An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-1549


Filed: 6 September 2005


v .                         Robeson County
                            No. 99 CRS 16034

    Appeal by defendant from judgment entered 20 August 2003 by Judge E. Lynn Johnson in Robeson County Superior Court. Heard in the Court of Appeals 15 June 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General R. Marcus Lodge, for the State.

    Jarvis John Edgerton, IV for defendant-appellant.

    ELMORE, Judge.

    Wesley Lamont Hinson (defendant) appeals from his conviction of assault on a government official with a deadly weapon, in violation of N.C. Gen. Stat. § 14-34.5. Defendant argues 1) that the trial court erred in denying his motion to dismiss because the arresting officer was not in the performance of his duties when the defendant assaulted him; and 2) that the trial court erred in allowing the State to cross-examine defense witnesses regarding highly prejudicial facts not in evidence.

    In the light most favorable to the State, the following evidence was presented at trial. On 8 July 1999, an anonymous caller informed the Fairmont Police Department that the smell ofmarijuana smoke was emanating from one of two apartments, each located in separate buildings. Two uniformed officers, including Sergeant Justin Reed (Sgt. Reed), arrived at the scene and knocked on the door of one of the apartments. The apartment Sgt. Reed responded to was owned by Cecilia Moody (Moody), who stepped away from the open door without speaking. Sgt. Reed then entered and stated the police had received a call reporting marijuana smoke. Once entering the apartment, Sgt. Reed smelled marijuana and quickly moved toward a back room from which loud music and the smell were emanating.
    Sgt. Reed testified that upon entering the room, he saw five men, one of whom was smoking marijuana. Sgt. Reed drew his weapon, but holstered it shortly thereafter when he did not feel threatened. While standing in the doorway to the room, Sgt. Reed testified defendant lunged at him, and then they fell into the hallway in a scuffle. During the altercation, a gun fell to the floor that defendant seized and attempted to fire at Sgt. Reed. The gun did not fire, and when presented at trial was rusted to the point that it could not be broken down. Sgt. Reed noticed during the struggle that a bag of marijuana had fallen to the floor, and he recovered it. Defendant then escaped out a window, later turning himself in.
    At trial, after presentation of the State's case-in-chief, the State cross-examined defendant and another defense witness about access to additional guns within the room. Defense counsel properly objected to the assumption of facts not in evidence, butthese objections were overruled. After subsequent repetitions of this pattern of questioning by the State, the trial court sustained defendant's continued objections and gave a limiting instruction stating: “[l]adies and gentlemen of the jury, if pre-condition is whether he had knowledge about the weapons, I'll let [the State] ask questions about those, but _ and then he can establish whether the defendant has a tie to those weapons.”
    Defendant first argues that the trial court erred in denying his motion to dismiss when the State failed to offer substantial evidence of each element of assault with a firearm on a law enforcement officer. In order to prove defendant violated N.C. Gen. Stat. § 14-34.5(a) the State must establish: “(1) an assault; (2) with a firearm; (3) on a law enforcement officer; (4) while the officer is engaged in the performance of his or her duties.” State v. Childers, 154 N.C. App. 375, 382, 572 S.E.2d 207, 212 (2002). “An assault is 'an overt act or attempt, with force and violence, to do some immediate physical injury to the person of another, which show of force or violence must be sufficient to put a person of reasonable firmness in fear of immediate physical injury.'” Id. (quoting State v. Haynesworth, 146 N.C. App. 523, 529, 553 S.E.2d 103, 108 (2001)). Defendant only disputes the last element of section 14-34.5(a) here; specifically, he argues that the State failed to show that Sgt. Reed was legally in the apartment at the time the assault occurred and therefore could not be in “performance of his or her duties” as the statutory offenserequires. Relevant to the circumstances of this case, this argument is appealing at first, but we cannot ultimately hold that the trial court erred in dismissing defendant's motion.
    Defendant argues that Sgt. Reed did not have a warrant, or meet any criteria for an exception thereto, when he entered Moody's apartment; and therefore exceeded the scope of his legal authority to enter the home. If forced by the posture of this case to determine the legitimacy of defendant's argument on this point, we would likely agree. Sgt. Reed was responding to an anonymous call reporting possible marijuana use in an apartment complex. The caller identified the smell as coming from one of two apartments, each in separate apartment buildings. Further, Sgt. Reed testified it was not until he stepped inside the apartment, and thus needed to have previously established his legal authority to enter, that he clearly smelled marijuana. And it is equally questionable whether Moody's actions established consent. Cf. State v. Harper, 158 N.C. App. 595, 582 S.E.2d 62 (after initially blocking or denying officers' entry into the room, additional conversation and a request to enter from the officers yielded defendant's opening the door wide and standing clear of the officers' entry), disc. review denied, 357 N.C. 509, 588 S.E.2d 372 (2003); State v. Graham, 149 N.C. App. 215, 562 S.E.2d 286 (2002) (after being asked to allow a search of his pockets defendant “stood up and raised his hands away from his body accompanied by a gesture which [the officer] took to mean consent.”), disc. review denied, 356 N.C. 685, 578 S.E.2d 315 (2003). Here, the record reflects that beforeSgt. Reed entered the apartment he simply knocked, the door was answered, and “she stepped back”; notably, no conversation occurred, much less a verbal request for a search as in Harper and Graham.
