An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1238

NORTH CAROLINA COURT OF APPEALS

Filed: 5 August 2014

STATE OF NORTH CAROLINA

v. Henderson County

No. 12 CRS 961

CHARLES STEVENS BLOW, JR.,

Defendant.

 

Appeal by defendant from judgment entered 12 June 2013 by 

Judge Alan Z. Thornburg in Henderson County Superior Court. 

Heard in the Court of Appeals 5 March 2014.

Attorney General Roy Cooper, by Assistant Attorney General 

M. Elizabeth Guzman, for the State.

Paul F. Herzog for defendant-appellant. 

GEER, Judge.

Defendant Charles Stevens Blow, Jr. appeals from his 

conviction of possession of a weapon by a prisoner. Defendant

primarily argues that the trial court erred in denying his 

motion to dismiss because the State did not present evidence 

that defendant knew that possession of a fingerprick needle was 

unauthorized or that he knew the needle was capable of 

inflicting serious bodily injury. We hold that under the plain 
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language of the statute, the offense of possession of a weapon 

by a prisoner is a strict liability offense, and the State was 

not required to present evidence of defendant's knowledge. We, 

therefore, hold that the trial court properly denied the motion 

to dismiss. 

Facts

The State's evidence tended to show the following facts. 

Defendant was an inmate at the Henderson County Detention 

Center. On 1 April 2012, jail officers received an anonymous 

tip that defendant had a diabetic fingerprick needle in his 

cell. Deputy Douglas Collins of the Henderson County Sheriff's 

Office searched defendant for needles or other contraband, but 

did not find anything. He then asked defendant if he had a 

diabetic fingerprick needle, and defendant admitted that he had 

one on his desk in his cell. 

Deputy Collins searched defendant's cell and seized the 

needle. When Deputy Collins informed defendant that the needle 

was considered a weapon, defendant replied, "Oh, I didn’t know 

it was." Defendant was not diabetic and did not have any 

health-related reason to have a needle in his possession. 

On 23 July 2012, defendant was indicted for possession of a 

weapon by a prisoner in violation of N.C. Gen. Stat. § 14-258.2. 
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At trial, Deputy Collins testified that inmates were not allowed

to keep needles in their cells:

Due to its extremely sharp nature and 

ability to weaponize the object, it can be 

used against staff and other inmates. 

Common DOC practice between inmates, that's 

the Department of Corrections, they will 

take the sharp end of the needle, they can 

rub it in their own feces or urine or any 

other bodily fluid and use that to stab 

another inmate or staff causing serious 

infection. Other communicable diseases, 

such as HIV or hepatitis are common 

throughout prisons. Those can be sent 

through the needle. Also it can be used as 

a dart.

Defendant testified on his own behalf at trial that he had 

found the needle on the floor in the common room, picked it up, 

and put it in his pocket. He used the needle to clean his 

fingernails, and had not altered the needle in any way or

attempted to use it for any other purpose. He kept the needle 

on his desk and did not attempt to hide or conceal it. When 

asked about the needle, he told the officers exactly where it 

was, and they retrieved it. On cross-examination, defendant 

admitted that he was not diabetic. 

The jury found defendant guilty on the charge of possession 

of a weapon by a prisoner. Defendant was sentenced to a 

presumptive-range term of six to 17 months imprisonment. His 

sentence was suspended, and defendant was placed on supervised 
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probation for 24 months. Defendant timely appealed to this 

Court.

I

Defendant first argues that the trial court erred in 

denying his motion to dismiss the charge of possession of a 

weapon by a prisoner. "This Court reviews the trial court's 

denial of a motion to dismiss de novo." State v. Smith, 186 

N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). "'Upon defendant's 

motion for dismissal, the question for the Court is whether 

there is substantial evidence (1) of each essential element of 

the offense charged, or of a lesser offense included therein, 

and (2) of defendant's being the perpetrator of such offense. 

If so, the motion is properly denied.'" State v. Fritsch, 351 

N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (quoting State v. 

Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)). 

"Substantial evidence is such relevant evidence as a reasonable 

mind might accept as adequate to support a conclusion." State 

v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980).

