in the Court of Appeals 7 June 2017.
by Defendant from judgments entered 26 May 2016 by Judge
Walter H. Godwin, Jr. in Johnston County Superior Court. Nos.
Attorney General Joshua H. Stein, by Assistant Attorney
General Ashish K. Sharda, for the State.
Adelle Jones, for Defendant-Appellant.
Burwell ("Defendant") appeals from his judgments
for assault on a law enforcement officer inflicting serious
bodily injury and attaining habitual felon status. On appeal,
Defendant argues the following: (1) the trial court erred by
denying his Motion to Dismiss because he only used the amount
of force reasonably necessary to resist an unlawful arrest;
(2) the trial court erred or plainly erred by denying his
Motion to Suppress and admitting evidence obtained as a
result of an unlawful arrest; (3) the trial court erred or
plainly erred by failing to instruct the jury on the right to
resist an unlawful arrest; and (4) the trial court erred or
plainly erred by failing to instruct the jury on the right to
defend oneself from excessive force by a law enforcement
careful review, we conclude Defendant received a fair trial,
free from error.
approximately 4 a.m. on 12 October 2014, Officer Sean Cook
("the Officer") arrived at Kay Drive in Smithfield,
in reference to a 911 call reporting a suspicious person who
refused to leave the apartment complex. Kay Drive and the
apartments therein are subject to Section 8 housing. Section
8 of the United States Housing Act of 1937, as amended in
1974, established "Section 8, " the federally
subsidized housing assistance payments program. See
42 U.S.C. § 1437f (2015). The Officer testified that
Smithfield police officers have an agency agreement with Kay
Drive, wherein they have the authority to remove trespassers
from the property, as that section and the apartments therein
are subject to Section 8 housing.
Officer was given information that the suspicious person was
a male in his thirties wearing all black, and could be found
near or around an older model, black truck. Upon his arrival,
the Officer noticed Defendant, a male wearing all black
clothing, standing in front of an older model, black truck.
The Officer determined Defendant matched the description
given to him by dispatch. He approached Defendant, and saw a
beer can in Defendant's hand. The Officer asked Defendant
to walk towards him, and Defendant complied. Seeing Defendant
no longer held the beer can, the Officer told Defendant to
retrieve the can and dispose of it. Defendant again complied.
The Officer and Defendant spoke "at length[, ]" and
he could smell the strong odor of an alcoholic beverage
emitting from Defendant. Upon request, Defendant provided the
Officer with his identification.
further, the Officer, accompanied by Defendant, went to the
door of the individual who made the 911 call. The Officer
spoke with the woman who answered the door, who he testified
he believed to be the caller. The Officer explained, to her
and to Defendant, that Defendant was trespassing on the
property. Defendant "appeared to understand that he was
going to be trespassing [sic] the property." "Based
on the totality of the circumstances and his impairment"
the Officer then asked Defendant how he was going to get
home. Defendant had no clear answer, and "[h]is story
constantly changed." The Officer decided to
"detox" Defendant. He informed Defendant that
Defendant was being "trespassed[, ]" and, although
not under arrest, he was going to be taken for a detox.
for transport, the Officer attempted to handcuff Defendant,
in accordance with his department's policy to handcuff
individuals transported by police vehicles. Due to
Defendant's large frame, Defendant could not put his
hands together behind his back. The Officer reached for his
handcuff pouch, and when the "snap of the handcuff pouch
happened, " Defendant became aggressive, used "foul
language[, ]" tensed up, and tried to pull away from the
Officer. The Officer testified that, in response, he tried to
get control of Defendant. The Officer pushed Defendant into
the side of his police vehicle. The Officer testified that
once Defendant resisted, he was under arrest for
"resist, delay and obstruct[, ]" and he told
Defendant he was under arrest.
tried to turn around and "raised his fist as if to throw
a punch[, ]" causing the Officer to disengage and stand
back. The Officer pointed his Taser at Defendant, giving
commands and advising him he was under arrest. Defendant took
flight, and the Officer gave chase, Taser in hand. Defendant
fell to the ground, lying on his back. The Officer commanded
Defendant to roll over and place his hands behind his back.
Defendant refused to comply, and raised his feet and hands
towards the Officer, "taking a combat stance." The
Officer fired his Taser, incapacitating Defendant for five
seconds. The Officer testified that the "whole time [he]
had been on the radio advising [he] was in a chase" and
Defendant had been Tased. When Defendant began removing the
Taser's probes, the Officer attempted to tase him again,
but it was ineffective, as Defendant had removed one of the
took flight a second time, and the Officer chased him. The
Officer tackled Defendant. The Officer testified:
"It's at this time that the fight was on."
