Converted WP file 051093-1

Appeal by Defendant from judgment entered 11 May 2005 by Judge Ronald K. Payne in Superior Court, Haywood County. Heard in the Court of Appeals 6 March 2006.

Attorney General Roy Cooper, by Assistant Attorney General Donald W. Laton, for the State.

Melrose, Seago & Lay, P.A., by James S. Whitlock, for defendant-appellant.

WYNN, Judge.

    To prove the offense of felonious assault on a law enforcement officer with a firearm, the State must establish: “(1) an assault; (2) with a firearm; (3) on a law enforcement officer; (4) while the officer is engaged in the performance of his or her duties.” State v. Childers, 154 N.C. App. 375, 382, 572 S.E.2d 207, 212 (2002), cert. denied, 356 N.C. 682, 577 S.E.2d 899 (2003). In this case, Defendant Derek Alan Scott argues that this charge against him should have been dismissed because there was insufficient evidence of an assault. As the evidence shows that Defendant waived a firearm at a law enforcement officer, and the officer was in fearfor his life, we uphold the trial court's denial of Defendant's motion to dismiss.
     The State's evidence at trial tended to show the following: on 17 September 2004, Haywood County Deputy Sheriff James McEntire responded to a dispatch at an address on Nix Creek Road. When Deputy McEntire arrived at the address, he observed Haywood County Deputy Sheriff Tony Cope speaking to Daniel Jonathan Klunk regarding an argument with Defendant over storm debris in the road. Thereafter, Deputy McIntire, accompanied by Deputy Henderson, walked up the road to speak to Defendant to obtain his account of the incident.
    As the two deputies approached Defendant, he used both hands to pull his jacket apart revealing a pistol in his waist band. Deputy McEntire advised Defendant against making any threatening moves or reaching for the weapon. Defendant replied that he would not reach for his weapon if Deputy McEntire did not reach for his weapon. Defendant then responded to Deputy McEntire's questions about the incident with Klunk. While speaking with Defendant, Deputy McEntire observed that Defendant was slurring his speech and believed he was intoxicated. Thereafter, Deputies McEntire and Henderson walked down the road in the direction of a small bridge over Nix Creek to advise Deputy Cope about what they had learned.
    Defendant later walked down the road and approached the deputies. Deputy McEntire testified that Defendant appeared to be angry and “in a rage” as he walked toward the deputies. When Defendant was within approximately four feet of Deputy McEntire,Defendant pulled a 22-caliber pistol from his waist band, pointed it at Deputy McEntire, and waved it around. Deputy McEntire testified that he feared for his life and, in response, pulled his service weapon. Deputy McEntire ordered Defendant to place his weapon on the ground and advised him he would fire if Defendant did not drop his weapon. Defendant complied with the order and placed his weapon on a vehicle. Defendant then shouted at and walked toward the deputies. Thereafter, Defendant was arrested.
    Deputy Cope testified that when Defendant approached the deputies, Defendant pulled a 22-caliber pistol out of his waist band, held it up, waved it around, and pointed it in the general direction of the deputies. After placing his weapon on a vehicle, Defendant walked toward the officers. Deputy Cope testified that Defendant was screaming and hollering at that time and was “kind of in a rage[.]” Deputy Cope further testified that he noticed the odor of alcohol about Defendant.
    On 11 May 2005, a Haywood County jury found Defendant guilty of assault on a law enforcement officer with a firearm. Following the jury verdict, the trial court sentenced Defendant to thirty months supervised probation. Defendant appeals.
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    On appeal, Defendant argues that the trial court erred in denying his motion to dismiss the charge of felonious assault on a police officer with a firearm because there was insufficient evidence. We disagree.
    A motion to dismiss should be denied if there is substantialevidence “(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.” State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) (citation omitted). When reviewing a motion to dismiss based on insufficiency of the evidence, this Court must,
        view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve. . . . Once the court decides that a reasonable inference of defendant's guilt may be drawn from the circumstances, then it is for the jury to decide whether the facts, taken singly or in combination, satisfy [it] beyond a reasonable doubt that the defendant is actually guilty.

Id. at 75-76, 430 S.E.2d at 918-19 (internal citations and quotations omitted) (emphasis original). The test for sufficiency of the evidence is the same whether the evidence is direct or circumstantial or both. Id. at 75, 430 S.E.2d at 918-19.
    Defendant was convicted of assaulting a law enforcement officer with a firearm in violation of section 14-34.5(a) of the North Carolina General Statutes. To prove this offense, the State must establish: “(1) an assault; (2) with a firearm; (3) on a law enforcement officer; (4) while the officer is engaged in the performance of his or her duties.” Childers, 154 N.C. App. at 382, 572 S.E.2d at 212. Defendant concedes that elements two, three, and four above are not in dispute. Rather, Defendant argues that the State failed to present sufficient evidence to establish the element of assault. “An assault is 'an overt act or attempt, withforce and violence, to do some immediate physical injury to the person of another, which show of force or violence must be sufficient to put a person of reasonable firmness in fear of immediate physical injury.'” Id. (quoting State v. Haynesworth, 146 N.C. App. 523, 529, 553 S.E.2d 103, 108 (2001)) (emphasis original).
    Here, the evidence considered in the light most favorable to the State and giving the State the benefit of every reasonable inference that may be drawn from the evidence, State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996), shows Defendant pulled a firearm from his waist band as he was approaching Deputy McEntire. Defendant then pointed his firearm toward, and waved it at, Deputy McEntire when Defendant was approximately four feet from him. Deputy McEntire testified he was in fear of his life. The evidence further showed that Deputy McEntire feared immediate physical injury by his response in pulling out his own service weapon. Thus, the show of force was sufficient to put a person of reasonable firmness in fear of immediate physical injury. Childers, 154 N.C. App. at 382, 572 S.E.2d at 212. We conclude there was substantial evidence, viewed in the light most favorable to the State, to show that Defendant committed an assault with a firearm on Deputy McEntire.
    Defendant argues the trial court erred in denying his motion to dismiss because the testimony of the defense witnesses demonstrates that when Defendant pulled his pistol out of his waist band, he immediately placed both hands in the air and his hand wasnot on the pistol in a manner that he could have fired. The testimony of the defense witnesses, to the extent it contradicts that of the officers, goes to the weight of the evidence, and not the sufficiency of the evidence on a motion to dismiss. See Haynesworth, 146 N.C. App. at 527, 553 S.E.2d at 107 (“When considering a motion to dismiss, the trial court 'is concerned only with the sufficiency of the evidence to carry the case to the jury and not with its weight.' Any contradictions or discrepancies in the evidence are for resolution by the jury and do not warrant dismissal.”). The question of whether Defendant assaulted Deputy McEntire and the consideration of the testimony presented at trial were factual issues for the jury to resolve. As such, we conclude the trial court did not err in denying Defendant's motion to dismiss at the close of all evidence.
    No error.
    Judges MCGEE and HUNTER concur.
    Report per Rule 30(e).

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