Opinion
No. COA02-847
Filed 3 June 2003 This case not for publication
Appeal by defendant from judgments entered 8 March 2002 by Judge Howard R. Greeson, Jr. in Superior Court, Brunswick County. Heard in the Court of Appeals 27 March 2003.
Attorney General Roy Cooper, by Assistant Attorney General Clinton C. Hicks, for the State. Geoffrey W. Hosford, for defendant.
Brunswick County Nos. 01 CRS 1347, 01 CRS 1348, 01 CRS 2802.
Robert Michael Stillwell (defendant) was convicted on 8 March 2002 of two counts of assault upon a government official and one count of assault with a deadly weapon upon a government official. After determining defendant had a prior record level of III, the trial court sentenced defendant to two terms of 150 days active imprisonment to run consecutively, as well as a minimum term of 21 months to a maximum term of 35 months suspended, subject to 60 months supervised probation to begin at the expiration of the two terms of active imprisonment. Defendant appeals.
The State's evidence tended to show that defendant, along with his girlfriend, Chasity Steele (Ms. Steele), his mother, Sheila Holland (Ms. Holland), and his stepfather, Charles Holland (Mr. Holland), had dinner in Shallotte, North Carolina at Zeng's Chinese Restaurant (the restaurant) on 16 March 2001 around 7:30 to 8:00 p.m. Defendant was a resident of Gastonia, North Carolina. The group had been in Myrtle Beach, South Carolina earlier that day, and had consumed some alcoholic beverages around 4:30 or 5:00 p.m. Defendant had consumed four beers, Ms. Steele had consumed a few mixed drinks, Mr. Holland had consumed four or five beers, and Ms. Holland had consumed at least three rum drinks. At least three law enforcement officers who witnessed the group testified that all of the members of the group appeared to be impaired that evening.
Everyone in the group ordered the buffet dinner at the restaurant. Before leaving, Ms. Steele asked the waiter for a to-go container because she could not finish all of the food on her plate. After Ms. Steele put her food in the to-go container the owner, Margaret Zeng (Ms. Zeng), told Ms. Steele that she would have to pay extra to take the to-go container out of the restaurant. Ms. Zeng explained this to Ms. Steele and the group several times. The group became angry, cursed excessively and were rude to Ms. Zeng. Ms. Steele said she was not going to pay for another buffet and threw the to-go container at Ms. Zeng, covering her with food.
Ms. Zeng called 911 and had begun speaking with a 911 operator when she noticed that two Brunswick County deputy sheriffs were standing in the restaurant doorway waiting to be seated. Deputies Todd and Babson were not in uniform; however, they were wearing their sheriff's badges and their guns. Ms. Zeng asked the deputies if they were on duty and they said they were. At the same time, Ms. Holland was attempting to leave the restaurant with a container of food. Deputy Todd advised defendant, Ms. Holland, and Mr. Holland that she and Deputy Babson were deputy sheriffs. Deputy Babson told Ms. Holland that if she left the restaurant with the food, she would be arrested. Ms. Holland walked outside, followed by Ms. Zeng, the deputy sheriffs, defendant and Mr. Holland.
While Ms. Zeng was telling the deputy sheriffs what had happened in the restaurant, Ms. Steele became angry and violent, prompting Deputy Babson to ask Ms. Steele to step aside to settle her down. Ms. Zeng also testified that as she continued telling the deputies what had occurred, Ms. Holland said, "I'm going to throw this other plate of food at you." Deputy Todd responded, "[i]f you throw that plate, I'm going to arrest you right here." Ms. Holland bent over and said, "[o]h, she's punched me in the face." However, Deputy Todd testified that she did not hit Ms. Holland at any time. Deputy Babson dialed 911 on her cell phone to request another officer. Defendant shouted, "[w]hip her a —" and "I don't give a [g.d.], bring the [m.f.] police on." Defendant began walking toward Deputy Todd, who put her hand up warning defendant not to approach her. Defendant stated, "If you didn't have that gun and that badge on your side, I'd show you how it was done in Gastonia." Deputy Babson's call to 911 was abruptly ended when Ms. Steele hit her from behind, knocking the cell phone from Deputy Babson's hand. Deputy Todd testified that Ms. Steele shouted, "[y]ou hit my mother-in-law, I'll kick your a — ," and then began attacking Deputy Todd. Deputy Todd told Ms. Steele that she was under arrest. Defendant blocked Deputy Todd's path to Ms. Steele, moving in between Ms. Steele and Deputy Todd every time Deputy Todd tried to place Ms. Steele under arrest. While defendant was acting as a shield, Ms. Steele hit Deputy Todd in the face twice and kicked her once or twice.