    Nonetheless, despite our hesitancy to say that Sgt. Reed's actions were legal under Fourth Amendment jurisprudence, we do not agree with defendant that the “duty” element of N.C. Gen. Stat. § 14-34.5 requires such a stringent assessment of Sgt. Reed's presence in the house. Defendant concedes that he is unable to cite any authority for his characterization; indeed, there is little authority interpreting this element of section 14-34.5.
    The crime of assault on a law enforcement officer was enacted on 1 July 1995, see 1995 N.C. Sess. Laws ch. 507, § 28.13, and codified at section 14-34.5 of our General Statutes. 1995 N.C. Sess. Laws ch. 507, § 19.5(j). At the time it was proposed it read: “[a]ny person who commits an assault with a firearm upon a law enforcement officer in the performance of his or her duties is guilty of a Class E felony.” Id. Later, in an Act passed to “make various technical amendments” the General Assembly added the phrase “while the law enforcement officer is” in between “officer” and “in.” 1995 N.C. Sess. Laws ch. 742, § 10. Various other amendments have altered the statute, but the language regarding the duties has not changed.
        Any person who commits an assault with a firearm upon a law enforcement officer, probation officer, or parole officer while the officer is in the performance of his or her duties is guilty of a Class E felony.
N.C. Gen. Stat. § 14-34.5(a) (2003). Prior to enacting this separate statute, the use of a firearm in an assault on an officer was covered by N.C. Gen. Stat. § 14-34.2 (2003) and, absent a deadly weapon or firearm, by N.C. Gen. Stat. § 14-33 (2003). See 1995 N.C. Sess. Laws ch. 507, § 19.5(i) and (j); 1991 Sess. Laws ch. 525, §§ 1 and 2.
    With each alteration, the General Assembly made an assault on a law enforcement officer with a firearm a more severe crime, but never substantially altered the composition of the crime itself. Previously, N.C. Gen. Stat. § 14-33(b)(4) stated it was a crime to assault an officer “while the officer . . . is discharging or attempting to discharge a duty of his office[.]” 1991 Sess. Laws ch. 525, § 1. Section 14-34.2, although no longer applicable specifically to law enforcement officers, uses the language “in the performance of his duties.” N.C. Gen. Stat. § 14-34.2 (2003). Also, it presently is a class F felony to inflict serious injury during an assault on an officer “while the officer is discharging or attempting to discharge his or her official duties.” N.C. Gen. Stat. § 14-34.7 (2003).
    Since all of these assault statutes are interrelated based on one having more applicability to the circumstances than another, we cannot perceive that the legislature intended a part of that variance to depend on what the officer was doing at the time. For instance, N.C. Gen. Stat. § 14-34.7 involves the infliction of serious bodily injury, making that crime a class F felony. However, if a person uses a firearm in the assault, regardless ofany injury, it is a class E felony. See N.C. Gen. Stat. § 14-34.5 (2003). Although the language regarding duty differs marginally between each, we determine the legislature intended the escalation of the crime to be commensurate with the use of a firearm, not necessarily whether the performance or discharge of the officer's duties was different. Accordingly, despite scant authority regarding the performance element in section 14-34.5, we are guided by other appellate opinions interpreting the same or similar language.
    This Court discussed the now repealed language in N.C. Gen. Stat. § 14-33 regarding an officer's duties in State v. Kirby, 15 N.C. App. 480, 487-88, 190 S.E.2d 320, 325 (1972). In Kirby, the defendant argued that the State needed to show the specific duty the officer was performing when he was assaulted, similar to the crime of resisting arrest where the State was required to show the specific duty the officer was carrying out when the resistance occurred. Id. After noting that the legislative intent of the assault statute “was to provide greater punishment for those who place themselves in open defiance of duly constituted authority by assaulting public officers who are on duty,” we rejected defendant's argument. Id. (emphasis added).
        In the offense of resisting an officer, the resisting of the public officer in the performance of some duty is the primary conduct proscribed by that statute and the particular duty that the officer is performing while being resisted is of paramount importance and is very material to the preparation of the defendant's defense, while in the offense of assaulting a public officer in the performance of some day, the assault onthe officer is the primary conduct proscribed by the statute and the particular duty that the officer is performing while being assaulted is of secondary importance. The legislative intent appears to be that if a public officer is assaulted in performing or attempting to perform any duty of his office, the provision of G.S. § 14-33(c)(4) is applicable.

