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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1062


Filed: 5 June 2007


v .                         Forsyth County
                            Nos. 04 CRS 28543
KIM TYRONE JESSUP                    04 CRS 28544

    Appeal by Defendant from judgments entered 15 March 2006 by Judge William Z. Wood, Jr., in Forsyth County Superior Court. Heard in the Court of Appeals 27 March 2007.

    Attorney General Roy Cooper, by Assistant Attorney General David P. Brenskelle, for the State.

    M. Alexander Charns for Defendant-Appellant.


    STEPHENS, Judge.

    After a jury trial, Defendant was convicted of two counts of assault with a firearm on a law enforcement officer. Defendant appeals from the trial court's judgments sentencing him to two consecutive terms of twenty-five to thirty-nine months in prison. For the following reasons, we find no error.
    The evidence presented at trial tended to show that on the morning of 2 January 2004, as part of an ongoing drug investigation, detectives with the Winston-Salem Police Department's drug interdiction team arrived at Defendant's house to execute a search warrant . Because the detectives had information that Defendant frequently carried a handgun, they used a “dynamic entry” to execute the warrant . First, Detective Renee Melly, in an“extremely loud” fashion, yelled, “police, search warrant,” pounded three times on the front door, and announced the house's street address . Detective Melly repeated this procedure three times , and the detectives then waited fifteen to thirty seconds for a response from inside the house . Hearing nothing, Detective Steven Tollie “struck the door one time with [an] entry tool[,]” causing the door to completely open . The detectives paused a few seconds after opening the door, then Detectives T.D. Hill and J.P. Timberlake entered the residence behind a ballistic shield, a device which is intended to protect the detectives from gun fire . As they entered, they observed Defendant running down the house's staircase with his arm extended pointing a gun directly at them . In fear for their safety, Detective Hill fired two shots at Defendant and Detective Timberlake fired once . All three shots struck Defendant as he was halfway down the stairs. The detectives recovered Defendant's gun at the bottom of the staircase . After calling EMS for Defendant and securing the area , the detectives discovered 35.5 grams of crack cocaine and 44 grams of powdered cocaine in the house .

    Defendant first argues that the trial court erred in its refusal to instruct the jury on the charge of assault with a deadly weapon as a lesser included offense of assault with a firearm on a law enforcement officer. We disagree.
    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 inthe performance of his or her duties. N.C. Gen. Stat. § 14-34.5(a) (2003); State v. Dickens, 162 N.C. App. 632, 592 S.E.2d 567 (2004). Additionally, to be guilty of the offense, “the defendant must have known or had reasonable grounds to know that the victim was a law enforcement officer.” Dickens, 162 N.C. App. at 636, 592 S.E.2d at 571 (citing State v. Avery, 315 N.C. 1, 337 S.E.2d 786 (1985)).
The elements of the offense of assault with a deadly weapon are: (1)    an assault of a person; (2) with a deadly weapon. N.C. Gen. Stat. § 14-33(c)(1) (2003). Assault with a deadly weapon is a lesser included offense of assault with a firearm on a law enforcement officer. Avery, 315 N.C. 1, 337 S.E.2d 786.
    “A defendant is entitled to have a lesser-included offense submitted to the jury only when there is evidence to support it.” State v. Richmond, 347 N.C. 412, 431, 495 S.E.2d 677, 687 (citing State v. Brown, 300 N.C. 731, 268 S.E.2d 201 (1980)), cert. denied, 525 U.S. 843, 142 L. Ed. 2d 88 (1998). “'The sole factor determining the judge's obligation to give such an instruction is the presence, or absence, of any evidence in the record which might convince a rational trier of fact to convict the defendant of a less grievous offense.'” Richmond, 347 N.C. at 431, 495 S.E.2d at 687 (quoting State v. Wright, 304 N.C. 349, 351, 283 S.E.2d 502, 503 (1981)). “The trial court is not, however, obligated to give a lesser included instruction if there is 'no evidence giving rise to a reasonable inference to dispute the State's contention.'” State v. Hamilton, 132 N.C. App. 316, 321, 512 S.E.2d 80, 84 (1999)(quoting State v. McKinnon, 306 N.C. 288, 301, 293 S.E.2d 118, 127 (1982)).
     In this case, Defendant contends there was evidence that permitted a finding that he did not know the detectives were police officers. In support of this contention, Defendant points to his testimony that on the morning of 2 January 2004, after having slept for more than seven hours, he was “awoken by a crash at the door[]” that woke him “up out of the dead of sleep.” Defendant testified that the crash “scared” him and that he “thought maybe it was a home invasion or . . . some burglars coming through the door[.]”
    In light of all the evidence, however, we are not convinced that a rational juror could have convicted Defendant of the lesser included offense since the evidence shows that Defendant knew or had reasonable grounds to know that Detectives Hill and Timberlake were police officers. Although Defendant first testified that he was awoken by “a crash[,]” he later testified that he heard “two thumps[.]” The detectives testified that prior to entering the house, they “loud[ly]” knocked and announced their presence three times from the house's front porch. The officers entered the house behind a ballistic shield marked like “a big billboard that says police[.]” Defendant testified that “as [he] was making [his] way down the stairs,” he saw figures coming through the door that “looked like some kind of police force, some kind of SWAT.” Defendant's testimony that he did not hear the “knock and announce” and that he thought his house was being burglarized does not give rise to a reasonable inference to dispute the State's contentionthat Defendant knew the detectives were police officers, especially in light of Defendant's own testimony that the figures he saw coming into his house “looked like some kind of police force[.]” Defendant's assignment of error is overruled.
    By his final assignment of error, Defendant argues that the trial court erred in denying his motion to dismiss for insufficient evidence. Defendant contends that the charges should have been dismissed because the State did not present substantial evidence on the element of assault since he was “hurrying down the stairs with a gun that had the safety on and no round in the chamber.” We disagree.
    In reviewing the denial of a motion to dismiss for insufficient evidence, the question for this Court is whether there is substantial evidence (1) of each essential element of the offense charged and (2) of defendant's being the perpetrator of such offense. State v. Scott, 356 N.C. 591, 573 S.E.2d 866 (2002). “Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion.” Id. at 597, 573 S.E.2d at 869 (citation omitted). This Court “'must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences.'” Id. at 596, 573 S.E.2d at 869 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)). “'Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve.'” Id.    Viewing the evidence in the light most favorable to the State and giving the State the benefit of every reasonable inference, the State presented substantial evidence that Defendant assaulted Detectives Hill and Timberlake. Detective Hill testified that Defendant's handgun was “pointed directly at [him][,]” and that, consequently, he “feared for [his] life as well as [his] compadres' lives[.]” Similarly, Detective Timberlake testified that Defendant's gun “was pointed right at [the police officers][,]” and that he “was in fear of [his] life and everybody on the team.” The detectives' testimony constitutes substantial evidence that Defendant assaulted the police officers. See State v. Childers, 154 N.C. App. 375, 382, 572 S.E.2d 207, 212 (2002), (“[T]he State need only prove that defendant put on a show of force or violence sufficient to put a person of reasonable firmness in fear of immediate physical injury” to establish the element of assault.), cert. denied, 356 N.C. 682, 577 S.E.2d 899 (2003). Defendant's assignment of error is without merit and is overruled.
    Judges McGEE and ELMORE concur.
    Report per Rule 30(e).

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