State v. Steen

• Court: Supreme Court of North Carolina
• Decided: December 18, 2020
• Docket: 141A19
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

No. 141A19

Filed 18 December 2020

STATE OF NORTH CAROLINA

v. JEFF DAVID STEEN

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, 264 N.C. App. 566, 826 S.E.2d 478 (2019), finding no error in

judgments entered on 1 February 2017 by Judge Nathaniel J. Poovey in Superior

Court, Rowan County, based upon defendant’s convictions for first-degree murder,

robbery with a dangerous weapon, and attempted first-degree murder. On 11 June

2019, the Supreme Court allowed defendant’s petition for discretionary review as to

additional issues. Heard in the Supreme Court on 4 November 2019.

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

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

ERVIN, Justice.

The issues before us in this case arise from defendant’s conviction for the first-

degree murder of his grandfather on the basis of the felony-murder rule using the

attempted murder of his mother with a deadly weapon as the predicate felony. After

the conclusion of all of the evidence and the arguments of counsel, the trial court STATE V. STEEN

Opinion of the Court

instructed the jury that it could find defendant guilty of the first-degree murder of

his grandfather in the event that it found beyond a reasonable doubt that he killed

his grandfather as part of a “continuous transaction” during which he also attempted

to murder his mother using either his hands and arms or a garden hoe as a deadly

weapon. On appeal, we have been asked to resolve the questions of whether an

adult’s hands and arms can ever qualify as a deadly weapon for purposes of the felony-

murder provisions of N.C.G.S. § 14-17(a) (providing that a defendant can be guilty of

first-degree murder on the basis of the felony-murder rule using any “other felony

committed or attempted with the use of a deadly weapon” as the predicate felony) and

whether the trial court’s erroneous jury instruction that the jury could find that

defendant attempted to murder his mother using a garden hoe as a deadly weapon

prejudiced defendant’s chances for a more favorable outcome at trial. See N.C.G.S. §

14-17(a) (2019). After careful consideration of the record in light of the applicable

law, we affirm the decision of the Court of Appeals, in part; reverse the Court of

Appeals’ decision, in part; and remand this case to the Superior Court, Rowan

County, for a new trial with respect to the issue of defendant’s guilt of the murder of

his grandfather.

I. Factual Background

A. Substantive Facts

On the evening of 5 November 2013, defendant repaired a ceiling fan at the

home of his mother, Sandra Steen, and his grandfather, J.D. Furr. After working on

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the fan, defendant’s mother handed defendant the bill for a loan that she had secured

on his behalf; in response, defendant stated that he would “take care of it.” Defendant

had a history of borrowing money from his mother and grandfather, both of whom

had recently told defendant that they would not lend him any more money. As of 5

November 2013, defendant owed his mother between $4,000 and $6,000, owed his

grandfather approximately $500, and had a checking account balance of only $3.64.

As his mother went outside to retrieve certain items from her automobile,

defendant, who had followed behind her, told her he was leaving to go to work. After

defendant announced his intention to depart, defendant’s mother walked to a storage

shed behind the house, where she remained for approximately five to ten minutes.

At trial, defendant’s mother testified that she had no memory of hearing defendant

enter his own vehicle or hearing the vehicle leave the premises. While she was in the

shed, defendant’s mother thought that she heard raised voices. As a result,

defendant’s mother left the shed for the purpose of checking on her father.

As defendant’s mother walked toward the house, she felt someone grab her

around her neck with his or her right arm. During her trial testimony, defendant’s

mother stated that the arm in question felt like defendant’s arm and that she had

initially assumed that defendant was playing a trick upon her. However, as the grip

around her neck tightened, defendant’s mother thought, “[n]o[, t]his is somebody

trying to kill me.” As defendant’s mother fought back, “trying to punch or grab

whatever [she] could,” her attacker placed his or her left hand over her nose and

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mouth, at which point everything went black. The next thing that defendant’s mother

remembered, according to her trial testimony, was that someone was opening her

eyelid as she lay on the ground and that she saw defendant’s face. At that point,

defendant’s mother believed that defendant was there for the purpose of helping her.

A number of neighbors testified that they did not see any unfamiliar persons

or vehicles in the area that night. After working an 11:00 p.m. to 7:00 a.m. shift,

defendant returned to the family home on the following morning. Upon his arrival,

defendant approached his mother, whom he realized had been attacked. As a result,

defendant called for emergency assistance and laid on the ground with her until

paramedics arrived.

At the time that defendant’s mother was discovered on the ground, she was

suffering from hypothermia and extensive injuries. After being taken to the hospital,

defendant’s mother was diagnosed with a skull fracture, hemorrhaging of the brain,

a mild traumatic brain injury, hypothermia, a cervical neck injury, a collapsed lung,

multiple rib fractures, and facial trauma.

According to the paramedics who responded to defendant’s call for emergency

assistance, defendant’s grandfather was dead at the time that they arrived. The

paramedics found defendant’s grandfather in a face down position near the back door,

covered in blood and with a large pool of blood around his head. A garden hoe covered

in defendant’s grandfather’s blood was recovered next to his body. According to the

medical examiner, defendant’s grandfather died as the result of blunt force injuries

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to his head and neck that could have been inflicted using the garden hoe. Defendant’s

grandfather’s wallet, which had blood on it, was found near his body and did not

contain the money that was usually kept there. Nothing else appeared to be missing

from the property.

Although defendant denied any involvement in the assault upon his mother

and the murder of his grandfather both in statements that he made to investigating

officers and during his trial testimony, the officers who responded to the scene noticed

the presence of scratches upon defendant’s arm. Initially, defendant claimed that his

mother had scratched him as he lay on the ground beside her while they waited for

the paramedics to arrive. As the investigation continued, however, defendant gave

ten different explanations concerning the manner in which he had obtained the

scratches that had been observed by the investigating officers. Among other things,

defendant, at different times, attributed these scratches to his cat, to an injury that

he had sustained at work, and to the performance of chores.

The DNA evidence developed from items found at the scene did not connect

defendant to the crime. More specifically, the record reflects that defendant’s DNA

was not found on his grandfather’s wallet, in scrapings taken from under his mother’s

fingernails, or on the garden hoe.

On the day following the assault and murder, while she was still hospitalized,

heavily medicated, and just beginning to recover from her traumatic brain injury,

defendant’s mother spoke with investigating officers. At that time, defendant’s

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mother told the investigating officers that defendant had left the farm before she was

attacked, that the perpetrator “couldn’t be [defendant]” because he was taller than

her assailant, and that she had been assaulted by someone wearing a ski mask. On

the following day, defendant’s mother told investigating officers that, “if you’re

thinking about [defendant as a suspect], then you’re barking up the wrong tree,” since

she did not believe that defendant was capable of committing the assault that had

occurred.

After talking with a traumatic brain injury counselor, however, defendant’s

mother came to the conclusion that defendant had attacked her and testified at trial

that that was “when [she] was able to put into place that was [defendant]’s arm

coming around [her] neck, that was [defendant] choking [her], and then it was

[defendant] knocking [her] out. And then when [her] left eyelid was raised up, that

was [defendant]’s face in front of [her].” In addition, defendant’s mother told the jury

that “[t]here was no [ski] mask” and that she “had been dreaming all kind of crazy

dreams laying up there in ICU.” Defendant’s mother explained during her trial

testimony that she had not initially wanted to believe that her son was capable of

attacking her and that she had had difficulty remembering specific details about the

assault as a result of the brain injury that she had sustained.

B. Procedural History

On 9 December 2013, a Rowan County grand jury returned bills of indictment

charging defendant with the first-degree murder of his grandfather, the attempted

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first-degree murder of his mother, and robbing his grandfather with a dangerous

weapon. The charges against defendant came on for trial before the trial court and a

jury at the 9 January 2017 criminal session of the Superior Court, Rowan County.

At the jury instruction conference, the State requested the trial court to

instruct the jury concerning four separate theories on the basis of which defendant

could be convicted of first-degree murder: (1) malice, premeditation, and deliberation;

(2) felony-murder based upon the predicate felony of robbery with a dangerous

weapon; (3) felony-murder based upon the predicate felony of the attempted first-

degree murder of defendant’s mother; and (4) lying in wait. In support of this request

for the delivery of the third of these instructions, the State relied upon the

“continuous transaction” doctrine, under which “the [predicate] felony, in this case,

which would be attempted first-degree murder occurs before, during, or soon after the

murder victim’s death as long as that felony, which is the attempted first-degree

murder of [defendant’s mother], form[s] one continuous transaction” with the actual

killing. In objecting to the delivery of the State’s requested instructions, defendant’s

trial counsel argued that the record evidence did not suffice to support defendant’s

conviction on the basis of either the felony-murder rule or lying in wait. After

recognizing that the attempted murder of defendant’s mother had to have been

committed using a deadly weapon in order for it to qualify as a predicate felony for

purposes of N.C.G.S. § 14-17(a), the State asserted that this “deadly weapon”

requirement had been satisfied in this case given that “defendant’s use of his hands,

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possibly feet based on the injuries that [defendant’s mother] sustained, and possibly

also the use of the garden tool or some other object where she believed she was hit in

the back of the head with something hard would constitute a deadly weapon.” In

response, defendant’s trial counsel argued that the record did not contain sufficient

evidence to support a jury finding that the garden hoe had been used in connection

with the attack upon defendant’s mother in light of the fact that, even though the

blood of defendant’s grandfather had been found on the garden hoe, that object bore

no trace of defendant’s mother’s DNA. In addition, defendant’s trial counsel argued

that the record did not contain sufficient evidence to support a determination that

defendant’s hands and arms had been used as a deadly weapon against defendant’s

mother. During closing arguments, the State asserted that “[w]e know the garden

tool is what killed [defendant’s grandfather],” but did not mention the possible use of

the garden hoe in the attempted murder of defendant’s mother.

