Appeal by defendant from judgment entered 2 December 2004 by
Judge Benjamin G. Alford in Carteret County Superior Court. Heard
in the Court of Appeals 12 September 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General Jane Hautin, for the State.
McAfee Law, P.A., by Robert J. McAfee, for defendant-
appellant.
CALABRIA, Judge.
Eric Buck (“defendant”) appeals from a judgment entered upon
a jury verdict finding defendant guilty of the offense of
resisting, delaying and obstructing a public officer in discharging
a duty of his office. We find no error.
The State presented evidence showing the following: On 6 March
2004, Carteret County Sheriff's Deputy Reggie Pasteur (“Pasteur”)
went to defendant's home to serve defendant's cousin, Edgar Carson
(“Carson”), with an ex parte domestic violence protective order
since Pasteur was told Carson could be located at defendant's
house. Pasteur testified that when he arrived at defendant's home,
defendant was outside and started cursing, swearing and threatening
Pasteur. Pasteur also testified defendant told him he had noreason to be on his property and that he was “going to hurt
[Pasteur].” Pasteur explained that he was there to serve Carson
with a domestic violence protective order, not defendant. Pasteur
testified that during the time he tried to talk to defendant,
defendant was located only about five inches from his face and used
racially derogatory language toward Pasteur. Pasteur told
defendant and his wife to call the sheriff's department if Carson
returned to defendant's house so that Pasteur could serve the
order.
Pasteur testified that after he turned to walk towards his
patrol car, he heard a noise behind him and when he turned around
he saw defendant “coming towards [him] with a shovel.” Defendant
said he was going to “kill [Pasteur] and smash [his] head in.”
Pasteur told him to put the shovel down and drew his gun. After
three or four commands, defendant put the shovel down. When
Pasteur told defendant he was under arrest for assault of a
government official, defendant kicked, spat, and swung at him as
he started placing defendant in restraints. Pasteur offered to
place the handcuffs on defendant in the front, rather than behind
the defendant's back, after defendant told him he had a medical
condition. Defendant kicked Pasteur in the groin and “started
fighting again.” Pasteur used his pepper spray on defendant.
Defendant's wife then hit Pasteur with her fist on the back of his
head. Pasteur called for back-up. Pasteur testified he did not
recall any shovel or rake lying on the ground. Carteret County Sheriff's Lieutenant James Ray Pittman, Jr.
(“Pittman”), who responded to Pasteur's call for assistance, also
testified at trial. Over defense counsel's general objection,
Pittman testified that defendant had not been aggressive with
Pittman but that defendant “had a problem with a neighbor.” On
cross-examination, defense counsel asked Pittman about the problem
with the neighbor and whether defendant was “pretty fired up about
his neighbor.” Pittman testified defendant would be loud and “gets
[sic] up in your face,” that he “was aggressive towards his
neighbor, which was probably giving him trouble” but that
defendant never threatened or assaulted him.
Defendant presented evidence showing the following: Pasteur
asked defendant if he knew Carson's location. Defendant asked if
Pasteur had a warrant. Pasteur said he did not. Defendant said he
told Pasteur to leave. Defendant said he did not remember any
cursing at that point. Pasteur told defendant he did not have to
leave, he did not need a search warrant and that he could go
anywhere on defendant's property or in his house, and that
defendant did not want to “try [him].” Defendant testified that as
Pasteur approached his patrol car, he hit a shovel with his foot.
Defendant picked up the shovel to place it against the wall and
Pasteur reached for his gun. Defendant said Pasteur told him he
was under arrest, tackled defendant and used pepper spray on him.
Defendant denied using racial slurs toward Pasteur.
Defendant's wife, Karen Buck (“Mrs. Buck”), testified that
defendant told Pasteur if he did not have a warrant, then he neededto leave. Mrs. Buck asked Pasteur for one of his cards so Carson
could call Pasteur. Pasteur stepped towards Mrs. Buck and said he
did not have any cards. Defendant told Mrs. Buck to step back and
that Pasteur was “acting his true color, he was acting like a black
bastard.” Mrs. Buck testified that Pasteur said “you don't want to
try me, boy” and turned to walk away. Mrs. Buck testified that
Pasteur's foot hit a shovel as he was walking to his car.
Defendant picked up a rake and reached to pick up the shovel.
Pasteur turned around and shoved defendant.
