STATE OF NORTH CAROLINA
v
.
Gaston County
No. 98 CRS 32925-27
99 CRS 7184, 15235
TROY DION REESE
Attorney General Roy Cooper, by Special Deputy Attorney
General John J. Aldridge, III, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Daniel K. Shatz, for defendant.
LEVINSON, Judge.
Defendant (Troy Dion Reese) was convicted of assault with a
deadly weapon on a government official, possession of stolen goods,
driving without an operator's license, and resisting, delaying, and
obstructing a public officer in the performance of her duties. In
addition, defendant was convicted of having attained the status of
habitual felon. We reverse on the offense of resisting, delaying,
or obstructing a public officer, but find no error as to the
remaining charges.
The evidence presented at trial may be summarized as follows:
Richard Foster testified that his car, a 1993 Mercury Sable,
was stolen in Monroe, North Carolina. On the morning of 26 October1998, between 5:30 a.m. and 6:00 a.m., Foster stopped at a gas
station to purchase gas. As he walked out of the store, he
observed his car being driven away by a person with “a black head.”
Foster called the police on his cell phone and reported that his
car had been stolen.
Trooper Beth Patterson of the North Carolina Highway Patrol
testified. At approximately 1:00 p.m. on 26 October 1998, she
observed Highway Patrolman Tommy Dellinger stopped by the right-
hand side of southbound I-85 investigating a motor vehicle
collision. Patterson observed another vehicle, the 1993 Mercury
Sable, stopped near the median partially blocking the left-hand
lane of traffic. Patterson pulled behind the Mercury. She
observed defendant changing a flat tire on the vehicle. Patterson
directed defendant to finish changing the tire, and to pull his car
entirely over against the median. Instead of pulling directly over
to the median, defendant first pulled into the left-hand travel
lane, and then to the width of the shoulder adjacent to the median.
Patterson observed that the spare tire was flat, too. Patterson
keyed the license number of the vehicle into her patrol vehicle
computer and received information from the Department of Motor
Vehicles (DMV) pertaining to the license tag number. She learned
that the tag number did not match the vehicle. Patterson asked
defendant for his driver's license or some other identification.
Defendant told her he did not have a license or any identification
with him. Defendant told Patterson the vehicle belonged to his
friend “Brownie.” Patterson then “told the [d]efendant he wasunder arrest for driving with no operator's license[.]” She
reached for her handcuffs and, as she was securing them to
defendant's right wrist, he pulled away, striking her in the
forehead with his hand and the handcuffs. Patterson was knocked to
her knees. Defendant jumped over the barrier into the oncoming
northbound traffic and was struck by a vehicle. Patterson was
taken to the hospital, where she received stitches for a laceration
on her forehead and was released later that same day.
Tanya Pack, a paramedic, testified she helped stabilize
defendant and rode with him in an ambulance to the hospital.
Defendant had suffered a broken leg and two broken arms. According
to Pack, defendant was “alert and oriented”, but “wasn't really
cooperative” with treatment. Defendant stated that “the b----
wasn't going to take him back to prison or back to jail and that he
was a bad mother f-----[.]”
Defendant testified that, on 26 October 1998, “Brownie” rented
the use of the 1993 Mercury for a twenty dollar rock of cocaine,
and offered to take defendant to Gastonia. As defendant and
Brownie were driving on southbound I-85, they experienced a flat
tire. Defendant told Brownie that he would change the flat tire
and that Brownie should dispose of beer cans and marijuana. While
Brownie was disposing of these items, Patterson pulled her vehicle
behind defendant. Defendant told Patterson that his friend was
driving the car but had gone to get help. He told Patterson he did
not have a license. Patterson asked him to move the car. As he
was moving the car, Patterson put on her lights and siren anddirected him to pull over. Defendant got out of the car and
Patterson asked to see his license. He told her he did not have a
license but gave her his name and address. Patterson then told
defendant, “look, you are going to jail for driving with no
license.” He turned around to ask her why she had to arrest him
and she “lunged at [him] like this like she was going to reach for
a weapon.” Defendant testified, “I panicked. . . . I thought she
was going to shoot me.” Defendant hit Patterson, trying to “knock
her out.” He punched her in the eye and cut her with his
thumbnail. He did not hit her with the handcuffs. Thinking the
police would kill him, defendant jumped onto the concrete barrier,
and ran into the northbound lanes of traffic. He was hit by a
pick-up truck.
