State v. Moore ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1263
Filed: 19 May 2015
Haywood County, Nos. 13 CRS 51819-23, 51825-26
STATE OF NORTH CAROLINA
v.
ROBERT THOMAS MOORE
Appeal by defendant from judgments entered 22 May 2014 by Judge Marvin
P. Pope in Haywood County Superior Court. Heard in the Court of Appeals 27 April
2015.
Attorney General Roy Cooper, by Assistant Attorney General Whitney Hendrix
Belich, for the State.
Gilda C. Rodriguez for defendant-appellant.
DIETZ, Judge.
Defendant Robert Thomas Moore was convicted on three counts of assault with
a firearm on a law enforcement officer, resisting a public officer, assault on a female,
communicating threats, and interfering with an emergency communication, all
stemming from Moore’s assault on his wife and the resulting encounter with police.
On appeal, Moore argues that the trial court committed plain error by failing
to instruct the jury on the offense of misdemeanor assault with a deadly weapon as a
STATE V. MOORE
Opinion of the Court
lesser-included offense of assault on a law enforcement officer with a firearm. For
the reasons discussed below, we reject this argument. The trial court need not
instruct on a lesser-included offense if there is no evidence contradicting the State’s
evidence supporting the greater offense. Here, the State presented evidence that
Moore knew his wife had called 911, that the police arrived with their blue lights and
sirens activated, that the police loudly announced themselves when entering the
premises, and that they told Moore to show them his hands. These facts were
uncontested. As a result, the trial court did not err in declining to instruct on a lesser-
included offense that would apply only if Moore did not know the men he assaulted
were police.
Facts and Procedural History
On the evening of 27 April 2013, Moore argued with his wife, grabbed her, and
threatened to kill her. Mrs. Moore called 911 and began requesting help, but Moore
took the phone and hung it up. Upon hearing Mrs. Moore’s calls for help, the 911
operator dispatched the Haywood County Sheriff’s Office to the Moore residence.
Mrs. Moore managed to run outside and lock herself in her car. When a
communications officer with the Haywood County Sheriff’s Office called back the
Moore household, Moore answered the phone and took the phone outside to his wife.
Moore placed the phone on the ground near the car and went back inside the house,
as his wife asked. Mrs. Moore informed the officer that Moore had assaulted her,
-2-
STATE V. MOORE
Opinion of the Court
that he had been drinking, that he had guns in the house, and that he was potentially
suicidal. The communications officer relayed the information to law enforcement and
dispatched the Canton Police Department to assist the Sheriff’s Office.
Deputies from the Haywood County Sheriff’s Office arrived at the Moore
residence with their blue lights and sirens activated. Canton Police Department
officers also arrived at the residence. While some officers spoke to Moore’s wife,
another officer went to the front porch, looked through a window, and saw Moore
sitting in the living room, without a weapon in his hands. That officer then rejoined
the others and advised them of his observations. The officers then collectively
approached the house.
Three officers stepped onto the porch. A light was on in the kitchen and a dim
light was on in the living room. One officer opened the glass storm door, pushed open
the main door which was partially open, and announced, “Sheriff’s Office. Bob, let
me see your hands.” That officer could see Moore sitting in his recliner with his back
to the door and told Moore in a louder voice, “Let me see your hands.” Moore began
to rise slowly from his chair and the officer again shouted, “Let me see your hands.”
Moore then spun around to face the officers and pointed a handgun at them. The
officer yelled, “He’s got a gun!” and fired his weapon as he fell to the bottom of the
stairs.
-3-
STATE V. MOORE
Opinion of the Court
The officers then fired multiple shots into the Moore home, resulting in two
gunshot wounds to Moore. A sheriff’s deputy entered the house and ordered Moore
to throw the gun away and show his hands. Officers retrieved Moore’s loaded gun
from the floor near Moore and called for an ambulance. As first aid was being
administered to Moore, one officer heard Moore say that he thought it was his wife
coming into the residence. On the way to the hospital, the paramedic asked Moore
why he had pointed the gun at the deputy, and Moore responded that he had too much
to drink.
A jury found Moore guilty of three counts of assault with a firearm on a law
enforcement officer, resisting a public officer, assault on a female, communicating
threats, and interfering with an emergency communication. The trial court
sentenced Moore to two consecutive sentences of 20 to 36 months of imprisonment.
Moore appeals.
Analysis
I. Sufficiency of Notice of Appeal & Petition for Writ of Certiorari
We first address the sufficiency of Moore’s pro se notice of appeal. Pursuant to
Rule 4 of the North Carolina Rules of Appellate Procedure, notice of appeal in a
criminal case “shall designate . . . the court to which appeal is taken.” N.C. R. App.
