An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-327


Filed: 15 November 2005


    v.                        Forsyth County
                            No. 03 CRS 052528

    Appeal by defendant from judgment entered 17 July 2003 by Judge Lindsay R. Davis in Forsyth County Superior Court. Heard in the Court of Appeals 10 November 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Joseph E. Elder, for the State.

    David Childers, for defendant-appellant.

    TYSON, Judge.

     Andrew Neal Wright (“defendant”) appeals from judgment entered after a jury found him to be guilty of malicious conduct by a prisoner. We find no error.

I. Background
     The State's evidence tended to show that on 9 March 2003, Officer Cameron Wilson Whitt (“Officer Whitt”), a detention officer employed by Forsyth County Sheriff's Department was assigned to the special housing unit. This unit is designed for inmates with behavioral and mental problems, who are unable to function and remain in the general jail population. Defendant was incarcerated in the Forsyth County Jail and housed in the special unit. During Officer Whitt's first round of the morning, defendant asked OfficerWhitt when he would be able to “come out [of his cell] for his hour.” Officer Whitt told defendant that he had lost his hour due to disruptive behavior on the previous shift. Defendant became angry, kicked his cell door, screamed, and smeared feces throughout his cell. Defendant also attempted to spit on Officer Whitt and other inmates who “were out for their hour.”
    At lunchtime, Officer Whitt opened the food trap door of defendant's cell and handed defendant his lunch bag. Defendant grabbed the bag and threw it on the floor. Officer Whitt informed defendant that he had written defendant a disciplinary ticket due to defendant's prior behavior of yelling, kicking, smearing feces, and spitting. Defendant snatched the ticket from Officer Whitt's hand, tore it up, and threw it on the floor. Defendant then stated, “spit, I'll show you spit,” and he spat out the food trap door. Officer Whitt tried to step aside, but the spit “still struck me about waist level on the front of my shirt.” As Officer Whitt attempted to shut the trap door, defendant threw feces out of it and struck Officer Whitt on his right arm. Officer Whitt then sprayed defendant with pepper spray. Defendant retreated and Officer Whitt secured the cell door.
    Officer Whitt notified his supervisors of the situation and the control officer advised Detention Officer Donald Brewer (“Officer Brewer”) that Officer Whitt needed his help. When Officer Brewer arrived, he observed “spit” above Officer Whitt's waistline and feces on his arm. Officer Brewer described the material on Officer Whitt's arm as “brown looking, wet matter” andnoted that the matter was similar to the feces smeared all over defendant's cell.
    On 17 July 2003, a jury found defendant guilty of malicious conduct by a prisoner. The trial court sentenced defendant to thirty-one to thirty-eight months imprisonment. On 9 June 2004, this Court allowed defendant's petition for writ of certiorari seeking a belated appeal.
II. Issues
    Defendant argues the trial court erred by: (1) denying his motion to dismiss at the close of the State's evidence because the State failed to present sufficient evidence that the substance thrown at Officer Whitt was bodily fluid or excrement; and (2) denying his motion to dismiss because the State failed to present sufficient evidence that Officer Whitt was an employee of the State or a local government.
III. Motion to Dismiss
    Defendant argues the trial court erred by denying his motion to dismiss based on insufficiency of the evidence. The standard for ruling on a motion to dismiss “is whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense.” State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). “'Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”'” State v. Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585 (1994) (quoting State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61(1991) (quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980))). In ruling on a motion to dismiss, the trial court must consider all of the evidence in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence. State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). “Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal.” State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996) (citing State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980)).
    To prove a defendant's guilt of the offense of malicious conduct by a prisoner, the State must present substantial evidence to show :
        (1) the defendant threw, emitted, or caused to be used as a projectile a bodily fluid or excrement at the victim; (2) the victim was a State or local government employee; (3) the victim was in the performance of his or her State or local government duties at the time the fluid or excrement was released; (4) the defendant acted knowingly and willfully; and (5) the defendant was in the custody of the Department of Correction, the Department of Juvenile Justice and Delinquency Prevention, any law enforcement officer, or any local confinement facility (as defined in G.S. 153A-217, or G.S. 153A-230.1), including persons pending trial, appellate review, or presentence diagnostic evaluation, at the time of the incident.
State v. Robertson, 161 N.C. App. 288, 292-93, 587 S.E.2d 902, 905 (2003) (quotation omitted) . Defendant argues the State failed to present evidence that the nature of the substances thrown was saliva and feces or that the victim was a government employee. Wedisagree.
    The State presented substantial evidence of elements one and two. Officer Whitt testified that on 9 March 2003, he was employed as a detention officer for the Forsyth County Sheriff's Office and was assigned to defendant's cell block at the Forsyth County Jail. After Officer Whitt gave defendant his disciplinary ticket, defendant spat on him and threw feces, which landed on Officer Whitt's arm. Officer Brewer testified that while working with Officer Whitt at the Forsyth County Jail on 9 March 2003, he observed what appeared to be spit and feces on Officer Brewer's shirt and sleeve, respectively. This evidence is sufficient for a reasonable juror to conclude defendant was guilty of the offense of malicious conduct by a prisoner . The trial court properly denied defendant's motion to dismiss. Defendant's assignments of error are overruled.
IV. Conclusion
    The trial court did not err in denying defendant's motion to dismiss at the close of the State's evidence. Sufficient evidence was tendered to show that the substance thrown on Officer Whitt was salvia and excrement and that Officer Whitt was an employee of the Sheriff of Forsyth County. Defendant received a fair trial free from errors he assigned and argued.
    No error.
    Judges MCCULLOUGH and ELMORE concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***