Deputy Babson testified that Ms. Steele turned on her, saying that "nobody touched her husband." Defendant responded, saying, "[u]ndoubtedly, they don't know how we f----d them up in Gastonia." Deputy Babson called 911 again and followed Ms. Steele into the parking lot. Deputy Babson placed one hand on Ms. Steele and one hand on the door of the car Ms. Steele was walking towards. Defendant grabbed Deputy Babson from behind by her arms and pulled her around. While Deputy Babson was being held by defendant, Ms. Steele hit her in the face and grabbed her glasses and hair. Defendant bruised and scratched Deputy Babson's arms when he grabbed her.
After Deputy Babson struggled free from defendant's grasp, defendant and Ms. Steele were standing in front of Deputy Babson. Defendant was also pinning Deputy Todd up against the car. Ms. Holland reached around defendant and Ms. Steele and stabbed Deputy Babson in the hip with a knife. Deputy Babson shouted to Deputy Todd that she had been stabbed by Ms. Holland. Ms. Holland and defendant ran away, enabling Deputy Babson to regain control of Ms. Steele.
After several law enforcement officers arrived, Deputy Babson asked Deputy Marshall Evans to take Ms. Steele since Deputy Babson had been stabbed and needed to go to the rescue unit. Deputy Babson was taken by ambulance to Brunswick Emergency Center. Deputy Evans arrested Ms. Steele and placed her in a patrol car. Deputy Todd and another officer went back into the restaurant to find Ms. Holland. After an initial struggle, Ms. Holland was arrested. Deputy Todd placed Ms. Holland in the patrol car where Ms. Steele was seated. Ms. Holland pinned Deputy Todd against the cage unit in the patrol car and began kicking her in the face, shouting, "[y]ou four-eyed b — ch, I'll beat your a--." After Deputy Todd got Ms. Holland under control, defendant and Mr. Holland walked by the patrol car and defendant stated, "[t]his is the way we do it in Gastonia."
Defendant testified at trial that after Ms. Steele left the restaurant, he went to the counter to pay for his meal. He testified that he could not pay for his meal because Ms. Zeng left the register. While he was looking through the glass door of the restaurant, he saw Deputy Todd yanking Ms. Steele around, and he told Ms. Holland to go see what was going on. Defendant testified that he did not know Deputy Todd was a law enforcement officer. Defendant testified that he pinned Deputy Todd against a car and Deputy Todd then slapped him, and that as defendant was preparing to punch Deputy Todd, she pulled out her badge, causing defendant to stop. Defendant testified that he only tried to help restrain Ms. Steele and did not intentionally strike Deputy Babson as she and Ms. Steele were walking away from the restaurant. Defendant denied that the voice heard on the 911 tapes shouting obscenities was his, or that he ever stated anything in a threatening way about being from Gastonia. Defendant admitted he had been convicted of two counts of simple possession of marijuana, one count of carrying a concealed weapon, and one count of trespassing.
Julia Hardy (Ms. Hardy) testified she witnessed what happened at the restaurant. Ms. Hardy was being represented in another matter by the attorney representing Ms. Steele in this case. She testified that she saw food flying in the restaurant, and then saw Ms. Steele leave the restaurant. Ms. Hardy testified that defendant and Mr. Holland attempted to pay for their food before leaving the restaurant. She did not notice anything about the appearance of Deputies Babson and Todd that suggested they were law enforcement officers. However, Ms. Hardy admitted that she could not see the second deputy very well because the deputies were standing one in front of the other blocking her angle of vision. Ms. Hardy also testified that she saw Deputy Todd hit Ms. Holland in the face, but on cross-examination she agreed it was more of a push than a strike. Ms. Hardy testified that she did not see defendant touch either of the deputies; however, she admitted she could not see the part of the incident that occurred farther into the parking lot between the cars.
