STATE OF NORTH CAROLINA,
v
.
Catawba County
No. 01 CRS 55743
TONY ALLEN HILDERBRAN,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Jane Ammons Gilchrist for the State.
Carlton Rhodes & Carlton, by Gary C. Rhodes for the defendant-
appellant.
ELMORE, Judge.
Tony Allen Hilderbran (defendant) was found guilty of
felonious speeding to elude arrest and assault with a deadly weapon
on a government officer after a two-day jury trial. From this
conviction, defendant appeals. For the reasons stated herein, we
hold that the trial court did not err.
On 18 August 2001 at approximately 8:00 p.m., Allen Long
(Officer Long), a corporal with the Claremont Police Department,
and Arthur Stamey (Sergeant Stamey), a sergeant with the Claremont
Police Department, conducted a license checkpoint on Old Catawba
Road. Sergeant Stamey checked licenses in the westbound lane while
Officer Long checked licenses in the eastbound lane. At approximately 8:18 p.m., Officer Long observed a black Ford
Thunderbird approach the checkpoint traveling east. Officer Long
approached the driver of the black Ford Thunderbird and asked to
see his driver's license. The driver was a white male, appeared to
be in his forties, with long blond hair and a blond moustache.
Officer Long observed the driver for approximately five seconds.
The driver reached towards his back pocket as if to retrieve his
license and Officer Long walked to the rear of the vehicle to
inspect the license plate. When Officer Long reached the rear of
the vehicle, the vehicle sped off. Officer Long yelled for the
driver to stop.
Sergeant Stamey, hearing Officer Long yell, turned to see what
was happening and was positioned approximately twenty-five feet
from Officer Long. Sergeant Stamey stepped into the eastbound lane
of traffic, threw his hands up and yelled for the driver to stop.
The driver did not stop the vehicle. Instead, the black Ford
Thunderbird increased speed as it approached Sergeant Stamey.
Sergeant Stamey, to avoid being struck by the black Ford
Thunderbird, jumped on the hood of a car stopped in the westbound
lane of traffic for the license checkpoint. Sergeant Stamey
observed the vehicle and the driver for approximately two to five
seconds. Sergeant Stamey testified that he recognized the driver
and the vehicle, but was unable to name the driver from memory.
Officer Long and Sergeant Stamey went to their vehicles and
separately pursued the black Ford Thunderbird. At trial, Officer
Long estimated that the pursued vehicle attained speeds of 90-100miles per hour during the pursuit. During the pursuit, Officer
Long was able to view the license plate and requested, by radio, a
check of the vehicle registration. The pursuit came to an end when
the black Ford Thunderbird lost control, left the roadway and
struck a tree. The driver exited the vehicle and fled on foot into
the nearby woods. Officer Long, Sergeant Stamey, and deputies from
Catawba County Sheriff's Department searched the woods for
approximately one and a half hours in an attempt to apprehend the
driver.
At approximately 10:30 p.m., a Catawba County Sheriff's deputy
showed Officer Long a photograph of the defendant and asked whether
the person in the photograph was the driver of the black Ford
Thunderbird. Officer Young identified the person in the photograph
as the driver of the black Ford Thunderbird. Sergeant Stamey was
also shown the photograph and asked whether the person in the
photograph was the driver of the black Ford Thunderbird. Sergeant
Stamey identified the person in the photograph as the driver. As
a result of the positive identification of the defendant as the
driver, Officer Long procured a warrant for the defendant's arrest,
charging defendant with assault with a deadly weapon on a
government officer. Defendant was arrested and released on bond
pending trial.
On 5 November 2001, the Catawba County grand jury returned an
indictment charging the defendant with assault with a deadly weapon
on a government officer and felony speeding to elude arrest.
Defendant was found guilty as charged at the close of trial and wassentenced to 36 to 44 months imprisonment. Defendant gave notice
of appeal in court at the close of sentencing on 16 January 2003.
Defendant, in his first and second assignments of error,
assigns as error the trial court's denial of his motions to
suppress the identification testimonies of Officer Long and
Sergeant Stamey. Defendant contends that the process by which he
was identified was improper and a violation of his due process
rights. We disagree.
Our Supreme Court has held:
Identification procedures which are so
impermissibly suggestive as to give rise to a
very substantial likelihood of irreparable
misidentification violate a defendant's right
to due process. . . . [T]o determine the
suggestiveness of pretrial identification, the
test is whether the totality of the
circumstances reveals a pre-trial procedure so
unnecessarily suggestive and conducive to
irreparable mistaken identity as to offend
fundamental standards of decency and justice.
State v. Grimes, 309 N.C. 606, 609, 308 S.E.2d 293, 294 (1983)
(citations omitted). During the voir dire testimony, Officer Long
testified that he observed the driver for approximately five
seconds and spoke with him. Based on this interaction, Officer
Long was able to accurately describe the driver's physical
attributes to other officers assisting in the search for the
driver. Sergeant Stamey testified, on voir dire, that he was able
to observe the driver for a couple of seconds as the car veered
towards him. Based on this observation, Sergeant Stamey recognized
the driver as someone he had seen around town on previous
occasions. Sergeant Stamey testified that he had positivelyidentified the defendant as the driver prior to being shown the
photograph. Upon careful review of the transcript, the record, and
the briefs, we conclude that the trial court did not err in denying
defendant's motions to suppress.
