STATE OF NORTH CAROLINA
v. Union County
Nos. 00 CRS 1211
JOHN HENRY STITT, 00 CRS 3021
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Kathleen M. Waylett, for the State.
Bobby Khan, for defendant-appellant.
BRYANT, Judge.
Defendant was convicted of habitual misdemeanor assault on a
law enforcement officer, a Class H felony under N.C.G.S. § 14-33.2
(1999). Upon the jury's finding of defendant's habitual felon
status, the trial court sentenced him to 144 to 182 months of
imprisonment. Defendant gave timely notice of appeal.
Defendant stipulated to five prior misdemeanor convictions,
two of which were assaults. Therefore, the trial proceeded on the
charge of assault on a law enforcement officer pursuant to N.C.G.S.
§ 14-33(c)(4) (1999). Union County Deputy Sheriff David Linto
testified that he observed defendant standing with a female on Kerr
Street. Linto knew of several warrants outstanding for defendant'sarrest, but also wanted to ask defendant questions regarding an
unrelated criminal investigation. Linto and defendant discussed
the warrants. Linto explained his obligation to arrest defendant
on sight, but also indicated he wanted defendant to look at some
photographs. Defendant said he intended to turn himself in “at a
later date.” Linto told defendant it was in his best interest to
turn himself in now, suggesting that the magistrate would set a
more favorable bond on the warrants. Linto then asked defendant to
sit down and look at the pictures. He drove defendant to the end
of the street and talked with him about the photographs for a few
minutes. Linto then told defendant he had to “take care of these
warrants now[,]” and reached for his handcuffs. As Linto raised
the handcuffs, defendant “struck [him] across the chest[,]” with
his left arm knocking the handcuffs from Linto's hands. Defendant
kicked and swung his arms, trying to get out of the locked car. He
“shoved” Linto “two or three times” as Linto tried to hold onto
him. Defendant kicked and broke the windshield before successfully
opening the car door. Linto grabbed defendant's sweatshirt and was
pulled out of the car with him. As they rolled on the ground,
defendant struck Linto in the face with his elbow or forearm.
Eventually, defendant slipped out of the sweatshirt and ran away.
He was later apprehended by another officer.
On cross-examination, Linto acknowledged that on the citation
he wrote immediately following the incident, he wrote that
defendant had shoved him but did not mention being struck or hit.
He denied placing defendant in a headlock in the car. Defendant testified that Linto promised not to arrest
defendant if he looked at the photographs. Linto told him, “I know
you have warrants but it's not my job to lock you up for it.” When
defendant finished looking at the photographs, however, Linto
unexpectedly and without explanation reached over and grabbed
defendant, placing him in a headlock. Defendant claimed he merely
grabbed Linto's arm to remove it from his head before fleeing the
car. He denied shoving or swinging at Linto at any time, stating,
“The only physical time that I touched him was when I grabbed his
arm to take it off my head.” Defendant surmised that his elbow
broke the windshield during the exchange, or that Linto broke the
windshield in attempting to follow him out of the car.
The trial court instructed the jury that defendant committed
an assault if he “intentionally and without justification or excuse
str[uck] Linto.” The court went on to instruct the jury that the
prosecution had to prove that “Linto was a law enforcement officer
and the defendant knew or had reasonable grounds to know” that
fact. The court told the jury that defendant was obliged to submit
to a lawful arrest but could defend himself if Linto “use[d] more
force than reasonably appear[ed] necessary at the time to effect
the arrest.” The court fully instructed the jury on the doctrine
of self-defense.
During deliberations, the jury submitted the following
question to the judge regarding this element of the offense:
“[T]he guidelines given to the jury[] used the word 'strike' in
reference to assault. Does shoving constitute an assault?” Overdefendant's objection, the court gave a supplemental instruction to
the jury as follows:
[F]or purposes of this case, what we're
talking about is the actual striking of one
person by another person. Whether it is a
shove or a strike or an elbow or a kick, the
critical factor for this particular case is
whether or not there was an actual physical
touching. So I'm instructing you that -- that
strike or shove, that's -- there's not a
significant difference between that
terminology.
After receiving this instruction, the jury returned a guilty
verdict.
Defendant argues that the court erred in giving this
supplemental instruction, which he characterizes as “an incorrect
statement of law which resolved the case favorably for the State.”
Defendant claims the court erroneously relied upon the civil
definition of battery, which does not require proof of an “intent
to do some immediate physical injury” as does criminal assault. He
further contends the instruction amounted to a statement of the
judge's “opinion that an essential element of the crime had been
proven, because a shove was equivalent to a strike, an elbow or a
kick.” Defendant casts the instruction as “remov[ing] from the
province of the jury the determination of certain elements of the
offense[.]”
