              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA17-89

                                Filed: 5 December 2017

Johnston County, No. 14CRS55454; 14CRS1967

STATE OF NORTH CAROLINA

             v.

MARK BURWELL, Defendant.


      Appeal by Defendant from judgments entered 26 May 2016 by Judge Walter

H. Godwin, Jr. in Johnston County Superior Court. Heard in the Court of Appeals 7

June 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Ashish K.
      Sharda, for the State.

      Meghan Adelle Jones, for Defendant-Appellant.


      MURPHY, Judge.


      Mark Burwell (“Defendant”) appeals from his judgments for assault on a law

enforcement officer inflicting serious bodily injury and attaining habitual felon

status.   On appeal, Defendant argues the following: (1) the trial court erred by

denying his Motion to Dismiss because he only used the amount of force reasonably

necessary to resist an unlawful arrest; (2) the trial court erred or plainly erred by

denying his Motion to Suppress and admitting evidence obtained as a result of an

unlawful arrest; (3) the trial court erred or plainly erred by failing to instruct the jury
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                                    Opinion of the Court



on the right to resist an unlawful arrest; and (4) the trial court erred or plainly erred

by failing to instruct the jury on the right to defend oneself from excessive force by a

law enforcement officer.

         After careful review, we conclude Defendant received a fair trial, free from

error.

                                     Background

         At approximately 4 a.m. on 12 October 2014, Officer Sean Cook (“the Officer”)

arrived at Kay Drive in Smithfield, in reference to a 911 call reporting a suspicious

person who refused to leave the apartment complex. Kay Drive and the apartments

therein are subject to Section 8 housing. Section 8 of the United States Housing Act

of 1937, as amended in 1974, established “Section 8,” the federally subsidized housing

assistance payments program. See 42 U.S.C. § 1437f (2015). The Officer testified

that Smithfield police officers have an agency agreement with Kay Drive, wherein

they have the authority to remove trespassers from the property, as that section and

the apartments therein are subject to Section 8 housing.

         The Officer was given information that the suspicious person was a male in his

thirties wearing all black, and could be found near or around an older model, black

truck. Upon his arrival, the Officer noticed Defendant, a male wearing all black

clothing, standing in front of an older model, black truck. The Officer determined

Defendant matched the description given to him by dispatch.             He approached



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Defendant, and saw a beer can in Defendant’s hand. The Officer asked Defendant to

walk towards him, and Defendant complied. Seeing Defendant no longer held the

beer can, the Officer told Defendant to retrieve the can and dispose of it. Defendant

again complied. The Officer and Defendant spoke “at length[,]” and he could smell

the strong odor of an alcoholic beverage emitting from Defendant. Upon request,

Defendant provided the Officer with his identification.

        Investigating further, the Officer, accompanied by Defendant, went to the door

of the individual who made the 911 call. The Officer spoke with the woman who

answered the door, who he testified he believed to be the caller.                        The Officer

explained, to her and to Defendant, that Defendant was trespassing on the property.

Defendant “appeared to understand that he was going to be trespassing [sic] the

property.” “Based on the totality of the circumstances and his impairment” the

Officer then asked Defendant how he was going to get home. Defendant had no clear

answer, and “[h]is story constantly changed.”                   The Officer decided to “detox”1

Defendant. He informed Defendant that Defendant was being “trespassed[,]” and,

although not under arrest, he was going to be taken for a detox.

        Preparing for transport, the Officer attempted to handcuff Defendant, in

accordance with his department’s policy to handcuff individuals transported by police


        1The Officer defined “detoxing” as taking an intoxicated person who has not committed a crime
into custody to be held until he regains sobriety. The Officer testified that once an officer decides to
detox someone, handcuffs are placed on the individual, in accordance with department policy, to
further officer safety, and the individual is then transported to jail.

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vehicles. Due to Defendant’s large frame, Defendant could not put his hands together

behind his back. The Officer reached for his handcuff pouch, and when the “snap of

the handcuff pouch happened,” Defendant became aggressive, used “foul language[,]”

tensed up, and tried to pull away from the Officer. The Officer testified that, in

response, he tried to get control of Defendant. The Officer pushed Defendant into the

side of his police vehicle. The Officer testified that once Defendant resisted, he was

under arrest for “resist, delay and obstruct[,]” and he told Defendant he was under

arrest.

