State v. Burton

• Decision Date: 15 December 1992
• Docket Number: No. 9114SC460,9114SC460
• Citation: 108 N.C.App. 219,423 S.E.2d 484
• Parties: STATE of North Carolina v. Donald BURTON.
• Court: North Carolina Court of Appeals

Page 484

423 S.E.2d 484

108 N.C.App. 219

STATE of North Carolina v. Donald BURTON.

No. 9114SC460.

Court of Appeals of North Carolina.

Dec. 15, 1992.

Atty. Gen. Lacy H. Thornburg by Special Deputy Attorney General, Ralph B. Strickland, Jr., Raleigh, for State.

Irving Joyner, N.C. Cent. University School of Law, Durham, for defendant appellant.

COZORT, Judge.

Defendant was charged with operating a motor vehicle at a speed greater than reasonable under the conditions then existing; resisting, delaying, and obstructing an officer in the performance of his duties; injury to personal property; and three counts of assault on a police officer. In Durham County District Court, defendant was found guilty of three counts of assault on a police officer and appealed the conviction to superior court. On appeal to superior court, the jury found defendant guilty of three counts of assault on a police officer in violation of N.C.Gen.Stat. § 14-33(b)(8) (1991 Cum.Supp.). Defendant was fined $100.00 and sentenced to six months in prison, suspended, and one year unsupervised probation. Defendant appeals. We find no error.

The State presented the following evidence: On 2 January 1990, at approximately 4:00 p.m., Durham Police Sergeant C.M. Tiffin observed defendant driving a vehicle on a city street. Sergeant Tiffin concluded that defendant was traveling approximately 55 m.p.h. in a 35 m.p.h. zone. Sergeant Tiffin activated his blue lights and followed defendant to the parking lot of an auto parts store. Sergeant Tiffin approached defendant who was walking away from the store, and informed him that he was driving too fast. Upon Sergeant Tiffin's request for his driver's license, defendant first produced a business card and then his driver's license. Defendant was not the owner of the car and did not possess the registration. Defendant stood to the left of the police car as Sergeant Tiffin attempted to use the car radio to run a check on the registration. Defendant repeatedly questioned Sergeant Tiffin's actions and refused to return to his car, even after Sergeant Tiffin instructed him to do so three times. Sergeant Tiffin informed defendant that he would be placed under arrest if he did not stop interfering and obstructing him in the performance of his duties. After defendant refused to cooperate Sergeant Tiffin placed defendant under arrest and called for assistance. Officer T.M. Taylor arrived on the scene, but he and Sergeant Tiffin were unable to secure custody of defendant. Corporal C.M. Allen arrived to assist his fellow officers. A struggle ensued, and defendant fell into the open door of the patrol car. Sergeant Tiffin instructed Officer Taylor to strike defendant with his nightstick. Officer Taylor responded by striking defendant twice on the wrist. As a result of the struggle, Officer Taylor suffered a dislocated thumb and Sergeant Tiffin suffered injury to his shin. Defendant was finally brought under control.

Defendant presented the following evidence: Defendant was driving a vehicle at 30 or 35 m.p.h. when Sergeant Tiffin stopped him. Defendant questioned Sergeant Tiffin about the detention and his actions. After the other officers arrived on the scene, defendant asked to speak to a superior officer. Defendant refused to cooperate as the officers tried to handcuff him, and Officer Taylor struck defendant on the head with his nightstick.

On appeal defendant argues that the trial court erred in (1) denying defendant's motions to dismiss at the close of State's evidence and the close of all the evidence, to vacate the verdicts after their return, and to set aside the verdicts; (2) instructing the jury on request that they were to give the term "obstruct" its ordinary meaning; (3) denying defendant the opportunity to cross-examine Sergeant Tiffin about alleged misconduct; and (4) allowing the assistant district attorney to make certain remarks during closing argument.

N.C.R.App.P. 10(b)(3) provides in part that "if defendant makes [a motion to dismiss the action] after the State has presented all its evidence and has rested its case and that motion is denied and the defendant then introduces evidence, his motion for dismissal or judgment in case on nonsuit made at the close of State's evidence is waived." Since defendant introduced evidence after the close of State's evidence, he has waived the right to appeal the denial of his motion at the close of State's evidence. Defendant has also waived the right to appeal the denial of his motion to set aside the verdicts, since he has failed to address the issue in his brief. N.C.R.App.P. 28(b)(5).

