Opinion
No. COA11–1562.
2012-08-7
STATE of North Carolina v. Anthony Eric COGDELL, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Amanda P. Little, for the State. Brock, Payne & Meece, P.A., by C. Scott Holmes, for defendant-appellant.
Appeal by defendant from judgments entered 14 April 2011 by Judge Douglas B. Sasser in Johnston County Superior Court. Heard in the Court of Appeals 23 May 2012. Attorney General Roy Cooper, by Assistant Attorney General Amanda P. Little, for the State. Brock, Payne & Meece, P.A., by C. Scott Holmes, for defendant-appellant.
GEER, Judge.
Defendant Anthony Eric Cogdell appeals from judgments entered upon jury verdicts finding him guilty of two counts of malicious conduct by a prisoner in violation of N.C. Gen.Stat. § 14–258.4 (2011) and of being a habitual felon. On appeal, defendant primarily focuses on the habitual felon phase of his trial. Because we hold that the State presented sufficient evidence of the requisite three prior felonies and because the trial court's instructions, when viewed in their entirety, were adequate, defendant has not demonstrated any error in the habitual felon phase.
Facts
The State's evidence at trial tended to show the following facts. On 22 May 2009, defendant, an inmate at the Johnston County Correctional Institution, violated prison regulations by refusing to make his nametag visible when requested to do so by the prison chaplain. After the chaplain twice asked defendant to turn his tag around, defendant said, “ ‘[Y]ou're Satan’ “ and told the chaplain “ ‘to keep [his] damn mouth shut.’ “ The chaplain called for assistance, and Sergeant David Scott responded. Sergeant Scott tried to calm defendant down, but instead defendant started cursing at Sergeant Scott.
When Sergeant Scott then instructed defendant to put his hands behind his back, defendant refused and started struggling with him. The chaplain called for additional assistance, and Officer Robert Price and Sergeant David Moore responded. The three officers were able to handcuff defendant. At that point, defendant was using profanity, jumping up and down, and continuing to struggle with the officers. As defendant was being escorted from the area, he “bumped up” against the chaplain and said, “ ‘I'll kick your ass.’ “
While defendant was being escorted to the Segregation Unit, a part of the prison for those with disciplinary problems, he continued to use profanity while jumping up and down and kicking in order to get away from Sergeant Scott and Sergeant Moore. Sergeant Moore then did a leg sweep of defendant, causing defendant and the two Sergeants to fall to the ground. At that point, defendant attempted to bite Sergeant Scott. In response, Officer Price sprayed defendant with pepper spray.
Upon arriving at the Segregation Unit, Officers John Sifuentes and Christopher Copeland (who were on duty in the Segregation Unit) helped Sergeants Scott and Moore take defendant to a shower to wash off the pepper spray. Defendant continued to struggle and lunged at Sergeant Scott, spitting at him. Defendant also looked directly at Officer Sifuentes and then spit at him, with the spit striking Officer Sifuentes on the side of his face and running into his eye.
Because defendant would not let the officers close the shower door, Sergeant Moore pepper sprayed defendant again. After the door was closed and defendant was secured, the officers walked away to allow him to shower. Defendant started screaming, and Officer Copeland returned to investigate. When Officer Copeland asked what was going on, defendant said, using profanity, that he needed a towel. Defendant then moved to the door of the shower and spit in Officer Copeland's face. The spit landed in Officer Copeland's eyes and mouth and on his chest.
On 3 August 2009, defendant was indicted for three counts of malicious conduct by a prisoner in violation of N.C. Gen.Stat. § 14–258.4—one count each for spitting on Officer Sifuentes, Officer Copeland, and Sergeant Scott. Defendant was also indicted for being a habitual felon. At trial, the jury found defendant guilty of malicious conduct by a prisoner with respect to Officers Sifuentes and Copeland, but found defendant not guilty of malicious conduct with respect to Sergeant Scott.
The trial court then commenced the habitual felon phase of defendant's trial. The State offered into evidence certified copies of three judgments: (1) a conviction of malicious conduct by a prisoner (judgment dated 9 March 2004); (2) a conviction of felony possession of cocaine (judgment dated 10 May 2005); and (3) a conviction of malicious conduct by a prisoner (judgment dated 6 May 2008). The 9 March 2004 judgment identified the defendant as “Cogdell, Anthony,” while the other two judgments identified the defendant as “Cogdell, Anthony Eric.” The jury found defendant guilty of being a habitual felon.