On cross-examination, defendant testified about his prior
convictions; stated he knew he could go to prison for being
convicted of driving a stolen car; and denied telling the paramedic
that the “b---- wasn't taking [him] back to prison.”
The jury convicted defendant on all charges. The trial court
consolidated the offenses, and sentenced defendant as an habitual
felon to a term of 152-192 months imprisonment. Defendant appeals.
_________________________________________
We first address defendant's contention that the trial court
committed plain error in its jury instructions on the resist, delay
and obstruct charge by instructing the jury on the officer's
performance of a duty not alleged in the indictment.
A warrant charging a violation of G.S. 14-223
must, . . . (a) identify by name the personalleged to have been resisted, delayed or
obstructed, and describe his official
character with sufficient certainty to show
that he was a public officer within the
purview of the statute, (b) indicate the
official duty he was discharging or attempting
to discharge, and (c) state in a general way
the manner in which accused resisted or
delayed or obstructed such officer.
State v. Wiggs, 269 N.C. 507, 512, 153 S.E.2d 84, 88 (1967)
(internal quotation marks and citations omitted). “'In the offense
of resisting an officer, the resisting of the public officer in the
performance of some duty is the primary conduct proscribed by that
statute and the particular duty that the officer is performing
while being resisted is of paramount importance and is very
material to the preparation of the defendant's defense[.]'” State
v. Waller, 37 N.C. App. 133, 135, 245 S.E.2d 808, 810 (1978)
(quoting State v. Kirby, 15 N.C. App. 480, 488, 190 S.E.2d 320, 325
(1972)). “'It is a well-established rule in this jurisdiction that
it is error, generally prejudicial, for the trial judge to permit
a jury to convict upon some abstract theory not supported by the
bill of indictment.'” State v. Tucker, 317 N.C. 532, 537-38, 346
S.E.2d 417, 420 (1986) (quoting State v. Taylor, 301 N.C. 164, 170,
270 S.E.2d 409, 413 (1980)).
Defendant in the instant case made no objection to the trial
court's jury instructions. We therefore review for plain error.
Plain error is “a fundamental error, something so basic, so
prejudicial, so lacking in its elements that justice cannot have
been done[.]” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378
(1983) (internal quotation marks and citation omitted). “Indeciding whether a defect in the jury instruction constitutes
'plain error,' the appellate court must examine the entire record
and determine if the instructional error had a probable impact on
the jury's finding of guilt.” Id. at 661, 300 S.E.2d at 378-79
(citation omitted).
In the instant case, the indictment charging defendant with
resisting, delaying, or obstructing a public officer in the
exercise of her duties, under N.C. Gen. Stat. § 14-223 (2005),
stated that at the time defendant resisted, delayed and obstructed
Patterson, she was engaged in “a duty of her office, assisting
Trooper T. Dellinger with a wreck investigation.” The trial court
instructed the jury on the charge of resist, delay and obstruct as
follows:
Now I charge that for you to find the
Defendant guilty of this offense, the State
must prove five things beyond a reasonable
doubt. First, that the victim was a public
officer. . . . Second, that the Defendant
knew or had reasonable grounds to believe that
the victim was a public officer. Third, that
the victim was attempting to make a lawful
arrest. An arrest for no operator's license
is a lawful arrest. Fourth, that the
defendant resisted the victim in attempting to
make a lawful arrest; and, fifth, that the
Defendant acted willfully and unlawfully[.]
