An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1063

NORTH CAROLINA COURT OF APPEALS

Filed: 20 September 2005

THE STATE OF NORTH CAROLINA

v .                         Guilford County
                            Nos. 02 CRS94476-77;
                            02 CRS 94495-96;
                            03 CRS 24529
RODNEY BOZEMAN

    Appeal by defendant from judgments entered 15 November 2002 by Judge Patrice A. Hinnant and 24 March 2004 by Judge Henry E. Frye, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 17 May 2005.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Patrick S. Wooten, for the State.

    J. Clark Fischer, for defendant-appellant.

    JACKSON, Judge.
    Defendant, Rodney Bozeman, was tried on charges of assault on a female, second degree trespass, injury to real property, making a threatening phone call and misdemeanor breaking and entering in the Superior Court of Guilford County. Defendant was convicted on all charges and timely appealed the judgments entered on 7 April 2004.
    At trial the State's evidence tended to show that defendant and the victim, Diana Farrar (“Farrar”), entered into a contract for defendant to enlarge and enclose Farrar's deck and perform various other home improvements on 3 August 2002. Farrar gave defendant a deposit check in the amount of $3,000.00 on 5 August2002. At the time the contract was signed, defendant told Farrar that she had three days in which to change her mind and cancel the contract.
    On or about 7 August 2002, Farrar began to have second thoughts and she attempted to contact defendant several times without success, leaving several messages for defendant to call her and telling him not to proceed with any work until he had spoken to her. When defendant finally called Farrar she told him not to do any work on her house. Farrar then attempted to stop payment on the deposit check, only to discover that it already had cleared the bank. Defendant contacted her by telephone and was irate and she again told him not to work on her house. Farrar then left town for a scheduled trip.
    The day after she left town, Farrar spoke with one of her neighbors who told her that there were people working on her house. When Farrar returned home two days later, there were two men working on the deck of her house. When she asked the men what they were doing there one of them, Jason Southern (“Southern”), informed her that defendant had told them she was his aunt and he was having the work done as a surprise for her. Southern then called his boss, who came to the location. Farrar called defendant, who arrived at her house shortly thereafter.
    Farrar asked defendant why he was having work done on the house and pointed out that the work was not even the project they had discussed in the first place. Farrar's ex-husband, who had accompanied her on her trip and had returned to her house with her,questioned defendant's explanation. Defendant became angry and pointed his finger at Farrar's ex-husband and told him not to talk to him. Defendant said “You don't want to make me run to my truck. Don't make me go to my truck.” Defendant then ran to the passenger side of his truck and appeared to reach under the seat to retrieve something. None of the witnesses were able to see what, if anything, defendant had retrieved. Defendant then appeared to put the item behind his back in the waistband of his pants and returned to Farrar and her ex-husband with his hand behind his back. Defendant stated, “You don't want to mess with me. I've got something for your ass.” Defendant's statements and actions were witnessed by the men working on the house, Farrar's ex-husband and her daughter. The testimony of the witnesses was substantially similar to Farrar's regarding the events up to that point.
    Farrar further testified that she was frightened and told her ex-husband and daughter to go into the house and call the police. After her ex-husband and daughter went into the house, defendant continued to yell at her and got “right in [her] face.” Farrar began backing away from defendant who then, according to Farrar's testimony, began poking her in the forehead with his finger. Southern also testified that he saw defendant poke Farrar in the forehead.
    When Guilford County Sheriff's Department deputies arrived at Farrar's home, defendant behaved in a calm and civil manner. He informed the deputies that the incident was the result of a dispute over the contract for his construction services. Farrar did notinform the deputies that defendant had poked her in the forehead. The deputies decided that the incident was most likely a civil matter and asked defendant to leave as requested by Farrar.
    Farrar and her ex-husband went to the magistrate's office and attempted to file charges against defendant for communicating threats due to his actions. They were informed that because they did not see a weapon, there was no direct threat and they were unable to file charges against defendant at that time.
    One or two days after the incident with defendant, Farrar noticed dirt on the floor of her living room under the window. She eventually was informed by Southern that he had knocked over a plant when climbing through a window into the house. Southern testified that he entered the house at defendant's direction to flip a circuit breaker that the men's tools had tripped while working on the deck. When the circuit breaker tripped, Southern's boss had called defendant to inform him that they had lost power and were unable to continue working. Defendant arrived and instructed them to enter the house through the window and flip on the breaker. Defendant assured them it was okay because it was his aunt's house.
    After climbing through the window and knocking over the plant, Southern had difficulty finding the circuit breaker panel and opened the door to allow his boss in to help him locate it. After locating the panel and correcting the problem, Southern and his boss began to leave the house when defendant came in the front door. Defendant told them to go on outside and that he would makesure that everything was okay and in order and that he would lock up. Southern testified that defendant was in the house for approximately five to ten minutes.
