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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. MARCIANA ELLIS
Filed: 1 March 2005
1. Arrest--resisting, delaying, or obstructing an officer--indictment--failure to describe
duties officer discharging or attempting to discharge
The bill of indictment used to charge defendant with resisting, delaying, or obstructing an
officer under N.C.G.S. § 14-223 was insufficient as a matter of law, because: (1) an indictment
fails under N.C.G.S. § 14-223 if it does not describe the duty the named officer was discharging
or attempting to discharge; and (2) the pertinent indictment failed to describe the duties the
alcohol law enforcement agent was discharging or attempting to discharge.
2. Prisons and Prisoners--malicious conduct by prisoner--motion to dismiss--
sufficiency of evidence--custody
The trial court did not err by denying defendant's motion to dismiss the charge of
malicious conduct by a prisoner based on alleged insufficient evidence of defendant being in
custody, because: (1) the Fourth Amendment free to leave test is to be applied to determine
whether an individual was in custody under N.C.G.S. § 14-258.4; and (2) substantial evidence
shows that at the moment defendant smeared fecal matter on an officer, a reasonable person
would have believed that he was not free to leave.
3. Prisons and Prisoners--malicious conduct by prisoner--instruction--custody
The trial court did not err by instructing the jury on the custodial element of malicious
conduct by a prisoner, because: (1) the test is whether a reasonable person would have felt free to
leave under the circumstances; and (2) in light of the free to leave test concerning the custody
element of N.C.G.S. § 14-258.4, defendant has failed to show, and a review of the record and
transcript do not indicate, that the instructions to the jury were misleading.
4. Sentencing--Level IV offender-_stipulation to worksheet of prior convictions
The trial court did not err in a malicious conduct by a prisoner, possession of cocaine,
resisting and obstructing a law enforcement officer, and assault on a law enforcement officer
case by determining that defendant was a Level IV offender for sentencing purposes, because:
(1) N.C.G.S. § 15A-1340.14(f) provides that a prior conviction can be proved by stipulation of
the parties; (2) the State tendered defendant's prior conviction worksheet to the trial court and
defense counsel stipulated to it; and (3) the trial court offered defendant an opportunity to
address the court, which defendant did, and defendant did not object or refer to his prior
Appeal by defendant from judgments entered 31 July 2003 by
Judge Donald W. Stephens in Wake County Superior Court. Heard in
the Court of Appeals 7 December 2004.
Attorney General Roy Cooper, by Special Deputy Attorney
General Thomas J. Pitman, for the State.
Charns & Charns, by D. Tucker Charns, for defendant-appellant.
Marciana Ellis (defendant) appeals
from judgments entered
after a jury returned guilty verdicts of:
(1) knowingly and
willfully emitting human excrement at a law enforcement officer in
the performance of his duties (malicious conduct by prisoner) (02
CRS 013682); (2) possession of cocaine (02 CRS 013683); and (3)
resisting and obstructing a law enforcement officer and assault on
a law enforcement officer (02 CRS 013684). We find no error on 02
CRS 013682 and 02 CRS 013683, arrest judgment on 02 CRS 013684 and
remand for resentencing.
The State's evidence tended to show that around 11:00 p.m. on
16 February 2002, Agents Jason Locklear (Agent Locklear) and
Ralph Nolan (Agent Nolan) (collectively, the Agents) of the
North Carolina Alcohol Law Enforcement Division (ALE) witnessed
defendant leaving a convenience store and walking down the street.
Agent Locklear believed he saw defendant carrying a twelve ounce
malt beverage bottle, but could not determine whether it was
The Agents stopped defendant on the street and Agent Locklear
identified himself as an ALE agent. Agent Locklear was wearing his
uniform and badge. The Agents asked defendant if the bottle was
open. During the exchange, Agent Locklear saw defendant place ten
to twelve small white rocks into his mouth. Agent Locklear grabbeddefendant and ordered him to empty his mouth. Defendant swallowed
one time, then opened his mouth, which was empty. Defendant was
searched and $427.00 in cash was found.
Agent Locklear told defendant a search warrant could be
obtained to have his stomach pumped. Defendant responded by lying
to the Agents about his name. The Agents explained to defendant
that if he did not start telling the truth, he would be arrested.