As the trial court instructed the jury on the duty of
attempting to make an arrest, which doesn't comport with the duty
set forth in the indictment of assisting with a wreck
investigation, we conclude the trial court committed plain error.
In reaching this conclusion, we necessarily reject the State's
contention that, on these facts, the attempted arrest wassufficiently connected to Patterson's initial assistance in a wreck
investigation. We therefore reverse the conviction for resist,
delay and obstruct a public officer.
Defendant next argues the trial court erred by failing to
dismiss the charge of possession of stolen goods because the
evidence was insufficient to establish defendant knew, or had
reasonable grounds to believe, he was in possession of a stolen
vehicle. We disagree.
The essential elements of possession of stolen property are:
(1) possession of personal property;
(2) which has been stolen;
(3) the possessor knowing or having
reasonable grounds to believe the
property to have been stolen; and
(4) the possessor acting with a
dishonest purpose.
See State v. Perry, 305 N.C. 225, 233, 287 S.E.2d 810, 815 (1982)
(citations omitted); see also N.C. Gen. Stat. § 14-71.1 (2005).
“'A defendant charged with possession of stolen property . .
. may be convicted if the State produces sufficient evidence that
defendant possessed stolen property (i.e. a vehicle), which he knew
or had reason to believe had been stolen or taken.'” State v.
Bailey, 157 N.C. App. 80, 83-84, 577 S.E.2d 683, 686 (2003)
(quoting State v. Lofton, 66 N.C. App. 79, 83, 310 S.E.2d 633, 635-
36 (1984)). “[G]uilty knowledge need not be shown by direct proof
of actual knowledge, . . . rather, such knowledge may be implied by
evidence of circumstances surrounding the receipt of the goods.”
State v. Scott, 11 N.C. App. 642, 645, 182 S.E.2d 256, 258 (1971)(citation omitted). Circumstantial evidence in the form of
evidence that a defendant fled from police officers can be evidence
of a defendant's consciousness of guilt as well. See State v.
Parker, 316 N.C. 295, 304, 341 S.E.2d 555, 560 (1986) (evidence
that defendant fled from police officers at a high speed, wrecking
the car and attempting escape on foot, was evidence defendant knew
or had reason to believe the car was stolen).
The standard of review for a motion to dismiss in a criminal
trial is well established:
“Upon defendant's motion for dismissal, the
question for the 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.
If the evidence is sufficient only to raise a
suspicion or conjecture as to either the
commission of the offense or the identity of
the defendant as the perpetrator of it, the
motion should be allowed.”
State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002)
(quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117
(1980)). “[T]he trial court is to consider the evidence in the
light most favorable to the State, which entitles the State 'to
every reasonable intendment and every reasonable inference to be
drawn from the evidence[.]'” Bailey, 157 N.C. App. at 83, 557
S.E.2d at 686 (quoting State v. Earnhardt, 307 N.C. 62, 67, 296
S.E.2d 649, 653 (1982)).
In the instant case, defendant was in possession of the stolen
vehicle within seven and one half hours of its having been stolen;there was no evidence that his friend “Brownie”, who he claimed
“rented” the vehicle for cocaine, existed; defendant was unable to
provide “Brownie's” full name; and defendant fled as Patterson
attempted to arrest him. These facts, considered with the balance
of the evidence in the record in the light most favorable to the
State, support a reasonable inference that defendant had reasonable
grounds to believe that the vehicle was stolen. See id.
(sufficient evidence presented that defendant knew or had reason to
believe the vehicle was stolen where defendant drove vehicle
several hours after it was stolen, the rightful owner had not given
anyone permission to drive the vehicle that day, defendant would
not give the name of his “friend” who he said owned the vehicle,
and defendant had the rightful owner's keys in his possession).
This assignment of error is overruled.
Defendant also contends the trial court erred by failing to
dismiss the charge of assault on a government official with a
deadly weapon. Defendant asserts there was insufficient evidence
that he struck Patterson with handcuffs and, further, that there
was a fatal variance between the indictment for this offense and
the evidence presented at trial. We disagree.
