STATE OF NORTH CAROLINA
v
.
Henderson County
No. 01 CRS 51032
THOMAS W. HILL
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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