State v. Harper ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-630
No. COA21-752
Filed 20 September 2022
Pitt County, No. 19 CRS 056608
STATE OF NORTH CAROLINA
v.
RONALD PRESTON HARPER
Appeal by defendant from judgments entered 24 June 2021 by
Judge Thomas D. Haigwood in Pitt County Superior Court. Heard in the Court of
Appeals 9 August 2022.
Attorney General Joshua H. Stein, by Assistant Attorney General Juliane L.
Bradshaw, for the State.
Hynson Law, PLLC, by Warren D. Hynson, for defendant-appellant.
TYSON, Judge.
¶1 Ronald Preston Harper (“Defendant”) appeals from judgment entered upon a
jury’s verdict finding him guilty of willingly resisting, delaying, or obstructing a
public officer. We find no error.
I. Background
¶2 Winterville Police Officers Jordan Cruse (“Officer Cruse”) and Jordan Fuquay
(“Officer Fuquay”) were dispatched to a Sam’s Club gas station in Winterville on 14
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September 2019 at approximately 2:40 p.m. The dispatch was in response to a caller
reporting an individual “cursing and using profanity towards” the caller.
¶3 Prior to the officers’ arrival, Defendant was talking to the caller at the gas
station about a “blue line” bumper sticker located on the caller’s car and race
relations. The Defendant and the caller disagreed over policing practices within the
United States. No physical confrontation or altercation occurred between Defendant
and the caller.
¶4 Upon arrival, Officer Cruse and Officer Fuquay observed the caller seated
inside a vehicle parked at a gas pump. Defendant’s vehicle was parked behind the
caller’s vehicle at another gas pump. The officers located the caller, who stated
Defendant was bothering him. At that time, Defendant was arguing with the gas
station attendant over the gas pump, which was spilling fuel due to the hose being
over extended.
¶5 Officer Cruse and Officer Fuquay requested to speak with Defendant about the
reason for the dispatch call. Defendant refused to speak with the officers, stating he
was “attending to his pumping duties.” Officer Cruse continued to request Defendant
to speak with him, whereby Defendant asked if he was under arrest. Officer Cruse
responded, “[n]o, you’re not free to leave right now.” Defendant added, “So I’m under
arrest. What statute in North Carolina are you coming to talk to me about?” Officer
Cruse responded to Defendant that he was being detained for “causing a
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disturbance.” Officer Cruse reiterated, “[t]he reason that I am talking to you is
because we had a gentleman call, complaining that you were harassing him . . . That’s
all I’m here to talk to you about.” Defendant replied, “[w]ell, I’m not talking to you
about it.”
¶6 The exchange continued until Officer Cruse requested Defendant provide
identification. Defendant reached into his shirt pocket and produced a card
purportedly containing Defendant’s name with initials, title, a telephone number,
and a quote from City of Houston v. Hill. 482 U.S. 451, 462-63, 96 L.Ed.2d 398, 412-
13 (1987) (“The freedom of individuals verbally to oppose or challenge police action
without thereby risking arrest is one of the principal characteristics by which we
distinguish a free nation from a police state.”). Defendant asserted he had previously
worked as an “investigative journalist” for twenty years.
¶7 Officer Cruse continued to request Defendant’s identification several times to
complete the investigation and dispatch report. Defendant continued to refuse to
produce any identification other than the card. Defendant again tried to hand Officer
Cruse the same card, requesting Officer Cruse to read the card because the encounter
was “a constitutional issue.”
¶8 Soon thereafter, Defendant responded to yet another request for identification,
stating it was located inside his vehicle. Officer Cruse escorted Defendant over to his
vehicle where Defendant grabbed his card holder attached to his cell phone.
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Defendant again tried to give Officer Cruse the card, stating “I’m not giving you
nothing until you take this. Take that!” When Officer Cruse refused, Defendant
offered the card to Officer Fuquay.