Id. (emphasis in original). Reading the officer's duty broadly here, to even include actions that are potentially in violation of the Fourth Amendment, is seemingly more in line with legislative intent than, as defendant suggests, only allowing the charge in circumstances where the officer is assaulted in a location he had a legal right to be.
    Sgt. Reed was on duty, called to investigate a potential crime, and was assaulted while in the course of investigating the crime. Sgt. Reed was not in plain clothes barging into defendant's home unexpectedly, such that defendant may have mistaken him for a criminal. He was in uniform, investigating a crime, and in the light most favorable to the State, walked passed the apartment owner and her guests before arriving at the room where defendant and his friends were. While the fruits of his potentially illegal search might have been excluded, the increased punishment for defendant's defiant and reprehensible actions in aiming a gun at Sgt. Reed should not be so excluded because the assault took place in Moody's residence rather than outside her door. See Keziah v. Bostic, 452 F. Supp. 912, 916 (W.D.N.C. 1978) (interpreting section 14-33's former applicability to officers and although determining the officer's search of defendant was unconstitutional, defendant“was not entitled to invoke self-help against what was, at the time, an arguably lawful arrest.”).
    We are further persuaded by our Supreme Court's discussion of the exclusionary rule in State v. Guevara, 349 N.C. 243, 249-50, 506 S.E.2d 711, 716 (1998), which was raised by defendant to exclude testimony of a witness regarding the death of an officer who may or may not have been in the home legally.
        [T]his Court has further held that the exclusionary rule 'must be discerned in light of the facts in each case. When so considered, it is apparent that the rule does not require the exclusion of evidence obtained after an illegal entry when that evidence is offered to prove the murder of one of the officers making the entry.' State v. Miller, 282 N.C. 633, 641, 194 S.E.2d 353, 358 (1973). As we noted in Miller, application of the exclusionary rule to exclude evidence of crimes directed against the person of trespassing officers 'would in effect give the victims of illegal searches a license to assault and murder the officers involved_a result manifestly unacceptable.' Id. Therefore, in the case sub judice, regardless of whether Deputy West lawfully entered defendant's home, Lieutenant Medlin's eyewitness account of the events which transpired subsequent thereto is not barred by application of the exclusionary rule.

