An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1126

NORTH CAROLINA COURT OF APPEALS

Filed: 2 August 2005

STATE OF NORTH CAROLINA

v .                         Henderson County
                            No. 01 CRS 51032
THOMAS W. HILL

    Appeal by defendant from judgment entered 6 May 2004 by Judge C. Philip Ginn in Henderson County Superior Court. Heard in the Court of Appeals 20 April 2005.

    Attorney General Roy Cooper, by Assistant Attorney General J. Bruce McKinney, for the State.

    Thomas W. Hill, defendant-appellant, pro se.

    CALABRIA, Judge.

    Thomas W. Hill (“defendant”) seeks review of a judgment entered on a jury verdict finding him guilty of second-degree trespass. We find no error.
    Defendant initiated protracted civil litigation as a pro se plaintiff. Sharon Alexander (“Ms. Alexander”), an associate attorney at the law firm of Prince, Youngblood & Massagee, (the “law firm”), represented the parties against whom defendant brought suit. On 30 August 2000, concerns that conduct by defendant might jeopardize the safety of the law firm's employees prompted B.B. Massagee, III,(“Mr. Massagee”) to send a certified letter, return receipt requested, to defendant on behalf of the firm, notifying defendant that he was “not to come into the offices of [the law firm] or anywhere upon [its] premises . . . at any time for any reason.” The letter further stated defendant would be treated as a trespasser if he came on the premises again. Defendant signed the certified letter receipt on 1 September 2000.
    On several occasions after 1 September 2000, Ms. Alexander observed defendant open the door to the law firm and toss documents into the law firm's vestibule. At 5:30 p.m. on 16 February 2001, Mr. Massagee found a package of documents in the law firm's vestibule, which included a notice of hearing with a certificate of service signed by defendant and indicating defendant personally served the notice upon Ms. Alexander at the law firm. Ms. Alexander discussed the issue of service with another attorney, who represented adverse parties in the lawsuit brought by defendant. He informed her that at approximately 5:15 p.m. on 16 February 2001, defendant had personally served the same notice upon him, and defendant commented he had to rush to the law firm to serve Ms. Alexander. On 19 February 2001, after discussing the matter with members and employees of the law firm, Ms. Alexander filed charges on behalf of the law firm against defendant for second-degree trespass.
    On 6 March 2001, defendant was convicted of second-degree trespass in Henderson County District Court, received a suspended sentence of ten days in the custody of the Henderson County Sheriff,and was placed on three years unsupervised probation subject to the condition that he “not be found in or on the premises of [the law firm].” Defendant appealed his conviction to the Henderson County Superior Court (the “trial court”). On 6 May 2004, defendant was tried before a jury, and the trial court entered a judgment from a jury verdict finding defendant guilty of second-degree trespass. The trial court imposed a suspended sentence of ten days in the custody of the Henderson County Sheriff and placed defendant on three years unsupervised probation. From this judgment, defendant appeals.
    Defendant asserts the trial court erred by failing to grant his motion to dismiss the charges due to insufficient evidence. “In ruling on a motion to dismiss, the trial court must consider the evidence in the light most favorable to the State and give the State every reasonable inference to be drawn therefrom.” State v. Grooms, 353 N.C. 50, 78, 540 S.E.2d 713, 731 (2000). “If there is substantial evidence -- whether direct, circumstantial, or both -- to support[] [each element of the crime] charged . . . and that the defendant committed [the crime], the case is for the jury and the motion to dismiss should be denied.” State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988). “'Substantial evidence' consists of 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” State v. Williams, 127 N.C. App. 464, 467, 490 S.E.2d 583, 586 (1997) (quoting Rusher v. Tomlinson, 119 N.C. App. 458, 465, 459 S.E.2d 285, 289 (1995)).     In pertinent part, N.C. Gen. Stat. § 14-159.13 (2003) states, “[a] person commits the offense of second degree trespass if,without authorization, he enters or remains on premises of another . . . [a]fter he has been notified not to enter or remain there by the owner, by a person in charge of the premises, by a lawful occupant, or by another authorized person . . . .” Taken in the light most favorable to the State, both direct and circumstantial evidence tended to show: (1) defendant was given notice that he was no longer permitted on the premises of the law firm; (2) defendant thereafter opened the door of the law firm and tossed documents into the firm's vestibule; (3) on 16 February 2001, Mr. Massagee found documents laying in the firm's vestibule, indicating defendant personally served Ms. Alexander at the law firm; and (4) another attorney informed Ms. Alexander that, on 16 February 2001, defendant stated he was rushing to serve the notice on Ms. Alexander at the law firm. Based on the evidence, a reasonable jury could conclude defendant committed the crime of second-degree trespass.
    Nonetheless, defendant contends the State's evidence was insufficient because his brother, Maurice D. Hill, testified that he, not defendant, had laid the documents in the vestibule of the law firm. Although such testimony raises conflicting evidence, the credibility and weight of such evidence is a question “left to the jury who can observe all the witnesses . . . and whose function it is to find the facts.” State v. Rhodes, 290 N.C. 16, 31, 224 S.E.2d 631, 640 (1976). Accordingly, weighing the testimony of defendant's brother against the conflicting evidence was properly the province of the jury, and the trial court did not err by denying defendant's motion to dismiss.    Defendant next asserts the trial court erred in instructing that the jury must find him guilty of second-degree trespass if they determine he “entered or remained” on the premises because the proper instruction was “entered and remained” on the premises. Under North Carolina law, “[a] person commits the offense of second degree trespass if, without authorization, he enters or remains on premises of another . . . [a]fter he has been notified not to enter or remain there by the owner, by a person in charge of the premises, by a lawful occupant, or by another authorized person . . . .” N.C. Gen. Stat. § 14-159.13 (2003) (emphasis added). As the jury instruction properly followed the disjunctive in the applicable statute, we reject defendant's argument.
    Defendant further asserts the trial court erred by failing to instruct the jury with respect to two proffered defenses. “The purpose of a [jury] charge is to give a clear instruction which applies the law to the evidence in such a manner as to assist the jury in understanding the case and in reaching a correct verdict.” State v. Harris, 306 N.C. 724, 727, 295 S.E.2d 391, 393 (1982). Even in the absence of a request, the trial court has a duty to “declare and explain the law arising on the evidence relating to each substantial feature of the case.” State v. Everette, 284 N.C. 81, 87, 199 S.E.2d 462, 467 (1973). Accordingly, the trial court is required to instruct on defenses that were sufficiently raised by the evidence. Cf. State v. Bush, 164 N.C. App. 254, 266, 595 S.E.2d 715, 722 (2004) (requiring an instruction on “the affirmativedefense of unconsciousness/diminished capacity and any other defenses which have been sufficiently raised by the evidence”).
    Defendant argues he introduced evidence of the defense of implied consent. Under the defense of implied consent, “[i]f . . . premises are open to the public, [individuals] . . . have the implied consent of the owner/lessee/possessor to be on the premises, and that consent can be revoked only upon some showing the occupants have committed acts sufficient to render the implied consent void.” State v. Marcopolos, 154 N.C. App. 581, 582-83, 572 S.E.2d 820, 821- 22 (2002). As noted above, however, Mr. Massagee, an owner and occupant of the premises, sent a certified letter directing defendant to stay off the law firm's premises. Defendant signed the receipt for this letter and does not dispute that he received it. Therefore, this certified letter effectively revoked any implied consent to defendant's entry onto the law firm's premises. Accordingly, the evidence did not support an instruction on the defense of implied consent.
    Defendant also argues he introduced evidence of the defense of necessity based on the duty to serve notice upon opposing parties in a civil lawsuit pursuant to N.C. Gen. Stat. § 1A-1, Rule 5 (2003). “Under the 'necessity' defense, '[a] person is excused from criminal liability if he acts under a duress of circumstances to protect life or limb or health in a reasonable manner and with no other acceptable choice.'” State v. Thomas, 103 N.C. App. 264, 265, 405 S.E.2d 214, 215 (1991). Service of a pleading or motion on an opposing party in a lawsuit does not constitute an act to protectlife, limb, or health. Moreover, as discussed below, N.C. Gen. Stat. § 1A-1, Rule 5, provides several alternatives to personally serving notice. Accordingly, the evidence did not support an instruction on necessity.
    Defendant next asserts the trial court erred by failing to hold a jury instruction conference pursuant to N.C. Gen. Stat. § 15A-1231 (2003). Under N.C. Gen. Stat. § 15A-1231(b):
        Before the arguments to the jury, the judge must hold a recorded conference on instructions out of the presence of the jury. At the conference the judge must inform the parties of the offenses, lesser included offenses, and affirmative defenses on which he will charge the jury and must inform them of what, if any, parts of tendered instructions will be given. . . . The failure of the judge to comply fully with the provisions of this subsection does not constitute grounds for appeal unless his failure, not corrected prior to the end of the trial, materially prejudiced the case of the defendant.