    Farrar contacted an attorney who advised her to go to the police department and speak to a detective, explain the situation and tell him that she needed to file charges for breaking and entering, communicating threats, and destruction of personal property. Farrar testified that she could not remember whether she specifically told the attorney that defendant had poked her in the forehead, but he did not advise her to tell the detective she wanted to file assault on a female charges as well.
    Southern testified that a few days after the incident he received a phone call from defendant. Southern testified that he recognized defendant's voice and that defendant identified himself. Defendant told Southern, “Don't worry about coming to court” and that he was going to get Southern his money. Southern testified that defendant also told him that he knew where Southern was working and that he (defendant) and a couple of his buddies were going to stop by and see him. Southern stated that defendant's tone was similar to how it had been when he was yelling at Farrar at her house and that he felt threatened by defendant's tone and comments. Southern then went with Farrar to the magistrate's office to act as a witness in support of her attempt to file charges against defendant and to file charges of communicating a threat against defendant on his own behalf for the phone call he received from defendant.    Defendant made motions to dismiss all charges at the close of the State's evidence and again at the close of all evidence based on the insufficiency of the evidence. Both motions were denied. Defendant was convicted on all charges and sentenced to 150 days confinement on the assault on a female charge and probation on the remaining charges. Defendant timely appealed.
    Defendant makes seven assignments of error, yet argues only two of them on appeal. “Assignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned. N.C. R. App. P. Rule 28(b)(6) (2005); see State v. Drew, 162 N.C. App. 682, 592 S.E.2d 27 (2004)(when criminal defendant brought forward eight assignments of error but argued only two in his brief on appeal, remaining six were deemed abandoned).
    Defendant's remaining assignments of error are (1) that the trial court erred in denying his motions to dismiss all charges at the close of the State's evidence and at the close of all evidence and (2) that the trial court committed plain error in allowing the State to introduce hearsay evidence characterizing defendant as a “con man.”
    Defendant first argues that the trial court erred in denying his motions to dismiss, at the close of the State's evidence and again at the close of all evidence, the charges of assault on a female, second degree trespass, misdemeanor breaking or entering, and making a threatening phone call for insufficient evidence. A criminal defendant who presents evidence in his defense after hismotion to dismiss for insufficient evidence is denied at the close of the State's evidence waives that motion to dismiss and cannot use it as a basis for appeal. N.C. Gen. Stat. . 15-173 (2003); State v. Harris, 323 N.C. 112, 129, 371 S.E.2d 689, 699 (1988). In the case sub judice, defendant presented evidence after the State rested its case and, consequently, he has waived his motion to dismiss made at the close of the State's evidence. Accordingly, we consider only the motion he renewed at the close of all evidence.
    The standard of review on appeal of the denial of a criminal defendant's motion to dismiss for insufficient evidence is well established. That standard is whether the State has offered substantial evidence to show the defendant committed each element required to be convicted of the crime charged. State v. Williams, 154 N.C. App. 176, 178, 571 S.E.2d 619, 620 (2002). Substantial evidence is defined as relevant evidence which is sufficient to persuade a rational juror to accept a conclusion. State v. Frogge, 351 N.C. 576, 584, 528 S.E.2d 893, 899, cert. denied, 531 U.S. 994, 148 L. Ed. 2d 459 (2000). The evidence must be considered in the light most favorable to the State when reviewing a denial of a motion to dismiss for insufficient evidence. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).
Assault on a female
    The required elements for conviction on a charge of assault on a female are: (1) an assault; (2) upon a female; (3) by a male; and (4) the male is at least eighteen years of age. N.C. Gen. Stat. . 14-33(c)(2) (2003). In North Carolina assault is not statutorilydefined and therefore common law rules apply. State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967). Applying the common law rules, our Supreme Court has defined assault as “'an overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another, which show of force or menace of violence must be sufficient to put a person of reasonable firmness in fear of immediate bodily harm.'” Id. (quoting 1 Strong's N.C. Index, Assault and Battery, § 4, p. 182). Battery has been defined by this Court as the unlawful application of force to the person of another. State v. Thompson, 27 N.C. App. 576, 577-78, 219 S.E.2d 566, 568 (1975). Every battery necessarily includes an assault, although the reverse need not be true. Id.
    At trial the State presented the testimony by both Farrar and Southern that defendant had poked Farrar, clearly applying force to her person. There was no evidence presented that Farrar had authorized defendant to touch her or that defendant was in some way privileged to do so. Therefore, defendant's poking of Farrar was unlawful. The testimony of Farrar and Southern is relevant and could be sufficient to persuade a rational juror to accept the conclusion that defendant committed a battery on the victim. Consequently, because every battery includes an assault; Farrar is a female; and defendant is a male at least eighteen years of age, substantial evidence of all required elements of assault on a female was presented. Defendant's motion to dismiss the charge of assault on a female for insufficient evidence was properly denied.Second Degree Trespass
