Opinion
No. COA12–1045.
2013-05-7
STATE of North Carolina v. Owen Deshawn LEAVITT.
Attorney General Roy Cooper, by Assistant Attorney General Kathryn J. Thomas, for the State. J. Edward Yeager, Jr., for defendant-appellant.
Appeal by defendant from judgment entered 8 May 2012 by Judge Zoro J. Guice, Jr., in Alexander County Superior Court. Heard in the Court of Appeals 15 April 2013. Attorney General Roy Cooper, by Assistant Attorney General Kathryn J. Thomas, for the State. J. Edward Yeager, Jr., for defendant-appellant.
McCULLOUGH, Judge.
Defendant Owen Deshaw Leavitt appeals from the judgment entered after a jury found him guilty of malicious conduct by a prisoner. On appeal defendant contends the trial court erred by denying his motion to dismiss. For the following reasons, we find no error.
On 10 May 2011, Wyatt Turner was working as a prison guard and distributed breakfast to the inmates incarcerated in his unit. When Turner returned to retrieve defendant's breakfast tray, he noticed defendant had not touched his food. Defendant initially offered the tray to Turner, but then pulled it back. When Turner reached for the tray again, defendant “squeezed,” “threw,” or “poured” the liquid contents of a Styrofoam coffee cup onto Turner. Turner immediately noticed that the liquid was warm and distinctly smelled like urine rather than coffee.
The trial court denied defendant's motion to dismiss the charge, and the jury found defendant guilty of malicious conduct by a prisoner. The trial court sentenced defendant to 20 to 24 months' imprisonment, to begin at the expiration of any sentence he was already obligated to serve. Defendant did not give oral notice of appeal, but on 14 May 2012, he filed a pro se written notice of appeal.
As a preliminary matter, we note that defendant has filed a petition for writ of certiorari, because he acknowledges that his pro se notice of appeal was not served on the State, as required by N.C.R.App. P. 4(c) and 26(b) (2013). It is well established that without proper notice of appeal, this Court does not acquire jurisdiction to review the appeal. State v. McCoy, 171 N.C.App. 636, 638, 615 S.E.2d 319, 320,appeal dismissed,360 N.C. 73, 622 S.E.2d 626 (2005). However, this Court does have the discretion to consider the matter by granting a petition for writ of certiorari. Id.; see alsoN.C.R.App. P. 21(a) (2013). In our discretion, we grant defendant's petition for writ of certiorari and address the issue brought forward on appeal.
In his sole argument on appeal, defendant argues the trial court erred by denying his motion to dismiss. We disagree.
“When a defendant moves to dismiss a charge against him on the ground of insufficiency of the evidence, the trial court must determine ‘whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.’ “ State v. Garcia, 358 N.C. 382, 412, 597 S.E.2d 724, 746 (2004) (citation omitted). “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). “In reviewing challenges to the sufficiency of evidence, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences.” State v. Scott, 356 N.C. 591, 596, 573 S.E.2d 866, 869 (2002) (internal quotation marks and citation omitted).
In this case, defendant only challenges the sufficiency of the evidence as to the first essential element of malicious conduct by a prisoner, that “the defendant threw, emitted, or caused to be used as a projectile a bodily fluid or excrement at the victim[.]” State v. Noel, 202 N.C.App. 715, 718, 690 S.E.2d 10, 13 (citation omitted), disc. review denied,364 N.C. 246, 699 S.E.2d 642 (2010); see alsoN.C. Gen.Stat. § 14–258.4 (2011).
Here, the State's evidence is adequate to withstand defendant's motion to dismiss. Turner described an incident in which defendant either squeezed, threw, or poured urine from a coffee cup onto him. Defendant attempts to transform Turner's use of different words to describe his conduct into a fatal ambiguity in the State's evidence. Nevertheless, it is abundantly clear that Turner testified he observed defendant intentionally splatter him with urine from the coffee cup, regardless of his particular choice of verb. Accordingly, we find defendant's argument lacks merit.
No error. Judges BRYANT and STEELMAN concur.
Report per Rule 30(e).