At sentencing, the trial court found the existence of a mitigating factor. On one judgment, the factor was identified as “[p]ast mental health issues,” while on the second judgment, the factor was identified as “[p]ast mental health history.” Based on the mitigating factor and the lack of any aggravating factors, the court entered two concurrent mitigated range sentences of 100 to 129 months imprisonment each. Defendant timely appealed to this Court.
I
Defendant contends the trial court erred by denying his motion to dismiss the charges of malicious conduct by a prisoner. When considering a motion to dismiss, the trial court must determine whether the State presented substantial evidence of each element of the crime and that defendant was the perpetrator. State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255 (2002). “ ‘Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ “ State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270 (2001) (quoting State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984)). The evidence must be viewed “in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994).
The elements of the crime of malicious conduct by a prisoner in violation of N.C. Gen.Stat. § 14–258.4 are:
“(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 and willfully; and
(5) the defendant was in the custody of ... any law enforcement officer....”
State v. Noel, 202 N.C.App. 715, 718, 690 S.E.2d 10, 13 (quoting State v. Robertson, 161 N.C.App. 288, 292–93, 587 S.E.2d 902, 905 (2003)), disc. review denied,364 N.C. 246, 699 S.E.2d 642 (2010). Defendant challenges only the sufficiency of the evidence that he acted knowingly and willfully.
“Whether a defendant acted knowingly and willfully may be inferred from the circumstances. ‘Knowledge is a mental state and may be proved by the conduct and statements of the defendant, by statements made to him by others, by evidence of reputation which it may be inferred had come to his attention, and by circumstantial evidence from which an inference of knowledge might reasonably be drawn.’ “ Id. at 721–22, 690 S.E.2d at 15–16 (internal citation omitted) (quoting State v. Boone, 310 N.C. 284, 294–95, 311 S.E.2d 552, 559 (1984)). See also State v. Crouse, 169 N.C.App. 382, 389, 610 S.E.2d 454, 459 (2005) (“Likewise, the willfulness of a defendant's conduct may be inferred from the circumstances surrounding the crime.”).
Here, defendant, over an extended period, directed profanity towards the prison officials, threatened the chaplain, resisted being restrained by jumping and kicking, tried to bite one officer, struggled with the officers, and blocked efforts to put him in a shower. The State's evidence indicated that when defendant got to the Segregation Unit, he lunged at Sergeant Scott and spit at him. Defendant then looked directly at Officer Sifuentes before spitting at him. With respect to Officer Copeland, defendant screamed until the officer returned to the shower, then defendant went up to the door and spit at Officer Copeland's face. A juror could reasonably conclude from these circumstances that defendant's spitting at the three officers was knowing and willful. See Noel, 202 N.C.App. at 721–22, 690 S.E.2d at 15–16 (holding that defendant's belligerent actions and swearing at officer directly before he spit on him were sufficient evidence to find that defendant “acted knowingly and willingly”).
Nevertheless, defendant argues that “given his odd and irrational behavior,” this evidence was insufficient to show his actions were voluntary. Defendant's suggestion that his actions were not knowing or willful because of mental illness was an issue for the jury to decide and not a basis for granting the motion to dismiss.
II
Defendant next contends the trial court erred by denying his motion to dismiss during the habitual felon phase of the trial. Defendant argues that the State failed to present evidence of three prior felony convictions because one of the judgments identified the defendant as only Anthony Cogdell rather than as Anthony Eric Cogdell—the name used in the other two judgments and in the habitual felon indictment in this case.
N.C. Gen.Stat. § 14–7.4 (2011) allows prior judgments to be “prima facie evidence that the defendant named therein is the same as the defendant before the court, and shall be prima facie evidence of the facts set out therein” as long as the document “bear[s] the same name as that by which the defendant is charged.” In applying this statute, this Court has held that “ ‘Martin Petty’ “ and “ ‘Martin Bernard Petty’ “ are the same name for purposes of N.C. Gen.Stat. § 14–7.4. State v. Petty, 100 N.C.App. 465, 470, 397 S.E .2d 337, 341 (1990). See also State v. Hodge, 112 N.C.App. 462, 469, 436 S.E.2d 251, 256 (1993) (holding that “ ‘Michael Hodge’ “ and “ ‘William Michael Hodge’ “ were the same name for purposes of N.C. Gen.Stat. § 14–7.4). Based on Petty and Hodge, the trial court properly denied defendant's motion to dismiss during the habitual felon phase.
