A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).

NO. COA01-789

NORTH CAROLINA COURT OF APPEALS

Filed: 21 May 2002

STATE OF NORTH CAROLINA

v .                         Hoke County
                             No. 96 CRS 822
WILLIAM JEFFREY ELLER

    Appeal by defendant from judgment entered 13 September 1996 by Judge B. Craig Ellis in Hoke County Superior Court. Heard in the Court of Appeals 17 April 2002.

    Attorney General Roy Cooper, by Assistant Attorney General Mary S. Mercer, for the State.

    Paul Pooley for defendant-appellant.

    WALKER, Judge.

    Defendant appeals his conviction for misdemeanor assault on a government officer while the officer was discharging his official duties. The State's evidence tends to show the following: Defendant was an inmate in the Department of Correction and in 1996 was being treated at McCain Correctional Hospital in Hoke County. During the evening meal on 25 February 1996, a correctional officer, Sergeant Raymond Batten (Sergeant Batten), observed defendant strike another inmate with his walking cane. When he questioned defendant about the incident, defendant denied having struck the inmate. Defendant then stated, “I did not hit him, I did this” and stepped towards Sergeant Batten with his cane raised in both hands. Sergeant Batten moved to the side in an effort toavoid a blow but was struck by defendant's elbow. He testified that the correctional hospital has a strict policy which prohibits inmates from touching officers and that at no time did he give defendant permission to demonstrate how he had hit the other inmate.
    Defendant testified that he was merely attempting to show Sergeant Batten how the other inmate “had stepped out of the line like this and run his shoulder into me like that.” He admitted knowing that Sergeant Batten was a correctional officer but denied having made any physical contact with him.
    Defendant first contends the trial court lacked jurisdiction since the criminal summons, under which he was prosecuted, cited to a repealed statute. The record shows that, by criminal summons dated 27 February 1996, defendant was charged with assault on a government officer in violation of N.C. Gen. Stat. § 14-33(b)(8). However, as defendant properly points out, N.C. Gen. Stat. § 14- 33(b)(8) was repealed effective 1 December 1995 and was re-written as N.C. Gen. Stat. § 14-33(c)(4). See 1995 N.C. Session Laws, c.507, s. 19.5(b). He maintains this error resulted in his being improperly convicted under a repealed statute.
    As support for his contention, defendant cites State v. McCluney, 280 N.C. 404, 185 S.E.2d 870 (1972), in which our Supreme Court held that “when a statute creating a criminal offense is repealed 'by a law subsequently enacted, the former will be held inoperative,. . .unless a contrary intent on the part of the lawmakers appear. . .from the language in the repealing statute.'”McCluney, 280 N.C. at 406, 185 S.E.2d at 871 (quoting State v. Massey, 103 N.C. 356, 358-59, 9 S.E. 632, 632-33 (1889)). The statute at issue in McCluney made “material and substantial” changes to our statutes dealing with the dissemination of obscenity. The Court noted these changes were designed “to get rid of a law of dubious constitutionality and to prevent the post- conviction problems which would immediately result were [it] or the United States Supreme Court to hold the law unconstitutional.” Id. at 406, 185 S.E.2d at 871-72. In contrast, the rewriting of the assault statute did not involve any material or substantive changes to the offense of assault on a government officer while the officer was discharging his official duties. Specifically, the repealed N.C. Gen. Stat. § 14-33(b)(8) defined assault on a government officer as where a defendant “[a]ssaults an officer or employee of the State or any political subdivision of the State, when the officer or employee is discharging or attempting to discharge his official duties.” N.C. Gen. Stat. § 14-33(b)(8)(1994). This language appears unaltered in N.C. Gen. Stat. § 14-33(c)(4). See N.C. Gen. Stat. § 14-33(c)(4)(2001). Clearly, this use of identical language demonstrates our legislature's intention that the statute's provisions “continue without any intermission.” McCluney, 280 N.C. at 405, 185 S.E.2d at 871 (citations omitted). Therefore, we find the Court's holding in McCluney is not dispositive of this case.
    Moreover, pursuant to N.C. Gen. Stat. § 15A-303(b), “[n]o criminal summons is invalid because of any technicality of pleadingif the statement is sufficient to identify the crime or infraction.” N.C. Gen. Stat. § 15A-303 (b). “An indictment or criminal charge is constitutionally sufficient if it apprises the defendant of the charge against him with enough certainty to enable him to prepare his defense and to protect him from subsequent prosecution for the same offense.” State v. Coker, 312 N.C. 432, 434, 323 S.E.2d 343, 346 (1984). The criminal summons, under which defendant was prosecuted, charged defendant with committing an “ASSAULT ON GOVERNMENT OFFICER/EMPLOYEE [G.S. 14-33(b)(8)] and strike SGT. RAYMOND BATTEN, a government (officer) OF MCAIN [sic] HOSPITAL by SHOVING THE OFFICER ONCE.” (emphasis in original). The information provided in the criminal summons meets the requirements of N.C. Gen. Stat. § 15A-303(b) and is therefore sufficient to have placed defendant on notice of the charge against him. Accordingly, we overrule this assignment of error.
    Defendant next contends the State's evidence is insufficient to support his conviction. To withstand a defendant's motion to dismiss for insufficient evidence, the State must point to the existence of substantial evidence of each element of the offense. See State v. Haywood, 297 N.C. 686, 689, 256 S.E.2d 715, 717 (1979)(citing State v. Allred, 279 N.C. 398, 404, 183 S.E.2d 553, 557 (1971)). Under N.C. Gen. Stat. § 14-33(c)(4), an individual is guilty of an assault on a government officer if he or she “[a]ssaults an officer or employee of the State. . .when the officer or employee is discharging or attempting to discharge his official duties.” N.C. Gen. Stat. § 14-33(c)(4). “In order toobtain a conviction under [this section], the burden is on the State to satisfy the jury from the evidence and beyond a reasonable doubt that the party assaulted was a law enforcement officer performing the duty of his office, and that the defendant knew his victim was a law enforcement officer.” State v. Rowland, 54 N.C. App. 458, 462, 283 S.E.2d 543, 546 (1981)(interpreting former N.C. Gen. Stat. § 14-33(b)(8)). Here, defendant concedes he knew Sergeant Batten was a law enforcement officer performing the duties of his office. Nonetheless, he maintains the State failed to provide sufficient evidence that he had “committed an assault with the requisite intent.” We disagree.
    An assault has been defined by our Supreme Court as:
        an overt act or attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another, which show of force or menace of violence must be sufficient to put a person of reasonable firmness in fear of immediate bodily harm.