Defendant was charged with possession of a weapon by a 

prisoner in violation of N.C. Gen. Stat. § 14-258.2(a) (2013),

which provides:

Any person while in the custody of the 

Section of Prisons of the Division of Adult 

Correction, or any person under the custody 

of any local confinement facility as defined 
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in G.S. 153A-217, who shall have in his 

possession without permission or 

authorization a weapon capable of inflicting 

serious bodily injuries or death, or who 

shall fabricate or create such a weapon from 

any source, shall be guilty of a Class H 

felony; and any person who commits any 

assault with such weapon and thereby 

inflicts bodily injury or by the use of said 

weapon effects an escape or rescue from 

imprisonment shall be punished as a Class F 

felon.

Defendant argues that N.C. Gen. Stat. § 14-258.2(a) should 

not be read as a strict liability offense. Instead, defendant 

argues that the statute should be read as requiring the State to 

prove:

1. The person charged possessed a "weapon 

capable of inflicting serious bodily 

injuries or death," and; 

2. The person charged possessed the 

implement knowing that he was doing so 

"without permission or authorization" 

from the incarcerating authority or its 

agents, and;

3. The person charged knew or should have 

known that the implement in question 

was "capable of inflicting serious 

bodily injuries or death . . ."

(Quoting N.C. Gen. Stat. § 14-258.2(a).) Defendant concedes 

that the State presented sufficient evidence of the first 

element, but argues that the State failed to present sufficient 

evidence of his proposed second and third elements. 
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"Whether a criminal intent is a necessary element of a 

statutory offense is a matter of construction to be determined 

from the language of the statute in view of its manifest purpose 

and design." State v. Hales, 256 N.C. 27, 30, 122 S.E.2d 768, 

771 (1961). It is well settled that "when the language of a 

statute is clear and unambiguous there is no room for judicial 

construction and the court must give the statute its plain and 

definite meaning . . . ." State v. Williams, 291 N.C. 442, 446, 

230 S.E.2d 515, 517 (1976). "Thus, in effectuating legislative 

intent, it is the duty of the courts to give effect to the words 

actually used in a statute and not to delete words used or to 

insert words not used." State v. Watterson, 198 N.C. App. 500, 

505, 679 S.E.2d 897, 900 (2009).

In Staples v. United States, 511 U.S. 600, 128 L. Ed. 2d 

608, 114 S. Ct. 1793 (1994), the United States Supreme Court set 

out a multi-factor test for deciding whether the legislature 

intended, when enacting a statute, to create a strict liability 

offense. In an opinion adopting Staples, this Court summarized 

the factors Staples required to be considered: 

(1) the background rules of the common law 

and its conventional mens rea requirement; 

(2) whether the crime can be characterized 

as a public welfare offense; (3) the extent 

to which a strict-liability reading of the 

statute would encompass innocent conduct; 

(4) the harshness of the penalty; (5) the 

seriousness of the harm to the public; (6) 
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the ease or difficulty of the defendant 

ascertaining the true facts; (7) relieving 

the prosecution of time-consuming and 

difficult proof of fault; and (8) the number 

of prosecutions expected.

Watterson, 198 N.C. App. at 507, 679 S.E.2d at 901. 

In Watterson, the defendant was charged with possession of 

a weapon of mass death and destruction in violation of N.C. Gen. 

Stat. § 14-288.8(a) for possessing a shot gun that had a barrel 

less than 18 inches in length. This Court, after applying the

Staples factors, concluded that "the General Assembly did not 

intend for the State to prove that a defendant knew of the 

physical characteristics of the weapon that made it unlawful 

under N.C. Gen. Stat. § 14–288.8." Watterson, 198 N.C. App. at 

512, 679 S.E.2d at 904. 

With respect to the Staples factors, we note that the 

General Assembly has made explicit its policy that "[l]ocal 

confinement facilities should provide secure custody of persons 

confined therein in order to protect the community and should be 

operated so as to protect the health and welfare of prisoners 

and provide for their humane treatment." N.C. Gen. Stat. §

153A-216(1) (2013). Thus, just as the offense of possession of 

a weapon of mass destruction is intended to protect the public 

safety by "exclud[ing] completely the existence of weapons of 

mass death and destruction from the public sphere," Watterson, 
-8-

198 N.C. App. at 510, 679 S.E.2d at 903, possession of a weapon 

by a prisoner is intended to protect the safety of prisoners and 

DOC staff by completely ridding weapons from prisons. 

