NO. COA01-1436
Defendant brings forward eleven assignments of error contained
in nine arguments. First, he maintains he is entitled to a new
trial as to his conviction for assault on a law enforcement officer
with a firearm because the trial court committed plain error in
instructing the jury on that charge. Specifically, defendant
argues the jury's verdict was rendered fatally ambiguous by the
trial court's instruction to the jury that “it would be your duty
to return a verdict of guilty as charged” if it were to find
defendant had committed the submitted lesser included offense ofassault on an officer, whereas the indictment only charged
defendant with assault on a law enforcement officer with a firearm.
Defendant did not object to the instruction at trial.
Defendant relies on
State v. Jeffries, 3 N.C. App. 218, 164
S.E.2d 398 (1968), in which this Court held the defendant was
entitled to a new trial based on the court's inadvertent error in
instructing the jury that it could return a verdict of guilty as
charged if it found the defendant guilty of assault with a deadly
weapon, where the defendant had not been charged with that crime.
Id. at 221, 164 S.E.2d at 399. As in
Jeffries, the trial court in
the present case inadvertently erred when it instructed the jury
that if it found defendant had committed the acts required for
conviction of assault on a law enforcement officer, it would find
the defendant “guilty as charged.”
Our inquiry does not end here, however. The instructional
error in
Jeffries was not analyzed under a plain error standard.
Because defendant did not object or otherwise call the
instructional error to the attention of the trial court, we must
review the instruction under a plain error standard, which requires
that defendant carry the heavy burden of establishing that the
error in the instruction was “'“so fundamental as to amount to a
miscarriage of justice or which probably resulted in the jury
reaching a different verdict than it otherwise would have
reached.”'”
State v. Gainey, 355 N.C. 73, 106, 558 S.E.2d 463, 484
(2002) (citations omitted). “It is indeed the rare case when a
criminal conviction will be reversed on the basis of an improperinstruction where the defendant made no objection.”
Id. at 106-07,
558 S.E.2d at 484.
In analyzing whether defendant has met this burden, we must
view the instructions in their entirety, not in “'“detached
fragments.”'”
State v. Anderson, 350 N.C. 152, 179, 513 S.E.2d
296, 312 (citations omitted),
cert. denied, 528 U.S. 973, 145 L.
Ed. 2d 326 (1999). “The charge must be viewed in context; isolated
portions will not be held prejudicial when the instruction as a
whole is correct.”
State v. Jarrett, 137 N.C. App. 256, 265, 527
S.E.2d 693, 699,
disc. review denied, 352 N.C. 152, 544 S.E.2d 233
(2000). “'[A] single instruction to a jury may not be judged in
artificial isolation, but must be viewed in the context of the
overall charge.'”
State v. Hanton, 140 N.C. App. 679, 683, 540
S.E.2d 376, 379 (2000) (citation omitted) (rejecting defendant's
argument that he was entitled to new trial based on instruction to
jury “'if you are not satisfied as to one or more of these things
[the elements of second degree murder]'” because it lowered burden
of proof from “'beyond a reasonable doubt'” to “'the satisfaction
of the jury'” where phrase “beyond a reasonable doubt” was used at
three other pivotal points in instruction on second-degree murder).
In this case, the jury instructions were clear that not only
was the charge of assault on a law enforcement officer with a
firearm being submitted for consideration, but also the lesser
charge of assault on a law enforcement officer. The trial court
was clear in instructing the jury as to the elements required for
a guilty verdict as to each of the two charges. During the chargeconference, defense counsel requested an instruction on the lesser
included offense of assault on an officer, and the trial court
agreed to instruct on both offenses. The trial court thereafter
first instructed the jury, with respect to the assault on Officer
Hall, that in order to find defendant guilty of assault on a law
enforcement officer with a firearm, the jury would be required to
find five elements beyond a reasonable doubt. The trial court
listed the elements, and then summarized them a second time. The
trial court then began its instruction on the lesser included
offense by stating, “[i]f you do not find the Defendant guilty of
assault with a firearm on a law enforcement officer, you must
determine whether he is guilty of an assault on an officer.” The
trial court charged the jury that it would be required to find four
elements beyond a reasonable doubt in order to find defendant
guilty of assault on a law enforcement officer, and it then
explained the elements and summarized them a second time.