State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967)(citations omitted). The charge of assault on a government officer does not require the State to prove a defendant has the specific intent to assault the officer. See State v. Page, 346 N.C. 689, 700, 488 S.E.2d 225, 232, cert. denied, 522 U.S. 1056, 139 L. Ed. 2d 651 (1997)(describing assault with a firearm on a law enforcement officer as a general intent offense); and State v. Woods, 126 N.C. App. 581, 587, 486 S.E.2d 255, 258 (1997)(noting assault with a deadly weapon inflicting serious injury is not a specific intent offense). Rather, the State must only demonstratean intent on the part of a defendant to commit an unlawful act. See Page, 346 N.C. at 700, 488 S.E.2d at 232. Such intent “may be implied from culpable or criminal negligence. . .if the injury or apprehension thereof is the direct result of intentional acts done under circumstances showing a reckless disregard for the safety of others and a willingness to inflict injury.” State v. Coffey, 43 N.C. App. 541, 543, 259 S.E.2d 356, 357 (1979)(citations omitted).     The State's evidence showed that defendant approached Sergeant Batten unprovoked and with his cane raised in both hands. He did this despite the correctional hospital's policy prohibiting inmates from physically touching officers. When Sergeant Batten moved to the side, he was struck by defendant's elbow. From these facts, a reasonable jury could infer defendant's intentional act constituted an assault on Sergeant Batten. Therefore, we overrule defendant's assignment of error.
    Finally, defendant contends the trial court committed plain error in its instructions to the jury regarding the definition of “assault.” “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.” State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378-79 (1983)(citations omitted). “[W]hen 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 trialcourt.'” Id. at 660-61, 300 S.E.2d at 378 (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 52 L. Ed. 2d 203, 212 (1977)).
    The record shows that the trial court instructed the jury as to the elements of assault on a government officer. Thereafter, the jury requested the trial court to clarify the definition of “assault.” The trial court then reinstructed the jury “--it's an overt act or an attempt or the unequivocal appearance of an attempt--it does not require physical contact to constitute an assault.” Despite his failure to object at trial, defendant maintains this further instruction amounts to plain error by reason that it permitted the jury to “predicate guilt on a theory of the crime not charged in the indictment and which was not supported by the evidence.”
    Our careful examination of the record leads us to conclude the evidence supports defendant's conviction regardless of whether he had made physical contact with Sergeant Batten. Therefore, we conclude the trial court's clarification for the jury as to what constitutes “assault” was not plain error. See State v. Barkley, 144 N.C. App. 514, 524, 551 S.E.2d 131, 138, appeal dismissed, 354 N.C. 221, 554 S.E.2d 646 (2001)(citing State v. Johnson, 320 N.C. 746, 360 S.E.2d 676 (1987))(holding trial court did not commit plain error where it provided a disjunctive instruction and the evidence was sufficient to support both theories for conviction).
    No error.
    Judges McGEE and CAMPBELL concur.
    Report per Rule 30(e).

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