Appeal by defendant from judgments entered 8 March 2002 by
Judge Howard R. Greeson, Jr. in Superior Court, Brunswick County.
Heard in the Court of Appeals 27 March 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Clinton C. Hicks, for the State.
Geoffrey W. Hosford, for defendant.
McGEE, Judge.
Robert Michael Stillwell (defendant) was convicted on 8 March
2002 of two counts of assault upon a government official and one
count of assault with a deadly weapon upon a government official.
After determining defendant had a prior record level of III, the
trial court sentenced defendant to two terms of 150 days active
imprisonment to run consecutively, as well as a minimum term of 21
months to a maximum term of 35 months suspended, subject to 60
months supervised probation to begin at the expiration of the two
terms of active imprisonment. Defendant appeals.
The State's evidence tended to show that defendant, along with
his girlfriend, Chasity Steele (Ms. Steele), his mother, SheilaHolland (Ms. Holland), and his stepfather, Charles Holland (Mr.
Holland), had dinner in Shallotte, North Carolina at Zeng's Chinese
Restaurant (the restaurant) on 16 March 2001 around 7:30 to 8:00
p.m. Defendant was a resident of Gastonia, North Carolina. The
group had been in Myrtle Beach, South Carolina earlier that day,
and had consumed some alcoholic beverages around 4:30 or 5:00 p.m.
Defendant had consumed four beers, Ms. Steele had consumed a few
mixed drinks, Mr. Holland had consumed four or five beers, and Ms.
Holland had consumed at least three rum drinks. At least three law
enforcement officers who witnessed the group testified that all of
the members of the group appeared to be impaired that evening.
Everyone in the group ordered the buffet dinner at the
restaurant. Before leaving, Ms. Steele asked the waiter for a to-
go container because she could not finish all of the food on her
plate. After Ms. Steele put her food in the to-go container the
owner, Margaret Zeng (Ms. Zeng), told Ms. Steele that she would
have to pay extra to take the to-go container out of the
restaurant. Ms. Zeng explained this to Ms. Steele and the group
several times. The group became angry, cursed excessively and were
rude to Ms. Zeng. Ms. Steele said she was not going to pay for
another buffet and threw the to-go container at Ms. Zeng, covering
her with food.
Ms. Zeng called 911 and had begun speaking with a 911 operator
when she noticed that two Brunswick County deputy sheriffs were
standing in the restaurant doorway waiting to be seated. Deputies
Todd and Babson were not in uniform; however, they were wearingtheir sheriff's badges and their guns. Ms. Zeng asked the deputies
if they were on duty and they said they were. At the same time,
Ms. Holland was attempting to leave the restaurant with a container
of food. Deputy Todd advised defendant, Ms. Holland, and Mr.
Holland that she and Deputy Babson were deputy sheriffs. Deputy
Babson told Ms. Holland that if she left the restaurant with the
food, she would be arrested. Ms. Holland walked outside, followed
by Ms. Zeng, the deputy sheriffs, defendant and Mr. Holland.
While Ms. Zeng was telling the deputy sheriffs what had
happened in the restaurant, Ms. Steele became angry and violent,
prompting Deputy Babson to ask Ms. Steele to step aside to settle
her down. Ms. Zeng also testified that as she continued telling
the deputies what had occurred, Ms. Holland said, "I'm going to
throw this other plate of food at you." Deputy Todd responded,
"[i]f you throw that plate, I'm going to arrest you right here."
Ms. Holland bent over and said, "[o]h, she's punched me in the
face." However, Deputy Todd testified that she did not hit Ms.
Holland at any time. Deputy Babson dialed 911 on her cell phone to
request another officer. Defendant shouted, "[w]hip her a--" and
"I don't give a [g.d.], bring the [m.f.] police on." Defendant
began walking toward Deputy Todd, who put her hand up warning
defendant not to approach her. Defendant stated, "If you didn't
have that gun and that badge on your side, I'd show you how it was
done in Gastonia." Deputy Babson's call to 911 was abruptly ended
when Ms. Steele hit her from behind, knocking the cell phone from
Deputy Babson's hand. Deputy Todd testified that Ms. Steeleshouted, "[y]ou hit my mother-in-law, I'll kick your a_ _," and
then began attacking Deputy Todd. Deputy Todd told Ms. Steele that
she was under arrest. Defendant blocked Deputy Todd's path to Ms.
