{ "id": 11364485, "name": "STATE OF NORTH CAROLINA v. GLENN WEST", "name_abbreviation": "State v. West", "decision_date": "2001-11-06", "docket_number": "No. COA00-1347", "first_page": "741", "last_page": "744", "citations": [ { "type": "official", "cite": "146 N.C. App. 741" } ], "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": "148 L. Ed. 2d 498", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "opinion_index": 0 }, { "cite": "531 U.S. 1018", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9679042, 9678662, 9678761, 9678795, 9678864, 9678962, 9678739, 9678834, 9678903, 9678645, 9678999, 9678940, 9678686, 9678719 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/us/531/1018-14", "/us/531/1018-02", "/us/531/1018-06", "/us/531/1018-07", "/us/531/1018-09", "/us/531/1018-12", "/us/531/1018-05", "/us/531/1018-08", "/us/531/1018-10", "/us/531/1018-01", "/us/531/1018-13", "/us/531/1018-11", "/us/531/1018-03", "/us/531/1018-04" ] }, { "cite": "528 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "353" }, { "page": "353" } ], "opinion_index": 0 }, { "cite": "351 N.C. 481", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155877 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "525" }, { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0481-01" ] }, { "cite": "155 S.E. 879", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 3, "year": 1930, "pin_cites": [ { "page": "881" }, { "page": "881" } ], "opinion_index": 0 }, { "cite": "199 N.C. 778", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615756 ], "weight": 2, "year": 1930, "pin_cites": [ { "page": "780" } ], "opinion_index": 0, "case_paths": [ "/nc/199/0778-01" ] }, { "cite": "114 S.E. 828", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 4, "year": 1922, "pin_cites": [ { "page": "829" }, { "page": "829", "parenthetical": "defining battery as \"an assault whereby any force, however slight, is actually applied to the person of another, directly or indirectly\"" }, { "page": "829" }, { "page": "829", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "184 N.C. 753", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272265 ], "weight": 4, "year": 1922, "pin_cites": [ { "page": "755" }, { "page": "755" }, { "page": "755" }, { "page": "756" } ], "opinion_index": 0, "case_paths": [ "/nc/184/0753-01" ] }, { "cite": "23 N.C. 125", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2104290 ], "year": 1840, "opinion_index": 0, "case_paths": [ "/nc/23/0125-01" ] }, { "cite": "154 S.E.2d 519", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1967, "pin_cites": [ { "page": "521" }, { "page": "521" }, { "page": "521" } ], "opinion_index": 0 }, { "cite": "270 N.C. 416", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568523 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "418" }, { "page": "418" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0416-01" ] }, { "cite": "432 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "129" }, { "page": "129" } ], "opinion_index": 0 }, { "cite": "334 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530709 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "364" }, { "page": "364" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0356-01" ] }, { "cite": "311 S.E.2d 571", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "574" }, { "page": "574" } ], "opinion_index": 0 }, { "cite": "310 N.C. 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2396078 ], "year": 1984, "pin_cites": [ { "page": "188" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0184-01" ] } ], "analysis": { "cardinality": 437, "char_count": 8665, "ocr_confidence": 0.746, "pagerank": { "raw": 1.002314241993553e-07, "percentile": 0.5392237153594669 }, "sha256": "dd6d6d48bfd068cd6884200cb4467a90d28c3395ba82ced3b4562b59f0cb794a", "simhash": "1:ca6fc63672e49fee", "word_count": 1438 }, "last_updated": "2023-07-14T17:14:58.205856+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and THOMAS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. GLENN WEST" ], "opinions": [ { "text": "GREENE, Judge.\nGlenn West (Defendant) appeals a judgment dated 20 January 2000 and entered consistent with a jury verdict finding Defendant guilty of misdemeanor assault on a female by a male person over the age of eighteen, N.C.G.S. \u00a7 14~33(c)(2) (1999).