Defendant continued to give the Agents fictitious names. Agent
Locklear then told defendant, I'm going to take you to the
Magistrate's Office and see if the magistrate can determine exactly
who you are. Defendant turned and ran from the Agents.
Agent Locklear chased defendant for about forty minutes.
During the chase, Agent Locklear yelled at defendant that he was
under arrest and to stop. Agent Nolan chased defendant for a few
minutes before returning to secure their patrol car. During the
chase, Agent Locklear caught up with defendant four times. The
first time, Agent Locklear hit defendant in the forehead and
sprayed him with pepper spray. On the second time, after a
homeowner chased defendant off his porch, Agent Locklear tackled
defendant and again sprayed him with pepper spray. Defendant
punched Agent Locklear in the face and escaped. During the third
time, Agent Locklear caught up with defendant and struck him with
a metal baton on his leg causing defendant to fall down. Defendant
regained his footing and jumped into a roadside canal. The canal
water varied from knee deep to chest high.
Finally, Agent Locklear trapped defendant in the canal. He
continued to tell defendant that he was under arrest and that hewas going to handcuff him. As Agent Locklear approached with the
handcuffs, defendant reached into his pants and told Agent Locklear
that he had defecated on himself and would smear the excrement on
him if he came closer. Agent Locklear continued to approach and
defendant smeared feces over Agent Locklear's chest, left arm, and
both hands. Agent Locklear struggled with defendant and managed to
place the handcuffs on him. Defendant vomited and tried to step on
and hide the vomit's contents. Agent Locklear recovered a plastic
bag from the pool of vomit with a rock-like substance inside it.
Defendant was taken to the hospital, where a hand wound was
treated and his stomach was pumped. Five rock-like substances were
recovered from defendant's stomach. All six objects removed from
defendant tested positive for crack cocaine.
Defendant was tried by a jury for: (1) knowingly and
willfully emitting human excrement at a law enforcement officer in
the performance of his duties (malicious conduct by prisoner); (2)
possession of cocaine; and (3) resisting and obstructing a law
enforcement officer and assault on a law enforcement officer.
After the charge conference, defendant left the courtroom and did
not return. An order for his arrest was issued. The jury found
defendant to be guilty of: (1) knowingly and willfully emitting
human excrement at a law enforcement officer in the performance of
his duties (malicious conduct by prisoner); (2) possession of
cocaine; and (3) resisting and obstructing a law enforcement
officer and assault on a law enforcement officer.
Defendant was later arrested and returned to the courtroom.
He was found to be a Level IV offender for sentencing purposes andsentenced in the presumptive range of twenty-five months minimum to
thirty months maximum. Defendant appeals.
The issues on appeal are whether: (1) the indictment for
resist, obstruct, and delay was sufficient; (2) the State offered
evidence for each element of malicious conduct by prisoner; (3) the
trial court erred in instructing the jury on malicious conduct by
prisoner; and (4) defendant is a Level IV Offender.
III. Sufficiency of an Indictment
 Defendant contends the bill of indictment charging him
with resist, delay, or obstruct an officer under N.C. Gen. Stat. §
14-223 was insufficient as a matter of law. We agree.
The purpose of an indictment is to provide sufficient detail
to put the defendant on notice as to the nature of the crime
charged and to bar subsequent prosecution for the same offense in
violation of the prohibitions against double jeopardy. State v.
Burroughs, 147 N.C. App. 693, 695-96, 556 S.E.2d 339, 342 (2001)
(citing State v. Snyder, 343 N.C. 61, 65, 468 S.E.2d 221, 224
(1996)). It must include all the facts necessary to meet the
elements of the offense. State v. Alston, 310 N.C. 399, 407, 312
S.E.2d 470, 475 (1984). If it does not, the trial court lacks
jurisdiction over the defendant and subsequent judgments are void
and must be vacated. State v. Wagner, 356 N.C. 599, 601, 572
S.E.2d 777, 779 (2002).
N.C. Gen. Stat. § 14-223 (2003) provides, If any person shall
willfully and unlawfully resist, delay or obstruct a public officer
in discharging or attempting to discharge a duty of his office, heshall be guilty of a Class 2 misdemeanor. An indictment fails
under N.C. Gen. Stat. § 14-223 if it does not describe the duty the
named officer was discharging or attempting to discharge. State v.
Dunston, 256 N.C. 203, 204, 123 S.E.2d 480, 481 (1962) (citing
State v. Stonestreet, 243 N.C. 28, 89 S.E.2d 734 (1955); State v.
