An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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
NORTH CAROLINA COURT OF APPEALS
Filed: 18 April 2006
STATE OF NORTH CAROLINA
No. 03 CRS 6469
LARRY DEAN PRUETT
Appeal by defendant from judgment entered 3 December 2004 by
Judge Larry G. Ford in Cabarrus County Superior Court. Heard in
the Court of Appeals 15 March 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Mary Carla Hollis, for the State.
Daniel J. Clifton for defendant appellant.
Defendant appeals from judgment entered 3 December 2004 after
a jury verdict of guilty of assault on a child under the age of
twelve. We find no error.
On 29 November 2004 the State presented evidence at a trial
before a jury tending to show the following:
On 30 December 2002, the nine-year-old victim, S.L., and her
family visited a Chuck E. Cheese in Cabarrus County, North
Carolina. S.L. was playing games at Chuck E. Cheese when defendant
approached the machine beside her and began playing games. After
defendant won several tickets playing the game, he handed the
tickets to S.L., who then took them to her mother and pointed out
defendant. S.L. began playing a different game when defendantagain approached S.L. and began playing games near her. Defendant
subsequently invited S.L. to come look at his tickets, at which
time defendant walked over to S.L., knelt down and placed his hand
on S.L.'s shoulder. S.L. began to move away backing up until
defendant's fingertips were the only things remaining in contact
with her. Defendant then moved his entire hand back on her
shoulder and S.L. moved away once again. Defendant's hand remained
on S.L. for about 30 seconds before she left to tell her mother
what happened and pointed out defendant as the person who touched
her. S.L.'s mother testified that after the encounter with
defendant, S.L. appeared uncomfortable and nervous. When defendant
noticed S.L. pointing him out to her mother, he quickly left Chuck
E. Cheese and drove away. Defendant stipulated at trial that he
was the person who touched S.L. on the shoulder on the date in
After obtaining a description of defendant and his car,
officers set up a surveillance of the Chuck E. Cheese parking lot
where defendant and his car were seen and then later stopped by
police. At this time defendant indicated to the officer that this
was his first time visiting the Chuck E. Cheese. On 24 March 2003,
Officer Trafton called defendant and requested that defendant come
to the Concord Police Department for an interview. Prior to the
interview, the officers informed defendant that he was free to
leave at any time, that he did not have to talk to them, and
further informed him several times that he was not under arrest.
Defendant was placed in an interview room while at the policestation in which the door was open at certain times and closed at
others. Throughout the interview, defendant did not have an
attorney present and was not given any Miranda warnings. At the
conclusion of the interview, defendant was told that he was free to
leave and that subsequent charges would likely be filed against
him. Defendant made a motion to suppress statements made to police
officers during this interview which was denied by the trial court.
At the close of the State's evidence and again at the close of
the trial, defendant made a motion to dismiss the charges against
him which were both denied by the trial court. In instructing the
jury on the law at the close of the trial, the trial judge gave the
For you to find the defendant guilty of this
offense, the State must prove two things
beyond a reasonable doubt.
First, that the defendant intentionally,
and without justification or excuse, assaulted
the victim by placing his hand on her shoulder
in connection with giving her tickets at Chuck
And second, that the victim had not
reached her twelfth birthday at the time the
assault was committed.
Now, if you find from the evidence beyond
a reasonable doubt that on or about the
alleged date the defendant intentionally
placed his hand on [S.L.], or on her shoulder
in connection with giving her tickets at Chuck
E. Cheese, and that at that time the victim,
. . . had not yet reached her twelfth
birthday, it would be your duty to return a
verdict of guilty.
The jury returned a verdict of guilty on the charge of assault on
a child under the age of 12 years. Defendant now appeals.
Defendant contends on appeal that the trial court erred in
denying a motion to suppress defendant's statement. We disagree.
The standard of review in determining whether a trial court
properly denied a motion to suppress is whether the findings of
fact are supported by the evidence and whether conclusions of law
are in turn supported by those findings of fact. State v.
Cockerham, 155 N.C. App. 729, 736, 574 S.E.2d 694, 699, disc.
review denied, 357 N.C. 166, 580 S.E.2d 702 (2003). The trial
court's findings 'are conclusive on appeal if supported by
competent evidence, even if the evidence is conflicting.' State
v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001)
(citations omitted). The determination of whether a defendant was
in custody, based on those findings of fact, however, is a question
of law and is fully reviewable by this Court. State v. Briggs,
137 N.C. App. 125, 128, 526 S.E.2d 678, 680 (2000).
In determining whether a person is 'in custody' for the
purposes of Miranda the Court must inquire as to whether there was
a 'formal arrest or restraint on freedom of movement of the degree
associated with a formal arrest' based on the totality of the
circumstances. Buchanan, 353 N.C. at 339, 543 S.E.2d at 828. We
must look to the objective circumstances of the situation and not
the subjective views of those involved to evince restraint.