The record reflects the trial court failed to hold a jury instruction conference. Defendant argues he was prejudiced by the trial court's omission because he did not have the opportunity, prior to the judge delivering the jury instruction, to request that the trespass instruction include “entered and remained” on the premises and was also unable to request instructions on the defenses of implied consent and necessity. As established above, however, his proffered trespass instruction was not supported by the law, and the evidence did not support an instruction on either defense. Accordingly, defendant was not prejudiced by the trial court's failure to conduct a jury instruction conference.    Defendant further asserts that, since service upon Ms. Alexander was required by N.C. Gen. Stat. § 1A-1, Rule 5, the trial court erred by failing to dismiss the second-degree trespass charge for violation of his equal protection rights in that he was prosecuted for performing a duty required by law. In pertinent part, N.C. Gen. Stat. § 1A-1, Rule 5(b) provides:
        With respect to all pleadings subsequent to the original complaint and other papers required or permitted to be served, service . . . may be made upon either the party or, unless service upon the party personally is ordered by the court, upon the party's attorney of record. With respect to such other pleadings and papers, service upon the attorney or upon a party may . . . be made by delivering a copy to the party or by mailing it to the party at the party's last known address. . . . Delivery of a copy within this rule means handing it to the attorney or to the party, leaving it at the attorney's office with a partner or employee, or by sending it to the attorney's office by a confirmed telefacsimile transmittal for receipt by 5:00 P.M. Eastern Time on a regular business day, as evidenced by a telefacsimile receipt confirmation.

