{ "id": 8523529, "name": "STATE OF NORTH CAROLINA v. DONALD BURTON", "name_abbreviation": "State v. Burton", "decision_date": "1992-12-15", "docket_number": "No. 9114SC460", "first_page": "219", "last_page": "231", "citations": [ { "type": "official", "cite": "108 N.C. App. 219" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "98 L.Ed.2d 406", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1987, "opinion_index": 0 }, { "cite": "484 U.S. 970", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 600992, 599913, 599204, 599758 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/484/0970-03", "/us/484/0970-02", "/us/484/0970-01", "/us/484/0970-04" ] }, { "cite": "358 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "15" } ], "opinion_index": 0 }, { "cite": "320 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4730916 ], "year": 1987, "pin_cites": [ { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0179-01" ] }, { "cite": "226 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "640", "parenthetical": "citations omitted." } ], "opinion_index": 0 }, { "cite": "290 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561442 ], "year": 1976, "pin_cites": [ { "page": "328", "parenthetical": "citations omitted." } ], "opinion_index": 0, "case_paths": [ "/nc/290/0313-01" ] }, { "cite": "409 S.E.2d 288", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "300" } ], "opinion_index": 0 }, { "cite": "330 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511523 ], "year": 1991, "pin_cites": [ { "page": "22" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0001-01" ] }, { "cite": "241 S.E.2d 845", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 443", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573761, 8573731, 8573705, 8573673, 8573656 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0443-05", "/nc/294/0443-04", "/nc/294/0443-03", "/nc/294/0443-02", "/nc/294/0443-01" ] }, { "cite": "239 S.E.2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "299" } ], "opinion_index": 0 }, { "cite": "34 N.C. App. 572", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550582 ], "year": 1977, "pin_cites": [ { "page": "575" } ], "opinion_index": 0, "case_paths": [ "/nc-app/34/0572-01" ] }, { "cite": "393 S.E.2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "99 N.C. App. 421", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523319 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/99/0421-01" ] }, { "cite": "188 S.E.2d 568", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "573" } ], "opinion_index": 0 }, { "cite": "14 N.C. App. 485", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550531 ], "year": 1972, "pin_cites": [ { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/nc-app/14/0485-01" ] }, { "cite": "117 S.E. 581", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1923, "opinion_index": 0 }, { "cite": "185 N.C. 752", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658021 ], "year": 1923, "opinion_index": 0, "case_paths": [ "/nc/185/0752-01" ] }, { "cite": "179 S.E.2d 708", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "711", "parenthetical": "quoting State v. Estes, 185 N.C. 752, 117 S.E. 581 (1923)" } ], "opinion_index": 0 }, { "cite": "278 N.C. 243", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560064 ], "year": 1971, "pin_cites": [ { "page": "248", "parenthetical": "quoting State v. Estes, 185 N.C. 752, 117 S.E. 581 (1923)" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0243-01" ] }, { "cite": "326 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4726404 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0164-01" ] }, { "cite": "311 S.E.2d 702", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "704" } ], "opinion_index": 0 }, { "cite": "66 N.C. App. 686", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525951 ], "year": 1984, "pin_cites": [ { "page": "690" } ], "opinion_index": 0, "case_paths": [ "/nc-app/66/0686-01" ] }, { "cite": "204 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "687" } ], "opinion_index": 0 }, { "cite": "285 N.C. 328", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564140 ], "year": 1974, "pin_cites": [ { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0328-01" ] }, { "cite": "322 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "145", "parenthetical": "quoting State v. Shore, 285 N.C. 328, 335, 204 S.E.2d 682, 687 (1974)" } ], "opinion_index": 0 }, { "cite": "312 N.C. 251", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750239 ], "year": 1984, "pin_cites": [ { "page": "259", "parenthetical": "quoting