On at least two occasions, the trial court clearly stated that
in order for the jury to find defendant guilty of assault on a law
enforcement officer with a firearm, the jury would be required to
find the five elements of that charge. The trial court also
instructed that if the jury did not find those five elements, it
would be required to return a verdict of not guilty as to that
charge. The trial court made clear that the jury was only to
consider the elements of assault on an officer if it did not find
the five elements of assault on a law enforcement officer with a
firearm. In addition, the verdict sheet submitted to the juryclearly delineated that it could either find defendant guilty of
assault on a law enforcement officer with a firearm, guilty of
assault on an officer, or not guilty.
In light of the trial court's repeated emphasis that the jury
could only find defendant guilty of assault on a law enforcement
officer with a firearm if it found the required five elements,
there is no reasonable cause to believe the jury was misled by the
trial court's isolated statement following the instruction on the
lesser included offense.
See State v. Graham, 145 N.C. App. 483,
486, 549 S.E.2d 908, 910-11 (2001) (trial court's erroneous
preliminary instruction on burden of proof did not amount to plain
error where trial court instructed jury properly on burden of proof
with respect to each charge; thus, there existed no “reasonable
cause to believe the jury in this case was misled regarding the
State's burden of proof.”). Viewing the statement in the context
of the instructions as a whole, we do not agree with defendant that
this is one of those exceptional and rare cases where the error was
so fundamental as to amount to a miscarriage of justice or which
probably resulted in a different verdict than would have resulted
otherwise. This assignment of error is overruled.
In his second argument, defendant maintains his conviction for
felonious breaking or entering must be vacated because there was no
evidence of his intent to commit a larceny. At the close of all
evidence, the trial court dismissed the charge of second-degree
burglary, deciding instead to submit the lesser included offense of
felonious breaking or entering. Defendant moved to dismiss thecharge for insufficiency of the evidence, and the trial court
denied the motion.
“'The essential elements of felonious breaking or entering are
(1) the breaking or entering (2) of any building (3) with the
intent to commit any felony or larceny therein.'”
State v. Jones,
__ N.C. App. __, __, 566 S.E.2d 112, 119 (2002) (citation omitted).
The State may rely on circumstantial evidence to prove the State's
prima facie case, as “[t]he law makes no distinction between the
weight to be given to either direct or circumstantial evidence.”
State v. Salters, 137 N.C. App. 553, 557, 528 S.E.2d 386, 390,
disc. review denied, 352 N.C. 361, 544 S.E.2d 556 (2000).
Moreover, in reviewing the denial of a motion to dismiss for
insufficiency of the evidence, the trial court is required to view
the evidence in the light most favorable to the State, giving it
the benefit of every reasonable inference to be drawn therefrom.
State v. Santiago, 148 N.C. App. 62, 557 S.E.2d 601 (2001),
disc.
review denied, 355 N.C. 291, 561 S.E.2d 499 (2002). An intent to
commit larceny at the time of the breaking or entering may be
inferred from the defendant's conduct and other circumstances shown
by the evidence.
State v. Costigan, 51 N.C. App. 442, 276 S.E.2d
467 (1981).
In the present case, the evidence established that around
midnight on an evening when Thomas Dufford was away from his home,
Meadows was awakened by the sounds of beating and slamming. He
looked out the window and observed a man at the back door of the
Dufford house repeatedly hitting the door with a heavy object. Theman eventually walked to the front of the house, and Meadows
thereafter heard the sound of shattering glass. Officer Hall
arrived on the scene within one minute of receiving the call to
investigate. Officer Hall discovered defendant dressed in dark
clothing and laying face down under the bushes a few feet from
Dufford's front door. The window closest to the door knob and
latch on the front door was broken out, a window in the back door
was broken out, the hinges were broken off a screen door, and the
front door jam was broken. Meadows testified that the Dufford
house was not in this condition when he inspected it around noon
that day. Defendant confessed to having broken the windows, but
offered no evidence as to why he did so. Defendant resisted arrest
after struggling for control of Officer Hall's weapon. Defendant
had a large rock in his pocket, and a three-foot nylon bag rolled
up under his clothing. We hold this evidence, taken in the light
most favorable to the State, constitutes substantial evidence of
each essential element of the offense of felonious breaking or
entering. This argument is overruled.
