An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-747


Filed: 7 March 2006


         v.                        McDowell County
                                No. 04 CRS 50534

    Appeal by defendant from judgment entered 3 February 2005 by Judge Laura J. Bridges in McDowell County Superior Court. Heard in the Court of Appeals 16 January 2006.

    Attorney General Roy Cooper, by Assistant Attorney General Lisa H. Graham, for the State.

    William D. Auman, for defendant-appellant.

    ELMORE, Judge.

     Defendant was convicted of malicious conduct by a prisoner. He was sentenced to an active term of 17 to 21 months to run at the expiration of a sentence he was serving.
    The indictment charged that on 14 February 2004 defendant “willfully and feloniously did knowingly cause to be used as a projectile, bodily fluid, at Shawn Presnell, who was performing his duties of cell search, as an employee of the North Carolina Department of Correction.”
    The State's evidence tended to show on 14 February 2004 defendant was housed in the segregation unit of Marion Correctional Institution. Sergeant Charles E. Hoerig (Sgt. Hoerig), the correctional sergeant in charge of the segregation unit, went todefendant's cell to investigate why defendant was causing a disturbance. After defendant cursed and threatened Sgt. Hoerig with bodily harm, Sgt. Hoerig directed Correctional Officer Shawn Presnell (Officer Presnell) to place defendant in restraints and move him to a holding cell so defendant's cell could be searched for any possible weapons defendant could use to carry out his threats.
    In searching defendant's vacated cell for weapons, Officer Presnell found a drawing of a suspected gang symbol. Because gang members often have tattoos, Officer Presnell asked defendant whether he had any. Defendant refused to show the officer any tattoos. As Officer Presnell turned to walk away, defendant called Officer Presnell back to the holding cell. Defendant directed the officer's attention to his left arm as if he had a tattoo there. As Officer Presnell came within three feet of the holding cell, defendant lunged forward and spit on Officer Presnell. Officer Presnell immediately reported the incident to Sgt. Hoerig.
    Sgt. Hoerig observed spittle on Officer Presnell's head, neck, and shoulder. Sgt. Hoerig then notified Lieutenant Michael Arrowood (Lt. Arrowood), the officer in charge of the facility that day, about the incident. Lt. Arrowood, Sgt. Hoering and a third officer went to the holding cell to question defendant about the matter. Defendant denied spitting on Officer Presnell. As defendant was being returned to his cell, defendant lunged at Sgt. Hoerig and struck the him on the side of his face. Lt. Arrowood grabbed defendant and forced him to the floor. Defendant threw hishead back and struck Lt. Arrowood's right cheekbone. Two other officers ultimately subdued defendant by spraying him with pepper spray. At trial, defendant and another inmate testified that defendant did not spit on Officer Presnell.
    Defendant first contends the court erred by denying his motion in limine to exclude evidence of the assaults on Sgt. Hoerig and Lt. Arrowood. He contends the evidence should have been excluded pursuant to Rule 403 of the Rules of Evidence because the probative value, if any, of the evidence was outweighed by the danger of unfair prejudice.
    Defendant did not object to admission of the evidence when it was received at trial. Consequently, he waived his right to challenge the admissibility of the evidence on appeal. See State v. Tutt, N.C. App. ___, ___, 615 S.E.2d 688, 692-93 (2005). Nonetheless, because defendant's failure to object may have been in reliance upon the amendment to Rule 103 ruled unconstitutional by this Court in Tutt, we apply Appellate Rule 2 and consider whether the evidence was properly admitted. Id.
    Evidence is relevant and admissible if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule 401 (2005). “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needlesspresentation of cumulative evidence.” N.C. Gen. Stat. § 8C-1, Rule 403. The decision whether to exclude evidence on the ground the probative value of the evidence is outweighed by unfair prejudice or confusion of the issues is addressed to the sound discretion of the trial judge. State v. Mason, 315 N.C. 724, 731, 340 S.E.2d 430, 435 (1986). A discretionary decision will not be disturbed by an appellate court unless it is shown that the decision is manifestly unsupported by reason. State v. Parker, 315 N.C. 249, 258-59, 337 S.E.2d 497, 502-03 (1985).
    To convict a defendant of malicious conduct by a prisoner, the State must prove that the defendant acted knowingly and willfully. State v. Robertson, 161 N.C. App. 288, 293, 587 S.E.2d 902, 905 (2003). The court's charge to the jury made it clear that in order to find defendant guilty, the jury had to find defendant knowingly and willfully projected a bodily fluid on Officer Presnell. Evidence that the defendant assaulted two officers in the same facility within minutes after defendant committed the charged offense against Officer Presnell made it more probable that defendant acted knowingly and willfully in spitting on Officer Presnell. We find no abuse of discretion.
    Defendant next contends the court erred by denying his motion to dismiss for insufficient evidence. In deciding a motion to dismiss, the 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). The trial court mustconsider 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).
    To withstand a motion to dismiss a charge of malicious conduct by a prisoner, the State must show: (1) the defendant threw, emitted, or caused to be used as a projectile a bodily fluid or excrement at the victim; (2) the victim was a State or local government employee; (3) the victim was performing his or her duties at the time the fluid or excrement was released; (4) the defendant acted knowingly and willfully; and (5) the defendant was in the custody of the Department of Correction, the Department of Juvenile Justice and Delinquency Prevention, any law enforcement officer, or any local confinement facility. Robertson, 161 N.C. App. 288, 293, 587 S.E.2d 902, 905 (2003). We hold the State presented sufficient evidence to establish each of these elements, and therefore overrule this assignment of error.
     Defendant last contends that the running of the sentence consecutive to the sentence he was already serving constituted an invalid enhancement of sentence not based upon a jury finding. Defendant's contention is not supported by the facts or law. Improper enhancement of a sentence occurs when a court increases the term for the offense being sentenced based upon a judicial finding of a factor in aggravation. See State v. Allen, 359 N.C. 425, 438-39, 615 S.E.2d 256, 265-66 (2005). The court did not enhance defendant's sentence for the instant conviction based uponany judicial finding of aggravating factors. The court imposed a sentence within the presumptive range.
    We hold defendant's trial and sentence are free of prejudicial error.
    No error.
    Judges McCULLOUGH and TYSON concur.
    Report per Rule 30(e).

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