Appeal by defendant from judgment filed 19 December 1996 by Judge Thomas W. Seay, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 14 January 1998.
The opinion of the court was delivered by: Greene, Judge.
Jimmy Lee Allred (Defendant) appeals from a conviction for assault with a deadly weapon.
On 31 October 1995, an altercation occurred between three inmates of the Guilford County Jail. Christopher Van King (King) testified for the State that he and Defendant began to argue because King and another inmate were talking near the television in the "day room," an area containing two picnic tables, a television, telephones, and a commode. King stated that inmates can leave the day room to "get snacks," and that after he and Defendant argued, Defendant and Robert Foust (Foust) left the day room. King stated that when they returned, Defendant had a "shank," a knife made from "some type of metal razor inserted in a pen, plastic part of a pen." At that point, King testified that "Foust swung at me and knocked my glasses off. As I swung back, [Defendant] stabbed me in the left shoulder [and] the back." King stated that, just before the officers arrived to break up the fight, Defendant flushed the shank down the commode in the day room.
Foust testified for the State, offering the following description of the item used by Defendant to stab King:
Q: And what did [Defendant] use to stab [King]?
[Foust]: A pen. All I saw him use was a pen.
Q: And what did you see about that pen?
[Foust]: All I see, it was a pen. All pens are sharp. I just seen a pen. Whether it was a piece of metal or a piece of anything on it, I didn't see. I seen a ink pen.
Foust continued to state, throughout his testimony, that "all I seen was a pen."
The officer who investigated the incident, Jerry L. Ford (Officer Ford), testified that King stated that he was stabbed by Defendant with a shank, which he described as:
[A] typical pen, a Bic pen or whatever, and they would use a lighter to melt one end of the pen, and once the plastic begins to get softened -- a lot of times the inmates have razors to shave with and sometimes the officers don't get 'em back, so when they have one of the razors extra, by the pen being melted, he would just slide that -- they would just slide the piece of razor blade to the soft portion of the pen and once the pen got hardened, that's when the blade was stiffening and it wouldn't be able to come out and they -- and [King] told me that's how they made the homemade shank out of the pen.
King told Officer Ford that this was the type of weapon used by Defendant to stab him. Officer Ford described King's wound as "not a wound that was just basically used by a pen, . . . it wasn't just circular. It . . . had an indention to where it was something flat and then it went outward, whereas a pen, you would have, like, a puncture wound and that was the difference between the two."
Both of King's wounds were about one-eighth to one-quarter of an inch wide and less than an inch long. King was taken to the infirmary after the altercation, where both wounds were cleaned and bandaged. Neither wound required stitches.
Defendant did not testify. Rodney Crite (Crite), a defense witness, testified that King and Defendant argued, and then Foust swung at King to start the physical altercation. When asked if Defendant stabbed King with a shank, Crite responded: "I can't say that if it was a shank or what." William H. Anderson, another defense witness, testified that King "advanced on [Defendant]" to start the ...