STATE OF NORTH CAROLINA
v. Randolph County
No. 04 CRS 58037
EDWARD ROY FRYE
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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