An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-434


Filed: 17 January 2006


         v.                        Anson County
                                No. 03 CRS 52235

    Appeal by defendant from judgment entered 7 December 2004 by Judge F. Fetzer Mills in Anson County Superior Court. Heard in the Court of Appeals 9 January 2006.

    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).

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