STATE OF NORTH CAROLINA
Craven County
v. No. 05 CRS 55787
AISSIA LALMERIA HARDIE
Attorney General Roy Cooper, by Assistant Attorney General
Yvonne B. Ricci, for the State.
Mercedes O. Chut, for defendant-appellant.
CALABRIA, Judge.
Aissia Lalmeria Hardie (“defendant”) appeals from a judgment
entered upon a jury verdict finding him guilty of malicious conduct
by a prisoner. We find no error.
On 13 November 2005, defendant was an inmate in the housing
area of the Segregation Unit of Craven Correctional Institution
(“DOC”). Inmates are assigned to segregation-unit housing “per DOC
policy” for misconduct or non-compliance with prison rules.
At trial, the State presented evidence that Correctional
Officer Brandon Garcia worked in the segregation-unit housing area.
As Garcia was escorting defendant from his cell to the recreational
area, defendant exited the cellblock into a hallway withoutpermission. Garcia ran in front of defendant and ordered him to
either return to the cellblock or go back to his cell. Defendant
raised his hands and brandished an ink pen. As Correctional
Officer Michael Anderson approached from his left, defendant swung
his arms, struck Garcia on the cheek with his elbow, and started to
run. The two officers brought defendant to the floor, where he
resisted their attempts to subdue him by “trying to move his arms
and kicking with his legs.” With Anderson straddling defendant's
legs, Garcia immobilized his arms and told him to calm down. Face
to face with Garcia, defendant spat at him. Garcia turned his head
but was struck in the left ear. He placed his elbow beneath
defendant's chin and raised it, directing defendant's face away
from him. Defendant told Garcia to “tell me you are sorry and I
will behave.” Additional officers arrived and returned defendant
to his cell. Garcia reported to the medical unit, where a nurse
cleaned his ear and tended to the scratches he sustained during the
incident.
Correctional Officer Michael Anderson testified that he opened
the “rec cage” to allow Garcia to bring defendant into the
recreational area on 13 November 2005. Anderson saw defendant
remove a pen from the podium as he passed through the door.
Ignoring Anderson's instruction to stop, defendant continued
forward until “Garcia got in front of him [and] told him to turn
around.” Defendant “started waving his hand with the pen” and
swinging his elbows. As Anderson “tried to turn him around, he
took off even faster, and he struck Officer Garcia in the face.” The officers brought defendant to the floor. Anderson straddled
defendant's legs, while “Garcia was taking control of his upper
body.” When the officers had subdued defendant's arms and legs,
“[h]e was laying down, and he spit up at Officer Garcia's face.”
After spitting at Garcia, defendant said “something to the effect
that if you say you are sorry I'll behave.”
Correctional Officer Michael Singletary also testified that he
witnessed defendant “spit towards Officer Garcia” on 13 November
2005, as they were “almost face to face” on the ground. Seeing
Anderson and Garcia struggle with defendant, Singletary “called a
code yellow, which is a code for State facility, officer needs
help, fight in progress.”
The trial court denied defendant's motion to dismiss at the
conclusion of the evidence. After the jury returned a guilty
verdict, defendant stipulated to a prior record level III and was
sentenced to a minimum of twenty-one months to a maximum of twenty-
six months in the North Carolina Department of Correction. He
timely filed notice of appeal.
Defendant first claims the trial court erred in denying his
motion to dismiss the charge of malicious conduct at the conclusion
of the evidence. He argues that the State did not prove that he
“acted volitionally” in spitting upon Garcia. Defendant further
avers that the State failed to adduce “evidence of an official
nature that established [his] status as resident of the
correctional facility.”
“When ruling on a defendant's motion to dismiss a criminal
action, the trial court is to determine whether there is
substantial evidence (a) of each essential element of the offense
charged, or of a lesser offense included therein, and (b) of
defendant's being the perpetrator of the offense. If so, the
motion to dismiss is properly denied." State v. Dudley, 151 N.C.
App. 711, 713, 566 S.E.2d 843, 845 (2002) (internal quotations and
citations omitted). Substantial evidence means "that amount of
relevant evidence that a reasonable mind might accept as adequate
to support a conclusion.” State v. Alston, 341 N.C. 198, 245, 461
S.E.2d 687, 713 (1995) (quoting State v. Porter, 303 N.C. 680, 685,
281 S.E.2d 377, 381 (1981)). In reviewing the denial of a motion
to dismiss, “[t]he evidence must be considered in the light most
favorable to the State, and the State is entitled to every
reasonable inference to be drawn therefrom.” Alston at 245, 461
S.E.2d at 713 (citing State v. Robbins, 309 N.C. 771, 774-75, 309
S.E.2d 188, 190 (1983)).
As defined by N.C. Gen. Stat. § 14-258.4(a) (2006), the
essential elements of the offense of malicious conduct by a
prisoner are as follows:
(1) the defendant threw, emitted, or caused to
be used as a projectile a bodily fluid or
excrement at the victim;
(2) the victim was a State or local government
employee;
(3) the victim was in the performance of his
or her State or local government duties at the
time the fluid or excrement was released;
(4) the defendant acted knowingly andwillfully; and
(5) the defendant was in the custody of the
Department of Correction . . . at the time of
the incident.