Next, defendant maintains his assault conviction must be
vacated because the indictment failed to allege that he knew or had
reasonable grounds to know that Officer Hall was a law enforcement
officer. We disagree. The assault indictment alleged that
defendant “unlawfully, willfully, and feloniously did assault T.S.
HALL, a law enforcement officer . . . with a firearm . . . by
GRABBING THE OFFICERS [sic] WEAPON AND TURNING IT TOWARD THE
OFFICER. At the time of this offense, the officer was performinga duty of his office.”
Defendant is correct in noting that to prove this offense, the
State must prove that the defendant knew the victim was a law
enforcement officer.
See State v. Haynesworth, 146 N.C. App. 523,
553 S.E.2d 103 (2001). As we have recently stated, an indictment
must charge the essential elements of the alleged offense.
State
v. Floyd, 148 N.C. App. 290, 295, 558 S.E.2d 237, 241 (2002). We
further observed in
Floyd that “[i]f the charge is a statutory
offense, the indictment is sufficient 'when it charges the offense
in the language of the statute.'”
Id. (citation omitted);
see also
State v. Youngs, 141 N.C. App. 220, 230, 540 S.E.2d 794, 800-01
(2000) (“'an indictment couched in the language of the statute is
sufficient to charge the statutory offense'” (citation omitted)),
appeal dismissed and disc. review denied, __ N.C. __, 547 S.E.2d
430 (2001). The applicable statute here, G.S. § 14-34.5(a),
provides: “Any person who commits an assault with a firearm upon a
law enforcement officer, probation officer, or parole officer while
the officer is in the performance of his or her duties is guilty of
a Class E felony.” N.C. Gen. Stat. § 14-34.5(a)
(2002).
The
indictment in this case charges the offense in the language of G.S.
§ 14-34.5(a).
In any event, “[i]t is also generally true tha[t] an
indictment need only allege the ultimate facts constituting the
elements of the criminal offense.”
Youngs, 141 N.C. App. at 230,
540 S.E.2d at 800-01. The elements need only be alleged to the
extent that the indictment (1) identifies the offense; (2) protectsagainst double jeopardy; (3) enables the defendant to prepare for
trial; and (4) supports a judgment on conviction.
State v.
Baynard, 79 N.C. App. 559, 562, 339 S.E.2d 810, 812 (1986). The
indictments in
Baynard charged the defendant with obtaining and
attempting to obtain a controlled substance by fraud and forgery.
Id. at 561, 339 S.E.2d at 812. The defendant argued that the
indictments were insufficient in that neither alleged that the
defendant presented a forged prescription with knowledge that it
was forged. This Court held that although knowledge is an
essential element of the offenses, the failure of the indictments
to specifically aver knowledge was not fatal where they alleged the
defendant had committed the offenses “intentionally,” which term
“implies that the defendant knew the prescriptions were forged when
she attempted to have them filled.”
Id. at 562, 339 S.E.2d at 812.
We concluded the indictments were sufficient to meet the four-part
test.
In this case, as in
Baynard, although the indictment does not
specifically aver that defendant knew Officer Hall was a law
enforcement officer, the indictment does allege defendant
“willfully” committed an assault on a law enforcement officer,
which, as with the term “intentionally,” indicates defendant knew
that the person he was assaulting was a law enforcement officer.
See,
e.g.,
State v. Smith, 146 N.C. App. 1, 10, 551 S.E.2d 889, 894
(2001) (defining “willful” as “an act being done '“purposely and
designedly in violation of [the] law”'” (citations omitted)),
reversed on other grounds, 355 N.C. 268, 559 S.E.2d 786 (2002);
Muse v. Charter Hosp. of Winston-Salem, Inc., 117 N.C. App. 468,
483, 452 S.E.2d 589, 599 (“'An act is done wilfully when it is done
purposely and deliberately in violation of law, or when it is done
knowingly and of set purpose'” (citation omitted)),
affirmed, 342
N.C. 403, 464 S.E.2d 44 (1995),
reh'g denied, 342 N.C. 666, 467
S.E.2d 718 (1996);
Starr v. Clapp, 40 N.C. App. 142, 148, 252
S.E.2d 220, 224 (defining “willful” injury as one requiring “actual
knowledge, or that which the law deems to be the equivalent of
actual knowledge, of the peril to be apprehended, coupled with a
design, purpose, and intent to do wrong and inflict injury”),
affirmed, 298 N.C. 275, 258 S.E.2d 348 (1979).
