State v. Crouse

• Decision Date: 05 April 2005
• Docket Number: No. COA04-804.,COA04-804.
• Citation: 610 S.E.2d 454,169 NC App. 382
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Anna Danielle CROUSE.

610 S.E.2d 454

169 NC App. 382

STATE of North Carolina v. Anna Danielle CROUSE.

No. COA04-804.

Court of Appeals of North Carolina.

April 5, 2005.

Attorney General Roy Cooper, by Assistant Attorney General Elizabeth F. Parsons, for the State.

Morgan Herring Morgan Green Rosenblutt & Gill, L.L.P., by J. Scott Coalter, High Point, for defendant appellant. McCULLOUGH, Judge.

Defendant (Anna Danielle Crouse) appeals from conviction and judgment for malicious conduct by a prisoner. We hold that she received a fair trial, free of prejudicial error.

On 8 April 2003 Officer Sprinkle with the High Point Police Department was dispatched to a home on South Road in High Point, North Carolina to "check [ ] on the welfare of the defendant." Shortly after arriving Officer Sprinkle and some other officers were able to get defendant to exit the dwelling. According to one of the officers, defendant "had a dazed look, [an] almost ... not completely coherent type of look" when she was first approached. Shortly after exiting the dwelling, defendant began running down South Street away from the officers. According to Officer Sprinkle, defendant "appear[ed] to have control of her motor skills" and "was running in a normal fashion."

The officers did not pursue defendant immediately, and instead checked to see if defendant had any outstanding warrants. Upon learning that there was an outstanding warrant for defendant's arrest, the officers quickly located defendant and attempted to place her under arrest. According to Officer Sprinkle, defendant was "irate ... about the fact that she was under arrest," and she "refused to put her hands behind her back after she was told to do so, and just struggled to keep from getting her hands behind her back." After approximately thirty seconds of struggling with defendant, the officers were successful in placing her in handcuffs and moving her towards a patrol vehicle.

Defendant was transported to the High Point Police Department and then placed in a holding cell while Officers Catherine Farabee and K.D. Riesen did some paperwork. Defendant was still in handcuffs with her arms behind her back when she was placed in the holding cell. Upon making routine checks of the holding cell, Officers Farabee and Riesen twice noticed defendant lying on the floor in a fetal position under the bench attached to the cell's wall. Each time, the officers required defendant to return to a seated position on the bench. Upon being confronted a second time, defendant resisted the officers' efforts to return her to a seated position. According to Officer Farabee, defendant "wasn't recognizing being spoken to at all" and began "cussing and kicking at" the officers when they attempted to move her onto the bench. During the struggle, defendant ended up in a position from which she could reach for Officer Farabee's belt on the side that held the officer's gun. Officer Farabee reacted by twisting the handcuffs which were restraining defendant to prevent her from reaching the belt. At this point, defendant spat in Officer Farabee's face. When her face was forced into a corner to prevent her from spitting on the officers again, defendant yelled "let go of my f----in' hands."

Officer Riesen witnessed defendant spit on Officer Farabee, which he described as follows:

Officer Farabee had [defendant] where her head was kind of towards the wall ... [,] and I observed [defendant] turn her head back towards Officer Farabee. She took what looked like a deep breath, like you would if you were getting ready to, I don't know, cough, but it was like you could see the chest really rise, and you could see her mouth start to pull like she was making a spit, and she puckered up, like, whooh, and then the next thing I know, before I could even have a chance to tell Officer Farabee to watch out, she had spit.

Defendant's spittle hit Officer Farabee in the face, but fortunately did not go into her eyes or mouth.

Defendant was indicted for, and convicted of, malicious conduct by a prisoner, and the trial court imposed a mitigated sentence of fifteen to eighteen months' imprisonment. Defendant now appeals.

In her first argument on appeal, defendant contends that the trial court erred in denying her request to submit misdemeanor assault on a law enforcement officer as a lesser included offense of malicious conduct by a prisoner. We do not agree.

