State v. Kiser

• Court: Court of Appeals of North Carolina
• Decided: January 21, 2014
• Docket: 13-826
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-826 NORTH CAROLINA COURT OF APPEALS

Filed: 21 January 2014

STATE OF NORTH CAROLINA

v. Rowan County No. 12 CRS 52407 CARY EUGENE KISER

On writ of certiorari to review judgment entered 14

November 2012 by Judge W. David Lee in Rowan County Superior

Court. Heard in the Court of Appeals 30 December 2013.

Attorney General Roy Cooper, by Assistant Attorney General Mary S. Mercer, for the State.

Winifred H. Dillon for defendant-appellant.

HUNTER, JR., Robert N., Judge.

Defendant Cary Eugene Kiser appeals from the judgment

entered after a jury found him guilty of malicious conduct by a

prisoner and two counts of resisting a public officer.

Defendant contends the trial court committed plain error by

neglecting to instruct the jury on accident as to the malicious

conduct by a prisoner charge. We find no error. -2- On 15 April 2012, Salisbury Police Officers Jeremy Cable

and Ryan Carlton were dispatched to respond to an assault call.

When the officers arrived, they encountered defendant walking

along the street. The officers approached, and defendant began

yelling obscenities and making obscene gestures at them, refused

to comply with their commands, and ultimately threatened to kill

them. In response, the officers used tasers and deployed a

police dog to subdue defendant. After the officers detained

defendant, they transported him to the hospital.

When the officers arrived at the hospital, defendant

initially refused to be placed in a wheelchair. Defendant

calmed down when he was treated by a physician’s assistant, but

when his treatment was complete, he engaged Officer Cable in

another physical struggle. Defendant continued to resist when

the officers and hospital personnel attempted to put him in a

wheelchair to leave the hospital. During that struggle,

defendant made a sucking sound, stated another obscenity at

Officer Cable, and then spat directly at Officer Cable’s face,

into his mouth and eyes.

A jury found defendant guilty of malicious conduct by a

prisoner and two counts of resisting a public officer. The

trial court consolidated the charges into one judgment and -3- sentenced defendant to 17 to 30 months imprisonment. On 1 April

2013, this Court entered an order allowing defendant’s petition

for writ of certiorari to review the trial court’s judgment.

Defendant’s sole argument on appeal is that the trial court

committed plain error by failing to instruct the jury on

accident as to the malicious conduct by a prisoner charge. We

do not agree.

Defendant acknowledges in his brief that he neglected to

object to the trial court’s jury instructions or to request

additional instructions, and, therefore, that we must review the

instructions given for plain error. N.C. R. App. P. 10(a);

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983).

“[T]o establish plain error defendant must show that a

fundamental error occurred at his trial and that the error had a

probable impact on the jury’s finding that the defendant was

guilty.” State v. Towe, 366 N.C. 56, 62, 732 S.E.2d 564, 568

(2012) (quotation marks and citation omitted). “Moreover,

because plain error is to be applied cautiously and only in the

exceptional case, the error will often be one that seriously

affect[s] the fairness, integrity or public reputation of

judicial proceedings.” Id. (quotation marks and citation

omitted) (alteration in original). -4- Even if we were to assume, as defendant asserts, that his

own testimony and evidence of the struggle between the officers

and defendant supported a jury instruction on accident,

defendant cannot demonstrate that the omission of such an

instruction affected the outcome of the case. See State v.

Loftin, 322 N.C. 375, 382, 368 S.E.2d 613, 617–18 (1988) (no

plain error in failing to instruct on accident). The State

offered the testimony of four eyewitnesses – the two police

officers, a physician’s assistant, and a hospital security

officer – who all testified that they saw defendant spit

directly in Officer Cable’s face. In light of this overwhelming

evidence that defendant intentionally spat at Officer Cable, we

hold he has failed to establish the trial court committed plain

error by failing to instruct the jury on accident.

No error.

Chief Judge MARTIN and Judge DILLON concur.

Report per Rule 30(e).