Under N.C. Gen. Stat. § 14-34.2 (2005), “any person who
commits an assault with a firearm or any other deadly weapon upon
an officer . . . of the State . . . in the performance of his
duties shall be guilty of a Class F felony.”
A deadly weapon is “any instrument which is
likely to produce death or great bodily harm,
under the circumstances of its use . . . .
The deadly character of the weapon dependssometimes more upon the manner of its use, and
the condition of the person assaulted, than
upon the intrinsic character of the weapon
itself.”
State v. Palmer, 293 N.C. 633, 642-43, 239 S.E.2d 406, 412-13
(1977) (quoting State v. Smith, 187 N.C. 469, 470, 121 S.E. 737,
737 (1924)).
Where the alleged deadly weapon and the manner
of its use are of such character as to admit
of but one conclusion, the question as to
whether or not it is deadly within the
foregoing definition is one of law, and the
Court must take the responsibility of so
declaring. But where it may or may not be
likely to produce fatal results, according to
the manner of its use, or the part of the body
at which the blow is aimed, its alleged deadly
character is one of fact to be determined by
the jury.
Smith, 187 N.C. at 470, 121 S.E. at 737 (citations omitted).
Considering the evidence in the light most favorable to the
State, which we must, Patterson was in the process of securing
handcuffs to defendant's wrists when he twisted away from her,
striking her in the forehead with the handcuffs. Patterson
testified that defendant “pulled away and struck me upside the
right forehead area and eye area with his hand and my handcuffs. .
. . He hit me so hard he knocked me to both knees.” Patterson was
covered in blood from a cut in her forehead. Patterson testified
she sustained the following injuries: a laceration in her forehead
requiring three stitches; a black eye; lacerations around her eye
and eyebrow; a large raised swelling “like a softball . . . cut .
. . in half” on her forehead; a sore ear, jaw, and nose; and a
bruised cornea. The handcuffs were made of stainless steel. Defendant testified he punched Officer Patterson with his fist in
an attempt to “knock her out”.
We conclude there was substantial evidence of each element of
assault on a government officer with a deadly weapon to survive
defendant's motion to dismiss. This assignment of error is
overruled.
We next address defendant's argument that there was a fatal
variance between the indictment for the offense of assault with a
deadly weapon upon a governmental officer, under G.S. § 14-34.2,
regarding the duty Trooper Patterson was performing at the time of
the assault, and the evidence presented at trial. The indictment
for the charge of assault with a deadly weapon on a governmental
officer read in pertinent part: “At the time of the assault, the
officer was performing the following duty of that office, assisting
Trooper T. Dellinger with a wreck investigation.” Defendant
contends the evidence established that the duty Patterson was
performing at the time of the assault was attempting to arrest
defendant for driving without an operator's license. Even assuming
arguendo the evidence established that Patterson was attempting to
make an arrest at the time of the assault rather than investigating
a vehicular wreck, we must reject defendant's argument.
In Waller, this Court interpreted the requirements of an
indictment charging the offense of assault on an officer under G.S.
§ 14-33(b)(4) (repealed 1991):
The particular duty the officer was performing
when assaulted is not of primary importance,
it only being essential that the officer wasperforming or attempting to perform any duty
of his office. . . .
Although we hold that a warrant charging a
violation of G.S. 14-33(b)(4) is sufficient if
it alleges only in general terms that the
officer was discharging or attempting to
discharge a duty of his office at the time the
assault occurred, without alleging
specifically exactly what that duty was, we
caution that to sustain a conviction of
violating that statute it is still necessary,
of course, that the State present evidence and
that the jury find under appropriate
instructions from the court that the officer
was discharging or attempting to discharge
some duty of his office when the defendant
assaulted him.
Waller, 37 N.C. App. at 136, 245 S.E.2d at 810-11 (internal
quotation marks and citations omitted).