During its instructions to the jury, the trial court allowed that body to consider

all four of the theories of defendant’s guilt of first-degree murder that the State had

mentioned during the jury instruction conference. In instructing the jury with

respect to the issue of defendant’s guilt of first-degree murder on the basis of the

felony-murder rule using the attempted murder of defendant’s mother as the

predicate felony, the trial court stated, in pertinent part, that

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:

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First, that the defendant committed the offense of attempted first-degree murder. . . .

Second, that while committing attempted first- degree murder against [his mother], the defendant killed [his grandfather] with a deadly weapon such that it would constitute one continuous transaction.

Third, that the defendant’s act was a proximate cause of [his grandfather’s] death. . . .

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.

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.

On 1 February 2017, the jury returned verdicts finding defendant guilty of (1)

robbery with a dangerous weapon, (2) the attempted first-degree murder of his

mother, and (3) the first-degree murder of his grandfather on the basis of the felony-

murder rule using the attempted first-degree murder of his mother as the predicate

felony. On the other hand, the jury declined to find defendant guilty of the first-

degree murder of his grandfather on the basis of (1) malice, premeditation, and

deliberation; (2) the felony-murder rule using robbery with a dangerous weapon as

the predicate felony; and (3) lying in wait. After accepting the jury’s verdicts and

arresting judgment in the case in which defendant had been convicted of the

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attempted murder of his mother, the trial court entered judgments sentencing

defendant to a term of life imprisonment without the possibility of parole based upon

his conviction for first-degree murder and to a consecutive term of 64 to 89 months

imprisonment based upon his conviction for robbery with a dangerous weapon.

Defendant noted an appeal from the trial court’s judgments to the Court of Appeals.

C. Court of Appeals’ Decision

In seeking relief from the trial court’s judgments before the Court of Appeals,

defendant argued that the trial court had committed prejudicial error by (1)

instructing the jury that it could convict defendant of first-degree murder on the basis

of the felony-murder rule using the attempted murder of his mother as the predicate

felony on the grounds that the record did not contain sufficient evidence to permit the

jury to find that defendant had used a garden hoe in the course of attempting to

murder his mother; (2) instructing the jury that it could convict defendant of first-

degree murder on the basis of the felony-murder rule using the attempted murder of

his mother as the predicate felony on the grounds that hands and arms did not

constitute a deadly weapon for purposes of N.C.G.S. § 14-17; and (3) excluding expert

testimony concerning a medical condition that might have affected the credibility of

defendant’s mother’s testimony that defendant had been her assailant.1 In rejecting

the second of defendant’s challenges to the trial court’s judgments, the Court of

1 As a result of the fact that the third of defendant’s three challenges to the trial court’s

judgments was unanimously rejected by the Court of Appeals and is not before this Court, we will refrain from discussing it in any detail in this opinion. -10- STATE V. STEEN

Appeals held that the trial court did not err by instructing the jury that defendant’s

hands and arms could constitute a deadly weapon for purposes of N.C.G.S. § 14-17(a).

In reaching this conclusion, the Court of Appeals pointed out that it had “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,’ ” citing, among other decisions, State v. Allen, 193

N.C. App. 375, 378, 667 S.E.2d 295, 298 (2008), and that this Court had “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,” see State v. Pierce, 346 N.C. 471, 488, S.E.2d 576, 589 (1997) (stating 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”). State v.

Steen, 264 N.C. App. 566, 579, 826 S.E.2d 478, 487 (2019). The Court of Appeals

further concluded that, given the differences between defendant’s size and strength

and that of his mother, a reasonable jury could have found that defendant used his

hands and arms as deadly weapons in attempting to murder her.2 In reaching this

result, the Court of Appeals “decline[d] [d]efendant’s invitation to extend the holding

of [this Court in State v. Hinton, 361 N.C. 207, 639 S.E.2d 437 (2007),] beyond the

2 According to the Court of Appeals, “[d]efendant was 40 years old and [his mother]

was 62 years old” at the time of the attack. In addition, the Court of Appeals noted that defendant “was 5 feet, 11 inches tall and weighed 210 pounds while [defendant’s mother] was 5 feet, four inches tall and weighed 145 pounds.” State v. Steen, 264 N.C. App. 566, 579, 826 S.E.2d 478, 487 (2019). -11- STATE V. STEEN

parameters of the particular context in which it was decided,” finding no evidence of

any legislative intent to limit the type of weapons that would qualify as deadly

weapons for purposes of N.C.G.S. § 14-17(a). Steen, 264 N.C. App. at 580, 826 S.E.2d

at 487.

In addressing the first of defendant’s challenges to the trial court’s judgments,

the Court of Appeals began by noting that, “although the evidence plainly established

that the garden hoe was used to murder [defendant’s grandfather], no evidence was

presented specifically linking the garden hoe to” the attack upon defendant’s mother,

so that “evidence was presented in support of only one of the deadly weapon theories

instructed on by the trial court — that is, the theory that [d]efendant attempted to

murder Sandra with his hands and arms.” Id. at 582, 826 S.E.2d at 489. On the

other hand, acting in reliance upon this Court’s decision in State v. Malachi, 371 N.C.

719, 821 S.E.2d 407 (2018), the Court of Appeals held that, even if “the reference to

the garden hoe was unsupported by the evidence,” “any error resulting from this

instruction was harmless” given that the State “present[ed] 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,” quoting Malachi, 371 N.C. at 738, 821 S.E.2d at 421, with this evidence

including defendant’s mother’s identification of defendant as her attacker, her

extensive injuries, and the jury’s “full and fair opportunity to evaluate the reliability

of [defendant’s mother’s] testimony.” Steen, 264 N.C. App. at 582, 826 S.E.2d at 488–

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89. As a result of its inability to “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

[defendant’s mother]’s identification of [d]efendant and, therefore, its verdict,” the

Court of Appeals found that defendant was not prejudiced by the trial court’s

erroneous reference to the use of a garden hoe in its instructions concerning the

extent to which the jury was allowed to find that defendant had attempted to murder

his mother using a deadly weapon. Id. at 583, 826 S.E.2d at 489.

In a separate, concurring opinion, Judge Berger opined that “the instruction

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

produced at trial and was not, for that reason, erroneous. Steen, 264 N.C. App. at

583, 826 S.E.2d at 489 (Berger, J., concurring). In Judge Berger’s view, the fact that

the record contained evidence tending to show that the blows inflicted upon

defendant’s mother had caused her to suffer a skull fracture and a loss of

consciousness meant that the jury could “reasonably infer that [defendant’s mother’s]

injuries were inflicted with a blunt force object” such as the garden hoe. Id. at 584,

826 S.E.2d at 490.

In a separate opinion in which he concurred with the Court of Appeals’

decision, in part, and dissented from the Court of Appeals’ decision, in part, Judge

Hunter expressed the opinion that the trial court’s erroneous decision to instruct the

jury that it could find that defendant attempted to murder his mother with a deadly

weapon on the basis of his alleged use of the garden hoe constituted prejudicial error.

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Id. (Hunter, J., concurring, in part, and dissenting, in part). Arguing in reliance

upon our decision in Malachi, 371 N.C. at 738, 821 S.E.2d at 421, Judge Hunter noted

that reviewing courts are more likely to find an error such as the one at issue here to

be harmless in the event that the State presents “strong evidence of [defendant’s]

guilt” while stating that the State’s evidence was “far from conclusive as to

[d]efendant’s guilt.” Id. at 584–85, 826 S.E.2d at 490. Among other things, Judge

Hunter concluded that defendant’s mother’s credibility was subject to serious

question given that she had provided “widely conflicting” statements concerning the

circumstances surrounding the attack that had been made upon her during the course

of the investigation. Id. In addition, Judge Hunter opined that the testimony of

defendant’s mother identifying defendant as the perpetrator of the assault that had

been committed upon her was of substantial importance to the State’s case given the

absence of any DNA evidence linking defendant to the attempted murder of his

mother and the murder of his grandfather. Id. at 585, 826 S.E.2d at 490. As a result,

Judge Hunter believed that defendant was entitled to a new trial with respect to the

murder charge. Id.

Defendant noted an appeal to this Court based upon Judge Hunter’s dissent.

On 11 June 2020, we allowed defendant’s petition seeking discretionary review with

respect to the additional issue of whether the trial court erred by allowing the jury to

treat hands and arms as a deadly weapon for purposes of N.C.G.S. § 14-17.

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II. Substantive Legal Analysis

A. Hands and Arms as a Deadly Weapon

In seeking to persuade this Court to overturn the Court of Appeals’ decision

that hands and arms can be a deadly weapon for purposes of N.C.G.S. § 14-17(a),

defendant asserts that “[a]llowing hands and arms to be a deadly weapon under

N.C.G.S. § 14-17(a) vastly and improperly expands the circumstances which could

support a conviction for felony-murder” under North Carolina law. In support of this

argument, defendant points out that “not all crimes can be aggravated based on the

alleged use of hands and/or arms as a deadly weapon,” citing Hinton, 361 N.C. at

211–12, 639 S.E.2d at 440 (reasoning that “the General Assembly intended to require

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

conviction under the [robbery with a dangerous weapon] statute is proper”). As a

result, defendant argues that, given the General Assembly’s decision in 1977 to

amend N.C.G.S. § 14-17(a) for the purpose of limiting the reach of the felony-murder

rule so that it only encompassed certain enumerated felonies and other felonies

perpetrated with the “use of a deadly weapon,” the legislative intent would be

“thwarted by not requiring an external dangerous weapon” as a prerequisite for a

conviction under the “catch-all” provision of the statute. In addition, defendant

contends that hands and arms are inherently different than an external deadly

weapon on the theory that a perpetrator would not receive the same “boost of

confidence” from the use of his own appendages that he would receive by carrying a

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firearm or some other external weapon. Finally, defendant argues that our prior

decision in Pierce should either be overruled or limited to cases in which felonious

child abuse serves as the predicate felony for purposes of the felony-murder rule.

