An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1712


Filed: 6 September 2005


         v.                        Cabarrus County
                                Nos.    04 CRS 10863, 51458

    Appeal by defendant from judgment entered 12 August 2004 by Judge Larry G. Ford in Cabarrus County Superior Court. Heard in the Court of Appeals 18 August 2005.

    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).

*** Converted from WordPerfect ***