STATE OF NORTH CAROLINA
v. Cabarrus County
Nos. 04 CRS 10863, 51458
DANNY LEE CARTER
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Thomas H. Moore, for the State.
Leslie C. Rawls for defendant.
JACKSON, Judge.
A jury found defendant guilty of malicious conduct by a
prisoner and attaining the status of an habitual felon. Upon his
stipulation to at least nineteen prior record points and a prior
record level VI, he was sentenced to an active prison term of 140
to 177 months. Defendant gave timely notice of appeal.
Viewed in the light most favorable to the State, the evidence
tended to show that Cabarrus County Sheriff's Deputies Chris
Measimer and Dusty Lisk were dispatched to Ray Linker Road in
Cabarrus County, North Carolina at approximately 9:00 p.m. on 14
April 2004, upon a report of a white male standing in the road and
yelling. Upon arriving at Ray Linker Road, the deputies parkedtheir patrol vehicles in front of defendant's residence and
searched the area beside the roadway. At a distance of forty to
fifty yards from defendant's front door, they “heard someone yell
out, ['F]--k you, motherf---ers.[']” In response, Measimer “broke
off to the right closer to the wood lines” in order to have
“sufficient cover if something would happen[,]” while Lisk
proceeded to his left. Recognizing defendant's voice, Lisk called
out to ask him for his location. Appearing at the front door to
his residence, defendant replied, “[F]--k all you f----rs. I know
you got your guns out.” He then opened his front door and moved
into the doorway as if to walk down the stairs of his front stoop.
Defendant remained in his open doorway shouting vulgarities at
Lisk.
As the deputies approached defendant's residence, they
“noticed that the neighbors were out along with several of their
kids were all out watching him yell.” When advised by Measimer
that “if he continued to keep on cussing at us he was going to go
to jail[,]” defendant replied, “[F]--k you, I'm not going any damn
where.” Measimer grasped defendant's left arm and walked up the
steps of his stoop, telling defendant “to come on out.” Defendant
grabbed Measimer's forearm, “pulled [him] into the doorway and
slammed the door on [his] arm.”
After forcing the door open with his shoulder, Measimer struck
defendant in the mouth with his right fist, knocking him backward
into the house. The deputies then entered the residence and
positioned themselves on either side of defendant. Defendantcursed Measimer, who advised defendant that he was under arrest and
would be taken to jail. Defendant stated that he was “not going
anywhere[,]” made his right hand into a fist and moved toward Lisk
as if to strike him. As Measimer sprayed defendant with pepper
spray, Lisk grabbed defendant's right arm, attempting to subdue
him. Defendant pushed Lisk away and “balled up his fist again.”
The deputies succeeded in subduing and handcuffing defendant only
after Measimer struck him on the shoulders and abdomen with his
flashlight. Defendant walked outside and sat down on the steps.
Measimer called the fire department and EMS to obtain medical
treatment for defendant, who was bleeding from the lip and nose.
When the paramedics arrived, defendant refused treatment and
“began cussing at them loudly.” He continued to berate Lisk,
making repeated threats to kill him and claiming that “this is all
your fault, I knew you'd do something like this to me, so on and so
forth.” Measimer described the ensuing events as follows:
While [defendant] was cussing at the EMS[,]
Deputy Lisk told him to stop acting like that
and don't be cussing at them. At that time is
when [defendant] just mainly did a hock and
spit on Deputy Lisk's left leg and right foot.
The spit . . . did have blood in it. Deputy
Lisk stepped back and [defendant] stated,
[“T]hat p--sy motherf--ker is the cause of all
this shit.[”] And then he stated, [“]I'm
going to shoot your ass next time, motherf---
ker.[”]
Paramedics placed a “spit hood” on defendant and transported him to
the hospital. After defendant attempted to bite his treating
physician, he was taken to jail.
Defendant did not spit at any other time before or after hespat on Lisk. Although he cleared blood from his nose on one
occasion, at “no time did he hock, sneeze, . . . cough or did he
appear to be affected by that pepper spray”. In his own testimony,
defendant denied spitting on Lisk but conceded that he was
unaffected by the pepper spray.