We hold that the indictment in this case, which was properly
couched in the language of G.S. § 14-34.5(a), was sufficient to
identify the offense of assault on a law enforcement officer with
a firearm; to protect defendant from double jeopardy; to enable
defendant to prepare for trial and present a defense; and to
support the judgment in this case. Accordingly, we overrule this
assignment of error.
In his fourth argument, defendant asserts his assault
conviction must be vacated for lack of sufficient evidence that he
knew or had reasonable grounds to know at the time of the assault
that Officer Hall was a law enforcement officer. Again, we
disagree.
The evidence established that Officer Hall, dressed in
uniform, arrived on the scene in a marked patrol car. Although it
was nighttime, a nearby streetlight was illuminated, and there wasa “bright light” coming from inside Dufford's house. The area was
illuminated enough that Meadows could tell from looking out his
window from several feet away that the person walking across
Dufford's front lawn was a uniformed police officer. This evidence
creates a reasonable inference that defendant, who struggled body
to body with Officer Hall for approximately three minutes, was
aware that Officer Hall was in uniform and a police officer.
During the struggle, Officer Hall grabbed his pepper spray, a tool
commonly carried by law enforcement, but defendant knocked it out
of his hands. Defendant also told Officer Hall, “[i]f you let me
go, I'll stop,” thereby implying defendant knew Officer Hall had
the authority to keep or detain him. Moreover, even when
approached by two more officers who came to Officer Hall's aid,
defendant continued to struggle and resist apprehension. There was
no evidence tending to show that he did not know nor had reason to
know Officer Hall was a law enforcement officer. Viewing the
evidence in the light most favorable to the State, giving it the
benefit of all reasonable inferences, we hold the State presented
sufficient evidence of the knowledge element of the charge, and the
trial court did not err in submitting the charge to the jury.
Defendant next argues he is entitled to a new trial because
the trial court erroneously failed to submit the possible verdicts
of assault with a deadly weapon and assault by pointing a gun.
Defendant argues that both are lesser included offenses of assault
on a law enforcement officer with a firearm, separated only by the
knowledge requirement of the greater offense, and that both weresupported by the evidence. Defendant failed to request either of
these instructions during the charge conference, nor did he object
to the court's instructions on assault; thus, we review for plain
error.
While it is generally true that a trial court must instruct on
a lesser included offense where supported by the evidence, “[t]he
trial court is not, however, obligated to give a lesser included
instruction if there is 'no evidence giving rise to a reasonable
inference to dispute the State's contention.'”
State v. Hamilton,
132 N.C. App. 316, 321, 512 S.E.2d 80, 84 (1999) (citation omitted)
(trial court not required to submit misdemeanor breaking or
entering, a lesser included offense of larceny, which requires a
felonious purpose, where the defendant did not testify or present
any evidence that he broke or entered for any non-felonious
purpose). “The mere possibility that a jury might reject part of
the prosecution's evidence does not require submission of a lesser
included offense.”
Id.
Here, as in
Hamilton, there was no evidence that defendant did
not know Officer Hall was a police officer, nor was there any
evidence tending to show that he did not know, nor should have
known, that Officer Hall was a law enforcement officer. As we have
previously held, the State presented sufficient evidence to meet
the knowledge requirement of the offense. As stated in
Hamilton,
the mere possibility that the jury would reject the State's
evidence on this element does not require that the trial court
instruct on every possible lesser included offense.
See also Statev. Stevenson, 327 N.C. 259, 263, 393 S.E.2d 527, 529 (1990) (“mere
fact that the jury could selectively believe part of the State's
evidence and disbelieve part of it did not entitle the defendant to
an instruction on a lesser included offense.”). The trial court's
failure to instruct on these lesser included offenses was not error
so fundamental as to amount to a miscarriage of justice.
By his sixth argument, defendant maintains he is entitled to
a new trial on the assault charge because the trial court failed to
give an instruction on self-defense, as requested by defendant. A
trial court is only required to give such an instruction where the
evidence supports each element of self-defense.
State v.
Nicholson, 355 N.C. 1, 30, 558 S.E.2d 109, 130 (2002). “If,
however, no such evidence is presented, a defendant is not entitled
to an instruction on self-defense.”