State v. Shore, 285 N.C. 328, 335, 204 S.E.2d 682, 687 (1974)" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0251-01" ] }, { "cite": "268 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "456" } ], "opinion_index": 0 }, { "cite": "300 N.C. 678", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564413 ], "year": 1980, "pin_cites": [ { "page": "683" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0678-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-223", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 1986, "opinion_index": 0 }, { "cite": "253 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "51" } ], "opinion_index": 0 }, { "cite": "40 N.C. App. 318", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550274 ], "year": 1979, "pin_cites": [ { "page": "322" } ], "opinion_index": 0, "case_paths": [ "/nc-app/40/0318-01" ] }, { "cite": "194 S.E.2d 153", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "parenthetical": "interpreting former N.C. Gen. Stat. \u00a7 14-33(c)(4)" } ], "opinion_index": 0 }, { "cite": "282 N.C. 673", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568515, 8568370, 8568405, 8568474, 8568443 ], "year": 1973, "pin_cites": [ { "parenthetical": "interpreting former N.C. Gen. Stat. \u00a7 14-33(c)(4)" } ], "opinion_index": 0, "case_paths": [ "/nc/282/0673-05", "/nc/282/0673-01", "/nc/282/0673-02", "/nc/282/0673-04", "/nc/282/0673-03" ] }, { "cite": "193 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "391" } ], "opinion_index": 0 }, { "cite": "17 N.C. App. 195", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554708 ], "year": 1972, "pin_cites": [ { "page": "198" } ], "opinion_index": 0, "case_paths": [ "/nc-app/17/0195-01" ] }, { "cite": "283 S.E.2d 543", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "546" }, { "page": "546" } ], "opinion_index": 0 }, { "cite": "54 N.C. App. 458", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523288 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "462" }, { "page": "462" } ], "opinion_index": 0, "case_paths": [ "/nc-app/54/0458-01" ] }, { "cite": "370 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "367" } ], "opinion_index": 0 }, { "cite": "322 N.C. 733", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518633 ], "year": 1988, "pin_cites": [ { "page": "738" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0733-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-33", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "pin_cites": [ { "page": "(b)(8)" }, { "page": "(b)(8)" }, { "page": "(c)(4)" }, { "page": "(b)(8)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 963, "char_count": 28240, "ocr_confidence": 0.736, "pagerank": { "raw": 2.419056845616512e-07, "percentile": 0.8008196616868397 }, "sha256": "dfc620655542eebc7baac290139a7f68aa079581405bdfff1ab742fc7142dfc9", "simhash": "1:c5e1d4eb4526bac0", "word_count": 4606 }, "last_updated": "2023-07-14T21:33:37.144077+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EAGLES and ORR concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DONALD BURTON" ], "opinions": [ { "text": "COZORT, Judge.\nDefendant was charged with operating a motor vehicle at a speed greater than reasonable under the conditions then existing; resisting, delaying, and obstructing an officer in the performance of his duties; injury to personal property; and three counts of assault on a police officer. In Durham County District Court, defendant was found guilty of three counts of assault on a police officer and appealed the conviction to superior court. On appeal to superior court, the jury found defendant guilty of three counts of assault on a police officer in violation of N.C. Gen. Stat. \u00a7 14-33(b)(8) (1991 Cum. Supp). Defendant was fined $100.00 and sentenced to six months in prison, suspended, and one year unsupervised probation. Defendant appeals. We find no error.\nThe State presented the following evidence: On 2 January 1990, at approximately 4:00 p.m., Durham Police Sergeant C. M. Tiffin observed defendant driving a vehicle on a city street. Sergeant Tiffin concluded that defendant was traveling approximately 55 m.p.h. in a 35 m.p.h. zone. Sergeant Tiffin activated his blue lights and followed defendant to the parking lot of an auto parts store. Sergeant Tiffin approached defendant who was walking away from the store, and informed him that he was driving too fast. Upon Sergeant Tiffin\u2019s request for his driver\u2019s license, defendant first produced a business card and then his driver\u2019s license. Defendant was not the owner of the