Therefore, we need consider only defendant's argument that the trial court erred in failing to dismiss the action at the close of all the evidence. The trial court must dismiss charges for insufficiency of the evidence, if, viewing the evidence in the light most favorable to the State, the State fails to present substantial evidence of each essential element of the offenses charged. State v. Herring, 322 N.C. 733, 738, 370 S.E.2d 363, 367 (1988). "Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion." Id. Specifically, defendant argues that (1) the officer did not have probable cause to arrest him for resisting arrest; (2) he was entitled to protect himself against use of excessive force by the police officers; and (3) there was a fatal variance between the warrant allegations and the State's evidence.

N.C.Gen.Stat. § 14-33(b)(8) provides that a person is guilty of a misdemeanor if he assaults a law enforcement officer when the officer is discharging or attempting to discharge a duty of his office.

In order to obtain a conviction under [this section], the burden is on the State to satisfy the jury from the evidence and beyond a reasonable doubt that the party assaulted was a law enforcement officer performing the duty of his office, and that the defendant knew his victim was a law enforcement officer.

State v. Rowland, 54 N.C.App. 458, 462, 283 S.E.2d 543, 546 (1981). " '[T]he offense under [this section]' ... presupposes lawful conduct of the public officer in discharging ... a duty of his office." State v. Jefferies, 17 N.C.App. 195, 198, 193 S.E.2d 388, 391 (1972), cert. denied, 282 N.C. 673, 194 S.E.2d 153 (1973) (interpreting former N.C.Gen.Stat. § 14-33(c)(4)). "One resisting an illegal arrest is not resisting an officer within the discharge of his official duties." State v. Anderson, 40 N.C.App. 318, 322, 253 S.E.2d 48, 51 (1979).

Accordingly, in order for defendant to be convicted of assault on a police officer in violation of N.C.Gen.Stat. § 14-33(b)(8), the jury must first determine whether the officers were attempting to lawfully arrest defendant for resisting, delaying, and obstructing a police officer in violation of N.C.Gen.Stat. § 14-223 (1986). A warrantless arrest is lawful if based upon probable cause. State v. Phillips, 300 N.C. 678, 683, 268 S.E.2d 452, 456 (1980). The question, then, is whether the officers had probable cause to arrest defendant. Probable cause " '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.' " State v. Zuniga, 312 N.C. 251, 259, 322 S.E.2d 140, 145 (1984) (quoting State v. Shore, 285 N.C. 328, 335, 204 S.E.2d 682, 687 (1974)).

N.C.Gen.Stat. § 14-223 (1986) makes it unlawful for any person to "willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office...." Actual physical force or assault is not necessary. State v. Downing, 66 N.C.App. 686, 690, 311 S.E.2d 702, 704 (1984), aff'd in part and rev'd in part, 313 N.C. 164, 326 S.E.2d 256 (1985). The State does not have to prove that the officer was permanently prevented from discharging his duties by defendant's conduct. Id. Instead, the State must prove only that

"the officer was obstructed or interfered with, and that such obstruction or interference was willful on the part of the defendant.... To 'interfere' is to check or hamper the action of the officer, or to do something which hinders or prevents or tends to prevent the performance of his legal duty; and to 'obstruct' signifies direct or indirect opposition or resistace [sic ] to the lawful discharge of his official duty."

State v. Leigh, 278 N.C. 243, 248, 179 S.E.2d 708, 711 (1971) (quoting State v. Estes, 185 N.C. 752, 117 S.E. 581 (1923)). "Merely remonstrating with an officer in behalf of another, or criticizing an officer while he is performing his duty, does not amount to obstructing, hindering, or interfering with an officer." State v. Allen, 14 N.C.App. 485, 491, 188 S.E.2d 568, 573 (1972).

The State presented evidence that Sergeant Tiffin observed defendant traveling at a speed estimated to be twenty m.p.h. greater than the posted speed limit. On the basis of his observation and training, Sergeant Tiffin had at least reasonable suspicion to stop defendant's vehicle. See State v. Morocco, 99 N.C.App. 421, 393 S.E.2d 545 (1990). After stopping the defendant for speeding, Sergeant Tiffin attempted to use his car radio to run a check on the registration of the vehicle. Defendant was standing beside the patrol car and speaking in a loud and hostile manner. He refused to return to his car after the officer requested three times for him to do so. Sergeant Tiffin was concerned for his safety as a result of defendant's behavior, and he was unable to successfully communicate on the radio. He then warned defendant that he would arrest him for obstructing an officer, but defendant did not desist. Based upon the evidence presented by the State, a jury could reasonably conclude that the officers lawfully arrested defendant because they had probable cause to believe that defendant willfully prevented Sergeant Tiffin from performing his duties concerning the...