Opinion
COA21-190
02-01-2022
STATE OF NORTH CAROLINA, v. TRAVIS CHRISTOPHER HAHN, Defendant.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Patrick S. Wooten, for the State. Yoder Law PLLC, by Jason Christopher Yoder, for Defendant-Appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Heard in the Court of Appeals 2 November 2021.
Appeal by Defendant from judgment entered 16 January 2020 by Judge Peter B. Knight in Buncombe County No. 19 CRS 85718-20 Superior Court.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Patrick S. Wooten, for the State.
Yoder Law PLLC, by Jason Christopher Yoder, for Defendant-Appellant.
WOOD, Judge.
¶ 1 Defendant Christopher Hahn ("Defendant") appeals from his convictions for assault on a government official, malicious conduct by a prisoner, and resisting a public officer. On appeal, Defendant contends the trial court erred by denying his motion to dismiss all charges and by sentencing Defendant for the resisting, delaying, or obstructing a public officer offense. After careful review of the record and applicable law, we hold Defendant received a fair trial, free from error.
I. Factual and Procedural Background
¶ 2 Asheville Police Department ("APD") Sergeant Rick Tullis ("Sergeant Tullis") has been employed by the APD since 2012. In June 2019, Sergeant Tullis was employed by Manicomio Pizza ("the restaurant"), "as a secondary employment opportunity to provide security for the establishment." Sergeant Tullis testified that local establishments "will employ officers in their off-duty time to provide security . . . for various reasons; to have law enforcement powers, powers of arrest . . . ." While officers are "working secondary," they are "still a sworn law enforcement officer."
¶ 3 The restaurant is located on Biltmore Avenue in Asheville, North Carolina. Biltmore Avenue is within Asheville's downtown district and is "very congested." There are many businesses, restaurants, stores, and a couple of hotels on that street; and, therefore, much pedestrian traffic. The restaurant does not have any no trespassing signs in front of the restaurant, and the restaurant does not own the sidewalk. Sergeant Tullis testified that
They don't own the sidewalk. They have a curtilage that extends to the sidewalk for the purpose - like I said, the owner is not Manicomio Pizza per se, but other businesses that serve alcohol on the sidewalk where it would be otherwise prohibited where patrons sit along the sidewalk and consume their beverages.
The businesses with a curtilage extending to the public sidewalk do not pay for the use of or the upkeep of the sidewalk.
¶ 4 On June 1, 2019, Sergeant Tullis was working off-duty at the restaurant. Approximately an hour and a half after his shift started, Sergeant Tullis observed Defendant standing on the sidewalk in front of the pizzeria. Defendant approached Sergeant Tullis and "began a conversation with [him]. And it wasn't really directed at" Sergeant Tullis. "It was more he was just having a conversation." Defendant was speaking to himself. Defendant had long hair and a beard and was homeless. Defendant did not enter the restaurant but remained on the public sidewalk.
¶ 5 Sergeant Tullis began his shift during the daylight, and when the sun began to set, he returned to his car to put his sunglasses away. At that time, Defendant "began following [Sergeant Tullis] across the crosswalk, and at one point said you better stay in the crosswalk or I will kick your ass." When Sergeant Tullis asked Defendant if Defendant was speaking to him, Defendant "replied he was not, he was talking to somebody else."
¶ 6 When Sergeant Tullis returned to the restaurant, Defendant stood outside on the sidewalk and "began becoming more and more loud and there were curse words involved." Sergeant Tullis asked Defendant to "move along," and Defendant walked about a block away. A minute or two later, Defendant returned to the sidewalk outside the restaurant, and started looking through the window. Sergeant Tullis asked Defendant a second time to "move along."
¶ 7 Defendant walked north for approximately a block before returning "back to the front of the restaurant and began standing around." Sergeant Tullis "told him yet one more time that he needed to leave the area, that he was causing a disruption, and if not he would be arrested." Defendant walked ten to twelve feet away and "began uttering . . . and mumbling and talking and cursing." At no point did Defendant enter the restaurant.