In his sole assignment of error on appeal, defendant
challenges the denial of his motion to dismiss the charge of
malicious conduct by a prisoner, absent “sufficient evidence of the
requisite mens rea[,]” i.e., that he spat upon Lisk knowingly and
willfully. See N.C. Gen. Stat. § 14-258.4(a) (2003). Citing the
evidence that he had been punched and pepper-sprayed and was
bleeding from the nose and mouth, defendant argues the State failed
to show a “purposeful and designed violation of law in the
spitting.”
In reviewing the denial of a motion to dismiss, we determine
whether the evidence, viewed in the light most favorable to the
State, would allow a reasonable juror to find the defendant guilty
of the essential elements of the offense beyond a reasonable doubt.
See State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651-52
(1982) (citing State v. Roseman, 279 N.C. 573, 580, 184 S.E.2d 289,
294 (1971)). Here, defendant challenges the evidence that he
“acted knowingly and willfully” in spitting upon Lisk, an essential
element of the offense of malicious conduct by a prisoner. State
v. Smith, 163 N.C. App. 771, 773-74, 594 S.E.2d 430, 432 (2004)
(quoting State v. Robertson, 161 N.C. App. 288, 292-93, 587 S.E.2d
902, 905 (2003)). A defendant's knowledge and the willfulness ofhis conduct are intangible states of mind which may be determined
from the surrounding circumstances, including the defendant's
statements and behavior before and after the act in question, as
well as his manner of performing the act. See State v. Crouse, __
N.C. App. __, __, 610 S.E.2d 454, __ (2005) (quoting State v.
Bogle, 324 N.C. 190, 195, 376 S.E.2d 745, 748 (1989)).
The State's evidence showed that defendant repeatedly cursed
and threatened Lisk, that he shoved and attempted to punch Lisk
before being placed in handcuffs, that he did not spit at any other
time either before or after spitting upon Lisk, and that he audibly
gathered mucus into his mouth just before spitting at Lisk from a
distance of several feet. Immediately after spitting, defendant
told Lisk that the incident was “all your fault” and threatened to
kill him. By his own admission, defendant was unaffected by the
pepper spray. Viewed in the light most favorable to the State,
these circumstances support a reasonable inference that defendant
knowingly and willfully spat upon Lisk. Id.
While conceding the absence of a corresponding assignment of
error in his record on appeal, defendant asks this Court to review
a second ground for appeal pursuant to our discretionary authority
under Rule 2 of the North Carolina Rules of Appellate Procedure.
See also N.C.R. App. P. 10(a) Specifically, he challenges the
sufficiency of the evidence to show that Lisk was engaged in the
performance of an official duty at the time of the incident,
another essential element of the offense of malicious conduct by a
prisoner. See State v. Smith, 163 N.C. App. at 773-74, 594 S.E.2dat 432 (quoting Robertson, 161 N.C. App. at 292-93, 587 S.E.2d at
905); N.C. Gen. Stat. § 14-258.4(a). Defendant argues that the
deputies forced their way into his residence and then beat and
arrested him for “sport” in violation of his constitutional rights.
He avers the deputies lacked probable cause to arrest him or a
reasonable suspicion of criminal activity to justify his detention.
“Therefore, even though in uniform, the deputies were not engaged
in the performance of their duties, as required to satisfy the
elements of Malicious Conduct by a Prisoner. N.C. Gen. Stat. § 14-
258.4 (2004).”
The scope of appellate review is limited to those issues
presented by assignments of error set forth in the record on
appeal. N.C.R. App. P. 10(a). Because no assignment of error
corresponds to defendant's argument, it is not properly before this
Court. See, e.g., State v. Jordan, 162 N.C. App. 308, 313, 590
S.E.2d 424, 428 (2004). Moreover, because we find no “manifest
injustice” warranting a suspension of the Appellate Rules, we
decline defendant's invitation to review his claim pursuant to Rule
2. We note the evidence supported a finding that Lisk was
undertaking a lawful arrest of defendant based upon probable cause
at the time of the incident, as alleged in the indictment.
No error.
Judges MCGEE and HUDSON concur.
Report per Rule 30(e).
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