Assault has been alternately defined as “a show of violence
causing a reasonable apprehension of immediate bodily harm” or “an
intentional offer or attempt by force or violence to do injury to
the person of another.” State v. Thompson, 27 N.C. App. 576, 577,
219 S.E.2d 566-67, 568 (1975), disc. review denied, 289 N.C. 141,220 S.E.2d 800 (1976) (citing State v. Hefner, 199 N.C. 778, 155
S.E. 879 (1930)). By contrast, battery is “the unlawful
application of force to the person of another by the aggressor . .
. .” Id. at 578, 219 S.E.2d at 568. A touching is “unlawful” when
it is non-consensual or “offensive” and is not justified by
principles such as privilege or self-defense. See, e.g., Redding
v. Shelton's Harley Davidson, Inc., 139 N.C. App. 816, 821, 534
S.E.2d 656, 659 (2000), disc. review denied, 353 N.C. 380, 546
S.E.2d 606 (2001). Under the criminal law of this State, “every
battery includes an assault . . . .” Thompson, at 577, 219 S.E.2d
at 568.
As set forth above, defendant is mistaken in claiming that a
battery does not constitute an assault unless it is performed with
a specific “intent to so some immediate physical injury to the
person of another.” In State v. Colson, 194 N.C. 206, 208, 139
S.E. 230, 231 (1927), our Supreme Court upheld the trial court's
instruction that if the jury did not find defendant assaulted the
witness with a deadly weapon, but "'just shoved him off the
running-board of [a stationary] automobile,'" he would be guilty of
simple assault. Similarly, in State v. Hill, 181 N.C. 558, 559-60,
107 S.E. 140, 141 (1921), defendant placed his hands on a woman's
forehead and hand while she slept. The trial court held there was
insufficient evidence of specific intent to support a conviction
for assault with intent to commit rape. However, the court denied
defendant's motion for nonsuit, finding the intentional, unwanted
touching sufficient to support a conviction for assault. Id. Because the act of shoving satisfies the offensive touching
requirement for battery, and because every battery is also an
assault, the trial court properly instructed the jury that the
semantic distinction between “striking” and “shoving” did not
affect defendant's culpability for assaulting Linto. Contrary to
defendant's assertion, the court did not offer any opinion as to
whether the prosecution proved that defendant shoved or struck
Linto. It merely explained the legal consequence of the acts
alleged. Moreover, the trial court did not err in tailoring its
instruction to the evidence adduced at trial and to the specific
allegations raised against defendant. See State v. Robinson, 40
N.C. App. 514, 520, 253 S.E.2d 311, 312 (1979).
Defendant next asserts that the trial court erred in failing
to re-instruct the jury on self-defense when it gave its
supplemental instruction. He asserts the trial court must give the
self-defense and assault instruction together. He further notes
the general proposition that the court must instruct the jury on
self-defense if the evidence supports it, even absent a request
from the defendant. However, defendant cites no authority to
support his claim that the court was obligated to repeat its self-
defense instruction when offering a supplemental instruction on an
element of assault. See N.C. R. App. P. 28(b)(5).
The trial court properly instructed the jury on self-defense
during its initial charge on the elements of assault on a law
enforcement officer. Thereafter, the jury asked the court to
clarify a single word of the original charge, whether a shoveconstituted “striking” for purposes of assault. Although defendant
objected to the court's supplemental instruction on assault, he
never asked for a re-instruction or supplemental instruction on
self-defense. Cf. State v. Robinson, 327 N.C. 346, 360, 395 S.E.2d
402, 410 (1990) (finding no abuse of discretion in court's failure
to give a supplemental instruction where “[n]o request for
supplemental instructions . . . was made”). Absent any indication
that the jury was unclear on defendant's right to resist any
unlawful applications of force by Linto, the trial court did not
abuse its discretion in limiting its supplemental instruction to
the specific issue of concern to the jury.
In his final argument, defendant claims the trial court erred
in instructing the jury on the provisions of N.C.G.S. § 15A-
401(a)(2) (1999), which permits an officer to arrest a person based
on the officer's knowledge of an outstanding warrant against the
person, even though the officer does not have physical possession
of the warrant at the time of the arrest. Because the State did
not request this instruction, defendant asserts the trial court
“compromised its role as an impartial entity and may have
inadvertently acted as an ally to the prosecution.” Defendant
cites no authority in support of this assignment of error.
Accordingly, it is deemed abandoned. See N.C. R. App. P. 28(b)(5).
No error.
Judges WYNN and THOMAS concur.
Report per Rule 30(e).
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