¶9 Officer Cruse handcuffed Defendant and requested Officer Fuquay retrieve
Defendant’s card, out-of-state driver’s license, and cell phone. Defendant’s license
identified him as “Ronald Preston Harper Jr. from Pennsylvania.” Defendant was
placed under arrest for obstructing Officer Cruse’s investigation by refusing to
provide identification and charged with resisting, delaying, or obstructing a public
officer.
¶ 10 Officer Cruse was conducting unrelated third-party traffic stops or
investigations post-arrest when Defendant appeared at three locations on 22 October
2019 and twice on 17 December 2019. Defendant moved within 10 feet of the stop
and recorded Officer Cruse. Defendant next appeared at a stop Officer Cruse was
conducting on 17 December 2019. He came near the officer and stated, “I am
watching you Jordan, you A--hole.” During the second stop on 17 December 2019,
Defendant drove by and gestured with a hand motion resembling a gun pointed at
Officer Cruse. Officer Cruse charged Defendant with communicating threats. The
two charges were joined and tried together. Defendant was convicted by a jury of
resisting, delaying, or obstructing a police officer but was acquitted of communicating
threats. Defendant appeals.
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II. Jurisdiction
¶ 11 Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. §§ 7A-27(b)(1), 15A-
1444(a) (2021).
III. Issues
¶ 12 Defendant raises three issues on appeal: (1) whether the trial court properly
denied Defendant’s motion to dismiss the charge of resisting, delaying, or obstructing
a public officer; (2) whether the trial court erred by allowing Defendant to waive
counsel and represent himself in superior court after Defendant had signed a waiver
of counsel in district court; and, (3) whether the trial court erred by failing to instruct
the jury on justification or excuse for the charge of resisting, delaying, or obstructing
a public officer.
IV. Motion to Dismiss
¶ 13 At the close of the State’s evidence, Defendant moved to dismiss the
obstructing a public officer charge. Following the defense’s evidence, the trial court
renewed sua sponte Defendant’s motion to dismiss and the motion. The issue is
preserved for review by this Court. N.C. R. App. P. 10(a)(3).
A. Standard of Review
¶ 14 Where a defendant properly preserves a motion to dismiss, this Court reviews
the denial of a motion to dismiss de novo. State v. Parker, 274 N.C. App. 464, 469, 852
S.E.2d 638, 644 (2020) (citation omitted). Under de novo review, this Court “considers
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the matter anew and freely substitutes its own judgment” for that of the trial court.
In re Appeal of The Greens of Pine Glen Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d
316, 319 (2003) (citation omitted).
B. Analysis
¶ 15 In ruling on a motion to dismiss criminal charges, the question is “whether
there is substantial evidence (1) of each essential element of the offense charged . . .
and (2) of defendant’s being the perpetrator of such offense.” State v. Barnes, 334 N.C.
67, 75, 430 S.E.2d 914, 918 (1993) (citation omitted).
¶ 16 Whether the State presented substantial evidence of each essential element of
the offense is a question of law this Court reviews de novo. State v. Golder, 374 N.C.
238, 250, 839 S.E.2d 782, 790 (2020) (citation omitted). In ruling on a motion to
dismiss, this Court views all evidence in the light most favorable to the State and
draws all reasonable inferences in the State’s favor. Id.¶ 17 The elements of the offense of resisting, delaying, or obstructing a public officer
are: (1) “the victim was a public officer”; (2) “the defendant knew or had reasonable
grounds to believe the [officer] was a public officer”; (3) “the [officer] was [lawfully]
discharging or attempting to discharge a duty of his office”; (4) “the defendant
resisted, delayed, or obstructed the [officer] in discharging or attempting to discharge
a duty of his office”; and, (5) “the defendant acted willfully and unlawfully, that is
intentionally and without justification or excuse.” State v. Peters, 255 N.C. App. 382,
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387, 804 S.E.2d 811, 815 (2017) (explaining the essential elements of N.C. Gen. Stat.
§ 14-223 (2021)).
¶ 18 Defendant does not challenge the first two elements on appeal. Officer Cruse
was a public officer in uniform responding to a dispatched call in a marked vehicle,
identified himself, announced the reason for his presence on the scene, and requested
Defendant to identify himself. N.C. Gen. Stat. § 14-223 (2021).