In seeking to persuade us to uphold the Court of Appeals’ decision with respect

to the issue of whether hands and arms can serve as deadly weapons for purpose of

the statutory version of the felony-murder rule embodied in N.C.G.S. § 14-17(a), the

State begins by noting North Carolina’s lengthy history of leaving the issue of

whether a particular weapon qualifies as “deadly” for the jury’s consideration. See

State v. Joyner, 295 N.C. 55, 64–65, 243 S.E.2d 367, 373 (1978) (holding that an

instrument’s “allegedly deadly character” is a question “of fact to be determined by

the jury”). In addition, the State cites decisions, such as State v. Brunson, 180 N.C.

App. 188, 636 S.E.2d 202 (2006), aff’d per curiam, 362 N.C. 81, 653 S.E.2d 144 (2007),

for the proposition that this Court has long “recognized that under certain

circumstances, hands and other body parts may be deadly weapons for purposes of

proving the deadly weapon element of assault offenses perpetrated with a deadly

weapon.” The State argues that this Court should reject defendant’s invitation to

overrule Pierce on the grounds that it “is now well-established [law] in our appellate

courts’ jurisprudence,” citing four subsequent cases that rely, in part, upon the

reasoning utilized in Pierce. See, e.g., State v. Jones, 353 N.C. 159, 168, 538 S.E.2d

917, 925 (2000). In the State’s view, this Court’s holding in Pierce is not limited to

cases in which the predicate felony for felony-murder is child abuse; instead, the State

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contends that the logic of Pierce is applicable in any case in which the weapon “is

something not inherently deadly,” in which event the issue of whether a particular

item constitutes a deadly weapon is a question for the jury “based upon the manner

of usage and a victim’s characteristics—age, size, etc.—relative to the defendant’s.”

See State v. Lang, 309 N.C. 512, 525–26, 308 S.E.2d 317, 324 (1983) (holding that the

trial court did not err by instructing the jury that it could find the defendant’s hands

or feet to be deadly weapons in a case in which two adult males kicked an adult female

victim with their feet, hit her with their hands and a bat, and cut her with a knife).

The proper resolution of the issue of whether the term “deadly weapon” as

contained in N.C.G.S. § 14-17(a) includes an adult defendant’s hands, arms, fists, or

feet when used against another adult requires us to decide an issue of statutory

construction. In attempting to ascertain the meaning of a particular statutory

provision, “we look first to the language of the statute itself.” Walker v. Bd. of Trs. of

N.C. Loc. Gov’tal Emps. Ret. Sys., 348 N.C. 63, 65, 499 S.E.2d 429, 430 (1998) (quoting

Hieb v. Lowery, 344 N.C. 403, 409, 474 S.E.2d 323, 327 (1996)). In the event that the

relevant statutory language is unambiguous, the statute should be interpreted in

accordance with its plain meaning. See Lemons v. Old Hickory Council, Boy Scouts

of Am., Inc., 322 N.C. 271, 276, 367 S.E.2d 655, 658 (1988). On the other hand, in the

event that the relevant statutory language is ambiguous, “judicial construction must

be used to ascertain the legislative will,” which must be carried out “to the fullest

extent.” Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134,

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136–37 (1990). “As with any other statute, the legislative intent controls the

interpretation of a criminal statute.” State v. Jones, 358 N.C. 473, 478, 598 S.E.2d

125, 128 (2004).

“[W]hen the General Assembly fail[s] to intervene in light of a long-standing

judicial practice,” the principle of legislative acquiescence becomes relevant. Id. at

483, 598 S.E.2d at 131 (finding that, had the General Assembly wished to change the

crime of possession of cocaine from a felony to a misdemeanor, “it could have

addressed the matter during the course of these many years” and that, in light of its

failure to do so, “it is clear that the legislature has acquiesced in the practice of

classifying the offense of possession of cocaine as a felony”). Although legislative

inaction should not, standing alone, be treated as dispositive, “[t]he failure of a

legislature to amend a statute which has been interpreted by a court is some evidence

that the legislature approves of the court’s interpretation.” Young v. Woodall, 343

N.C. 459, 462–63, 471 S.E.2d 357, 359 (1996).

This Court and the Court of Appeals have a lengthy history of using the

doctrine of legislative acquiescence in interpreting criminal statutes. In State v.

Gardner, for example, this Court held that the crimes of breaking or entering and

felonious larceny were separate offenses in light of the fact that the appellate courts

in North Carolina had long treated them as distinct, 315 N.C. 444, 462, 340 S.E.2d

701, 713 (1986), on the theory that, if “punishment of both crimes in a single trial

[had] not been intended by our legislature, it could have addressed the matter during

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the course of these many years,” id. at 462–63, 340 S.E.2d at 713. The same logic

supports the conclusion that hands, arms, feet, and other appendages can be deadly

weapons for purposes of the statutory felony-murder rule embodied in N.C.G.S. § 14-

17(a).

As a general proposition, a “deadly weapon” as that term is used in North

Carolina jurisprudence is one that is “likely to produce death or great bodily harm

under the circumstances of its use,” with the issue of whether a particular weapon is

or is not deadly being “one of fact to be determined by the jury” in the event that it

“may or may not be likely to produce [death], according to the manner of its use, or

the part of the body at which the blow is aimed.” Joyner, 295 N.C. at 64–65, 243

S.E.2d at 373 (citations omitted). A defendant’s hands, arms, feet, or other

appendages may well, under certain circumstances, be “likely to produce death or

great bodily harm,” as this Court and the Court of Appeals have held in a number of

different contexts.3

In Pierce, for example, this Court upheld a defendant’s conviction for first-

degree murder on the basis of the felony-murder rule using felonious child abuse as

3 As we understand defendant’s brief, he has not contended before this Court that, in

the event that hands, arms, legs, and other appendages can ever serve as a deadly weapon for purposes of the statutory felony-murder rule set out in N.C.G.S. § 14-17(a), the evidence fails to support a finding that his hands and arms were deadly weapons in light of the manner in which they were used during his alleged attempt to murder his mother. For that reason, the only issue before us at this time is the extent to which, in the abstract, hands and arms can constitute a deadly weapon for purposes of North Carolina’s current version of the felony- murder rule rather that whether the evidence supported a finding that his hands and arms as used at the time of his alleged assault upon his mother were deadly weapons as a matter of fact. -19- STATE V. STEEN

the predicate felony in a case in which the defendant caused a child’s death by

shaking her with his hands. 346 N.C. at 493, 488 S.E.2d at 589 (stating 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”). Similarly, the Court

of Appeals has held, in the felony-murder context, that a defendant’s hands, arms,

feet, and other appendages can be a deadly weapon, with the issue of whether the

weapon in question was or was not actually deadly being a question of fact for the

jury. State v. Frazier, 248 N.C. App. 252, 261, 790 S.E.2d 312, 319 (2016) (holding

that the trial court did not err by allowing the jury to determine whether the “killing

took place while the accused was perpetrating or attempting to perpetrate felonious

child abuse with the use of a deadly weapon,” which, in that instance, was his hands);

State v. Krider, 145 N.C. App. 711, 712, 550 S.E.2d 861, 862 (2001) (upholding a

defendant’s conviction for first-degree murder based upon the felony-murder rule in

a case in which the defendant caused the death of a child in the course of “committing

felonious child abuse with the use of her hands as a deadly weapon”).

In the same vein, the Court of Appeals has repeatedly held, unlike appellate

courts in other states, that a defendant’s hands and feet can be deadly weapons

sufficient to support a defendant’s conviction for assault with a deadly weapon in

violation of N.C.G.S. § 14-32. See Allen, 193 N.C. App. at 378, 667 S.E.2d at 298

(2008) (holding that a defendant’s “hands may be considered deadly weapons . . .

depending upon the manner in which they were used and the relative size and

-20- STATE V. STEEN

condition of the parties”); State v. Harris, 189 N.C. App. 49, 59–60, 657 S.E.2d 701,

708–709 (2008) (holding that the issue of whether “an assailant’s hands and feet are

used as deadly weapons is a question of fact to be determined by the jury”); State v.

Rogers, 153 N.C. App. 203, 211, 569 S.E.2d 657, 663 (2002) (holding that hands and

fists “may be considered deadly weapons, given the manner in which they were used

and the relative size and condition of the parties involved”); State v. Hunt, 153 N.C.

App. 316, 319, 569 S.E.2d 709, 710–11 (2002) (holding that the jury “was properly

allowed to determine the question of whether defendant’s hands and feet constituted

deadly weapons”); State v. Grumbles, 104 N.C. App. 766, 769, 411 S.E.2d 407, 409

(1991) (describing “this [as] a case where defendant’s fists could be considered deadly

weapons”); State v. Jacobs, 61 N.C. App. 610, 611, 301 S.E.2d 429, 430 (1983) (holding

that, in a case in which a 210 pound male defendant hit a sixty-year-old female victim

with his fists, “defendant’s fists could have been a deadly weapon”). As a result, given

the virtually uninterrupted line of appellate decisions from this Court and the Court

of Appeals interpreting the reference to a “deadly weapon” in N.C.G.S. § 14-17(a) to

encompass the use of a defendant’s hands, arms, feet, or other appendages, so that

the language used in the relevant statutory provision has an established meaning in

North Carolina law, and the fact that the General Assembly has not taken any action

tending to suggest that N.C.G.S. § 14-17(a) should be interpreted in a manner that

differs from the interpretation deemed appropriate in this line of decisions, it would

be reasonable to assume that, given the use of an expression that has an established

-21- STATE V. STEEN

meaning and the fact that the General Assembly has failed “to intervene in light of

[this] long-standing judicial practice,” Jones, 358 N.C. at 483, 598 S.E.2d at 131, the

General Assembly intended for the language of the statutory felony-murder rule set

forth in N.C.G.S. § 14-17(a) to be interpreted in the manner deemed to be appropriate

by the Court of Appeals in this case.