Mr. Holland testified that as the group finished eating, Ms. Steele became angry and slammed her to-go container down on the table, causing food to fly everywhere. He testified that Ms. Steele then left the restaurant. Mr. Holland said that while standing in line to pay for his meal, he saw Ms. Steele outside the restaurant arguing with Deputy Todd. While he and defendant stood in line to pay, defendant sent Ms. Holland outside to see what was going on. He testified that Deputy Todd began "whupping up" on Ms. Steele and that Ms. Holland was trying to break it up. Mr. Holland testified that when he and defendant walked outside, he saw Deputy Todd slap Ms. Holland. Mr. Holland became angry and shouted, "[s]omeone needs to call the G.D. police." He also testified that defendant pushed Deputy Todd against a car, and that Deputy Todd pulled out her badge and said, "I am the police." Other police officers arrived and Mr. Holland was told to pay for the meals, which he did. When he came back outside, Ms. Holland and Ms. Steele were being arrested.
When defendant arrived for the first court appearance of Ms. Steele and Ms. Holland on 19 March 2001, he was arrested on warrants for two counts of assault on a government official. An indictment was later issued by a grand jury for assault with a deadly weapon on a government official by defendant.
Defendant has failed to put forth an argument in support of his second assignment of error and this assignment is deemed abandoned pursuant to N.C.R. App. P. 28(b)(6).
I.
Defendant argues the trial court erred in denying his motion to dismiss the charges at the close of the State's evidence and at the close of all evidence, in that the evidence was insufficient to support the charges. Specifically, defendant argues that even viewed in a light most favorable to the State, there is no evidence that defendant aided or actively encouraged Ms. Holland to stab Deputy Babson. Defendant has limited his argument to the assault with a deadly weapon charge, thus abandoning any claim of insufficient evidence to support the two charges of assault on a government official. N.C.R. App. P. 28(b)(6).
"When considering a motion to dismiss, '[i]f the trial court determines that a reasonable inference of the defendant's guilt may be drawn from the evidence, it must deny the defendant's motion and send the case to the jury even though the evidence may also support reasonable inferences of the defendant's innocence.'" State v. Alexander, 337 N.C. 182, 187, 446 S.E.2d 83, 86 (1994) (quoting State v. Smith, 40 N.C. App. 72, 79, 252 S.E.2d 535, 540 (1979)), quoted in State v. Grigsby, 351 N.C. 454, 456-57, 526 S.E.2d 460, 462 (2000). In analyzing a motion to dismiss, the trial court must consider the evidence in the light most favorable to the State. State v. Davis, 325 N.C. 693, 696, 386 S.E.2d 187, 189 (1989). Moreover, the State is given every reasonable inference to be drawn from the evidence. Id. If substantial evidence exists, whether direct, circumstantial, or both, supporting a finding that the offense charged was committed by the defendant, the case must be left for the jury. Id. at 696-97, 386 S.E.2d at 189. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).
State v. Matias, 354 N.C. 549, 551-52, 556 S.E.2d 269, 270 (2001).
The trial court submitted the charge of assault with a deadly weapon to the jury on the basis of acting in concert. As stated by our Supreme Court in State v. Mann:
The doctrine of acting in concert, as reaffirmed by this Court in State v. Barnes, 345 N.C. 184, 481 S.E.2d 44, cert. denied, 522 U.S. 876, 139 L.Ed.2d 134 (1997), and cert. denied, 523 U.S. 1024, 140 L.Ed.2d 473 (1998), is summarized as follows:
'[I]f "two persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal if the other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose . . . or as a natural or probable consequence thereof.'"
State v. Erlewine, 328 N.C. 626, 637, 403 S.E.2d 280, 286 (1991) (quoting State v. Westbrook, 279 N.C. 18, 41-42, 181 S.E.2d 572, 586 (1971), death sentence vacated, 408 U.S. 939, 33 L.Ed.2d 761 (1972)) (alterations in original), quoted in Barnes, 345 N.C. at 233, 481 S.E.2d at 71. For purposes of the doctrine, "[a] person is constructively present during the commission of a crime if he or she is close enough to be able to render assistance if needed and to encourage the actual perpetration of the crime." State v. Willis, 332 N.C. 151, 175, 420 S.E.2d 158, 169 (1992).