Steele, moving in between Ms. Steele and Deputy Todd every time
Deputy Todd tried to place Ms. Steele under arrest. While
defendant was acting as a shield, Ms. Steele hit Deputy Todd in the
face twice and kicked her once or twice.
Deputy Babson testified that Ms. Steele turned on her, saying
that "nobody touched her husband." Defendant responded, saying,
"[u]ndoubtedly, they don't know how we f----d them up in Gastonia."
Deputy Babson called 911 again and followed Ms. Steele into the
parking lot. Deputy Babson placed one hand on Ms. Steele and one
hand on the door of the car Ms. Steele was walking towards.
Defendant grabbed Deputy Babson from behind by her arms and pulled
her around. While Deputy Babson was being held by defendant, Ms.
Steele hit her in the face and grabbed her glasses and hair.
Defendant bruised and scratched Deputy Babson's arms when he
grabbed her.
After Deputy Babson struggled free from defendant's grasp,
defendant and Ms. Steele were standing in front of Deputy Babson.
Defendant was also pinning Deputy Todd up against the car. Ms.
Holland reached around defendant and Ms. Steele and stabbed Deputy
Babson in the hip with a knife. Deputy Babson shouted to Deputy
Todd that she had been stabbed by Ms. Holland. Ms. Holland and
defendant ran away, enabling Deputy Babson to regain control of Ms.
Steele. After several law enforcement officers arrived, Deputy Babson
asked Deputy Marshall Evans to take Ms. Steele since Deputy Babson
had been stabbed and needed to go to the rescue unit. Deputy
Babson was taken by ambulance to Brunswick Emergency Center.
Deputy Evans arrested Ms. Steele and placed her in a patrol car.
Deputy Todd and another officer went back into the restaurant to
find Ms. Holland. After an initial struggle, Ms. Holland was
arrested. Deputy Todd placed Ms. Holland in the patrol car where
Ms. Steele was seated. Ms. Holland pinned Deputy Todd against the
cage unit in the patrol car and began kicking her in the face,
shouting, "[y]ou four-eyed b--ch, I'll beat your a--." After
Deputy Todd got Ms. Holland under control, defendant and Mr.
Holland walked by the patrol car and defendant stated, "[t]his is
the way we do it in Gastonia."
Defendant testified at trial that after Ms. Steele left the
restaurant, he went to the counter to pay for his meal. He
testified that he could not pay for his meal because Ms. Zeng left
the register. While he was looking through the glass door of the
restaurant, he saw Deputy Todd yanking Ms. Steele around, and he
told Ms. Holland to go see what was going on. Defendant testified
that he did not know Deputy Todd was a law enforcement officer.
Defendant testified that he pinned Deputy Todd against a car and
Deputy Todd then slapped him, and that as defendant was preparing
to punch Deputy Todd, she pulled out her badge, causing defendant
to stop. Defendant testified that he only tried to help restrain
Ms. Steele and did not intentionally strike Deputy Babson as sheand Ms. Steele were walking away from the restaurant. Defendant
denied that the voice heard on the 911 tapes shouting obscenities
was his, or that he ever stated anything in a threatening way about
being from Gastonia. Defendant admitted he had been convicted of
two counts of simple possession of marijuana, one count of carrying
a concealed weapon, and one count of trespassing.
Julia Hardy (Ms. Hardy) testified she witnessed what happened
at the restaurant. Ms. Hardy was being represented in another
matter by the attorney representing Ms. Steele in this case. She
testified that she saw food flying in the restaurant, and then saw
Ms. Steele leave the restaurant. Ms. Hardy testified that
defendant and Mr. Holland attempted to pay for their food before
leaving the restaurant. She did not notice anything about the
appearance of Deputies Babson and Todd that suggested they were law
enforcement officers. However, Ms. Hardy admitted that she could
not see the second deputy very well because the deputies were
standing one in front of the other blocking her angle of vision.