car and did not possess the registration. Defendant stood to the left of the police car as Sergeant Tiffin attempted to use the car radio to run a check on the registration. Defendant repeatedly questioned Sergeant Tiffin\u2019s actions and refused to return to his car, even after Sergeant Tiffin instructed him to do so three times. Sergeant Tiffin informed defendant that he would be placed under arrest if he did not stop interfering and obstructing him in the performance of his duties. After defendant refused to cooperate, Sergeant Tiffin placed defendant under arrest and called for assistance. Officer T. M. Taylor arrived on the scene, but he and Sergeant Tiffin were unable to secure custody of defendant. Corporal C. M. Allen arrived to assist his fellow officers. A struggle ensued, and defendant fell into the open door of the patrol car. Sergeant Tiffin instructed Officer Taylor to strike defendant with his nightstick. Officer Taylor responded by striking defendant twice on the wrist. As a result of the struggle, Officer Taylor suffered a dislocated thumb and Sergeant Tiffin suffered injury to his shin. Defendant was finally brought under control.\nDefendant presented the following evidence: Defendant was driving a vehicle at 30 or 35 m.p.h. when Sergeant Tiffin stopped him. Defendant questioned Sergeant Tiffin about the detention and his actions. After the other officers arrived on the scene, defendant asked to speak to a superior officer. Defendant refused to cooperate as the officers tried to handcuff him, and Officer Taylor struck defendant on the head with his nightstick.\nOn appeal defendant argues that the trial court erred in (1) denying defendant\u2019s motions to dismiss at the close of State\u2019s evidence and the close of all the evidence, to vacate the verdicts after their return, and to set aside the verdicts; (2) instructing the jury on request that they were to give the term \u201cobstruct\u201d its ordinary meaning; (3) denying defendant the opportunity to cross-examine Sergeant Tiffin about alleged misconduct; and (4) allowing the assistant district attorney to make certain remarks during closing argument.\nN.C.R. App. P. 10(b)(3) provides in part that \u201cif defendant makes [a motion to dismiss the action] after the State has presented all its evidence and has rested its case and that motion is denied and the defendant then introduces evidence, his motion for dismissal or judgment in case on nonsuit made at the close of State\u2019s evidence is waived.\u201d Since defendant introduced evidence after the close of State\u2019s evidence, he has waived the right to appeal the denial of his motion at the close of State\u2019s evidence. Defendant has also waived the right to appeal the denial of his motion to set aside the verdicts, since he has failed to address the issue in his brief. N.C.R. App. P. 28(b)(5).\nTherefore, we need consider only defendant\u2019s argument that the trial court erred in failing to dismiss the action at the close of all the evidence. The trial court must dismiss charges for insufficiency of the evidence, if, viewing the evidence in the light most favorable to the State, the State fails to present substantial evidence of each essential element of the offenses charged. State v. Herring, 322 N.C. 733, 738, 370 S.E.2d 363, 367 (1988). \u201cSubstantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d Id. Specifically, defendant argues that (1) the officer did not have probable cause to arrest him for resisting arrest; (2) he was entitled to protect himself against use of excessive force by the police officers; and (3) there was a fatal variance between the warrant allegations and the State\u2019s evidence.\nN.C. Gen. Stat. \u00a7 14-33(b)(8) provides that a person is guilty of a misdemeanor if he assaults a law enforcement officer when the officer is discharging or attempting to discharge a duty of his office.\nIn order to obtain a conviction under [this section], the burden is on the State to satisfy the jury from the evidence and beyond a reasonable doubt that the party assaulted was a law enforcement officer performing the duty of his office, and that the defendant knew his victim was a law enforcement officer.\nState v. Rowland, 54 N.C. App. 458, 462, 283 S.E.2d 543, 546 (1981). \u201c \u2018[T]he offense under [this section]\u2019 . . . presupposes lawful conduct of the public officer in discharging ... a duty of his office.