State v. Spencer ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA13-1158
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
STATE OF NORTH CAROLINA
v. Tyrrell County
Nos. 11 CRS 295-96
TEWANIA LYKISHA SPENCER
Appeal by Defendant from judgments entered 10 June 2013 by
Judge W. Russell Duke, Jr., in Superior Court, Tyrrell County.
Heard in the Court of Appeals 29 April 2014.
Attorney General Roy Cooper, by Assistant Attorney General
James C. Holloway, for the State.
Anna S. Lucas for Defendant-Appellant.
McGEE, Judge.
On appeal from her convictions in district court, a jury
found Tewania Lykisha Spencer (“Defendant”) guilty of two counts
of assault on a government officer or employee under N.C. Gen.
Stat. § 14-33(c)(4) (2013), and one count of resisting,
delaying, or obstructing (“RDO”) a public officer under N.C.
Gen. Stat. § 14-223 (2013). The trial court consolidated
Defendant’s offenses into two judgments and sentenced Defendant
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to a total of 150 days of imprisonment. Defendant gave notice
of appeal in open court.
The State’s evidence at trial tended to show that, on the
morning of 22 November 2011, Chief Deputy Karen Simmons (“Chief
Deputy Simmons”) of the Tyrrell County Sheriff’s Office drove to
a residence at 6525 Highway 74 East in Columbia, North Carolina
(the residence), to serve a writ of possession upon Carl Combs.
Defendant, who also lived at the residence, came to the front
door and said Combs was not home. Chief Deputy Simmons posted
the writ of possession on a sliding glass door approximately
twenty feet from the front door, believing that to be the actual
entrance to Combs’ portion of the residence. Chief Deputy
Simmons then left.
Chief Deputy Simmons decided she should add some
information to the writ, so she returned to the residence with
Deputy Matthew Myers (“Deputy Myers”). Deputy Myers waited in
the patrol car while Chief Deputy Simmons attempted to write
additional information on the writ. At this time, Defendant
approached Chief Deputy Simmons from behind and pressed “her
whole body . . . forcibly against [Chief Deputy Simmons], and
[Defendant] was trying to reach around [Chief Deputy Simmons]
. . . to tear the paper off of the . . . sliding glass doors.”
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Defendant ignored Chief Deputy Simmons’ repeated requests to
“[g]et off of me” and “[l]eave the paper alone[.]” Defendant
“kept . . . pushing into [Chief Deputy Simmons’] body trying to
reach the paper” posted on the door.
Deputy Myers exited the patrol car and attempted to arrest
Defendant. Deputy Myers advised Defendant that he was going to
place her under arrest for “resist, delay, and obstruct[,]”
Defendant replied: “I’m not going anywhere[,]” and walked away
from Deputy Myers toward the door. Deputy Myers pursued
Defendant and grabbed her by the left hand in order to handcuff
her. Defendant “snatched away” from Deputy Myers and continued
walking, saying: “I’m not going anywhere with you.” Deputy
Myers made a second attempt to grasp Defendant’s hand.
Defendant, “[o]nce again . . . resisted and snatched away” and
“kept walking back towards the house.” When Deputy Myers tried
a third time to take hold of Defendant’s hand, Defendant “turned
around, and she slapped [him] across the face” – knocking his
sunglasses to the ground. Chief Deputy Simmons then fired her
Taser into Defendant’s right shoulder and assisted Deputy Myers
in taking Defendant into custody. Defendant was convicted of
assaulting Chief Deputy Simmons and convicted of both resisting,
delaying or obstructing, and assaulting, Deputy Myers.
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In her sole argument on appeal, Defendant challenges the
convictions related to Deputy Myers. Specifically, Defendant
argues the trial court’s entry of judgment on both of those
convictions resulted in Defendant’s being “punished twice for
the same conduct” in violation of the constitutional prohibition
against double jeopardy.
In light of “our Supreme Court's decisions holding that a
double jeopardy issue cannot be raised for the first time on
appeal[,]” we conclude Defendant’s argument is not properly
before this Court. State v. Kirkwood, __ N.C. App. __, __, 747
S.E.2d 730, 736 (citation omitted), appeal dismissed, __ N.C.
__, 752 S.E.2d 487 (2013). At no time did Defendant present her
claim of double jeopardy to the trial court. She did not
challenge the trial court’s submission of both charges involving
Deputy Myers to the jury, or the trial court’s entry of judgment
on both convictions. Accordingly, Defendant waived appellate
review of this issue. State v. McLaughlin, 321 N.C. 267, 272,
362 S.E.2d 280, 283 (1987). Insofar as Defendant invokes N.C.
Gen. Stat. § 15A-1446(d)(18) (2014) as an alternative basis for
appellate review, we reiterate our recent holding in Kirkwood
that, “[s]ince we are bound by the rulings of our Supreme Court,
we find defendant's preservation argument based upon N.C. Gen.
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Stat. § 15A-1446(d)(18) unpersuasive.” Kirkwood, __ N.C. App.
at __, 747 S.E.2d at 736 (citations omitted). We dismiss
Defendant’s appeal.
Assuming, arguendo, Defendant had properly preserved this
issue for appellate review, Defendant’s claim is without merit.
Assault on a government officer or employee and resisting,
delaying or obstructing a public officer “‘are separate and
distinct offenses’” for double jeopardy purposes, inasmuch as
each contains an essential element not found in the other.
State v. Bell, 164 N.C. App. 83, 93, 594 S.E.2d 824, 830 (2004)
(citation omitted). Moreover, the “fact that each crime
requires proof of an element which the other does not
demonstrates the intent of the General Assembly to allow
multiple punishments to be imposed for the separate crimes.”
State v. Haynesworth, 146 N.C. App. 523, 531, 553 S.E.2d 103,
109 (2001).
Nor were the charges based on the identical evidence or
conduct, so as to give rise to potential double jeopardy
concerns. “‘In determining whether two indictments are for the
same offense, our courts have used the same-evidence test.’”
State v. Newman, 186 N.C. App. 382, 387, 651 S.E.2d 584, 587
(2007) (citation omitted). In the case sub judice, the State’s
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statement of charges1 alleged that Defendant assaulted Deputy
Myers “by slapping [him] across the face[.]” By contrast, the
pleading charged that Defendant committed the offense of
resisting, delaying or obstructing an officer “by pulling away,
struggling and resisting the efforts of Deputy Myers to arrest
[her].” As reflected in the State’s proffer at trial, these two
counts clearly described separate conduct by Defendant and thus
did not rely on the “same evidence” to sustain Defendant’s
convictions under N.C. Gen. Stat. §§ 14-33 and 14-223. See
Newman, 186 N.C. App. at 389, 651 S.E.2d at 589 (“[T]he evidence
is not in fact the same as the RDO warrant was validly based on
defendant ‘pulling away and elbowing at the officer’ whereas the
assault was only based on the defendant ‘elbowing’ the
officer.”).
Dismissed.
Judges ELMORE and DAVIS concur.
Report per Rule 30(e).
1
See generally N.C. Gen. Stat. §§ 15A-921, -922 (2013)
(authorizing statement of charges as pleading in misdemeanor
cases initiated in district court).