Opinion
No. COA10-1045
Filed 5 July 2011 This case not for publication
Appeal by Defendant from judgment entered 18 March 2010 by Judge Patrice A. Hinnant in Forsyth County Superior Court. Heard in the Court of Appeals 23 February 2011.
Attorney General Roy Cooper, by Assistant Attorney General Kevin G. Mahoney, for the State. Glenn Gerding, for Defendant.
Forsyth County No. 07 CRS 0057365-66, 08 CRS 007143.
Defendant appeals from his convictions for assault with a deadly weapon upon a government official. Defendant argues that the trial court erroneously denied his motion to dismiss made at trial. Because a thorough review of the record reveals that there is substantial evidence that Defendant was the perpetrator of each essential element of the charged offenses, we find that there was no error.
On 25 July 2007, officers with the Kernersville Police Department were patrolling a local neighborhood "searching the area for a suspicious truck." Officers had received complaints that someone in the truck had thrown eggs at local residences. While on patrol, Officer Creason spotted a vehicle matching the description of the suspicious vehicle. Officer Creason followed the truck and noticed that the truck's tags were expired. Officer Creason activated his blue lights and initiated a stop of the truck. Once the truck was came to a complete stop, Officer Creason exited his vehicle and once he Aapproached the driver's side door of the vehicle, [he] identif[ied] the driver" of the truck as Defendant.
Defendant handed Officer Creason a North Carolina Identification Card and explained that he did not have a driver's license. Dispatch informed Officer Creason that Defendant's license had been suspended. Officer Creason was soon joined by Officer Jones to assist.
After learning of the outstanding warrants for his arrest, Defendant started his truck in an attempt to leave. The officers immediately ordered Defendant to turn off the ignition. Concerned that Defendant was reaching for a weapon, Officer Jones drew his firearm and ordered Defendant to stop. Defendant immediately removed his hands from the steering wheel, raised his hands, and said, "Okay. Okay. Okay. I'll go. I'll go." Officer Jones returned his weapon to its holster and both officers reached inside the truck to remove Defendant from the vehicle. A struggle ensued and Officer Jones' arm became entangled with Defendant's shirt and seatbelt. During the struggle, Defendant started the truck, put it in gear, and drove away. Officer Creason pushed away from the truck as Defendant began to drive away. However, Officer Jones' arm remained entangled with Defendant's shirt and seatbelt.
Defendant accelerated as the lower half of Officer Jones' body was suspended from the drivers' side window of the truck while his feet bounced on the road. After a few moments, Officer Jones' arm became free and he fell from the side of the vehicle. Describing his injuries at trial, Officer Jones explained that: "as I attempted to stand, I could feel that every joint in my body seemed like it was on fire, especially my right arm where all the skin was gone from road rash. I then felt pain in my ribs, which was later found to be bruised. No fractures or broken bones." Defendant drove to the end of the street, turned around in a cul-de-sac, and drove by the officers going in the opposite direction.
Following a jury trial, Defendant was convicted and sentenced for two counts of speeding to elude arrest, two counts of assault with a deadly weapon upon a government official, and attaining habitual felon status. Defendant's assault convictions were for his collision with Detectives Osborne's vehicle, and backing into Detective Pope's patrol car. Defendant appeals from his convictions arguing that:(I) the trial court erred when entering judgment with respect to two assault charges because the state failed to present substantial evidence that he committed all the essential elements of each charged offense; (II) he received ineffective assistance of counsel when his attorney failed to move to dismiss the charges at the close of all the evidence; (III) the trial court committed plain error when it failed to submit to the jury the lesser offense of assault on a government official.
I.
Defendant first argues that the trial court erroneously entered judgment on two of his assault convictions because the state failed to present substantial evidence of all the elements of the offense. We disagree.
At trial, Defendant moved to dismiss his charges following the conclusion of the State's case. The trial court denied Defendant's motion to dismiss. Thereafter, Defendant testified in his defense and the State presented rebuttal evidence. Defendant's counsel failed to renew his earlier motion to dismiss at the close of all the evidence. Because Defendant failed to renew his motion to dismiss the charges at the close of all the evidence, he did not properly preserve this issue for our review and it is dismissed. State v. Freeman, 164 N.C. App. 673, 676-77, 596 S.E.2d 319, 322 (2004) (N.C.R. App. P. 10 (a) (3) ("if Defendant fails to move to dismiss the action . . . at the close of all the evidence, he may not challenge on appeal the sufficiency of the evidence to prove the crime charged.")).
