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.
TIMMONS-GOODSON, Judge.
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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