NO. COA02-622

STATE OF NORTH CAROLINA

         v.                        Gaston County
                                No. 01 CRS 61260-61
ALLEN DAVID MOORE
    

    Appeal by defendant from judgment entered 17 January 2002 by Judge Timothy S. Kincaid in Gaston County Superior Court. Heard in the Court of Appeals 24 February 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Jill F. Cramer, for the State.

    Bruce T. Cunningham, Jr. for defendant-appellant.

    TYSON, Judge.

    Allen David Moore (“defendant”) appeals his conviction of assault with a firearm on a law enforcement officer, N.C.G.S. 14- 34.5, a Class E Felony, and resisting a public officer, N.C.G.S. 14-223, a Class 2 misdemeanor.

    The State's evidence tended to show that at approximately 7:15 p.m. on 12 August 2001, Officers Gary Davenport and Wayne Davis of the Dallas Police Department responded to a call regarding a man “running around Oak Grove Mobile Home Park with a shotgun.” The officers separately drove their marked patrol vehicles through the mobile home park looking for the suspect.     Officer Davenport observed defendant crouching between two vehicles watching Officer Davis's vehicle. He radioed Officer Davis, stopped his patrol vehicle and walked around to the front of his patrol vehicle. Officer Davenport wore a standard issue black uniform, which has patches on the shoulders and a large embroidered chest badge that reads “Police Department.” Officer Davis, who was dressed in the same uniform as Officer Davenport, exited his patrol vehicle when he saw Officer Davenport and defendant talking. Officer Davenport asked defendant how he was doing and defendant responded, “Not too good.” Officer Davenport noticed a shotgun lying on the ground four to five feet away from defendant. Officer Davenport asked defendant to elaborate and defendant stated something like “they are all trying to get me.”
    Defendant then picked up the shotgun and “swung an arc covering [Officer Davenport] toward the mobile home.” Both officers told defendant to put the gun down, but defendant ran into the woods behind the mobile home with the gun in his hand. Officer Davis pursued defendant into the woods. When Officer Davis came upon defendant in a clearing, defendant was standing with the shotgun pointed directly towards Officer Davis. Officer Davis yelled for defendant to put the gun down. Defendant tilted the shotgun, and emptied all the rounds from the shotgun. Officer Davis continued to tell defendant to put the gun down until defendant dropped the gun on the ground. After Officer Davis told defendant to drop to his knees three or four times, defendant dropped to his knees. Defendant, however, did not lie on hisstomach as ordered by Officer Davis. Officer Davis handcuffed defendant.
    Defendant testified that when he saw Officer Davis he was “[n]ot a hundred percent” sure he was a police officer and that he “took flight” because he did not “know they were police officers for sure.” Defendant testified that he did not predominately see the officer's badge, but he did notice his gun in a black holster. He also testified that when he was being handcuffed, “[he] still didn't know they were police officers for sure.” Defendant further testified that he never pointed his gun at Officer Davis. A jury found defendant guilty as charged and the trial court sentenced defendant within the presumptive range to a minimum of twenty-three months to a maximum of thirty-seven months imprisonment. Defendant appeals.

    Defendant first contends the trial court erred by not submitting the lesser included offense of assault with a deadly weapon. Defendant also contends he received ineffective assistance of counsel.    

