State v. Harper

• Court: Court of Appeals of North Carolina
• Decided: September 20, 2022
• Docket: 21-752
• Status: Published

Opinion

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 STATE V. HARPER

Opinion of the Court

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 STATE V. HARPER

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. STATE V. HARPER

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. STATE V. HARPER

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 STATE V. HARPER

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, STATE V. HARPER

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 STATE V. HARPER

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 STATE V. HARPER

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 STATE V. HARPER

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 STATE V. HARPER

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. STATE V. HARPER

¶ 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, STATE V. HARPER

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 STATE V. HARPER

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. STATE V. HARPER

¶ 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 STATE V. HARPER

¶ 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).

¶ 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; STATE V. HARPER

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. STATE V. HARPER

¶ 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 STATE V. HARPER

officer. N.C. Gen. Stat. § 14-223 (2021).

¶ 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)

¶ 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. STATE V. HARPER

¶ 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 STATE V. HARPER

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 STATE V. HARPER

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.