Interpreting N.C. Gen. Stat. § 14-258.2(a) as a strict liability 

offense is consistent with this policy. 

Defendant does not, however, specifically address the 

Staples factors or Watterson. Consequently, he makes no 

argument that the offense of possession of a weapon by a 

prisoner is materially distinguishable from the offense of 

possession of a weapon of mass destruction addressed in 

Watterson such that application of the Staples factors would 

require that the State prove an element of knowledge or intent.

While defendant does not specifically address the relevance 

of the State's policy of reducing violence and protecting the 

health, welfare, and safety of prisoners and DOC staff to the 

question of the legislature's intent, he does argue, consistent 

with one of the Staples factors, that the statute could 

encompass innocent behavior and, in addition, that reading into 

the statute an element of intent is necessary in order to 

promote principles of fairness. Defendant points to the 

following questions submitted to the trial court by the jury 

during deliberations: 

Number one . . . : What orientation is 

given prisoners upon arrival at detention? 
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What items . . . may a prisoner have in 

their possession? 

And then number two says: Please repeat 

judge's instructions as to what jury is to 

find. Is jury to consider intent? 

Defendant argues that these questions show that the jury 

recognized an inherent unfairness in the plain language of the 

statute. 

Defendant's argument regarding "fairness" would apply with 

respect to many strict liability statutes. And, the issue 

before the Court is not whether we believe the statute raises 

concerns about fairness, but rather whether the legislature 

intended to create a strict liability offense. It is not our 

role -- or the role of the jury -- to "superimpose[e] provisions 

or limitations not contained within the statute." Williams, 291 

N.C. at 446, 230 S.E.2d at 517. When the plain meaning of the 

statute falls within constitutional limits, "[t]he question of 

the wisdom or propriety of statutory provisions is not a matter 

for the courts, but solely for the legislative branch of the 

state government." Ferguson v. Riddle, 233 N.C. 54, 57, 62 

S.E.2d 525, 528 (1950). Because defendant has not specifically 

addressed the relevance of the State's public policy regarding 

safety in prisons and jails to determining the General 

Assembly's intent, he has not demonstrated that any other

factors sufficiently override that factor so as to suggest that 
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the legislature did not intend to create a strict liability 

offense. 

The State presented substantial evidence of the only two 

elements required under the plain language of the statute: that 

defendant was in the custody of a local confinement facility and 

that he possessed without authorization or permission a weapon 

capable of inflicting serious bodily injuries or death. We, 

therefore, hold that the trial court did not err in denying

defendant's motion to dismiss the charge of possession of a 

weapon by a prisoner. 

II

Defendant next argues that the trial court erred in failing 

to adequately instruct the jury as to the nature of the weapon, 

and in failing to define the term "serious bodily injury." 

Because defendant did not object to the instruction at trial, he 

contends that the instructions constituted plain error. 

For error to constitute plain error, a 

defendant must demonstrate that a 

fundamental error occurred at trial. To 

show that an error was fundamental, a 

defendant must establish prejudice -- that, 

after examination of the entire record, the 

error had a probable impact on the jury's 

finding that the defendant was guilty. 

Moreover, because plain error is to be 

applied cautiously and only in the 

exceptional case, the error will often be 

one that seriously affect[s] the fairness, 

integrity or public reputation of judicial 

proceedings[.]
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State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) 

(internal citations and quotation marks omitted).

The trial court used N.C.P.I., Crim. 280.43, UNAUTHORIZED 

POSSESSION OR FABRICATION OF DANGEROUS WEAPON BY PRISONER and 

charged the jury, consistent with the pattern instruction, as 

follows:

Now, the defendant has been charged 

with possession, without permission or 

authorization, of a weapon capable of 

inflicting serious injuries or death while 

he was in the custody of a local confinement 

facility.

For you to find the defendant guilty of 

this offense the State must prove two things

beyond a reasonable doubt. 

First, that the defendant had in his 

possession, without permission or 

authorization, a weapon capable of 

inflicting serious bodily injury or death. 

In determining whether the diabetic 

fingerprick instrument, also known as a

lancet, is capable of inflicting bodily 

injury or death, you should consider the 

nature of the weapon and the manner in which 

it could be used.

And second, at that time the defendant 

was under the custody of a local confinement 

facility. The Henderson County Detention 

Facility is a local confinement facility.