\nOn 27 January 1999, Sandi Joyce Honeycutt (Honeycutt) asked Defendant, a coworker, for assistance in operating a copy machine with which she was unfamiliar. As Defendant was helping Honeycutt, he complimented her on her looks. Defendant next reached under Honeycutt\u2019s jacket and touched her breast with his hand.\nOn 6 February 1999, Honeycutt filed a criminal complaint against Defendant, and a criminal summons for misdemeanor assault on a female was issued for Defendant that day. The Superior Court of Wake County tried the case before a jury. Both Honeycutt and Defendant testified at trial that Defendant had complimented Honeycutt and then proceeded to touch her breast. At the close of all the evidence, Defendant\u2019s attorney proposed the following jury instructions on the element of assault:\nAn assault may also be committed by battery. Battery is the unlawful application of force to the person of another by the aggressor himself or by some substance which he puts in motion.\nThe trial court instructed the jury in pertinent part:\n[F]or you to find the [Djefendant guilty of assault on a female by a male person, the State must prove ....\nFirst, that the [Djefendant intentionally used force, however slight, to cause contact with the alleged victim. Second, that such bodily contact actually offended a reasonable sense of her personal dignity. Third, that such bodily contact occurred without the alleged victim\u2019s consent.\nThe jury retired to begin deliberations but returned to request instructions from the trial judge on the definitions of \u201cslight\u201d and \u201cforce.\u201d The trial judge conferred with counsel and, over Defendant\u2019s objection, amended his jury instructions to read: \u201cAnd the new first element would be first, that the [Djefendant intentionally touched, however slight, the body of the alleged victim. So instead of the word \u2018force\u2019 I have substituted the word \u2018touch.\u2019 \u201d The jury then rendered a unanimous guilty verdict to which Defendant gave notice of appeal in open court.\nThe issues are whether: (I) Defendant properly preserved his first assignment of error for appeal; (II) the trial court committed error in not using Defendant\u2019s proposed jury instructions; and (III) following the jury\u2019s request for further instructions, the trial court\u2019s substitution of the word \u201ctouch\u201d for \u201cforce\u201d was error.\nI\nThe State argues because Defendant did not object to the trial court\u2019s instructions before the jury retired, Defendant did not properly preserve his first assignment of error for appeal as required by N.C.R. App. P. 10(b) (2). The State therefore contends our review of Defendant\u2019s assignment of error must be limited to whether the trial court committed plain error by rejecting Defendant\u2019s proposed jury instructions. The purpose of Rule 10 (b)(2), however, is to bring errors in jury instructions to the trial court\u2019s attention in order to prevent unnecessary new trials. Wall v. Stout, 310 N.C. 184, 188, 311 S.E.2d 571, 574 (1984). \u201c[T]his policy is met when a request to alter an instruction has been submitted and the trial judge has considered and refused the request.\u201d Id. at 189, 311 S.E.2d at 574. Consequently, Defendant\u2019s tender of proposed jury instructions and the trial court\u2019s refusal to submit these to the jury sufficed to preserve the issue for appeal, and our review is not restricted to plain error.\nII\nDefendant argues the trial court\u2019s refusal to use Defendant\u2019s proposed jury instructions was error. A judge must provide the jury with the substance of an instruction requested by a party if the instruction is correct and supported by the evidence at trial. State v. Harvell, 334 N.C. 356, 364, 432 S.E.2d 125, 129 (1993). Assault on a female may be proven by finding either an assault on or a battery of the victim. State v. Britt, 270 N.C. 416, 418, 154 S.E.2d 519, 521 (1967). Assault is defined as \u201c \u2018an intentional attempt, by violence, to do injury to the person of another.\u2019 \u201d Id. at 419, 154 S.E.2d at 521 (quoting State v. Davis, 23 N.C. 125 (1840)). Battery \u201cis an assault whereby any force is applied, directly or indirectly, to the person of another.\u201d Id. at 418, 154 S.E.2d at 521 (citing State v. Sudderth, 184 N.C. 753, 755, 114 S.E. 828, 829 (1922)). The trial court\u2019s jury instructions only define assault as committed by a battery, and it is the trial court\u2019s definition of battery which Defendant appeals.