      Defendant tried to turn around and “raised his fist as if to throw a punch[,]”

causing the Officer to disengage and stand back. The Officer pointed his Taser at

Defendant, giving commands and advising him he was under arrest. Defendant took

flight, and the Officer gave chase, Taser in hand. Defendant fell to the ground, lying

on his back. The Officer commanded Defendant to roll over and place his hands

behind his back. Defendant refused to comply, and raised his feet and hands towards

the Officer, “taking a combat stance.” The Officer fired his Taser, incapacitating

Defendant for five seconds. The Officer testified that the “whole time [he] had been

on the radio advising [he] was in a chase” and Defendant had been Tased. When

Defendant began removing the Taser’s probes, the Officer attempted to tase him

again, but it was ineffective, as Defendant had removed one of the leads.




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       Defendant took flight a second time, and the Officer chased him. The Officer

tackled Defendant. The Officer testified: “It’s at this time that the fight was on.”

Defendant began striking the Officer, and the Officer responded, striking Defendant.

The Officer testified that “the whole time [he was] giving verbal, clear commands,

[and] also trying to talk on [his] radio.”

       The Officer’s radio was positioned on his shirt, at the center of his chest. At

one point, Defendant grabbed the radio and “slung it off to the side” so that the Officer

could no longer use it. The blows continued. Defendant reached down and grabbed

the Officer’s pistol. The two struggled, and the Officer eventually regained control

of the pistol. The Officer struck Defendant’s thigh with his Asp Baton, but then threw

it away because it was ineffective to restrain Defendant.

       The Officer, still on top of Defendant, “took a rear mount” and placed his left

forearm in front of Defendant’s face to try to hold him down. Defendant continued to

fight, and bit the Officer’s left forearm, causing the Officer to reposition. Defendant

bit him a second time, causing the Officer to release Defendant. Defendant tried to

turn around, so the Officer again repositioned. Defendant bit him a third time, on

the Officer’s right bicep. Defendant was then able to get “a front mount” on top of the

Officer.   When the Officer’s backup arrived, the Officer was lying on his back,

attempting to defend himself. The Officer and Defendant continued to struggle as

backup assisted in securing Defendant.



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      The Officer’s injuries included: sustained puncture wounds on his left forearm

and right bicep, severe bruising and depressions, permanent scarring, and scabbing.

The scarring includes a large circle on his right bicep, “just over a half an inch to an

inch in a circle” with a “large depression[,]” and “a deep ridge” on his left arm. The

Officer experienced loss of sleep and extreme stress. He also had to be tested multiple

times for communicable diseases, which he described as “extremely nerve-racking[.]”

      Defendant was indicted for: (1) assault on a law enforcement officer inflicting

serious bodily injury by “biting [the Officer]” and “hitting him about his face with

closed fists[;]” (2) assault with a deadly weapon inflicting serious bodily injury, the

deadly weapon being Defendant’s teeth; and (3) attaining habitual felon status.

Defendant filed a pretrial Motion to Suppress, arguing the arrest was unlawful, and,

thus, any acts after the arrest should be suppressed as fruits of the poisonous tree.

The trial court denied this motion. At the end of the State’s evidence, Defendant

again argued the arrest was unlawful, moving to dismiss the charges. His motion

was denied. Defendant did not present any evidence, and renewed his Motion to

Dismiss. The trial court again denied the motion.

      The jury returned verdicts of guilty for assault on an officer inflicting serious

bodily injury, assault inflicting serious injury, and attaining habitual felon status.

The trial court arrested judgment on the assault inflicting serious injury offense, and

entered judgment on the offense of assault on a law enforcement officer inflicting



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serious bodily injury with the habitual felon enhancement. Defendant was sentenced

to an active term of 146 to 188 months. Defendant gave oral notice of appeal.

                                       Analysis

        On appeal, Defendant presents four arguments: (1) the trial court erred by

denying his Motion to Dismiss; (2) the trial court erred or plainly erred by denying

his Motion to Suppress and admitting evidence obtained as a result of an unlawful

arrest; (3) the trial court erred or plainly erred by failing to instruct the jury on the

right to resist an unlawful arrest; and (4) the trial court erred or plainly erred by

failing to instruct the jury on the right to defend oneself from excessive force by a law

enforcement officer. We disagree and address the arguments in turn.

   I.      Motion to Dismiss

        Defendant argues the trial court erred by denying his Motion to Dismiss

because he only used the amount of force reasonably necessary to resist an unlawful

arrest when he fought the Officer. We disagree.

        We review the denial of a motion to dismiss de novo. State v. Smith, 186 N.C.

App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted). A trial court properly denies

a motion to dismiss if “there is substantial evidence (1) of each essential element of

the offense charged, and (2) that defendant is the perpetrator of the offense.” Id. at

62, 650 S.E.2d at 33 (citations omitted).       “Substantial evidence is such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.