1. Lawful Discharge of Duties
¶ 19 Defendant first asserts the trial court erred in denying his motion to dismiss
the charge of resisting, delaying, or obstructing a public officer because the initial
contact with Defendant was not a lawful discharge of the officer’s duties. To succeed
in a motion to dismiss, substantial evidence must tend to show Officer Cruse was
either not discharging or attempting to discharge his duties or was doing so
unlawfully. This element “presupposes lawful conduct of the officer in discharging or
attempting to discharge a duty of his office.” State v. Sinclair, 191 N.C. App. 485, 489,
663 S.E.2d 866, 870 (2008).
¶ 20 “The Fourth Amendment protects individuals ‘against unreasonable searches
and seizures,’ [under] U.S. Const. amend. IV, and the North Carolina Constitution
provides similar protection, [under] N.C. Const. art. I, § 20.” State v. Styles, 362 N.C.
412, 414, 665 S.E.2d 438, 439 (2008). Our Supreme Court has stated that “the police
can stop and briefly detain a person for investigative purposes if the officer has a
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reasonable suspicion supported by articulable facts that criminal activity ‘may be
afoot,’ even if the officer lacks probable cause.” Id. at 423-24, 665 S.E.2d at 445.
¶ 21 Reasonable suspicion requires “[t]he stop must be based on specific and
articulable facts, as well as the rational inferences from those facts, as viewed
through the eyes of a reasonable, cautious officer, guided by his experience and
training.” State v. Watkins, 337 N.C. 437, 441-42, 446 S.E.2d 67, 70 (1994) (citations
omitted). “Reasonable suspicion is a less demanding standard than probable cause
and requires a showing considerably less than preponderance of the evidence.” Styles,
at 414, 665 S.E.2d at 439 (citations and internal quotation marks omitted).
¶ 22 The State’s evidence tends to show Officer Cruse established reasonable
suspicion through articulable facts prior to approaching and detaining Defendant.
Officers knew the description of the parties from the call reporting a disturbance.
Upon the officers’ arrival at the scene, the caller immediately identified Defendant as
the person who had caused the disturbance. Officer Cruse also testified he observed
Defendant “yelling and fussing” at the gas station attendant upon his arrival. The
basis for the call and subsequent investigation was substantiated prior to Defendant
being approached and detained. Watkins, 337 N.C. at 442, 446 S.E.2d at 70.
¶ 23 When reviewing the reasonableness of a warrantless detention, this Court
considers the totality of circumstances to determine whether reasonable suspicion
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exists to make an investigatory detention. See State v. Sanchez, 147 N.C. App. 619,
623, 556 S.E.2d 602, 606 (2001) (citations omitted).
¶ 24 This Court determined officers had “‘a reasonable basis to stop [the] defendant
and require him to identify himself’ to ascertain whether he was the named subject
in their arrest warrants.” State v. Washington, 193 N.C. App. 670, 680, 668 S.E.2d
622, 628 (2008) (citations omitted). By doing so, “the officers were lawfully
discharging a duty of their office.” Id. An officer may briefly detain a suspect when
responding to and observing activity reasonably calculated to be criminal activity.
See State v. Harrell, 67 N.C. App. 57, 63, 312 S.E.2d 230, 235 (1984) (holding an officer
briefly seizing a driver to ask for his driver’s license to determine his identity and
employment status was proper).
¶ 25 The State need only show Officer Cruse reasonably believed some criminal
activity may be occurring based on articulable facts to survive Defendant’s motion to
dismiss. Viewing evidence in the light most favorable to the State, Officer Cruse
could have reasonably believed Defendant was the subject of the disturbance
dispatch, verified that information with the caller, and observed and articulated facts
sufficient to approach Defendant to request identification.
¶ 26 Upon arrival, Officer Cruse initially spoke with the caller who had reported
Defendant was harassing him. The caller specifically identified Defendant as that
person. Defendant was observed engaging in aggressive behaviors toward the gas
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station attendant. When Officer Cruse approached Defendant in the investigation of
the disturbance call, reasonable suspicion existed. Officer Cruse was lawfully
discharging his law enforcement duties and within his rights to confront and request
Defendant’s identity.
