State v. Haynesworth

• Citation: 146 NC App. 523,553 S.E.2d 103
• Decision Date: 16 October 2001
• Docket Number: No. COA00-1228.,COA00-1228.
• Parties: STATE of North Carolina v. Darin L. HAYNESWORTH.
• Court: Court of Appeal of North Carolina (US)

553 S.E.2d 103

146 NC App. 523

STATE of North Carolina v. Darin L. HAYNESWORTH.

No. COA00-1228.

Court of Appeals of North Carolina.

October 16, 2001.

Attorney General Michael F. Easley, by Assistant Attorney General Amy L. Yonowitz, for the State.

John T. Hall, Raleigh, for defendant-appellant.

MARTIN, Judge.

Defendant was charged, in proper bills of indictment, with attempted first degree murder, assault with a firearm on a law enforcement officer, assault on a law enforcement officer, and resisting, delaying and obstructing an officer. A jury found him guilty as charged. He appeals from judgments entered upon the verdicts. We find no error.

The State's evidence at trial tended to show that on 25 April 1999, Officer John R. Osborne of the Raleigh Police Department responded to a call regarding an individual causing a disturbance at a church in the Poole Road section of Raleigh as the congregation was leaving a service at about 9:30 p.m. Officer Osborne testified that he called defendant over to his patrol car so that he could talk with him. Defendant smelled of alcohol, was loud and boisterous, and was speaking unclearly. Officer Osborne informed defendant, on more than one occasion, that someone from the church had requested that he be escorted from the property and that if he did not leave, he could be arrested for trespassing. Defendant responded by stating that the church members were his brothers and sisters and that he was not going to leave. Officer Osborne then asked defendant to turn around and place his hands behind his back because he was being placed under arrest for trespassing.

The evidence tended to show that defendant began to put his left hand behind his back but then spun around and punched Officer Osborne in the mouth with his right hand. Subsequently, Officer Osborne knocked defendant to the ground by using a light sweep. Officer Osborne and other witnesses testified that after defendant was knocked to the ground, he reached for the officer's gun that was located on the officer's right hip.

While on the ground, Officer Osborne attempted to contact communications on his radio but defendant knocked the radio out of his hand. Officer Osborne continued to struggle with defendant and repeatedly attempted to push his hands away from the weapon to keep his gun secure. Officer Osborne had difficulty in restraining defendant; several times when Officer Osborne placed his hand on the weapon in an attempt to protect it, defendant struck him in the face. Officer Osborne occasionally punched defendant back. During the struggle, the two men rolled down a hill. When they reached the bottom of the hill, defendant's right hand was on Officer Osborne's holster. Then, Officer Osborne sprayed defendant in the face and inadvertently sprayed himself with pepper spray; the pepper spray appeared to have no effect on defendant but Officer Osborne was severely affected.

At that point in the altercation, Officer Osborne asked for assistance from the churchgoers witnessing the struggle. Defendant was on top of Officer Osborne and removed the gun out of the holster. Defendant was holding the butt of the gun in his hands upside down and Officer Osborne had the barrel in his hands attempting to keep it out of his face. Officer Osborne eventually managed to flip over onto his stomach and keep at least one hand on the weapon. Defendant had turned the gun around so that he was holding the weapon properly or right side up and was pointing it at Officer Osborne. Officer Osborne then grabbed the slide in an effort to keep the weapon from firing. Officer Osborne pushed the weapon to the ground while his left hand was out in front of the weapon about 18 to 20 inches. When Officer Osborne tried to get up from being on all fours, the weapon fired and grazed the top of Officer Osborne's left hand, striking his knuckle on his index finger and the top of his pinky finger. Officer Osborne testified that when the gun was fired, defendant had his hands on the gun and was holding it properly. Further, the State's evidence showed that Officer Osborne's finger or hand was not inside the trigger guard when the pistol fired. The officer realized that his hand was still operable and grabbed the weapon with both hands and pulled it close to his body. Officer Osborne managed to get the weapon completely out of defendant's hands; he then stood up and spun around, causing defendant to fall off his back. The weapon fell out of Officer Osborne's hands down into the grass.