Defendant's father-in-law, Leroy Weeks (“Weeks”), testified
that he arrived at defendant's house and saw defendant restrained
with one handcuff and Pasteur's knee was in his back. Weeks
testified on direct that he had never known defendant to attack
anybody. During cross-examination, the prosecution asked Weeks
whether he knew that defendant had ever been charged with attacking
someone. Defense counsel did not object to this question.
At the conclusion of the State's evidence, defendant moved to
dismiss for insufficient evidence. The trial court denied the
motion. Defendant moved to dismiss at the close of all the
evidence, and the court again denied the motion.
During the charge conference, defense counsel requested a jury
instruction that “if the jury decides under the circumstances that
the arrest was not a lawful arrest, that the defendant had a right
to resist. . . .” The grounds for finding an unlawful arrest were,
according to defense counsel, that “the officer himself assaulted
the defendant rather than the alternative.” Defense counsel askedfor an instruction that if the jury found that the officer
initiated the attack on the defendant, then defendant had a right
to resist the unlawful arrest. The trial court also considered an
instruction that the arrest was lawful, but that resistence would
be justified if the officer used excessive force. The trial court
decided to instruct the jury that if they found the officer used
excessive force, then defendant's resistence is excused. Defense
counsel properly objected and asked the court to give instructions
on the right to resist an unlawful arrest and the right to resist
excessive force. The trial court told defense counsel that he
could argue that defendant's arrest was an unlawful arrest under
the element of whether the victim discharged a duty of his office,
and that it would not be a duty of his office to effectuate an
unlawful arrest. Defense counsel renewed his request to include a
charge on the right to resist an unlawful arrest. At the charge
conference, defendant moved for a directed verdict, which the trial
court treated as a motion to dismiss at the close of all the
evidence
(See footnote 1)
. The trial court denied the motion.
The jury returned a guilty verdict for the resist, delay, and
obstruct charge; however, the defendant was acquitted of assault
with a deadly weapon against a government official. Defendantmoved for a judgment notwithstanding the verdict
(See footnote 2)
on the basis that
the jury misunderstood the resisting arrest instruction. The court
denied the motion. Defendant was sentenced to forty-five days in
the custody of the Carteret County Sheriff. That sentence was
suspended and the defendant was placed on supervised probation for
twenty-four months. Defendant appeals.
I. Jury Instructions
Defendant argues the trial court erred in failing to instruct
as requested on the defense of resisting unlawful arrest. We
disagree.
“A trial court must give a requested instruction that is a
correct statement of the law and is supported by the evidence. The
trial court need not give the requested instruction verbatim,
however; an instruction that gives the substance of the requested
instructions is sufficient.”
State v. Conner, 345 N.C. 319, 328,
480 S.E.2d 626, 629 (1997) (internal citations omitted). “The
trial judge has wide discretion in presenting the issues to the
jury.”
State v. Harris, 306 N.C. 724, 728, 295 S.E.2d 391, 393
(1982) (citation omitted). “When determining whether the evidence
is sufficient to entitle a defendant to jury instructions on a
defense or mitigating factor, courts must consider the evidence inthe light most favorable to defendant.”
State v. Mash, 323 N.C.
339, 348, 372 S.E.2d 532, 537 (1988) (citations omitted).
First, we consider whether the evidence viewed in the light
most favorable to the defendant supported defendant's requested
jury instruction on the charge of resisting unlawful arrest. The
defendant testified that he told the officer “[he] need[ed] to
leave” defendant's property because the officer did not have a
warrant and that the officer tackled him after defendant picked up
a shovel that was lying on the ground. Viewed in the light most
favorable to the defendant, the evidence is sufficient to support
a defense that the arrest was unprovoked or unlawful.
Mash, 323
N.C. at 348, 372 S.E.2d at 537.
A trial court is not required to give a verbatim instruction
as requested, for “it is sufficient if the court gives the
instruction in substantial conformity with the request.”
State v.
McNeill, 346 N.C. 233, 239, 485 S.E.2d 284, 288 (1997). In
McNeill, the defendant was tried for first-degree murder under the
felony murder rule; burglary constituted the underlying felony.
346 N.C. at 235-36, 485 S.E.2d at 286. Defendant requested that
the instruction inform the jurors “that if they found defendant not
guilty of first-degree burglary or guilty of nonfelonious breaking
and entering, they could not consider the charge of first-degree
murder under the felony murder rule.”