¶ 27 Viewing the evidence in the light most favorable to the State, substantial
evidence was presented tending to show and for the jury to find the third element,
that the officer was lawfully discharging or attempting to discharge a duty of his
office, sufficient to overcome Defendant’s motion to dismiss. See Peters, 255 N.C. App.
at 387, 804 S.E.2d at 815 (citing N.C. Gen. Stat. § 14-223).
2. Resisting, Delaying, or Obstructing
¶ 28 Defendant next asserts the trial court erred in denying his motion to dismiss
the charge of resisting, delaying, or obstructing a public officer because the actions
by Defendant did not rise beyond mere criticism.
¶ 29 Defendant wrongfully relies upon case law attempting to attribute Defendant’s
breach of the peace and harassing and threatening conduct with that of mere
questioning or criticism. See State v. Leigh, 278 N.C. 243, 251, 179 S.E.2d 708, 713
(1971); State v. Humphreys, 275 N.C. App. 788, 789, 853 S.E.2d 789, 791 (2020).
Defendant argues his actions merely apprised the officers of his constitutional rights.
See Leigh, 278 N.C. at 251, 179 S.E.2d at 713 (explaining that “criticizing or
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questioning an officer while he is performing his duty, when done in an orderly
manner, does not amount to obstructing or delaying an officer”). We disagree.
¶ 30 Defendant has no right to breach the peace on private or public property or to
harass others to constitutionally “express himself.” Also, Defendant’s harassing
customers, arguing with employees, and spilling flammable fuel on private property
are independent grounds for other potential charges and crimes to warrant the
officers’ request for identification.
¶ 31 A defendant commits the offense of resisting, delaying, or obstructing a public
officer by “willfully and unlawfully resist[ing], delay[ing] or obstruct[ing] a public
officer in discharging or attempting to discharge a duty of his office[.]” N.C. Gen. Stat.
§ 14–223. This Court has previously held the failure by an individual to provide
personal identifying information during a lawful stop constitutes resistance, delay,
or obstruction within the meaning of N.C. Gen. Stat. § 14-223. See State v. Friend,
237 N.C. App. 490, 493, 768 S.E.2d 146, 148 (2014).
¶ 32 Actions or even language which cause delays or obstruction in an officer’s
investigation can constitute this offense. See Leigh, 278 N.C. at 249, 179 S.E.2d at
711. Defendant was not a mere bystander present in a public place, but rather an
identified subject of the complaint that initiated the dispatch call and the reason for
the investigation.
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¶ 33 Defendant’s actions prevented and obstructed Officer Cruse from conducting a
proper and prompt investigation into the alleged disturbance. Defendant refused to
provide verifiable identification and delayed the officers’ ability to promptly
investigate and resolve the call. While Defendant did in fact attempt to give Officers
Cruse and Fuquay a card with purported information, that was not immediately
verifiable as accurate. The officers were unable to ensure accurate information was
presented to investigate the disturbance dispatch, close out the call, and complete
their report.
¶ 34 Together with the totality of all the evidence, Defendant’s refusal to provide
verifiable identification to law enforcement is for a jury to decide whether his conduct
amounted to resisting, delaying, or obstructing the officers. N.C. Gen. Stat. § 14-223;
see State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980) (stating
“contradictions and discrepancies of fact are for the jury to resolve and do not warrant
dismissal”). Defendant’s conduct and refusals tend to show the investigation was
obstructed or delayed the release of other witnesses as Officer Cruse was unable to
conduct a lawful investigation and complete the call. Id.¶ 35 As noted, Officer Cruse arrived in uniform, identified himself, and was
properly investigating and lawfully conducting a complaint of Defendant’s actions
breaching the peace on private property, by threatening and harassing others. By
refusing to identify himself and cooperate with Officer Cruse’s investigation,
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sufficient evidence of this element was presented tending to show and for the jury to
find Defendant resisted, delayed, or obstructed the officer in discharging or
attempting to discharge a duty of his office to survive Defendant’s motion to dismiss.