\u201d State v. Jefferies, 17 N.C. App. 195, 198, 193 S.E.2d 388, 391 (1972), cert. denied, 282 N.C. 673, 194 S.E.2d 153 (1973) (interpreting former N.C. Gen. Stat. \u00a7 14-33(c)(4)). \u201cOne resisting an illegal arrest is not resisting an officer within the discharge of his official duties.\u201d State v. Anderson, 40 N.C. App. 318, 322, 253 S.E.2d 48, 51 (1979).\nAccordingly, in order for defendant to be convicted of assault on a police officer in violation of N.C. Gen. Stat. \u00a7 14-33(b)(8), the jury must first determine whether the officers were attempting to lawfully arrest defendant for resisting, delaying, and obstructing a police officer in violation of N.C. Gen. Stat. \u00a7 14-223 (1986). A warrantless arrest is lawful if based upon probable cause. State v. Phillips, 300 N.C. 678, 683, 268 S.E.2d 452, 456 (1980). The question, then, is whether the officers had probable cause to arrest defendant. Probable cause \u201c \u2018has been defined to be a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty.\u2019 \u201d State v. Zuniga, 312 N.C. 251, 259, 322 S.E.2d 140, 145 (1984) (quoting State v. Shore, 285 N.C. 328, 335, 204 S.E.2d 682, 687 (1974)).\nN.C. Gen. Stat. \u00a7 14-223 (1986) makes it unlawful for any person to \u201cwillfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office . . . .\u201d Actual physical force or assault is not necessary. State v. Downing, 66 N.C. App. 686, 690, 311 S.E.2d 702, 704 (1984), aff\u2019d in part and rev\u2019d in part, 313 N.C. 164, 326 S.E.2d 256 (1985). The State does not have to prove that the officer was permanently prevented from discharging his duties by defendant\u2019s conduct. Id. Instead, the State must prove only that\n\u201cthe officer was obstructed or interfered with, and that such obstruction or interference was willful on the part of the defendant. ... To \u2018interfere\u2019 is to check or hamper the action of the officer, or to do something which hinders or prevents or tends to prevent the performance of his legal duty; and to \u2018obstruct\u2019 signifies direct or indirect opposition or resistace [sic] to the lawful discharge of his official duty.\u201d\nState v. Leigh, 278 N.C. 243, 248, 179 S.E.2d 708, 711 (1971) (quoting State v. Estes, 185 N.C. 752, 117 S.E. 581 (1923)). \u201cMerely remonstrating with an officer in behalf of another, or criticizing an officer while he is performing his duty, does not amount to obstructing, hindering, or interfering with an officer.\u201d State v. Allen, 14 N.C. App. 485, 491, 188 S.E.2d 568, 573 (1972).\nThe State presented evidence that Sergeant Tiffin observed defendant traveling at a speed estimated to be twenty m.p.h. greater than the posted speed limit. On the basis of his observation and training, Sergeant Tiffin had at least reasonable suspicion to stop defendant\u2019s vehicle. See State v. Morocco, 99 N.C. App. 421, 393 S.E.2d 545 (1990). After stopping the defendant for speeding, Sergeant Tiffin attempted to use his car radio to run a check on the registration of the vehicle. Defendant was standing beside the patrol car and speaking in a loud and hostile manner. He refused to return to his car after the officer requested three times for him to do so. Sergeant Tiffin was concerned for his safety as a result of defendant\u2019s behavior, and he was unable to successfully communicate on the radio. He then warned defendant that he would arrest him for obstructing an officer, but defendant did not desist. Based upon the evidence presented by the State, a jury could reasonably conclude that the officers lawfully arrested defendant because they had probable cause to believe that defendant willfully prevented Sergeant Tiffin from performing his duties concerning the traffic stop.\nDefendant next argues that defendant had the right to protect himself against the use of excessive force during an unlawful arrest. We have already determined that a jury could reasonably conclude that the arrest was lawful. If attempting a lawful arrest, an officer has the right to use reasonable force to subdue the arrestee and the arrestee has no right to resist. N.C. Gen. Stat. \u00a7 15A-401(d)(l) (1991 Cum. Supp.). If, however, an officer uses excessive force to execute a lawful arrest, the arrestee may defend against the excessive force. See State v. Mensch, 34 N.C. App. 572, 575, 239 S.E.2d 297, 299 (1977), cert. denied, 294 N.C. 443, 241 S.E.2d 845 (1978).