Id., 346 N.C. at 238, 485
S.E.2d at 287.
Instead, the trial court instructed the jury as
follows:
So, I charge that if you find from the
evidence beyond a reasonable doubt that on orabout the alleged date, the defendant broke
and entered an occupied dwelling house without
the tenant's consent during the night-time and
at that time intended to commit murder, and
that while committing burglary, the defendant
killed the victim and that the defendant's act
was a proximate cause of the victim's death,
it would be your duty to return a verdict of
guilty of first degree murder under the felony
murder rule. However, if you do not so find
or have a reasonable doubt as to one or more
of these things, you will not return a verdict
of guilty of first degree murder under the
felony murder rule.
346 N.C. at 238-39, 485 S.E.2d at 287-88. The North Carolina
Supreme Court held this instruction was in substantial conformity
with the one requested, and found no error.
Id., 346 N.C. at 239,
485 S.E.2d at 288.
The case
sub judice is similar to
McNeill. Here, defendant
requested an instruction that if the jury found that the officer
attacked defendant, and therefore the officer's arrest of defendant
was unlawful, then defendant was justified in resisting arrest.
Defendant requested instructions under both N.C. Pattern Jury
Instructions Criminal 230.31 and 230.32.
(See footnote 3)
The trial court
instructed the jury on the elements of resisting arrest, which
includes proof beyond a reasonable doubt that the public officerwas attempting to discharge a duty, defined as an arrest with
probable cause. The trial court gave the following instructions,
which are nearly verbatim from N.C. Pattern Jury Instructions
Criminal 230.32:
The defendant has been charged with resisting,
delaying and obstructing an officer. Now, I
charge that for you to find the defendant
guilty of this offense, the state must prove
five things beyond a reasonable doubt:
First, that the victim was a public
officer. A deputy sheriff is a public officer.
Second, that the defendant knew or had
reasonable grounds to believe that the victim
was a public officer.
Third, that the victim was attempting to
discharge a duty of his office. Attempting to
arrest the defendant is a duty of a deputy
sheriff.
Under North Carolina law, an officer
may arrest without a warrant any person who
the officer has probable cause to believe has
committed a criminal offense in the officer's
presence.
Fourth, that the defendant resisted,
delayed and obstructed the victim in
attempting to discharge this duty.
Fifth, that the defendant acted willfully
and unlawfully, that is, intensely and without
justification or excuse.
The defendant's resistance, delay, and
obstruction, if any, is excused if it was in
response to excessive force by an officer
because any such resistance, delay or
obstruction in that event would not be
unlawful. In attempting to make a lawful
arrest, a deputy sheriff may use whatever
force is apparently necessary to him and
reasonable for that purpose. However, if an
officer uses more force than is apparently
necessary to him or more force than is
reasonable -- than is reasonable under all the
circumstances, such force is excessive and
unlawful. If Deputy Pasteur used more force
than was apparently necessary to him or
reasonable under all the circumstances, and if
the defendant's resistance, delay and
obstruction was to the excessive force used by
Deputy Pasteur, then the defendant is not
guilty of this offense.
So I charge that if you find from the
evidence beyond a reasonable doubt that on or
about the alleged date the victim was a public
officer, that the defendant knew or had
reasonable grounds to believe that the victim
was a public officer,
that the victim was
attempting to discharge a duty of his office
and that the defendant willfully and
unlawfully resisted, delayed and obstructed
the victim in attemptinq to discharge a duty
of his office, it would be your duty to return
a verdict of guilty. However, if you do not
so find or have a reasonable doubt as to one
or more of these things, it would be your duty
to return a verdict of not guilty.
(Emphasis added).
This instruction is in substantial conformity with the
defendant's request because the instruction defines discharge of a
duty of office as an attempt to arrest and in turn defines a lawful
arrest as one where the officer has probable cause to believe the
defendant committed a criminal offense. We find no error.
II. Admission of Pittman's Testimony
Defendant assigns as error the trial court's ruling on his
general objection to Pittman's testimony in response to the
prosecution's question about defendant's prior contact with Pittman
on the basis that such testimony was irrelevant and impermissible
character evidence admitted to prove acts in conformity with bad
character.
We do not reach defendant's second assignment of error because
although he timely objected, at the time of the objection he failed
to state the specific grounds. N.C. R. App. P. 10(b)(1) (2007).
