STATE OF NORTH CAROLINA
v. Mecklenburg County
Nos. 99 CRS 33455
DAVID BRUTON SMITH 99 CRS 33456
Attorney General Roy Cooper, by Assistant Attorney General
Teresa L. White, for the State.
James, McElroy & Diehl, P.A., by Lawrence W. Hewitt, and The
Bailey Law Firm, by Allen A. Bailey, for defendant-appellant.
THOMAS, Judge.
Defendant, David Smith, appeals convictions of simple assault
and injury to personal property. His thirty-day sentence was
suspended and he was placed on unsupervised probation for eighteen
months. Defendant was ordered to pay $885.27 in fines, court costs
and restitution, and was ordered to complete an anger management
class.
The State presented evidence at trial which tends to show the
following: On 24 July 1999, defendant and four friends took his
mother's boat to Lake Norman. After a couple of hours riding on
the lake, defendant noticed that the boat's engine was overheating.
He pulled the engine cover up and noticed that a belt had comeloose so he decided to have the boat towed.
Defendant contacted Lazar Kay, who operated a commercial
rescue service. Kay told defendant that he charged “portal-to-
portal $100 an hour.” Defendant agreed. Kay went to where the
boat was stranded and defendant pointed in the direction he wanted
Kay to tow the boat. Kay towed defendant's boat to the cove where
defendant's mother lived but noticed that the water was shallow.
Then, Kay
decided to do what we normally do when we're
trying to put a boat in dock; that is, bring
the boat alongside of our boat to move it into
the dock, rather than to try and tow them at
the end of a . . . line, and possibly let him
go aground.
According to Kay, when he pulled the boat alongside defendant's
boat, defendant became abusive, demanded to know what Kay was
doing, and began questioning if Kay knew what he was doing.
Because of the tone of the conversation, Kay asked for payment for
the tow before they reached the dock. Kay requested $150, since he
had spent an hour and a half in total since leaving his dock.
Defendant refused to pay. Kay told defendant if he refused to pay,
he had the right to take the boat to his own dock. At that point,
Kay put the boat into first gear so that the lines between the
boats would tighten up, and the boats bumped into each other, the
fenders of the boats taking the shock of the blow.
After the boats bumped, defendant jumped into Kay's boat,
grabbed Kay's arm with one hand, reached down and took the keys out
of the ignition and threw them into the water. When Kay went to
get his cell phone to call 911, defendant grabbed the phone out ofhis hand and threw it in his boat, with the battery coming loose
and falling into the water. Defendant then jumped back into his
boat, untied the lines, pushed the boat away and paddled to shore.
Kay radioed for help, and was eventually towed into Kings
Point, where an ambulance and a policeman were waiting. The skin
on Kay's arm where defendant had grabbed him was torn and bleeding,
and paramedics wrapped the arm in a bandage.
Defendant's evidence tends to show the following: Defendant
believed Kay was overcharging him and that the tow should have cost
$100, not $150. Defendant testified that when Kay threatened to
take the boat to Kay's own dock, he thought Kay was “not thinking
right . . . . [H]e's just mad.” Defendant then decided to untie
the line from the boat. When he did so, Kay put his boat in full
throttle, and the boats slammed together, just about sending
everybody into the water. Defendant then jumped into Kay's boat,
grabbed Kay to restrain him, and pulled the throttle back into
neutral. Defendant contended he reacted because he thought he and
his friends were in “danger.” Defendant stated that Kay then
agreed to take them home. Defendant testified that he thought the
ignition key had a “flotation device” attached and would float when
he threw it into the water. Defendant additionally testified that
he threw the phone into his boat because he “knew that making a
phone call had nothing to do with taking us home[.]” Defendant
asserted that he never intended to destroy the phone or hurt Kay.
Defendant's sole argument on appeal is that there was
insufficient evidence to support the verdicts. First, defendantargues that the State failed to prove that he committed an assault
because the evidence shows that he was merely attempting to stop
Kay from damaging the boat or injuring others. Second, defendant
argues that the State failed to show defendant's actions in
grabbing Kay's cell phone and tossing it into his boat constituted
a conscious and intentional disregard or indifference to the rights
and safety of Kay. Defendant contends such a showing was necessary
to show a wanton injury of property. We disagree.
To survive a motion to dismiss, the State must present
substantial evidence of each essential element of the charged
offense. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434
(1997). “'Substantial evidence is relevant evidence that a
reasonable mind might accept as adequate to support a conclusion.'”
Id. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C.
557, 564, 411 S.E.2d 592, 595 (1992)).
“All that is necessary to sustain a conviction for assault is
evidence of an overt act showing an intentional offer by force and
violence to do injury to another sufficient to put a person of
reasonable firmness in apprehension of immediate bodily harm.”
State v. Musselwhite, 59 N.C. App. 477, 481, 297 S.E.2d 181, 184
(1982)(citing State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303,
305 (1967)). Here, the State presented evidence that defendant
jumped in Kay's boat and grabbed his arm, causing injury. This
evidence, when viewed in the light most favorable to the State, was
sufficient in itself to submit this case to the jury. Defendant's
arguments that he was provoked and that he grabbed Kay only todisengage his boat goes to the weight of the evidence and not the
sufficiency of the evidence on a motion to dismiss. See State v.
Haynesworth, 146 N.C. App. 523, 527, 553 S.E.2d 103, 107
(2001)(“When considering a motion to dismiss, the trial court 'is
concerned only with the sufficiency of the evidence to carry the
case to the jury and not with its weight.' Any contradictions or
discrepancies in the evidence are for resolution by the jury and do
not warrant dismissal.”).
As to defendant's argument that there was insufficient
evidence that he intentionally injured Kay's property, it is
likewise without merit. Pursuant to N.C. Gen. Stat. § 14-160(a),
a person is guilty of a Class 2 misdemeanor if he should “wantonly
and willfully injure the personal property of another.” In order
to prove that defendant's actions were “willful or wanton,” the
State need not prove malice. State v. Casey, 60 N.C. App. 414,
417, 299 S.E.2d 235, 237 (1983) (citing State v. Sneed, 121 N.C.
614, 28 S.E. 365 (1897)).
“[W]ilful as used in criminal statutes means
the wrongful doing of an act without
justification or excuse, or the commission of
an act purposely and deliberately in violation
of the law.” “Wantonness . . . connotes
intentional wrongdoing. . . . Conduct is
wanton when in conscious and intentional
disregard of and indifference to the rights
and safety of others.”
Id. at 416-17, 299 S.E.2d at 237 (citations omitted). Here,
defendant's action was wanton because it was a conscious and
intentional act done in disregard of Kay's property rights in the
cell phone. Id. There was no “justification or excuse” for takingthe phone from Kay and throwing it in his boat. Id. Accordingly,
we find no error.
NO ERROR.
Judges WALKER and BIGGS concur.
Report per Rule 30(e).
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