STATE OF NORTH CAROLINA
v. Anson County
No. 03 CRS 52235
EDWARD MOSES
Attorney General Roy Cooper, by Special Deputy Attorney
General Mabel Y. Bullock, for the State.
Bryan Gates for defendant-appellant.
CALABRIA, Judge.
Edward Moses (“defendant”) appeals on the grounds that the
trial court erred in denying his motion to dismiss for insufficient
evidence and that the trial court's jury instruction was erroneous
because there was a material variance between defendant's warrant
and the instruction. We find no error.
Defendant was charged by warrant with simple assault. From a
conviction in district court, he appealed to superior court, where
he was again found guilty of the offense. The State presented
evidence showing that on 20 December 2003, Corrections Officer Bob
Chavis (“Officer Chavis”) screened inmates at the Brown Creek
Correctional Institution as they left the chow hall and walked
through a gate to return to their dorms. Officer Chavis confiscated oranges because the inmates used them to make homemade
wine. Officer Chavis observed defendant, an inmate at the
facility, come to the gate holding an orange in his hand.
Defendant disregarded Officer Chavis's order to hand over the
orange. Officer Chavis called his supervisor, Sergeant Danny
Wright (“Sergeant Wright”), for assistance. Sergeant Wright also
ordered defendant to relinquish the orange. Defendant refused.
Sergeant Wright then ordered defendant to put his hands behind his
back. When defendant refused and “jerked away,” Sergeant Wright
sprayed defendant with pepper spray. Defendant then struck
Sergeant Wright in the face, and Sergeant Wright fell to the
ground. Sergeant Wright subsequently tackled defendant, and as
they struggled, defendant scratched Sergeant Wright's face with his
fingernails.
At trial, defendant failed to present any evidence. The trial
court sentenced defendant to 45 days in the North Carolina
Department of Correction. However, the trial court suspended all
but ten days of the sentence and placed defendant on supervised
probation for twelve months. Defendant appeals.
Defendant first argues that the trial court erred by denying
his motion to dismiss because the evidence is insufficient to show
he acted intentionally in striking Sergeant Wright. In ruling on
a motion to dismiss, t
he trial court determines whether there is
substantial evidence to establish each element of the offense
charged and to identify the defendant as the perpetrator. State v.
Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982).
Inmaking this determination, the
trial court considers the evidence
in the light most favorable to the State, giving it the benefit of
every reasonable inference that may be drawn from the evidence.
State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).
Contradictions and discrepancies in the evidence are to be
disregarded and left for resolution by a jury. State v. Powell,
299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).
The criminal offense of assault is generally defined as “'an
overt act or an attempt, or the unequivocal appearance of an
attempt, with force and violence, to do some immediate physical
injury to the person of another . . . sufficient to put a person of
reasonable firmness in fear of immediate bodily harm.'” State v.
Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967) (citations
omitted). Intent is an essential element of the offense. State v.
Coffey, 43 N.C. App. 541, 543, 259 S.E.2d 356, 357 (1979).
Sergeant Wright testified that when he sprayed defendant with the
pepper spray, defendant hollered, “Wright, I'm going to get you
now.” Defendant then punched Sergeant Wright. Based upon this
testimony, a jury could reasonably find that defendant acted
intentionally in striking Wright and that defendant committed the
offense of assault. Accordingly, this assignment of error is
overruled.
Defendant next argues that there is a material variance
between the warrant and the trial court's instruction to the jury.
The warrant charged that defendant “did assault and strike Sergeant
Danny Wright by hitting him in the face with his fist.” The trialcourt instructed the jury that in order to find defendant guilty,
they had to find that “the defendant assaulted the victim by
striking and scratching him about the face and head.” Defendant
contends that the trial court's instruction allowed a conviction on
a theory not charged in the warrant.
Defendant failed to object to the trial court's jury
instruction. In order to obtain appellate review of the
instruction, he must allege and prove that the trial court
committed plain error. State v. Oliver, 309 N.C. 326, 335, 307
S.E.2d 304, 312 (1983). Defendant failed to allege plain error in
his assignment of error and, therefore, did not properly preserve
this argument. Moreover, we note that even if defendant had
properly assigned plain error, he would have to show that the
instruction amounted to fundamental error and that a jury probably
would have returned a different verdict if the erroneous
instruction had not been given. State v. Odom, 307 N.C. 655, 661,
300 S.E.2d 375, 379 (1983). The trial court's instruction required
the jury to find not only that defendant struck Sergeant Wright's
head but also that he scratched Sergeant Wright. This instruction
placed a higher burden of proof on the State such that, even if the
defendant had properly preserved this issue, the defendant would
not have been able to show that a different result would have
occurred had the instruction not been given. See State v. Tirado,
358 N.C. 551, 575-76, 599 S.E.2d 515, 532-33 (2004), cert. denied,
Queen v. North Carolina, U.S. __, 161 L. Ed. 2d 285 (2005)
(holding instruction on a theory not charged in the indictment wasnot plain error when the instruction placed a higher burden of
proof on the State).
For all the foregoing reasons, we hold defendant received a
fair trial, free of prejudicial error.
No error.
Judges WYNN and JACKSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***