\nIn this case, Defendant\u2019s proposed instructions derive from State v. Hefner, 199 N.C. 778, 155 S.E. 879 (1930), in which our Supreme Court defines battery as \u201cthe unlawful application of force to the person of another by the aggressor himself, or by some substance which he puts in motion.\u201d Id. at 780, 155 S.E. at 881. The actual jury instructions given by the trial court were taken verbatim from State v. Sudderth, 184 N.C. at 755, 114 S.E. at 829 (defining battery as \u201can assault whereby any force, however slight, is actually applied to the person of another, directly or indirectly\u201d). Although our Supreme Court has over time used slightly different language to define battery, see Britt, 270 N.C. at 418, 154 S.E.2d at 521; Hefner, 199 N.C. at 780, 155 S.E. at 881; Sudderth, 184 N.C. at 755, 114 S.E. at 829, the definition of battery has remained the same in substance, see State v. Wallace, 351 N.C. 481, 525, 528 S.E.2d 326, 353, cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000). Thus, while Defendant\u2019s proposed jury instructions were certainly a correct statement of the law, the trial court\u2019s jury instructions were proper as they presented in substance what Defendant had requested. See Harvell, 334 N.C. at 364, 432 S.E.2d at 129.\nIll\nDefendant next contends had the original jury instructions not been erroneously altered, there would have been a reasonable probability that the jury could have reached a different result. We disagree that the trial court\u2019s subsequent use of the word \u201ctouch\u201d was error. As the State correctly points out, \u201c \u2018a battery . . . may be proved by evidence of any unlawful touching of [a] person.\u2019 \u201d Sudderth, 184 N.C. at 756, 114 S.E. at 829 (citation omitted). This simply presents a further variation on the definition of battery. See Wallace, 351 N.C. at 525, 528 S.E.2d at 353. Hence, the trial court\u2019s clarification did not change the substance of the jury instructions and created no conflict for Defendant who claims to have relied on the earlier use of the word \u201cforce\u201d in framing his closing argument.\nNo error.\nJudges HUNTER and THOMAS concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Lisa C. Glover, for the State.", "Law Offices of Janet I. Pueschel, by Janet I. Pueschel, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GLENN WEST\nNo. COA00-1347\n(Filed 6 November 2001)\n1. Appeal and Error\u2014 preservation of issues \u2014 jury instructions\nA defendant properly preserved for appeal his objection to the trial court\u2019s jury instructions in an assault on a female case as required by N.C. R. App. P. 10(b)(2) when he tendered the proposed jury instructions and the trial court refused to submit these instructions to the jury because the purpose of Rule 10(b)(2) is to bring errors in jury instructions to the trial court\u2019s attention in order to prevent unnecessary new trials.\n2. Assault\u2014 on a female \u2014 jury instructions on battery\nThe trial court did not err in an assault on a female case by refusing to use defendant\u2019s proposed jury instructions defining battery as the unlawful application of force to the person of another by the aggressor himself or by some substance which he puts in motion, because the trial court\u2019s jury instructions defining battery as an assault whereby any force, however slight, is actually applied to the person of another directly or indirectly presented in substance what defendant had requested.\n3. Assault\u2014 on a female \u2014 jury instructions on battery\u2014 clarification\nThe trial court\u2019s clarification in an assault on a female case on the jury instructions for battery by substituting the word \u201ctouch\u201d for the word \u201cforce\u201d was not error because the clarification did not change the substance of the jury instructions and created no conflict for defendant even though he claims he relied on the earlier use of the word \u201cforce\u201d in framing his closing argument.\nAppeal by defendant from judgment dated 20 January 2000 by Judge Orlando F. Hudson, Jr. in Wake County Superior Court. Heard in the Court of Appeals 16 October 2001.\nAttorney General Roy Cooper, by Assistant Attorney General Lisa C. Glover, for the State.\nLaw Offices of Janet I. Pueschel, by Janet I. Pueschel, for defendant-appellant." }, "file_name": "0741-01", "first_page_order": 773, "last_page_order": 776 }