Opinion
No. COA09-29.
Filed August 4, 2009.
Appeal by Defendant from judgments entered 29 July 2008 by Judge Frank R. Brown in Superior Court, Bertie County. Heard in the Court of Appeals 10 June 2009.
Attorney General Roy Cooper, by Special Deputy Attorney General Jane T. Hautin, for the State.
Jarvis John Edgerton, IV for Defendant-Appellant.
Danyashi Terrell Wood (Defendant) was convicted of assault with a deadly weapon on a government official and resisting a public officer on 29 July 2008. Defendant also pleaded guilty to being an habitual felon. The trial court sentenced Defendant to a term of 93 months to 121 months in prison for assault with a deadly weapon on a government official. The trial court also sentenced Defendant to a term of sixty days in prison for Defendant's conviction of resisting a public officer, for which Defendant received credit for time served. Defendant appeals.
Chief Jimmy Barmer (Chief Barmer) with the Aulander Police Department testified that he was conducting drug surveillance on 30 August 2004 at approximately 9:00 p.m. when he saw Defendant parked at the Red Apple Market in Aulander. Chief Barmer activated his blue lights, got out of his car, and approached Defendant's vehicle. Defendant then tried to drive away. Chief Barmer told Defendant not to leave, and reached into Defendant's car with his right hand to attempt to turn off the ignition. However, Defendant began driving across the parking lot. Although Defendant did not grab Chief Barmer, Chief Barmer's arm was caught inside Defendant's car. Defendant drove across the parking lot with Chief Barmer's arm caught inside Defendant's car. Chief Barmer was dragged by Defendant's car, forcing Chief Baumer to run along side it. Defendant drove between two metal poles and underneath a shed. Chief Barmer was able to free himself from Defendant's car just before Defendant crashed into a parked van. Defendant exited his car and fled on foot. Chief Barmer chased Defendant and grabbed hold of him. Defendant did not present any evidence at trial.
I.
In Defendant's assignment of error number three, Defendant contends that the trial court erred when it failed to arrest judgment on Defendant's conviction for resisting a public officer because this conviction was based upon the same conduct as Defendant's conviction for assault with a deadly weapon on a government official.
The Double Jeopardy Clause of the North Carolina and United States Constitutions prohibits multiple punishments based upon identical evidence. See State v. Hardy, 298 N.C. 191, 257 S.E.2d 426 (1979). Our Court has stated that, "`[i]n determining whether two indictments are for the same offense, our courts have used the same-evidence test.'" State v. Newman, 186 N.C. App. 382, 387, 651 S.E.2d 584, 587 (2007) (quoting State v. Allah, 168 N.C. App. 190, 196, 607 S.E.2d 311, 315, disc. review denied, 359 N.C. 636, 618 S.E.2d 232 (2005)). The test in Newman asks two questions: "1) whether the facts alleged in the second indictment if given in evidence would have sustained a conviction under the first indictment, or 2) whether the same evidence would support a conviction in each case.'" Newman, 186 N.C. App. at 387, 651 S.E.2d at 587 (quoting State v. Ray, 97 N.C. App. 621, 624, 389 S.E.2d 422, 424 (1990)). In Newman, our Court determined that the trial court erred by granting the defendant's motion to dismiss the charge of resisting a public officer on the grounds of double jeopardy, where that charge was based on the defendant "pulling away and elbowing at" the officer. However, the charge of assault on a government official was based only on the defendant "elbowing" the officer. Id. at 388-89, 651 S.E.2d at 588-89.
Similarly, our Court has noted that, "`[f]or the plea of former jeopardy to be good, the plea must be grounded on the "same offense" both in law and in fact. It is not sufficient that the two offenses arise out of the same transaction.'" State v. Spellman, 167 N.C. App. 374, 381, 605 S.E.2d 696, 701 (2004) (quoting State v. Lewis, 32 N.C. App. 298, 301, 231 S.E.2d 693, 694 (1977)). Therefore, a double jeopardy violation does not result merely because two offenses arise out of the same transaction. In Spellman, the facts underlying the defendant's indictment for assault with a deadly weapon were different from the facts underlying his indictment for assault with a deadly weapon on a government official. Id. The defendant's first indictment alleged that he assaulted the law enforcement officer with a pickup truck, and the second indictment alleged that the defendant assaulted the law enforcement officer with a pickup truck by " dragging [the officer] with the truck and running over the officer's leg." Id. Therefore, our Court held that the defendant's convictions for both assault with a deadly weapon and assault with a deadly weapon on a government official did not violate the defendant's constitutional protection from double jeopardy. Id. at 383-84, 605 S.E.2d at 702-03.