The issue of whether assault on a law enforcement officer is a lesser included offense of malicious conduct by a prisoner has been argued previously in this Court. See State v. Cogdell, 165 N.C.App. 368, 599 S.E.2d 570,

disc. review denied, 359 N.C. 71, 604 S.E.2d 918 (2004); State v. Smith, 163 N.C.App. 771, 594 S.E.2d 430 (2004). In Cogdell, we resolved the issue by concluding that, even "[a]ssuming arguendo that misdemeanor assault on a government official is a lesser included offense of malicious conduct by a prisoner, defendant has failed to make the factual showing required to support a jury instruction on that offense." Cogdell, 165 N.C.App. at ___, 599 S.E.2d at 574; see also Smith, 163 N.C.App. at 774,

594 S.E.2d at 432 (finding no error in the trial court's refusal to submit assault on a government official to the jury where "the State presented evidence as to each essential element of the offense of malicious conduct by a prisoner and defendant presented no evidence to negate the State's evidence.").

Thus, our holdings on this issue have been narrow; we have merely determined that the issue need not be reached where the defendant fails to make the requisite factual showing. Cogdell, 165 N.C.App. at ___, 599 S.E.2d at 574. However, a concurring opinion was filed in Cogdell that addressed, and rejected, defendant's lesser included offense argument. Id. at ___, 599 S.E.2d at 575 (Levinson, J., concurring). With the issue now squarely before us, we hold that misdemeanor assault on a government official is not a lesser included offense of felony malicious conduct by a prisoner.

A defendant "`is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.'" State v. Leazer, 353 N.C. 234, 237, 539 S.E.2d 922, 924 (2000) (citation omitted). "North Carolina has adopted a definitional test for determining whether a crime is in fact a lesser offense that merges with the greater offense." State v. Kemmerlin, 356 N.C. 446, 475, 573 S.E.2d 870, 890 (2002). "`[A]ll of the essential elements of the lesser crime must also be essential elements included in the greater crime. If the lesser crime has an essential element which is not completely covered by the greater crime, it is not a lesser included offense.'" Id. (citation omitted).

The statutory offense of felony malicious conduct by a prisoner is codified as follows:

Any person in the custody of the Department of Correction, the Department of Juvenile Justice and Delinquency Prevention, any law enforcement officer, or any local confinement facility..., including persons pending trial, appellate review, or presentence diagnostic evaluation, who knowingly and willfully throws, emits, or causes to be used as a projectile, bodily fluids or excrement at a person who is an employee of the State or a local government while the employee is in the performance of the employee's duties is guilty of a Class F felony.

N.C. Gen.Stat. § 14-258.4 (2003). Accordingly, to convict a defendant of this offense, the State must allege and prove: (1) that a person in custody (2) knowingly and willfully (3) threw, emitted, or caused to be used as a projectile, bodily fluids or excrement (4) at a government employee (5) in the performance of his duties. Id.; State v. Robertson, 161 N.C.App. 288, 292-93, 587 S.E.2d 902, 905 (2003). The statutory offense of misdemeanor assault on a government official is codified as follows:

[A]ny person who commits any assault, assault and battery, or affray is guilty of a Class A1 misdemeanor if, in the course of the assault, assault and battery, or affray, he or she... assaults an officer or employee of the State or any political subdivision of the State, when the officer or employee is discharging or attempting to discharge his official duties[.]

N.C. Gen.Stat. § 14-33(c)(4) (2003). To convict a defendant of this offense, the State must allege and prove: (1) an assault (2) on a government official (3) in the actual or attempted discharge of his duties. Id."`There is no statutory definition of assault in North Carolina, and the crime of assault is governed by common law rules.'" State v. Mitchell, 358 N.C. 63, 69, 592 S.E.2d 543, 547 (2004) (citation omitted). The common law defines an assault as "'"an overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another, which show of force or menace of violence must be sufficient to put a person of reasonable firmness in...