State v. Ellis

• Decision Date: 01 March 2005
• Docket Number: No. COA04-436.,COA04-436.
• Citation: 608 S.E.2d 803,168 NC App. 651
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Marciana ELLIS.

608 S.E.2d 803

168 NC App. 651

STATE of North Carolina v. Marciana ELLIS.

No. COA04-436.

Court of Appeals of North Carolina.

March 1, 2005.

Attorney General Roy Cooper, by Special Deputy Attorney General Thomas J. Pitman, for the State.

Charns & Charns, by D. Tucker Charns, Durham, for defendant-appellant. TYSON, Judge.

Marciana Ellis ("defendant") appeals from judgments entered after a jury returned guilty verdicts of: (1) knowingly and willfully emitting human excrement at a law enforcement officer in the performance of his duties (malicious conduct by prisoner) (02 CRS 013682); (2) possession of cocaine (02 CRS 013683); and (3) resisting and obstructing a law enforcement officer and assault on a law enforcement officer (02 CRS 013684). We find no error on 02 CRS 013682 and 02 CRS 013683, arrest judgment on 02 CRS 013684 and remand for resentencing.

I. Background

The State's evidence tended to show that around 11:00 p.m. on 16 February 2002, Agents Jason Locklear ("Agent Locklear") and Ralph Nolan ("Agent Nolan") (collectively, "the Agents") of the North Carolina Alcohol Law Enforcement Division ("ALE") witnessed defendant leaving a convenience store and walking down the street. Agent Locklear believed he saw defendant carrying a twelve ounce malt beverage bottle, but could not determine whether it was opened.

The Agents stopped defendant on the street and Agent Locklear identified himself as an ALE agent. Agent Locklear was wearing his uniform and badge. The Agents asked defendant if the bottle was open. During the exchange, Agent Locklear saw defendant place ten to twelve small white rocks into his mouth. Agent Locklear grabbed defendant and ordered him to empty his mouth. Defendant swallowed one time, then opened his mouth, which was empty. Defendant was searched and $427.00 in cash was found.

Agent Locklear told defendant a search warrant could be obtained to have his stomach pumped. Defendant responded by lying to the Agents about his name. The Agents explained to defendant that if he did not start telling the truth, he would be arrested. Defendant continued to give the Agents fictitious names. Agent Locklear then told defendant, "I'm going to take you to the Magistrate's Office and see if the magistrate can determine exactly who you are." Defendant turned and ran from the Agents.

Agent Locklear chased defendant for about forty minutes. During the chase, Agent Locklear yelled at defendant that he was under arrest and to stop. Agent Nolan chased defendant for a few minutes before returning to secure their patrol car. During the chase, Agent Locklear caught up with defendant four times. The first time, Agent Locklear hit defendant in the forehead and sprayed him with pepper spray. On the second time, after a homeowner chased defendant off his porch, Agent Locklear tackled defendant and again sprayed him with pepper spray. Defendant punched Agent Locklear in the face and escaped. During the third time, Agent Locklear caught up with defendant and struck him with a metal baton on his leg causing defendant to fall down. Defendant regained his footing and jumped into a roadside canal. The canal water varied from knee deep to chest high.

Finally, Agent Locklear trapped defendant in the canal. He continued to tell defendant that he was under arrest and that he was going to handcuff him. As Agent Locklear approached with the handcuffs, defendant reached into his pants and told Agent Locklear that he had defecated on himself and would smear the excrement on him if he came closer. Agent Locklear continued to approach and defendant smeared feces over Agent Locklear's chest, left arm, and both hands. Agent Locklear struggled with defendant and managed to place the handcuffs on him. Defendant vomited and tried to step on and hide the vomit's contents. Agent Locklear recovered a plastic bag from the pool of vomit with a rock-like substance inside it.

Defendant was taken to the hospital, where a hand wound was treated and his stomach was pumped. Five rock-like substances were recovered from defendant's stomach. All six objects removed from defendant tested positive for crack cocaine.

Defendant was tried by a jury for: (1) knowingly and willfully emitting human excrement at a law enforcement officer in the performance of his duties (malicious conduct by prisoner); (2) possession of cocaine; and (3) resisting and obstructing a law enforcement officer and assault on a law enforcement officer. After the charge conference, defendant left the courtroom and did not return. An order for his arrest was issued. The jury found defendant to be guilty of: (1) knowingly and willfully emitting human excrement at a law enforcement officer in the performance of his duties (malicious conduct by prisoner); (2) possession of cocaine; and (3) resisting and obstructing a law enforcement officer and assault on a law enforcement officer.

