in the Court of Appeals 3 April 2017.
by Defendant from judgment entered 9 May 2016 by Judge Lisa
C. Bell in Superior Court, Gaston County No. 14 CRS 056584.
Attorney General Joshua H. Stein, by Assistant Attorney
General Kristine M. Ricketts, for the State.
McCullers Reece for Defendant.
Williams ("Defendant") appeals her convictions on
charges of resisting a law enforcement officer
("resisting") and assault inflicting serious bodily
injury on a law enforcement officer ("AISBI").
Defendant contends the trial court erred by denying her
pretrial motion to suppress and her motions to dismiss. We
hold that the trial court erred in denying Defendant's
motion to dismiss the charge of AISBI, reverse, and remand
for entry of judgment on assault of a law enforcement officer
inflicting physical injury, but otherwise find no error.
Josh Smith ("Officer Smith") of the Gastonia Police
Department was performing patrol duties on the evening of 11
June 2014. He received a "trespass call" from
dispatch to respond to an incident at Power in the Word
Ministries, a local homeless shelter ("the
shelter") at approximately 9:45 p.m. The police
dispatcher relayed that a woman "was refusing to leave
Officer Smith arrived at the shelter, he made contact with
the woman who "was in charge that night"
("shelter representative"). The shelter representative
"pointed out [Defendant], wh[o] was down the street,
" and told Officer Smith "that they wanted to
trespass her." Officer Smith testified:
Usually when a business wants to trespass someone they'll
want to make sure they have all their information, their
name, date of birth, in case they want to - if they come back
they can go obtain a warrant for trespassing, which is
second-degree trespass. And a lot of times we'll go and
we'll try and get that information.
shelter representative identified Defendant as "Kwani,
" and Defendant was seen walking down the street away
from the shelter.
Smith pulled up alongside Defendant in his police vehicle,
approximately 200 yards from the shelter, with the intent to
investigate and potentially "trespass" Defendant
from the shelter. Officer Smith "got out of [his
vehicle], and began speaking with" Defendant. Officer
Smith noticed that Defendant was "clearly agitated at
the event, " and seemed uncomfortable speaking with him.
Officer Smith testified that Defendant was
[p]acing back and forth, you know, when I was trying to speak
with her she had her voice raised, agitated. I actually had
to tell her, hey, come back and speak with me, you know, they
are wanting to trespass you and I need to speak with you and
get some information from you.
Smith testified that, when he asked Defendant her name, she
hesitated, but then stated that her name was "Brenda
Smith, " which conflicted with the name
"Kwani" that had been provided by the shelter
representative. Officer Smith asked Defendant where she was
from and again she hesitated, then said "Florida."
Officer Smith testified that, based on his training and
experience, he believed Defendant's hesitation and
demeanor indicated she had given him false information, and
he confronted Defendant about whether she had given him a
false name. Officer Smith testified he informed Defendant
that he needed to obtain her information in order to
"trespass" her from the shelter and once she
provided that information, she would be free to go.
Smith testified Defendant became more agitated and began to
walk away from him, back toward the shelter, yelling:
"Jesus, Jesus." Officer Smith testified that he
"requested another officer, " and told Defendant
"until I can positively identify you I'm going to
detain you." Defendant responded by saying "f_ck
you" to Officer Smith. At that point, Officer Smith
requested that Defendant put her hands behind her back,
saying: "I'm going to detain you until I figure out
who you are." Officer Smith placed his hands on
Defendant to begin putting her in handcuffs, but she pulled
away from him and continued walking in the direction of the
shelter. Officer Smith then informed Defendant she was under
arrest for resisting a police officer, but Defendant
continued to walk away from him. At this time,
"[i]nstead of using anything [Officer Smith] decided
just to take [Defendant] to the ground gently by just the leg
sweep. [He] grabbed her about her shoulders, and . . .
[placed his] foot, and . . . just guided her to the ground.
And that's whe[n] the assault began."