In the present case, Defendant was charged with assault with a deadly weapon on a government official and resisting a public officer. Defendant's indictment for assault with a deadly weapon on a government official alleged in pertinent part that Defendant
unlawfully, willfully and feloniously did assault [Chief Barmer], a government officer of the Aulander Police Department . . . with a 2002 blue Honda Accord . . . which is a deadly weapon, by dragging [Chief Barmer] with the car out of one business parking lot, across a ditch, through another parking lot and striking a pole with the vehicle while still dragging [Chief Barmer] and then by driving through a shelter behind the second business and then running into a parked vehicle behind the business. At the time of the assault, [Chief Barmer] was performing the following duty of [his] office: attempting to stop and question . . . [D]efendant while investigating a crime.
Defendant's indictment for resisting a public officer alleged in pertinent part that Defendant:
unlawfully and willfully did resist, delay and obstruct [Chief Barmer], a public officer . . . by dragging [Chief Barmer] with his vehicle and after crashing the vehicle by fleeing from [Chief Barmer] by running from [him] on foot. At the time, [Chief Barmer] was discharging and attempting to discharge a duty of his office, attempting to stop and question . . . [D]efendant while investigating a crime.
(emphasis added).
Defendant's charge of assault with a deadly weapon on a government official was based upon Defendant's dragging Chief Barmer with his car, while Defendant's charge of resisting a public officer was based upon both Defendant's dragging Chief Barmer with his car and additionally, fleeing from him on foot after crashing into the parked van. At trial, the State presented evidence that (1) Defendant dragged Chief Barmer with his car and (2) that Defendant fled from Chief Barmer after Defendant crashed. Therefore, under the same evidence test, because the facts alleged in the indictments and presented at trial were not identical, Defendant's convictions of both assault with a deadly weapon on a government official and resisting a public officer did not violate Defendant's constitutional protection from double jeopardy. See Newman. Thus, Defendant's assignment of error number three is overruled.
II.
In his assignment of error number two, Defendant argues the trial court erred by denying Defendant's request for a jury instruction on misdemeanor assault on a government officer, a lesser-included offense of assault with a deadly weapon on a government officer.
When considering whether to submit to the jury a lesser included offense, the trial court must determine whether (1) "the lesser offense is, as a matter of law, an included offense for the crime for which the defendant is indicted" and (2) "there is evidence in the case which will support a conviction of the lesser included offense."
State v. Smith, 186 N.C. App. 57, 65, 650 S.E.2d 29, 35 (2007) (quoting State v. Drew, 162 N.C. App. 682, 685, 592 S.E.2d 27, 29, appeal dismissed and disc. review denied, 358 N.C. 735, 601 S.E.2d 867 (2004)). Our Court held in Smith that misdemeanor assault on a government official is a lesser included offense of felony assault with a deadly weapon on a government official. Id.
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) (quoting Keeble v. United States, 412 U.S. 205, 208, 36 L. Ed. 2d 844, 847 (1973)). "To determine whether this evidence is sufficient for submission of the lesser offense to the jury, we must view the evidence in the light most favorable to defendant." State v. Barlowe, 337 N.C. 371, 378, 446 S.E.2d 352, 357 (1994).
Our Supreme Court held in State v. Palmer, 293 N.C. 633, 643, 239 S.E.2d 406, 413 (1977), that
[i]f there is a conflict in the evidence regarding either the nature of the weapon or the manner of its use, with some of the evidence tending to show that the weapon used or as used would not likely produce death or great bodily harm and other evidence tending to show the contrary, the jury must, of course, resolve the conflict.
In the present case, whether Defendant was entitled to have the lesser-included offense submitted to the jury depends upon whether Defendant's car was a deadly weapon as a matter of law or was used as a deadly weapon. Id. at 642, 239 S.E.2d at 412.
"Where the alleged deadly weapon and the manner of its use are of such character as to admit of but one conclusion, the question as to whether or not it is deadly within the foregoing definition is one of law, and the Court must take the responsibility of so declaring. . . . But where it may or may not be likely to produce fatal results, according to the manner of its use, or the part of the body at which the blow is aimed, its alleged deadly character is one of fact to be determined by the jury."
Id. at 643, 239 S.E.2d at 413 (quoting State v. Smith, 187 N.C. 469, 470, 121 S.E. 737, 737 (1924)).
There is a conflict in the evidence in this case, and considering the evidence in the light most favorable to Defendant as required by Barlowe, we hold the trial court erred in failing to instruct the jury on the lesser-included offense of misdemeanor assault on a government official. See Palmer; Barlowe. The error is not cured by the guilty verdict of assault with a deadly weapon on a government official, since it cannot be known whether the jury would have convicted Defendant of misdemeanor assault on a government official had the jury been properly instructed. See State v. Pearce, 296 N.C. 281, 292, 250 S.E.2d 640, 648 (1979) ("[E]rror in failing to submit the lesser included offense is not cured by a verdict of guilty of the charged crime because it cannot be known whether the jury would have convicted on the lesser crime if it had been correctly submitted."). For the reasons stated, we must grant Defendant a new trial on the charge of assault with a deadly weapon on a government official.
No error in part; new trial in part.
Judges JACKSON and ERVIN concur.
Report per Rule 30(e).