\nThe State presented evidence that after warning defendant several times, Sergeant Tiffin attempted to arrest defendant for obstruction and placed his hand on defendant\u2019s shoulder to execute the arrest. Defendant did not respond and leaned against the patrol car. Sergeant Tiffin and Officer Taylor, who had arrived at the scene to assist Sergeant Tiffin, attempted to turn defendant around and handcuff him but were unable to do so. Corporal Allen arrived and the three officers attempted to secure defendant. Defendant fell into the patrol car. After defendant attempted to bite Corporal Allen, kicked Sergeant Tiffin in the shin causing injury, and dislocated Officer Taylor\u2019s thumb, Officer Taylor struck defendant twice on the wrist with a nightstick. A jury could reasonably conclude that the officers did not use excessive force in executing the arrest and that defendant was not entitled to resist in any manner.\nDefendant further argues that there was a fatal variance in the warrant allegations for resisting arrest and the State\u2019s evidence presented at trial. Defendant was charged with the offense of resisting, obstructing, and delaying in violation of \u00a7 14-223 and \u2022three counts of assault on a police officer in violation of \u00a7 14-33(b)(8). The resisting, obstructing, and delaying charge was dismissed prior to jury selection. Defendant was convicted of three counts of assault on a police officer. The State had the burden of proving that the persons assaulted were police officers performing their duties and that defendant knew they were police officers. See Rowland, 54 N.C. App. at 462, 283 S.E.2d at 546. In order to meet this burden, the State also had to present evidence that the officers were making a lawful arrest for resisting, obstructing, and delaying. As stated above, the State presented evidence that the officers had probable cause to believe defendant was resisting, obstructing, and delaying Sergeant Tiffin in the performance of his official duty. An officer does not have to be attempting an arrest in order to be performing an official duty of his office. Certainly an officer is performing an official duty when he stops a vehicle for speeding and attempts to use his car radio to obtain information on the registration of the stopped vehicle. We find defendant\u2019s argument that there was a fatal variance in the warrant and evidence presented at trial to be without merit.\nConsidering the evidence in the light most favorable to the State, we find the State presented substantial evidence of each element of the crimes charged, three counts of assault on a police officer, and that defendant was the perpetrator of the crimes. Accordingly, we find that the trial court did not err in denying defendant\u2019s motion to dismiss for insufficiency of evidence at the close of trial. Defendant\u2019s first assignment of error is overruled.\nIn his second assignment of error, defendant contends that the trial court committed plain error when it responded to a question from the jury concerning the definition of obstructing a police officer. Defendant does not challenge the correctness of the initial instructions here. In that charge, the trial court properly instructed the jury on the charge of assault on a police officer. The trial court then instructed the jury on the offense of resisting, delaying, and obstructing a police officer. The trial court explained that the officer had to have probable cause to believe that the defendant had committed the offense of delaying and obstructing; probable cause would exist if the circumstances surrounding defendant\u2019s conduct would lead a prudent person to believe defendant had committed the offense of delaying and obstructing. The trial court then instructed the jury that\n[m]erely remonstrating with an officer, protesting, objecting,questioning or criticizing an officer when he is performing his duties, does not amount to delaying and interfering an officer, they, in temperance language, used without apparent purpose is not sufficient, although force or threatened force is not always an indispensable ingredient of the offense of interfering with an officer in the discharge of his duty, mere remonstrating or criticizing an officer is not usually held to be the equivalent of unlawful interference.\nDefendant argues that plain error occurred when the jury, after retiring for deliberation, requested in writing a definition of the phrase \u201cobstructing an officer\u201d and the trial court responded that the jury was to give the term \u201cits ordinary meaning.