II.
Defendant next argues that "he received ineffective of counsel when his attorney failed to move to dismiss the charges at the close of all the evidence." We disagree.
"A defendant's right to counsel includes the right to the effective assistance of counsel." State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247 (1985) (citing McMann v. Richardson, 397 U.S. 759, 771, 25 L. Ed. 2d 763, 773 (1970)). The right to effective assistance of counsel is guaranteed by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment. State v. Hensley, 294 N.C. 231, 239, 240 S.E.2d 332, 336 (1978) (citing Avery v. State of Alabama, 308 U.S. 444, 84 L. Ed. 377 (1940)). Our Supreme Court has provided that:
[t]o successfully assert an ineffective assistance of counsel claim, defendant must satisfy a two-prong test. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). First, he must show that counsel's performance fell below an objective standard of reasonableness. See State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985). Second, once defendant satisfies the first prong, he must show that the error committed was so serious that a reasonable probability exists that the trial result would have been different absent the error. See Strickland, 466 U.S. at 691-96, 104 S.Ct. at 2052-69, 80 L. Ed. 2d at 696-99.
State v. Blakeney, 352 N.C. 287, 307-08, 531 S.E.2d 799, 814-15 (2000).
"The second element of the Strickland test requires that the defendant show a `reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" State v. Blackmon, ___ N.C. App. ___, ___, 702 S.E.2d 833, 836 (2010) (quoting Strickland v. Washington, 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698 (1984)). Both prongs must be met to establish an ineffective assistance claim. Id. "`[I]f a reviewing court can determine at the outset that there is no reasonable probability that in the absence of counsel's alleged errors the result of the proceeding would have been different, then the court need not determine whether counsel's performance was actually deficient.'" Id. (quoting State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 249 (1985)). "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 included offense therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied." State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). "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). "The trial court must consider such evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom." State v. Patterson, 335 N.C. 437, 450, 439 S.E.2d 578, 585 (1994) (citation omitted).
To survive a motion to dismiss the offense of assault with a deadly weapon upon a government official, the State must present substantial evidence that:(1) the defendant committed an assault; (2) the assault was committed with a deadly weapon; (3) the assault was committed "upon an officer or employee of the State or of any political subdivision of the State;" (4) while the government official was performing a duty of his or her office. N.C. Gen. Stat. § 14-34.2 (2009).
On appeal, Defendant argues that the State failed to present substantial evidence that he acted with the intent to assault Detectives Pope and Osborne, or that his vehicle was a "deadly weapon."
Defendant specifically argues that the State failed to present evidence that he intended to collide with the patrol cars of Detectives Pope and Osborne. "In order for a jury to convict a defendant of assault with a deadly weapon inflicting serious injury, it must find that it was the defendant's actual intent to strike the victim with his vehicle, or that the defendant acted with culpable negligence from which intent may be implied." State v. Maready, ___ N.C. App. ___, ___, 695 S.E.2d 771, 781 (2010) (citation omitted). "Culpable or criminal negligence has been defined as `such recklessness or carelessness, proximately resulting in injury or death, as imports a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others.'" State v. Jones, 353 N.C. 159, 165, 538 S.E.2d 917, 923 (2000) (quoting State v. Weston, 273 N.C. 275, 280, 159 S.E.2d 883, 886 (1968)).
In this case, the State presented substantial evidence that Defendant was speeding in an attempt to elude arrest. During the chase, Defendant traveled at a high rate of speed, ran through a red light, ran through a stop sign, weaved in and out of traffic, and crossed the double yellow line. Defendant collided with at least two patrol vehicles and drove while an officer hanged on the side of his vehicle. Defendant's actions are reflective of his "thoughtless disregard of consequences or a heedless indifference to the safety [and rights] of others." Id. (internal quotation marks omitted). As a result of his behavior, he collided with Detectives Pope and Osborne's patrol vehicles. Defendant's intent can be inferred from reckless driving, collided with the patrol cars, and damage caused to each vehicle. Defendant's argument is without merit.