In seeking to persuade us to reach a different result in this case, defendant

argues, among other things, that our decision in Pierce should either be overruled or,

in the alternative, that it should be limited to situations involving the abuse of small

children. In support of this argument, defendant asserts that there is a categorical

difference between child and adult victims, with the former being peculiarly

susceptible to serious injury or death as a result of the use of hands, arms, feet, or

other appendages while the latter are not. Aside from the fact that acceptance of

defendant’s argument would be inconsistent with the manner in which this Court has

defined the expression “deadly weapon” for many years, see, e.g., Joyner, 295 N.C. at

64–65, 243 S.E.2d at 373; State v. Hales, 344 N.C. 419, 426, 474 S.E.2d 328, 332

(1996); State v. Peacock, 313 N.C. 554, 563, 330 S.E.2d 190, 196 (1985), and the

absence of any basis for the making of such a distinction in either the relevant

statutory language or in the decisions, such as Pierce, allowing the jury to find that a

deadly weapon had been used in cases in which an adult defendant used his or her

hands, arms, feet, or some other appendage in the course of assaulting a smaller or

weaker adult, see Allen, 193 N.C. App. at 378, 667 S.E.2d at 298; Harris, 189 N.C.

-22- STATE V. STEEN

App. at 59–60, 657 S.E.2d at 708–09; Rogers, 153 N.C. App. at 211, 569 S.E.2d at 663;

Hunt, 153 N.C. App. at 318–19, 569 S.E.2d at 710–11; Grumbles, 104 N.C. App. at

770, 411 S.E.2d at 410; Jacobs, 61 N.C. App. at 611, 301 S.E.2d at 430, we see no

reason to overrule Pierce or to adopt the restrictive interpretation of that decision for

which defendant advocates. As a result, we decline defendant’s invitation to limit the

logic of Pierce to felony-murder cases arising from the commission of felonious child

abuse using the defendant’s hands, arms, legs, or another appendage as the necessary

deadly weapon.

Similarly, defendant argues that the logic of our decision in Hinton, 361 N.C.

at 207, 639 S.E.2d at 437, shows that the expression “deadly weapon” can mean

different things when used in different statutory provisions and that we should adopt

a felony-murder-specific interpretation of N.C.G.S. § 14-17(a) in this case. In Hinton,

we held that the reference to “any firearms or other dangerous weapon, implement

or means” as used in N.C.G.S. § 14-87(a) did not encompass the use of a defendant’s

hands, id. at 210, 639 S.E.2d at 439, with the Court having reached this result on the

grounds that N.C.G.S. § 14-87 was intended to provide a “more severe punishment

when the robbery is committed with the ‘use or threatened use of firearms or other

dangerous weapons’ ” than when the defendant committed common law robbery,

which did not involve the use of such implements. Id. at 211–12, 639 S.E.2d at 440.

We are not, however, persuaded that the logic upon which the Court relied in Hinton

has any application to this case given that we have been unable to identify anything

-23- STATE V. STEEN

in the language in or legislative intent underlying N.C.G.S. § 14-17(a) that tends to

suggest that its reference to a “deadly weapon” should be treated any differently than

the way in which that expression has normally been treated in North Carolina

criminal jurisprudence.

Finally, the construction of the relevant statutory language that we believe to

be appropriate in this case does not create a risk that every killing perpetrated with

the use of a the defendant’s hands, arm, legs, or other appendages will necessarily

come within the ambit of the statutory felony-murder rule set out in N.C.G.S. § 14-

17(a) or otherwise thwart the General Assembly’s attempt to limit the scope of the

felony-murder rule by confining the availability of the felony-murder rule to

unenumerated felonies committed with the use of a deadly weapon. On the contrary,

under the established law in North Carolina, the extent to which hands, arms, legs,

and other appendages can be deemed deadly weapons depends upon the nature and

circumstances of their use, including, but not limited to, the extent to which there is

a size and strength disparity between the perpetrator and his or her victim.

Similarly, the fact that something more than a killing with hands, arms, legs, or other

bodily appendages must be shown in order to satisfy the requirements of the felony-

murder rule set out in N.C.G.S. § 14-17(a) shows that the decision that we make in

this case will not have the effect of undoing the limitations upon the availability of

the felony-murder rule that the General Assembly intended when it enacted the

current version of the relevant statutory language, particularly given its consistency

-24- STATE V. STEEN

with the established definition of that term contained in our decisions and those of

the Court of Appeals.

As a result, given that this Court and the Court of Appeals have held that

bodily appendages such as a defendant’s hands and arms can, depending upon the

manner in which and the circumstances under which they are used, constitute deadly

weapons in applying a wide variety of statutory provisions and given that, if the

General Assembly intended to exclude hands, arms, feet, and other bodily

appendages from the definition of “deadly weapon” used for purposes of N.C.G.S. §

14-17(a), it has had ample opportunity to do so without ever having acted in that

manner, we hold that there is no reason for the statutory reference to a “deadly

weapon” contained in N.C.G.S. § 14-17(a) to have anything other than its ordinary

meaning. On the contrary, a decision excluding arms, hands, feet, and other

appendages from the definition of a “deadly weapon” for purposes of the statutory

felony-murder rule enumerated in N.C.G.S. § 14-17(a) would create unnecessary

confusion in our State’s criminal law. As a result, we affirm the Court of Appeals’

decision that the trial court did not err by instructing the jury that it could find that

defendant attempted to murder his mother with a deadly weapon based upon the use

of his hands and arms.

B. Prejudicial Effect of the Garden Hoe Instruction

In seeking to persuade us that the trial court’s instruction that the jury was

entitled to find that defendant attempted to murder his mother using a garden hoe

-25- STATE V. STEEN

as a deadly weapon constituted prejudicial error,4 defendant begins by noting that,

in order to demonstrate the prejudicial nature of the trial court’s error, he needed to

show the existence of a “reasonable possibility” that “a different result would have

been reached at the trial” in the absence of that error. Malachi, 371 N.C. at 738, 821

S.E.2d at 421. Defendant contends that he made the necessary showing of prejudice

given that defendant’s DNA had not been found on the garden hoe, on his

grandfather’s wallet, or in the scrapings taken from beneath his mother’s fingernails

and that no blood had been found in defendant’s car or on any item of his clothing.5

In addition, defendant contends that, “given the various widely conflicting pre-trial

statements that [his mother] gave—all but one of which flatly denied that [d]efendant

was her assailant—her testimony clearly raised . . . the sort of serious credibility

questions contemplated by the Supreme Court in Malachi” quoting Steen, 264 N.C.

App. at 584–85, 826 S.E.2d at 490 (Hunter, J., dissenting). In defendant’s view, the

Court of Appeals erred by determining that the identification testimony provided by

4 As an aside, we note that the issue of the correctness of the Court of Appeals’ determination that the trial court’s instruction that the jury could find that defendant attempted to murder his mother using the garden hoe lacked sufficient evidentiary support is not before us given that the State did not seek review by this Court of the Court of Appeals’ decision with respect to that issue. 5 In addition, defendant claims that an allele associated with a third party was found

in fingernail scrapings taken from his mother. However, since the undisputed record evidence tended to show that the DNA analyst who testified on behalf of the State was unable to determine whether the allele came from a third party or was simply an artifact produced by the DNA amplification process and that it would have been possible for DNA evidence derived from a paramedic or another similar individual to be found in the fingernail scrapings taken from defendant’s mother, we do not consider this aspect of defendant’s argument in our prejudice analysis. -26- STATE V. STEEN

his mother constituted “exceedingly strong evidence” of his guilt given the absence of

any physical evidence linking him to the commission of the crimes with which he had

been charged and the existence of serious concerns about the credibility of the

identification testimony provided by his mother.

The State, on the other hand, argues that the “challenged jury instruction” did

not constitute prejudicial error given that “[t]he instruction as given simply stated

two of the possible implements, used alone or in combination, the State was

contending defendant used as a deadly weapon” and that the challenged instruction

correctly asserted “that the State was contending defendant used his hands and/or

arms and or a garden hoe as a deadly weapon.” In addition, the State contends that,

even if the trial court’s reference to the garden hoe was erroneous, “the evidence at

trial overwhelming[ly] established defendant used a deadly weapon in perpetrating

the predicate felony,” so that the jury would have reached the same conclusion in the

absence of the challenged jury instruction. As support for this assertion, the State

relies upon the testimony of defendant’s mother and the evidence concerning the

extensive injuries that she sustained during the assault that was made upon her.

In addition, the State contends that the Court of Appeals correctly applied

Malachi to the facts of this case. According to the State, the application of the

traditional harmless error test that this Court deemed to be appropriate in Malachi

necessitates a conclusion that defendant had failed to show the existence of a

reasonable possibility that the jury would have reached a different result in the

-27- STATE V. STEEN

absence of the delivery of the unsupported instruction relating to the garden hoe

given that “the identity of the perpetrator was the most contested issue at trial” and,

in the face of conflicting evidence, “the jury believed [defendant’s mother] when she

identified defendant as the person who attacked her.” In addition, the State argued

that it had elicited strong evidence of defendant’s guilt at trial, with this evidence

including the fact that defendant’s mother ultimately, and reluctantly, testified

against him in spite of the fact that she had initially refused to believe that her own

son was capable of attacking her; the inconsistent explanations that defendant gave

for the scratches on his arms; and the fact that defendant had both an opportunity

and a motive for attacking his mother and his grandfather.