    Defense counsel neither objected to the jury charges at trial, nor requested instructions on assault with a deadly weapon. Defendant, therefore, asks this Court to review this assignment of error for plain error. Plain error is error "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 havereached." State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988). Our Supreme Court has chosen to review such "unpreserved issues for plain error when Rule 10(c)(4) of the Rules of Appellate Procedure has been complied with and when the issue involves either errors in the trial judge's instructions to the jury or rulings on the admissibility of evidence." State v. Cummings, 346 N.C. 291, 313- 14, 488 S.E.2d 550, 563 (1997), cert. denied, 522 U.S. 1092, 139 L. Ed. 2d 873 (1998).
    We consider whether the trial court's failure to instruct on a lesser included offense amounted to plain error.     A trial court must give instructions on all lesser-included offenses that are supported by the evidence, even in the absence of a special request for such an instruction; and the failure to so instruct constitutes reversible error that cannot be cured by a verdict finding the defendant guilty of the greater offense. See State v. Montgomery, 341 N.C. 553, 567, 461 S.E.2d 732, 739 (1995). The trial court may refrain from submitting the lesser offense to the jury only where the "evidence is clear and positive as to each element of the offense charged" and no evidence supports a lesser- included offense. State v. Lawrence, 352 N.C. 1, 19, 530 S.E.2d 807, 819 (2000), cert. denied, 531 U.S. 1083, 148 L. Ed. 2d 684 (2001)(internal quotations omitted). If there is any evidence that indicates the absence of an important element of the primary offense and the existence of an element of a lesser offense, the jury must be instructed on the lesser offense as well. See Statev. Annadale, 329 N.C. 557, 406 S.E.2d 837 (1991).
    However, "[a] defendant is not entitled to an instruction on a lesser included offense merely because the jury could possibly believe some of the State's evidence but not all of it." Annadale, 329 N.C. at 568, 406 S.E.2d at 844. The elements of assault with a deadly weapon on a law enforcement officer include: (1) an assault; (2) with a deadly weapon; (3) on a law enforcement officer; (4) in performance of his official duties. N.C. Gen. Stat. § 14- 34.2. (2001).
    Defendant does not dispute that there was uncontroverted evidence that defendant pointed a shotgun in the direction of Officer Davis, who was acting in the performance of his duties. Defendant concedes “[t]he State also presented evidence from which the jury could conclude the Defendant knew Mr. Davis was a law enforcement officer.” Defendant argues that the jury should have been instructed on assault with a deadly weapon because he presented evidence from which the jury could find that he did not know Officer Davis was a law enforcement officer. Defendant, however, relies only on his self-serving statements that he did not “know they were police officers for sure.” Defendant does not challenge the State's evidence that: (1) Officers Davis and Davenport drove marked patrol vehicles through the mobile home park; (2) defendant watched Officer Davis' patrol vehicle; (3) the officers were dressed in a uniform with patches on the shoulders and an embroidered “Police Department” chest badge; (4) Officer Davis was clearly visible to defendant when defendant allegedlypointed the shotgun at him; and (5) defendant noticed Officer Davis' gun in a black holster. We conclude that there was no evidence before the court supporting an instruction on the lesser- included offense of assault with a deadly weapon. We find no error, plain or otherwise, on this issue.
    Defendant contends that his counsel was ineffective by failing to present evidence at sentencing to support a statutory mitigating factor. He argues that his attorney neglected to call his mother as a witness to prove he had a support system in the community. We disagree.
    The test for ineffective assistance of counsel is the same under both the United States and North Carolina Constitutions. State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985). When a defendant attacks his counsel's performance on the basis that counsel was ineffective, he must show that his counsel's conduct fell below an objective standard of reasonableness. Id. at 561-62, 324 S.E.2d at 248. To meet this burden defendant must satisfy a two-part test set out in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984).
        First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id. at 687, 80 L. Ed. 2d at 693.
    Defendant failed to show that his counsel's performance was deficient. Defendant's attorney properly argued at the sentencing phase that defendant had family support in the community, which would be a mitigating factor. Defendant's attorney stated to the court that at the time the offense occurred, defendant was living with his mother and that defendant's mother was present throughout the trial. The trial court then “considered the evidence presented as well as the arguments of the State and the Defendant with respect to factors in aggravation and mitigation” and determined that a sentence in the presumptive range was appropriate.
    Defendant has not shown that he was prejudiced by the fact that his mother did not testify at the sentencing hearing. Even if the trial court heard testimony from his mother, defendant cannot show that the trial court would have found the mitigating factor that defendant had support in the community and that the trial court would have sentenced him in the mitigated range based. See N.C.G.S. § 15A-1340.16(a); N.C.G.S. § 15A-1340.16(b) (Although the trial court must consider evidence of aggravating or mitigating factors, it is within the court's discretion whether to depart from the presumptive range.)     
    Defendant also argues that his counsel was ineffective by failing to request the submission of the lesser included offense of assault with a deadly weapon. Because we determined the trial court did not err in failing to submit the lesser included offense, defense counsel had no reason to request instructions on the lesserincluded offense. Defense counsel cannot be found ineffective on that basis. Defendant's assignment of error is overruled.

    We have carefully reviewed both of defendant's assignments of error and conclude that defendant received a trial free from errors he assigned and argued.
    No error.
    Judges TIMMONS-GOODSON and BRYANT concur.
    Report per Rule 30(e).
    

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