State v. Smith, 163 N.C. App. 771, 773-74, 594 S.E.2d 430, 432
(2004) (quoting State v. Robertson, 161 N.C. App. 288, 292-93, 587
S.E.2d 902, 905 (2003)). Because defendant challenges only the
sufficiency of the State's evidence as to (4) and (5), we shall
limit our analysis to these elements.
To establish that a defendant “acted knowingly and willfully”
in committing an act, the State must prove conditions of mind which
defy direct observation. State v. Crouse, 169 N.C. App. 382, 389,
610 S.E.2d 454, 459 (2005) (quoting State v. Bogle, 324 N.C. 190,
195, 376 S.E.2d 745, 748 (1989)); citing State v. Agnew, 294 N.C.
382, 393, 241 S.E.2d 684, 691 (1978)), disc. review denied, 359
N.C. 637, 616 S.E.2d 923 (2005). This type of intangible element
of an offense may be shown by circumstantial evidence such as the
defendant's statements and conduct before and after the act in
question, and his manner of performing the act. See Crouse, 169
N.C. App. at 389, 610 S.E.2d at 459.
We find the testimony of the State's eyewitnesses sufficient
to create a reasonable inference that defendant acted knowingly and
willfully in spitting on Garcia. The officers described defendant
leaving his cellblock without authorization and ignoring orders to
stop. When Garcia blocked his path, defendant brandished a
makeshift weapon, struck Garcia in the face with his elbow, and
attempted to flee. At the time he spat at Garcia, defendant hadbeen immobilized by Garcia and Anderson and was face to face with
Garcia on the ground. After spitting, defendant offered to
“behave” in exchange for an apology from Garcia, indicating the
deliberate nature of his misconduct toward the officer. Finally,
we note that Anderson and Singletary described defendant as
spitting “up at” and “toward” Garcia.
We further find substantial evidence to support a finding that
“defendant was in the custody of the Department of Correction . .
. at the time of the incident.” See Smith, 163 N.C. App. at 774,
594 S.E.2d at 432. Three officers from DOC attested to defendant's
status as an inmate at the State prison facility. Garcia described
retrieving defendant from his cell in the segregation unit, and
noted that inmates were assigned to segregation-unit housing “per
DOC policy[.]” While defendant points to the lack of “official”
evidence of his custody status, he cites no authority that would
require the State to “introduce the Judgment and Commitment Order
that placed [him] in the custody of the North Carolina Department
of Correction[.]” See N.C. R. App. P. 28(b)(6). We overrule this
assignment of error.
Defendant next claims the trial court erred by accepting the
State's stipulation to his prior record level III at sentencing.
He notes that the prior offenses listed on his sentencing worksheet
included a conviction from the State of New York for second degree
robbery. Because the appropriate classification of an out-of-state
conviction under N.C. Gen. Stat. § 15A-1340.14(e) (2006) is a
question of law, defendant contends that the court could not relyon a stipulation to resolve this issue. See State v. Hanton, 175
N.C. App. 250, 253-255, 623 S.E.2d 600, 604 (2006) (“conclud[ing]
that whether an out-of-state offense is substantially similar to a
North Carolina offense is a question of law that must be determined
by the trial court”).
We agree with the State that defendant has failed to preserve
this issue for review on appeal. The scope of appellate review is
limited to those issues presented by assignments of error set out
in the record on appeal. N.C. R. App. P. 10(a) (2007). The record
filed in this Court by defendant includes a single assignment of
error addressing the denial of his motion to dismiss. Because
defendant's argument regarding his prior record level is not
supported by an assignment of error in the record, it is not
properly before this Court. See State v. Jordan, 162 N.C. App.
308, 313, 590 S.E.2d 424, 428 (2004). The record further reflects
that the two points assigned to defendant's New York conviction had
no effect on his prior record level - a fact rendering any error on
this issue harmless. See State v. Allah, 168 N.C. App. 190,
195-96, 607 S.E.2d 311, 315 (citing State v. Adams, 156 N.C. App.
318, 324, 576 S.E.2d 377, 381-82 (2003)), disc. review denied, 359
N.C. 636, 618 S.E.2d 232 (2005). The reduction of defendant's
total record points from eight to six would leave him with a record
level III. N.C. Gen. Stat. § 15A-1340.14(c)(2) (2005).
Further, we find no error in the court's classification of
defendant's out-of-state conviction. Second degree robbery is a
felony under New York law. NY CLS Penal § 160.10 (2006) (“Robberyin the second degree is a class C felony.”). The out-of-state
conviction was thus properly treated as a Class I felony for
purposes of calculating defendant's prior record level, absent
proof from either party that a greater or lesser classification was
warranted. N.C. Gen. Stat. § 15A-1340.14(e) (2005). While it
appears that this crime corresponds to the Class G felony of common
law robbery under N.C. Gen. Stat. § 14-87.1 (2006), see Hanton, 175
N.C. App. at 251, 623 S.E.2d at 602, the trial court did not assign
four points based upon this higher classification.
No error.
Chief Judge MARTIN and Judge JACKSON concur.
Report per Rule 30(e).
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