An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-666

NORTH CAROLINA COURT OF APPEALS

Filed: 6 April 2004

STATE OF NORTH CAROLINA

v .                         Beaufort County
                            Nos. 01 CRS 002696
BOBBY FREEMAN                        02 CRS 000117

    Appeal by defendant from judgments entered 27 August 2002 by Judge Clifton W. Everette, Jr. in Beaufort County Superior Court. Heard in the Court of Appeals 2 March 2004.

    Attorney General Roy A. Cooper III, by Special Deputy Attorney General Gerald K. Robbins, for the State.

    Angela H. Brown, for defendant-appellant.

    TYSON, Judge.

    Bobby Freeman (“defendant”) appeals from judgments entered after a jury found him guilty of driving while license revoked and assault on a law enforcement officer inflicting serious bodily injury. We find no error.

I. Background
    The State's evidence tended to show that Belhaven Police Officer Thomas Salter (“Officer Salter”) was on patrol in his police car on 25 February 2001. He observed a “baby blue” pickup truck, which he knew belonged to defendant, traveling towards him. He also knew that defendant's license was revoked. Officer Salter slowed his vehicle to determine whether defendant was driving. Defendant was driving and Officer Salter turned his vehicle aroundand drove to defendant's home, a short distance away. Defendant was walking from his truck and Officer Salter asked defendant to come over to his vehicle and accept a citation for driving while his license was revoked. Defendant yelled, “I wasn't driving. You can't prove it.”
    Officer Salter called for backup after deciding to place defendant under arrest. As Officer Salter approached defendant, he began cursing and at one point threatened to kill Officer Salter. Defendant continued to resist arrest and the issuance of a citation. Officer Salter warned that if defendant continued to resist and threaten him, he would have to use his “OC spray.” As Officer Salter moved to place defendant under arrest, defendant positioned himself with the pickup truck between them. Officer Salter sprayed defendant on the left side of his face with “OC spray.”
    Defendant ran to his front porch, where a large crowd had gathered, and began using his daughter as a shield to prevent Officer Salter from spraying him further. Officer Salter testified that defendant's daughter was not sprayed. Around this time, a gold automobile pulled up and defendant requested the driver to take him and his daughter to the hospital. Officer Salter instructed the driver that she could only take defendant's daughter. Defendant removed his daughter from the back seat of the car and placed her inside his pickup truck. Defendant drove his daughter to the hospital, with Officer Salter following.
    Upon reaching the hospital, defendant and his daughter enteredthe emergency room. Officer Salter again called for backup and observed defendant yelling at the hospital receptionist while his daughter was crying and screaming. He decided to enter the emergency room to calm defendant, concerned that defendant may hurt someone. As he tried to calm defendant down, defendant turned and approached him with his fists clenched. Officer Salter sprayed defendant right above his eyebrows with the “OC spray.” Defendant tackled Officer Salter, who fell onto some chairs.
    Officer Salter testified that while being held down, defendant's brother entered the emergency room and was told to “get his gun.” Officer Salter felt someone attempting to remove his service weapon from its holster. In response, he slammed his hip into the wall, pinning the gun against it. Defendant held Officer Salter down until one of the nurses talked defendant into letting him go. Officer Salter suffered a severely dislocated shoulder which had to be surgically repaired.
    Defendant did not testify, but several witnesses testified on his behalf. All testified that defendant had not been driving the truck when Officer Salter came to defendant's home. The witnesses testified that Officer Salter got out of his vehicle and began spraying defendant with his “OC spray.” Danny Freeman (“Freeman”), defendant's brother, testified that after Officer Salter sprayed defendant, defendant's daughter suffered an asthma attack. Freeman testified that he drove defendant and his daughter to the hospital. Once they reached the hospital, defendant's witnesses testified that defendant did not come towards Officer Salter when the officersprayed him again.
    The jury found defendant to be guilty of driving while his license was revoked and of assault on a law enforcement officer inflicting serious bodily injury. Defendant was sentenced in the aggravated range for thirty-one to thirty-eight months for assault on a law enforcement officer and 120 days for driving while license revoked. Defendant appeals.
II. Issues
    Defendant contends that the trial court erred in: (1) denying defendant's motion to dismiss, (2) sentencing defendant in the aggravated range, and (3) determining defendant's prior record level and the class of the offense.
III. Motion to Dismiss
    Defendant contends the trial court erred in denying his motion to dismiss all charges. Defendant has waived his right to appellate review of this issue.
    The failure of a defendant to move to dismiss at the close of all the evidence prevents him from raising this issue on appeal. State v. Hinnant, 131 N.C. App. 591, 596, 508 S.E.2d 537, 540 (1998), aff'd in part, rev'd in part, 351 N.C. 277, 523 S.E.2d 663 (2000); see N.C.R. App. P. 10(b)(3) (2004). Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure requires that in order to preserve an issue for appellate review, a party must “obtain a ruling upon that party's request, objection, or motion.” N.C.R. App. P. 10(b)(1) (2004).
