State v. Partin , 48 N.C. App. 274 ( 1980 )

269 S.E.2d 250 (1980) 48 N.C. App. 274

STATE of North Carolina
v.
Robert Earl PARTIN and Edward Partin.

No. 7910SC1086.

Court of Appeals of North Carolina.

August 19, 1980.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Richard L. Griffin, Raleigh, for the State.

James E. Brown, Greenville, for defendants-appellants.

MORRIS, Chief Judge.

By various assignments of error, defendants contend that the constitutional prohibition against double jeopardy has been violated in this case in that defendants have been twice held in jeopardy of the same offense by their being convicted under G.S. 14-34.2 and G.S. 14-33(b)(1), a lesser included offense of G.S. 14-32 under which both defendants were tried. For the purposes of clarity, we set out those provisions in their entirety:

§ 14-32. Felonious assault with deadly weapon with intent to kill or inflicting serious injury; punishments.—(a) Any person who assaults another person with a deadly weapon with intent to kill and inflicts serious injury is guilty of a felony punishable by a fine, imprisonment for not more than 20 years, or both such fine and imprisonment.

(b) Any person who assaults another person with a deadly weapon and inflicts serious injury is guilty of a felony punishable by a fine, imprisonment for not more than 10 years, or both such fine and imprisonment.

(c) Any person who assaults another person with a deadly weapon with intent to kill is guilty of a felony punishable by a fine, imprisonment for not more than 10 years, or both such fine and imprisonment.

§ 14-33. Misdemeanor assaults, batteries, and affrays, simple and aggravated; punishments.— . . .

(b) Unless his conduct is covered under some other provision of law providing greater punishment, any person who commits any assault, assault and battery, or affray is guilty of a misdemeanor punishable by a fine, imprisonment for not more than two years, or both such fine and imprisonment if, in the course of the assault, assault and battery, or affray, he:

(1) Inflicts, or attempts to inflict, serious injury upon another person or uses a deadly weapon. . . .

§ 14-34.2. Assault with a firearm or other deadly weapon upon law-enforcement officer or fireman.—Any person who shall commit an assault with a firearm or any other deadly weapon upon any law-enforcement officer or fireman while such officer or fireman is in the performance of his duties shall be guilty of a felony and shall be fined or imprisoned for a term not to exceed five years in the discretion of the court.

In our analysis, we find it helpful to distinguish between "prosecution" and "conviction" under these various statutes, and our discussion follows this format.

It is fundamental that in this State no person can be twice put in jeopardy for the same offense. State v. Ballard, 280 N.C. 479, 186 S.E.2d 372 (1972). Jeopardy attaches "when a defendant in a criminal prosecution is placed on trial: (1) On a valid indictment or information, (2) before a court of competent jurisdiction, (3) after arraignment, (4) after plea, and (5) when a competent jury has been empaneled and sworn to make true deliverance in the case." State v. Bell, 205 N.C. 225, 228, 171 S.E. 50, 52 (1933), quoted in State v. Ballard, supra, 280 N.C. at 484, 186 S.E.2d at 374. In the present case, defendants were placed in jeopardy when they were tried under the aforementioned indictments. When jeopardy attached here is, however, not at issue.

In the present case prosecution under G.S. 14-34.2 and G.S. 14-32 does not violate the prohibition against double jeopardy nor does it require the State to elect prosecution under a single statute. Conceding that the facts underlying defendants' indictment of assault with a deadly weapon under G.S. 14-32(a) and (c) are the same facts which underlie defendants' indictment for assault on a law enforcement officer under G.S. 14-34.2, the two offenses, nevertheless, contain separate and distinct elements. Each offense required proof of an element which does not exist in the other charge. Under G.S. 14-34.2, the jury must find that the victim was a law enforcement officer acting in the exercise of his official duty at the time of the assault, which is not an element of G.S. 14-32, while under G.S. 14-32(a) and (c) there must be a finding that the assault was made with an intent to kill, which is not an element of G.S. 14-34.2. Contrary to defendants' assertions, the fact that the jury returned a verdict of guilty as to G.S. 14-33(b)(1), a lesser included offense containing the same factual elements as the verdict returned as to G.S. 14-34.2, is of no moment. The fact remained that, as indicted and subsequently prosecuted, the charges against defendants under G.S. 14-34.2 and G.S. 14-32 contained separate and distinct elements. In State v. Birckhead, 256 N.C. 494, 500, 124 S.E.2d 838, 843-44 (1962), the Court, following State v. Stevens, 114 N.C. 873, 19 S.E. 861 (1894), stated:

If two statutes are violated by a single act or transaction, and if each statute requires proof of an additional fact not required by the other, the offenses are not the same.

We follow this reasoning in the present case. Accord: State v. Evans, 40 N.C.App. 730, 253 S.E.2d 590, appeal dismissed, 297 N.C. 456, 256 S.E.2d 809 (1979); State v. Kirby, 15 N.C.App. 480, 190 S.E.2d 320, appeal dismissed, 281 N.C. 761, 191 S.E.2d 363 (1972). These separable offenses are not within the purview of the double jeopardy doctrine, and we, therefore, conclude that defendants' prosecution based on these charges did not constitute an unconstitutional infringement on defendants' right to be free from double jeopardy.

By so holding, we similarly overrule defendants' fifth assignment of error in which they contend the trial court erred by failing to rule on defendants' motions to quash the indictments returned against them. Although the judge made no ruling with respect to this motion, it is clear from our discussion above concerning the validity of the indictments drawn against defendants that such a motion should have been denied. There appearing no error on the face of the indictments, defendants have suffered no prejudice by the trial court's failure to rule on defendants' motion to quash.

The question remains, however, whether it is a violation of defendants' double jeopardy rights to convict defendants of two separate crimes based on the same transaction. Upon their reading of the above-quoted statutes, defendants argue that they have been subjected to double jeopardy in that the same facts were used to convict each of the defendants of the offenses under G.S. 14-33(b)(1) and G.S. 14-34.2. Defendants further contend that it is impossible to prove defendants guilty of assault upon an officer under G.S. 14-34.2 without also proving them guilty of the offense of assault with a deadly weapon under G.S. 14-33(b)(1). As support for their position, defendants cite State v. Summrell, 282 N.C. 157, 192 S.E.2d 569 (1972), where our Supreme Court reversed defendant's conviction of both resisting an officer and assaulting an officer, where the evidence revealed that both convictions were based on and arose out of the same criminal conduct. The Court ruled that "at the conclusion of the evidence, it had become quite clear that no line of demarcation between the defendant's resistance of arrest and his assaults upon the officer could be drawn. The assaults were ``the means by which the officer was resisted.'" 282 N.C. at 173, 192 S.E.2d at 579. Accord: State v. Midyette, 270 N.C. 229, 154 S.E.2d 66 (1967); State v. Raynor, 33 N.C.App. 698, 236 S.E.2d 307 (1977).

The Summrell Court required the State to elect between its warrants at the close of all the evidence because the Court found that the criminal warrants themselves indicated duplicate charges, stating: "[e]ach warrant included all the elements of the offense charged in the other." 282 N.C. at 173, 192 S.E.2d at 579. In our case, however, a different situation existed at the close of all the evidence. As the case was given to the jury, the evidence was sufficient to support convictions under both G.S. 14-32(a) and (c) (felonious assault) as well as G.S. 14-34.2. Each statute required the jury to find facts which constituted elements not found in both offenses. To have required election at this point, the court would have had to find evidence of the differing elements insufficient. This the court did not do, and the court was proper in not requiring election.