Stansbury v. California, 511 U.S. 318, 323, 128 L. Ed. 2d 293, 298,cert. denied, 516 U.S. 923, 133 L. Ed. 2d 222 (1995). Absent
objective indicia of such restraint, the fact that police have
identified the person interviewed as a suspect and that the
interview was designed to produce incriminating responses from the
person are not necessarily relevant to the determination of whether
the person was in custody for Miranda purposes. Cockerham, 155
N.C. App. at 736, 574 S.E.2d at 699.
In the instant case, defendant voluntarily came to the police
station for an interview pursuant to a request by Officer Trafton.
Defendant was informed that he was free to leave at any time, that
he did not have to talk to the police officers, and that he was not
under arrest. Defendant was interviewed by officers in an
interrogation room where the door was closed at times and open at
others. At the end of the interview, defendant was allowed to leave
but told that charges would likely be filed. It cannot be said
that, based on the totality of the circumstances, there was any
indicia of restraint on freedom of movement associated with a
formal arrest. Therefore, this assignment of error is overruled.
Next, we address defendant's contention that the trial court
erred in denying the motion to dismiss the charge of assault. We
When considering a motion to dismiss for insufficient
evidence, the trial court must determine whether there is
substantial evidence of each element of the offense and that the
defendant committed the offense. State v. Irwin, 304 N.C. 93, 97,282 S.E.2d 439, 443 (1981). Substantial evidence is 'such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.' State v. Smith, 150 N.C. App. 138, 140, 564 S.E.2d
237, 239 (citations omitted), cert. denied, 355 N.C. 756, 566
S.E.2d 87 (2002). All evidence is to be considered in the light
most favorable to the State and all reasonable inferences are to be
drawn therefrom. Irwin, 304 N.C. at 98, 282 S.E.2d at 443. Where
there is a reasonable inference of a defendant's guilt from the
evidence, it is then for the jury to determine whether that
evidence convinces them beyond a reasonable doubt of defendant's
Assault on a female may be proven by finding either an assault
or a battery of the victim. State v. West, 146 N.C. App. 741, 743,
554 S.E.2d 837, 839-40 (2001). Therefore, under the same line of
reasoning, assault on a child under the age of twelve may also be
proven by evidence of either an assault or a battery of the victim.
On one hand, assault is defined as 'an intentional attempt, by
violence, to do injury to the person of another.' State v. Britt,
270 N.C. 416, 419, 154 S.E.2d 519, 521 (1967) (citation omitted).
On the other hand battery is an assault whereby any force is
applied, directly or indirectly, to the person of another." Id. at
418, 154 S.E.2d at 521.
In the instant case, the evidence showed that defendant placed
his hand on S.L.'s shoulder and that when S.L. tried to back away
from him, he moved his entire hand back on her shoulder once again.
Moreover, defendant stipulated at trial that he was the person whotouched S.L. on the shoulder on the date in question. It was
further proven that S.L. was under the age of twelve at the time of
the incident. It is clear that there was substantial evidence of
each element of the crime charged where S.L. was under the age of
twelve and defendant committed an assault by battery when he
directly applied force to the person of S.L. Therefore, this
assignment of error is overruled.
Lastly, we address defendant's contention that the trial court
committed reversible error in its jury instructions regarding
assault on a child under the age of twelve. We hold that this
contention lacks merit.
that the question of whether the trial court
committed plain error in instructing the jury on the law is
properly before this Court, we address defendant's contention.
The plain error rule 'allows review of fundamental errors or
defects in jury instructions affecting substantial rights, which
were not brought to the attention of the trial court.' State v.
, 87 N.C. App. 626, 634, 362 S.E.2d 288, 293 (1987). In order
to obtain relief under this doctrine, defendant must establish that
the omission was error, and that, in light of the record as a
whole, the error had a probable impact on the verdict. Id.
362 S.E.2d at 293.
The gravamen of defendant's argument on appeal in regard to
the jury instruction is a mere extension of his contention that the
touching of S.L. did not amount to an assault under the law.However, this Court has noted, supra
, that an assault on a child
under the age of twelve may be proven by evidence of a battery.
The jury instructions on assault in this case are simply an
application of the evidence to the law and therefore they are not
in error. See State v. Robinson,
40 N.C. App. 514, 520, 253 S.E.2d
311, 315 (1979)
(A trial court does not err by tailoring its
instructions to the specific evidence adduced by the parties.).
Therefore, this assignment of error is overruled.
Accordingly, the trial court did not err in denying
defendant's motion to suppress, denying defendant's motion to
dismiss, or in its instructions to the jury on the crime of
assault. Therefore we find
Judges TYSON and LEVINSON concur.
Report per Rule 30(e).
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