¶ 8 Shortly after Defendant walked away, Sergeant Tullis "called for assistance from dispatch to have some officers meet [him] regarding" Defendant. When law enforcement officers arrived, Defendant moved further north on Biltmore Avenue. Law enforcement officers, including Sergeant Tullis, approached Defendant, "informed him that he was being placed under arrest" and handcuffed Defendant. While Defendant was being arrested, "he kicked [Sergeant Tullis] in the shin."Defendant also spat at Sergeant Tullis. At the time of Defendant's arrest, he did not possess any weapons or illegal substances and did not appear to be under the influence of drugs or alcohol.
Sergeant Tullis testified this was a "moderate kick," that occurred when Defendant was "surrounded by three officers who are kind of pushing him up against a car."
¶ 9 On November 4, 2019, Defendant was indicted for one count of second-degree trespass; one count of resisting a public officer; two counts of assault on a government official/employee; and one count of malicious conduct by a prisoner. Defendant was deemed competent to proceed to trial and was tried by jury in January 2020. At the close of the State's evidence, Defendant moved to dismiss all charges. His motion was denied. Defendant presented no evidence and renewed his motion to dismiss after the close of all evidence. Defendant was acquitted of second-degree trespass and one count of assault on a government official. The jury convicted Defendant of one count of assault on a government official; malicious conduct by a prisoner; and resisting a public officer. Thereafter, the trial court consolidated the judgments and sentenced Defendant to a minimum of sixteen months and a maximum of twenty-nine months incarceration. Defendant timely gave oral notice of appeal in open court.
II. Discussion
¶ 10 Defendant raises several issues on appeal; each will be addressed in turn.
A. Motion to Dismiss
¶ 11 Defendant contends the trial court erred by denying his motion to dismiss the following offenses: (1) resisting an officer; (2) assault on a government official; and (3) malicious conduct by a prisoner. We disagree.
¶ 12 We review "a trial court's denial of a motion to dismiss de novo." State v. Nickens, 262 N.C.App. 353, 358, 821 S.E.2d 864, 870 (2018) (citing State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007)). In reviewing a trial court's denial of a motion to dismiss for insufficient evidence, this Court determines "whether substantial evidence exists as to each essential element of the offense charged and of the defendant being the perpetrator of that offense." State v. Noel, 202 N.C.App. 715, 717, 690 S.E.2d 10, 13 (2010) (quoting State v. Glover, 156 N.C.App. 139, 142, 575 S.E.2d 835, 837 (2003) (citation omitted)). Substantial evidence is "relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Glover, 156 N.C.App. 139, 142, 575 S.E.2d 835, 837 (2003) (quoting State v. Barden, 356 N.C. 316, 351, 572 S.E.2d 108, 131 (2002)).
¶ 13 Whether substantial evidence was presented "is a question of law for the trial court." Id. In determining whether substantial evidence existed, the evidence is considered "in the light most favorable to the State, take[n] . . . to be true . . . ." Id. (quoting State v. Martin, 309 N.C. 465, 480, 308 S.E.2d 277, 286 (1983)). The State is entitled to every reasonable inference to be drawn therefrom. See Noel, 202 N.C.App. at 718, 690 S.E.2d at 13 (citation omitted); Glover, 165 N.C.App. at 142, 575 S.E.2d at 837 (citation omitted); State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994) (citation omitted).
1. Resisting, Obstructing, or Delaying a Public Officer
¶ 14 Defendant first contends the trial court erred by denying his motion to dismiss the charge of resisting, obstructing, or delaying a public officer because he was resisting an unlawful arrest. We disagree.
¶ 15 Pursuant to N.C. Gen. Stat. § 14-223, it is a misdemeanor to "willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office . . . ." N.C. Gen. Stat. § 14-223 (2020). Defendant contends the trial court erred by denying his motion to dismiss, as Sergeant Tullis "lacked probable cause or even reasonable suspicion" to arrest Defendant for trespassing.
