An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-447


Filed: 18 May 2004


         v.                        Edgecombe County
                                No. 01 CRS 52167

    Appeal by defendant from judgment entered 7 January 2003 by Judge Frank R. Brown in Edgecombe County Superior Court. Heard in the Court of Appeals 12 April 2004.

    Attorney General Roy Cooper, by Assistant Attorney General William R. Miller, for the State.

    Samuel L. Bridges, for defendant-appellant.


    Frank Daniel Nicholson (“defendant”) was convicted of assault on a government official/employee in violation of N.C. Gen. Stat. § 14-33(c)(4) in district court. Defendant appealed de novo to the superior court, where he was found guilty by a jury of assault on a government official/employee and sentenced to serve 150 days in the North Carolina Department of Corrections.
    Defendant appeals the judgment of the superior court. For the reasons cited herein, we hold that defendant received a trial free of prejudicial error.
    The State presented evidence tending to show that on 31 July 2001, defendant refused to go into his cell at the Edgecombe County Jail. Officer Arthur Peaden (“Officer Peaden”) summoned the chiefdetention officer, Michael Lane (“Officer Lane”), for assistance. Officer Lane ordered defendant to go into his cell. Defendant refused and pushed Officer Lane in the chest. Officer Lane sprayed defendant with mace, and defendant struck Officer Lane with an object believed to be a pencil. Officer Lane denied that he ever struck defendant.
    Defendant's testimony at trial differed from that of Officers Peaden and Lane. Defendant testified that upon returning from a visit to the nurse, he asked Officer Peaden if he could use the telephone before being put back into his cell. Officer Peaden called Officer Lane over to tell him that defendant wanted to use the phone. When Officer Lane arrived, he poked his finger in defendant's face and ordered defendant to go into his room. Defendant testified that although he did push Officer Lane, he did so because Officer Lane poked him in the face. After being pushed, Officer Lane sprayed defendant with mace. Defendant testified that he grabbed both officers and “pinned [them] down on the table.” Defendant testified that at no time during this altercation did he try to hit either officer.

    The issues presented on appeal are whether the trial court erred by (1) denying defendant's motion to dismiss the indictment for insufficiency of the evidence; (2) allowing the jury to hear inadmissible hearsay; and, (3) failing to instruct the jury on self-defense.
    Defendant first contends that the trial court erred by denying his motion to dismiss the charge for insufficient evidence. Defendant's sole argument is that the lack of corroboration of Officer Lane's testimony makes the evidence insufficient to withstand the motion to dismiss.
    When a court rules on a motion to dismiss for insufficiency of the evidence,
        all of the evidence favorable to the State, whether competent or incompetent, must be considered, such evidence must be deemed true and considered in the light most favorable to the State, discrepancies and contradictions therein are disregarded and the State is entitled to every inference of fact which may be reasonably deduced therefrom.

State v. Witherspoon, 293 N.C. 321, 326, 237 S.E.2d 822, 826 (1977). Determination of the credibility of witnesses is to be left for resolution by the jury. State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721 (2001). Officer Lane's testimony, taken as true, is sufficient to establish that defendant assaulted him while he was discharging or attempting to discharge his official duties as chief detention officer of the Edgecombe County Jail. See N.C. Gen. Stat. . 14-33(c)(4) (2003). We hold the court properly denied the motion to dismiss.
    Defendant next contends that the trial court committed plain error by allowing Officer Lane to testify that several times Officer Peaden asked defendant to go into his room. He argues this testimony should have been excluded as hearsay.
    Assuming arguendo that this testimony constituted inadmissiblehearsay, we hold that admission of the evidence did not amount to plain error. “To prevail on plain error review, defendant must show that (i) a different result probably would have been reached but for the error or (ii) the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.” State v. Braxton, 352 N.C. 158, 197, 531 S.E.2d 428, 451 (2000), cert. denied Braxton v. North Carolina, 531 U.S. 1130 (2001). Defendant has failed to make this showing.
    Defendant's last contention is that the court erred by refusing to instruct the jury on self-defense. He argues the instruction is supported by his testimony that he shoved Officer Lane only after Officer Lane first struck him by “poking [him] in the face.”
    An instruction on self-defense must be given when there is evidence to support a finding that the defendant acted in self- defense. State v. Marsh, 293 N.C. 353, 354, 237 S.E.2d 745, 747 (1977). In determining whether to give the instruction, the court must examine the evidence in the light most favorable to the defendant. State v. Moore, 111 N.C. App. 649, 654, 432 S.E.2d 887, 889 (1993). The defendant, however, has the right of self-defense “only if he is 'without fault in provoking, engaging in, or continuing a difficulty with another.'” State v. Hunter, 315 N.C. 371, 374, 338 S.E.2d 99, 102 (1986), quoting State v. Anderson, 230 N.C. 54, 56, 51 S.E.2d 895, 897 (1949). In addition, when the defendant is confronted with a non-felonious assault, he has a duty to retreat if there is any available way of escape. State v.Allred, 129 N.C. App. 232, 235, 498 S.E.2d 204, 206 (1998).
    The evidence in this case shows that defendant provoked, engaged in, or continued the disagreement with Officer Lane. Defendant could have escaped from or avoided Officer Lane's non- felonious assault. Under these circumstances, defendant was not entitled to an instruction on self-defense.
    We hold defendant had a fair trial, free of prejudicial error.
    No error.
    Judges CALABRIA and ELMORE concur.
    Report per Rule 30(e).

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