An unpublished opinion of the North Carolina Court of Appeals does not constitute

controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedur e.

NO. COA 1 3

- 967 NORTH CAROLINA COURT OF APPEALS Filed: 18 February 2014

STATE OF NORTH CAROLINA

v. Alamance County No s . 1 2 CRS 5 3844 DERRICK LAMONT LEATH 13 CRS 610

Appeal by D efendant from judgment entered 11 April 201 3 by Judge James E. Hardin, Jr., in Alamance County Superior Court. Heard in the Court of Appeals 27 January 2014
. Attorney General Roy Cooper, by Assistant Attorney General Robert K. Smith , for the State. Todd A. Smith fo r D efendant .

DILLON , Judge.
Derrick Lamont Leath (“ Defendant ”) appeals from a judgment entered upon his conviction for assault with a deadly weapon inflicting serious injury (“AWDWISI”) and his guilty plea to habitual felon status . Because we find substantial evidence of
D efendant’s use of a deadly weapon to assault his victim and further find no constitutionally deficient performance by- 2
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defense counsel , we hold that D efendant received a fair trial , free from prejudicial error
. The State’s evidence tended to show that, o n the night of 24 June 2012, Abjul Shields and Quixote Clark were working as members of the security team at Club 778 on Graham

- Hopedale Road i n Burlington, North Carolina
. Shortly after midnight, Shields walked to the rear of the club and observed D efendant cursing and threatening Clark
. When D efendant ignored his request to leave, Shields moved between Defendant and Clark and told
D efendant, “[T]his is not what you want to do.” D efendant threw a punch at Shields, str iking him on the side of the face
. Despite landing with “[n]ot too much” force, the blow opened a five

- inch laceration on Shield’s cheek requir ing twenty
- nine sutures to close. As D efendant ran , Shields entered a res troom
to examin e his face , which “looked like a fish.” Shields was transported by ambulance to the emergency room, where staff treated the cut to his face and smaller laceration on his left wrist. Within minutes of the foregoing encounter, Clark saw
D efendant in front of the club “[t]rying to leave.” When he attempt ed to subdue D efendant, Clark observed a razor blade in
D efendant’s right hand “between his thumb and his forefinger.”- 3
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Defendant swung at Clark twice with the blade before leaving with an associate in a burgundy truck. The jury found D efendant guilty of AWDWISI upon Shields but not guilty of assault with a deadly weapon upon Clark, who accused D efendant of striking him with a beer bottle prior to the assault on Shields
. After D efendant pl ed guilty to being an habitual felon, the trial court sentenced him to an active prison term of 90 to 120 months. Defendant gave notice of appeal in open court.
D efendant first claims that the trial court erred in denying his motion to dismiss the A W DWISI charge based on the lack of evidence that he employed a deadly weapon in assault ing Shields
. We do not agree . The trial court’s de nial of a motion to dismiss for insufficient evidence is reviewed de novo . State v. Lowery , __ N.C. App. __, __, 743 S.E.2d 696, 698

- 99 , disc. review denied , __ N.C. __, 749 S.E.2d 858 (2013). In conducting our review , “t his Court determines whether the State presented substantial evidence in support of each element of the charged offense. Substantial evidence is relevant evidence that a reasonable person might accept as adequate, or would consider necessary to support a particular conclusion. ” State v. Abshire , 363 N.C.- 4
-

322, 327

- 28, 677 S.E.2d 444, 449 (2009) (citations and quotation marks omitted)
. Defendant do es not challenge the evidence that he assaulted or inflicted a serious injury upon Shields. Accordingly, we need only determine whether the State adduced “substantial evidence

– whether direct, circumstantial, or both

– to support a finding” that D efendan t committed the assault with a deadly
weapon . Id. at 328, 677 S.E.2d at 449 (quotation omitted) ; see also State v. Jones , 353 N.C. 159, 164, 538 S.E.2d 917, 922 (2000) ( listing elements of AWDWISI) . “An instrument which is likely to produce death or great bodily harm under the circumstances of its use is properly denominated a deadly weapon.” State v. Joyner , 295 N.C. 55, 64, 243 S.E.2d 367, 373 (1978). While it is true that no witness saw D efendan t use a weapon to cut Shields, Clark testifie d that he saw a razor blade in
D efend ant’s right hand moments after D efendant opened a five

inch laceration on Shields’ face by means of a single punch delivered wit h little force. T he treating physician descri bed the wound a s a “clean” cut, “ almost surgical” in nature , and “obviously” produced by “a very sharp blade, a very straight- 5
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blade, a knife, a razor blade, a box cutter.” 1 We believe a reasonable juror could find th is circumstan tial evidence more than sufficient t o establish D efendant ’s use of a razor blade in

a manner render ing it a deadly weapon
. See State v. Gilliland , 66 N.C. App. 372, 373, 311 S.E.2d 40, 41 (1984) ; see also State v. Torain , 316 N.C. 111, 121, 340 S.E.2d 465, 471 , cert. denied , 479 U.S. 836, 93 L. Ed. 2d 77 (1986).
D efendant next asserts that his trial attorney violated his constitutional right to effective assistance of counsel by allowing Burlington Police Officer Neal Doss to testify regarding prior out