Ms. Hardy also testified that she saw Deputy Todd hit Ms. Holland
in the face, but on cross-examination she agreed it was more of a
push than a strike. Ms. Hardy testified that she did not see
defendant touch either of the deputies; however, she admitted she
could not see the part of the incident that occurred farther into
the parking lot between the cars.
Mr. Holland testified that as the group finished eating, Ms.
Steele became angry and slammed her to-go container down on the
table, causing food to fly everywhere. He testified that Ms.Steele then left the restaurant. Mr. Holland said that while
standing in line to pay for his meal, he saw Ms. Steele outside the
restaurant arguing with Deputy Todd. While he and defendant stood
in line to pay, defendant sent Ms. Holland outside to see what was
going on. He testified that Deputy Todd began "whupping up" on Ms.
Steele and that Ms. Holland was trying to break it up. Mr. Holland
testified that when he and defendant walked outside, he saw Deputy
Todd slap Ms. Holland. Mr. Holland became angry and shouted,
"[s]omeone needs to call the G.D. police." He also testified that
defendant pushed Deputy Todd against a car, and that Deputy Todd
pulled out her badge and said, "I am the police." Other police
officers arrived and Mr. Holland was told to pay for the meals,
which he did. When he came back outside, Ms. Holland and Ms.
Steele were being arrested.
When defendant arrived for the first court appearance of Ms.
Steele and Ms. Holland on 19 March 2001, he was arrested on
warrants for two counts of assault on a government official. An
indictment was later issued by a grand jury for assault with a
deadly weapon on a government official by defendant.
Defendant has failed to put forth an argument in support of
his second assignment of error and this assignment is deemed
abandoned pursuant to N.C.R. App. P. 28(b)(6).
I.
Defendant argues the trial court erred in denying his motion
to dismiss the charges at the close of the State's evidence and at
the close of all evidence, in that the evidence was insufficient tosupport the charges. Specifically, defendant argues that even
viewed in a light most favorable to the State, there is no evidence
that defendant aided or actively encouraged Ms. Holland to stab
Deputy Babson. Defendant has limited his argument to the assault
with a deadly weapon charge, thus abandoning any claim of
insufficient evidence to support the two charges of assault on a
government official. N.C.R. App. P. 28(b)(6).
"When considering a motion to dismiss, '[i]f
the trial court determines that a
reasonable
inference of the defendant's guilt
may be
drawn from the evidence, it must deny the
defendant's motion and send the case to the
jury even though the evidence may also support
reasonable inferences of the defendant's
innocence.'"
State v. Alexander, 337 N.C.
182, 187, 446 S.E.2d 83, 86 (1994) (quoting
State v. Smith, 40 N.C. App. 72, 79, 252
S.E.2d 535, 540 (1979)), quoted in
State v.
Grigsby, 351 N.C. 454, 456-57, 526 S.E.2d 460,
462 (2000). In analyzing a motion to dismiss,
the trial court must consider the evidence in
the light most favorable to the State.
State
v. Davis, 325 N.C. 693, 696, 386 S.E.2d 187,
189 (1989). Moreover, the State is given
every reasonable inference to be drawn from
the evidence.
Id. If substantial evidence
exists, whether direct, circumstantial, or
both, supporting a finding that the offense
charged was committed by the defendant, the
case must be left for the jury.
Id. at
696-97, 386 S.E.2d at 189. "Substantial
evidence is such relevant evidence as a
reasonable mind might accept as adequate to
support a conclusion."
State v. Brown, 310
N.C. 563, 566, 313 S.E.2d 585, 587 (1984).
State v. Matias, 354 N.C. 549, 551-52, 556 S.E.2d 269, 270 (2001).