Id.
In order to be entitled to an instruction on self-defense, the
evidence must establish the following: (1) the defendant believed
it necessary to kill or use force against the victim in order to
save himself from death or great bodily harm; (2) the defendant's
belief was reasonable “in that the circumstances as they appeared
to him at the time were sufficient to create such a belief in the
mind of a person of ordinary firmness;” (3) the defendant was not
the aggressor in bringing on the affray, i.e., “he did not
aggressively and willingly enter into the fight without legal
excuse or provocation;” and (4) the defendant did not use excessive
force other than what was necessary or reasonably appeared
necessary to protect himself from death or great bodily harm.
State v. Wood, 149 N.C. App. 413, 418-19, 561 S.E.2d 304, 308,
disc. review denied, __ N.C. __, __ S.E.2d __ (2002).
In this case, there was no evidence that defendant had a
reasonable belief that he was required to use force against Officer
Hall in order to avoid death or great bodily harm, given that the
evidence supports a reasonable inference that defendant knew
Officer Hall was a law enforcement officer.
Moreover, defendant is
not entitled to a self-defense instruction because the evidence
clearly establishes that defendant was the aggressor in the
struggle with Officer Hall. The evidence shows that when Officer
Hall discovered defendant under the bushes, he instructed him not
to move. Defendant nevertheless began to lift himself up from the
ground, and Officer Hall, who was approximately two feet from
defendant, again instructed him not to move. Defendant then lunged
at Officer Hall, grabbing the barrel of the weapon. Defendant
aggressively and willingly entered into the fight with Officer Hall
without legal excuse or provocation.
See N.C. Gen. Stat. § 15A-
401(f)(1) (2002) (“A person is not justified in using a deadly
weapon or deadly force to resist an arrest by a law-enforcement
officer using reasonable force, when the person knows or has reason
to know that the officer is a law-enforcement officer and that the
officer is effecting or attempting to effect an arrest.”); N.C.
Gen. Stat. § 14-223 (2002) (making it unlawful for any person to
resist, delay or obstruct a public officer in the discharging or
attempting to discharge a duty of his office).
Defendant also argues he should have been entitled to a self-defense instruction because Officer Hall was making an unlawful
arrest and was doing so using excessive force. The evidence simply
does not support these arguments. Officer Hall was in the process
of simply investigating a potential break-in when the affray
occurred, and to the extent he was attempting to effectuate
defendant's arrest, there is no evidence that such an arrest was
unlawful. Moreover, there is no evidence that Officer Hall used
any force, let alone excessive force, prior to defendant's
initiating the struggle for the weapon. Although Officer Hall's
weapon was drawn when he approached defendant, at no time did
Officer Hall threaten defendant or become physical with defendant
until defendant grabbed the weapon. Nor was it unreasonable for
Officer Hall to have his weapon drawn, given that he was
investigating a potential break-in and observed a dark figure
hiding in the bushes. The trial court did not err in refusing to
instruct the jury on self-defense.
Defendant next contends he is entitled to a new trial because
the trial court improperly expressed an opinion as to defendant's
guilt by discrediting his cause. During cross-examination of
Officer Hall regarding the manner in which he entered Dufford's
front yard, the trial court stated to defense counsel, “I don't
want to restrict cross examination, but what is the point of this,
if you could help me with that maybe . . . .” The trial court then
stated, “go ahead with your question but let's get to the point if
you can.” Subsequently, during cross-examination of Officer Hall
regarding the investigation into the matter, the followingoccurred:
THE COURT: What is the point of that? I don't
want to restrict you, but what's the point of
that?
MR. WALKER: I guess, your Honor, the point is
. . .
THE COURT: Go ahead, what's your point?
MR. WALKER: The point is I want to know
whether anything came of any sort of
investigation of the firing of the weapon.
THE COURT: For what purpose?
MR. WALKER: Whether it was appropriate under
the circumstances for the weapon to have been
fired.
THE COURT: Well then whether it was examined
or not wouldn't have anything to do with that,
would it?
Defendant also points to two other instances in which the trial
court asked defense counsel the purpose of his questions on cross-
examination, one with respect to Officer Bryant's work history, and
another regarding the police department's investigation policy.
