STATE OF NORTH CAROLINA
v. Durham County
No. 96 CRS 30678
CHRIS VAREEN
Attorney General Roy Cooper, by Assistant Attorney General
Jeffrey R. Edwards, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Kelly D. Miller, for defendant-appellant.
MARTIN, Chief Judge.
A jury found defendant guilty of assault upon a law
enforcement officer while the officer was discharging or attempting
to discharge a duty of his office in violation of N.C. Gen. Stat.
§ 14-33(c)(4). Judgment was entered on the verdict sentencing
defendant to 75 days imprisonment. Defendant appeals.
The evidence at trial tended to show the following: On 26
October 1996, Officer L.W. Cox of the Durham Police Department
responded to an assault on a female call at the Shannon Manor
Apartments in Durham. Officer R.D. Miller, Officer Cox's assist
unit, and Officer Gooch also responded to the call. When Officer
Cox arrived at the apartment in his marked patrol car, a femaleapproached and began speaking to him. He noticed she was visibly
shaken, was crying, and had a swollen, cut lip that was bleeding.
A small child, who the female identified as her son, was also with
her. The small child was crying and visibly upset. The female
told Officer Cox that defendant, her boyfriend, had assaulted her
and was still inside the apartment. She also informed Officer Cox
that when her young son ran to her defense after defendant hit her,
defendant pushed the child to the floor.
Based on the information given to Officer Cox by the female
and his observation of her physical condition when he arrived at
the scene, Officer Cox determined he had enough information to
arrest defendant for the offense of assault on a female. Thus,
Officers Cox and Miller entered the apartment where defendant was
and announced they were with the Durham Police Department. When
they eventually found defendant in an upstairs bedroom, Officer Cox
advised defendant he was under arrest for assault on a female and
instructed him to place his hands behind his back. Defendant swung
at Officer Cox with a closed fist striking Officer Cox in the upper
jaw so hard that he saw stars. In response, Officer Cox sprayed
defendant with pepper spray. Defendant then began punching holes
in the bedroom wall and punched the screen out of a small
television in the bedroom. Thereafter, defendant jumped on the
bed, attempted to dive head first out of the second story window,
and crashed into the window. When Officer Cox pulled defendant
away from the window, defendant continued to swing at and fight the
officers. Once the officers were finally able to handcuffdefendant, EMS was called. Thereafter, defendant was transported
by ambulance to a hospital for treatment and subsequently released
to the Durham County Jail.
Defendant argues the trial court erred by permitting Officer
Cox to testify about the female's statements to him when he arrived
at the apartment. Defendant contends the testimony was
inadmissible hearsay because it was admitted to prove the truth of
the matter asserted and its admission violated his rights under the
Confrontation Clause as dictated by Crawford v. Washington, 541
U.S. 36, 158 L. Ed. 2d 177 (2004). We find no error.
The statutory offense of misdemeanor assault on a government
officer or employee is codified as follows:
[A]ny person who commits any assault, assault
and battery, or affray is guilty of a Class A1
misdemeanor if, in the course of the assault,
assault and battery, or affray, he or she . .
. [a]ssaults an officer or employee of the
State or any political subdivision of the
State, when the officer or employee is
discharging or attempting to discharge his
official duties[.]
N.C. Gen. Stat. § 14-33(c)(4)(1996). Accordingly, to convict a
defendant of this offense, the State must allege and prove the
following: (1) an assault (2) on a government official (3) in the
actual or attempted discharge of his duties. See id.; State v.
Crouse, 169 N.C. App. 382, 387, 610 S.E.2d 454, 458, disc. review
denied, 359 N.C. 637, 616 S.E.2d 923 (2005). The offense of
assault on a law enforcement officer presupposes lawful conduct on
the part of the officer in discharging his duties. State v.
Burton, 108 N.C. App. 219, 225, 423 S.E.2d 484, 487 (1992), appealdismissed and disc. review denied, 333 N.C. 576, 429 S.E.2d 574
(1993).
For defendant to be convicted of assault on a law enforcement
officer in violation of N.C. Gen. Stat. § 14-33(c)(4), the jury
must determine, inter alia, whether Officer Cox was attempting to
lawfully arrest defendant at the time defendant assaulted him. See
Burton, 108 N.C. App. at 225, 423 S.E.2d at 488. Because a
warrantless arrest is lawful if based upon probable cause, State v.