Defendant was later arrested and returned to the courtroom. He was found to be a Level IV offender for sentencing purposes and sentenced in the presumptive range of twenty-five months minimum to thirty months maximum. Defendant appeals.

II. Issues

The issues on appeal are whether: (1) the indictment for resist, obstruct, and delay was sufficient; (2) the State offered evidence for each element of malicious conduct by prisoner; (3) the trial court erred in instructing the jury on malicious conduct by prisoner; and (4) defendant is a Level IV Offender.

III. Sufficiency of an Indictment

Defendant contends the bill of indictment charging him with resist, delay, or obstruct an officer under N.C. Gen.Stat. § 14-223 was insufficient as a matter of law. We agree.

The purpose of an indictment is to provide "sufficient detail to put the defendant on notice as to the nature of the crime charged and to bar subsequent prosecution for the same offense in violation of the prohibitions against double jeopardy." State v. Burroughs, 147 N.C.App. 693, 695-96, 556 S.E.2d 339, 342 (2001) (citing State v. Snyder, 343 N.C. 61, 65, 468 S.E.2d 221, 224 (1996)). It must include all the facts necessary to meet the elements of the offense. State v. Alston, 310 N.C. 399, 407, 312 S.E.2d 470, 475 (1984). If it does not, the trial court lacks jurisdiction over the defendant and subsequent judgments are void and must be vacated. State v. Wagner, 356 N.C. 599, 601, 572 S.E.2d 777, 779 (2002).

N.C. Gen.Stat. § 14-223 (2003) provides, "If any person shall willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office, he shall be guilty of a Class 2 misdemeanor." An indictment fails under N.C. Gen.Stat. § 14-223 if it does not describe the duty the named officer was discharging or attempting to discharge. State v. Dunston, 256 N.C. 203, 204, 123 S.E.2d 480, 481 (1962) (citing State v. Stonestreet, 243 N.C. 28, 89 S.E.2d 734 (1955); State v. Harvey, 242 N.C. 111, 86 S.E.2d 793 (1955); State v. Eason, 242 N.C. 59, 86 S.E.2d 774 (1955)).

Here, the bill of indictment charging defendant with violating N.C. Gen.Stat. § 14-223 stated, "the defendant named above unlawfully and willfully did resist, obstruct and delay Agent Jason Locklear of North Carolina Alcohol Law Enforcement Division while he was attempting to discharge his duties of his office to wit: by running from Agent Jason Locklear and fighting Agent Jason Locklear."

The indictment fails to describe the duties Agent Locklear was discharging or attempting to discharge. The trial court never had jurisdiction over defendant on this charge. Wagner, 356 N.C. at 601, 572 S.E.2d at 779. The judgment is void and arrested for lack of jurisdiction.

IV. Malicious Conduct by Prisoner

Defendant asserts the trial court erred by denying his motion to dismiss the charge of malicious conduct by prisoner. We disagree.

A. Standard of Review

The standard of review for a motion to dismiss in a criminal trial is:

Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.

State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)).

Evidence is substantial if it is relevant and adequate to convince a reasonable mind to accept a conclusion. State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995) (citing State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991)). If substantial evidence, whether direct, circumstantial, or both, supports a finding that the offense charged has been committed and that the defendant committed it, the motion to dismiss should be denied and the case goes to the jury. State v. Williams, 319 N.C. 73, 79, 352 S.E.2d 428, 432 (1987) (quoting State v. Young, 312 N.C. 669, 680, 325 S.E.2d 181, 188 (1985)). But, "[i]f the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion should be allowed." Powell, 299 N.C. at 98, 261 S.E.2d at 117 (citations omitted).

In considering a motion to dismiss, the trial court must analyze the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from the evidence. State v. Gibson, 342 N.C. 142, 150, 463 S.E.2d 193, 199 (1995). The trial court must also resolve any contradictions in the evidence in the State's favor. State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721 (2001). The trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness's credibility. Id. It is concerned "only with the sufficiency of the evidence to carry the case to the jury." State v. Lowery, 309 N.C. 763, 766, 309 S.E.2d 232, 236 (1983). Ultimatel...