Opinion
No. COA11–1560.
2012-06-5
STATE of North Carolina v. Kenneth MILLS, Defendant.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Anne Goco Kirby, for the State of North Carolina. Danielle Blass, for defendant-appellant.
Appeal by defendant from judgment entered on or about 28 June 2011 by Judge Paul L. Jones in Superior Court, Lenoir County. Heard in the Court of Appeals 25 April 2012. Attorney General Roy A. Cooper, III, by Assistant Attorney General Anne Goco Kirby, for the State of North Carolina. Danielle Blass, for defendant-appellant.
STROUD, Judge.
Defendant appeals his conviction for resisting a public officer. For the following reasons, we find no error.
I. Background
The State's evidence tended to show that on 22 June 2010, Sergeant Robert Daugherty of the Lenoir County Sheriff's Office and Officer John Hewitt of the City of Kinston Police Department went dressed in uniform to an apartment where defendant “stayed” to serve defendant with criminal papers for arrest and to serve Ms. Carolyn King with arrest orders. Sergeant Daugherty and Officer Hewitt knocked on the door of the apartment, and defendant opened the door. Sergeant Daughtery asked defendant about Ms. King, and defendant denied that she was there. Sergeant Daughtery again asked about Ms. King and defendant told Sergeant Daughtery he was alone. After stepping into the apartment, Sergeant Daughtery saw Ms. King hiding and questioned defendant about his earlier responses. Defendant became “irate” and began “cursing [and] carrying on [.]”
Defendant was arrested and charged with resisting a public officer. Defendant was tried by a jury and found guilty of resisting, obstructing, or delaying a public officer. The trial court sentenced defendant to 30 days in the custody of the sheriff of Lenoir County. Defendant appeals.
II. Jury Instructions
While instructing the jury, the trial court stated,
Now, I charge you 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 North Carolina Sheriff's Deputy, in this case, Robert Daugherty, is a public officer. Second, 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. At the time that the North Carolina Sheriff's Deputy Robert Daugherty was in the process of serving an order for arrest of Carolyn King for child support. That would be considered a duty of his office. Fourth, that the Defendant resisted, delayed, or obstructed the victim in attempting to discharge a duty of his office. And fifth, that the Defendant acted willfully and unlawfully, that is, intentionally and without justification or excuse.
(Emphasis added).
Defendant first contends that he “was denied a fair trial because the trial court improperly expressed its opinion of the case with regard to two elements of resisting a public officer[.]” (Original in all caps.) Defendant concedes that he did not object at trial and argues that the trial court's improper statements were plain error.
The plain error rule is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where the error is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.
Plain error is error so fundamental that it tilted the scales and caused the jury to reach its verdict convicting the defendant.
State v. Stokes, ––– N.C.App. ––––, ––––, 718 S.E.2d 174, 178–79 (2011) (citations, quotation marks, and brackets omitted).
Here, Sergeant Daughtery testified that at the time of the incident he was a deputy with Lenoir County Sheriff's Office and that he was at the apartment to serve arrest orders on Ms. King. Defendant fails to direct our attention to any evidence to the contrary. Thus, even if the trial court's instructions were in error, we cannot say that any error on the part of the trial court “had a probable impact on the jury's finding that the defendant was guilty.” Id. at ––––, 718 S.E.2d at 178. This argument is overruled.
III. Motion to Dismiss
At the close of the State's case defendant's attorney made a motion to dismiss which the trial court subsequently denied. After presenting defendant's case and hearing the State's rebuttal, defendant's attorney failed to renew his motion to dismiss. Defendant contends that “the trial court erred in denying ... [his] motion to dismiss the charge of resisting a public officer for insufficiency of the evidence[.]” (Original in all caps.) However, “if a defendant fails to move to dismiss the action, or for judgment as in case of nonsuit, at the close of all the evidence, defendant may not challenge on appeal the sufficiency of the evidence to prove the crime charged.” N.C.R.App. P. 10(b)(3). As defendant is precluded from arguing the merits of his motion to dismiss on appeal, defendant contends that he “received ineffective assistance of counsel when his attorney failed to move to dismiss at the close of all of the evidence.” (Original in all caps.)
North Carolina has adopted the federal standard for ineffective assistance of counsel; this standard consists of a two-part test.
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.
State v. Brown, ––– N.C.App. ––––, ––––, 713 S.E.2d 246, 248 (2011) (citation, quotation marks, and ellipses omitted).
In ruling on a motion to dismiss the trial court must consider whether there is “substantial evidence of: (1) each essential element of the offense charged, and (2) of defendant's being the perpetrator of the charged offense.” State v. Johnson, 203 N.C.App. 718, ––––, 693 S.E.2d 145, 148 (2010) (citations and quotation marks omitted).
The elements of resisting, delaying, or obstructing an officer have been identified as follows:
(1) that the victim was a public officer;
(2) that the defendant knew or had reasonable grounds to believe that the victim was a public officer;
(3) that the victim was discharging or attempting to discharge a duty of his office;
(4) that the defendant resisted, delayed, or obstructed the victim in discharging or attempting to discharge a duty of his office; and
(5) that the defendant acted willfully and unlawfully, that is intentionally and without justification or excuse.
State v. Washington, 193 N.C.App. 670, 679, 668 S.E.2d 622, 628 (2008) (brackets omitted), disc. review denied and appeal dismissed, 363 N.C. 138, 674 S.E.2d 420 (2009).
Defendant specifically challenges the sufficiency of the evidence regarding elements 3, 4, and 5 arguing that “Sergeant Daughtery attempted to make an illegal arrest of Ms. King” and defendant did not act “intentionally and without justification or excuse' due to the alleged illegal arrest. Id. Here, Sergeant Daughtery testified that (1) he was a deputy with the Lenoir County Sheriff's Office at the time of the incident; (2) he identified himself as a law enforcement officer to defendant and was in uniform when he spoke to defendant; (3) he had gone to defendant's apartment to serve arrest orders on Ms. King; (4–5) defendant twice lied to Sergeant Daughtery about the whereabouts of Ms. King. Accordingly, the trial court did not err in denying defendant's motion to dismiss. See Johnson at ––––, 693 S.E.2d at 148;Washington, 193 N.C.App. at 679, 668 S.E.2d at 628;In re J.L.B.M., 176 N.C.App. 613, 625–26, 627 S.E.2d 239, 247 (2006) (affirming “the trial court's denial of the juvenile's motion to dismiss” stating: “the petition alleged that the juvenile resisted, delayed, and obstructed Officer Henderson by giving a false name at the time Officer Henderson was conducting an investigation. The trial court found that by insisting his name was ‘Oscar Lopez,’ the juvenile delayed Officer Henderson's investigation of the offenses of injury to real property and carrying a concealed weapon. The juvenile argues that since Officer Henderson's stop was invalid, the juvenile was within his right to give a false name. We disagree and hold that the invalid stop did not give the juvenile license to subsequently lie about his identity to Officer Henderson”); see also State v. Miller, 282 N.C. 633, 641, 194 S.E.2d 353, 358 (1973) (holding that a defendant was not excused for his subsequent criminal behavior even though police illegally entered the premises). As such, defendant cannot demonstrate that he was deprived of a fair trial. See Brown, –––N.C.App. at ––––, 713 S.E.2d at 248. Thus, this argument is overruled.
IV. Conclusion
For the foregoing reasons, we find no error.
NO ERROR. Judge HUNTER, ROBERT C. and ERVIN concur.
Report per Rule 30(e).