Converted WP file 050035-1

Appeal by defendant from judgment entered 17 December 2003 by Judge Jesse B. Caldwell, III in Gaston County Superior Court. Heard in the Court of Appeals 24 August 2005.

Attorney General Roy Cooper, by Special Deputy Attorney General Sharon Patrick-Wilson, for the State.

M. Victoria Jayne for defendant-appellant.

STEELMAN, Judge.

    On 17 July 2001 Ms. Eddis Thomas (Thomas) was working behind the counter at the Kingsway Convenience Store (store) in Gaston County when, around 6:35 a.m., defendant entered. Defendant had been previously banned from the store on numerous occasions, most recently the day before this incident, and the ban was still in effect. Without speaking to defendant, Thomas locked defendant in the store, called 911, and refused to open the door for defendant. Defendant jumped over the counter, grabbed Thomas' arm, and snatched the keys out of her hand. In the process, defendant bruised Thomas' arm and cut her finger.
    A jury convicted defendant of misdemeanor assault on a femaleand first degree trespass on 17 December 2003. Based on defendant's stipulation to five prior convictions of misdemeanor assault, defendant's assault conviction constituted the basis for conviction of habitual misdemeanor assault under N.C. Gen. Stat. § 14-33.2. The trial court consolidated judgment and sentenced defendant to an active prison term of sixteen to twenty months. From this judgment defendant appeals.
    In his first assignment of error, defendant argues that the trial court erred in denying his motion to dismiss at the close of State's evidence. We disagree.
     “Upon defendant's motion for dismissal, the question for the [trial court] is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.” State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)(citations omitted). Substantial evidence is relevant evidence that a reasonable person would find sufficient to support a conclusion. State v. Blake, 319 N.C. 599, 604, 356 S.E.2d 352, 355 (1987)(citation omitted). When reviewing a motion to dismiss based on insufficiency of the evidence, this Court must
        view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve. . . . Once the court decides that a reasonable inference of defendant's guilt may be drawn from the circumstances, then “'it is for the jury to decide whether the facts, taken singly or in combination, satisfy [it] beyond areasonable doubt that the defendant is actually guilty.'”

State v. Barnes, 334 N.C. 67, 75-6, 430 S.E.2d 914, 918-19 (1993)(citations omitted)(emphasis removed).
    “N.C. Gen. Stat. section 14-159.12 provides that a person is guilty of first-degree trespass when 'without authorization, he enters or remains . . . on premises of another . . . or in a building of another.'” State v. Hamilton, 132 N.C. App. 316, 320-21, 512 S.E.2d 80, 84 (1999). State's evidence tends to show that Thomas, while working as the sole person in charge of the store, informed defendant that he was no longer allowed to enter the store. The following day, defendant entered the store in spite of having been banned from the premises (i.e. he entered a building of another without authorization).
    Defendant argues that the state failed to provide evidence that Thomas had the authority to ban him. Defendant fails to provide any authority to support this contention. Circumstances can imply authority to grant or withhold consent for entry. State v. Upchurch, 332 N.C. 439, 458, 421 S.E.2d 577, 588 (1992). We hold that Thomas' authority, as the sole person in charge of the store, to ban defendant from the store is implied on these facts. The State presented sufficient evidence of each essential element of first-degree trespass to survive defendant's motion to dismiss.
    Defendant further argues that the State did not present sufficient evidence to survive his motion to dismiss for the charge of assault on a female. The crime of assault on a female is committed when a man, at least eighteen years of age, assaults awoman. N.C. Gen. Stat. § 14-33(c)(2). “There is no statutory definition of assault in North Carolina, and the crime of assault is governed by common law rules.” State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967). The definition established by common law many years ago has been succinctly stated as “an intentional attempt, by violence, to do an injury to the person of another.” State v. Davis, 23 N.C. 125, 127 (1840). Any application of force to the person of another is a battery and is necessarily an assault. State v. Britt, 270 N.C. 416, 418, 154 S.E.2d 519, 521 (1967). It is uncontested that the victim, Thomas, is a female, and that defendant is a male at least eighteen years of age. The State's evidence shows that defendant jumped across the countertop and grabbed Thomas by the arm, causing a bruise. This evidence is sufficient to withstand defendant's motion to dismiss on the charge of assault on a female. This assignment of error is without merit.
    In his second assignment of error, defendant argues that the trial court committed reversible error by denying his request to instruct the jury on “justification” and “false imprisonment.” We disagree.
    At the charge conference defendant requested an instruction on the defense of justification based on false imprisonment. The trial court denied this request. “It is well settled that the trial court must give the instructions requested, at least in substance, if they are proper and supported by the evidence. See Roberts v. Young, 120 N.C. App. 720, 726, 464 S.E.2d 78, 83 (1995).” State v. Craig, __ N.C. App. __, __, 606 S.E.2d 387, 388(2005). “One without fault in provoking or continuing an assault is privileged to use such force as is reasonably necessary to protect himself from bodily harm or offensive physical contact.” State v. Grant, 57 N.C. App. 589, 591, 291 S.E.2d 913, 15 (1982)(citation omitted).
    Defendant was not without fault in that he entered the store as a trespasser. Further, the record is void of any evidence that it was reasonably necessary for defendant to use force to protect himself from bodily harm or offensive contact. Defendant was not entitled to an instruction on justification, even assuming arguendo he was being falsely imprisoned. Further, though any false imprisonment might have been relevant to defendant's first-degree trespassing conviction if it was based on his remaining in the store, the instant facts show that defendant committed a first- degree trespass when he entered the store in violation of Thomas' ban of the previous day. For these reasons, assuming arguendo defendant had a valid claim against Thomas for false imprisonment, the law and facts in the instant case did not support an instruction on false imprisonment in this trial. This assignment of error is without merit.
    NO ERROR.
    Judges HUNTER and TYSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***