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at 62, 650 S.E.2d at 33 (quotation omitted). In making this determination, the trial

court considers the evidence in the light most favorable to the State. State v. Rose,

339 N.C. 172, 192-93, 451 S.E.2d 211, 223 (1994) (citation omitted).

      To prove assault on a law enforcement officer inflicting serious bodily injury,

the State must show: (1) the defendant assaulted the victim; (2) serious bodily injury

occurred; (3) the victim was a law enforcement officer performing his official duties

at the time of the assault; and (4) the defendant knew or had reasonable grounds to

know that the alleged victim was a law enforcement officer. N.C.G.S. § 14-34.7(a)

(2015); see also N.C.P.I.—Crim. 208.94 (2015).

      The State provided substantial evidence of each essential element of assault

on a law enforcement inflicting serious bodily injury; therefore, it was proper for the

trial court to deny Defendant’s Motion to Dismiss. Element (1) requires the State

provide substantial evidence of:

             an overt act or an attempt, or the unequivocal appearance
             of an attempt, with force and violence, to do some
             immediate physical injury to the person of another, which
             show of force or menace of violence must be sufficient to put
             a person of reasonable firmness in fear of immediate bodily
             harm.

State v. Mitchell, 358 N.C. 63, 69-70, 592 S.E.2d 543, 547 (2004) (quotation omitted).

The State provided such relevant evidence when the Officer testified that Defendant

hit and bit him multiple times, wounding him.




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      Section 14-32.4(a) (2015) of the North Carolina General Statutes defines

Element (2) as an injury “that creates a substantial risk of death, or that causes

serious permanent disfigurement, coma, a permanent or protracted condition that

causes extreme pain, or permanent or protracted loss or impairment of the function

of any bodily member or organ, or that results in prolonged hospitalization.” State v.

Williams, ___ N.C. App. ___, ___, 804 S.E.2d 570, 577 (2017) (quoting N.C.G.S. § 14-

34.7(a)); see also N.C.P.I.—Crim. 208.94. Here, the Officer testified that Defendant’s

bites caused extreme pain, skin removal, permanent scarring, and hospitalization.

Photographs of the injuries were shown to the jury. Further, the trial court permitted

the Officer to show his scarring to the jury, which included a depressed circle on his

right bicep that is “just over half an inch to an inch in a circle” and scarring on his

left arm that the Officer described as “a deep ridge[.]” A reasonable juror could find

this evidence sufficient to conclude the Officer’s injuries caused serious permanent

disfigurement, or a permanent or protracted condition that caused extreme pain, or

injury that resulted in prolonged hospitalization. Thus, viewing the evidence in the

light most favorable to the State, there is substantial evidence that the Officer

suffered a serious bodily injury.

      With regard to Element (3), the Officer was a law enforcement officer at the

time of the incident. In the light most favorable to the State, the evidence shows that,

when the assault occurred, the Officer was attempting to discharge his official duties



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as a routine patrol officer by responding to a report about a trespasser, conducting

investigative work, and acting on the results of his investigation. Whether an officer

is engaged in the performance of his official duties includes both the hot pursuit of a

suspect, and also “such duties as investigative work . . . and routine patrol by

automobile.”     State v. Gaines, 332 N.C. 461, 471, 421 S.E.2d 569, 574 (1992).

Moreover, “criminal liability for the offense of assaulting an officer is not limited to

situations where an officer is engaging in lawful conduct in the performance or

attempted performance of his or her official duties.” State v. Friend, 237 N.C. App.

490, 495, 768 S.E.2d 146, 149 (2014). There is substantial evidence the Officer was a

law enforcement officer performing his official duties at the time of the assault.

         Finally, the State put forth substantial evidence of Element (4). Defendant

knew or had reasonable grounds to know the alleged victim was a law enforcement

officer, as the Officer arrived in a marked patrol vehicle, was uniformed, and told

Defendant he was a law enforcement officer. Thus, the State provided such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion as

to each element of assault on a law enforcement officer inflicting serious bodily injury.

The trial court did not err in denying Defendant’s Motion to Dismiss.

   II.      Motion to Suppress

         Defendant argues the trial court erred or plainly erred by denying his Motion

to Suppress and admitting evidence obtained as a result of an unlawful arrest. We



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disagree. Even if a police officer’s conduct violates a defendant’s Fourth Amendment

rights, evidence of an attack on an officer is not fruit of a poisonous tree subject to

suppression. Friend, 237 N.C. App. at 495-96, 768 S.E.2d at 150 (citation omitted).

