{ "id": 11468449, "name": "STATE OF NORTH CAROLINA, Plaintiff v. JACK R. FOY, Defendant", "name_abbreviation": "State v. Foy", "decision_date": "1998-08-04", "docket_number": "No. COA97-932", "first_page": "466", "last_page": "470", "citations": [ { "type": "official", "cite": "130 N.C. App. 466" } ], "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": "296 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "438" } ], "opinion_index": 0 }, { "cite": "307 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560498 ], "year": 1982, "pin_cites": [ { "page": "9" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0001-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-33", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1997, "pin_cites": [ { "page": "(c)(4)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-160", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1993, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-29", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1993, "opinion_index": 0 } ], "analysis": { "cardinality": 534, "char_count": 9415, "ocr_confidence": 0.744, "pagerank": { "raw": 6.770845263994211e-08, "percentile": 0.4142034921727097 }, "sha256": "8e05b388f3fc35bd15a8addd618d2b708add275dd147997d2f09f1c30a4c620d", "simhash": "1:ff62e0217cef82c3", "word_count": 1569 }, "last_updated": "2023-07-14T19:24:27.441929+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and HORTON concur." ], "parties": [ "STATE OF NORTH CAROLINA, Plaintiff v. JACK R. FOY, Defendant" ], "opinions": [ { "text": "LEWIS, Judge.\nThe State\u2019s evidence tended to show the following. On the morning of 23 December 1995, defendant was booked at the Intake Center of the Mecklenburg County Jail on charges unrelated to this appeal. The Intake Center consists of four cell blocks. Each cell block contains four single cells measuring ten by five feet and two larger dormitory cells. The single cells house one person each and contain only a metal bunk bed, toilet, and sink. The dormitory cells house up to twelve people and contain four bunk beds, a toilet, a sink, and a pay phone. Defendant was placed in Cell B4, a dormitory cell.\nSome twelve hours later, around 10:00 p.m., Deputy Sheriff Scottie Hartsell placed another prisoner in Cell B4. Defendant stepped into the doorway of the cell and said he needed to see the jail nurse. Deputy Hartsell and Deputy Sheriff Tracy Baumgardner both told defendant to get back into his cell. Defendant did not comply. Hartsell decided to move defendant into Cell B2, a single cell across the hall. Hartsell testified that when they arrived at Cell B2, defendant began to argue because it did not have a pay phone, and defendant repeated that he needed to see the nurse. Defendant \u201craised his hand,\u201d and Deputy Hartsell responded by pushing defendant inside the cell. Defendant then punched Hartsell on the side of his head, knocking his eyeglasses to the ground. A scuffle ensued.\nIn the course of the row, defendant bit the top of Hartsell\u2019s left ear and drew blood. Deputy Baumgardner sprayed defendant with pepper mace and struck him with a baton to subdue him. Deputy Hartsell went to the hospital and got thirteen stitches on his ear. There was no evidence that any part of his ear was actually severed.\nOn 3 October 1996, defendant was convicted of three crimes allegedly committed during the December altercation: maiming without malice, in violation of N.C. Gen. Stat. \u00a7 14-29 (1993); injury to personal property, in violation of N.C. Gen. Stat. \u00a7 14-160 (1993); and assault on a government officer, in violation of N.C. Gen. Stat. \u00a7 14-33(c)(4) (Cum. Supp. 1997). He now appeals from those convictions.\nDefendant first argues that his conviction of maiming without malice should be reversed. The relevant statute provides,\nIf any person shall, on purpose and unlawfully, but without malice aforethought, cut, or slit the nose, bite or cut off the nose, or a lip or an ear, or disable any limb or member of any other person, or privy members of any other person, with intent to kill, maim, disfigure, disable or render impotent such person, the person so offending shall be punished as a Class E felon.\nN.C. Gen. Stat. \u00a7 14-29 (1993). Defendant moved to dismiss the maiming charge at the close of the State\u2019s evidence and again at the close of all the evidence. These motions were denied. Over defendant\u2019s objection, the trial court instructed the jury that the State must prove that \u201c[djefendant bit off the ear, bit off a part of the ear, or bit the ear of the victim, Scottie A. Hartsell, thereby permanently injuring him\u201d (emphasis added). Defendant argues that one cannot violate section 14-29 by merely biting the ear of another; rather, defendant argues, one must actually bite off the ear. We agree.\nSection 14-29 is hardly a model of clarity. Consider, for example, the passage that lists the following proscribed acts: \u201ccut[ting], or slit[ting] the nose, bit[ing] or cut[ting] off the nose, or a lip or an ear.\u201d This wording suggests that while cutting off a lip or an ear is proscribed conduct, merely cutting or slitting those body parts \u2014 without cutting or slitting them off \u2014 does not violate the statute. Yet, cutting or slitting the nose \u2014 -without cutting or slitting it off \u2014 is a proscribed act.\nThis case requires us to construe the part of the statute that makes it unlawful to \u201cbite or cut off the nose, or a lip or an ear.\u201d The question is whether the adverb \u201coff\u2019 modifies only the verb \u201ccut,\u201d or whether it modifies the verb \u201cbite\u201d as well. On the one hand, the legislature\u2019s failure to place the adverb \u201coff\u2019 immediately after the word \u201cbite\u201d suggests that mere biting of the lip or ear is prohibited. On the other hand, the passage can easily be read such that the adverb \u201coff\u2019 modifies both of the verbs in the disjunctive clause preceding it: \u201cbite or cut.