Mann, 355 N.C. 294, 306, 560 S.E.2d 776, 784, cert. denied, ___ U.S. ___, 154 L.Ed.2d 403 (2002). Under this standard, when viewed in a light most favorable to the State, there is sufficient evidence to permit a jury to find that defendant, Ms. Holland, and Ms. Steele had a joint purpose to resist and overpower Deputies Babson and Todd. Defendant was at least constructively present in that he was "close enough to be able to render assistance if needed and to encourage the actual perpetration of the crime." Mann, 355 N.C. at 306, 560 S.E.2d at 784 (citations omitted). In fact, the evidence was sufficient to allow a jury to find that defendant was actively present during the resistance. There was evidence that defendant entered the scuffle to assist Ms. Steele and Ms. Holland in their dispute with Deputies Babson and Todd. Further, there was evidence that defendant made such statements during the scuffle as "[w]hip her a — ," "I don't give a [g.d.], bring the [m.f.] police on," and "they don't know how we f----d them up in Gastonia." Defendant also grabbed Deputy Babson from behind, leaving bruises on her arms, and held her while Ms. Holland hit her in the face, grabbed her glasses, and pulled her hair.
Although evidence showed that Ms. Holland actually stabbed Deputy Babson, as stated above, under the theory of acting in concert, defendant is guilty of any "crime committed by the other in pursuance of the common purpose . . . or as a natural or probable consequence thereof." Mann, 355 N.C. at 306, 560 S.E.2d at 784 (citations omitted). In fact, the stabbing occurred while Deputies Babson and Todd were either held or distracted by defendant and Ms. Steele. There was sufficient evidence to permit a jury to find that the stabbing of Deputy Babson was committed in pursuance of the common purpose of resisting Deputies Babson and Todd. The trial court did not err in denying defendant's motion to dismiss. This assignment of error is overruled.
II.
Defendant next argues the trial court committed plain error in conducting the charge conference off the record, presumably hearing requests for jury instructions from counsel at that time, announcing its proposed jury instructions, and failing to give defendant an opportunity to object to the instructions. This contention is without merit.
N.C. Gen. Stat. § 15A-1231(b) (2001) states:
Before the arguments to the jury, the judge must hold a recorded conference on instructions out of the presence of the jury. At the conference the judge must inform the parties of the offenses, lesser included offenses, and affirmative defenses on which he will charge the jury and must inform them of what, if any, parts of tendered instructions will be given. A party is also entitled to be informed, upon request, whether the judge intends to include other particular instructions in his charge to the jury. The failure of the judge to comply fully with the provisions of this subsection does not constitute grounds for appeal unless his failure, not corrected prior to the end of the trial, materially prejudiced the case of the defendant.
Although the trial court did conduct an informal charge conference off the record, it also heard motions by co-defendants Ms. Steele and Ms. Holland for a special instruction. The trial court then asked if there were "[a]ny other special requests?," to which defendant's counsel remained silent. (T. p. 469) The trial court then stated:
Well, I want to — I need to have — at this point, I need to open it up for a recorded charge conference. I've given each of you a copy of the proposed charge. We've gone through it informally, but I want any of you at this time to tell me — to put on the record any objections or exceptions, if you've got — to what I've given you.
Counsel for co-defendants again requested special instructions and stated their objections on the record to the proposed jury instructions. Although defendant's counsel was present at the time, defendant's counsel again remained silent as to the proposed jury instructions despite already having a copy of the instructions; her presence is evidenced by the renewal of defendant's motion to dismiss, which was denied. We also note that even before the close of the State's evidence, the trial court gave all parties a copy of the proposed jury charge and discussed the proposed charge with them, taking suggestions from counsel, and encouraging each party to "read the charge more carefully." There was also extended discussion concerning the proposed instruction when motions were made at the close of the State's evidence, in which defendant's counsel made a request concerning the proposed jury instruction. Following closing arguments, the trial court asked if there was anything further for any of the defendants, to which each responded there was not. The following morning, the trial court again asked each attorney individually if there were any matters to be heard by the court and each responded there was not. After instructing the jury, the trial court asked if there were any objections. Counsel for co-defendant Ms. Steele raised an objection, resulting in remedial action by the trial court; however, counsel for defendant remained silent.
The trial court did not violate the requirements of N.C.G.S. § 15A-1231(b). The trial court conducted a charge conference on the record and defendant's counsel had a copy of the proposed jury instructions and was given several opportunities to object on the record, which counsel for defendant did not do. This assignment of error is overruled.
III.
Defendant argues the trial court erred in excusing juror number three. Defendant contends that the trial court's dismissal of the juror without making an inquiry as to her ability to render a fair verdict constituted plain error. We disagree.