The trial court submitted the charge of assault with a deadly
weapon to the jury on the basis of acting in concert. As stated by
our Supreme Court in
State v. Mann:
The doctrine of acting in concert, asreaffirmed by this Court in
State v. Barnes,
345 N.C. 184, 481 S.E.2d 44,
cert. denied, 522
U.S. 876, 139 L. Ed. 2d 134 (1997),
and cert.
denied, 523 U.S. 1024, 140 L. Ed. 2d 473
(1998), is summarized as follows:
'[I]f "two persons join in a purpose
to commit a crime, each of them, if
actually or constructively present,
is not only guilty as a principal if
the other commits that particular
crime, but he is also guilty of any
other crime committed by the other
in pursuance of the common purpose
. . . or as a natural or probable
consequence thereof.'"
State v. Erlewine, 328 N.C. 626, 637, 403
S.E.2d 280, 286 (1991) (quoting
State v.
Westbrook, 279 N.C. 18, 41-42, 181 S.E.2d 572,
586 (1971),
death sentence vacated, 408 U.S.
939, 33 L. Ed. 2d 761 (1972)) (alterations in
original),
quoted in Barnes, 345 N.C. at 233,
481 S.E.2d at 71. For purposes of the
doctrine, "[a] person is constructively
present during the commission of a crime if he
or she is close enough to be able to render
assistance if needed and to encourage the
actual perpetration of the crime."
State v.
Willis, 332 N.C. 151, 175, 420 S.E.2d 158, 169
(1992).
Mann, 355 N.C. 294, 306, 560 S.E.2d 776, 784,
cert. denied, ___
U.S. ___, 154 L. Ed. 2d 403 (2002). Under this standard, when
viewed in a light most favorable to the State, there is sufficient
evidence to permit a jury to find that defendant, Ms. Holland, and
Ms. Steele had a joint purpose to resist and overpower Deputies
Babson and Todd. Defendant was at least constructively present in
that he was "close enough to be able to render assistance if needed
and to encourage the actual perpetration of the crime."
Mann, 355
N.C. at 306, 560 S.E.2d at 784 (citations omitted). In fact, the
evidence was sufficient to allow a jury to find that defendant wasactively present during the resistance. There was evidence that
defendant entered the scuffle to assist Ms. Steele and Ms. Holland
in their dispute with Deputies Babson and Todd. Further, there was
evidence that defendant made such statements during the scuffle as
"[w]hip her a--," "I don't give a [g.d.], bring the [m.f.] police
on," and "they don't know how we f----d them up in Gastonia."
Defendant also grabbed Deputy Babson from behind, leaving bruises
on her arms, and held her while Ms. Holland hit her in the face,
grabbed her glasses, and pulled her hair.
Although evidence showed that Ms. Holland actually stabbed
Deputy Babson, as stated above, under the theory of acting in
concert, defendant is guilty of any "crime committed by the other
in pursuance of the common purpose . . . or as a natural or
probable consequence thereof."
Mann, 355 N.C. at 306, 560 S.E.2d
at 784 (citations omitted). In fact, the stabbing occurred while
Deputies Babson and Todd were either held or distracted by
defendant and Ms. Steele. There was sufficient evidence to permit
a jury to find that the stabbing of Deputy Babson was committed in
pursuance of the common purpose of resisting Deputies Babson and
Todd. The trial court did not err in denying defendant's motion to
dismiss. This assignment of error is overruled.
II.
Defendant next argues the trial court committed plain error in
conducting the charge conference off the record, presumably hearing
requests for jury instructions from counsel at that time,
announcing its proposed jury instructions, and failing to give defendant an opportunity to object to the instructions. This
contention is without merit.
N.C. Gen. Stat. § 15A-1231(b) (2001) states:
Before the arguments to the jury, the
judge must hold a recorded conference on
instructions out of the presence of the jury.
At the conference the judge must inform the
parties of the offenses, lesser included
offenses, and affirmative defenses on which he
will charge the jury and must inform them of
what, if any, parts of tendered instructions
will be given. A party is also entitled to be
informed, upon request, whether the judge
intends to include other particular
instructions in his charge to the jury. The
failure of the judge to comply fully with the
provisions of this subsection does not
constitute grounds for appeal unless his
failure, not corrected prior to the end of the
trial, materially prejudiced the case of the
defendant.
