State v. Emigh ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-148
Filed: 5 December 2017
Gates County, No. 15CRS241
STATE OF NORTH CAROLINA,
v.
ALLEN MICHAEL EMIGH, Defendant.
Appeal by defendant from judgment entered 6 September 2016 by Judge Alma
L. Hinton in Gates County Superior Court. Heard in the Court of Appeals 21 August
2017.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Daniel
S. Hirschman, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender James R.
Grant, for defendant-appellant.
BERGER, Judge.
A Gates County jury found Allen Michael Emigh (“Defendant”) guilty of
unlawfully taking deer with the assistance of artificial lighting on September 6, 2016.
Defendant received a probationary sentence, including electronic monitoring, and
was ordered to pay a $500.00 fine. Defendant timely appealed, arguing that the trial
court committed prejudicial error when instructing the jury on the substantive
offense. We disagree.
Factual & Procedural Background
STATE V. EMIGH
Opinion of the Court
Evidence presented at trial tended to establish that on the evening of
November 29, 2015, North Carolina Wildlife Resource Commission Officer Brandon
Wilkins was on routine assignment in Gates County when he received a phone call
regarding possible deer hunting at night. Officer Wilkins responded to the area of
Indian Neck, where he observed a pick-up truck in the middle of a field with a
spotlight emanating from the interior of the vehicle and sweeping across the field.
Officer Wilkins then heard gunshots coming from the direction of the pick-up truck.
Officer Wilkins initiated a stop of the vehicle after it left the field. Defendant
was one of five occupants of the vehicle. Defendant informed Officer Wilkins that
they were beaver hunting, and that they had discharged between fifteen and
seventeen rounds of ammunition. Officer Wilkins testified that two of the three
firearms located in the vehicle were typical “small- to mid-caliber rifles” used to hunt
deer.
During the course of his investigation, Officer Wilkins observed blood in the
back of the pick-up truck. According to the occupants of the vehicle, the blood was
from a deer killed earlier in the day.
Officer Wilkins cited Defendant for unlawfully taking a deer with the aid of an
artificial light. Defendant was convicted in District Court, and appealed for trial de
novo in Superior Court. A Gates County jury convicted Defendant in Superior Court,
and Defendant appeals, arguing that the trial court erred when it purportedly
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STATE V. EMIGH
Opinion of the Court
expressed an opinion while instructing the jury that “sweeping a spotlight over a field
and firing a weapon” was an attempt to hunt deer. Defendant failed to object to the
jury instructions at trial.
Standard of Review
“[T]he plain error standard of review applies on appeal to unpreserved
instructional . . . error.” State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334
(2012). To show plain error, a party must demonstrate that the instructional error
was “so fundamental as to amount to a miscarriage of justice or which probably
resulted in the jury reaching a different verdict than it otherwise would have
reached.” State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied,
485 U.S. 1036, 99 L. Ed. 2d 912 (1988). “Moreover, because plain error is to be applied
cautiously and only in the exceptional case, the error will often be one that seriously
affects the fairness, integrity or public reputation of judicial proceedings.” Lawrence,
365 N.C. at 518, 723 S.E.2d at 334 (2012) (citations, internal quotation marks, and
brackets omitted).
Analysis
Defendant contends that the trial court improperly expressed an opinion when
it instructed, “[a] person takes a deer when he intends to hunt deer and engages in
any operation constituting an attempt to do so by sweeping a spotlight over a field
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STATE V. EMIGH
Opinion of the Court
and firing a weapon across the field.” Defendant further asserts that he was
prejudiced by this purported error. We disagree.
The citation alleged that Defendant “did unlawfully and willfully [t]ake deer
between 1/2 hour after sunset and 1/2 hour before sunrise by displaying an artificial
light in an area frequented or inhabited by wild deer, having in his possession a
firearm.” The citation then references N.C. Gen. Stat. § 113-291.1(b)(2), -302(b), and
-294(e). These statutory provisions punish the unlawful taking of deer with the
assistance of artificial lighting as a Class 2 misdemeanor with a fine of at least
$500.00. N.C. Gen. Stat. § 113-291.1(b)(2) and -294(e) (2015).
N.C. Gen. Stat. § 113-302(b) sets forth the specific offense for which Defendant
was charged and the significance of certain evidence related to the offense:
The flashing or display of any artificial light between a half
hour after sunset and a half hour before sunrise in any area
which is frequented or inhabited by wild deer by any person
who has accessible to him a firearm, crossbow, or other bow
and arrow constitutes prima facie evidence of taking deer
with the aid of an artificial light. This subsection does not
apply to the headlights of any vehicle driven normally
along any highway or other public or private roadway.
N.C.G.S. § 113-302(b) (2015) (emphasis added).
Prima facie evidence “simply carries the case to the jury for determination and
no more. . . . It is no more than sufficient evidence to establish the vital facts without
other proof, if it satisfies the jury.” State v. Bryant, 245 N.C. 645, 647, 97 S.E.2d 264,
266 (1957) (citation and internal quotation marks omitted). Importantly, a defendant
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STATE V. EMIGH
Opinion of the Court
charged with taking deer with the aid of an artificial light need not actually kill a
deer, or even discharge a weapon in the general direction of a deer. The proof required
by N.C. Gen. Stat. § 113-302(b) to establish a prima facie case is that an individual
have access to a weapon while displaying an artificial light at night in a location
frequented by deer. It is then for the jury to determine if it is fully satisfied or entirely
convinced by the evidence presented.