During the trial, the trial court learned that juror number three had contact with Ms. Hardy, a proposed defense witness. Juror number three did not know that Ms. Hardy was going to be a defense witness when she spoke with her. The trial court's inquiry as to the nature of the discussion between juror number three and Ms. Hardy did not show they discussed defendant's case, only that they discussed an upcoming baby shower. However, because of "the appearance of an impropriety" and out of caution the trial court dismissed juror number three, replacing her with an alternate juror. Defendant did not object to the trial court's dismissal of juror number three.
It is well-settled law in this State that the determination of the trial court on the question of juror misconduct will be reversed only where an abuse of discretion has occurred. O'Berry v. Perry, 266 N.C. 77, 145 S.E.2d 321 (1965); Brown v. Products Co., 5 N.C. App. 418, 168 S.E.2d 452 (1969); 7 Strong, N.C. Index 2d, Trial, § 50 (1968). The reason for the rule of discretion is apparent. Misconduct is determined by the facts and circumstances in each case. The trial judge is in a better position to investigate any allegations of misconduct, question witnesses and observe their demeanor, and make appropriate findings.
State v. Drake, 31 N.C. App. 187, 190, 229 S.E.2d 51, 54 (1976).
We hold that the trial court in this case did not abuse its discretion. Even though the trial court's investigation of the conversation between Ms. Hardy and juror number three did not show that they discussed defendant's case, the trial court, after admonishing the jurors not to converse with witnesses in the case, determined that "[y]ou're not going to convince one side they're getting a fair trial if they see a juror in the presence of a party or a witness for the other side, even though they may be talking about [something innocuous]." The trial court's action to avoid possible prejudice to defendant, when juror number three clearly spoke with a witness in the trial during a recess, is not an abuse of discretion. Further, defendant has not shown any prejudice that resulted from the dismissal of juror number three and her replacement by an alternate juror. This assignment of error is overruled.
IV.
Defendant argues the trial court erred in granting the State's motion to join defendant's and co-defendants' cases for trial. Defendant argues that the joinder prohibited him from using an exculpatory statement in his defense, in that the State agreed to not introduce a statement co-defendant Ms. Steele made to law enforcement which implicated co-defendant Ms. Holland as the person who stabbed Deputy Babson in the hip.
N.C. Gen. Stat. § 15A-926(b) allows for joinder of separate defendants for trial where their offenses are transactionally related and where no defendant would be deprived of a fair trial due to the joinder. State v. Cinema Blue of Charlotte, 98 N.C. App. 628, 633, 392 S.E.2d 136, 139, appeal dismissed and disc. review denied, 327 N.C. 142, 394 S.E.2d 181 (1990), cert. denied, 498 U.S. 1083, 112 L.Ed.2d 1042 (1991). In Cinema Blue of Charlotte, this Court explained:
G.S. 15A-926(a) allows consolidation of separate offenses for trial when the offenses charged are "based on the same act or transaction or on a series of transactions connected together or constituting parts of a single scheme or plan." Subsection (b) similarly permits joinder of separate defendants for trial when the several offenses charged are transactionally related. . . .
In addition to the transactional requirement, the trial court must determine that none of the defendants would be deprived of a fair trial by being tried together or by facing more than one charge at the same trial. State v. Williams, 74 N.C. App. 695, 329 S.E.2d 705 (1985). However, when the offenses are transactionally related, the trial court's ruling on a motion for joinder or severance is discretionary and, absent a showing of abuse, will not be disturbed on appeal. State v. Wilson, 57 N.C. App. 444, 291 S.E.2d 830, cert. denied, 306 N.C. 563, 294 S.E.2d 375 (1982); State v. Lake, 305 N.C. 143, 286 S.E.2d 541 (1982).
Cinema Blue of Charlotte, 98 N.C. App. at 633, 392 S.E.2d at 139.
Defendant does not argue that the offenses in question are not transactionally related. However, defendant does argue that his right to a fair trial was violated, and thus the joinder was improper. See id. Defendant contends that the statement by co-defendant Ms. Steele that co-defendant Ms. Holland stabbed Deputy Babson is an exculpatory statement. The State could not admit Ms. Steele's statement because in a joint trial it would violate co-defendant Ms. Holland's rights under the confrontation clause of the Sixth Amendment. Bruton v. United States, 391 U.S. 123, 135-36, 20 L.Ed.2d 476, 484-85 (1968) (holding that an accused's rights under the Sixth Amendment confrontation clause are violated if the court admits a non-testifying co-defendant's statement inculpating the accused at a joint trial). Defendant further argues that by joining the cases for trial, due to the limitation in Bruton, defendant's right to present witnesses in his own defense and his right to confrontation were denied.