Ostensibly, defendant contends that prosecuting him for second- degree trespass infringed upon his constitutional right to unlawfully enter upon the premises of opposing counsel to personally serve notice under N.C. Gen. Stat. § 1A-1, Rule 5. Contrary to defendant's contention, a party serving notice does not have a constitutional right to unlawfully trespass upon another's property to serve notice in person when other equally effective means are expressly provided under N.C. Gen. Stat. § 1A-1, Rule 5(b). Accordingly, where as here, personally serving notice would violate the duly established law against trespass, it is not an infringementof any constitutional right to require a party to serve an opposing party via alternative methods allowed under N.C. Gen. Stat. § 1A-1, Rule 5(b).
    Defendant also asserts the trial court erred by allowing amendment of the warrant to reflect the proper offense date rather than dismissing the charge because the warrant was fatally defective. Pursuant to N.C. Gen. Stat. § 15A-922(f) (2003), “[a] statement of charges, criminal summons, warrant for arrest, citation, or magistrate's order may be amended at any time prior to or after final judgment when the amendment does not change the nature of the offense charged.” In the instant case, the trial court, prior to trial, allowed amendment of the warrant to correct the date of offense from 17 February 2001 to 16 February 2001. This amendment did not change the nature of the charge, and there is no indication that the amendment in any way prejudiced defendant. Accordingly, defendant's assertion is without merit.
    Defendant finally asserts the trial court erred by failing to dismiss the charge due to violation of his Sixth Amendment right to a speedy trial. Courts determine whether a defendant was deprived of his Sixth Amendment right to a speedy trial based on a case-by- case balancing of four factors: “(i) the length of delay, (ii) the reason for delay, (iii) the defendant's assertion of his right to a speedy trial, and (iv) whether the defendant suffered prejudice as a result of the delay.” State v. Hammonds, 141 N.C. App. 152, 158, 541 S.E.2d 166, 172 (2000). Therefore, “the length of the delay is not per se determinative of whether the defendant has been deprivedof his right to a speedy trial.” State v. Grooms, 353 N.C. 50, 62, 540 S.E.2d 713, 721 (2000). Rather, “[t]he length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Hammonds, 141 N.C. App. at 159, 541 S.E.2d at 172. “Because the length of delay is viewed as a triggering mechanism for the speedy trial issue, 'its significance in the balance is not great.'” Id. (citing State v. Hill, 287 N.C. 207, 211, 214 S.E.2d 67, 71 (1975)). We deem a delay of approximately three years and three months requires further inquiry.
    In considering the reason for delay, we note that the right to a speedy trial guards “against purposeful or oppressive delays and those which the prosecution could have avoided by reasonable effort.” State v. Johnson, 275 N.C. 264, 273, 167 S.E.2d 274, 280 (1969). “The burden is on an accused who asserts the denial of his right to a speedy trial to show that the delay was due to the neglect or willfulness of the prosecution.” Id., 275 N.C. at 269, 167 S.E.2d at 278. We first observe that certain delays were due to out-of-state trips by defendant. On one occasion, defendant's case was tentatively scheduled for hearing during the week of 7 May 2001, but defendant informed the court he would be out of the state. Defendant's case was later called on 1 December 2003, but defendant was out of the state and failed to appear. Additionally, two judges recused themselves from presiding over defendant's criminal trial. One did so in December 2001 and another on 29 January 2002. Furthermore, with respect to the judge scheduled to sit during the March 2002 criminal session, defendant had alleged bias against the judge and appealed to our Supreme Court her refusal to recuse herself from all matters related to his protracted civil litigation.
    Considering defendant's out-of-state trips, the two judicial recusals, and defendant's allegations of bias against a third judge, we are of the opinion that the delay in the instant case was inevitable. See State v. Brown, 282 N.C. 117, 124, 191 S.E.2d 659, 664 (1972) (stating “both crowded dockets and lack of judges or lawyers, and other factors, make some delays inevitable”). Concerning the two remaining factors in our analysis, we note defendant referenced his right to a speedy trial in a letter to the trial court in January 2002, but we can discern no prejudice to defendant as a result of the delay. Moreover, although defendant alleges the prosecutor knew of his trip on 1 December 2003 and scheduled his case that day in bad faith, defendant fails to point to any evidence in the record of this alleged bad faith or that the prosecution negligently or willfully delayed his case. Accordingly, we hold the delay in the instant case did not violate defendant's Sixth Amendment right to a speedy trial.
    We have carefully considered defendant's remaining arguments and consider them to be without merit. For the foregoing reasons, we hold defendant received a fair trial free from error.

    No error.
    Judges McGEE and ELMORE concur.
    Report per Rule 30(e).

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