The offense of resisting arrest, both at common law and under the statute, [ N.C. Gen. Stat. §] 14-223, presupposes a lawful arrest. It is axiomatic that every person has the right to resist an unlawful arrest. In such case the person attempting the arrest stands in the position of a wrongdoer and may be resisted by the use of force, as in self-defense.State v. Mobley, 240 N.C. 476, 478-49, 83 S.E.2d 100, 102 (1954) (citations omitted); see also State v. Smith, 225 N.C.App. 471, 476, 736 S.E.2d 847, 851 (2013) ("The offense of resisting arrest, both at common law and under the statute [ N.C. Gen. Stat. §] 14-223, presupposes a lawful arrest." (quoting State v. Jefferies, 17 N.C.App. 195, 198, 193 S.E.2d 388, 391 (1972) (citation omitted)). Accordingly, our first determination is whether law enforcement lawfully effectuated Defendant's arrest for second-degree trespass.
¶ 16 "This brings us to the pivotal question presented by this appeal: Was the arrest of the defendant lawful or unlawful? Necessarily, the answer is dependent on whether the officer[] had the right to arrest the defendant without a warrant." Mobley, 240 N.C. at 479, 83 S.E.2d at 102. As a "general rule[, ] . . . no man should be taken into custody of the law without the sanction or a warrant or other judicial authority." Id.; see also Roberts v. Swain, 126 N.C.App. 712, 723, 487 S.E.2d 760, 768 (1997) ("Every person has the right to resist an unlawful arrest." (citation omitted)). However, "the processes of the early English common law . . . worked out a number of exceptions." Mobley, 240 N.C. at 479, 83 S.E.2d at 102.
¶ 17 In accordance with N.C. Gen. Stat. § 15A-401(b)(1), "[a]n 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." N.C. Gen. Stat. § 15A-401(b)(1) (2020); see also State v. Zuniga, 312 N.C. 251, 259, 322 S.E.2d 140, 145 (1984) ("To be lawful, a warrantless arrest must be supported by probable cause." (citations omitted)).
A warrantless arrest is based upon probable cause if the facts and circumstances known to the arresting officer warrant a prudent man in believing that a felony has been committed and the person to be arrested is the felon. McCray v. Illinois, 386 U.S. 300, 18 L.Ed.2d 62, 87 S.Ct. 1056 (1967). "Probable cause for an arrest has been defined to be a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty. . . . To establish probable cause the evidence need not amount to proof of guilt, or even to prima facie evidence of guilt, but it must be such as would actuate a reasonable man acting in good faith." 5 Am. Jur. 2d, Arrest § 44 (1962); State v. Harris, 279 N.C. 307, 182 S.E.2d 364 (1971).State v. Shore, 285 N.C. 328, 335, 204 S.E.2d 682, 686-87 (1974); see also Zuniga, 312 N.C. at 259, 322 S.E.2d at 145 (citation omitted). "It is well established that the State must prove that the arrest underlying a charge for resisting arrest was lawful beyond a reasonable doubt." Smith, 225 N.C.App. at 476, 736 S.E.2d at 851.
¶ 18 In the present case, Sergeant Tullis and fellow law enforcement officers arrested Defendant for second-degree trespass. Section 14-159.13 provides
(a) A person commits the offense of second[-]degree trespass if, without authorization, he enters or remains on premises of another:
(1) After he has been notified not to enter or remain there by the owner, by a person in charge of the premises, by a lawful occupant, or by another authorized person; or
(2) That are posted, in a manner reasonably likely to come to the attention of intruders, with notice not to enter the premises.
N.C. Gen. Stat. § 14-159.13(a) (2020). The parties do not dispute that the restaurant did not have any trespassing signs. Accordingly, Defendant could only be arrested for second-degree trespass if he "enter[ed] or remain[ed] on [the] premises of another." See N.C. Gen. Stat. § 14-159.13(a)(1).
