction as to flight:

              Evidence of flight may be considered by you
              together    with   all   other   facts   and
              circumstances in this case in determining
              whether the combined circumstances amount to
              an admission or show a consciousness of
              guilt.   However, proof of this circumstance
              is not sufficient in itself to establish
              Defendant’s guilt.

This   instruction    was     justified   as    the   State   presented      “some

evidence . . . reasonably supporting” the theory that Defendant

quickly fled the crime scene.          See Norwood, 344 N.C. at 534, 476

S.E.2d at 359.        Evidence was presented that as he was leaving

Defendant backed his car into a picket fence in someone’s yard

with enough force to destroy part of it and leave it strewn in

the roadway, along with part his car’s fender at the scene.

Officer Denoble observed Defendant leaving the scene and after

he stopped him, noticed part of the fence lodged in his wheel

fender.       Also,   there    was   evidence    presented     that   Defendant

attempted to dispose of evidence, namely the bloody $50 bill

that was found by police 10-15 feet outside Defendant’s car

after he was stopped by police, showing some “consciousness of

guilt[,]” see Rainey, 198 N.C. App. at 439, 680 S.E.2d at 770,

and that he was taking steps to “avoid apprehension[.]”                       See

Blakeney, 352 N.C. at 314, 531 S.E.2d at 819.                  Further, there
                                       -9-
was evidence which showed          that he      “hurriedly left the crime

scene without rendering assistance” to Mr. Watson and Mr. Walker

after he cut them multiple times with a razor blade knife and

struck Mr. Walker with his car.              See Taylor, 362 N.C. at 540,

699 S.E.2d at 262.          Considering this evidence in the light most

favorable    to    the   State,   we   hold     that      this    was    sufficient

evidence to establish that Defendant did more than just leave

the    scene.      Furthermore,     the      trial    court      instructed      that

evidence of flight was “not sufficient in itself to establish

Defendant’s       guilt.”       Accordingly,         we   find     no    merit     in

Defendant’s arguments.

       We find the cases cited by Defendant in support of his

argument distinguishable from the facts before us.                      In State v.

Thompson, 328 N.C. 477, 402 S.E.2d 386 (1991), the trial court

denied     the    defendant’s      request      for       a   jury      instruction

“caution[ing] the jury that it could not consider flight as

evidence of premeditation and deliberation in order to convict

him of murder in the first degree.”              Id. at 489, 402 S.E.2d at

392.     Our Supreme Court, in agreeing with the trial court, noted

that evidence was presented that the defendant left the scene of

the stabbings, drove towards Fort Bragg where he was stationed,

mistakenly turned and drove down a road leading to an off-limits
                                             -10-
area, and, upon seeing military police, starting driving away.

Id. at 490, 402 S.E.2d at 392-93.                       The Court held that “[t]his

evidence    alone     is       not    enough       to    warrant      an     instruction         on

flight.”    Id. at 490, 402 S.E.2d at 393.

    In     State     v.       Holland,      161    N.C.    App.    326,          588   S.E.2d    32

(2003), we held that an instruction on flight was inappropriate

where there was no evidence showing that the defendant tried to

avoid apprehension as the “defendant left the crime scene with

his accomplices and drove to the home of one of the accomplices.

Following     this,           defendant      was        driven     to        a     girlfriend’s

residence.”         Id.       at     330,    588    S.E.2d       at     36       (holding     that

“[v]isiting a friend at their residence is not an act that, by

itself,     raises        a    reasonable          inference       that          defendant      was

attempting    to     avoid         apprehension”).           In       the        present     case,

however, unlike Thompson and Holland, there was evidence that

Defendant did more than merely drive away from the scene to go

to another destination, as described above.

    Accordingly,              we   find     no     error     in       the        trial   court’s

instruction to the jury.

    NO ERROR

Chief Judge MARTIN and Judge STEELMAN concur.

Report per Rule 30(e).
