STATE OF NORTH CAROLINA
v
.
Moore County
No. 00 CRS 10284
TERRY ATLAS ENGLE,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Scott K. Beaver, for the State.
Russell J. Hollers, III, for the defendant-appellant.
WYNN, Judge.
Following his conviction on the charge of feloniously engaging
in a riot, Defendant Terry A. Engle appeals contending that the
evidence was insufficient to show that he willfully engaged in a
riot. We agree and therefore reverse his convictions.
The evidence presented at trial tended to show that at
approximately 7:00 p.m. on 7 September 2000, the Special Response
Team of the Southern Pines Police Department were prepared to
execute a search warrant at an apartment and for a red Chevrolet
Blazer registered to Winsey Engle Blue. After securing the
apartment and failing to locate either Ms. Blue or the vehicle at
the residence, the Special Response Team continued the search in
the area of South Mechanic Street, apparently on the notion that members of Ms. Blue's family were often seen in that location. At
approximately 7:40 p.m., the Special Response Team arrived at the
800 block of South Mechanic Street.
The record describes South Mechanic Street as a residential
area consisting of closely-located-rented-duplex houses with very
little yard space between the houses and the street. In the area,
the Special Response Team found Ms. Blue's Chevrolet Blazer parked
along the side of the street in front of a Ford Thunderbird, later
determined to be owned by Defendant who is Ms. Blue's brother. The
officers saw one person sitting in the Blazer and about six to ten
people standing near the Thunderbird. The officers stopped their
unmarked gray van beside the Blazer and the Thunderbird, exited the
van dressed in black military style attire with weapons drawn,
ordered the people in the vicinity of the two parked cars to get on
the ground, searched them for weapons, removed the individual from
the Blazer and searched the Blazer.
Thereafter, Ms. Blue began yelling as she walked towards the
officers searching her vehicle. After being told the officers were
conducting a search pursuant to a warrant, Ms. Blue remained near
the vehicle maintaining that she had a right to observe the
officers conduct their search. Incident to their search, the
officers found a substance they believed to be crack cocaine in the
vehicle. Thereafter, they arrested Ms. Blue and the individual
that had been sitting in the driver's seat. However, Ms. Blue
became further agitated, louder, and resisted the officers'
attempts to place her in the patrol car. After being placed in thepatrol car, she continued to yell and attempted to get out of the
car several times. The other individual cooperated with the
arrest.
In the meantime, during the search of the Blazer, Defendant,
who was one of the individuals initially searched, approached the
officers to determine what was happening. The officers ordered him
to stay back. After seeing his sister arrested, Defendant loudly
complained that the officers were harassing his family (several
cousins, brothers, sisters, nieces, nephews, and children lived in
this area or were visiting at the time of this incident). After
being warned by the officers to calm down, the people around
Defendant tried to calm him down; however, after Defendant hit the
hood of his car with his hand, Lieutenant Klingenschmidt ordered
his arrest. After approaching Defendant to arrest him, when
Defendant resisted, the officers sprayed pepper spray into his
face. At that time, there were approximately six to ten
individuals around Defendant, including the same group of people
that were there at the time of Special Response Team's arrival and
a few individuals that had tried to calm Defendant. The officers
were able to maneuver through this group of people without any
resistance from the group. As Officer Brian Edwards approached
Defendant, Carlos Blue, Defendant's son put up his hand and
indicated that it was unnecessary to arrest Defendant because he
had calmed his father down. Upon seeing Carlos Blue put up his
hand, Sergeant Nick Polidori grabbed him, threw him to the ground
and arrested him for obstructing the officers' arrest of hisfather.
During Defendant's arrest, someone kicked and injured Officer
Edwards' knee which later required orthopedic surgery.
Additionally, people in the crowd became upset and started
shouting. Thereafter, the officers created a perimeter around the
scene to keep people away from the vehicles and the officers.
Other law enforcement personnel arrived to provide assistance. The
entire incident encompassed twenty minutes and the officers
remained at the scene for approximately an hour.
As to the number people on the street during the incident, the
members of the Special Response Team apparently focused on the two
vehicles and the six to ten individuals surrounding it. According
to other testimony, there were at least eighteen children playing
in the area. There were also people sitting on their porches,
standing in their yards or walking along the sidewalk. All of the
witnesses, including police officers familiar with the
neighborhood, testified that it was common to see the residents on
their porches, in their yards or on the sidewalks. Moreover, the
police officers testified that it was not unusual for the residents
to come out and see “what was going on” when there was police
activity; however, the officers testified that the crowd was
unusually hostile on this particular evening. Although one officer
testified there were between 70 and 100 people on the sidewalk and
in the street, the majority of the officers said the crowd did not
get larger than 40 to 50 people.
Defendant was indicted for feloniously engaging in a riot andinciting a riot. After being found guilty of engaging in a riot,
Defendant received a sentence of a minimum of 10 months to a
maximum of 12 months, suspended for 36 months conditioned upon
various requirements. Defendant appeals.
________________________________________________________
On appeal, Defendant contends the trial court erred in denying
his motion to dismiss because there was insufficient evidence to
prove he willfully engaged in a riot. We agree.