As a result of the fact that the State does not dispute defendant’s contention

that he properly preserved his challenge to the trial court’s instruction that the jury

could consider the use of the garden hoe in determining whether defendant attempted

to murder his mother with a deadly weapon,6 we evaluate the prejudicial effect of the

6 We are not persuaded by the State’s suggestion that the trial court’s deadly weapon

instruction simply listed possible choices for the identity of the deadly weapon that the jury had to find in order to convict defendant of the first-degree murder of his grandfather on the basis of the felony-murder rule using the attempted murder of defendant’s mother as the predicate felony. After informing the jury that it had to find that defendant attempted to murder his mother using a deadly weapon in order to find defendant guilty of the first-degree murder of his grandfather, the trial court indicated that the State contended that the deadly weapon that defendant used in attempting to murder his mother was either his own hands and arms or the garden hoe. Taken in context, we believe that the jury could have only used the trial court’s reference to the use of defendant’s hands and arms or a garden hoe as a recitation of the available bases for a finding that defendant attempted to murder his mother using a deadly weapon rather than the mere statement of a non-exclusive list of possible deadly weapons. -28- STATE V. STEEN

delivery of this instruction using our traditional harmless error standard, State v.

Lawrence, 365 N.C. 506, 512, 723 S.E.2d 326, 330 (2012), which requires “the

defendant [to] show ‘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.’ ” Id. at 513, 723 S.E.2d at 331 (quoting N.C.G.S. § 15A-1443(a) (2009)).

In conducting the required prejudice analysis, a reviewing court “should not find the

error harmless” if it is unable to conclude “that the jury verdict would have been the

same absent the error.” State v. Bunch, 363 N.C. 841, 845, 689 S.E.2d 866, 869 (2010)

(quoting Neder v. United States, 527 U.S. 1, 19, 119 S. Ct. 1827, 1838, 144 L. Ed. 2d

35 (1999)).

In Malachi, we upheld the use of traditional harmless error analysis in

evaluating the extent to which the defendant’s case was prejudiced by the delivery of

an erroneous jury instruction which allowed the jury to convict the defendant of

possession of a firearm by a felon on the basis of both actual and constructive

possession despite the fact that the record contained no evidence that the defendant

constructively possessed the firearm in question. 371 N.C. at 721-22, 731, 821 S.E.2d

at 410, 416. In holding that the trial court’s unsupported constructive-possession

instruction constituted harmless error, we stated 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

-29- STATE V. STEEN

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 738, 821 S.E.2d at 421. As a result, the prejudice analysis that we are required

to conduct in this case must focus upon the relative strength of the State’s case in

light of the strength of the countervailing evidence available to defendant, including

both any substantive evidence that defendant may have elicited and any credibility-

related weaknesses that may exist in the evidence tending to show defendant’s guilt,

with the ultimate question being whether there is a “reasonable possibility” that the

outcome at trial would have been different in the event that the trial court’s error had

not been committed.

After carefully reviewing the record, we conclude that there is a reasonable

possibility that the jury would have refrained from convicting defendant of the first-

degree murder of his grandfather on the basis of the felony-murder rule using the

attempted murder of his mother with a deadly weapon as the predicate felony in the

absence of the trial court’s erroneous instruction referring to the garden hoe as a

deadly weapon. In order to avoid reaching this conclusion, we would be required to

hold that the State’s evidence that defendant killed his grandfather as part of a

continuous transaction in which he also attempted to murder his mother using his

hands and arms as a deadly weapon was so sufficiently strong that no reasonable

possibility exists under which the jury would have done anything other than convict

-30- STATE V. STEEN

defendant of first-degree murder on the basis of that legal theory. We are unable to

make such an inference given the facts contained in the present record.

As an initial matter, we note that the evidence concerning the issue of whether

defendant was the actual perpetrator of the assault upon his mother and the killing

of his grandfather was in sharp dispute, a fact that the jury’s eventual verdict does

nothing to change. Aside from the fact that defendant consistently denied having

committed the offenses with which he had been charged in his conversations with

investigating officers, he maintained his innocence when he took the witness stand

and testified at trial. Defendant’s denials of guilt were bolstered by the fact that the

record was devoid of any physical evidence tending to support the contention that he

was the perpetrator of the crimes that he had been charged with committing. Finally,

the conflicting nature of the statements that defendant’s mother made to

investigating officers concerning her ability to identify the person who had assaulted

her provided an adequate basis for a reasonable jury to discount the credibility of the

identification that she delivered at trial. As a result, while the record does, as the

State contends, contain substantial evidence tending to show that defendant was

guilty of attempting to murder his mother and killing his grandfather, including

substantial evidence of his motive to commit the crimes in question and his

inconsistent explanations for the scratches on his arms, we are unable to say that the

State’s evidence with respect to the issue of defendant’s identity as the perpetrator of

-31- STATE V. STEEN

the murder of his grandfather was so strong that a reasonable jury could not have

reached a contrary conclusion.

Even more importantly, the evidence concerning the extent to which

defendant’s hands and arms, as used during the alleged killing of his mother,

constituted a deadly weapon was in significant dispute as well. As we noted earlier

in this opinion, the trial court did not peremptorily instruct the jury that defendant’s

hands and arms were deadly weapons per se; instead, the trial court required the jury

to make this determination based upon the nature and manner of their use and the

other relevant surrounding circumstances. Although the size and strength

differential between defendant and his mother was, as the Court of Appeals found,

sufficient to permit a determination that defendant’s hands and arms constituted a

deadly weapon for purposes of this case, the differences in size and strength between

defendant and his mother as revealed in the record evidence were not so stark as to

preclude a reasonable jury from concluding that defendant’s hands and arms were

not deadly weapons. In the same vein, the nature and extent of the injuries that were

inflicted upon the mother does not suffice to support a finding of harmlessness given

that such a determination overlooks the necessity for the State to show a disparity in

size and strength between the killer and the victim in addition to the infliction of fatal

injuries and given that a contrary determination would effectively render hands and

arms a deadly weapon in all instances in which death results as a result of their use.

In the event that the jury decided to conclude, as we believe that it reasonably could

-32- STATE V. STEEN

have, that defendant’s hands and arms were not used as a deadly weapon during his

alleged attempt to murder his mother, it would have been compelled to refrain from

finding that defendant was guilty of the first-degree murder of his grandfather on the

basis of the felony-murder rule even if it found that he was the perpetrator of that

killing. As a result, we hold that the trial court’s instruction concerning the use of

the garden hoe as a deadly weapon during defendant’s alleged attempt to murder his

mother constituted prejudicial error necessitating a new trial in the case in which

defendant was convicted of murdering his grandfather.7

III. Conclusion

Thus, for the reasons set forth above, we hold that the Court of Appeals

correctly held that the trial court did not err by instructing the jury that, in light of

the surrounding facts and circumstances, it could find that defendant’s hands and

arms constituted a deadly weapon for purposes of the felony-murder provisions of

N.C.G.S. § 14-17(a). On the other hand, we also hold that there was a reasonable

possibility that, had the trial court refrained from instructing the jury in such a

manner as to allow it to conclude that defendant attempted to murder his mother

using the garden hoe as a deadly weapon, the outcome at defendant’s trial for the

murder of his grandfather would have been different and that the Court of Appeals

7 In view of the fact that defendant has not contended that the trial court’s erroneous

instruction concerning the jury’s ability to find that defendant’s alleged use of a garden hoe in attempting to murder his mother had no bearing upon the appropriateness of defendant’s conviction for the attempted murder of his mother or the robbery of his grandfather, the trial court’s judgment in the robbery case and the jury’s verdict in the attempted murder case remain undisturbed. -33- STATE V. STEEN

erred by reaching a contrary result. As a result, the Court of Appeals’ decision is

affirmed, in part, and reversed, in part, with this case being remanded to the Court

of Appeals for further remand to the Superior Court, Rowan County, for a new trial

in the case in which defendant was convicted of murdering his grandfather.

AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED.

Justice DAVIS did not participate in the consideration or decision of this case.

-34- Justice NEWBY concurring in part and dissenting in part.

While I agree with the majority that defendant’s hands and arms constitute

deadly weapons in this case, I disagree that the instruction regarding the garden hoe

resulted in prejudicial error. At trial the State’s evidence clearly established that the

garden hoe was used to murder the grandfather, but the evidence did not specifically

link the garden hoe to the attack on Sandra, defendant’s mother. Rather, the State’s

theory was that defendant used his hands and arms in an attempt to murder his

mother. As stated by the Court of Appeals,

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.

State v. Steen, 264 N.C. App. 566, 582, 826 S.E.2d 478, 489 (2019). The evidence of

skull and rib fractures supports the theory that the attacker used a weapon, like the

garden hoe; however, there was no specific evidence linking the garden hoe to the

attack. As determined by the Court of Appeals, the evidence presented supported only

one of the deadly weapon theories the trial court instructed on—hands and arms as

deadly weapons—but that theory was amply supported by the evidence. See id. “[I]t

is unlikely that a reasonable jury would elect to convict the defendant on the basis of STATE V. STEEN

Newby, J., concurring in part and dissenting in part

an unsupported legal theory,” State v. Malachi, 371 N.C. 719, 738, 821 S.E.2d 407,

421 (2018), even though the jury instructions included both the garden hoe and hands

and arms as deadly weapons for the attempted murder charge of Sandra. As a result,

the instruction given on garden hoe, even if erroneous, did not prejudice defendant.

The real issue at trial was the identity of the perpetrator, not which weapon

caused which of the injuries. Sandra identified defendant as her attacker, and the

jury evaluated the reliability of her testimony in light of all the evidence. When the

jury found defendant guilty it found credible Sandra’s identification of defendant as

the attacker. Because the ultimate issue at trial concerned defendant’s identity as

the perpetrator, the reference to the garden hoe in the jury instructions did not

influence the jury’s decision to find Sandra’s testimony credible. Even if the garden

hoe instruction represented a different theory of the underlying crime of attempted

murder, any error resulting from it was harmless because that theory was not

supported by the evidence at trial. Defendant cannot show a reasonable possibility

that the jury would have reached a different result absent the erroneous instruction,

and his convictions should be upheld. I respectfully concur in part and dissent in part.

