STATE OF NORTH CAROLINA
v. Greene County
No. 06 CRS 50577
TELLY DONNELL SLEDGE
Attorney General Roy Cooper, by Assistant Attorney General
Mary S. Mercer, for the State.
Robert J. McAfee, for defendant-appellant.
CALABRIA, Judge.
Telly Donnell Sledge (“defendant”) appeals from his judgment
entered upon a jury verdict finding him guilty of assault on a
government official. We find no error.
At trial, the State introduced evidence tending to show the
following: on 17 June 2006, defendant was serving a sentence for
second-degree murder at Maury Correctional Institution in Maury,
North Carolina. At approximately 6:00 a.m. that
morning, Correctional Officer Richard L. Blow, Jr. (“Officer Blow”)
was on duty in a control booth in the same unit where defendant was
incarcerated. As defendant and other inmates walked past the
control booth on their way to breakfast, Officer Blow observed thatdefendant's t-shirt was not tucked in his pants as required by
prison regulations. From the control booth, Officer Blow
ordered defendant to tuck in his shirt. When defendant ignored
the order, Officer Blow repeated his order. Defendant continued to
disobey the order as he descended a flight of stairs but was
ordered by another officer to return to Officer Blow. Officer Blow
exited the control booth and confronted defendant. Next, Officer
Blow and defendant had a disagreement regarding whether or not
defendant properly tucked in his shirt. According to Officer Blow,
defendant partially tucked in his shirt in the front, but not
the sides and back of the shirt.
When Officer Blow determined that defendant refused to follow
his orders, he instructed defendant to place his hands out to
be handcuffed. When Officer Blow attempted to handcuff defendant,
defendant jerked his arms away and turned his body and arms in
such a way that Officer Blow feared that defendant was going to hit
him. In a defensive action, Officer Blow grabbed defendant in a
bear hug and a struggle followed. Defendant used abusive language
and continued to struggle despite Officer Blow's order to stop
resisting.
Officer Blow then issued an alarm requiring all officers to
respond. Officer Latosha Stewart (“Officer Stewart”) responded to
Officer Blow's alarm and attempted to grab defendant's legs while
ordering defendant to stop resisting. As defendant continued to
struggle, he kicked Officer Stewart. Officer Stewart was also
struck in the leg by the handcuffs when they were knocked out ofOfficer Blow's hands during the struggle. Due to defendant's
continued resistance, Officer Stewart sprayed him with pepper
spray. Defendant was then subdued and handcuffed by the
correctional officers.
On 21 July 2006, defendant was charged with two counts of
assault on a government official since there were two officers,
Officer Blow and Officer Stewart. On 5 September 2006, a jury
trial was conducted on these charges. Following jury selection and
opening statements, but before evidence was presented, the State
noted on the record that it had offered a plea arrangement to
defendant whereby defendant would plead guilty to one count of
assault on Officer Stewart and the trial court would sentence
defendant to a term to run concurrent to his current sentence in
another matter. Defendant rejected the State's plea offer and the
trial proceeded.
The jury returned a verdict finding defendant guilty of the
charge related to Officer Stewart. However, the jury failed to
reach a verdict on the charge related to Officer Blow, and the
trial court declared a mistrial as to that charge. The trial court
sentenced defendant to 150 days in the North Carolina Department of
Correction to run consecutive to his other sentence he was serving.
In his first assignment of error, defendant contends that the
trial court erroneously denied his motion to dismiss the assault
charge because there was insufficient evidence to prove that he
intentionally kicked Officer Stewart. When reviewing a trial
court's denial of a motion to dismiss due to insufficient evidence,we view “the evidence in the light most favorable to the State,
giving the State the benefit of all reasonable inferences.” State
v. Morgan, 359 N.C. 131, 161, 604 S.E.2d 886, 904 (2004), cert.
denied, 546 U.S. 830, 163 L. Ed. 2d 79 (2005). If we find that
“substantial evidence exists to support each essential element of
the crime charged and that defendant was the perpetrator, it is
proper for the trial court to [have denied] the motion.” Id.
Contradictions and discrepancies in the evidence are to be
disregarded and left for resolution by a jury. State v. Powell,
299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).
Assault has been defined by our Supreme Court as
an overt act or attempt, or the unequivocal
appearance of an attempt, with force and
violence, to do some immediate physical injury
to the person of another, which show of force
or menace of violence must be sufficient to
put a [person] of reasonable firmness in fear
of immediate bodily harm.
State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967)
(citations and quotation omitted). The intent element of the crime
of assault "may be implied from culpable or criminal negligence ...
if the injury or apprehension thereof is the direct result of
intentional acts done under circumstances showing a reckless
disregard for the safety of others and a willingness to inflict
injury." State v. Coffey, 43 N.C. App. 541, 543, 259 S.E.2d 356,
357 (1979) (citations omitted).
The State's evidence showed that defendant unlawfully and
repeatedly refused to comply with the orders of the correctional
officers and that while defendant struggled to resist beinghandcuffed and subdued he kicked Officer Stewart causing the
handcuffs to strike her. Based upon this evidence, a jury could
reasonably find that defendant acted intentionally in kicking
Officer Stewart and that defendant committed the offense of
assault. Accordingly, this assignment of error is overruled.
Defendant's remaining assignment of error is that the trial
court abused its discretion in ordering that his sentence run
consecutively to the sentences he is currently serving. We have
held that “[w]here it can be reasonably inferred the sentence
imposed on a defendant was based, even in part, on the defendant's
insistence on a jury trial, the defendant is entitled to a new
sentencing hearing.” State v. Peterson, 154 N.C. App. 515, 517,
571 S.E.2d 883, 885 (2002).
Here, defendant asserts that the trial court imposed a
consecutive sentence to punish defendant for invoking his right to
a jury trial. In support of his argument, defendant cites only to
the trial court's knowledge that defendant had rejected a plea
offer for a concurrent sentence. Defendant describes no other
facts or circumstances, nor does he cite to any evidence in the
record or statements in the transcript from which an inference may
be drawn that the trial court improperly considered defendant's
exercise of his right to a jury trial. Furthermore, our review of
the record reveals that the trial court made no comments of any
kind regarding defendant's decision to reject the plea offer either
at the time the State announced the rejected offer or at the time
that the trial court sentenced defendant. Consequently, weconclude that the defendant's assignment of error is wholly without
merit and it is overruled.
No error.
Chief Judge MARTIN and Judge JACKSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***