See Peters, 255 N.C. App. at 387, 804 S.E.2d at 815 (citing N.C. Gen. Stat. § 14-223).
Viewing the evidence in the light most favorable to the State, substantial evidence
supports the fourth element that Defendant resisted, delayed, or obstructed the
officer in discharging or attempting to discharge a duty of his office to overcome a
motion to dismiss. Id. Defendant’s argument is without merit.
3. Willful and Unlawful Conduct
¶ 36 Defendant asserts the trial court erred in denying his motion to dismiss the
charge of resisting, delaying, or obstructing a public officer because his actions were
justified and not willful. “Willful” is defined as “the wrongful doing of an act without
justification or excuse, or the commission of an act purposely and deliberately in
violation of law.” State v. Brackett, 306 N.C. 138, 142, 291 S.E.2d 660, 662 (1982)
(internal citation omitted).
¶ 37 As noted, Officer Cruse was properly dispatched to and was investigating a
disturbance call, wherein Defendant was identified as the suspect, and he lawfully
conducted a brief detention to identify Defendant. “Those [communications] intended
to hinder or prevent an officer from carrying out his duty admittedly are discouraged
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by [N.C. Gen. Stat. §14-223].” State v. Singletary, 73 N.C. App. 612, 615, 327 S.E.2d
11, 13 (1985) (citation omitted).
¶ 38 Again, Defendant wrongfully rests his arguments on the detention being
unlawful, as well as offering the card to justify his belligerency, conduct, and failure
to provide verifiable identification. Defendant correctly points out the Court in
Friend does not require a government-issued identification, although officers may
require defendants to present verifiable identification. Friend, 237 N.C. App. at 493,
768 S.E.2d at 148.
¶ 39 As the State correctly argues, Defendant’s card did not provide a legal name,
photo, date of birth, address, or any other identifying information, other than initials
and a last name. Defendant’s vehicle also displayed out-of-state license plates
preventing officers from immediately verifying identity and ownership, until his out-
of-state driver’s license was retrieved from inside the vehicle.
¶ 40 The State’s evidence also tends to show Defendant was the identified subject
of the investigation, was observed harassing others, spewing profanities and verbal
bile, spilling gasoline on private property, and being uncooperative by refusing to
offer information to delay and prolong the officers’ investigation. Singletary, 73 N.C.
App. at 615, 327 S.E.2d at 13. Defendant was the subject of the investigation and not
a mere bystander in a public place. Defendant argues nothing to grant a pre-emptive
dismissal based on any justification or lack of willfulness.
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¶ 41 Viewing the evidence in the light most favorable to the State, substantial
evidence tends to show the fifth element that Defendant acted willfully and
unlawfully and was intentional and without justification or excuse to overcome
Defendant’s motion to dismiss. See Peters, 255 N.C. App. at 387, 804 S.E.2d at 815
(citing N.C. Gen. Stat. § 14-223).
¶ 42 Officer Cruse reasonably believed Defendant was the subject of the complaint,
properly conducted an investigatory detention, and lawfully requested Defendant’s
verifiable identification to conduct and complete an investigation. Substantial
evidence was presented of each essential element of the offense charged, and of
Defendant being the perpetrator of such offense. Id. The trial court did not err by
denying Defendant’s motion to dismiss. His argument is without merit and
overruled.
V. Waiver of Counsel
¶ 43 Defendant argues the trial court erred when it allowed Defendant to waive
counsel and represent himself in superior court after Defendant signed a waiver of
counsel in district court.
A. Standard of Review
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¶ 44 This court reviews the sufficiency of a trial court’s statutory inquiry concerning
a defendant’s waiver of his rights to counsel de novo. State v. Watlington, 216 N.C.
App. 388, 393-94, 716 S.E.2d 671, 675 (2011) (citations omitted).
B. Analysis
¶ 45 Both the Constitution of the United States and the North Carolina
Constitution recognize criminal defendants have a right to assistance of counsel. U.S.
