Bar fighters, take note: Is a beer mug a deadly weapon?

That question will be put before the N.C. Court of Appeals this week, in a case stemming from a bar fight in Lincolntown, northwest of Charlotte.

One side says that a beer mug is not by its nature a deadly weapon.

The other side says that if a beer mug is swung with enough force, it is a deadly weapon legally akin to a gun or knife.

The distinction weighs in the fate of Michael Thomas, a Lincoln County resident who in 2012 got into a bar fight that resulted in his swinging his 12-ounce beer mug at another patron. The blow shattered the patron’s face, requiring surgery with titanium plates and screws.

After a 2013 trial, Thomas was convicted of assault with a deadly weapon-inflicting serious bodily injury, which is a felony. He was given three years of probation. During the trial, the judge declined to rule on whether a beer mug was a deadly weapon, leaving it up to the jury to decide. The jury’s options were either to convict Thomas on the deadly-weapon charge, or to acquit him altogether.

Now, Thomas’ lawyer contends that the trial judge should have given the jury the option to convict Thomas of misdemeanor assault-inflicting serious injury. If convicted of that lesser charge, Thomas would have avoided the felony on his criminal record. Thomas wants a new trial.

The State’s lawyer counters that a common item like a beer mug may be considered a deadly weapon based on the manner of its use. A beer mug, in other words, could become deadly if used with “great and furious violence” … “with the potential to do great bodily harm,” the lawyer argued in his brief. Other examples are bricks, cars, baseball bats, nail clippers and broom handles.

The victim in the case, Bryan Wilfong, testified that he went to a bar called Zippers, ordered a beer, watched some NASCAR, and wandered out to the patio. Thomas, an acquaintance, confronted him. An argument ensued about a girl. Wilfong contends that after he walked away, Thomas, without provocation, swung his beer mug in a roundhouse fashion, striking Wilfong in the face. The blow crushed Wilfong’s cheekbone, broke his nose and fractured his orbital bone, drawing blood from the eye. Wilfong said he’d never experienced so much pain, couldn’t chew for a month, missed a month’s work and lost sensation on the side of his face for six months.

Thomas admits that he hit Wilfong, but argued that Wiflong was the instigator. Thomas testified that Wilfong got in his face, cursed him, and “bowed up,” prompting Thomas to strike him in self-defense.

Prior to the altercation, Thomas sent a text to the bartender, stating “I’m sorry, I’m going to destroy Wilfong.” (Thomas said that he sent this text in order to prevent a fight.) Thomas also told the bouncer that he would “knock out” Wilfong.

The State introduced the beer mug as Exhibit 1. It was a 12-ounce multisided glass mug that was very thick and heavy.

The trial judge told the jury that, “in determining whether a beer mug was a deadly weapon, you should consider the nature of the beer mug, the manner in which it was used, the size and strength of the defendant as compared to the victim.”

Thomas’ lawyer argues that when there is any ambiguity about whether an instrument of force is a deadly weapon, a judge should always give the jury the option of convicting a defendant on a lesser charge, such as misdemeanor assault, which the judge in this case declined to do.

The State’s lawyer argues that the judge should have declared the beer mug deadly prior to the jury’s deliberation.