      As a preliminary matter, Defendant did not adequately preserve appellate

review of the denial of his Motion to Suppress because he failed to object to the

evidence at the time it was offered at trial. See State v. Golphin, 352 N.C. 364, 449,

533 S.E.2d 168, 224 (2000) (explaining a pretrial motion to suppress is a type of

motion in limine and that such a “motion . . . is not sufficient to preserve for appeal

the question of admissibility of evidence if the defendant does not object to that

evidence at the time it is offered at trial”) (citation omitted); see also State v. Waring,

364 N.C. 443, 468, 701 S.E.2d 615, 631-32 (2010). Thus, Defendant waived any

objection to the denial of his Motion to Suppress.

      However, on appeal, Defendant specifically and distinctly requests we review

the denial of the Motion to Suppress for plain error.

              In criminal cases, an issue that was not preserved by
              objection noted at trial and that is not deemed preserved
              by rule or law without any such action nevertheless may be
              made the basis of an issue presented on appeal when the
              judicial action questioned is specifically and distinctly
              contended to amount to plain error.

N.C.R. App. P. 10(a)(4) (2016). “[T]he plain error standard of review applies on appeal

to unpreserved instructional or evidentiary error[,]” State v. Lawrence, 365 N.C. 506,

518, 723 S.E.2d 326, 334 (2012), which includes the denial of a pre-trial motion to


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suppress when a defendant fails to object to the admission of evidence that was the

subject of his pre-trial motion to suppress. State v. Williams, ___ N.C. App. ___, ___,

786 S.E.2d 419, 424-25 (2016). Plain error exists when “a fundamental error occurred

at trial[,]” and, absent the error, it is probable the jury would have returned a

different result. Lawrence, 365 N.C. at 518, 723 S.E.2d at 334.

      “The doctrine of the fruit of the poisonous tree is a specific application of the

exclusionary rule[,]” providing for the suppression of “all evidence obtained as a result

of illegal police conduct.” Friend, 237 N.C. App. at 495, 768 S.E.2d at 150 (citing State

v. McKinney, 361 N.C. 53, 58, 637 S.E.2d 868, 872 (2006)). However, this doctrine

does not permit evidence of attacks on police officers to be excluded, even “where those

attacks occur while the officers are engaging in conduct that violates a defendant’s

Fourth Amendment rights.” Friend, 237 N.C. App. at 495-96, 768 S.E.2d at 150

(citation omitted). Thus, where a defendant argues an initial stop or subsequent

arrest violated “his Fourth Amendment rights, the evidence of his crimes against the

officers would not be considered excludable ‘fruits’ pursuant to the doctrine.” Id. at

496, 768 S.E.2d at 150 (citation omitted).

      Here, Defendant seeks the suppression of evidence of an attack on a police

officer. Since evidence of an attack on a police officer cannot be suppressed as a fruit

of the poisonous tree, id. at 495-96, 768 S.E.2d at 150, the evidence Defendant sought

to suppress cannot be suppressed as a matter of law. Thus, although the trial court



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denied the Motion to Suppress on other grounds,2 Defendant cannot establish

prejudicial error, much less plain error.

   III.    Resisting an Unlawful Arrest Instruction

       Defendant argues the trial court erred or plainly erred by failing to instruct

the jury on the right to resist an unlawful arrest. We disagree.

       At trial, Defendant neither requested, nor objected to the omission of, a jury

instruction on the defense of the right to resist an unlawful arrest. Thus, we review

for plain error.

       “When [a] defendant fail[s] to object to the instructions at trial but claims on

appeal of improper jury instructions, the instructions are reviewed for plain error.”

State v. Garris, 191 N.C. App. 276, 287, 663 S.E.2d 340, 349 (2008) (citation omitted).

               For error to constitute plain error, a defendant must
               demonstrate that a fundamental error occurred at trial. To
               show that an error was fundamental, a defendant must
               establish prejudice—that, after examination of the entire
               record, the error had a probable impact on the jury’s
               finding that the defendant was guilty. 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.



       2  The order denying Defendant’s Motion to Suppress determined that Defendant’s Fourth
Amendment rights were not violated, by concluding “the [O]fficer had reasonable suspicion to do an
investigative detention based on the call from dispatch and all the observations that he had made at
the scene and based on conversation with the lady that made the 911 call[;]” and “an arrest was not
made until . . . there was a breach of the peace, at which time [Defendant] was arrested for pulling
away and being disruptive with the [O]fficer in his request for his instruction which gave rise to
probable cause for the arrest of resisting and delaying by pulling away and refusing to be handcuffed.”