Even if the grounds were apparent from the context, defendant later
waived any objection by eliciting the same evidence from thewitness on cross-examination.
See State v. Whitley, 311 N.C. 656,
661, 319 S.E.2d 584, 588 (1984) (where evidence is admitted over
objection and the same evidence is later admitted without
objection, the benefit of the objection is lost). Because defense
counsel elicited the same testimony on cross-examination without
any effort to explain, impeach or “destroy its value,” defendant's
general objection is waived.
See State v. Alford, 339 N.C. 562,
569-70, 453 S.E.2d 512, 516 (1995) (Defendant's objection waived
where defense cross-examined witness on the same evidence without
trying to explain, impeach or destroy its value).
III. Insufficient Evidence
Defendant next argues the trial court erred by denying his
motions to dismiss on the basis of insufficient evidence. We
disagree.
The standard of review on motions to dismiss for insufficient
evidence is whether there is substantial evidence of each element
of the offense charged.
State v. Olson, 330 N.C. 557, 564, 411
S.E.2d 592, 595 (1992). Substantial evidence is any relevant
evidence that “a reasonable mind might accept as adequate to
support a conclusion.”
State v. Brown, 310 N.C. 563, 566, 313
S.E.2d 585, 587 (1984). “[I]n considering a motion for nonsuit,
the trial court must view the evidence in the light most favorable
to the State, allowing the State every reasonable inference and
intendment to be drawn from the evidence.”
State v. McDonald, 130
N.C. App. 263, 269, 502 S.E.2d 409, 414 (1998) (citation omitted). The elements of N.C. Gen. Stat. § 14-223 (2005) are “that the
defendant willfully and unlawfully resisted, delayed, or obstructed
a public officer, whom the defendant knew or had reasonable grounds
to believe was a public officer, in discharging or attempting to
discharge a duty of his office.”
State v. Bell, 164 N.C. App. 83,
94, 594 S.E.2d 824, 831 (2004) (citation omitted).
Defendant testified he saw Pasteur approach in a marked police
car. Pasteur testified he told the defendant his reason for being
on the property was to serve Carson with a domestic violence order,
yet defendant approached him with a shovel, threatened to kill him,
refused to put down the shovel until after three or four commands,
and fought with Pasteur during the attempt to place him under
arrest for assault on an officer. This is relevant evidence that
a reasonable person might accept as adequate to support a
conclusion that defendant violated N.C. Gen. Stat. § 14-223 (2005).
Viewing the evidence in the light most favorable to the State, we
find no error.
McDonald, 130 N.C. App. at 269, 502 S.E.2d at 414.
IV. Plain Error
Defendant's final argument is that the trial court failed to
exclude
sua sponte the prosecutor's question to defendant's father-
in-law about defendant's prior attack charge, on the grounds that
the evidence is inadmissible under N.C. Rules of Evidence 404(b) or
609. We disagree.
Since defendant did not object to this question at trial, our
review is limited to plain error analysis. N.C. R. App. P.
10(c)(4) (2007). “Plain error is an error which was so fundamentalas to amount to a miscarriage of justice or which probably resulted
in the jury reaching a different verdict than it otherwise would
have reached.”
State v. Jones, 137 N.C. App. 221, 226, 527 S.E.2d
700, 704 (2000) (internal quotes omitted) (citation omitted). “To
prevail under a plain error analysis, a defendant must establish
not only that the trial court committed error, but that absent the
error, the jury probably would have reached a different result.”
Jones, 137 N.C. App. at 226, 527 S.E.2d at 704 (citation omitted).
Defendant asserts the alleged error occurred when defendant's
father-in-law, Mr. Weeks, testified that “I've never seen
[defendant] attack anyone physically.” The State then asked, “You
know he's been charged with attacking someone before?” Weeks
answered, “Not as [sic] I know of.” The State responded, “You
didn't know that?” Weeks replied, “No.”
We need not reach the question of whether the evidence is
inadmissible under N.C. Rules of Evidence 404(b) or 609 because any
alleged error in this case does not amount to plain error.
Defendant has not established that absent this error, the jury
would have reached a different result.
Id. Any prejudicial effect
is outweighed by Pasteur's testimony. This assignment of error is
overruled.
No error.
Judges McCULLOUGH and STEPHENS concur.
Report per Rule 30(e).
Footnote: 1