Although the trial court did conduct an informal charge
conference off the record, it also heard motions by co-defendants
Ms. Steele and Ms. Holland for a special instruction. The trial
court then asked if there were "[a]ny other special requests?," to
which defendant's counsel remained silent. (T. p. 469) The trial
court then stated:
Well, I want to -- I need to have -- at
this point, I need to open it up for a
recorded charge conference. I've given each
of you a copy of the proposed charge. We've
gone through it informally, but I want any of
you at this time to tell me -- to put on the
record any objections or exceptions, if you've
got -- to what I've given you.
Counsel for co-defendants again requested special instructions and
stated their objections on the record to the proposed jury
instructions. Although defendant's counsel was present at thetime, defendant's counsel again remained silent as to the proposed
jury instructions despite already having a copy of the
instructions; her presence is evidenced by the renewal of
defendant's motion to dismiss, which was denied. We also note that
even before the close of the State's evidence, the trial court gave
all parties a copy of the proposed jury charge and discussed the
proposed charge with them, taking suggestions from counsel, and
encouraging each party to "read the charge more carefully." There
was also extended discussion concerning the proposed instruction
when motions were made at the close of the State's evidence, in
which defendant's counsel made a request concerning the proposed
jury instruction. Following closing arguments, the trial court
asked if there was anything further for any of the defendants, to
which each responded there was not. The following morning, the
trial court again asked each attorney individually if there were
any matters to be heard by the court and each responded there was
not. After instructing the jury, the trial court asked if there
were any objections. Counsel for co-defendant Ms. Steele raised an
objection, resulting in remedial action by the trial court;
however, counsel for defendant remained silent.
The trial court did not violate the requirements of N.C.G.S.
§ 15A-1231(b). The trial court conducted a charge conference on
the record and defendant's counsel had a copy of the proposed jury
instructions and was given several opportunities to object on the
record, which counsel for defendant did not do. This assignment of
error is overruled.
III.
Defendant argues the trial court erred in excusing juror
number three. Defendant contends that the trial court's dismissal
of the juror without making an inquiry as to her ability to render
a fair verdict constituted plain error. We disagree.
During the trial, the trial court learned that juror number
three had contact with Ms. Hardy, a proposed defense witness.
Juror number three did not know that Ms. Hardy was going to be a
defense witness when she spoke with her. The trial court's inquiry
as to the nature of the discussion between juror number three and
Ms. Hardy did not show they discussed defendant's case, only that
they discussed an upcoming baby shower. However, because of "the
appearance of an impropriety" and out of caution the trial court
dismissed juror number three, replacing her with an alternate
juror. Defendant did not object to the trial court's dismissal of
juror number three.
It is well-settled law in this State that
the determination of the trial court on the
question of juror misconduct will be reversed
only where an abuse of discretion has
occurred.
O'Berry v. Perry, 266 N.C. 77, 145
S.E.2d 321 (1965);
Brown v. Products Co., 5
N.C. App. 418, 168 S.E.2d 452 (1969); 7
Strong, N. C. Index 2d, Trial, § 50 (1968).
The reason for the rule of discretion is
apparent. Misconduct is determined by the
facts and circumstances in each case. The
trial judge is in a better position to
investigate any allegations of misconduct,
question witnesses and observe their demeanor,
and make appropriate findings.
State v. Drake, 31 N.C. App. 187, 190, 229 S.E.2d 51, 54 (1976).
We hold that the trial court in this case did not abuse itsdiscretion. Even though the trial court's investigation of the
conversation between Ms. Hardy and juror number three did not show
that they discussed defendant's case, the trial court, after
admonishing the jurors not to converse with witnesses in the case,
determined that "[y]ou're not going to convince one side they're
getting a fair trial if they see a juror in the presence of a party
or a witness for the other side, even though they may be talking
about [something innocuous]." The trial court's action to avoid
possible prejudice to defendant, when juror number three clearly
spoke with a witness in the trial during a recess, is not an abuse
of discretion.