¶ 19 While courts of this State have permitted the criminal prosecution of defendants who trespass in establishments open to the public, our Court has not addressed whether an individual can be prosecuted for trespassing in a public space such as a city sidewalk. See, e.g., State v. Winston, 45 N.C.App. 99, 101, 262 S.E.2d 331, 333 (1980) (reversing unlawful entering charge where the defendant entered a courthouse when it was open to the public and did not commit acts, after entry, to render the implied consent void). We find the reasoning contained in our precedent regarding a defendant's trespass in an establishment open to the public binding. When the premises in question "are open to the public, 'the occupants of those premises have the implied consent of the owner/lessee/possessor to be on the premises, and that consent can be revoked only upon some showing the occupants have committed acts sufficient to render the implied consent void.'" In re S.M.S., 196 N.C.App. 170, 172, 675 S.E.2d 44, 45-46 (2009) (quoting State v. Marcoplos, 154 N.C.App. 581, 582-83, 572 S.E.2d 820, 821-22 (2002), aff'd, 357 N.C. 245, 580 S.E.2d 691 (2003)).
¶ 20 Here, Defendant remained on the public sidewalk and did not enter the restaurant. However, it is undisputed that Defendant was told numerous times by Sergeant Tullis, who was wearing his APD uniform, to "move along." Despite being warned that if he did not stop disturbing the restaurant's patrons he would be arrested, Defendant continued to return to the spot outside the restaurant and began looking inside the restaurant. Sergeant Tullis testified he was "authorized to tell people when they need to move it along" while working off-duty, and that he had permission from the owner of the restaurant to "trespass someone." When Defendant repeatedly returned to the restaurant, he called law enforcement for assistance to trespass Defendant from the premises. Accordingly, we hold there was sufficient probable cause to effectuate Defendant's arrest, where the evidence demonstrated Defendant "committed acts sufficient to render the implied consent [for an individual to occupy a public space] void Ab initio." State v. Winston, 45 N.C.App. 99, 101, 262 S.E.2d 331, 333 (1980) (reversing an unlawful entry charge because the evidence did not support that the defendant "committed acts [after entry] sufficient to render the implied consent void").
2. Assault on a Government Official
¶ 21 Next, Defendant contends the trial court erred by denying his motion to dismiss the charge of assault on a government official because Defendant's "resistance to an illegal arrest was reasonable and therefore not an assault." We disagree.
¶ 22 Under N.C. Gen. Stat. § 14-33, it is a Class A1 misdemeanor if any person commits any assault, and "in the course of the assault, assault and battery, or affray, he or she: . . . [a]ssaults an officer or employee of the State, . . . when the officer or employee is discharging or attempting to discharge his official duties." N.C. Gen. Stat. § 14-33(c)(4) (2020); see also State v. Neal, 202 N.C.App. 715, 718, 690 S.E.2d 10, 13 (2010) (citing State v. Crouse, 169 N.C.App. 382, 387, 610 S.E.2d 454, 458 (2005); N.C. Gen. Stat. § 14-33(c)(4) (2007)).
¶ 23 "The offense of resisting arrest . . . presupposes a lawful arrest." Mobley, 240 N.C. at 478-49, 83 S.E.2d at 102. "Likewise, the offense under [ N.C. Gen. Stat. §] 14-33(c)(4) of assaulting a public officer when such officer is discharging or attempting to discharge a duty of his office presupposes lawful conduct of the public officer." Jefferies, 17 N.C.App. at 198, 193 S.E.2d at 391. An individual resisting an unlawful arrest has the right to resist "by the use of force, as in-self-defense." Mobley, 240 N.C. at 478-79, 83 S.E.2d at 102; Jefferies, 17 N.C.App. at 198, 193 S.E.2d at 391; Smith 225 N.C.App. at 476-77, 736 S.E.2d at 851 (citation omitted); State v. Lewis, 27 N.C.App. 426, 433, 219 S.E.2d 554, 559 (1975). ¶ 24 Here, the officers lawfully arrested Defendant for second-degree trespass.
Therefore, Defendant did not have the right to resist a lawful arrest or exercise his right to self-defense against a lawful arrest. Accordingly, we hold the trial court did not err in denying Defendant's motion to dismiss the offense of assault on a government official, where the evidence tended to show Defendant kicked Sergeant Tullis in the shin during the discharge of his official duty.
3. Malicious Conduct by a Prisoner
¶ 25 Defendant further contends the trial court erred by denying his motion to dismiss the charge of malicious conduct by a prisoner, because "Officer Tullis was not discharging any duties while making an illegal arrest for trespassing."