Here, the evidence established Patterson was assaulted while
carrying out an official duty, attempting to make an arrest. This
assignment of error is overruled.
Defendant next argues the trial court erred by denying his
motion for a continuance to subpoena expert witnesses. When the
case was called for trial, defendant stated he had not been able to
procure the attendance of unnamed witnesses due to his
incarceration and his having received discovery from the State only
two weeks before trial. On appeal, defendant contends he was
prejudiced by the denial of his motion because he was forced to
proceed to trial without expert witnesses who could have provided
evidence regarding the genesis, nature, and extent of Patterson's
injuries. We disagree.
“A trial court's ruling on a motion to continue ordinarily
will not be disturbed absent a showing that the trial court abusedits discretion, but . . . prejudice is presumed in cases where the
trial court fails to grant a continuance which is essential to
allowing adequate time for trial preparation.” In re Bishop, 92
N.C. App. 662, 666, 375 S.E.2d 676, 679 (1989) (internal quotation
marks and citations omitted).
To establish that the trial court's failure to
give additional time to prepare constituted a
constitutional violation, defendant must show
how his case would have been better prepared
had the continuance been granted or that he
was materially prejudiced by the denial of his
motion. [A] motion for a continuance should be
supported by an affidavit showing sufficient
grounds for the continuance. [A] postponement
is proper if there is a belief that material
evidence will come to light and such belief is
reasonably grounded on known facts.
. . . .
[C]ontinuances should not be granted unless
the reasons therefor are fully established.
Hence, a motion for a continuance should be
supported by an affidavit showing sufficient
grounds.
State v. Jones, 342 N.C. 523, 531, 467 S.E.2d 12, 17 (1996)
(internal quotation marks and citations omitted). Our Supreme
Court has held that “[t]he denial of a motion to continue, even
when the motion raises a constitutional issue, is grounds for a new
trial only upon a showing by the defendant that the denial was
erroneous and also that his case was prejudiced as a result of the
error.” State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656
(1982) (citation omitted). “[A] mere intangible hope that
something helpful to a litigant may possibly turn up affords no
sufficient basis for delaying a trial to a later term.” State v.Tolley, 290 N.C. 349, 357, 226 S.E.2d 353, 362 (1976) (internal
quotation marks and citation omitted). In Branch, our Supreme
Court held that a defendant failed to demonstrate prejudice from a
denial of his motion for a continuance where “[t]he record on
appeal . . . fail[ed] to reveal that the defendant informed the
trial court of the name of a single witness the defendant allegedly
sought to bring before the court . . . [or] what the defendant
expected to attempt to prove through these witnesses[.]” Branch,
306 N.C. at 105, 291 S.E.2d at 657. Furthermore, the defendant in
Branch failed to show “why the period between formal charges and
his trial date was not sufficient to locate necessary witnesses and
have them present for trial.” Id.
Here, defendant made an oral motion for a continuance on the
day of trial. With the assistance of his standby counsel,
defendant requested a continuance “in order for him to subpoena the
expert witnesses that he is going to need on his behalf.” No
evidence or affidavits were presented in support of this motion.
There was no further explanation identifying who the witnesses were
or why their testimony would be necessary. Defendant had been
indicted on the instant charges 1 March and 3 May 1999; defendant's
trial began 19 January 2000. Although, at the time of trial,
defendant had released his court appointed counsel and was
proceeding pro se, there is nothing in the record demonstrating why
defendant had been unable to procure the witnesses he sought
between the time he was formally charged and the trial date. Under
these circumstances, we cannot hold either that the trial courterred by denying defendant's motion for a continuance, or that
defendant suffered any prejudice thereby. This assignment of error
is overruled.
Defendant's remaining arguments are either rendered moot as a
result of this opinion or are without merit.
Because the conviction for resist delay and obstruct a public
officer was consolidated with the other offenses, we must remand
for entry of a new judgment.
No error in part, reversed and remanded in part.
Judges McCULLOUGH and ELMORE concur.
Report per Rule 30(e).
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