Further, defendant has not shown any prejudice that
resulted from the dismissal of juror number three and her
replacement by an alternate juror. This assignment of error is
overruled.
IV.
Defendant argues the trial court erred in granting the State's
motion to join defendant's and co-defendants' cases for trial.
Defendant argues that the joinder prohibited him from using an
exculpatory statement in his defense, in that the State agreed to
not introduce a statement co-defendant Ms. Steele made to law
enforcement which implicated co-defendant Ms. Holland as the person
who stabbed Deputy Babson in the hip.
N.C. Gen. Stat. § 15A-926(b) allows for joinder of separate
defendants for trial where their offenses are transactionally
related and where no defendant would be deprived of a fair trail
due to the joinder.
State v. Cinema Blue of Charlotte, 98 N.C.App. 628, 633, 392 S.E.2d 136, 139,
appeal dismissed and disc.
review denied, 327 N.C. 142, 394 S.E.2d 181 (1990),
cert. denied,
498 U.S. 1083, 112 L. Ed. 2d 1042 (1991). In
Cinema Blue of
Charlotte, this Court explained:
G.S. 15A-926(a) allows consolidation of
separate offenses for trial when the offenses
charged are "based on the same act or
transaction or on a series of transactions
connected together or constituting parts of a
single scheme or plan." Subsection (b)
similarly permits joinder of separate
defendants for trial when the several offenses
charged are transactionally related. . . .
In addition to the transactional
requirement, the trial court must determine
that none of the defendants would be deprived
of a fair trial by being tried together or by
facing more than one charge at the same trial.
State v. Williams, 74 N.C. App. 695, 329
S.E.2d 705 (1985). However, when the offenses
are transactionally related, the trial court's
ruling on a motion for joinder or severance is
discretionary and, absent a showing of abuse,
will not be disturbed on appeal.
State v.
Wilson, 57 N.C. App. 444, 291 S.E.2d 830,
cert. denied, 306 N.C. 563, 294 S.E.2d 375
(1982);
State v. Lake, 305 N.C. 143, 286
S.E.2d 541 (1982).
Cinema Blue of Charlotte, 98 N.C. App. at 633, 392 S.E.2d at 139.
Defendant does not argue that the offenses in question are not
transactionally related. However, defendant does argue that his
right to a fair trial was violated, and thus the joinder was
improper.
See id. Defendant contends that the statement by co-
defendant Ms. Steele that co-defendant Ms. Holland stabbed Deputy
Babson is an exculpatory statement. The State could not admit Ms.
Steele's statement because in a joint trial it would violate co-
defendant Ms. Holland's rights under the confrontation clause ofthe Sixth Amendment.
Bruton v. United States, 391 U.S. 123, 135-
36, 20 L. Ed. 2d 476, 484-85 (1968) (holding that an accused's
rights under the Sixth Amendment confrontation clause are violated
if the court admits a non-testifying co-defendant's statement
inculpating the accused at a joint trial). Defendant further
argues that by joining the cases for trial, due to the limitation
in
Bruton, defendant's right to present witnesses in his own
defense and his right to confrontation were denied.
Upon review of the record, there was sufficient evidence
otherwise demonstrating that co-defendant Ms. Holland, not
defendant, stabbed Deputy Babson. The statement of co-defendant
Ms. Holland is not exculpatory as to defendant when there was never
any issue as to who stabbed Deputy Babson. Further, this statement
could not be classified as exculpatory where defendant was
convicted of assault with a deadly weapon on a government official
under the theory of acting in concert. As discussed above, under
the theory of acting in concert, defendant did not need to be the
person who stabbed Deputy Babson to be convicted of assault with a
deadly weapon on a government official.
See Mann, 355 N.C. at 306,
560 S.E.2d at 784.
The trial court did not abuse its discretion in
allowing the State's motion for joinder. This assignment of error
is overruled.
V.
