STATE OF NORTH CAROLINA
v
.
New Hanover County
No. 04 CRS 66724
WILLIAM CARTER FRANKLIN
Attorney General Roy Cooper, by Assistant Attorney General
John G. Barnwell, for the State.
James M. Bell for defendant-appellant.
CALABRIA, Judge.
William Carter Franklin (“defendant”) appeals from judgment
entered upon a jury verdict finding him guilty of simple assault.
We find no error.
At trial, Brian Watkins (“Watkins”), a financial advisor for
Wachovia Securities, testified for the State that he volunteered to
officiate as President of the New Hanover County Fair. On 28
October 2004, at approximately 5:45 p.m., Watkins heard defendant
state “she called me a queer.” Watkins proceeded to defendant's
booth and “asked all parties to relax [and] go back in your
booths[.] . . . I'll deal with it in a few minutes.” Defendant
then said to Watkins that a woman in an adjacent booth “called me
a queer; what are you going to do about it?” Defendant repeatedthe above statement several times, which led Watkins, who feared
the situation would only escalate, to tell defendant “[i]t's time
to go.” At that point, Watkins placed “[his] left hand on
[defendant's] left wrist [and simultaneously placed his] right hand
on [defendant's] left shoulder . . . and escorted him to leave.”
As defendant began to leave, he told Watkins he wanted to retrieve
his pumpkin. While doing so, defendant exchanged heated words with
the same woman who alleged had called him “a queer.” Watkins
testified that as he escorted defendant out of the Fair a second
time, defendant attempted to kick him with his right foot. Watkins
testified he “caught [defendant's] foot . . . and . . . turned it
to [the] right.” Defendant then fell to the ground. Police
officers then ran to the scene and told defendant “to stay down.”
Lieutenant Taylor (“Lieutenant Taylor”) of the Wilmington
International Airport Public Safety Office provided law enforcement
support to the New Hanover County Fair on 28 October 2004.
Lieutenant Taylor testified he was advised that “Mr. Watkins was
escorting a subject out, and [the subject] was fighting with him.”
Once Lieutenant Taylor arrived at the scene, he “saw [defendant]
turn, pivot on his left foot[,] and kick Mr. Watkins in the
stomach.” Lieutenant Taylor further testified that “Mr. Watkins
was able to grab hold to [defendant's] foot[.]” Lieutenant Taylor
then “approached [defendant] and told him to stay on the ground.”
The defendant refused. Lieutenant Taylor told defendant he was
under arrest; however, defendant continued to pull away from
Lieutenant Taylor who then, along with Officer Cook (“OfficerCook”), forced defendant to the ground and restrained him with
handcuffs.
Defendant testified that “on the night in question . . . I was
required to be at the fair for my job,” and while working, a woman
at an adjacent booth called him a queer. Although defendant
complained, Watkins “was extremely disinterested.” Defendant
further testified that Watkins pushed him while escorting him out
and that his foot “was never grabbed and twisted by [Watkins].”
Defendant also testified Lieutenant Taylor never identified
himself; rather he grabbed defendant's arm and “roughed [him]
up[.]”
On 16 June 2005, defendant was convicted of simple assault and
resisting a public officer in New Hanover County District Court.
Defendant appealed to the New Hanover Superior Court for a trial de
novo. At the close of all the evidence, the trial court dismissed
the charge of resisting a public officer. On 30 August 2005, a
jury found defendant guilty of simple assault. The trial court
then sentenced defendant to 45 days in the custody of the North
Carolina Department of Correction, suspended his sentence and
placed him on supervised probation for 18 months. Defendant
appeals.
I. Appointment of Counsel:
Defendant initially argues the trial court erred by not
granting his motion for appointment of counsel. We disagree.
“A waiver of counsel or decision to proceed pro se is good and
sufficient until the trial [is] finally terminated, unless thedefendant himself makes known to the court that he desires to
withdraw the waiver and makes a showing that the change of mind to
proceed (with or without an attorney) was for some good cause.”
State v. Hoover, __ N.C. App. __, __, 621 S.E.2d 303, 304 (2005)
(citations and internal quotation marks omitted) (emphasis added).