\u201d\nFaced with an ambiguous criminal law such as this, we apply the general rule of statutory construction and resolve the ambiguity against the State. State v. Hageman, 307 N.C. 1, 9, 296 S.E.2d 433, 438 (1982). We therefore conclude that while biting off the nose, lip, or ear of another is a proscribed act under G.S. 14-29, merely biting the nose, lip, or ear of another is not. The trial court erred when it instructed the jury that it could find defendant guilty of violating section 14-29 if it determined that defendant had bitten Deputy Hartsell\u2019s ear without biting it off in part or altogether. Defendant\u2019s motion to dismiss the maiming charge should have been granted because the State\u2019s evidence did not show that he bit off any part of Deputy Hartsell\u2019s ear. Defendant\u2019s conviction of maiming without malice in violation of section 14-29 is therefore reversed.\nDefendant next argues that the trial court erroneously allowed into evidence testimony that defendant had, on two previous occasions, assaulted government officers. That testimony was substantially as follows:\nMecklenburg County Security Officer Monroe testified that, on 6 February 1990, he responded to a call from a government facility in Charlotte. Upon his arrival, he was told that defendant had come to a meeting with a gun in his holster. Defendant was told to put the gun in his vehicle and he reluctantly said that he would. When he returned to the meeting, however, defendant\u2019s coat was bulging as though it was concealing a gun. When Officer Monroe asked to search him, defendant became argumentative and denied the request. Officer Monroe then grabbed defendant by the shoulders, turned him toward the wall, and began to pat him down. Defendant turned back around and shoved Officer Monroe in the chest. He was arrested and charged with assault on an officer.\nOfficer Charles Smith testified regarding a separate incident. On 20 May 1991, Smith responded to a disturbance call at a pool hall in Matthews. When he arrived, defendant was \u201cboisterous\u201d and appeared intoxicated. Officer Smith took defendant outside and attempted to calm him down. Defendant was arrested, taken to the police station, and placed in a holding cell. Officer Smith then removed defendant\u2019s handcuffs and tried to complete paperwork at a desk in the cell. Defendant jumped around the desk, kicked Officer Smith, and pinned him against the wall with the desk. Defendant was eventually restrained and charged with assault on an officer.\nThe trial court admitted this testimony as relevant to prove defendant\u2019s intent to assault Deputy Hartsell. Defendant argues that this testimony was irrelevant, unduly prejudicial, and, in part, viola-tive of the hearsay rule. Even if defendant is correct, which we do not decide, he has failed to show that the admission of this testimony prejudiced him. Three officers of the Mecklenburg County Sheriff\u2019s Department provided eyewitness testimony as to the events leading to the charges against defendant. There was substantial evidence that defendant assaulted a government officer and damaged the personal property of Deputy Hartsell. There is no \u201creasonable possibility . . . that a different result would have been reached\u201d on these charges had the disputed testimony been excluded. N.C. Gen. Stat. \u00a7 15A-1443(a) (1997).\nConviction on the charge of maiming, 95 CRS 94671, is reversed; no error on the remaining charges.\nJudges GREENE and HORTON concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General E. Clementine Peterson, for the State.", "Malcolm Ray Hunter, Jr., Appellate Defender, by Assistant Appellate Defender Danielle M. Carman, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA, Plaintiff v. JACK R. FOY, Defendant\nNo. COA97-932\n(Filed 4 August 1998)\n1. Crimes, Other\u2014 maiming \u2014 evidence insufficient\nDefendant\u2019s motion to dismiss a charge of maiming without malice under N.C.G.S. \u00a7 14-29 should have been granted in a prosecution arising from an altercation in a jail because the State\u2019s evidence did not show that defendant bit off any part of the deputy\u2019s ear. The statute is ambiguous as to whether \u201cbite or cut off the nose, or a lip or an ear\u201d requires that the ear be bitten off; the ambiguity is resolved against the State and, while biting off the nose, lip, or ear of another is a proscribed act under N.C.G.S. \u00a7 14-29, merely biting the nose, lip, or ear of another is not.\n2. Evidence\u2014 prior assaults \u2014 no prejudice\nThere was no prejudicial error in a prosecution arising from an altercation in a jail between defendant and a deputy in admitting testimony that defendant had assaulted government officers on two previous occasions. Three officers of the Mecklenburg County Sheriffs Department provided eyewitness testimony as to the events leading to these charges and there is no reasonable possibility that a different result would have been reached had the disputed testimony been excluded\nAppeal by defendant from judgment entered 3 October 1996 by Judge Jerry Cash Martin in Mecklenburg County Superior Court. Heard in the Court of Appeals 22 April 1998.\nAttorney General Michael F. Easley, by Assistant Attorney General E. Clementine Peterson, for the State.\nMalcolm Ray Hunter, Jr., Appellate Defender, by Assistant Appellate Defender Danielle M. Carman, for defendant-appellant." }, "file_name": "0466-01", "first_page_order": 498, "last_page_order": 502 }