\u201d Defendant\u2019s attorney did not object to the trial court\u2019s response to the jury\u2019s question. He now argues on appeal that the trial court\u2019s response to the jury\u2019s question was plain error, an error so fundamental that defendant must receive a new trial. He argues that the trial court\u2019s instruction to the jury that they could give the term \u201cobstructing\u201d its \u201cordinary meaning,\u201d which would not require a finding of willfulness,\" would allow the jury to find the defendant guilty of assault on an officer without having to first find that the officer had probable cause to arrest the defendant for the defendant\u2019s willful obstruction of the officer in the performance of his duties.\nWebster\u2019s Third New International Dictionary (1971) defines obstruct: \u201cto be or come in the way of: hinder from passing, action, or operation: IMPEDE, RETARD.\u201d The Second College Edition of the American Heritage Dictionary (1985) offers a similar definition: \u201cto impede, retard, or interfere with; hinder.\u201d Looking at these definitions of the \u201cordinary meaning\u201d of obstruct, we agree with defendant\u2019s contention that the ordinary meaning of obstruct does not necessarily include an element of willfulness, an element which is required in the crime of obstructing an officer under N.C. Gen. Stat. \u00a7 14-223. We must now determine whether the trial court\u2019s response to the jury\u2019s question, which failed to require that the defendant\u2019s obstruction be willful in order to support the offense of assault, was so fundamental an error that a new trial is required. We hold that it was not.\nAfter reviewing the entire record, we are not convinced \u201cthat absent the alleged error, a jury probably would have reached a different verdict.\u201d State v. Robinson, 330 N.C. 1, 22, 409 S.E.2d 288, 300 (1991). Here, the jury was correctly instructed that merely remonstrating or criticizing an officer did not amount to the offense of obstructing an officer. In order to convict defendant of assault on a police officer, the jury first had to determine whether there was probable cause for Sergeant Tiffin to arrest defendant for resisting, obstructing, and delaying an officer. In convicting defendant, the jury must have determined that he acted willfully when he refused to return to his car as requested by Sergeant Tiffin and repeatedly talked in a loud voice as Sergeant Tiffin attempted to use the patrol car radio. Defendant\u2019s second assignment of error is overruled.\nIn his third assignment of error, defendant argues the trial court erred in denying defendant the opportunity to cross-examine Sergeant Tiffin about alleged misconduct. Specifically, defendant sought to ask the following questions in order to impeach the credibility of Sergeant Tiffin:\n1. [DJuring the time that you have been employed with the Durham Police Department, have you not had a number of complaints filed against you?\n2. And have you not been disciplined for some of these alleged incidents of misconduct?\n3. Were you dismissed from the police department . . . for lying to your superior officers about an incident involving some officers under your command in a policemen\u2019s conduct matter?\nN.C. Gen. Stat. \u00a7 8C-1, Rule 608(b) (1988) provides that specific instances of conduct may \u201cin the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness . . . We find that the first two questions were properly excluded by the trial court because they do not address Sergeant Tiffin\u2019s character for truthfulness or untruthfulness. The third question, however, does specifically address the question of Sergeant Tiffin\u2019s veracity and should have been allowed. Although we find error in the exclusion of the question, defendant has failed to prove that there was a reasonable possibility that the outcome of the trial would have been different if the excluded evidence had been admitted. See N.C. Gen. Stat. \u00a7 15A-1443 (1988).\nFinally, defendant argues that the trial court erred in permitting the assistant district attorney to comment during the closing argument (1) about the lack of use of sirens in stopping cars for traffic violations; (2) about defendant\u2019s snickering as the officers described their injuries and his conduct; and (3) that \u201cdefendant\u2019s own testimony is consistent with what the officers said other than the two parts he made up, and ladies and gentlemen it always amazed me that whenever I try a case how the victims end up becoming the defendant.\u201d N.C. Gen. Stat. \u00a7 15A-1230(a) (1988) prohibits an attorney from injecting personal experiences and making arguments on the basis of matters outside the record, except for those matters of which the court may take judicial notice. \u201cWhether counsel abuses this privilege is a matter ordinarily left to the sound discretion of the trial judge, and we will not review the exercise of this discretion unless there be such gross impropriety in the argument as would be likely to influence the verdict of the jury.