¶ 26 Section 14-258.4(a) provides, "[a]ny prisoner who knowingly and willfully throws, emits, or causes to be used as a projectile, any bodily fluids, excrement, or unknown substance at an employee, while the employee is in the performance of the employee's duties, is guilty of a Class F felony." N.C. Gen. Stat. § 14-258.4(a) (2020).
¶ 27 Here, Sergeant Tullis testified that local establishments employed APD officers "in their off-duty time . . . to have law enforcement powers, powers of arrest." While working off-duty, Sergeant Tullis was "still a law enforcement officer." There is no dispute that Defendant spat at Sergeant Tullis during his arrest. Accordingly, we hold the trial court did not err by denying Defendant's motion to dismiss the charge of malicious conduct by a prisoner.
B. Sentencing
¶ 28 Defendant next argues that the trial court "erred in sentencing [him] to resisting arrest and assault on [Sergeant] Tullis because in this case 'no line of demarcation' . . . could be drawn." We disagree.
¶ 29 "[T]he charge of resisting an officer . . . and the charge of assaulting a public officer . . . are separate and distinct offenses . . . ." State v. Kirby, 15 N.C.App. 480, 489, 190 S.E.2d 320, 326 (1972) (citation omitted); see also State v. Hardy, 298 N.C. 191, 196-98, 257 S.E.2d 426, 430-31 (1979) (citation omitted). However, there is a "possibility that the facts in a given case might constitute a violation of both statutes" making the offenses unlawful. Hardy, 298 N.C. at 198, 257 S.E.2d at 431. Where the facts of a particular case support a violation of both Section 14-233 (resisting, delaying, or obstructing a public officer) and Section 14-33 (assault on a government official), a "defendant . . . [cannot] be punished twice for the same conduct." Id. (citing State v. Summrell, 282 N.C. 157, 192 S.E.2d 569 (1972), overruled in part on other grounds, State v. Barnes, 324 N.C. 539, 380 S.E.2d 118 (1989)).
¶ 30 In Summrell, the question before the court was whether the "assaults were the means by which the officer was resisted." 282 N.C. at 173, 192 S.E.2d at 579 (citation and internal quotation marks omitted). Looking at the documents charging the defendant with both assaulting an officer and resisting an officer, our Supreme Court noted that "at the conclusion of the evidence, it had become quite clear that no line of demarcation between [the] defendant's resistance of arrest and his assaults upon the officer could be drawn." Id.
¶ 31 The case presently before us, however, is distinguishable. Here, the basis for Defendant's resisting arrest was "fighting and spitting." However, the basis for Defendant's charge of assault on a government official was "kicking [the] officer in the leg." One law enforcement officer described Defendant's resistance as being separate and distinct from his kick to Sergeant Tullis:
We were trying to get [Defendant], as we grabbed a hole [sic] of him this is when he became resistive. As we tried to turn him to a vehicle in order to brace him for his safety and ours, he reacted by kicking Sergeant Tullis in the leg as we were turning him to brace him or stabilize him on a nearby vehicle based on his combative reaction to us placing him under arrest.
. . .
[H]e was resisting us and that's a pretty intense time when
you have somebody actively resisting.
The body camera footage of Defendant's arrest showed that he verbally protested by repeatedly stating, "Whoa," and resisted by rapidly shaking his hands and moving his hands up and down behind his back while the officer was handcuffing him. Defendant kicked Sergeant Tullis in the shin after the officer had him in handcuffs. Accordingly, the "assault" of kicking the officer was not "the means by which the officer[s] [were] resisted." Summrell, 282 N.C. at 173, 192 S.E.2d at 579 (citing State v. Midyette, 270 N.C. 229, 234, 154 S.E.2d 66, 70 (1967), overruled by State v. Gardner, 315 N.C. 444, 340 S.E.2d 701 (1986)).
III. Conclusion
¶ 32 After careful review of the record and applicable law, we hold Defendant received a fair trial, free from error.
NO ERROR.
Judges DILLON and GORE concur.
Report per Rule 30(e).