Const. Amend. VI; N.C. Const. Art. I, §§ 19, 23; see also State v. Montgomery, 138
N.C. App. 521, 524, 530 S.E.2d 66, 68 (2000). Defendants also have the right to waive
counsel, represent themselves, and handle their case without assistance of counsel.
State v. Mems, 281 N.C. 658, 670-71, 190 S.E.2d 164, 172 (1972).
¶ 46 Before a defendant is allowed to waive the right to counsel, a trial court must
conduct a statutorily-required colloquy to determine that “constitutional and
statutory standards are satisfied.” State v. Moore, 362 N.C. 319, 322, 661 S.E.2d 722,
724 (2008). Courts “must determine whether the defendant knowingly, intelligently
and voluntarily waives the right to in-court representation by counsel.” Id.¶ 47 The procedure to waive counsel is codified in N.C. Gen. Stat. § 15A-1242 (2021).
Courts may only enter an order to allow defendants to waive their right to counsel
after being satisfied the movant: (1) has been clearly advised of his rights to the
assistance of counsel, including his right to the assignment of appointed counsel when
he is so entitled; (2) understands and appreciates the consequences of this decision;
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and, (3) comprehends the nature of the charges and proceedings and the range of
permissible punishments. Id.
¶ 48 The record indicates Defendant executed a written disclosure and waiver of
counsel on 3 October 2020 in open court during district court proceedings. Written
waivers of counsel, certified by the trial court, create a rebuttable presumption that
the waiver was executed knowingly, intelligently, and voluntarily pursuant to N.C.
Gen. Stat. § 15A-1242; State v. Kinlock, 152 N.C. App. 84, 89, 566 S.E.2d 738, 741
(2002), aff’d per curiam, 357 N.C. 48, 577 S.E.2d 620 (2003). Once a written waiver
of counsel is executed and certified by the trial court, subsequent waivers or inquiries
are not necessary before further proceedings. State v. Watson, 21 N.C. App. 374, 378,
204 S.E.2d 537, 540 (1974).
¶ 49 Once the initial waiver of counsel was executed, it was not necessary for
successive written waivers to be executed, nor for additional inquiries to be made by
the district or superior court pursuant to N.C. Gen. Stat. § 15A-1242. The record on
appeal contains no transcript of the proceedings challenging or surrounding the
October 2020 waiver. The only evidence in the record before this Court regarding the
waiver is the signed waiver and certification made by the district court judge that a
proper inquiry and disclosure was made in compliance with N.C. Gen. Stat. § 15A-
1242.
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¶ 50 An executed waiver creates a “rebuttable presumption” of sufficiency and the
record provides no grounds for rebuttal. The record indicates Defendant executed
multiple waivers attesting he understood his rights, “voluntarily, knowingly and
intelligently” elected to waive counsel and no evidence contra exists the initial waiver
was statutorily or constitutionally insufficient. The trial court did not err when it
allowed Defendant to waive counsel and represent himself in subsequent
proceedings. N.C. Gen. Stat. § 15A-1242.
¶ 51 Any asserted inadequacy in a court’s further inquiry into Defendant’s waiver
is immaterial, provided the original waiver was compliant with the statute and was
certified by the trial court. Any successive inquiry beyond the original waiver would
serve only to determine whether Defendant desired to withdraw his waiver. The
record is devoid of any objection, request to withdraw the waiver, or a request for
counsel. Defendant failed to show the initial disclosure and waiver he executed and,
which was certified in district court, failed to satisfy the statute. N.C. Gen. Stat.
§ 15A-1242 (2021). We find no prejudicial or reversible error. Defendant’s argument
is overruled.
VI. Jury Instruction on Justification or Excuse
¶ 52 Defendant argues the trial court erred by failing to instruct the jury on
justification or excuse for the charge of resisting, delaying, or obstructing a public
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officer. N.C. Gen. Stat. § 14-223 (2021).
