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 firstdegree 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 
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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 felonymurder 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 firstdegree 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 firstdegree 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 felonymurder 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 firstdegree 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 firstdegree 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.
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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).
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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 firstdegree 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 felonymurder 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.
STATE V. STEEN

Opinion of the Court

-20-

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 
STATE V. STEEN

Opinion of the Court

-21-

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 
STATE V. STEEN

Opinion of the Court

-22-

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. 
STATE V. STEEN

Opinion of the Court

-23-

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
STATE V. STEEN

Opinion of the Court

-24-

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 felonymurder 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 
STATE V. STEEN

Opinion of the Court

-25-

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 
STATE V. STEEN

Opinion of the Court

-26-

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.
STATE V. STEEN

Opinion of the Court

-27-

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 
STATE V. STEEN

Opinion of the Court

-28-

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.
STATE V. STEEN

Opinion of the Court

-29-

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 
STATE V. STEEN

Opinion of the Court

-30-

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 credibilityrelated 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 firstdegree 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 
STATE V. STEEN

Opinion of the Court

-31-

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 
STATE V. STEEN

Opinion of the Court

-32-

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 
STATE V. STEEN

Opinion of the Court

-33-

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.
STATE V. STEEN

Opinion of the Court

-34-

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.
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

-2-

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.
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

-2-

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 
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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.
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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 
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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 
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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 
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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 
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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). 
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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)). 
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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).
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beat her with a pair of tennis shoes, id.—a jury found the defendant guilty of firstdegree 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 
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-12-

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 

 

2 The dangerous weapon element of the statute applies to any person “having in 

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)).
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-13-

“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. 
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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 
STATE V. STEEN

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-15-

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 
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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 
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-17-

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 
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-18-

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

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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.