It is nonetheless also fundamental that the constitutional guaranty against double jeopardy protects a defendant from multiple punishments for the same offense. State v. Davis, 290 N.C. 511, 227 S.E.2d 97 (1976); State v. Summrell, supra. Application of this principle has been especially problematic under circumstances where the same criminal act or transaction potentially violates different statutes. See generally 4 Strong's N.C. Index, Criminal Law § 26.5 (1976). For example, in State v. White, 291 N.C. 118, 229 S.E.2d 152 (1976), defendant was indicted on charges of first degree murder and arson, and was found guilty as charged. The Supreme Court, by Justice Branch (now Chief Justice), arrested the judgment as to the arson charge after concluding that the trial judge erred by imposing additional punishment on the verdict of guilty of arson. Since the State had proceeded solely on the theory that the deceased victim's death was proximately caused by defendant's commission of the felony of arson, the Court reasoned, "[p]roof of the arson charge was an essential and indispensable element in the State's proof of felony-murder and as such affords no basis for additional punishment." 291 N.C. at 127, 229 S.E.2d at 157-58. See also State v. Shaw, 293 N.C. 616, 239 S.E.2d 439 (1977); State v. Davis, supra; State v. Graham, 29 N.C.App. 234, 223 S.E.2d 842, cert. denied, 290 N.C. 310, 225 S.E.2d 830 (1976).

Arrest of judgment upon defendants' conviction of assault with a deadly weapon is required in the present case. Assault and the use of a deadly weapon (in this case, a firearm) are necessarily included in the offense of assault on a law enforcement officer with a firearm (G.S. 14-34.2), for which defendants were convicted. This result punishes defendants twice for the offense. We, therefore, arrest judgment on defendants' conviction of assault with a deadly weapon.

By their sixth assignment of error, defendants argue that the trial court erred by failing to rule on their motion for change of venue. Although we can assume that defendants' motion for change of venue complied with the time requirements of G.S. 15A-952(c) and was proper in form, we cannot speculate as to why no disposition was made of the motion and what that disposition would have been if the judge had issued a ruling thereon. Proceeding to trial without ruling on defendants' motion constituted, in effect, a denial of that motion. State v. Freeman, 280 N.C. 622, 187 S.E.2d 59 (1972). We find nothing in the record to indicate that the trial court abused its discretion by continuing on to trial, nor do we find that defendants objected to this procedure. Without deciding whether defendants' silence constituted a waiver of their right to assign error to the court's failure to rule on their motion, we hold that defendants have failed to show prejudice as a result of this procedure. It is incumbent upon a defendant not only to show error, but to show that the error of which he complains constituted prejudice sufficient to warrant a new trial. Gregory v. Lynch, 271 N.C. 198, 155 S.E.2d 488 (1967). This defendants have failed to do. Defendants' assignment of error is overruled.

Defendants' fourth argument, referring to assignment of error No. 23, is that the trial court improperly entered judgments and commitments with respect to charges under G.S. 14-34.2 because "there was no verdict which supported the charges alleged under that statute." Defendants correctly state in their brief that an element of the offense prohibited by G.S. 14-34.2 is that the assault be committed "while such officer is in the performance of his duties." Defendants contend, however, that the verdict returned by the jury did not contain this element, and therefore the maximum offense the verdict referred to would be under G.S. 14-34 or G.S. 14-33(b)(1). This result would mean, according to defendants, that defendants could only be sentenced to a maximum prison term of two years under G.S. 14-33(b)(1) or a maximum term of six months under G.S. 14-34, as opposed to the prison term of five years under G.S. 14-34.2, the actual sentence imposed in this case.