So if you find from the evidence beyond 

a reasonable doubt that on or about the 

alleged date while he was in the custody of 

a local confinement facility, the defendant

had in his possession, without permission or 

authorization, a weapon which was capable of 
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inflicting serious bodily injury or death, 

it would be your duty to return a verdict of 

guilty. 

If you do not so find or have a 

reasonable doubt as to one or more of these 

things, it would be your duty to return a 

verdict of not guilty.

(Emphasis added.) 

Defendant points out that this jury instruction referred to 

three different types of injuries that the weapon could be

capable of inflicting: "serious injuries," "serious bodily 

injury," and "bodily injury." Each of these phrases is a term 

of art -- a "word or phrase having a specific, precise meaning 

in a given specialty, apart from its general meaning . . . ." 

Black's Law Dictionary, 1610 (9th ed. 2009). Defendant argues 

that the use of three similar but different terms of art in the 

instruction created confusion for the jury and, because the 

statute only prohibited possession of weapons capable of 

inflicting "serious bodily injury," the trial court should have 

defined that term for the jury. 

Neither N.C. Gen. Stat. § 14-258.2 nor the pattern jury 

instruction defines "serious bodily injury." Our legislature 

has, however, defined "serious bodily injury" for purposes of 

assault inflicting serious bodily injury as 

bodily injury that creates a substantial 

risk of death, or that causes serious 

permanent disfigurement, coma, a permanent 
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or protracted condition that causes extreme 

pain, or permanent or protracted loss or 

impairment of the function of any bodily 

member or organ, or that results in 

prolonged hospitalization. 

N.C. Gen. Stat. § 14-32.4(a) (2013).

At trial, defendant did not make any significant challenge 

to the State's contention that the fingerprick needle was 

capable of inflicting serious bodily injury. The State 

presented evidence regarding the harm that the needle could 

cause, including the "[c]ommon . . . practice between inmates" 

in prisons to weaponize the needle by rubbing it in feces and 

urine in order to cause serious infection or transmit serious 

communicable diseases. On cross-examination, defendant did not 

address that part of the officer's testimony, but rather 

elicited only that defendant had made no attempt to weaponize 

the needle and had not used the needle against any other person. 

In addition, the only evidence presented by defendant was his 

own testimony that he found the needle and used it to clean his 

fingernails and that he did not make any attempt to alter or 

change it.

Because defendant does not dispute that the State's 

evidence was sufficient to prove the element that the needle was 

capable of inflicting serious bodily injury and because 

defendant presented no contrary evidence, defendant has not 
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shown that the jury instructions had a probable impact on the 

verdict. Indeed, on appeal, defendant does not argue that there 

was a probable impact on the verdict, but rather contends

generally that the inadequacies in the instructions amounted to 

fundamental error warranting a new trial.

However, in the seminal "plain error" case, our Supreme 

Court explained that "[t]he adoption of the 'plain error' rule 

does not mean that every failure to give a proper instruction 

mandates reversal regardless of the defendant's failure to 

object at trial." State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 

375, 378 (1983). Instead, the Court held, "even when the 'plain 

error' rule is applied, '[i]t is the rare case in which an 

improper instruction will justify reversal of a criminal 

conviction when no objection has been made in the trial court.' 

. . . In deciding whether a defect in the jury instruction 

constitutes 'plain error,' the appellate court must examine the 

entire record and determine if the instructional error had a 

probable impact on the jury's finding of guilt." Id. at 660-61, 

300 S.E.2d at 378-79 (quoting Henderson v. Kibbe, 431 U.S. 145, 

154, 52 L. Ed. 2d 203, 212, 97 S. Ct. 1730, 1736 (1977)). 

Because defendant has failed to show that any instructional 

errors had a probable effect on the jury, he has failed to 

establish plain error. 
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Although we hold that the jury instruction did not result 

in plain error in this case, we acknowledge that the pattern 

jury instruction's use of "serious injuries," "serious bodily 

injury," and "bodily injury," is troublesome given the distinct 

definitions given to those phrases in different contexts. 

Because, however, defendant failed to object at trial, we need 

not address whether the pattern instruction would constitute 

reversible error if the issue were properly preserved for 

review. 

No error. 

Judges ROBERT C. HUNTER and McCULLOUGH concur.

Report per Rule 30(e).