A. Standard of Review
¶ 53 Trial courts have a duty to instruct the jury on all substantial features of the
case arising from the evidence and “must properly instruct the jury as to all essential
elements of the offense charged.” State v. Hairr, 244 N.C. 506, 509, 94 S.E. 2d 472,
474 (1956). Errors in jury instructions are “preserved for appellate review, even
without objection, ‘when the trial court deviates from an agreed-upon pattern
instruction.’” State v. Clagon, 279 N.C. App. 425, 432, 865 S.E.2d 343, 348 (2021)
(internal citation omitted).
B. Analysis
¶ 54 Defendant failed to object to jury instruction at trial both during the charge
conference and when asked by the trial court following the delivery of instruction to
the jury. No evidence in the record indicates Defendant objected to the jury
instructions agreed upon at the charge conference. After delivering the instructions
to the jury, the trial court held the following colloquy with the parties:
THE COURT: Before sending the verdict sheets to the jury
and allowing them to begin their deliberations, I will hear
at this time any objections or corrections to the Court’s
charge to the jury. First from the State?
STATE: No, sir.
THE COURT: From the Defendant?
DEFENDANT: No, sir.
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¶ 55 Defendant’s failure to request, to object prior to or after the instructions were
given to the jury, along with his express agreement after the instructions were given
to the jury, constitutes invited error. Defendant’s invited error waived any “right to
all appellate review concerning the invited error, including plain error review.” State
v. Barber, 147 N.C. App. 69, 74, 554 S.E.2d 413, 416 (2001) (citation omitted).
¶ 56 We find instructive and precedential our Supreme Court’s determination in
State v. White, 349 N.C. 535, 508 S.E.2d 253 (1998). The Court examined defense
counsel’s involvement in jury instructions in a capital murder-death penalty case. Id.The Court held: “Counsel . . . did not object when given the opportunity either at the
charge conference or after the charge had been given. In fact, defense counsel
affirmatively approved the instructions during the charge conference. Where a
defendant tells the trial court that he has no objection to an instruction, he will not
be heard to complain on appeal.” Id. at 570, 508 S.E.2d at 275 (citation omitted).
¶ 57 The record shows the jury instructions: (1) were agreed upon at the charge
conference; (2) were not objected to at the charge conference; (3) were not objected to
when provided to the jury; or, (4) when Defendant was given a further opportunity to
object by the trial court before the jury retired. No deviations from the agreed-upon
jury instructions were made by the trial court. By failing to object at trial and
expressly agreeing to the jury instructions as given, Defendant waived any right to
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appeal this issue. Defendant’s argument is barred as invited error. Id. Defendant’s
argument is dismissed.
VII. Conclusion
¶ 58 Upon de novo review, the trial court did not err in denying Defendant’s motion
to dismiss. Substantial evidence of each essential element of the charged offense of
resisting, delaying, or obstructing a police officer, and of Defendant being the
perpetrator of such offense, was presented to submit the charge to the jury. Officer
Cruse was lawfully discharging his duties in responding to a breach of the peace and
disturbance call and was within his rights to require Defendant, the identified
subject, to provide verifiable identification.
¶ 59 With the totality of the circumstances and evidence introduced and admitted,
Defendant’s failure to provide the requested identification was sufficient to submit
the charge and evidence to the jury for their consideration and resolution.
¶ 60 Defendant was apprised of his rights to counsel and expressly waived his right
to assistance of counsel during district court proceedings. Defendant’s waiver was
certified by the trial court and sufficient to waive his right to counsel in further
proceedings. Nothing in the record indicates the court failed to statutorily comply
with apprising Defendant of his rights prior to Defendant waiving counsel in district
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court. The superior court was not required to further apprise Defendant of his right
to counsel and to undertake another statutory colloquy without request or objection.
¶ 61 Defendant invited any purported error by failing to object to the agreed-upon
jury instructions at the charge conference or during and after delivery to the jury. No
evidence suggests any deviation from the agreed-upon instructions.
¶ 62 Defendant received a fair trial, free from prejudicial errors he preserved or
argued. We find no error in the jury’s verdict or in the judgment entered thereon. It
is so ordered.
NO ERROR
Judge GORE concurs
Judge INMAN concurs in the result.