Harvey, 242 N.C. 111, 86 S.E.2d 793 (1955); State v. Eason, 242
N.C. 59, 86 S.E.2d 774 (1955)).
Here, the bill of indictment charging defendant with violating
N.C. Gen. Stat. § 14-223 stated, the defendant named above
unlawfully and willfully did resist, obstruct and delay Agent Jason
Locklear of North Carolina Alcohol Law Enforcement Division while
he was attempting to discharge his duties of his office to wit: by
running from Agent Jason Locklear and fighting Agent Jason
The indictment fails to describe the duties Agent Locklear was
discharging or attempting to discharge. The trial court never had
jurisdiction over defendant on this charge. Wagner, 356 N.C. at
601, 572 S.E.2d at 779. The judgment is void and arrested for lack
IV. Malicious Conduct by Prisoner
 Defendant asserts the trial court erred by denying his
motion to dismiss the charge of malicious conduct by prisoner. We
A. Standard of Review
The standard of review for a motion to dismiss in a criminal
Upon defendant's motion for dismissal, the
question for the Court is whether there issubstantial evidence (1) of each essential
element of the offense charged, or of a lesser
offense included therein, and (2) of
defendant's being the perpetrator of such
offense. If so, the motion is properly
State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)
(quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117
Evidence is substantial if it is relevant and adequate to
convince a reasonable mind to accept a conclusion. State v. Vick,
341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995) (citing State v.
Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991)). If
substantial evidence, whether direct, circumstantial, or both,
supports a finding that the offense charged has been committed and
that the defendant committed it, the motion to dismiss should be
denied and the case goes to the jury. State v. Williams, 319 N.C.
73, 79, 352 S.E.2d 428, 432 (1987) (quoting State v. Young, 312
N.C. 669, 680, 325 S.E.2d 181, 188 (1985)). But, [i]f the
evidence is sufficient only to raise a suspicion or conjecture as
to either the commission of the offense or the identity of the
defendant as the perpetrator of it, the motion should be allowed.
Powell, 299 N.C. at 98, 261 S.E.2d at 117 (citations omitted).
In considering a motion to dismiss, the trial court must
analyze the evidence in the light most favorable to the State and
give the State the benefit of every reasonable inference from the
evidence. State v. Gibson, 342 N.C. 142, 150, 463 S.E.2d 193, 199
(1995). The trial court must also resolve any contradictions in
the evidence in the State's favor. State v. Lucas, 353 N.C. 568,
581, 548 S.E.2d 712, 721 (2001). The trial court does not weighthe evidence, consider evidence unfavorable to the State, or
determine any witness's credibility. Id. It is concerned only
with the sufficiency of the evidence to carry the case to the
jury. State v. Lowery, 309 N.C. 763, 766, 309 S.E.2d 232, 236
(1983). Ultimately, the court must decide whether a reasonable
inference of defendant's guilt may be drawn from the circumstances.
Powell, 299 N.C. at 99, 261 S.E.2d at 117.
Malicious conduct by prisoner is defined as:
(1) the defendant threw, emitted, or caused to
be used as a projectile a bodily fluid or
excrement at the victim; (2) the victim was a
State or local government employee; (3) the
victim was in the performance of his or her
State or local government duties at the time
the fluid or excrement was released; (4) the
defendant acted knowingly and willfully; and
(5) the defendant was in the custody of the
Department of Correction, the Department of
Juvenile Justice and Delinquency Prevention,
any law enforcement officer, or any local
confinement facility (as defined in G.S.
153A-217, or G.S. 153A-230.1), including
persons pending trial, appellate review, or
presentence diagnostic evaluation, at the time
of the incident.
State v. Robertson, 161 N.C. App. 288, 292-93, 587 S.E.2d 902, 905
(2003) (citing N.C. Gen. Stat. § 14-258.4 (2001)). Defendant
concedes the State met its burden in all but one of the elements,
the defendant was in the custody . . . .
Our research indicates there has been little discussion of
this statute since its enactment on 1 December 2001. 2001 N.C.