Justice MORGAN joins this opinion.

-2- Justice EARLS concurring in result only in part and dissenting in part.

To find Mr. Steen guilty of felony murder on the theory adopted by the jury,

they were required to conclude that the evidence proved he attempted to murder his

mother using a deadly weapon. The jury was instructed that it could find that he used

either a garden hoe or his hands and arms as deadly weapons. There was no evidence

presented at trial from which a jury could conclude that Mr. Steen used a garden hoe

to harm his mother. State v. Steen, 264 N.C. App. 566, 582, 826 S.E.2d 478, 489 (2019).

The majority holds today that (1) a jury can properly consider a person’s hands, arms,

feet, or other body parts to be deadly weapons for purposes of the felony murder

statute, but (2) that the inclusion of the garden hoe instruction was not harmless

error and warrants a new trial. With regard to the second holding, while I do not

concur in the majority’s analysis relying on our decision in State v. Malachi, 371 N.C.

719, 821 S.E.2d 407 (2018), I do agree that the instruction regarding the garden hoe

was error warranting a new trial.

However, in its first holding the Court abdicates its role as a steward of this

state’s law and turns upside down the principle of stare decisis. Ignoring our own

precedents and disregarding every reliable indicator of legislative intent, the majority

decides to follow precedent from the Court of Appeals because, without intervention

from either this Court or the General Assembly, the Court of Appeals has continued STATE V. STEEN

Earls, J., concurring in result only in part and dissenting in part

to follow its own precedent. Because I read the felony murder statute’s deadly weapon

requirement not to include a defendant’s hands and arms, I respectfully dissent.

Subsection 14-17(a) of the General Statutes of North Carolina defines felony

murder, punishable by death or life imprisonment without parole, as a murder that

is “committed in the perpetration or attempted perpetration of” certain enumerated

felonies or “other felony committed or attempted with the use of a deadly weapon.”

N.C.G.S. § 14-17(a) (2019). Our General Statutes do not define the term “deadly

weapon.” Rather, the definition derives from this Court’s case law. A “deadly weapon”

is “any article, instrument or substance which is likely to produce death or great

bodily harm.” State v. Sturdivant, 304 N.C. 293, 301, 283 S.E.2d 719, 725 (1981).

While the Court has held that other generally innocuous items may be considered

deadly weapons depending on “the relative size and condition of the parties and the

manner in which [they are] used,” State v. Archbell, 139 N.C. 537, 538, 51 S.E. 801,

801 (1905), and we have held that an adult defendant’s hands used against a child

victim may be considered deadly weapons, State v. Pierce, 346 N.C. 471, 488 S.E.2d

576 (1997), we have never specifically addressed whether an adult’s hands or other

body part, wielded against another adult, may be considered deadly weapons for

purposes of the felony murder rule.

The felony murder rule derives from English common law and was inherited

by American courts. Nelson E. Roth & Scott E. Sundby, The Felony-Murder Rule: A

Doctrine at Constitutional Crossroads, 70 Cornell L. Rev. 446, 458 (1985) [hereinafter

Earls, J., concurring in result only in part and dissenting in part

Roth & Sundby, The Felony Murder Rule]. Since its inception in the United States,

the felony murder rule remains in existence, although subject to modern limitations.

2 Wharton’s Criminal Law § 147 (15th ed.). The rule originally punished defendants

by requiring the imposition of the death penalty for any death that resulted during

the attempted or successful perpetration of a felony. Roth & Sundby, The Felony

Murder Rule at 450.

However, as the death penalty began to be eliminated for most felonies,

revisions to felony murder statutes were made, ultimately leading to fewer crimes

that constitute predicate offenses for a conviction under the felony murder rule. 2

Wharton’s Criminal Law § 149. Eventually, England eliminated the felony murder

rule, and jurisdictions within the United States began to place limitations on the

application of the rule. Id. However, today, most states’ felony murder rules contain

the same pattern as the 1794 Pennsylvania felony murder statute, which states that

“[a]ll murder . . . which shall be committed in the perpetration or attempt to

perpetrate any arson, rape, robbery or burglary shall be deemed murder in the first

degree.” 2 Wharton’s Criminal Law § 147 (second alteration in original) (citation

omitted).

The doctrine of felony murder includes unintended homicides that occur during

the commission of a felony, the purpose of which is to protect innocent lives by

deterring the commission of felonies in a dangerous or violent manner. Jerome

Michael & Herbert Wechsler, A Rationale of the Law of Homicide: I, 37 Colum. L.

Earls, J., concurring in result only in part and dissenting in part

Rev. 701, 714–15 (1937). The rationale behind the felony murder rule is that certain

crimes carry a cognizable risk that death may occur from their commission. Id.

Therefore, if death does result during such a crime, the perpetrator is responsible for

the death because the death was a reasonably foreseeable consequence of the action.

Id.

A killing is considered to have occurred during the perpetration of a felony if it

occurred within the “res gestae” of the felony. State v. Squire, 292 N.C. 494, 512, 234

S.E.2d 563, 573 (1977) (quoting 58 A.L.R.3d 851 (originally published in 1974)). This

means that the killing was close in time and distance to the felony and without a

break in the chain of events from the perpetration of the felony to the time of the

homicide. See State v. Ray, 149 N.C. App. 137, 146, 560 S.E.2d 211, 217–18 (2002).

Commonly, the felony murder statute contains certain enumerated felonies in which

a homicide that occurs during its perpetration would result in first-degree murder. 2

Wharton’s Criminal Law § 148. Usually, these enumerated felonies involve an

element of danger or violence that implies malice, and that malice may be transferred

to an unintended homicide. Id. “Consistent with this thinking, most courts require,

for the felony-murder rule to be applicable in the case of an unenumerated felony,

that the felony be inherently dangerous.” Id.

In North Carolina, prior to 1977, any inherently dangerous felony could

support a conviction under the felony murder rule. See State v. Streeton, 231 N.C.

301, 305, 56 S.E.2d 649, 652 (1949) (discussing the previous felony murder rule, which

Earls, J., concurring in result only in part and dissenting in part

defined felony murder as a homicide resulting from the commission or attempted

commission of certain enumerated felonies or any other inherently dangerous felony).

However, the General Assembly revised this state’s felony murder statute in 1977 to

limit the felony murder rule’s application to the felonies enumerated in the statute

and unenumerated felonies only when perpetrated with the use of a deadly weapon.

N.C.G.S. § 14-17(a) (2019). Thus, today in North Carolina, when the felony murder

rule is applied to an unenumerated felony, that felony must have been committed

with the use of a deadly weapon. See State v. Wall, 304 N.C. 609, 614, 286 S.E.2d 68,

72 (1982) (“[T]he unambiguous language of the 1977 revision makes it clear that

felonies ‘committed or attempted with the use of a deadly weapon’ will support a

conviction of first-degree murder under the felony-murder rule.”).

“In matters of statutory construction the task of the Court is to determine the

legislative intent, and the intent is ascertained in the first instance ‘from the plain

words of the statute.’ ” N.C. Sch. Bds. Ass’n v. Moore, 359 N.C. 474, 488, 614 S.E.2d

504, 512 (2005) (quoting Elec. Supply Co. v. Swain Elec. Co., 328 N.C. 651, 656,

403 S.E.2d 291, 294 (1991)). “[U]ndefined words are accorded their plain meaning so

long as it is reasonable to do so.” Midrex Techs., Inc. v. N.C. Dep’t of Revenue,

369 N.C. 250, 258, 794 S.E.2d 785, 792 (2016) (alteration in original) (quoting

Polaroid Corp. v. Offerman, 349 N.C. 290, 297, 507 S.E.2d 284, 290 (1998)). If the

legislature’s intent is not apparent from the plain language of the statute, the Court

then considers the legislative history, meaning “the spirit of the act and what the act

Earls, J., concurring in result only in part and dissenting in part

seeks to accomplish.” Id. “[W]here a literal interpretation of the language of a statute

will lead to absurd results, or contravene the manifest purpose of the Legislature, as

otherwise expressed, the reason and purpose of the law shall control and the strict

letter thereof shall be disregarded.” State v. Barksdale, 181 N.C. 621, 625,

107 S.E. 505, 507 (1921).

“A deadly weapon is generally defined as any article, instrument or substance

which is likely to produce death or great bodily harm.” Sturdivant, 304 N.C. at 301,

283 S.E.2d at 725. This is consistent with the definition contained in Black’s Law

Dictionary, which defines a deadly weapon as “[a]ny firearm or other device,

instrument, material, or substance that, from the manner in which it is used or is

intended to be used, is calculated or likely to produce death.” Deadly Weapon, Black’s

Law Dictionary (11th ed. 2019). Neither of these definitions is consistent with

defining “deadly weapon” to include a person’s own hands and arms because a

person’s hands and arms are not an “article,” “instrument,” “substance,” “device,” or

“material” as those words are used in the definitions above. The plain language of the

statute, then, suggests that hands and arms are not “deadly weapons” that would

lead to criminal liability for felony murder.

To the extent that the statutory language here is ambiguous, we are then

required to ascertain legislative intent to determine the meaning of a statute. Winkler

v. N.C. State Bd. of Plumbing, 374 N.C. 726, 730, 843 S.E.2d 207, 210 (2020). “The

intent of the General Assembly may be found first from the plain language of the

Earls, J., concurring in result only in part and dissenting in part

statute, then from the legislative history, the spirit of the act and what the act seeks

to accomplish.” State v. Rankin, 371 N.C. 885, 889, 821 S.E.2d 787, 792 (2018)

(quoting State v. Langley, 371 N.C. 389, 395, 817 S.E.2d 191, 196 (2018)).

