State v. Cook

• Decision Date: 04 May 2004
• Docket Number: No. COA03-396.,COA03-396.
• Citation: 164 NC App. 139,594 S.E.2d 819
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. James Allen COOK.

594 S.E.2d 819

164 NC App. 139

STATE of North Carolina v. James Allen COOK.

No. COA03-396.

Court of Appeals of North Carolina.

May 4, 2004.

Attorney General Roy Cooper, by Assistant Attorney General John P. Barkley, for the State.

Lynne Rupp, Durham, for the defendant.

TIMMONS-GOODSON, Judge.

James Allen Cook ("defendant") appeals his convictions of felony possession of a controlled substance, two counts of assault with a deadly weapon on a governmental official, and habitual felon. For the reasons stated herein, we hold that defendant received a trial free of prejudicial error.

The State's evidence presented at trial tends to show the following: On 21 July 2002, Greensboro police officers Russell Linstad ("Officer Linstad") and Clint Queen ("Officer Queen") stopped defendant for minor traffic offenses. When Officer Linstad approached the car and asked defendant to produce his driver's license and automobile registration, defendant was standing outside the car holding a bag of groceries. In response to defendant repeatedly reaching in his left pocket, Officer Linstad directed defendant to cease placing his hand in his pocket and attempted to frisk defendant for a weapon. Defendant attempted to strike Officer Linstad with his fists. Officer Linstad then informed defendant that he was under arrest for failing to comply with his request to produce a license and registration and for resisting a frisk search.

Officers Linstad and Queen attempted to restrain defendant, but he wrested away and ran into the back yard of his sister's home where there was a medium-sized dog on a chain. Defendant placed himself between the dog and the police officers pursuing him into the back yard. Officer Linstad reached the back yard first. Defendant pushed the dog toward Officer Linstad, called the dog by name and said "bite him." The dog moved toward Officer Linstad who was running toward defendant at full speed. Officer Linstad jumped over the dog to avoid being bitten by the dog. Officer Linstad tackled defendant and the dog bit Officer Linstad on the right ankle. Officer Queen approached and struck the dog in an effort to get the dog to release Officer Linstad. At that time, the officers were able to handcuff defendant. The dog then bit Officer Queen in the shin and in response Officer Queen shot the dog with his service revolver.

After defendant was restrained, Officer Linstad searched defendant's left pocket and found a dollar bill wrapped around an off-white rock substance which was later identified by the State Bureau of Investigation as crack cocaine. Defendant was arrested and later indicted on charges of felony possession of a controlled substance, two counts of assault with a deadly weapon on a governmental official, and habitual felon. At a jury trial, defendant was convicted of all charges. The trial court sentenced defendant to imprisonment for a term of eleven and one-quarter years to fourteen and one-quarter years. It is from this conviction that defendant appeals.

As an initial matter, we note that defendant's brief contains arguments supporting only three of the original five assignments of error on appeal. The two omitted assignments of error are deemed abandoned pursuant to N.C. R.App. P. 28(b)(5) (2004). We therefore limit our review to those assignments of error properly preserved by defendant for appeal.

The issues presented on appeal are whether the trial court erred by (I) denying defendant's motions to dismiss the charges of assault with a deadly weapon on a governmental official at the close of the State's evidence and at the close of all evidence; and (II) instructing the jury that the dog was under defendant's control.

Defendant first argues that the trial court should have granted his motions to dismiss the two counts of assault with a deadly weapon on a governmental official due to insufficiency of the evidence. Defendant contends that a dog does not satisfy the deadly weapon element of the crime, and thus the State failed to prove the charges against defendant. We disagree.

In ruling on a motion to dismiss based on insufficiency of evidence, "the trial court must determine whether there is substantial evidence of each element of the offense charged." State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387 (1984). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980) (citations omitted). When reviewing the evidence, the trial court must consider all evidence "in the light most favorable to the prosecution, granting the State the benefit of every reasonable inference." State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).

Defendant argues that there was no substantial evidence to prove the "deadly weapon" element of the assault charges. North Carolina General Statute § 14-34.2 provides the following:

[A]ny person who commits an assault with a firearm or any other deadly weapon upon an officer or employee of the State or of any political subdivision of the State ... in the performance of his duties shall be guilty of a Class F felony.

N.C. Gen.Stat. § 14-34.2 (2003). The term "deadly weapon" is defined at common law as any instrument which can produce death or great bodily harm, depending on the circumstances of its use. State v. Parker, 7 N.C.App. 191, 195-96, 171 S.E.2d 665, 667-68 (1970); State v. Palmer, 293 N.C. 633, 642-44, 239 S.E.2d 406, 412-13 (1977). While the question of a dog as a deadly weapon is an issue of first impression for this state, other states have found that dogs can be considered dangerous weapons when ordered to attack other humans, including police officers. See Morris v. State, 722 So.2d 849 (Fla.1998) and State v. Sinks, 168 Wis.2d 245, 483 N.W.2d 286 (Wis.1992).

In North Carolina, when determining whether something other than a firearm is considered a deadly weapon, the following important factors are examined: "the nature of the instrument, the manner in which defendant used it or threatened to use it, and in some cases the victim's perception of the instrument and its use." State v. Peacock, 313 N.C. 554, 563, 330 S.E.2d 190, 196 (1985). Thus, the dog in the case sub judice could be considered a deadly weapon not only if it was deadly by its nature, but also if it was used by defendant in a deadly manner or if the police officers perceived the dog to be deadly in its use.

Guided by the foregoing principles, we conclude that there is substantial evidence from which the jury could find that defendant used the dog as a deadly weapon. The State's evidence tended to show that defendant instigated the dog's attack on the police officers by pushing the dog toward Officer Linstad and ordering it to bite him. As a result of defendant's actions, the dog bit Officer Lindstad and Officer Queen, causing injury to both officers. Officer Queen viewed the threat to him by the dog to be so great that he shot the dog three times. Defendant presented no evidence to rebut the State's evidence regarding his use of the dog. Thus, we hold that there was sufficient evidence to present this question to the jury, and therefore the trial court did not err in denying defendant's motions to dismiss.

Defendant also assigns error to the instruction by the trial court to the jury that the dog was under defendant's control, arguing that such a statement was prejudicial. The State notes in its brief that "no objection was made at trial, either at the conference on jury instructions with the attorneys or after the instructions had been given to the jury.... Neither has Defendant identified the instruction as plain error. Therefore, this issue cannot be raised on appeal." We agree with the State.

"A party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection ..." N.C.App. R. 10(b)(2) (2004). "In criminal cases, a question which was not preserved by objection noted at trial and which is not deemed preserved by rule or law without any such action, nevertheless may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error." N.C.App. R. 10(c)(4) (2004) (emphasis added). Defendant neither objected to the jury instructions at trial, nor does defendant contend in his brief that the jury instruction amounted to plain error. Therefore, defendant has waived this assignment of error.

No error.

Judge BRYANT c...