in the Court of Appeals 9 February 2017.
by defendant from judgment entered 31 March 2016 by Judge
Alan Z. Thornburg in Watauga County Superior Court Watauga
County, No. 15 CRS 51160.
Attorney General Joshua H. Stein, by Assistant Attorney
General Kevin G. Mahoney, for the State.
& Smith, PLLC, by Laura M. Cobb, for defendant-appellant.
Mylett ("Defendant") appeals from his conviction
for assault on a government officer. On appeal, he contends
that the trial court erred by (1) denying his motion for a
continuance; and (2) denying his motions to dismiss.
Specifically, he argues that the trial court should have
granted his motion for a continuance so that he could prepare
a motion to dismiss on the basis that video footage of the
assault recorded on officers' body cameras was destroyed
prior to trial in violation of Brady v. Maryland,
373 U.S. 83, 10 L.Ed.2d 215 (1963).
further asserts that, because he did not intend to assault a
government officer, but instead intended to assault civilians
standing behind the officer, the charge of assault on a
government officer in violation of N.C. G.S. §
14-33(c)(4) (2015) was erroneously submitted to the jury as
the State failed to establish the requisite intent element of
the offense. After careful review, we reject Defendant's
arguments and conclude that he received a fair trial free
a.m. on 29 August 2015, Officer Jason Lolies ("Officer
Lolies") and Officer Forrest ("Officer
Forrest") with the Boone Police Department responded to
a call regarding a male who was bleeding from his head at 200
Misty Lane in Boone, North Carolina. Upon arriving at the
Misty Lane address, Officers Lolies and Forrest encountered
several hundred individuals, most of whom were college-aged.
Lolies recalled that "[a]s we got to the crest of the
hill, the driveway, that's when we heard a commotion and
it sounded like some arguments, some screaming, some fighting
sort of" coming from a smaller group of approximately 30
individuals. Upon investigation, Officer Lolies observed
"people pushing and shoving over top of
[Defendant]" who was "laying on the ground."
Officer Lolies continued that "[i]t appeared that some
of the people were trying to defend [Defendant] and there was
obviously people trying to attack him[.]"
officers moved in to break up the altercation, and, after
subduing the combatants, were approached by Defendant's
girlfriend, Kathryn Palmer ("Palmer"), who informed
them that Defendant was bleeding from his head. Officer
Lolies then went over to Defendant and observed that both of
Defendant's eyes were bleeding and that he had bruising
and a large knot developing over his left eye.
then jumped up from the ground where he was lying, acted
aggressively towards Officer Lolies, and told him "to do
[his] motherfucking job." While Defendant was yelling at
him, Officer Lolies detected a strong odor of alcohol on his
breath. Defendant then explained to Officer Lolies that the
reason he had been beaten was because he had tried to stop
Palmer from dancing with another man.
thereafter, Officer Dennis O'Neal ("Officer
O'Neal") arrived on the scene to assist Officers
Lolies and Forrest. Officers Lolies and Forrest attempted to
question several other individuals on hand, but were unable
to do so because "[Defendant] was pretty erratically
challenging people to fights. He would call them pussies,
just very loud" and "[h]e charged at a couple of
people a couple of different times and Officer Forrest, and
eventually when Officer O'Neal arrived on the scene they
would restrain him to prevent him from doing that."
Defendant continued to verbally berate Officers Lolies,
Forrest, and O'Neal by "telling [them] as law
enforcement officers to do [their] . . . motherfucking
officers called for an ambulance for Defendant, and, upon its
arrival, Officer O'Neal directed Defendant into the back
of the vehicle. Defendant initially complied, but proceeded
to exit abruptly from the ambulance. Defendant resumed
swearing at the officers and challenging nearby individuals
to fight him.
O'Neal positioned himself between Defendant and these
individuals and at that point Defendant "attempted to
spit at folks that were walking behind, behind [Officer
O'Neal's] location, over [his] shoulder."
Defendant's spit made contact with the left side of
Officer O'Neal's face and shirt. Defendant spat two
additional times, despite Officer O'Neal ordering him to
stop, again hitting Officer O'Neal in his face and on his
O'Neal ultimately corralled Defendant back into the
ambulance and rode with him to Watauga Medical Center to
receive treatment for his injuries. Defendant continued
swearing at and verbally berating Officer O'Neal in the
ambulance and at one point "stood up in the back of . .
. the ambulance, off the gurney, and began punching the
interior walls of the ambulance" prompting Officer
O'Neal to restrain him until they reached the hospital.
Later that day, a warrant was issued and Defendant was
arrested for assault on a government officer in connection
with his spitting on Officer O'Neal.
to Defendant's district court trial, his original trial
counsel received copies of video recordings taken on the
officers' body-cams of the events surrounding the 29
August 2015 altercation at 200 Misty Lane. However, counsel
opted not to obtain copies or use the footage at trial. After
counsel's review, the original recordings were destroyed
in accordance with the Boone Police Department's evidence
November 2015, Defendant was tried before the Honorable
Rebecca E. Eggers-Gryder in Watauga County District Court.
That same day, Judge Eggers-Gryder found Defendant guilty of
assault on a government officer and sentenced him to 60 days
imprisonment, suspended sentence, and placed him on 12 months
supervised probation. On 12 November 2015, Defendant appealed
to superior court for a trial de novo.
trial was held in Watauga County Superior Court before the
Honorable Alan Z. Thornburg from 29 March 2016 through 31
March 2016. Prior to the jury being empaneled,
Defendant's new trial counsel moved for a continuance on
the ground that counsel wished to prepare a motion to dismiss
since the video recordings of the events of 29 August 2015
taken on the officers' body cameras had been destroyed
and were therefore unavailable for use by the defense. After
hearing arguments from defense counsel and the State, the
trial court ultimately denied the motion. Significantly, no
motion was filed in District Court relating to the videos and
defense counsel did not move to dismiss on this ground in the
four and a half months prior to the trial in Superior
trial, the State proceeded on a theory of transferred intent
as to the assault on an government officer charge. To this
end, it elicited testimony from, among other witnesses,
Officers Lolies and O'Neal.
O'Neal testified as follows concerning the spitting
Q. I'm sorry -- but was he just talking loudly and a
little bit of spit came out or was he actually projecting
A. He was attempting -- or projected, projecting spit
attempting to hit folks that were walking behind me.
Q. And when it hit you was it just a little driplet (sic) or
was it a lot of liquid?
A. If you know it was like the, you know, what a sneeze feels
like, you know, a sneeze will make you feel the droplets on
your face and you can see you got some stuff on your shirt.
Q. And how about the third time, did that hit you?
A. Yes, sir, it did, but it was, there wasn't near as
much, you know, liquid, or I couldn't feel as much on the
. . . .
Q. And what did you do at that ...