Defendant here was observed by Officer Wilkins displaying an artificial light
in an area frequented by deer as evidenced by deer tracks in the field. Not only did
Defendant have access to a firearm, but readily admitted that he and his companions
discharged multiple rounds across the field. The parties stipulated that this incident
occurred between one-half hour after sundown and one-half hour prior to sunrise.
Thus, the State presented sufficient evidence to establish a prima facie case of
unlawfully taking a deer with the aid of an artificial light, and it was for the jury to
determine from these facts, along with the other evidence presented at trial, whether
defendant was spotlighting deer or actually hunting beaver.
Consistent with the evidence presented, N.C. Gen. Stat. § 113-302(b), and the
Pattern Jury Instructions,1 the trial court instructed the jury as follows:
1 Criminal Pattern Jury Instruction 273.10 reads as follows:
The defendant has been charged with unlawfully taking a deer with the aid of an artificial
light. For you to find the defendant guilty of this offense, the State must prove three things beyond a
reasonable doubt:
First, that the defendant took a deer. A person takes a deer when he
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STATE V. EMIGH
Opinion of the Court
The defendant has been charged with unlawfully
taking a deer with the aid of an artificial light. For you to
find the defendant guilty of this offense, the State must
prove three things beyond a reasonable doubt. First, that
the defendant took a deer. A person takes a deer when he
intends to hunt deer and engages in any operation
constituting an attempt to do so by sweeping a spotlight
over a field and firing a weapon across the field. Second,
that the defendant did so with the aid of an artificial light.
Third, that the defendant did so after 4:58 p.m. and before
6:55 a.m. . . .
If you find from the evidence beyond a reasonable
doubt that during the night on or about the alleged date,
the defendant intended to hunt a deer and, in order to do
so, shined a light in a sweeping motion across a field and
firing a weapon across a field and that the defendant did so
with the aid of an artificial light and that he did so after
4:58 p.m. and before 6:55 a.m., it would be your duty to
return a verdict of guilty. If you do not so find or have a
reasonable doubt as to one or more of these things, it would
be your duty to return a verdict of not guilty.
a [intentionally [captures] [kills] [harms] [pursues] [hunts] [reduces to possession] a deer] (or)
b [intends to [capture] [kill] [harm] [pursue] [hunt] [reduce to possession] a deer and engages in any
operation constituting b1 [immediate preparation for an attempt to do so] b2 [an attempt to do so] b3
[conduct immediately subsequent to an attempt to do so]]. ((Describe defendant's conduct, e.g., parking
a pick-up truck beside an open field with a loaded rifle handy in the cab) would be such an operation).
Second, that the defendant did so with the aid of an artificial light.
And Third, that the defendant did so after (give time one half hour after sunset) and before
(give time one half hour before sunrise).
If you find from the evidence beyond a reasonable doubt that during the night on or about the
alleged date the defendant a [intentionally (describe conduct constituting successful attempt, e.g., shot)
a deer] b [intended to [capture] [kill] [harm] [pursue] [hunt] [reduce to possession] a deer] and in order
to do so (describe conduct constituting unsuccessful attempt or immediate preparation for an attempt,
e.g., parked his pickup at the side of rural unpaved road 1407 adjacent to Joe Doe's cornfield with a
loaded rifle handy in the cab)], and that the defendant did so with the aid of an artificial light and that
he did so after (give time one half hour after sunset) and before (give time one half hour before sunrise),
it would be your duty to return a verdict of guilty. If you do not so find or have a reasonable doubt as
to one or more of these things, it would be your duty to return a verdict of not guilty. N.C.P.I.--Crim.
273.10 (2001) (footnotes omitted).
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STATE V. EMIGH
Opinion of the Court
The court’s instruction was not the expression of an opinion, but rather an
accurate restatement of the prima facie evidentiary requirements for the charged
offense.
Even if, assuming arguendo, the instruction was improper, which it was not,
Defendant failed to demonstrate prejudice. There was sufficient evidence to support
the jury’s verdict. Officer Wilkins testified he had never heard of beaver hunts at
night in the area, and that spotlights were not used to hunt beaver. Rather, the
evidence presented tended to show that the field where Defendant was observed was
one frequented by deer, and that spotlighting was a method used to hunt deer.
Moreover, Defendant had two rifles commonly used for deer hunting, and admitted
to discharging them multiple times. In addition, the jury heard evidence that there
was blood in the pick-up truck from an earlier successful deer hunt.
It cannot be said that the instruction, based upon the evidence presented at
trial, “probably resulted in the jury reaching a different verdict than it otherwise
would have reached.” Bagley, 321 N.C. at 213, 362 S.E.2d at 251. Therefore,
Defendant’s argument is overruled.
Conclusion
Defendant received a fair trial free from error as the trial court properly
instructed the jury on the offense of unlawfully taking deer with the assistance of
artificial lighting.
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STATE V. EMIGH
Opinion of the Court
NO ERROR.
Chief Judge MCGEE and Judge DIETZ concur.
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