- of

- court statements made b y Shields and Clark on the night of the assault which were inconsistent with their sworn testimony at trial. Noting Shield s’ testimony that he never saw Defendant with a weapon, D efendant faults counsel for allowing Officer Doss to recount Shields ’ statement that he had been “cut” by D efendant while attempt ing to break up a “fight” between D efendant an d another party . Similarly , Officer Doss testified that Shields and Clark both claimed to have seen a female hand D efendant a razor blade before he struck Shields
. Given “the lack of evidence that [he] had a razor blade on that evening , ” D efendant faults his counsel for (1) fail ing to object

1 Defendant conceded at trial that Shields’ wounds would support a finding of “serious injury.”- 6
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when Officer Doss testified about the se statements on direct examination, and (2) calling additional attention to the se prior statements in cross - examining Officer Doss. In reviewing claims of ineffecti ve assistance of counsel ,
we apply the two
- part test established in Strickland v. Washington , 466 U.S. 668, 80 L. Ed. 2d 674 (1984), and adopted for state constitutional purposes in State v. Braswell , 312 N.C. 553, 562

- 63, 324 S.E.2d 241, 248 (1985). Defendant must show that (1) his counsel’s performance fell “ below an objectiv e standard of reas onableness[,]” and (2) “ there is a reasonable probability that, but for counsel ’ s unprofessional errors, the result of the procee ding would have been different. ” State v. Waring , 364 N.C. 443, 502, 701 S.E.2d 615, 652 (2010) (quoting Strickland , 466 U.S. a t 688, 694, 80 L. Ed. 2d at 693, 698) , cert. denied , __ U.S. __, 181 L. Ed. 2d 53 (2011) (quotation marks omitted)
. Typically , c laim s of ineffective assistance of counsel are more appropriately addressed in a collateral proceeding, which allow for the development of additional evidence outside the trial record. See State v. Lawson , 159 N.C. App. 534, 5 45 , 583 S.E.2d 354, 3 61 (2003). However, such “claims brought on direct review will be decided on the merits when the cold record- 7
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reveals that no further investigation is required[.]” State v. Phillips , 365 N.C. 103, 144, 711 S.E.2d 122, 151 (2011) (quotation omitted), cert. denied , __ U.S. __, 182 L. Ed. 2d 176 (2012). Moreover, under Strickland and its progeny, we “need not determine wh ether counsel made errors if the record does not show a reasonable probability that a different verdict would have been reached in the absence of counsel ’ s deficient performance.” State v. Banks , 163 N.C. App. 31, 36, 591 S.E.2d 917, 921 , disc. review denied , 358 N.C. 377, 597 S.E.2d 767 (2004) (citing Braswell , 312 N.C. at 563, 324 S.E.2d at 248

- 49). The record before this Court shows that, t hroughout
D efendant’s trial, his counsel pursued the strategy of discrediting Shields and Clark in the eyes of t he jury. Highlighting the multiple inconsistencies between the in

- court and out

- of

- court statements of the complainants was a n obvious tactic in furtherance of this strategy . See generally State v. Bishop , 346 N.C. 365, 387, 488 S.E.2d 769, 780 (1997) ( s tating that “ [p] rior statements of a witness which are inconsistent with his present testimony are not admissible as substantive evidence because of their hearsay nature [;] [e] ven so, such prior inconsistent statements are admissible for the purpose of im peachment”) (quotation omitted). Prior to Officer Doss ’s- 8
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testi mony , counsel had vigorously cross - examined Shields and Clark about the discrepancies between the ir testimon y and their
statements to investigators. Counsel elicited an admission from Shields that he told the pros e cutor that he knew D efendant “in the community” and “had seen him at the club two times before[,]” contradicting his testimony that he did not know and had never seen D efendant prior to 24 June 2012. Shields further conceded having told Officer Doss that D efendant “ cut [him] with a blade given to him by some unknown black female[,]” despite the fact that he had not seen D efendant possess a weapon or interact with a woman
. Likewise, Clark admi tted on cross

examination that he “ lie [ d ]” when he told p olice that he saw a woman hand D efendant a razor. We believe that counsel’s use of
O fficer Doss ’s testimony a s another opportunity to impeach the complainants’ credibility was a sound tactical decision well within the broad discretion gra nted to defense counsel under the Sixth Amendment. See State v. Milano , 297 N.C. 485, 495, 256 S.E.2d 154, 160 (1979) (noting that “whether and how to conduct

cross - examination” is the “exclusive province of the lawyer after consultation with his client”) , overruled on other grounds by State v. Grier , 307 N.C. 628, 300 S.E.2d 351 (1983). Indeed,- 9
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the jury acquitted D efendant of assaulting Clark with a beer bottle. Assuming arguendo counsel’s handling of Officer Doss’s testimony was objectively unreasonable, we find no probability that it impacted the verdict in this cause
. The t rial court instruct ed the jury that it “ must not consider [witnesses’] earlier statements as evidence of the truth of what was said at that earlier time because it was not made under oath at this trial [,]” but could consider the consistency or inconsistency of a prior statement “ in deciding whether you will believe or disbelieve the witness’s testimony. ” Inasmuch as “[t]he law presumes that the jury foll ows the judge ’ s instructions[,]” State v. Hopper , 292 N.C. 580, 589, 234 S.E.2d 580, 585 (1977),

we deem this instruction s ufficient to foreclose any showing of prejudice from counsel’s supposed error, particularly under the heightened Strickland standard. Defendant’s argument is overruled.
NO ERROR . Chief Judge MARTIN and Judge HUNTER, JR., concur. Report per Rule 30(e).