The purpose behind the requirement of showing good cause to
withdraw a waiver of counsel is that, in the absence of good cause,
a defendant would be “permitted to control the course of litigation
and sidetrack the trial.” State v. Smith, 27 N.C. App. 379, 381,
219 S.E.2d 277, 279 (1975). “The burden of showing the change in
the desire of the defendant for counsel rests upon the defendant.”
State v. Kinlock, 152 N.C. App. 84, 88, 566 S.E.2d 738, 741 (2002)
(emphasis added) (citations and internal quotations omitted).
In the case sub judice, on 11 July 2005, defendant signed a
“Waiver of Counsel,” and the trial court certified the waiver form
the same day. By signing the waiver form, defendant waived “[his]
right to all assistance of counsel . . . includ[ing] [his] right to
assigned counsel and [his] right to assistance of counsel. The
trial court then calendared this matter to be heard in New Hanover
County Superior Court on 29 August 2005. After the case was called
for a hearing, defendant first requested a change of venue, and
after the trial court denied that motion, defendant requested to
withdraw his waiver of counsel. Specifically, defendant stated he
had initially waived counsel because he was indigent and could not
afford to pay any counsel fees. However, defendant failed to
establish any change in circumstances that amounted to good causefor his change of mind and offered no explanation why he waited
until the district attorney called his case for trial before making
a motion requesting counsel. Accordingly, defendant has failed to
meet his burden of proof, see Hoover, __ N.C. App. at __, 621
S.E.2d at 304. To allow defendant's motion on these facts would be
to allow him to control the course of litigation. Smith, 27 N.C.
App. at 381, 219 S.E.2d at 279. Thus, this assignment of error is
overruled.
II. Limiting Instruction:
Defendant next argues the trial court erred by failing to
instruct the jury to disregard the state's question regarding
whether defendant was convicted of disorderly conduct. We hold
this argument has not been properly preserved for appellate review.
In the instant case, defendant was asked by the district
attorney, “Were you found guilty of disorderly conduct on February
19th, 2004?” The defendant answered in the negative, then objected
to the question on the grounds that the state had brought up a
charge for which he had not been convicted. The defendant contended
that this question was unfairly prejudicial. The trial judge
overruled the objection, stating, “On cross-examination, they are
allowed to inquire into the criminal history of a defendant. You
are a defendant, and you are a witness. She is allowed to inquire.
You may answer the question, either yes or no; and then, if you
need to explain your answer, you may do so.” Defendant never
requested a limiting instruction from the trial court.
Consequently, defendant has failed to preserve this question forappellate review. See N.C. R. App. P. 10(b)(1) (2006) (“In order
to preserve a question for appellate review, a party must have
presented to the trial court a timely request . . . stating the
specific grounds for the ruling the party desired the court to
make[.]”). See also State v. Matthews, __ N.C. App. __, __, 623
S.E.2d 815, 819 (2006) (stating “[t]o the extent defendant contends
he was prejudiced by the lack of limiting instructions, his failure
to request such instructions precludes review of that issue on
appeal.” (citation omitted)).
III. Motion to Dismiss:
Defendant also argues the trial court erred in failing to
dismiss the simple assault charge at the close of the evidence. We
hold that defendant has failed to properly preserve this issue.
At trial, defendant did not make a motion to dismiss the
simple assault charge. Thus, defendant may not raise this issue on
appeal pursuant to N.C. R. App. P. 10(b)(3) (2006), which states
“[a] defendant in a criminal case may not assign as error the
insufficiency of the evidence to prove the crime charged unless he
moves to dismiss the action[.]” (Emphasis added). Furthermore,
defendant's third assignment of error, which states, “[t]he trial
court committed reversible error by failing to dismiss the simple
assault charge against the appellant at the close of all evidence,”
does not provide a legal rationale upon which the assigned error is
predicated. Therefore, the assignment of error is in violation of
N.C. R. App. P. 10(c)(1) (2006). See May v. Down East Homes ofBeulaville, Inc., __ N.C. App. __, __, 623 S.E.2d 345, 346 (2006).
For the foregoing reasons, we do not address this argument.
No error.
Judges GEER and JACKSON concur.
Report per Rule 30(e).
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