State v Clay, (05-568) 11/15/2005

Appeal by defendant from judgment entered 1 February 2005 by Judge Benjamin G. Alford in New Hanover County Superior Court. Heard in the Court of Appeals 31 October 2005.

Attorney General Roy Cooper, by Assistant Attorney General Anne Goco Kirby, for the State.

Geoffrey W. Hosford for defendant-appellant.

    CALABRIA, Judge.

    The State presented evidence showing that Ronald Lee Clay (“defendant”) and Sharon Packer (“Packer”) started a romantic relationship in 2001, while they were co-workers at a Lowe's Foods store in Wilmington, North Carolina. They moved to Cabarrus County, North Carolina, where Packer was employed as a park ranger for nearly two years. At this point, Packer ended her relationship with defendant and moved out of their shared residence. Although Packer tried to remain in Cabarrus County, defendant continued to pursue her and interfere with her employment. When Packer was unable to obtain a restraining order against defendant, she returned to her parents' home in Wilmington in November, 2003, andfound a job at a Food Lion grocery store in Porter's Neck, North Carolina (“Food Lion”).
    On 22 April 2004, defendant telephoned the Food Lion, identified himself under a pseudonym and asked to speak to Packer. Jeff Mullins (“Mullins”), the store's regional manager, told defendant “that she did not want to talk to him, that he needed to quit calling the store and quit bothering her.” When defendant insisted on speaking with Packer, Mullins threatened to call the police. Defendant replied, “I really don't care,” and told Mullins that he was in the Food Lion parking lot next to Packer's vehicle. Defendant refused to leave the premises, and Mullins contacted the New Hanover County Sheriff's Department.
    Deputy Patrick Sellers (“Sellers”) responded to the call and arrived at the Food Lion at approximately 4:15 p.m. Defendant was no longer in the parking lot. While Sellers was interviewing Packer and Mullins, Packer's parents arrived. Sellers advised Packer of the procedures for obtaining a domestic violence protective order and left the parking lot at 5:15 p.m. Packer remained at the store with her mother, and her father went home. When Packer was unable to start her truck, she looked under the hood and discovered the battery was missing. Her mother immediately called her father and left a message for him to come back to the store.
    While Packer and her mother were waiting for her father, defendant returned to the parking lot, battery in tow and “threw the battery on the hood of [Packer's] truck.” Packer's mother gotout of the truck and asked defendant to leave. Packer described the ensuing events as follows:
            Well, [defendant] got nose to nose with my mom after he threw the battery on the hood, and started hollering at her. And the next thing I knew, he turned around to come towards me, and I just hightailed it back into the truck and was trying to get in. I was going to shut the door behind myself. And by the time he got to the driver's side door, I didn't get my leg -- my foot or my leg all the way in the vehicle, and my foot got shut in the door, and my leg was pinned between the pocket of the door and the seat of the truck and he was just standing there, like that, keeping pressure on it.

            Every now and then, he would lunge forward. And I kept hollering, “Please get off the door. My foot, my foot. Please get off the door.” And he just stood there, laughing at me and hollering about something. . . . I just remember him laughing, like he knew my foot was in there.

Through the open window of the door, Packer repeatedly announced, “Get off the door, my foot is caught. Get off.” Defendant continued to laugh at Packer, “tak[ing] a little bit of pressure off [the door] every now and then” before pushing it down onto Packer's foot with his body weight. Defendant “jammed” the door against Packer's foot “maybe 15 or 20 times” as her mother and Mullins tried to pull him away from the truck. Only when Packer's father arrived and joined the effort were they able to get defendant off the door. After a brief altercation between defendant and Packer's father, a second sheriff's deputy arrived and placed defendant under arrest. As a result of the incident, “the whole top of [Packer's] foot from [her] toe to [her] ankle was bruised and swollen for a couple of weeks.”     At trial on 31 January 2005, defendant was found guilty by a jury of assault on a female. The trial court sentenced defendant to seventy-five days in the New Hanover County jail and placed defendant on supervised probation for thirty-six months. Defendant appeals.
    On appeal, defendant claims the trial court erred in denying his motion to dismiss the charge of assault on a female at the conclusion of the evidence. He argues the State failed to illustrate that he intended to physically injure Packer as required to establish an assault.
    In reviewing the denial of a motion to dismiss, we determine only whether the State adduced substantial evidence of the essential elements of the offense and of defendant's identity as the perpetrator. State v. Carr, 122 N.C. App. 369, 371-72, 470 S.E.2d 70, 72 (1996). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). For purposes of our review, the State's evidence is taken as true. State v. Bowman, 232 N.C. 374, 376, 61 S.E.2d 107, 109 (1950).
    Our Supreme Court determined that “[t]he elements of assault on a female are (1) an assault, (2) upon a female person, (3) by a male person[,] (4) who is at least eighteen years old.” State v. Herring, 322 N.C. 733, 743, 370 S.E.2d 363, 370 (1988); see also N.C. Gen. Stat. § 14-33(c)(2) (2003). Assault is “an overt act or attempt, or the unequivocal appearance of an attempt, with forceand violence, to do some immediate physical injury to the person of another, which show of force or menace or violence must be sufficient to put a person of reasonable firmness in fear of immediate physical injury.” State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967).
    Since “every battery includes an assault[,]” State v. Thompson, 27 N.C. App. 576, 577, 219 S.E.2d 566, 568 (1975), disc. review denied, 289 N.C. 141, 220 S.E.2d 800 (1976), “assault on a female may be proven by finding either an assault on or a battery of the victim.” State v. West, 146 N.C. App. 741, 743, 554 S.E.2d 837, 839-40 (2001) (emphasis added). Battery “is the unlawful application of force to the person of another by the aggressor himself, or by some substance which he puts in motion.” State v. Hefner, 199 N.C. 778, 780, 155 S.E. 879, 881 (1930). Such an application of force is unlawful if it is intentional, non-consensual, and not otherwise privileged or excused. See Redding v. Shelton's Harley Davidson, Inc., 139 N.C. App. 816, 821, 534 S.E.2d 656, 659 (2000) (emphasis added), disc. review denied, 353 N.C. 380, 546 S.E.2d 606 (2001). Thus, if a criminal defendant intentionally touches or applies force to another in a manner that is neither consensual nor privileged, that defendant has committed a battery and, necessarily then, an assault.
    Defendant's claim that the State failed to illustrate that he intended to injure Packer is without merit. The State presented evidence that Packer repeatedly pleaded with the defendant, who had closed the truck's door on Packer's foot, to “get off the door.” In response, defendant laughed and “jammed” his body weight against the door and, consequently, Packer's foot, ten to fifteen times, resisting multiple attempts to pull him away. A jury could reasonably infer defendant intentionally pushed the truck door onto to Packer's foot, committing a battery.
    The record on appeal contains a second assignment of error not addressed by defendant in his appellant's brief. Pursuant to N.C.R. App. P. 28(b)(6) (2005), we deem it abandoned.
    No error.
    Judges WYNN and JACKSON concur.
    Report per Rule 30(e).

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