“On a motion to dismiss the trial court must determine the
sufficiency of the evidence. If the State offers substantial
evidence of each essential element of the offense charged, the
motion must be denied. Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion. In making its determination, the trial court may
consider all of the evidence actually admitted, both competent and
incompetent. The evidence is to be considered in the light most
favorable to the State and the State is entitled to every
reasonable inference to be drawn therefrom.” State v. Mitchell,
110 N.C. App. 250, 253, 429 S.E.2d 580, 582 (1993).
Under N.C. Gen. Stat. § 14-288.2 (2001),
(a) A riot is a public disturbance involving
an assemblage of three or more persons which
by disorderly and violent conduct, or the
imminent threat of disorderly and violent
conduct, results in injury or damage to
persons or property or creates a clear and
present danger of injury or damage to persons
or property.
(b) Any person who willfully engages in a riot
is guilty of a Class 1 misdemeanor.
(c) Any person who willfully engages in a riot
is guilty of a Class H felony, if:
(1) In the course and as a result of the riot
there is property damage in excess of fifteen
hundred dollars ($1,500) or serious bodily
injury; or
(2) Such participant in the riot has in his
possession any dangerous weapon or substance.
Thus, to prove Defendant's guilt of feloniously engaging in a riot,
the State was required to establish (1) a riot occurred; (2)
willful engagement in the riot by Defendant; and (3) either
property damage in excess of fifteen hundred dollars or serious
bodily injury.
In State v. Mitchell, this Court stated that in using the
phrase willfully engages in, “the legislature contemplated active
participation by the defendant in the riotous activity.” Mitchell,
110 N.C. App. at 254, 429 S.E.2d at 582. In analyzing whether the
defendant in Mitchell willfully engaged in a riot, this Court
distinguished pre-riot and riot behavior.
In Mitchell, the teenage defendant was part of a large group
of teenagers, between 100 and 150, that had congregated in the
parking lot outside of an activity center where a teen dance was
being held. The dance sponsor called the police to help with crowd
control and asked for assistance in dispersing the crowd. The
defendant in Mitchell had been asked twice by the police to leave
the premises and instead of complying, the teenager cursed and
swung at the officer and resisted arrest. After the teenager's
arrest for disorderly conduct, the crowd of teenagers began
throwing things at the officers and after an officer stood on atable to address the crowd in an effort at calming them, the
defendant rushed the table and knocked it over. In resolving
whether sufficient evidence of the defendant's willful engagement
in a riot was presented in Mitchell, this Court stated
. . . we conclude that the evidence of defendant's
resistance to being arrested and the apparent assault on
Officer Ward does not by itself appear sufficient to
support the charge of participation in riotous activity.
However, this conduct when coupled with the defendant's
deliberate act of running into the table upon which the
officer was standing while the riot was taking place, was
clearly sufficient to show that the defendant 'willfully
engaged' in the riot.
Mitchell, 110 N.C. App. at 255, 429 S.E.2d at 582-83.
Similarly, in this case, Defendant's inappropriate behavior
occurred prior to any riot in this case, assuming a riot occurred.
Prior to Defendant's arrest, the police activity and Ms. Blue's
yelling attracted the attention of the residents and neighborhood
visitors. Indeed, the police officers testified that it was not
unusual for the residents in that area to congregate when police
activity occurred to “see what was going on,” and the police
described the crowd's activity on this particular day in that
manner. Moreover, the testimony indicated that a smoking police
car, which had malfunctioned upon its arrival at the scene, drew
the attention of several people. Furthermore, the officers
testified the crowd did not interfere with their arrest of
Defendant and that prior to Defendant's arrest, several people in
the crowd were trying to calm Defendant and Ms. Blue.
Testimony indicated that although the crowd was initially
peaceful, the crowd's demeanor changed after the arrest ofDefendant's son, Carlos Engle, which occurred after Defendant's
arrest. A resident and Defendant's relative testified that upon
observing Defendant's arrest, she shouted that the police had lied
about not arresting Defendant if he calmed down and also indicated
that several people in the crowd stated the police were wrong in
arresting Defendant. A paramedic, who arrived after Defendant's
arrest, testified that several people in the crowd were cursing and
someone expressed satisfaction that one of the police officers had
been hurt. Furthermore, assuming Defendant's son kicked Officer
Edwards and caused his injury,
(See footnote 1)
the assault did not occur until
after the police had subdued and placed Defendant under arrest.
Thus, viewing the evidence in the light most favorable to the
State, if a riot occurred, it did not begin until after Defendant
had been subdued and arrested. Prior to Defendant's arrest, the
record reveals that the crowd was a peaceful assemblage of
approximately 50 people who had congregated to watch the police
activity and the actions of Defendant and his sister. A few people
in the crowd tried to calm Defendant and his sister. After
Defendant's arrest, crowd members began shouting and yelling and
the officer was injured. However, the record does not indicate
Defendant's conduct was disorderly after his arrest nor does it
indicate he made any comments after his arrest.
Finally, it should be noted that it is not the size of theassemblage that determines whether a riot occurred. Indeed, in
general, it is not a crime for a group of any size to assemble
peacefully to watch out of curiosity police activity, ambulances,
smoking cars or people yelling in the street. The State must
establish the remaining three elements in order to classify the
assemblage as a riotous group.
As we have concluded the trial court erroneously denied
Defendant's motion to dismiss based upon insufficient evidence that
he willfully engaged in a riot, it is unnecessary to address
Defendant's remaining issues. Accordingly, the judgment below is,
Reversed.
Judges TIMMONS-GOODSON and ELMORE concur.
Report per Rule 30(e).
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