Here, the legislative history and spirit of the act clearly demonstrate that the

“deadly weapon” requirement refers to an external instrument, not a defendant’s

hands, feet, or other body parts. Subsection 14-17(a), our first-degree murder statute,

draws a distinction between the enumerated felonies, which may always serve as a

predicate felony under the felony murder rule, and “other felon[ies],” which may serve

as a predicate felony only when committed or attempted with the use of a deadly

weapon. N.C.G.S. § 14-17(a). As discussed previously, this distinction did not exist

prior to 1977. See Streeton, 231 N.C. at 305, 56 S.E.2d at 652. Instead, any “other

felony” could serve as a predicate for felony murder. State v. Davis, 305 N.C. 400, 423,

290 S.E.2d 574, 588 (1982). However, when it added the “deadly weapon” requirement

in 1977, the General Assembly rejected the longstanding practice of our courts to

construe felony murder “to include at least those killings committed during the

commission of ‘any other felony inherently dangerous to life’ as murder in the first

degree.” Id. Thus, it cannot be the case that a “deadly weapon” includes a defendant’s

hands, feet, or other body parts. If that were true, then a defendant would be liable

for first degree murder in any case where the defendant’s commission of a felony

results in a death, or where the “felony [is] inherently dangerous to life.” See Streeton,

231 N.C. at 305, 56 S.E.2d at 652. However, this is precisely the outcome that the

Earls, J., concurring in result only in part and dissenting in part

General Assembly rejected by adding the deadly weapon requirement in 1977. Davis,

305 N.C. at 423, 290 S.E.2d at 588 (acknowledging that “in apparent response to

holdings such as in Streeton,” the General Assembly amended the felony murder

statute “to substitute for the phrase ‘or other felony’ the phrase ‘or other felony

committed or attempted with the use of a deadly weapon’ ”). A proper construction of

subsection 14-17(a), given the purpose and historical context of the felony murder

rule, would acknowledge that this delineation suggests that the spirit of the statute

seeks to limit “deadly weapons” to items external to the human body that the

perpetrator of a crime brings into the fray and thereby increases the violent nature

of an already dangerous crime, elevating an unenumerated felony to the level of a

predicate felony for purposes of the felony murder rule. See N.C.G.S. § 14-17(a).

The majority does not look to “the plain language of the statute, . . . the

legislative history, the spirit of the act and what the act seeks to accomplish” to

ascertain legislative intent and determine the statute’s meaning. See Rankin, 371

N.C. at 889, 821 S.E.2d at 792. Instead, the majority chooses to rely on the principle

of legislative acquiescence. However, the majority’s approach is contrary both to our

charge “to determine the meaning that the legislature intended upon the statute’s

enactment,” see id. (emphasis added), and to the principle that “it is this Court’s

ultimate duty to construe statutes,” State v. Jones, 358 N.C. 473, 483, 598 S.E.2d 125,

131 (2004).

Earls, J., concurring in result only in part and dissenting in part

The cases on which the majority relies do not support its analysis. For example,

the majority relies on State v. Gardner for the proposition that we defer to the

principle of legislative acquiescence whenever our “appellate courts” have engaged in

a practice undisturbed by legislative intervention. See State v. Gardner, 315 N.C. 444,

462, 340 S.E.2d 701, 713 (1986). However, in Gardner, we noted that “this Court ha[d]

uniformly and frequently . . . from as early as the turn of the century” engaged in the

practice being challenged, in that case treating breaking and/or entering and larceny

as distinct crimes. Id. When reviewing the relevant cases, the Court in Gardner cited

to only one case from the Court of Appeals. Id. This is, of course, because “precedents

set by the Court of Appeals are not binding on this Court.” Mazza v. Med. Mut. Ins.

Co., 311 N.C. 621, 631, 319 S.E.2d 217, 223 (1984). Similarly, in Jones, on which the

majority also relies, we observed that “our judiciary . . . [had] universally adhered to

the practice of classifying possession of cocaine as a felony” for nearly twenty-five

years in the face of multiple clarifying amendments to the relevant statute that did

not seek to change the practice when relying on the principle of legislative

acquiescence. Jones, 358 N.C. at 483–84, 598 S.E.2d at 131–32. While the majority

also relies on Young v. Woodall, that case rejected the canon of legislative

acquiescence and noted that “legislative inaction is not necessarily evidence of

legislative approval, and that the inquiry must focus on the statute itself.” Young v.

Woodall, 343 N.C. 459, 463, 471 S.E.2d 357, 359–60 (1996) (citing DiDonato v.

Wortman, 320 N.C. 423, 435, 358 S.E.2d 489, 490 (1987)).

Earls, J., concurring in result only in part and dissenting in part

Having decided to proceed on this thin authority, the majority cites one case

from this Court in which we held that a defendant’s hands could be deadly weapons

where an adult brutally assaults a small child.1 See State v. Pierce, 346 N.C. 471, 493,

488 S.E.2d 576, 589 (1997). The majority also cites a number of cases from the Court

of Appeals; however, “precedents set by the Court of Appeals are not binding on this

Court.” Mazza, 311 N.C. at 631, 319 S.E.2d at 223. Further, the majority cites no

authority for the proposition that cases from the Court of Appeals, rather than cases

from this Court, are relevant to the question of legislative acquiescence on a question

of statutory interpretation.

In Pierce, the defendant was an adult male weighing approximately 150

pounds. Pierce, 346 N.C. at 493, 488 S.E.2d at 589. His victim was his two-year-old

niece, Tabitha. Id. at 479, 488 S.E.2d at 580. The defendant “admitted ‘smacking’

Tabitha ten times in the three weeks prior to her death, slapping Tabitha on the night

she was taken to the hospital, and shaking her very hard on that night.” Id. at 492,

488 S.E.2d at 588. Based on that and other evidence—which included evidence

tending to show that he and another person shook Tabitha, beat her with their fists,

beat her with a belt, beat her with a metal tray, beat her with a broken antenna, and

1 The majority claims that accepting Mr. Steen’s argument—that hands and arms are

not deadly weapons in an assault by one adult on another—would be inconsistent with this Court’s longstanding interpretation of the deadly weapon requirement. Tellingly, none of the cases cited by the majority involve the use of hands or feet. See State v. Hales, 344 N.C. 419, 426, 474 S.E.2d 328, 332 (1996) (fire); State v. Peacock, 313 N.C. 554, 563, 330 S.E.2d 190, 196 (1985) (glass vase); State v. Joyner, 295 N.C. 55, 64–65, 243 S.E.2d 367, 373–74 (1978) (soda bottle).

-10- STATE V. STEEN

Earls, J., concurring in result only in part and dissenting in part

beat her with a pair of tennis shoes, id.—a jury found the defendant guilty of first-

degree murder by torture and by the felony murder rule, as well as felonious child

abuse, id. at 479, 488 S.E.2d at 580. Felonious child abuse was the underlying felony

for felony murder. Id. at 493, 488 S.E.2d at 589. Under those circumstances, we held

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.

The situation before us today is quite different. While the assault on Sandra

Steen was certainly terrible, she was not a small child. She was an able-bodied adult

who actively worked on a farm. Mr. Steen was seven inches taller than her and

outweighed her by sixty-five pounds. Steen, 264 N.C. App. at 579, 826 S.E.2d at 487.

This is far different from the situation in Pierce, where the defendant was a 150-

pound man who beat a two-year-old child to death. Pierce, 346 N.C. at 493, 488 S.E.2d

at 589.

Of particular concern is the majority’s reliance on our decision in State v.

Peacock. There, we considered whether a defendant’s conviction of robbery with a

dangerous weapon could stand where the defendant had used a glass vase to strike

the victim’s head. State v. Peacock, 313 N.C. 554, 563, 330 S.E.2d 190, 196 (1985).

Central to our analysis was the fact that “[t]he evidence showed that defendant [was]

a large man and that [the victim], an elderly female, weighed only seventy-three

pounds.” Id. However, we have since held that, for purposes of the robbery with a

dangerous weapon statute, “a defendant’s hands and feet may not be considered

-11- STATE V. STEEN

Earls, J., concurring in result only in part and dissenting in part

dangerous weapons.” State v. Hinton, 361 N.C. 207, 211, 639 S.E.2d 437, 440 (2007).

When determining a weapon’s dangerousness for purposes of robbery with a

dangerous weapon, we consider the relative size and strength of the defendant and

victim. Peacock, 313 N.C. at 563, 330 S.E.2d at 196. Even so, it is still true that “a

defendant’s hands and feet may not be considered dangerous weapons” for purposes

of that statute. Hinton, 361 N.C. at 211, 639 S.E.2d at 440. This totally belies the

majority’s claim that permitting hands and arms to be considered deadly weapons for

purposes of the felony murder statute is necessary to maintain consistency with the

manner in which this Court has defined the expression “deadly weapon” for many

years.

I believe this case should be controlled by our decision in Hinton. There, we

held that hands could not be deadly weapons for purposes of robbery with a dangerous

weapon. Hinton, 361 N.C. at 210–12, 639 S.E.2d at 440–41. We concluded that the

statute’s use of the word “means” was ambiguous2 and applied the rule of lenity,

“which requires us to strictly construe the statute.” Id. at 211, 639 S.E.2d at 440. We

then 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. Here, to the extent that the term

The dangerous weapon element of the statute applies to any person “having in 2

possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means.” State v. Hinton, 361 N.C. 207, 209–10, 639 S.E.2d 437, 439 (2007) (quoting N.C.G.S. § 14-87(a) (2005)).

Earls, J., concurring in result only in part and dissenting in part

“weapon” is ambiguous, the same analysis would lead us to the conclusion that the

term requires an external instrument.

Our holding in Hinton is consistent with the law in most other jurisdictions.