P. 4(b). After entry of judgment, the defendant must also serve copies upon the State
within fourteen days. N.C. R. App. P. 4(a)(2).
-4-
STATE V. MOORE
Opinion of the Court
Moore’s pro se notice of appeal failed to designate the court to which appeal is
taken, and there is no indication in the record that the notice was served on the State.
Moore acknowledges his failure to comply with N.C. R. App. P. 4 and has filed a
petition for writ of certiorari seeking appellate review in the event his notice of appeal
is deemed insufficient.
We are compelled to dismiss Moore’s appeal under Appellate Rule 4. However,
in our discretion, we allow Moore’s petition for a writ of certiorari for the purpose of
reviewing the judgments below. N.C. R. App. P. 21(a)(1).
II. Jury Instruction on Lesser-Included Offense
Moore contends the trial court committed plain error in failing to instruct the
jury on the offense of misdemeanor assault with a deadly weapon as a lesser-included
offense of assault on a law enforcement officer with a firearm. Moore concedes that
he failed to request the instruction during the charge conference, or object to the jury
instructions as given, and thus this issue is reviewed for plain error. See N.C. R. App.
P. 10(a)(2), (4).
“For error to constitute plain error, a defendant must demonstrate that a
fundamental error occurred at trial. To show that an error was fundamental, a
defendant must establish prejudice—that, after examination of the entire record, the
error had a probable impact on the jury's finding that the defendant was guilty.”
-5-
STATE V. MOORE
Opinion of the Court
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citation and internal
quotation marks omitted).
“An instruction on a lesser-included offense must be given only if the evidence
would permit the jury rationally to find defendant guilty of the lesser offense and to
acquit him of the greater.” State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 771
(2002). “Where the State’s evidence is positive as to each element of the offense
charged and there is no contradictory evidence relating to any element, no instruction
on a lesser included offense is required.” Id. at 562, 572 S.E.2d at 772. This Court
views the evidence in the light most favorable to the defendant when deciding
whether an instruction on a lesser-included offense is appropriate. State v. Clark,
201 N.C. App. 319, 323, 689 S.E.2d 553, 557 (2009).
The elements of assault with a firearm on a law enforcement officer are: “(1)
an assault; (2) with a firearm; (3) on a law enforcement officer; and (4) while the
officer is engaged in the performance of his or her duties.” State v. Haynesworth, 146
N.C. App. 523, 531, 553 S.E.2d 103, 109 (2001); see also N.C. Gen. Stat. § 14-34.5(a)
(2013). “[T]o be guilty of this offense, the defendant must have known or had
reasonable grounds to know that the victim was a law enforcement officer.” State v.
Dickens, 162 N.C. App. 632, 636, 592 S.E.2d 567, 571 (2004). “Assault with a deadly
weapon is a lesser-included offense of assault with a firearm on a law enforcement
officer as a firearm is considered a deadly weapon.” Id. at 638, 592 S.E.2d at 572.
-6-
STATE V. MOORE
Opinion of the Court
“The elements of the offense of assault with a deadly weapon are: (1) an assault of a
person; (2) with a deadly weapon.” Id.; see also N.C. Gen. Stat. § 14-33(c)(1) (2013).
Moore contends he was entitled to an instruction on the lesser-included offense
because there was conflicting evidence at trial about whether Moore knew the alleged
victims were law enforcement officers. We disagree.
The State’s evidence was “positive as to each element of the offense charged,
and there is no contradictory evidence.” Millsaps, 356 N.C. at 562, 572 S.E.2d at 772.
Although Moore made a comment that he thought it was his wife entering the house,
he also made a conflicting statement that the reason he pointed his gun at the officers
was because he had too much to drink. More importantly, he did not dispute the
State’s evidence demonstrating that he reasonably should have known the victims
were law enforcement officers. Moore knew his wife had called 911 and asked for
police assistance. Law enforcement arrived at Moore’s home with their blue lights
and sirens activated. Several officers testified that they loudly announced themselves
and repeatedly told Moore to show his hands to them. In light of this evidence, we
hold that the trial court did not err in declining to instruct on the lesser-included
offense of assault with a deadly weapon, and certainly did not commit plain error in
failing to give that instruction on its own initiative.
-7-
STATE V. MOORE
Opinion of the Court
Conclusion
The trial court did not err in its instructions to the jury.
NO ERROR.
Judges BRYANT and TYSON concur.
Report per Rule 30(e).
-8-