An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1572

NORTH CAROLINA COURT OF APPEALS

Filed: 20 July 2004

STATE OF NORTH CAROLINA

         v.                        Caswell County
                                No. 02 CRS 1151
TYWANN SMITH

    Appeal by defendant from judgment entered 26 August 2003 by Judge W. Osmond Smith, III in Caswell County Superior Court. Heard in the Court of Appeals 5 July 2004.

    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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