Opinion
No. COA03-331
Filed March 2, 2004 This case not for publication
Appeal by defendant from judgment entered 2 October 2002 by Judge Wade Barber in Orange County Superior Court. Heard in the Court of Appeals 27 January 2004.
Attorney General Roy Cooper, by Assistant Attorney General Richard L. Harrison, for the State. Osborn Tyndall, P.L.L.C., by J. Kirk Osborn and Amos Granger Tyndall, for defendant-appellant.
Orange County No. 01 CRS 001778
Derrick L. Hester ("defendant") appeals from a judgment entered after a jury found him guilty of possession of a weapon on educational property. The trial court imposed a three to four month suspended sentence, ordered unsupervised probation, and required him to pay a $2,000.00 fine. We find no error.
I. Background
Defendant is a licensed bondsman and owns Hester Bail Bonds in Durham, North Carolina. On 22 March 2001, defendant traveled to Orange County in search of a fugitive, who had failed to appear in court, and upon whom defendant had written several bonds. While searching an area on foot, defendant encountered the fugitive who ran after defendant demanded him to stop. Defendant flagged downhis employee, Warren Hunter ("Hunter"), and entered the passenger side of Hunter's vehicle. Defendant and Hunter continued to pursue the fugitive in Hunter's vehicle. Hunter drove his vehicle into an area near the playground of Efland-Cheeks Elementary School ("the school"), a public school for pre-kindergarten through fifth grade.
Around 10:30 a.m. on 22 March 2001, Marilyn Liner ("Ms. Liner"), a fifth grade teacher, was present on the playground with her class and observed a large vehicle drive up very quickly toward the school and stop near the playground. Defendant and Hunter exited the vehicle, brandished guns, and ran toward Ms. Liner and her class. As defendant and Hunter ran pass Ms. Liner and her class, one of the men identified himself as a bondsman. Defendant and Hunter continued to run across school property and chased the fugitive into the woods.
Ms. Liner instructed the children to enter the school building and notified the principal, Rebecca Horne ("Principal Horne"), of the incident. Principal Horne called 911 and instituted a lock down of the school. All students were secured inside the building and all school doors were locked from the inside.
Lieutenant Charles Blackwood, Deputy Sheriff Chan McDade, and Investigator Timothy Horne of the Orange County Sheriff Department arrived at the school in response to Principal Horne's call. Defendant and Hunter emerged from the woods, were questioned, and taken into custody by the officers.
II. Issues
Defendant contends the trial court erred in: (1) refusing toinstruct the jury on defendant's willfulness or knowledge that he was entering school property with a weapon, (2) ruling that defendant was not an officer of the State engaged in official duties at the time he entered school property, and (3) refusing to instruct the jury on a bondsman's right to use reasonable force to arrest.
III. N.C. Gen. Stat. § 14-269.2
Defendant argues the trial court should have instructed the jury on whether defendant acted "willfully or knowingly" when he entered the school property with a weapon. We disagree.
Defendant was charged with and convicted of felonious possession of a weapon on educational property. N.C. Gen. Stat. § 14-269.2(b) (2003) states, "[i]t shall be a Class I felony for any person to possess or carry, whether openly or concealed, any gun, rifle, pistol, or other firearm of any kind on educational property. . . ." In enacting this statute, the General Assembly intended to "deter students and others from bringing any type of gun onto school grounds." In re Cowley, 120 N.C. App. 274, 276, 461 S.E.2d 804, 806 (1995). In a similar case, a defendant, a bail bondsman, was charged with violating N.C. Gen. Stat. § 14-269.2. State v. Haskins, ___ N.C. App. ___, ___, 585 S.E.2d 766, 770, appeal dismissed, 387 N.C. 580, 589 S.E.2d 356 (2003). This Court affirmed the trial court's refusal to give an instruction on whether defendant acted "willfully, feloniously, and knowingly" and held that N.C. Gen. Stat. § 14-269.2 does not include a mens rea element. Id. "[O]ne panel of the Court of Appeals may notoverrule the decision of another panel on the same question. . . ." In The Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36 (1989) (citing N.C.N.B. v. Virginia Carolina Builders, 307 N.C. 563, 299 S.E.2d 629 (1983)). Defendant's assignment of error is overruled.
IV. Officers of the State
Defendant also argues the trial court erred by ruling that he was not an officer of the State engaged in official duties. We disagree. This issue has also been previously addressed by this Court and we are bound by that decision. Id.
In Haskins, this Court held that "bail bondsmen and runners are not officers of the State exercising the power of the sovereign in a discretionary manner but rather are sureties regulated by statutory provisions that codify in part the common law governing the surety-principal relationship between bondsmen and the criminally accused." ___ N.C. App. at ___, 585 S.E.2d at 772. This assignment of error is overruled.
V. Right to Use Reasonable Force
Defendant assigns as error the trial court's refusal to instruct the jury on a bail bondsman's right to use reasonable force. We disagree.
In State v. Mathis, our Supreme Court held that a bail bondsman, as a surety, has the right to use reasonable force in apprehending the principal. 349 N.C. 503, 514, 509 S.E.2d 155, 161-162 (1998). The Court further stated,
When instructing the jury, the trial court has the duty to declare and explain the lawarising on the evidence. Where competent evidence is introduced tending to show that a surety or his agent acted as a matter of right pursuant to lawful authority, it is a substantial and essential feature of the case about which the trial court is required to properly instruct the jury.
Id. (emphasis supplied). Although defendant may have "lawful authority" to subdue a defaulted principal, defendant is not an officer of the State and did not have "lawful authority" to enter onto the school property with a gun. Id. Defendant's right to use reasonable force was neither an element of nor a defense to the offense charged. See N.C. Gen. Stat. § 14-269.2 (2003); see also Haskins, ___ N.C. App. at ___, 585 S.E.2d at 772.
Defendant has failed to show that the trial court's denial of his requested instruction on a bondsman's right to use reasonable force to subdue a fugitive prejudiced his trial. This assignment of error is overruled.
VI. Conclusion
We are bound by this Court's holding in State v. Haskins. Haskins, ___ N.C. App. at ___, 585 S.E.2d at 772. The trial court did not err in refusing to give defendant's requested jury instruction on criminal intent and ruling that defendant was not an officer of the State. We also conclude that the trial court did not err in refusing to give an instruction on defendant's right to use reasonable force. We find no error.
Judges WYNN and McGEE concur.
Report per Rule 30(e).