Defendant also argues the trial court erred in its jury
instructions. Defendant specifically contends that the trial court
committed plain error by: (1) deviating from the North CarolinaPattern Jury Instruction on reasonable doubt, thus lowering the
State's burden of proof; (2) instructing the jury that as a matter
of law, the State has proven two of the elements of assault on a
government official, thereby reducing the State's burden of proof;
and (3) improperly expressing an opinion by asking the jury several
times during the instructions whether they understood the
instructions or had any questions. Since defendant did not object
to the jury instructions at trial, under N.C.R. App. P. 10(b)(2)
and
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983),
we review the instructions for plain error only, as requested by
defendant. In order to show plain error, a defendant must show
that the alleged jury instruction error "had a probable impact on
the jury's finding that the defendant was guilty."
Odum, 307 N.C.
at 660, 300 S.E.2d at 378 (citation omitted).
A.
Defendant contends that the trial court's instruction on
reasonable doubt violated defendant's due process rights,
constituting plain error, in that it lowered the State's burden to
less than that of proving defendant guilty beyond a reasonable
doubt. We find this argument to be without merit. When the trial
court defines "reasonable doubt" for a jury, that definition must
be "substantially correct."
State v. Miller,
344 N.C. 658, 671,
477 S.E.2d 915, 923 (1996) (citation omitted). "[N]o particular
formation of words is necessary to properly define reasonable
doubt, but rather the instructions, in their totality, must not
indicate that the State's burden is lower than 'beyond a reasonabledoubt.'"
State v. Taylor, 340 N.C. 52, 59, 455 S.E.2d 859, 862-63
(1995) (citing
Victor v. Nebraska, 511 U.S. 1, 127 L. Ed. 2d 583
(1994)).
In the present case, the trial court instructed the jury that:
Now a reasonable doubt, members of the
jury means exactly what it says. It's not a
mere possible [sic]. It's not an academic or
a theoretical or a forced doubt. There are
few things in human experience which are
beyond a shadow of a doubt or which are beyond
all doubt. Nor is it a doubt suggested by the
ingenuity of counsel for either side or even
by your own ingenuity of mind not legitimately
warranted by the evidence and the testimony
here in this case.
Of course, your reason and
your common sense would tell you that a doubt
would be reasonable if it was founded upon or
it was suggested by any of these types of
considerations. A reasonable doubt is a doubt
based on reason and common sense, arising out
of some or all of the evidence that has been
presented or the lack of or insufficiency of
the evidence, as the case may be.
Proof beyond a reasonable doubt is proof
that fully satisfies or entirely convinces you
of the Defendant's guilt. (Emphasis added.)
Defendant argues that the emphasized wording in this
instruction creates an "inherent contradiction" for the jury. We
disagree. The language of the instruction on reasonable doubt
given by the trial court does not indicate that the State's burden
is less than "beyond a reasonable doubt." The sentence defendant
complains of was immediately followed by language indicating to the
jury what considerations are appropriate in reaching its decision
and what considerations are inappropriate. Defendant has not met
his burden of showing that the reasonable doubt instruction "had a
probable impact on the jury's finding that the defendant wasguilty."
Odum, 307 N.C. at 660, 300 S.E.2d at 378 (citation
omitted).
B.
Defendant argues that the trial court committed plain error by
instructing the jury that, as a matter of law, the jury must find
(1) that Deputy Babson was an officer of a political subdivision of
North Carolina, and (2) that Deputy Babson was performing a duty of
her office at the time of the crime on 16 March 2001. Defendant
argues the trial court's language instructed the jury that the
State had proven two of the elements of assault on a government
official and assault with a deadly weapon on a government official,
thereby removing from the jury the requirement that it determine
defendant's guilt beyond a reasonable doubt as to each element of
the crimes charged, in violation of
Apprendi v. New Jersey, 530
U.S. 466, 476-77, 147 L. Ed. 2d 435, 447 (2000) (constitutional
guarantees to due process of law and right to trial by jury provide
that a criminal defendant must have a jury determine his guilt as
to each and every element beyond a reasonable doubt), and
Cage v.
Louisiana, 498 U.S. 39, 41, 112 L. Ed. 2d 339, 342 (1990) (per
curiam) (due process guarantees violated when there is a reasonable
likelihood that the jury interpreted the jury instruction as
allowing conviction without proof beyond a reasonable doubt).