    Also instructive is our Supreme Court's interpretation of N.C. Gen. Stat. § 15A-2000(e)(8), a capital aggravating factor which states:
        The capital felony was committed against a law-enforcement officer, employee of the Department of Correction, jailer, fireman, judge or justice, former judge or justice, prosecutor or former prosecutor, juror or former juror, or witness or former witness against the defendant, while engaged in theperformance of his official duties or because of the exercise of his official duty.

N.C. Gen. Stat. § 15A-2000(e)(8) (2003) (emphasis added). In State v. Gaines, 332 N.C. 461, 471, 421 S.E.2d 569, 574 (1992), the Court stated:
        With regard to the question of whether the officer was engaged in the performance of his official duties when he was murdered, it appears the trial court ruled the officer was not so engaged because he elected to eject the defendants from the premises of the Red Roof Inn instead of making an arrest. We find this to be an unduly narrow and an unrealistically restrictive interpretation of the term 'official duties' as it relates in actual practice to law enforcement officers. Such an interpretation would seem to require that a law enforcement officer be actively and aggressively focused upon a particular criminal suspect, as in the case of actually drawing or firing his weapon or engaging in hot pursuit, in order for his public service to fall within the realm of 'official duties.' We find this to be an inordinately strained and unnatural application of this term as it is normally used with respect to the official duties of all law enforcement officers, which includes such duties as investigative work (including stakeouts), crowd or traffic control, and routine patrol by automobile.

    Admittedly, these cases do not construe N.C. Gen. Stat. § 14- 34.5, the offense in this case, but we cannot overlook such precedent reviewing the statutory language that is in question here. Therefore, we hold that even though Sgt. Reed may have been in Moody's apartment illegally, there was nonetheless substantial evidence presented that he was assaulted while he was in “the performance of his or her duties.” Thus, the trial court did not err in denying defendant's motion to dismiss.
    Defendant next assigns error to the trial court's decision to allow the State to question defendant and one of defendant's witnesses about the presence of other firearms in the room where defendant was found by Sgt. Reed. He further argues that these highly inflammatory questions ultimately prejudiced the jury by suggesting that he had additional weapons. Based on the trial court's ruling regarding these questions and its misleading and confusing limiting instruction, we agree with defendant.
    Generally, trial counsel is afforded wide latitude on cross-examination, subject to discretionary limitations set by the trial court and the requirement that each question asked be in good faith. See State v. Dawson, 302 N.C. 581, 585-86, 276 S.E.2d 348, 351-52 (1981) (discussing limitations on cross-examination questions, including good faith basis requirement). In the case at bar, the State asked one of defendant's witnesses, who was in the room with defendant when Sgt. Reed came in, whether he knew there were two guns underneath the mattress they were sitting on.
        STATE: You were sitting on the bed there in the bedroom?

        WITNESS: Yes, sir, when he walked in.

        STATE: Which of the weapons under the mattress belonged to you --

        DEFENSE COUNSEL: Move to strike.

        STATE: -- the .40 caliber or the .38 --

        DEFENSE COUNSEL: Assuming facts not in evidence.
        WITNESS: I didn't know there was a weapon in there --

        THE COURT: Over --

        WITNESS: -- because when they --

        THE COURT: Wait a minute. Wait a minute. Stop.


        THE COURT: Can I see counsel just on a good faith representation?

        . . . (unrecorded bench conference)

        THE COURT: All right. The objection's been overruled based on the bench conference.