Officer Osborne secured the weapon and attempted to place handcuffs on defendant but because the officer was exhausted from the struggle, he was unable to place defendant on his stomach and secure defendant's hands behind his back. Officer Osborne moved away from defendant, drew the weapon out of his holster, and pointed the pistol towards the ground, while telling defendant to turn over on his stomach and place his hands behind his back. At that point, defendant got up and ran and eventually crawled underneath a car. When Officer Osborne told defendant to come out from underneath the vehicle, defendant got out from under the car and ran. Officer Osborne tackled defendant and with assistance from two other Raleigh police officers who had arrived, finally restrained and handcuffed defendant. Officer Osborne received treatment from Emergency Medical Services at the scene.

Defendant testified that he struck Officer Osborne because he thought the officer was trying to "rough [him] up" and he didn't understand why he was being arrested because he had not done anything wrong. He denied that he was trying to grab the gun in order to shoot Officer Osborne, and claimed that he was acting in self-defense by trying to keep Officer Osborne from drawing his weapon from the holster. Defendant denied ever trying to kill Officer Osborne.

I.

Defendant first assigns error to the trial court's failure to dismiss, for insufficiency of the evidence, the charge of attempted first degree murder at the close of all of the evidence. Defendant contends that the evidence gives rise to no more than a surmise, suspicion, or conjecture that defendant is guilty of attempted first degree murder.

The North Carolina Supreme Court has set forth the standard for reviewing the denial of a motion to dismiss in State v. Bates, 313 N.C. 580, 581, 330 S.E.2d 200, 201 (1985):

A defendant's motion for dismissal for insufficiency of the evidence in a criminal case raises the question of whether there is substantial evidence of each essential element of the offense charged, or of a lesser offense included therein, and of the defendant's being the perpetrator of such offense. In determining this issue the court must consider the evidence in the light most favorable to the state, and the state is entitled to every reasonable inference to be drawn therefrom. If there is substantial evidence—whether direct, circumstantial, or both—to support a finding that the offense charged has been committed and that the defendant committed it, a case for the jury is made and a motion to dismiss should be denied. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion [citations omitted].

Evidence is not substantial if it arouses only a strong suspicion about the facts to be proved. State v. Malloy, 309 N.C. 176, 305 S.E.2d 718 (1983). When considering a motion to dismiss, the trial court "is concerned only with the sufficiency of the evidence to carry the case to the jury and not with its weight." State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). Any contradictions or discrepancies in the evidence are for resolution by the jury and do not warrant dismissal. Id.

"The elements of an attempt to commit any crime are: (1) the intent to commit the substantive offense, and (2) an overt act done for that purpose which goes beyond mere preparation, but (3) falls short of the completed offense." State v. Miller, 344 N.C. 658, 667, 477 S.E.2d 915, 921 (1996). Specifically, this Court has previously stated that

a person commits the crime of attempted first-degree murder if: (1) he or she intends to kill another person unlawfully and (2) acting with malice, premeditation, and deliberation does an overt act calculated to carry out that intent, which goes beyond mere preparation, but falls short of committing murder.

State v. Gartlan, 132 N.C.App. 272, 275, 512 S.E.2d 74, 77, disc. review denied, 350 N.C. 597, 537 S.E.2d 485 (1999); N.C. Gen.Stat. § 14-17 (1999).

The overt act required for an attempted crime must be more than preparation in that it "reach[es] far enough towards the accomplishment of the desired result to amount to the commencement of the consummation." State v. Price, 280 N.C. 154, 158, 184 S.E.2d 866, 869 (1971). A killing has been defined as premeditated if the defendant formed a specific intent to kill the victim some period of time, regardless of how short, before perpetrating the actual act. State v. Gainey, 343 N.C. 79, 468 S.E.2d 227 (1996). In addition, deliberation has been defined as acting in a cool state of blood and not under the influence of a violent passion. Id.

In the context of attempted first degree murder, circumstances that may tend to prove premeditation and deliberation include: (1) lack of provocation by the intended victim or victims; (2) conduct and statements of the defendant both before and after the attempted killing; (3) threats made against the intended victim or victims by the defendant; and (4) ill will or previous difficulty between the defendant and the intended victim or victims. State v. Myers, 299 N.C. 671, 677-78, 263 S.E.2d 768, 773 (1980). We hold that in this case, there was sufficient evidence of each element of attempted first...