Defendant points out that the trial court submitted the
lesser-included charge of simple assault upon the request of co-
defendant Ms. Steele. Defendant argues that the submission of this
lesser-included offense is an acknowledgment by the trial courtthat there was evidence in the record that defendant did not know
Deputies Babson and Todd were law enforcement officers. However,
although defendant is correct in this assertion, the trial court
never instructed the jury that defendant knew that Deputies Babson
and Todd were law enforcement officers. Defendant claims that the
trial court's instructions on the challenged elements of assault on
a government official eliminated the possibility that defendant
would be convicted of simple assault. The elements of simple
assault differ from that of assault on a government official only
in relation to who the assault was committed upon.
Compare N.C.
Gen. Stat. § 14-33(a) (2001),
with N.C. Gen. Stat. § 14-33(c)(4)
(2001). If the State proves that defendant committed an assault on
an individual, but in addition proves that defendant committed the
assault on a law enforcement officer, that the officer was
performing his law enforcement duties, and defendant actually knew
or had reasonable grounds to know the individual assaulted was a
law enforcement officer, he is guilty of assault on a law
enforcement officer, not merely simple assault.
Compare N.C.G.S.
§ 14-33(a),
with N.C.G.S. § 14-33(c)(4).
Defendant argues that the
trial court's instructions therefore had a probable impact on the
jury's verdict and thus constitutes plain error. We disagree,
because even if the jury determined that Deputies Babson and Todd
were law enforcement officers, it additionally had to reach the
conclusion that defendant knew or reasonably should have known
Deputies Babson and Todd were law enforcement officers.
The trial court instructed as follows: Third, the State must prove beyond a
reasonable doubt that Ms. Babson was an
officer of a political subdivision of the
State and that the Defendant knew or had
reasonable grounds to know that Ms. Babson was
an officer of a political subdivision of the
State. And a deputy sheriff is an officer of
a political subdivision of North Carolina.
Now does everybody understand this third
element? Because once again, just raise your
hand. Don't be embarrassed because I'm going
to take it up as I go. Okay.
Third, the State must prove beyond a
reasonable doubt, and I'm repeating this, the
State must prove that Ms. Babson was an
officer of a political subdivision of the
state. I've later [sic] instructed you that
she is. And that the Defendant -- the State
must also prove in this element that the
defendant knew or had reasonable grounds to
know that Ms. Babson was an officer of a
political subdivision of the state. Does
everybody understand that?
. . .
And, fourth, the State must prove beyond
a reasonable doubt that . . . Ms. Babson was
performing a duty of her office. And I
instruct you that attempting to handle any
disturbance is a duty of a deputy sheriff.
The trial court did not remove the burden from the State of
proving all of the elements of assault on a government official.
There was no evidence in the record disputing that Deputy Babson
was a deputy sheriff. The trial court left it to the jury to
decide whether defendant knew or reasonably should have known that
Deputy Babson was a law enforcement officer. Defendant has failed
to show how this portion of the trial court's jury instruction
amounts to plain error.
C.
Defendant also asserts that it was plain error for the trialcourt to ask the jurors during the instruction if they had any
questions or if they understood his instructions. This contention
has no merit. This case involved multiple co-defendants charged
with various similar crimes. The trial court instructed on the
theories of acting in concert and aiding and abetting--instructions
the trial court stated that, through past experience, it had found
jurors sometimes had difficulty understanding. The trial court was
acting in the best interest of defendant when it inquired as to
whether the jurors understood what the State was required to prove
as to each charge. In contrast to defendant's contention, the
trial court did not distinguish between the various portions of the
instructions. The trial court asked if the jurors had any
questions about all portions of the instructions, including the
State's burden of proof, reasonable doubt, the elements of each
offense, acting in concert, credibility of witnesses, the
presumption of innocence, and circumstantial evidence. The trial
court's jury instructions did not rise to the level of plain error.
This assignment of error is overruled.
No error.
Judges McCULLOUGH and LEVINSON concur.
Report per Rule 30(e).
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