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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 5 June 2007
STATE OF NORTH CAROLINA
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.
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 anextremely 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
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
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.
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.
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),
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.),
, 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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