    Here, defendant's motion to dismiss all charges at the closeof State's evidence was denied. Defendant did not renew his motion to dismiss at the close of all the evidence until after the trial court had instructed the jury on all issues and had dismissed them to deliberate. Defense counsel moved to dismiss stating, “[y]our Honor, I would like to renew my motion to dismiss at the close of all the evidence. I forgot to do it.” The trial court stated, “[a]ll right. Put it in there for her.” Defendant's failure to renew the motion to dismiss until after the jury instructions were given and the jury had retired to deliberate, combined with the trial court's failure to rule on the untimely motion, waives his right to appellate review of this issue. See Hinnant, 131 N.C. App. at 596, 508 S.E.2d at 540; see also N.C.R. App. P. 10(b)(1) (2004). Defendant's assignment of error is dismissed.
IV. Sentencing in Aggravated Range
    Defendant also contends that the trial court erred by finding as an aggravating factor that the offense was committed while defendant was avoiding or preventing a lawful arrest.
    The Structured Sentencing Act, N.C. Gen. Stat. 15A-1340.10, requires that the trial court consider the statutorily listed aggravating and mitigating factors before imposing a sentence in excess of the presumptive term. See State v. Green, 101 N.C. App. 317, 322, 399 S.E.2d 376, 379 (1991); N.C. Gen. Stat. § 1340.10 (2003). The trial court determines the weight given to each factor in aggravation or mitigation in its discretion. State v. Teeter, 85 N.C. App. 624, 639, 355 S.E.2d 804, 813, appeal dismissed and disc. rev. denied, 320 N.C. 175, 358 S.E.2d 67 (1987) (citing Statev. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983)). Defendant must show an abuse of discretion before this Court will reverse the trial court. Id. The trial court may not consider an element necessary to prove the offense as an aggravating factor. N.C. Gen. Stat. § 15A-1340.16(d) (2003); see State v. Burgess, 134 N.C. App. 632, 636, 518 S.E.2d 209, 213 (1999).
    The elements of the offense of assault on a law enforcement officer inflicting serious bodily injury are: (1) an assault on a law enforcement officer, (2) while the officer is discharging or attempting to discharge his duties, and (3) inflicting serious bodily injury. N.C. Gen. Stat. § 14-34.7 (2003). The trial court found that the offense was committed while defendant was “avoiding or preventing a lawful arrest” and sentenced defendant in the aggravated range. This aggravating factor of a defendant avoiding or preventing a lawful arrest is not an element of assault on a law enforcement officer inflicting serious bodily injury. N.C. Gen. Stat. § 15A-1340.16(d)(3) (2003).
    Officer Salter was attempting to issue a traffic citation to defendant for driving while his license was revoked. Defendant's attempt to avoid arrest, failing to cooperate with the officer, and threatening his life are not necessary elements of assault on a law enforcement officer inflicting serious bodily injury. The trial court properly considered defendant's action of avoiding arrest as an aggravating factor in sentencing defendant. Defendant's assignment of error is overruled.
    V. Prior Record Level
    Defendant argues the trial court erred by assigning an additional point to his prior record level because defendant was on unsupervised probation at the time of this conviction. We disagree.
    N.C. Gen. Stat. § 15A-1340.14(b)(7) (2003) states, “        [i]f the offense was committed while the offender was on supervised or unsupervised probation, parole, or post-release supervision, or while the offender was serving a sentence of imprisonment . . . 1 point.” The statute allows a more severe punishment for a defendant who commit a crime while on probation. State v. Leopard, 126 N.C. App. 82, 85, 483 S.E.2d 469, 471 (1997). When a statute is clear and unambiguous “the courts must give it its plain and definite meaning.” Id. at 84, 483 S.E.2d at 471. We held in Leopard that “the language of subsection (b)(7) is clear and unambiguous that if a defendant commits an offense while on probation, a point is assessed regardless of the type of conviction for which the probation was imposed.” Id. at 85, 483 S.E.2d at 471.
    Defendant argues that once he paid the fine and costs for his previous conviction, the conditions of his probation were satisfied. We disagree. In State v. Wilson, defendant pled guilty to a charge of transporting intoxicating liquor and was sentenced to a term of eight months. 216 N.C. 130, 131-132, 4 S.E.2d 440, 441 (1939). The trial court suspended the defendant's sentence upon the payment of a $100.00 fine, plus court costs, and required the defendant to remain law-abiding for five years. Id. Defendantwas convicted the following year of forcible trespass. Id. Our Supreme Court held that there were two distinct requirements placed upon the defendant when he was placed on probation: paying the fine and court costs, and remaining law-abiding for five years. Id. at 132-133, 4 S.E.2d at 442. The Court explained that failure to comply with either requirement subjected the defendant to imprisonment, otherwise one of the conditions would be “meaningless surplusage.” Id.
    Here, defendant previously pled guilty to driving while license revoked and was placed on unsupervised probation, conditioned upon payment of a fine, court costs, and that he not operate a vehicle until re-licensed by the Department of Motor Vehicles (“DMV”). At the time defendant committed the offenses, he had not been re-licensed by DMV to drive a motor vehicle and remained on unsupervised probation. As defendant continued to be on probation at the time he committed the offenses, the trial court properly added an additional point to his prior record level. N.C. Gen. Stat. § 15A-1340.14(b)(7) (2003). Defendant's assignment of error is overruled.
VI. Conclusion
    Defendant waived appellate review of the trial court's denial of his motion to dismiss all charges. Defendant failed to show that the trial court erred in sentencing him in the aggravated range and by adding an additional point to his prior record level for committing the offenses while on probation. We find no error.
    No error.    Judges WYNN and HUNTER concur.
    Report per Rule 30(e).

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