State v. George ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-497
NORTH CAROLINA COURT OF APPEALS
Filed: 21 October 2014
STATE OF NORTH CAROLINA
v. Surry County
No. 12 CRS 53852
LINDA DAYE GEORGE
Appeal by defendant from judgment entered 11 December 2013
by Judge Edwin G. Wilson, Jr., in Surry County Superior Court.
Heard in the Court of Appeals 22 September 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Kimberly Grande, for the State.
Wait Law, P.L.L.C., by John L. Wait, for defendant-
appellant.
McCULLOUGH Judge.
Defendant Linda Daye George appeals from a judgment entered
upon a jury verdict finding her guilty of malicious conduct by a
prisoner. The trial court sentenced defendant to a suspended
term of 16 to 29 months imprisonment and placed her on
supervised probation for 36 months. Defendant gave notice of
appeal in open court.
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Defendant’s sole argument on appeal is that the trial court
erred in denying defendant’s motion to instruct the jury on the
charge of misdemeanor assault on a law enforcement officer.
Defendant contends she was entitled to the instruction because
misdemeanor assault on a law enforcement officer is a lesser
included offense of malicious conduct by a prisoner and the
facts of her case satisfy both offenses. Defendant is
incorrect.
It is well established that “[a] defendant ‘is entitled to
an instruction on a lesser included offense if the evidence
would permit a jury rationally to find him guilty of the lesser
offense and acquit him of the greater.’” State v. Crouse, 169
N.C. App. 382, 386, 610 S.E.2d 454, 457 (quoting State v.
Leazer, 353 N.C. 234, 237, 539 S.E.2d 922, 924 (2000)), disc.
review denied, 359 N.C. 637, 616 S.E.2d 923 (2005). However,
North Carolina courts use “‘a definitional test for determining
whether a crime is in fact a lesser offense that merges with the
greater offense.’” Id. (quoting State v. Kemmerlin, 356 N.C.
446, 475, 573 S.E.2d 870, 890 (2002)). Using the definitional
test, this Court has held that “misdemeanor assault on a
government official is not a lesser included offense of felony
malicious conduct by a prisoner.” Id. Accordingly, the trial
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court did not err in denying defendant’s motion to instruct the
jury on the charge of misdemeanor assault on a law enforcement
officer as a lesser included offense to malicious conduct by a
prisoner.
No error.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).