STATE OF NORTH CAROLINA
v. Caswell County
No. 02 CRS 1151
TYWANN SMITH
Attorney General Roy Cooper, by Assistant Attorney General
Jill A. Bryan, for the State.
K.E. Krispen Culbertson, for defendant-appellant.
STEELMAN, Judge.
Defendant was indicted for the charge of assault on a
government official/employee inflicting serious bodily injury.
The State presented evidence showing that on 23 July 2002,
defendant was incarcerated in the Caswell County Jail. Officer
Pamela Williams, a detention officer, came to defendant's cell to
investigate why he was refusing to return his meal tray. Defendant
pointed to a piece of pork in his beans and told Officer Williams
that the pork violated his “no pork” dietary restriction. Officer
Williams acknowledged the presence of the pork in his food and
directed defendant to file a grievance indicating that she had
observed the piece of pork. Defendant still refused to return his
tray and asked Officer Williams to bring the sergeant to his cell. Officer Williams again asked defendant for his tray. Defendant
refused to hand Officer Williams the tray through the slot in the
cell door. Instead he told Officer Williams to “come in [his cell]
and get it.” Defendant placed the tray on a table. Officer
Williams walked around to the entrance to the cell. As she entered
the cell, Officer Williams noted that defendant had removed the
tray from the table and placed it on the floor in a corner.
Defendant stood between Officer Williams and the tray with his arms
down by his sides and his hands below his waist. Officer Williams
displayed her can of pepper spray and asked defendant to move or to
hand her the tray. As she approached defendant, he raised his arms
above his waist. Simultaneously, defendant hit Officer Williams in
the mouth and Officer Williams sprayed defendant with pepper spray.
Defendant struck her a second time on her left shoulder and Officer
Williams fell to the floor. Officer Williams got off the floor,
grabbed the tray, and exited the cell. The blow to Officer
Williams' mouth lacerated her lip, leaving a permanent scar.
At the close of the State's evidence, the court found
insufficient evidence of serious bodily injury and granted
defendant's motion to dismiss that charge. The court permitted the
trial to proceed on the lesser offense of assault upon a government
official/employee. Defendant did not present any evidence and
renewed his motion to dismiss. The court denied the motion and
submitted the assault charge to the jury which found defendant
guilty. The court sentenced defendant to an active term of 75
days. Defendant's sole assignment of error is the denial of his
motion to dismiss the charge at the close of the State's evidence
and at the close of all the evidence. Upon a motion to dismiss,
the court determines whether there is substantial evidence to
establish each element of the offense charged and to identify the
defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-
66, 296 S.E.2d 649, 651 (1982). In making this determination, the
court must consider the evidence in the light most favorable to the
State, giving it the benefit of every reasonable inference that may
be drawn from the evidence. State v. Brown, 310 N.C. 563, 566,
313 S.E.2d 585, 587 (1984). Contradictions and discrepancies in
the evidence are to be left for resolution by a jury. State v.
Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).
"There is no statutory definition of assault in North
Carolina, and the crime of assault is governed by common law
rules." State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305
(1967). The definition established by common law many years ago
has been succinctly stated as “an intentional attempt, by violence,
to do an injury to the person of another.” State v. Davis, 23 N.C.
125, 127 (1840). Any application of force to the person of another
is a battery and is necessarily an assault. State v. Britt, 270
N.C. 416, 418, 154 S.E.2d 519, 521 (1967).
Defendant contends the evidence is insufficient to show he
intended to strike Officer Williams or to show any culpable or
criminal negligence on his part resulting in Officer Williams being
struck in the mouth. He argues the only inference the evidencesupports is that he blindly struck Officer Williams after being
blinded by the pepper spray.
Defendant's argument is not supported by the record as there
is no evidence that defendant was blinded or harmed by the pepper
spray. The nurse who examined defendant after the incident found
no evidence of physical injury to defendant or of any complaint of
injury as a result of exposure to the pepper spray. Viewed in the
light most favorable to the State, the evidence shows that
defendant struck Officer Williams in the mouth. Further, the
evidence shows that defendant also struck Officer Williams in the
shoulder as she fell down from the first blow. These applications
of physical force to her person constituted a battery and thus an
assault. Defendant's assignment of error is overruled.
NO ERROR.
Judges HUDSON and THORNBURG concur.
Report per Rule 30(e)
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