Upon review of the record, there was sufficient evidence otherwise demonstrating that co-defendant Ms. Holland, not defendant, stabbed Deputy Babson. The statement of co-defendant Ms. Holland is not exculpatory as to defendant when there was never any issue as to who stabbed Deputy Babson. Further, this statement could not be classified as exculpatory where defendant was convicted of assault with a deadly weapon on a government official under the theory of acting in concert. As discussed above, under the theory of acting in concert, defendant did not need to be the person who stabbed Deputy Babson to be convicted of assault with a deadly weapon on a government official. See Mann, 355 N.C. at 306, 560 S.E.2d at 784. The trial court did not abuse its discretion in allowing the State's motion for joinder. This assignment of error is overruled.
V.
Defendant also argues the trial court erred in its jury instructions. Defendant specifically contends that the trial court committed plain error by: (1) deviating from the North Carolina Pattern Jury Instruction on reasonable doubt, thus lowering the State's burden of proof; (2) instructing the jury that as a matter of law, the State has proven two of the elements of assault on a government official, thereby reducing the State's burden of proof; and (3) improperly expressing an opinion by asking the jury several times during the instructions whether they understood the instructions or had any questions. Since defendant did not object to the jury instructions at trial, under N.C.R. App. P. 10(b)(2) and State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983), we review the instructions for plain error only, as requested by defendant. In order to show plain error, a defendant must show that the alleged jury instruction error "had a probable impact on the jury's finding that the defendant was guilty." Odum, 307 N.C. at 660, 300 S.E.2d at 378 (citation omitted).
A.
Defendant contends that the trial court's instruction on reasonable doubt violated defendant's due process rights, constituting plain error, in that it lowered the State's burden to less than that of proving defendant guilty beyond a reasonable doubt. We find this argument to be without merit. When the trial court defines "reasonable doubt" for a jury, that definition must be "substantially correct." State v. Miller, 344 N.C. 658, 671, 477 S.E.2d 915, 923 (1996) (citation omitted). "[N]o particular formation of words is necessary to properly define reasonable doubt, but rather the instructions, in their totality, must not indicate that the State's burden is lower than `beyond a reasonable doubt.'" State v. Taylor, 340 N.C. 52, 59, 455 S.E.2d 859, 862-63 (1995) (citing Victor v. Nebraska, 511 U.S. 1, 127 L.Ed.2d 583 (1994)).
In the present case, the trial court instructed the jury that:
Now a reasonable doubt, members of the jury means exactly what it says. It's not a mere possible [sic]. It's not an academic or a theoretical or a forced doubt. There are few things in human experience which are beyond a shadow of a doubt or which are beyond all doubt. Nor is it a doubt suggested by the ingenuity of counsel for either side or even by your own ingenuity of mind not legitimately warranted by the evidence and the testimony here in this case. Of course, your reason and your common sense would tell you that a doubt would be reasonable if it was founded upon or it was suggested by any of these types of considerations. A reasonable doubt is a doubt based on reason and common sense, arising out of some or all of the evidence that has been presented or the lack of or insufficiency of the evidence, as the case may be.
Proof beyond a reasonable doubt is proof that fully satisfies or entirely convinces you of the Defendant's guilt. (Emphasis added.)
Defendant argues that the emphasized wording in this instruction creates an "inherent contradiction" for the jury. We disagree. The language of the instruction on reasonable doubt given by the trial court does not indicate that the State's burden is less than "beyond a reasonable doubt." The sentence defendant complains of was immediately followed by language indicating to the jury what considerations are appropriate in reaching its decision and what considerations are inappropriate. Defendant has not met his burden of showing that the reasonable doubt instruction "had a probable impact on the jury's finding that the defendant was guilty." Odum, 307 N.C. at 660, 300 S.E.2d at 378 (citation omitted).
B.