In North Carolina, absent the record reflecting otherwise, there is a presumption that cross-examination questions asked by the State are proposed in good faith. Id. Here, the record reflects that the trial court determined any issue of good faith in the State's favor during an unrecorded bench conference. As such, no evidence of bad faith appears in the record before us.
    However, when the questioning resumed after the conference, the trial court sustained defendant's objections to the continued line of questioning dealing with the supposed guns in the room.
        STATE: Are you denying that the .40 caliber Glock belonged to you?

        WITNESS: Yes.

        STATE: How about the .38 stuffed under the mattress; did that belong to you?

        DEFENSE COUNSEL: Object. Assuming facts not in evidence. He hasn't said anything about --

        THE COURT: Well, the preconditioned question is did he know they were there, then you can ask him about --
        WITNESS: No, I didn't know they was there.

        STATE: You were sitting on top of them and you didn't know they were there?

        WITNESS: Excuse me?

        STATE: You were sitting on top of them and you didn't know they were there?

        DEFENSE COUNSEL: Assuming facts not in evidence.

        THE COURT: Sustained. Sustained.

Still later at trial, the State reopened the same line of questioning with defendant. This line of questioning was sustained for a second time, and after this round defendant moved for a limiting instruction.
        [W]here the court sustains objection to questions asked by the solicitor, no prejudice results. . . . Ordinarily, merely asking the question will not be held prejudicial. . . .

        Furthermore, when all evidence of a particular character is stricken and the jury is instructed not to consider it, any prejudice is ordinarily cured, . . . unless the evidence stricken was so highly prejudicial that its effect cannot be erased from the minds of the jurors_in which event error in its admission is not cured by its withdrawal and instructions not to consider.

State v. Barrow, 276 N.C. 381, 387-88, 172 S.E.2d 512, 516 (1970) (internal citations omitted).
    Here, however, we are not assured that any prejudice was alleviated at trial by the trial court sustaining the objection and offering a limiting instruction. Indeed, it is the limiting instruction in this case that tends to invoke prejudice, not alleviate it. The trial court stated: “[l]adies and gentlemen ofthe jury, if pre-condition is whether he had knowledge about the weapons, I'll let [the State] ask questions about those, but _ and then he can establish whether the defendant has a tie to those weapons.” The “limiting” instruction here does not tell the jury to disregard the evidence of other guns, nothing of which was ever entered into evidence, nor does it instruct the jury on how they should consider the questions and answers. See N.C. Gen. Stat. § 8C-1, Rule 105 (2003) (the trial court “shall restrict the evidence to its proper scope and instruct the jury accordingly.”). The instruction is confusing, misleading, and evokes the unfounded inference that there were guns in the room accessible to defendant. See 89 C.J.S. Trial § 583 (2001) (“It is error to give instructions which tend to mislead or confuse the jury and the test for correctness of an instruction is how it will be understood by the average person composing juries.”).
    In the case at hand, defendant was on trial for assaulting an officer with a firearm. The evidence presented by the State, and in the light most favorable to it, was that Sgt. Reed, by himself, encountered five men in a single bedroom, at least one of whom was smoking marijuana. Sgt. Reed first drew his service weapon and then holstered it. Next, during a scuffle with defendant just outside the bedroom door, a gun fell onto the floor. Sgt. Reed testified that defendant reacted by picking it up and attempting to shoot it at him. The particular gun in question, exhibited at trial, was apparently incapable of being fired. Defendant, on the other hand, disputes the State's characterization of the events,claiming that he did not have a gun, it was someone else's in the room; and that Sgt. Reed had his weapon drawn and aimed at them, yelling that he was going to shoot them. There was no independent evidence or testimony, and as a result the defendant's credibility was at the forefront of the trial.
    Based on these particular facts, coupled with the errant limiting instruction to sustained questions about other guns in the room, we conclude the jury was misled and defendant was prejudiced thereby. Accordingly, we remand defendant's case for a new trial.
    New Trial.
    Judges CALABRIA and GEER concur.
    Report per Rule 30(e).

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