    The required elements for the crime of second degree trespass are: (1) entering or remaining on the premises of another; (2) without authority; and (3) after having been notified not to enter or remain on the premises by the owner. N.C. Gen. Stat. . 14- 159.13 (2003). At trial the State presented evidence through Farrar's testimony that she had told defendant not to work on her house prior to the time defendant sent a crew to begin work during her absence. The State presented evidence of defendant's presence on Farrar's property while she was gone on vacation through Southern's testimony. The testimony of these two witnesses constituted substantial evidence that defendant had: (1) entered Farrar's premises; (2) without authority; and (3) after having been notified not to enter on her premises. Defendant's motion was, therefore, properly dismissed.
Breaking or Entering
    Breaking or entering is a statutory offense. A person commits the offense of misdemeanor breaking or entering when he commits a wrongful breaking or entering of any building. N.C. Gen. Stat. . 14-54(b) (2003). Here Southern testified that defendant entered Farrar's house while she was away on vacation. There was no evidence presented that Farrar had consented to defendant's entry into her house at any time other than the occasions that he was invited into her home to discuss the project. The lack of such consent is supported by the fact that defendant was not provided with a key to the residence as reasonably would have been expectedhad Farrar intended defendant to have access to her house while she was away. The State also presented evidence that defendant had concocted a story that Farrar was his aunt and had been hospitalized in order to convince the work crew to participate in the construction. Again, the State presented substantial evidence in support of each required element of the offense and defendant's motion to dismiss was properly denied.
Threatening Phone Call
    The required elements of making a threatening phone call as charged in the case sub judice are: (1) use of any words or language threatening to inflict bodily harm on another; and (2) in telephonic communications. N.C. Gen. Stat. . 14-196(a)(2) (2003) (emphasis added). The State's evidence relevant to this charge was presented through the testimony of Southern, who was the recipient of the phone call in question.
    Southern testified that on or about 15 August 2002, a few days after the incident in which defendant assaulted Farrar, he received a phone call from defendant. Southern further testified that defendant told him “don't worry about coming to court,” that he (defendant) knew where Southern was working and that he and some of his buddies were going to stop by and see Southern at his job site. Southern stated that he felt threatened by defendant's statements and that defendant's tone of voice was the same as it had been when he was yelling at Farrar during the incident at her house. Defendant's statements reasonably could be construed as threats - particularly in light of defendant's prior behavior in Southern'spresence. Accordingly, it was proper to allow the jury to determine whether defendant's statements were, in fact, threats of bodily harm to Southern and defendant's motion to dismiss was properly denied.
    In summary, we find defendant's arguments alleging that the trial court erred in denying his motions to dismiss each of the four charges discussed unpersuasive. Accordingly, the trial court did not err in its denial of those motions.
    Defendant next argues that the trial court committed plain error in allowing the State to present hearsay evidence, without objection from defendant, characterizing defendant as a “con man.” “The plain error rule applies only in truly exceptional cases.” State v. Cummings, 352 N.C. 600, 636, 536 S.E.2d 36, 60 (2000). In order to find that a trial court's action constitutes “plain error” an appellate court must be convinced by the defendant that a different result would have been reached if the error had not been made. Id. Plain error also may be established by convincing an appellate court that an error was made that was so fundamental that it resulted in a miscarriage of justice or denied defendant a fair trial. State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997).
    Defendant asserts that the allegedly inadmissible hearsay testimony “allowed the jury to convict [defendant] based on hearsay slander rather than a dispassionate analysis of the evidence.” This argument is unpersuasive and, as it lacks any supporting authority in defendant's brief, is nothing more than a conclusorystatement. This is particularly true in light of the fact that the statement in question characterized defendant as a con man which invokes impressions of untruthfulness or deception on his part, yet none of the offenses with which defendant was charged involve a crime of artifice. In addition, the State presented ample additional evidence to support defendant's conviction of the charges. Accordingly, defendant has failed to carry his burden of showing that, absent the alleged error, a different result would have been reached.
    Defendant also argues that the trial court had an affirmative duty to act ex meru moto in instructing the jury to disregard the allegedly improper testimony and that failure to do so was such a fundamental failing that defendant was entitled to a new trial. “[A] [d]efendant's empty assertion of plain error, without supporting argument or analysis of prejudicial impact, does not meet the spirit or intent of the plain error rule.” Cummings, 352 N.C. at 637, 536 S.E.2d at 61. Defendant provides absolutely no legal authority for the imposition of such a duty he suggests imposing upon the trial court. Defendant also fails to present any argument or analysis regarding how the alleged failure of the trial court to fulfill such an affirmative duty was so fundamental and prejudicial as to entitle him to a new trial. Thus, defendant has failed to carry his burden of showing that the alleged error was so fundamental as to constitute a miscarriage of justice or denied defendant a fair trial. This assignment of error is overruled.
    No error.
    Judges WYNN and BRYANT concur.
    Report per 30(e).

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