An unpublished opinion of the North Carolina Court of Appeals does not constitute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).