Smith and Defendant both landed on the pavement, with Officer
Smith's arm next to Defendant's head. Officer Smith
testified that, at that point, Defendant bit him in the
middle of his left forearm and he experienced "instant .
. . significant pain[, ]" during which time Defendant
was "tugging and pulling" on Officer Smith's
arm so that he was "seeing the skin get stretched beyond
what it usually gets stretched." However, the skin on
Officer Smith's arm was not removed, and the muscle
underneath was not exposed. Officer Smith began "to
knee" Defendant and applied pressure to Defendant's
jaw in order to get her to release her bite, which Defendant
eventually did, but Defendant then bit Officer Smith's
arm again. At that point, Officer Smith struck Defendant in
her face with his elbow three times, which caused Defendant
to release her bite. Officer Smith estimated the incident
lasted thirty to forty-five seconds, and testified that no
back-up arrived before the end of the incident. Once Officer
Smith was able to break free from Defendant, he jumped on top
of her, and "[a]t this point [his] secondary officers
had showed up" and they were able to subdue Defendant.
Medical Services ("EMS") arrived at the scene.
Officer Smith testified that his arm was red and bleeding
from a wound about an "inch in circumference[.]"
Officer Smith testified that, in addition to the bite mark,
he sustained "a couple scratches . . . on the side of
[his] face" that required no medical attention. Once EMS
arrived at the scene, Officer Smith testified they "just
disinfected [the bite wound], really." Officer Smith
engaged in the following colloquy at trial:
Q. Were you then directed to, by either EMS or your
supervisor, to go to the hospital for treatment?
A. Yes, ma'am.
Q. Is that part of the standard procedure, or treatment
procedure, or exposure procedure?
A. Yes, ma'am.
Q. And did you receive any further treatment at the hospital?
A. Yes, ma'am. Any time we get exposed, whether it be
needles, bites, stuff like that, we have go through a
procedure through the hospital. They draw your blood
initially to see if there's anything already there. They
also do random drug testing. And while there I believe I got
a Tetanus shot. And was basically sent home.
Q. And did you go home or go back on duty?
A. I went to the station in order to do paperwork.
Smith's wound did not require stitches, but he was
provided a prescription for a "prophylactic" and
checked every three months for a nine-month period to insure
he had not contracted any disease, which he did not. The
following day, Officer Smith returned to work.
taken "a day or so" after the incident were
introduced into evidence and showed that Officer Smith's
"forearm [was] swollen from the bite mark compared to
[his] left. [He] believe[d] there [was] a second [photo] . .
. comparing both [his] arms somewhere, maybe."
Additional photographs of Officer Smith's injury were
introduced, including one where he had "put some
ointment on" the injury to facilitate healing, and that
photo "show[ed] bruising to begin." Three days
after the incident, Officer Smith took photographs of his
injury that depicted "bruising of [his] entire
forearm." Officer Smith took additional photographs over
the next few weeks that showed "some healing"
followed by the injury being "scabbed over, " and
finally "the beginning scarring, and healing."
Officer Smith testified the bite left a permanent
"discoloration of [his] skin on [his] forearm . . . in
the shape of a [one-inch diameter] bite mark."
was indicted on 7 July 2014 for assault on a law enforcement
officer inflicting serious bodily injury and resisting,
delaying, and obstructing a law enforcement officer.
Defendant filed a pretrial motion to suppress all evidence
obtained pursuant to the 11 June 2014 stop, arguing that
Officer Smith lacked reasonable suspicion to detain her,
which the trial court denied by order entered 13 April 2016.
At trial, Defendant made a motion to dismiss at the close of
the State's evidence and at the close of all the
evidence, both of which the trial court denied.
convicted Defendant on 15 April 2016 of resisting and AISBI.
Defendant was sentenced to ten to twenty-one months'
imprisonment. Defendant appeals.
Motion to Suppress
argues the trial court erred because it failed to hear sworn
testimony before denying her motion to suppress as required
by N.C. ...