\u201d State v. Covington, 290 N.C. 313, 328, 226 S.E.2d 629, 640 (1976) (citations omitted.) Addressing the first comment, although the statement may have encompassed matters outside the record, we do not find the statement to be prejudicial to defendant. As the State points out, the charges of assault on police officers were not related directly to the initial traffic stop of the defendant. As to the second comment, \u201curging the jurors to observe defendant\u2019s demeanor for themselves does not inject the prosecutor\u2019s own opinions into his argument, but calls to the jurors\u2019 attention the fact that evidence is not only what they hear on the stand but what they witness in the courtroom.\u201d State v. Brown, 320 N.C. 179, 199, 358 S.E.2d 1,15, cert. denied, 484 U.S. 970, 98 L.Ed.2d 406 (1987). Finally,- we find the third comment to be improper, but we do not think the comment constitutes such gross impropriety as to influence the verdict of the jury. Defendant has failed to demonstrate prejudicial error, and his fourth assignment of error is therefore overruled.\nNo error.\nJudges EAGLES and ORR concur.", "type": "majority", "author": "COZORT, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Special Deputy Attorney General, Ralph B. Strickland, Jr., for the State.", "Irving Joyner for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DONALD BURTON\nNo. 9114SC460\n(Filed 15 December 1992)\n1. Appeal and Error \u00a7 344 (NCI4th) \u2014 motion to dismiss \u2014 motion to set aside verdict \u2014evidence introduced after close of State\u2019s evidence \u2014 right to appeal denied\nA defendant waived the right to appeal the denial of his motion to dismiss at the close of the State\u2019s evidence where he introduced evidence after the close of the State\u2019s evidence and waived the right to appeal the denial of his motion to set aside the verdicts where he failed to address the issue in his brief. N.C.R. App. 28(b)(5); N.C.R. App. 10(b)(3).\nAm Jur 2d, Appeal and Error \u00a7\u00a7 248, 430, 431.\n2. Assault and Battery \u00a7 60 (NCI4th)\u2014 assault on an officer \u2014 sufficiency of evidence\nA jury in a prosecution for assaulting an officer could reasonably conclude that officers were attempting to lawfully arrest defendant for resisting, delaying, and obstructing a police officer when the assault occurred, and defendant\u2019s motion to dismiss was properly denied, where officers had probable cause to believe that defendant willfully prevented Sergeant Tiffin from performing his duties concerning a traffic stop. The State presented evidence that Sergeant Tiffin observed defendant traveling at a speed estimated to be twenty m.p.h. greater than the posted speed limit; Sergeant Tiffin attempted to use his car radio to run a check on the registration of the vehicle after stopping defendant; defendant stood beside the patrol car, spoke in a loud and hostile manner, and refused to return to his car after the officer requested three times that he do so; Sergeant Tiffin was concerned for his safety as a result of defendant\u2019s behavior; he was unable to communicate on the radio; and he warned defendant that he would arrest defendant for obstructing an officer, but defendant did not desist. N.C.G.S. \u00a7 14-33(b)(8); N.C.G.S. \u00a7 14-223.\nAm Jur 2d, Assault and Battery \u00a7 107.\n3. Arrest and Bail \u00a7 96 (NCI4th)\u2014 assault on an officer \u2014use of force by officers \u2014not excessive\nA jury in a prosecution for assaulting an officer could reasonably conclude that officers did not use excessive force in arresting defendant for resisting an officer and that defendant was not entitled to resist in any manner where defendant was stopped for speeding; stood next to the patrol car, talked in a loud and hostile manner, and refused to return to his car while the officer attempted to radio a check on the registration; after warning defendant several times, the officer (Sergeant Tiffin) attempted to arrest defendant for obstruction and placed his hand on defendant\u2019s shoulder to execute the arrest; defendant did not respond and leaned against the patrol car; Sergeant Tiffin and Officer Taylor, who had arrived at the scene to assist Sergeant Tiffin, attempted to turn defendant around and handcuff him but were unable to do so; Corporal Allen arrived and the three officers attempted to secure defendant; defendant fell into the patrol car; and Officer Taylor struck defendant twice on the wrist with a nightstick after defendant attempted to bite Corporal Allen, kicked Sergeant Tiffin in the shin causing injury, and dislocated Officer Taylor\u2019s thumb.