Defendant contends that the State failed to present substantial evidence that Defendant's truck was a deadly weapon. A deadly weapon is "[a]ny instrument which is likely to produce death or great bodily harm," considering the circumstances under which the instrument was utilized. State v. Smith, 187 N.C. 469, 470, 121 S.E. 737, 738 (1924). "The deadly character of the weapon depends sometimes more upon the manner of its use, and the condition of the person assaulted, than upon the intrinsic character of the weapon itself." Id. However, where the alleged deadly weapon and the manner in which it was used can only lead to a single conclusion, whether the weapon was indeed a deadly weapon presents a question of law for the court. Id. "It is well settled in North Carolina that an automobile can be a deadly weapon if it is driven in a reckless or dangerous manner." State v. Jones, 353 N.C. 159, 164, 538 S.E.2d 917, 922 (2000).
In the case sub judice, the State presented substantial evidence that Defendant operated his vehicle at an excessive rate of speed, weaved through traffic, ran at least one stop sign, ran at least one stop light, and went the wrong way through a traffic circle. When viewed in a light most favorable to the State, there is substantial evidence that Defendant operated his vehicle in a reckless and dangerous manner on 25 July 2007. Accordingly, there was substantial evidence from which the jury could conclude that Defendant's truck was a deadly weapon. Defendant's argument is without merit.
Because the State presented sufficient evidence that Defendant acted with the requisite intent for the commission of assault with a deadly weapon upon government officials, (Detectives Pope and Osborne) and that Defendant's vehicle was a deadly weapon, the trial court properly denied Defendant's motions to dismiss. Further because Defendant failed to establish that "but for counsel's unprofessional errors, the result of the proceeding would have been different[,]" Blackmon, ___ N.C. App. at ___, 702 S.E.2d at 836, Defendant did not meet the second prong of the Strickland test and his ineffective assistance of counsel is without merit.
III.
In his final argument on appeal, Defendant contends that "the trial court committed plain error when it failed to submit to the jury the lesser [included] offense of assault on a government official where there was a legitimate factual question as to whether [his] truck was a deadly weapon." We disagree.
Because Defendant failed to raise objection to the jury charge at trial, we review this issue for plain error. See State v. Walker, 170 N.C. App. 632, 636, 613 S.E.2d 330, 333 (2005) (holding that plain error review is appropriate where a defendant fails to raise objection to the omission of a jury charge at trial). "In order to rise to the level of plain error, the error in the trial court's instructions must be so fundamental that [(1] absent the error, the jury probably would have reached a different verdict; or [(2] the error would constitute a miscarriage of justice if not corrected." State v. Holden, 346 N.C. 404, 435, 488 S.E.2d 514, 531 (1997) (citing State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993)).
When a trial court instructs the jury as to the offense of assault with a deadly weapon upon a government official, the jury must also receive instruction as to the lesser included offense of misdemeanor assault on a government official, unless the trial court determines, as a matter of law, that the defendant used a "deadly weapon." State v. Smith, 186 N.C. App. 57, 65-66, 650 S.E.2d 29, 35-36 (2007) (emphasis added). Typically, whether a weapon is deadly is a question reserved for the trial court. State v. McCoy, 174 N.C. App. 105, 112, 620 S.E.2d 863, 869 (2005) (citation omitted). "Only `where the instrument, according to the manner of its use or the part of the body at which the blow is aimed, may or may not be likely to produce such results, its allegedly deadly character is one of fact to be determined by the jury.'" Id. (quoting State v. Joyner, 295 N.C. 55, 64-65, 243 S.E.2d 367, 373-74 (1978)). However, where the alleged weapon and the manner in which it was used can only lead to the conclusion that the weapon was indeed deadly, the inquiry is a question of law reserved for the trial court. Id.
On several occasions, our Court has recognized that an "automobile driven at a high speed is a deadly weapon as a matter of law." State v. Batchelor, 167 N.C. App. 797, 800, 606 S.E.2d 422, 424 (2005). In Batchelor, our Court reasoned that the defendant's vehicle was a "deadly weapon" as a matter of law, where the evidence revealed that: the defendant drove his vehicle directly at a law enforcement officer; the defendant drove his vehicle at a high rate of speed; and "[t]wo cars had to take evasive action to avoid a head-on collision with defendant, and defendant crashed into [a] third car with the officer in it." Id.
Here, there was substantial evidence that Defendant was operating his vehicle at a high rate of speed throughout most of the chase and violated a number of traffic laws in an effort to elude capture. Defendant collided with two police vehicles and injured an officer as a result of his actions. Because of the evidence presented, there was no substantial likelihood that a different verdict would be reached, and therefore there is no plain error.
No error.
Judges CALABRIA and STEELMAN concur.
Report per Rule 30(e).