III
Lastly, defendant contends that the trial court erred during its habitual felon jury instructions. Defendant did not object to the instructions and, therefore, asks that we apply plain error review. Our Supreme Court has recently held:
We now reaffirm our holding in Odom and clarify how the plain error standard of review applies on appeal to unpreserved instructional or evidentiary error. For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affect[s] the fairness, integrity or public reputation of judicial proceedings[.]
State v. Lawrence, ––– N.C. ––––, ––––, 723 S.E.2d 326, 334 (2012) (internal citations and quotation marks omitted).
Defendant points to the following portion of the trial court's instruction:
I instruct you that the State has the burden of proving the identity of the defendant as the perpetrator of the crime charged beyond a reasonable doubt. This means that you, the jury, must be satisfied beyond a reasonable doubt that the defendant was the perpetrator of the crime charged before you may return a verdict of guilty.
Defendant argues that this instruction was in error because being a habitual felon is not a crime, but rather is a status. According to defendant, the jury “could [have] interpreted this instruction to mean if they found that he committed the crime in which they returned a guilty verdict, then they could find him to have attained habitual felon status.”
It is, however, well established that
“[t] he charge of the court must be read as a whole ..., in the same connected way that the judge is supposed to have intended it and the jury to have considered it.... It will be construed contextually, and isolated portions will not be held prejudicial when the charge as [a] whole is correct. If the charge presents the law fairly and clearly to the jury, the fact that some expressions, standing alone, might be considered erroneous will afford no grounds for reversal.”
State v. Hooks, 353 N.C. 629, 634, 548 S.E.2d 501, 505 (2001) (quoting State v. Rich, 351 N.C. 386, 393–94, 527 S.E.2d 299, 303 (2000)).
Here, the trial court repeatedly explained to the jury the nature of the habitual felon phase of the trial. At the beginning of that phase, the court instructed that “[b]eing an habitual felon is not a crime itself, but is a status, the obtaining of which subjects a person convicted of a crime to an increased punishment for this crime.” The trial court noted that the jury had just found defendant guilty of two counts of malicious conduct by a prisoner, but explained that “[t]he second phase of this trial is for the purpose of your determination of whether or not the defendant is an habitual felon, which the State must prove beyond a reasonable doubt .” The court reiterated: “The burden of proof in the second phase of trial remains with the State of North Carolina to prove to you beyond a reasonable doubt that the defendant has attained the status of an habitual felon.”
After the presentation of evidence, the trial court instructed the jury on the habitual felon charge. Immediately after the challenged instruction—regarding defendant being “the perpetrator of the crime”—the court continued by instructing that “[t]he defendant has been charged with being an habitual felon. An habitual felon is an individual who has been convicted of or pled guilty to felony offenses on at least three separate occasions since July 6, 1967.” The court then explained that the State was required to prove beyond a reasonable doubt that defendant had pled guilty on 9 March 2004 to the felony of malicious conduct by a prisoner, had pled guilty on 10 May 2005 to the felony of possession of cocaine, and had pled guilty on 6 May 2008 to the felony of malicious conduct by a prisoner.
The court instructed that if the jury found from the evidence beyond a reasonable doubt that defendant had pled guilty to each of those felonies, then “it would be your duty to return a verdict of guilty.” On the other hand, the court instructed, “[i]f you do not so find or have a reasonable doubt as to one or more of those things, it would be your duty to return a verdict of not guilty.”
When these instructions are read as a whole, we believe the trial court adequately instructed the jury regarding the habitual felon phase of the trial. Moreover, defendant has not demonstrated that any error, if it existed, was sufficiently prejudicial given the State's evidence of certified copies of defendant's three previous felony convictions. Although defendant again notes the omission of his middle name from the 9 March 2004 judgment, that judgment had the same birthdate as the other two judgments that did use defendant's middle name. Based on the evidence, we cannot conclude that the trial court's reference to a “crime” had a probable impact on the verdict.
No error. Judges ROBERT C. HUNTER and BEASLEY concur.
Report per Rule 30(e).