Sess. Laws ch. 360, §§ 1-2. This Court has extended its use to
both a prisoner within a correctional facility and an individualplaced under arrest. See State v. Smith, 163 N.C. App. 771, 594
S.E.2d 430 (2004) (defendant spat on a correctional officer while
incarcerated); see also State v. Cogdell, 165 N.C. App. 368, 371,
599 S.E.2d 570, 572 (2004) (defendant was unruly and verbally
abusive, and . . . spat at the [arresting] officer). The issue
before us is whether evidence shows defendant was in custody when
he smeared fecal matter on Agent Locklear.
Defendant asserts the custody determination here should
mirror the analysis involving the Fifth Amendment right against
self-incrimination and the protections afforded by Miranda v.
Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966) (whether Miranda
warnings are necessary prior to police questioning an individual
hinges upon whether the individual is in custody). [I]n
determining whether a suspect [is] in custody, an appellate court
must examine all the circumstances surrounding the interrogation;
but the definitive inquiry is whether there was a formal arrest or
a restraint on freedom of movement of the degree associated with a
formal arrest. State v. Gaines, 345 N.C. 647, 662, 483 S.E.2d
396, 405, cert. denied, 522 U.S. 900, 139 L. Ed. 2d 177 (1997).
The State contends the custody determination should be based
upon whether an individual has been seized in relation to the
Fourth Amendment. The State asserts the appropriate analysis
involves the defendant's free to leave test. See State v.
Buchanan, 353 N.C. 332, 339, 543 S.E.2d 823, 828 (2001). The
question becomes whether, in view of all of the circumstances
surrounding the incident, a reasonable person would have believed
that he was not free to leave. United States v. Mendenhall, 446U.S. 544, 554, 64 L. Ed. 2d 497, 509, reh'g denied, 448 U.S. 908,
65 L. Ed. 2d 1138 (1980); State v. Johnson, 317 N.C. 343, 360, 346
S.E.2d 596, 606 (1986). Our Supreme Court has acknowledged that
the Fourth Amendment analysis is broader than that involving the
Fifth Amendment. Buchanan, 353 N.C. at 339, 543 S.E.2d at 828.
We recognize that custody determinations involving Miranda
result from constitutional protections afforded those being
interrogated about alleged criminal conduct. The goal is to
prevent overreaching by the police in violation of an individual's
Fifth Amendment rights. See Miranda, 384 U.S. at 444-45, 16 L.
Ed. 2d at 706-07. Thus, the Miranda custody test defendant seeks
to apply here is narrowly drawn due to the constitutional
implications involved. In contrast, it is clear that the purpose
behind N.C. Gen. Stat. § 14-258.4 is to protect an employee of the
State or local government while the employee is in the performance
of the employee's duties from individuals who may throw,
emit, or cause to be used as a projectile, bodily fluids or
excrement. Based on our review of cases involving both analyses,
we hold the broader Fourth Amendment free to leave test is to be
applied to determine whether an individual was in custody under
N.C. Gen. Stat. § 14-258.4.
'Only when [an] officer, by means of physical force or show
of authority, has in some way restrained the liberty of a citizen
may we conclude that a seizure has occurred.' Gaines, 345 N.C.
at 663, 483 S.E.2d at 406 (quoting Terry v. Ohio, 392 U.S. 1, 19
n.16, 20 L. Ed. 2d 889, 905 n.16 (1968)). Our Supreme Courtaccepted several instances that the United States Supreme Court has
recognized that would indicate a reasonable person would not feel
free to leave the presence of a police officer. See State v.
Farmer, 333 N.C. 172, 187-88, 424 S.E.2d 120, 129 (1993)
(threatening presence of several officers, the display of a weapon
by an officer, some physical touching of the person of the citizen,
or the use of language or tone of voice indicating that compliance
with the officer's request might be compelled) (quoting
Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509).
Here, substantial evidence shows that at the moment defendant
smeared fecal matter on Agent Locklear, a reasonable person would
have believed that he was not free to leave. See Mendenhall, 446
U.S. at 554, 64 L. Ed. 2d at 509. Agent Locklear initially told
defendant that he was going to take him to the magistrate's office.
Agent Locklear chased defendant for forty minutes, hit defendant in
the forehead, tackled him, emptied a can of pepper spray in
defendant's face, struck defendant's leg with a metal baton, and
eventually cornered defendant in a water-filled canal. During the
entire chase, Agent Locklear talked to [defendant] several times,
telling him to get down and that he was under arrest. In the
canal, Agent Locklear approached defendant with his handcuffs in
view, explaining that he was under arrest. At that point,
defendant used his right hand to smear fecal matter on Agent
Locklear. It is apparent from Agent Locklear's conduct and voice
commands that defendant was not free to leave.