A trial judge may not express any opinion in the presence of
the jury on any question to be decided by the jury, such as the
defendant's guilt.
State v. Poland, 148 N.C. App. 588, 594, 560
S.E.2d 186, 190 (2002) (citing N.C. Gen. Stat. § 15A-1222 (1999)).
“However, 'not every expression of opinion by the trial court
constitutes prejudicial error . . . . In a criminal case,
reversible error results where the jury may rationally infer from
the trial judge's action an expression of opinion as to the
defendant's guilt or the credibility of a witness.'”
Id. (citation
omitted). Further, “[t]he scope of cross-examination is governedby the sound discretion of the trial court.”
State v. Fleming, 350
N.C. 109, 139, 512 S.E.2d 720, 740,
cert. denied, 528 U.S. 941, 145
L. Ed. 2d 274 (1999).
Here, defendant has failed to sufficiently establish that the
trial court's questions of counsel were anything other than a
proper exercise of the court's discretion in directing the scope of
cross-examination. We do not believe the trial court's occasional
inquiries into the relevance of particular questions on cross-
examination amounted to improper statements from which the jury
would rationally infer the trial court believed defendant to be
guilty.
See State v. Snowden, 51 N.C. App. 511, 514, 277 S.E.2d
105, 107 (trial court did not impermissibly express opinion where
question “was a proper focusing of one of defendants' questions on
cross-examination”),
disc. review denied, 303 N.C. 318, 281 S.E.2d
657 (1981). We reject this argument.
In his eighth argument, defendant maintains he is entitled to
a new sentencing hearing because the trial court erred in finding,
as an aggravating factor, that defendant was hired to commit the
offense. It is clear to us from the record, however, that the
marking of that factor on the AOC Form CR-303 (Felony Judgment
Findings of Factors In Aggravation And Mitigation of Punishment)
was an administrative error. The record shows clearly that the
trial court, in fact, found the aggravating factor that defendant
committed the offense for the purpose of avoiding or preventing
lawful arrest. A review of the trial transcript shows that the
trial court announced in open court that as to the assault charge,“the Court finds . . . aggravating factor No. 3, that the offense
was committed for the purpose of avoiding or preventing a lawful
arrest.” However, that aggravating factor was listed on the AOC
form sheet as factor No. 2a.; the factor listed as No. 3a. reads
“The defendant was hired to commit the offense.”
Our Supreme Court has recently held that a
defendant is not
entitled to new sentencing hearing where there exists a discrepancy
between the transcript and the judgment sheet as to a finding in
aggravation where the trial court clearly stated its findings in
open court and where the mark on the judgment sheet is clearly a
clerical error.
See State v. Gell, 351 N.C. 192, 218, 524 S.E.2d
332, 349 (holding erroneous mark on judgment sheet an “obvious
clerical error because it [wa]s inconsistent with the trial court's
actual findings” as set forth in the transcript),
cert. denied, 531
U.S. 867, 148 L. Ed. 2d 110 (2000). Likewise, in this case, it is
clear from the record as a whole that the trial court found that
defendant committed the offense for the purpose of evading arrest,
not that he was hired to commit the offense, and that the court
simply referred to the wrong number on the AOC form, resulting in
a clerical error when the form was completed. Defendant has not
suffered prejudice as a result of this clerical error.
This
argument is overruled.
Finally, defendant argues the trial court erred in failing to
find the statutory mitigating factors that defendant supports his
family, and that defendant has a positive employment history or is
gainfully employed. The trial court must consider a defendant'sevidence of a statutory mitigating factor, but has “discretion and
latitude in determining whether a mitigating circumstance exists.”
State v. Hughes, 136 N.C. App. 92, 100, 524 S.E.2d 63, 68 (1999),
disc. review denied, 351 N.C. 644, 543 S.E.2d 878 (2000). In order
to show an abuse of such discretion by failing to find a mitigating
factor, a defendant must show that the factor is established by
substantial evidence, which is uncontradicted and manifestly
credible so that no other reasonable inferences can be drawn.
Id.
The evidence of defendant's employment and support in this case
does not rise to that level and defendant, therefore, has not shown
any abuse of the trial court's discretion in rejecting these
factors in mitigation.
For the foregoing reasons, we hold defendant received a fair
trial, free from prejudicial error.
No error.
Chief Judge EAGLES and Judge HUNTER concur.
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