\nAm Jur 2d, Arrest \u00a7\u00a7 80, 81.\n4. Indictment, Information, and Criminal Pleadings \u00a7 50 (NCI4th) \u2014 indictment \u2014assaulting an officer \u2014underlying arrest dismissed \u2014 no variance\nThere was not a fatal variance between warrant allegations and the evidence presented at trial where defendant was charged with resisting, obstructing and delaying an officer and three counts of assault on a police officer; the resisting, obstructing, and delaying charge was dismissed prior to jury selection; and defendant was convicted of three counts of assault on a police officer. The State presented evidence that the officers had probable cause to believe that defendant was resisting, obstructing, and delaying an officer in the performance of his official duty; an officer does not have to be attempting an arrest in order to be performing an official duty of his office. Certainly an officer is performing an official duty when he stops a vehicle for speeding and attempts to use his car radio to obtain information on the registration of the stopped vehicle.\nAm Jur 2d, Assault and Battery \u00a7 95.\n5. Assault and Battery \u00a7 60 (NCI4th)\u2014 assault on an officer\u2014 request for further instructions \u2014definition of obstructing \u2014 no plain error\nThere was no plain error in a prosecution for assault on an officer arising from an attempted arrest for obstructing an officer where the jury requested an additional instruction on the definition of \u201cobstruct,\u201d and the definition given at that point did not include the necessary element of willfulness. In convicting defendant, the jury must have determined that he acted willfully when he refused to return to his car as requested by the officer and repeatedly talked in a loud voice as the officer attempted to use the patrol car radio. The Court of Appeals was not convinced that the jury would have reached a different result absent the alleged error.\nAm Jur 2d, Trial \u00a7\u00a7 1448, 1449.\n6. Evidence and Witnesses \u00a7 2973 (NCI4th)\u2014 assault on an officer \u2014cross-examination of officer \u2014alleged misconduct \u2014 questions properly excluded or no prejudice\nTwo questions asked of an officer on cross-examination during a prosecution for assault on an officer were properly excluded because they dealt with complaints and discipline against the officer and did not address his character for truthfulness or untruthfulness. While the third question specifically addressed the officer\u2019s veracity and should have been allowed, defendant failed to prove that there was a reasonable possibility that the outcome of the trial would have been different if the excluded evidence had been admitted. N.C.G.S. \u00a7 8C-1, Rule 608(b); N.C.G.S. \u00a7 15A-1230(a).\nAm Jur 2d, Evidence \u00a7 342.\n7. Criminal Law \u00a7 438 (NCI4th)\u2014 assault on an officer \u2014 prosecutor\u2019s closing argument \u2014no prejudicial error\nThere was no prejudicial error in a prosecution for assault on an officer where the prosecutor commented in his closing argument on the lack of use of sirens in stopping cars for traffic violations; on defendant\u2019s snickering as officers described his conduct and their injuries; and that defendant\u2019s testimony was consistent with that of the officers except for two parts he \u201cmade up\u201d and how victims ended up becoming the defendant. Although the comment on use of sirens may have encompassed matters outside the record, the charges of assault on officers were not related directly to the initial traffic stop; urging jurors to observe defendant\u2019s demeanor for themselves does not inject the prosecutor\u2019s opinions into his argument; and while the last comment was improper, it did not constitute such gross impropriety as to influence the verdict of the jury.\nAm Jur 2d, Trial \u00a7\u00a7 554-556, 609, 637, 664-666, 681.\nAppeal by defendant from judgment entered 25 February 1990 by Judge Frank Brown in Durham County Superior Court. Heard in the Court of Appeals 11 February 1992.\nAttorney General Lacy H. Thornburg, by Special Deputy Attorney General, Ralph B. Strickland, Jr., for the State.\nIrving Joyner for defendant appellant." }, "file_name": "0219-01", "first_page_order": 247, "last_page_order": 259 }