In defendant's next assignment of error, defendant contends
the trial court erred by intervening and interjecting the court
into the voir dire identification testimonies of Officer Long and
Sergeant Stamey. Defendant contends that the trial court abandoned
its impartiality and assumed the role of the prosecutor in
questioning the witnesses on voir dire. However, defendant failed
to object to the trial court's questioning. As such, this
assignment of error is not properly before this court.
Rule 10(b)(1) of the North Carolina Rules of Appellate
Procedure provides, in pertinent part, “[i]n order to preserve a
question for appellate review, a party must have presented to the
trial court a timely request, objection, or motion stating the
specific grounds for the ruling the party desired the court to make
if the specific grounds were not apparent from the context.”
N.C.R. App. P. 10(b)(1) (2004). Moreover, plain error review is
not available to defendant because he did not, in his brief, assert
specifically and distinctly that the error committed by the trial
court amounted to plain error. See N.C.R. App. P. 10(c)(4); State
v. Nobles, 350 N.C. 483, 514-15, 515 S.E.2d 885, 904 (1999).
Assuming arguendo that defendant's assignment of error was
properly preserved or presented, we find that the trial court did
not err by asking questions of the witnesses on voir dire. “It iswell established by both statute and case law that it is improper
during any stage of the trial for a trial judge in the presence of
the jury to express his opinion on any question of fact to be
decided by the jury.” State v. Ramey, 318 N.C. 457, 464, 349
S.E.2d 566, 571 (1986). In this case, there is no need to determine
whether the trial court improperly expressed an opinion by
questioning the witnesses, because the questioning occurred during
voir dire, in the absence of the jury. Because the jury was not
present, the questions asked could not have conveyed any message at
all to the jury. This assignment of error is without merit.
In defendant's final assignment of error, defendant contends
that the trial court erred by denying defendant's motion to dismiss
both charges against defendant at the close of the State's
evidence. Defendant did not present any evidence. Specifically,
defendant challenges the sufficiency of the evidence to identify
the defendant as the driver of the vehicle and to find the
requisite intent to support a conviction for assault with a deadly
weapon on a government officer.
We first note that defendant has failed to cite any supporting
authority for this assignment of error. Pursuant to Rule 28(b)(6)
of the North Carolina Rules of Appellate Procedure, this argument
is deemed abandoned. N.C.R. App. P. 28(b)(6); See also State v.
Alston, 341 N.C. 198, 224, 461 S.E.2d 687, 700 (1995)(holding an
assignment of error abandoned where defendant failed to cite
supporting authority). Assuming arguendo that this assignment of error is not
abandoned by defendant's failure to cite any authority, we find no
error. In State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980), our
Supreme Court held that “[U]pon defendant's motion for dismissal,
the question for the Court is whether there is substantial evidence
(1) of each essential element of the offense charged, or of a
lesser offense included therein, and (2) of defendant's being the
perpetrator of such offense. If so, the motion is properly
denied.” State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117
(1980) (citations omitted). The evidence must be viewed in the
light most favorable to the State, giving the State the benefit of
all reasonable inferences. State v. Benson, 331 N.C. 537, 544, 417
S.E.2d 756, 761 (1992).
Defendant asserts that there was insufficient evidence that
defendant was the driver of the vehicle and, therefore, the
perpetrator of the crimes. At trial, Officer Long and Sergeant
Stamey each testified that the defendant was the driver of the
black Ford Thunderbird on 18 August 2001 during the commission of
the crimes charged. No evidence was presented to suggest that any
other person had been the driver of the vehicle during the
commission of the crimes. Viewed in the light most favorable to
the State, there was substantial evidence that defendant was the
perpetrator of the offenses charged.
Next, defendant asserts that the evidence was insufficient to
establish the element of intent required for assault with a deadly
weapon on a government official. This assertion is not supportedby law. “A show of violence, causing 'the reasonable apprehension
of immediate bodily harm' whereby another person is put in fear,
and thereby forced to leave a place where he has a right to be, is
sufficient to make out a case of assault.” State v. Allen, 245
N.C. 185, 189, 95 S.E.2d 526, 529 (1956) (citations omitted). The
evidence offered at trial tended to show that defendant sped off
from the license checkpoint, failed to stop for either Officer Long
or Sergeant Stamey, and veered towards Sergeant Stamey, such that
Sergeant Stamey was forced to leave the roadway and seek safety on
the hood of a stopped vehicle in the westbound lane of traffic.
Sufficient evidence of each essential element of the offense
charged was presented. The trial court correctly denied
defendant's motion to dismiss.
No Error.
Judges TIMMONS-GOODSON and BRYANT concur.
Report per Rule 30(e).
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