Defendant began striking the Officer, and the Officer
responded, striking Defendant. The Officer testified that
"the whole time [he was] giving verbal, clear commands,
[and] also trying to talk on [his] radio."
Officer's radio was positioned on his shirt, at the
center of his chest. At one point, Defendant grabbed the
radio and "slung it off to the side" so that the
Officer could no longer use it. The blows continued.
Defendant reached down and grabbed the Officer's pistol.
The two struggled, and the Officer eventually regained
control of the pistol. The Officer struck Defendant's
thigh with his Asp Baton, but then threw it away because it
was ineffective to restrain Defendant.
Officer, still on top of Defendant, "took a rear
mount" and placed his left forearm in front of
Defendant's face to try to hold him down. Defendant
continued to fight, and bit the Officer's left forearm,
causing the Officer to reposition. Defendant bit him a second
time, causing the Officer to release Defendant. Defendant
tried to turn around, so the Officer again repositioned.
Defendant bit him a third time, on the Officer's right
bicep. Defendant was then able to get "a front
mount" on top of the Officer. When the Officer's
backup arrived, the Officer was lying on his back, attempting
to defend himself. The Officer and Defendant continued to
struggle as backup assisted in securing Defendant.
Officer's injuries included: sustained puncture wounds on
his left forearm and right bicep, severe bruising and
depressions, permanent scarring, and scabbing. The scarring
includes a large circle on his right bicep, "just over a
half an inch to an inch in a circle" with a "large
depression[, ]" and "a deep ridge" on his left
arm. The Officer experienced loss of sleep and extreme
stress. He also had to be tested multiple times for
communicable diseases, which he described as "extremely
was indicted for: (1) assault on a law enforcement officer
inflicting serious bodily injury by "biting [the
Officer]" and "hitting him about his face with
closed fists[;]" (2) assault with a deadly weapon
inflicting serious bodily injury, the deadly weapon being
Defendant's teeth; and (3) attaining habitual felon
status. Defendant filed a pretrial Motion to Suppress,
arguing the arrest was unlawful, and, thus, any acts after
the arrest should be suppressed as fruits of the poisonous
tree. The trial court denied this motion. At the end of the
State's evidence, Defendant again argued the arrest was
unlawful, moving to dismiss the charges. His motion was
denied. Defendant did not present any evidence, and renewed
his Motion to Dismiss. The trial court again denied the
jury returned verdicts of guilty for assault on an officer
inflicting serious bodily injury, assault inflicting serious
injury, and attaining habitual felon status. The trial court
arrested judgment on the assault inflicting serious injury
offense, and entered judgment on the offense of assault on a
law enforcement officer inflicting serious bodily injury with
the habitual felon enhancement. Defendant was sentenced to an
active term of 146 to 188 months. Defendant gave oral notice
appeal, Defendant presents four arguments: (1) the trial
court erred by denying his Motion to Dismiss; (2) the trial
court erred or plainly erred by denying his Motion to
Suppress and admitting evidence obtained as a result of an
unlawful arrest; (3) the trial court erred or plainly erred
by failing to instruct the jury on the right to resist an
unlawful arrest; and (4) the trial court erred or plainly
erred by failing to instruct the jury on the right to defend
oneself from excessive force by a law enforcement officer. We
disagree and address the arguments in turn.
Motion to Dismiss
argues the trial court erred by denying his Motion to Dismiss
because he only used the amount of force reasonably necessary
to resist an unlawful arrest when he fought the Officer. We
review the denial of a motion to dismiss de novo. State
v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007)
(citation omitted). A trial court properly denies a motion to
dismiss if "there is substantial evidence (1) of each
essential element of the offense charged, and (2) that
defendant is the perpetrator of the offense."
Id. at 62, 650 S.E.2d at 33 (citations omitted).
"Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion." Id. at 62, 650 S.E.2d at 33
(quotation omitted). In making this determination, the trial
court considers the evidence in the light most favorable to
the State. State v. Rose, 339 N.C. 172, 192-93, 451
S.E.2d 211, 223 (1994) (citation omitted).
prove assault on a law enforcement officer inflicting serious
bodily injury, the State must show: (1) the defendant
assaulted the victim; (2) serious bodily injury occurred; (3)
the victim was a law enforcement officer performing his
official duties at the time of the assault; and (4) the
defendant knew or had reasonable grounds to know that the
alleged victim was a law enforcement officer. N.C. G.S.
§ 14-34.7(a) (2015); see also N.C. P.I.-Crim.
State provided substantial evidence of each essential element
of assault on a law enforcement inflicting serious bodily
injury; therefore, it was proper for the trial court to deny
Defendant's Motion to ...