See United States v. Rocha, 598 F.3d 1144, 1155 (9th Cir. 2010) (“Most states have

determined that body parts cannot be considered a dangerous or deadly weapon.”). A

majority of jurisdictions have held that body parts are not deadly weapons because

to hold otherwise would erase the distinction between crimes committed with deadly

weapons and without. See, e.g., Rocha, 598 F.3d at 1157 (holding that the mere use

of a body part does not constitute use of a “dangerous weapon” because the statute

separately punished assault by striking, beating, or wounding, indicating

congressional intent that a defendant use a weapon or some other object to perpetrate

the offense); State v. LaFleur, 307 Conn. 115, 140, 51 A.3d 1048, 1063 (2012) (“[T]he

legislature intended the term ‘dangerous instrument’ to mean a tool, implement or

device that is external to, and separate and apart from, the perpetrator’s body.”);

People v. Aguilar, 16 Cal. 4th 1023, 1026–27, 945 P.2d 1204, 1206 (1997) (holding that

a deadly weapon must be an object extrinsic to the human body); State v. Gordon,

161 Ariz. 308, 311, 778 P.2d 1204, 1207 (1989) (holding that the trial court erred by

allowing the jury to find that fists were “dangerous instruments” for purposes of

enhancing felony sentences); People v. Vollmer, 299 N.Y. 347, 350, 87 N.E.2d 291, 293

(1949) (“When the Legislature talks of a ‘dangerous weapon’, it means something

quite different from the bare fist of an ordinary man.”); State v. Henderson, 356 Mo.

Earls, J., concurring in result only in part and dissenting in part

1072, 204 S.W.2d 774 (1947) (finding no error in a judgment because the defendant

used a broomstick when assaulting his wife and not his own hands and feet); State v.

Calvin, 209 La. 257, 266, 24 So. 2d 467, 469 (1945) (holding that there must be proof

of the use of some instrumentality in order to find a defendant guilty of assault with

a dangerous weapon); Bean v. State, 77 Okla. Crim. 73, 138 P.2d 563 (1943) (holding

that the jury instruction that the defendant could be found guilty of assault with a

dangerous weapon if he was found to have only used his fists was error); Wilson v.

State, 162 Ark. 494, 496, 258 S.W. 972, 972 (1924) (“[W]here one attacks another

using no other weapon than by striking with his fist, or kicking, he does not use a

deadly weapon in the sense of the statute.”).

In Missouri, for example, the appellate courts have directly addressed whether

fists may be considered an “instrument, article or substance,” and thus a “dangerous

instrument” under a definition of “deadly weapon” similar to our own. State v. Evans,

455 S.W.3d 452, 457 (Mo. Ct. App. 2014). Rather than forecasting the potential

absurdity of categorizing a defendant’s hands as deadly weapons, the Missouri

appellate court took a linguistic approach, considering the most natural reading of

the phrase “dangerous instrument.” Id. at 258. In Evans, the Missouri appellate court

concluded that “a reasoned and common-sense reading of the terms ‘instrument,

article or substance’ . . . indicate an external object or item, rather than a part of a

person’s body.” Id. at 458; see The Oxford College Dictionary 701 (2d ed. 2007)

(defining “instrument” as “a tool or implement, esp. one for delicate or scientific

Earls, J., concurring in result only in part and dissenting in part

work”). The court further noted that the “dangerous instrument” classification

“indicates the legislature’s intent to impose greater punishment on those individuals

who choose to use an item or weapon to commit a crime than those who do not,” going

on to say that “[t]his is logical when considering that likely a majority of the time, the

potential for greater harm is present when persons committing crimes hold sharp,

heavy, or otherwise potentially harmful objects, than if they have only their own

hands at their disposal.” Evans, 455 S.W.3d at 459. Thus, the court concluded that

the defendant there, who had used only his fists to perpetrate first-degree assault

with a dangerous instrument, could not be found guilty because his fists could not be

an “instrument, article or substance.” Id. at 457–61.

I find the Evans reasoning persuasive. In regard to North Carolina’s felony

murder rule, our legislature’s distinction between the enumerated felonies not

requiring the use of a deadly weapon and the unenumerated felonies requiring the

use of a deadly weapon also indicates a purpose to more greatly punish those who

decide to use an additional item or weapon in the perpetration of a felony than those

who do not. Similarly, this Court ought to decline to read the phrase “deadly weapon”

to include parts of the human body outside of the limited context we have previously

approved and conclude that the legislature intended to limit the application of the

phrase “deadly weapon” to items external to the human body.

Requiring an external implement for the felony murder statute’s deadly

weapon requirement is consistent with our own precedents. Consider this Court’s

Earls, J., concurring in result only in part and dissenting in part

holding in State v. Fields, 315 N.C. 191, 337 S.E.2d 518 (1985), that a defendant need

not physically use the deadly weapon to commit the felony in order to be guilty of

murder under the felony murder rule, rather “possession is enough.” Id. at 199, 337

S.E.2d at 523 (“Even under circumstances where the weapon is never used, it

functions as a backup, an inanimate accomplice that can cover for the defendant if he

is interrupted.”). Our description in Fields suggests that a deadly weapon is some

additional, external object that a defendant carries for use during the commission of

the crime. Further, in that case we wrote:

We hold that possession is enough, and the defendant is guilty of felony murder, even if the weapon is not physically used to actually commit the felony. If the defendant has brought the weapon along, he has at least a psychological use for it: it may bolster his confidence, steel his nerve, allay fears of his apprehension. Even under circumstances where the weapon is never used, it functions as a backup, an inanimate accomplice that can cover for the defendant if he is interrupted.

Id. This description of the deadly weapon requirement is inconsistent with today’s

holding. If, as we held in Fields, the General Assembly intended to include felonies

where the defendant obtained a “psychological use” benefit to having a deadly

weapon—where the weapon “bolster[ed] his confidence, steel[ed] his nerve, allay[ed]

fears of his apprehension”—it seems highly unlikely that the General Assembly

contemplated that a defendant using only his hands would receive such a benefit.

While the majority claims to uphold legislative intent through the principle of

legislative acquiescence, it actually subverts the legislature’s intent as evidenced by

Earls, J., concurring in result only in part and dissenting in part

the statute’s history and structure and is inconsistent with our own precedent. With

today’s holding, the majority undoes the General Assembly’s 1977 amendment to the

statute in the name of vindicating a dimly perceived legislative intent divined by the

doctrine of acquiescence to the Court of Appeals precedent.

I agree with the majority’s contention that we are not called upon to reconsider

our holding in Pierce, in which we concluded that an adult defendant’s hands could

be considered deadly weapons for the purposes of the felony murder rule when the

predicate offense is felonious child abuse.

More than a century before our holding in Pierce, this Court held that

[a]n instrument, too, may be deadly or not, according to the mode of using it, or the subject on which it is used. For example, in a fight between men, the fist or foot would not, generally, be regarded as endangering life or limb. But it is manifest, that a wilful [sic] blow with the fist of a strong man, on the head of an infant, or the stamping on its chest, producing death, would import malice from the nature of the injury, likely to ensue.

State v. West, 51 N.C. 505, 509 (1859); see also State v. Lang, 309 N.C. 512, 525–26,

308 S.E.2d 317, 324 (1983) (“[I]f an assault were committed upon an infant of tender

years or upon a person suffering an apparent disability which would make the assault

likely to endanger life, the jury could . . . find that the defendant’s hands or feet were

used as deadly weapons.”). I would take this opportunity to provide clarity about

seemingly inconsistent decisions from this Court and hold that a distinction between

an adult victim and a child victim is consistent with this Court’s prior holding that

whether a weapon may be considered deadly is a question of whether it would or

Earls, J., concurring in result only in part and dissenting in part

would not be likely to produce deadly results. Generally, most adults are far less

vulnerable than children to an attack from an adult using only the attacker’s hands.

Children are generally likely to be much smaller and weaker than an adult attacker,

and the adult attacker’s hands would, therefore, be more dangerous when used

against a child than when used against an adult.

As such, I do not believe this Court ought to join the small minority of

jurisdictions that allow a defendant’s hands and other body parts to be considered

deadly weapons when used by an adult against an adult victim. It is worth repeating

that today’s holding renders meaningless the statute’s distinction between the

enumerated felonies and others and will invariably lead to absurd results

encompassing situations beyond those intended by the General Assembly.

Fortunately, the majority has wisely limited its holding here to the felony

murder context. As a result, it remains the case that a defendant’s body parts may

not be considered deadly weapons for purposes of robbery with a dangerous weapon.

See Hinton, 361 N.C. at 210–12, 639 S.E.2d at 440–41. A convicted defendant who

has used their hands to assault another person and inflict serious bodily injury

remains, after today’s decision, a Class F felon, see N.C.G.S. § 14-32.4(a) (2019)

(criminalizing assault inflicting serious bodily injury), and not a Class E felon, see

N.C.G.S. § 14-32(b) (2019) (criminalizing assault with a deadly weapon inflicting

serious bodily injury). This is because, as the majority notes, the question is one of

statutory interpretation, and each statute must be interpreted on its own (as the

Earls, J., concurring in result only in part and dissenting in part

majority does today by refusing to following our decision in Hinton) to effectuate the

intent of the legislature. In future cases if this issue arises, no doubt this Court will

effectuate the intent of the legislature and avoid collapsing distinct offenses into one

another, as we did in Hinton.

The majority claims that today’s pronouncement, that hands and arms may be

considered deadly weapons for purposes of the felony murder statute, will avoid

unnecessary confusion in the state’s criminal law. In reality, the majority runs away

from the considered holding of our decision in Hinton in order to reinstate a line of

decisions that was firmly rejected by the General Assembly in 1977. In so doing, the

majority creates a rule that runs counter to the ordinary meaning of the term “deadly

weapon,” risking criminal liability for first degree murder whenever a felony results

in death. I disagree that our murder statute should be so far expanded. For all of

these reasons, I respectfully concur in the result only, in part, and dissent, in part.

Chief Justice BEASLEY joins in this opinion concurring in the result only in

part and dissenting in part.

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