Analyzed in the light most favorable to the State and
providing the State the benefit of every reasonable inference,substantial evidence exists to show defendant was in the custody
of . . . [a] law enforcement officer when he smeared his feces on
Agent Locklear. The trial court properly denied defendant's motion
to dismiss the charge of malicious conduct by prisoner, N.C. Gen.
Stat. § 14-258.4. This assignment of error is overruled.
V. Jury Instructions
 Defendant contends the trial court erred in instructing
the jury on the custodial element of malicious conduct by prisoner.
This Court is required to consider and review jury
instructions in their entirety. Robinson v. Seaboard System
Railroad, Inc., 87 N.C. App. 512, 524, 361 S.E.2d 909, 917 (1987),
disc. rev. denied, 321 N.C. 474, 364 S.E.2d 924 (1988). The trial
court's charge to the jury will not be dissected and examined in
fragments. Id. (citing Gregory v. Lynch, 271 N.C. 198, 155 S.E.2d
488 (1967)). The party assigning error to the instructions must
show that such error was likely, in light of the entire charge, to
mislead the jury. Robinson, 87 N.C. App. at 524, 361 S.E.2d at
917 (citations omitted).
At the time of defendant's trial, no pattern jury instructions
existed for a charge under N.C. Gen. Stat. § 14-258.4. Thus, the
trial court provided the following instruction on in custody to
A person is in custody, within the meaning of
this statute, when a law enforcement officer
advises him that he is under arrest or when
the law enforcement officer, with the intent
to make an arrest, makes verbal commands to a
suspect, which commands a reasonable and
prudent person under the same or similar
circumstances to know that he was underarrest. When so advised, a suspect is under
arrest and in custody even if the officer has
not actually physically obtained complete
control of the suspect.
We hold these instructions pertaining to the element of in
custody, taken in their entirety, conform with our previous
holding. The test is whether a reasonable person would have felt
free to leave under the circumstances.
In light of our application of the free to leave test
concerning the custody element of N.C. Gen. Stat. § 14-258.4,
defendant has failed to show, and our review of the record and
transcript does not indicate that the instructions to the jury were
misleading. This assignment of error is overruled.
VI. Prior Record Level
 Defendant argues the trial court erred in determining
defendant was a Level IV offender for sentencing purposes due to
his prior record. We disagree.
N.C. Gen. Stat. § 15A-1340.14(f) (2003) provides in part that,
[a] prior conviction shall be proved by any of the following
methods: (1) Stipulation of the parties. . . . In State v. Lowe,
this Court found no error where the State submitted to the court
a prior criminal record and that the court considered the record to
be reliable. 154 N.C. App. 607, 610, 572 S.E.2d 850, 853 (2002).
In State v. Rich, a computerized record contained sufficient
identifying information with respect to defendant to give it the
indicia of reliability. 130 N.C. App. 113, 116, 502 S.E.2d 49,
51, cert. denied, 349 N.C. 237, 516 S.E.2d 605 (1998).
At defendant's sentencing proceeding, the State tendered
defendant's prior conviction worksheet to the trial court. Thetrial court then asked defense counsel, [h]ave you seen the
worksheet? Defense counsel responded, I have, your Honor. We
stipulate to that. The trial court offered defendant an
opportunity to address the court, which defendant did. He did not
object or refer to his prior convictions. Under N.C. Gen. Stat. §
15A-1340.14(f)(1), we hold defendant's prior convictions were
sufficiently proved to warrant a Level IV sentencing. This
assignment of error is overruled.
The judgment pertaining to the charge of resist, delay, or
obstruct an officer under N.C. Gen. Stat. § 14-223 is void and is
arrested for insufficiency of the bill of indictment. The trial
court properly denied defendant's motion to dismiss related to the
custody element of malicious conduct of prisoner, N.C. Gen. Stat.
§ 14-258.4. The trial court did not err in instructing the jury on
the element of custody. Defendant was properly sentenced as a
Record Level IV offender.
No error in 02 CRS 013682 and 02 CRS 013683.
Judgment in 02 CRS 013684 is arrested and vacated and Remanded
Judges WYNN and MCGEE concur.
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