Phillips, 300 N.C. 678, 683, 268 S.E.2d 452, 456 (1980), it was
necessary to determine whether Officer Cox had probable cause to
arrest defendant for the offense of assault on a female. The North
Carolina Supreme Court has defined probable cause as:
a reasonable ground of suspicion supported by
circumstances sufficiently strong in
themselves to warrant a cautious man in
believing the accused to be guilty. . . . . To
establish probable cause the evidence need not
amount to proof of guilt, or even to prima
facie evidence of guilt, but it must be such
as would actuate a reasonable man acting in
good faith.
State v. Zuniga, 312 N.C. 251, 259, 322 S.E.2d 140, 145 (1984)
(internal quotations and citations omitted).
Here, Officer Cox responded to a call regarding an assault on
a female at an address in the Shannon Manor Apartments. When he
arrived at the apartment in his marked patrol car, a visibly shaken
female told him that defendant had assaulted her and pushed her
young son to the floor. Defendant argues the trial court erred in
allowing Officer Cox to testify about these statements because they
are inadmissible hearsay. Hearsay is “a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted” and is not admissible.
N.C. Gen. Stat. § 8C-1, Rules 801(c) and 802 (2005). Out-of-court
statements offered for purposes other than to prove the truth of
the matter asserted, however, are not considered hearsay. State v.
Carroll, 356 N.C. 526, 542, 573 S.E.2d 899, 910 (2002), cert.
denied, 539 U.S. 949, 156 L. Ed. 2d 640 (2003). Our appellate
courts have held that statements made by one person to another are
admissible to explain the subsequent conduct of the person to whom
the statement was made. See e.g., State v. Moore, 162 N.C. App.
268, 271, 592 S.E.2d 562, 564 (2004) (holding the trial court did
not err in allowing two police officers to testify about statements
made by a female after visiting the defendant on the grounds the
statements were not offered to prove the female had been visiting
the defendant, but instead were offered to explain the actions of
the two police officers in talking to the defendant at the
residence resulting in the defendant's arrest); Melton v. Hodges,
114 N.C. App. 795, 798, 443 S.E.2d 83, 85 (1994) (holding officer's
testimony about statements made to officer by witnesses at the
scene were not hearsay because they were admitted to show
reasonable grounds to arrest petitioner and not used to show
petitioner committed the offense for which he was arrested).
Here, Officer Cox's testimony regarding the statements made to
him by the female were not introduced to prove the truth of the
matter asserted, that is, to prove defendant committed the offenseof assault on a female. Rather, the testimony was introduced to
show Officer Cox had probable cause to lawfully arrest defendant
for the offense of assault on a female. Accordingly, we conclude
the trial court did not err in allowing Officer Cox's testimony.
Defendant further contends the admission of Officer Cox's
testimony about the female's statements violated his rights under
the Confrontation Clause as dictated by Crawford v. Washington, 541
U.S. 36, 158 L. Ed. 2d 177 (2004). As noted by the Supreme Court
in Crawford and recognized by this State's appellate courts,
however, the Confrontation Clause does not bar the use of
statements made by others outside the courtroom if offered for a
purpose other than proving the truth of their content. Id. at 59,
n.9, 158 L. Ed. 2d at 197; State v. Lewis, 360 N.C. 1, ___, 619
S.E.2d 830, ___ (2005); State v. Bethea, ___ N.C. App. ___, ___,
617 S.E.2d 687, 695 (2005) (holding “the Confrontation Clause does
not act as a bar to testimonial statements admitted for purposes
other than the truth of the matter asserted”). Because Officer
Cox's testimony was offered to show he had probable cause to
lawfully arrest defendant and not to prove the truth of its
content, Crawford does not apply here and defendant's rights under
the Confrontation Clause were not violated. Accordingly, we
conclude this assignment of error is without merit.
Defendant's remaining assignments of error are not addressed
in his brief to this Court and, thus, are deemed abandoned. See
N.C.R. App. P. 28(b)(6).
No error. Judges BRYANT and GEER concur.
Report per Rule 30(e).
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