Defendant argues that the trial court committed plain error by instructing the jury that, as a matter of law, the jury must find (1) that Deputy Babson was an officer of a political subdivision of North Carolina, and (2) that Deputy Babson was performing a duty of her office at the time of the crime on 16 March 2001. Defendant argues the trial court's language instructed the jury that the State had proven two of the elements of assault on a government official and assault with a deadly weapon on a government official, thereby removing from the jury the requirement that it determine defendant's guilt beyond a reasonable doubt as to each element of the crimes charged, in violation of Apprendi v. New Jersey, 530 U.S. 466, 476-77, 147 L.Ed.2d 435, 447 (2000) (constitutional guarantees to due process of law and right to trial by jury provide that a criminal defendant must have a jury determine his guilt as to each and every element beyond a reasonable doubt), and Cage v. Louisiana, 498 U.S. 39, 41, 112 L.Ed.2d 339, 342 (1990) (per curiam) (due process guarantees violated when there is a reasonable likelihood that the jury interpreted the jury instruction as allowing conviction without proof beyond a reasonable doubt).
Defendant points out that the trial court submitted the lesser-included charge of simple assault upon the request of co-defendant Ms. Steele. Defendant argues that the submission of this lesser-included offense is an acknowledgment by the trial court that there was evidence in the record that defendant did not know Deputies Babson and Todd were law enforcement officers. However, although defendant is correct in this assertion, the trial court never instructed the jury that defendant knew that Deputies Babson and Todd were law enforcement officers. Defendant claims that the trial court's instructions on the challenged elements of assault on a government official eliminated the possibility that defendant would be convicted of simple assault. The elements of simple assault differ from that of assault on a government official only in relation to who the assault was committed upon. Compare N.C. Gen. Stat. § 14-33(a) (2001), with N.C. Gen. Stat. § 14-33(c)(4) (2001). If the State proves that defendant committed an assault on an individual, but in addition proves that defendant committed the assault on a law enforcement officer, that the officer was performing his law enforcement duties, and defendant actually knew or had reasonable grounds to know the individual assaulted was a law enforcement officer, he is guilty of assault on a law enforcement officer, not merely simple assault. Compare N.C.G.S. § 14-33(a), with N.C.G.S. § 14-33(c)(4). Defendant argues that the trial court's instructions therefore had a probable impact on the jury's verdict and thus constitutes plain error. We disagree, because even if the jury determined that Deputies Babson and Todd were law enforcement officers, it additionally had to reach the conclusion that defendant knew or reasonably should have known Deputies Babson and Todd were law enforcement officers.
The trial court instructed as follows:
Third, the State must prove beyond a reasonable doubt that Ms. Babson was an officer of a political subdivision of the State and that the Defendant knew or had reasonable grounds to know that Ms. Babson was an officer of a political subdivision of the State. And a deputy sheriff is an officer of a political subdivision of North Carolina. Now does everybody understand this third element? Because once again, just raise your hand. Don't be embarrassed because I'm going to take it up as I go. Okay.
Third, the State must prove beyond a reasonable doubt, and I'm repeating this, the State must prove that Ms. Babson was an officer of a political subdivision of the state. I've later [sic] instructed you that she is. And that the Defendant — the State must also prove in this element that the defendant knew or had reasonable grounds to know that Ms. Babson was an officer of a political subdivision of the state. Does everybody understand that?
. . .
And, fourth, the State must prove beyond a reasonable doubt that . . . Ms. Babson was performing a duty of her office. And I instruct you that attempting to handle any disturbance is a duty of a deputy sheriff.
The trial court did not remove the burden from the State of proving all of the elements of assault on a government official. There was no evidence in the record disputing that Deputy Babson was a deputy sheriff. The trial court left it to the jury to decide whether defendant knew or reasonably should have known that Deputy Babson was a law enforcement officer. Defendant has failed to show how this portion of the trial court's jury instruction amounts to plain error.
C.
Defendant also asserts that it was plain error for the trial court to ask the jurors during the instruction if they had any questions or if they understood his instructions. This contention has no merit. This case involved multiple co-defendants charged with various similar crimes. The trial court instructed on the theories of acting in concert and aiding and abetting — instructions the trial court stated that, through past experience, it had found jurors sometimes had difficulty understanding. The trial court was acting in the best interest of defendant when it inquired as to whether the jurors understood what the State was required to prove as to each charge. In contrast to defendant's contention, the trial court did not distinguish between the various portions of the instructions. The trial court asked if the jurors had any questions about all portions of the instructions, including the State's burden of proof, reasonable doubt, the elements of each offense, acting in concert, credibility of witnesses, the presumption of innocence, and circumstantial evidence. The trial court's jury instructions did not rise to the level of plain error. This assignment of error is overruled.
No error.
Judges McCULLOUGH and LEVINSON concur.
Report per Rule 30(e).