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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-987


Filed: 3 April 2007


         v.                             Randolph County
                                     No. 04 CRS 58037

    Appeal by defendant from judgments entered 18 May 2006 by Judge R. Stuart Albright in Randolph County Superior Court. Heard in the Court of Appeals 26 March 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Ashby T. Ray, for the State.

    James M. Bell for defendant appellant.

    McCULLOUGH, Judge.

     Defendant appeals from judgments entered on convictions by a jury of two counts of assault on a law enforcement officer with a firearm.     Defendant presents two questions: (1) whether the court erred by denying defendant's motion to dismiss each count for insufficient evidence; and (2) whether the court erred by denying defendant's request for an instruction on voluntary intoxication. For the following reasons, we hold that defendant received a trial free from prejudicial error.
    The State presented evidence tending to show that on 28 November 2004 defendant and his sister engaged in an argument at the mobile home in which defendant resided with their mother. Defendant's sister called 911 for assistance in getting theintoxicated defendant to leave the residence. Defendant walked down the hall and returned with a gun in his hand. Defendant's sister called 911 again and reported that defendant had a gun.
    Officer William Brown and Sergeant Adam Berman of the Archdale Police Department responded to the dispatch and arrived at the residence. Defendant's brother-in-law opened the front door and reported to the officers that defendant was in the back of the residence armed with a handgun. Defendant's brother-in-law, sister and mother all exited the mobile home. The two officers stood in the living area of the mobile home and asked defendant to throw out the gun. Defendant stepped out into the hallway, with the gun down by his side, and looked at Officer Brown. Instead of dropping the gun, defendant walked into the back bedroom. Defendant raised his arm and pointed the gun at Officer Brown. Afraid defendant was going to fire the gun, Officer Brown fired one shot with his service revolver and ordered defendant to relinquish the weapon. Defendant failed again to discard the gun. Officer Brown then fired three more shots. Wounded by the gunshots, defendant threw down the gun and surrendered to the officers.
    Defendant testified that he did not know the voices he heard asking him to put down the gun belonged to police officers. He further testified that he did not point the gun at the officers, that he dropped the gun when the first shot struck him in the arm, and that the officer fired three more shots at him when he tried to pick up his unloaded gun from the floor.
     In deciding a motion to dismiss, a court must consider theevidence in the light most favorable to the State and determine 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, 67, 296 S.E.2d 649, 652 (1982). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). Whether the evidence is direct, circumstantial or both, if there is substantial evidence to support a finding that the defendant committed the charged offense, then the case is for the jury and the motion to dismiss should be denied. State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 382-83 (1988).
    As statutorily defined, the elements of the offense of assault with a firearm on a law enforcement officer are: (1) an assault; (2) with a firearm; (3) on a law enforcement officer; (4) while the officer is engaged in the performance of his duties. N.C. Gen. Stat. § 14-34.5(a) (2005); State v. Dickens, 162 N.C. App. 632, 636, 592 S.E.2d 567, 571 (2004). Our Supreme Court has added as a further element of proof that the State must show the defendant knew the victim was a law enforcement officer. State v. Avery, 315 N.C. 1, 31, 337 S.E.2d 786, 803 (1985).     
    Defendant contends the evidence is insufficient to establish that he knew Brown and Berman were police officers. He also argues the evidence is insufficient to establish he pointed the gun at Sergeant Berman, given Sergeant Berman's positioning behind Officer Brown out of the direct line of fire.    “Knowledge is a mental state and may be proved by the conduct and statements of the defendant, by statements made to him by others, by evidence of reputation which it may be inferred had come to his attention, and by circumstantial evidence from which an inference of knowledge might reasonably be drawn.” State v. Boone, 310 N.C. 284, 294-95, 311 S.E.2d 552, 559 (1984). Based upon the following evidence, we conclude a jury could reasonably find defendant knew Berman and Brown were police officers. Defendant's sister testified that she yelled to defendant “the police are here” and that defendant became silent when she made that announcement. Each officer spoke to defendant so defendant knew or should have known at least two officers were involved. Both officers, dressed in their police uniforms, announced themselves as the “Archdale Police Department.” Officer Brown also testified that defendant walked into the hallway and looked at Officer Brown. It may be reasonably inferred that defendant saw Officer Brown dressed in his police uniform.
    It is also not necessary that a defendant point a gun directly at a law enforcement officer in order to be convicted of assault as long as the defendant “put on a show of force or violence sufficient to put a person of reasonable firmness in fear of immediate physical injury.” 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). Defendant pointed the gun in the officers' direction. Sergeant Berman testified that when he saw the “business end” of defendant's handgun, he dove for cover to get out ofdefendant's sight and “keep from getting shot[.]” We hold this evidence sufficed to show an assault.
    With regard to the contention that the court erred by failing to submit an instruction on voluntary intoxication, defendant concedes that in State v. Page, 346 N.C. 689, 699, 488 S.E.2d 225, 232 (1997), cert. denied, 522 U.S. 1056, 139 L. Ed. 2d 651 (1998), the Supreme Court held a diminished capacity defense is unavailable to one charged with assault on a law enforcement officer because it is a general intent crime. Notwithstanding, he argues the instruction on voluntary intoxication should have been given in order to allow the jury to determine whether defendant was so intoxicated he was utterly incapable of forming any intent.
    Defendant's argument must fail. To find one guilty of a general intent crime, a jury need only find that the defendant committed an unlawful act; the intent to commit the act is inferred from the act's mere commission. Id. at 700, 488 S.E.2d at 232. One's voluntary intoxication only serves to negate the element of specific intent, and the instruction is available only to crimes that contain an element of specific intent. See State v. Harvell, 334 N.C. 356, 368, 432 S.E.2d 125, 131 (1993).
    Accordingly, defendant received a trial free from prejudicial error.
    No prejudicial error.
    Judges STEELMAN and LEVINSON concur.
    Report per Rule 30(e).

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