Although we agree with defendants that a verdict which refers to only one charge amounts to an acquittal on other charges being tried simultaneously, State v. Taylor, 37 N.C.App. 709, 246 S.E.2d 834, further review denied, 295 N.C. 737, 248 S.E.2d 866 (1978), we are of the opinion that, in the instant case, the verdict forms given to the jury sufficiently identified and differentiated each charge so as to prevent confusion and led to the correct result. As seen above, the only offenses submitted to the jury dealing with assault were assault on a law enforcement officer with a firearm and the charge of assault with a deadly weapon with intent to kill (and its appropriate lesser included offenses). The possible verdicts as to each of these two offenses were explained to the jury and submitted separately. With respect to the charge against each defendant under G.S. 14-34.2, the trial judge instructed as follows:

Now, I charge that for you [the jury] to find the defendant guilty of an assault with a firearm upon a law enforcement officer while such officer was in the performance of his duties, the State must prove four things beyond a reasonable doubt.

First, that the defendant . . . assaulted [a law enforcement officer] . . .

Second, that the defendant . . . used a firearm.

Third, that [the victim] was a law enforcement officer . . .

And fourth, that [the law enforcement officer] was in the performance of his duties. (Emphasis added.)

We believe that, notwithstanding the absence of each element being included in the form verdicts submitted to the jury, the offenses which the jury were to consider were sufficiently identified. We find no requirement in G.S. 15A-1237 requiring that written verdicts contain each element of the offense to which they refer. We, therefore, hold that the verdict forms submitted were sufficient to identify the offenses charged and to support the verdicts of guilty and subsequent judgment and commitment thereon. Defendants' assignment of error is, therefore, overruled.

Defendants next assign error to the trial court's failure to grant their motion for special instructions concerning their alleged unlawful arrest. In North Carolina, it is well settled that a person may resist an unlawful arrest by the use of commensurate force under the circumstances. State v. Anderson, 40 N.C.App. 318, 253 S.E.2d 48 (1979). Where such evidence is present at trial, the trial court is under a duty, upon motion by a defendant, to make a requested instruction. State v. Anderson, supra. In the case before us, however, there is no evidence which would compel a trial judge to charge the jury as defendants requested. The evidence indicates that Officers Lockamy and Matthews went to defendants' residence for the purpose of serving an arrest warrant on Robert Earl Partin for the offense of larceny. Neither defendant contests the validity of the warrant. Evidence tended to show that Officer Lockamy approached defendants' residence, knocked on the door, and announced his presence and intention to serve an arrest warrant on defendant Robert Earl. Concerning his initial confrontation with defendants in the hallway of defendants' house, Officer Lockamy testified: "I had the warrant in my hand with Robert Earl on it. I glanced at it. I told Robert Earl I had a warrant for his arrest." It was after this statement was made that the fighting occurred. From our review, we find no evidence that sustains defendants' plea of self-defense based on the officers' allegedly attempting an illegal arrest or their using excessive force in the execution of that arrest. Absent any evidence to support such a contention, the trial judge need not give a requested instruction on that point. State v. Anderson, supra. We overrule this assignment of error.

By assignment of error No. 18, defendants contend that the trial court erred by denying their motion to dismiss the assault charges against them at the end of the State's evidence. It will serve no useful purpose to review again all the evidence presented by the State on the charges issued against defendants. Suffice it to say that the evidence is plenary in support of the submission of both charges of assault, under G.S. 14-32(a) and (c) and G.S. 14-34.2, to the jury for consideration and decision. The evidence having been sufficient to support a reasonable inference of defendants' guilt, nonsuit was improper. State v. Smith, 40 N.C.App. 72, 252 S.E.2d 535 (1979).

With the exception of the arrest of judgment upon guilty verdicts as to assault with a deadly weapon, we conclude and so hold that defendants received a fair trial free from prejudicial error. We have no reasonable basis upon which to believe, even if errors were committed in the exclusion of certain evidence as ruled by the trial judge, a different result would have been reached. State v. Hunt, 289 N.C. 403, 222 S.E.2d 234, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976). Defendants' remaining assignments of error are, therefore, overruled.

Assault on a law enforcement officer with a firearm—no error.

Assault with a deadly weapon—judgment arrested.

PARKER and WELLS, JJ., concur.