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Lawrence, 365 N.C. at 518, 723 S.E.2d at 334 (alteration in original) (citations,

quotations, and internal quotation marks omitted). “Under the plain error rule,

defendant must convince this Court not only that there was error, but that absent

the error, the jury probably would have reached a different result.” State v. Jordan,

333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993) (citation omitted). “However, before

engaging in plain error analysis it is necessary to determine whether the instruction

complained of constitutes error.” State v. Cummings, 361 N.C. 438, 470, 648 S.E.2d

788, 807 (2007) (citation omitted).

      “A person . . . has the right to resist an unlawful arrest by the use of force, as

in self-defense, to the extent that it reasonably appears necessary to prevent unlawful

restraint of his liberty . . . .” State v. Sanders, 303 N.C. 608, 622, 281 S.E.2d 7, 15

(1981) (emphasis added and omitted) (quotation omitted). However, this “right is

limited to the use of such force as reasonably appears to be necessary to prevent the

unlawful restraint of his liberty.” State v. Branch, 194 N.C. App. 173, 174, 669 S.E.2d

18, 19 (2008) (internal quotation marks omitted). If the evidence tends to show an

unlawful arrest occurred, it is error for the trial court to fail to instruct the jury on

the right to resist an unlawful arrest. See State v. Sparrow, 276 N.C. 499, 513, 173

S.E.2d 897, 906 (1970) (holding a trial court was in error when its instructions ignored

whether the officers’ actions were lawful when the evidence for the defendants tended

to show the officers’ actions were unlawful).



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      For a warrantless arrest to be lawful, it “must be supported by probable cause.”

State v. Zuniga, 312 N.C. 251, 259, 322 S.E.2d 140, 145 (1984) (citations omitted).

Probable cause to arrest exists:

             when there is ‘a reasonable ground of suspicion, supported
             by circumstances sufficiently strong in themselves to
             warrant a cautious man in believing the accused to be
             guilty.’ (Citations omitted.) The existence of probable
             cause depends upon ‘whether at that moment the facts and
             circumstances within [the officer’s] knowledge and of which
             [he] had reasonably trustworthy information were
             sufficient to warrant a prudent man in believing that the
             [suspect] had committed or was committing an offense.’
             (Citation omitted.)

State v. Wrenn, 316 N.C. 141, 147, 340 S.E.2d 443, 447 (1986) (alterations in original)

(quotation omitted).

      Here, Defendant alleges the Officer’s warrantless arrest was unsupported by

probable cause, and, thus, was unlawful. Defendant presented no evidence at trial,

and the State’s evidence did not conflict with itself.

      The Officer maintains he had not arrested Defendant when he attempted to

secure Defendant’s hands in handcuffs. Instead, he claims he acted pursuant to the

authority in N.C.G.S. § 122C-303 (2015), and only arrested Defendant once

Defendant resisted the Officer’s attempts to control Defendant’s aggression.

However, we are not bound by the Officer’s articulation of when the arrest occurred.

See Zuniga, 312 N.C. at 259, 322 S.E.2d at 145 (“An officer’s testimony that the

defendant was or was not under arrest is not conclusive.”) (citations omitted).


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      When an “officer, by words or actions, indicates that an individual must remain

in the officer’s presence or come to the police station against his will, the person is for

all practical purposes under arrest if there is a substantial imposition of the officer’s

will over the person’s liberty.” State v. Sanders, 295 N.C. 361, 376, 245 S.E.2d 674,

684 (1978) (citation omitted). Section 15A-401(b)(1) (2015) of the North Carolina

General Statutes permits an officer to “arrest without a warrant any person who the

officer has probable cause to believe has committed a criminal offense . . . in the

officer’s presence.” Similarly, in Devenpeck v. Alford, 543 U.S. 146, 160 L. E. 2d 537

(2004), the Supreme Court of the United States held a warrantless arrest by an officer

is reasonable under the Fourth Amendment if, given the objective facts available to

the officer at the time of arrest, there is probable cause that a crime has been or is

being committed. Id. at 152-53, 160 L. E. 2d at 544.

                                A. N.C.G.S. § 122C-303

      The Officer testified that he acted pursuant to N.C.G.S. § 122C-303 when he

attempted to detox Defendant, and that doing so did not constitute an arrest. We

disagree. Although “[n]o person may be prosecuted solely for being intoxicated in a

public place[,]” N.C.G.S. § 14-447(a) (2015), N.C.G.S. § 122C-303 permits an officer to

take publicly intoxicated persons to jail, without arresting them, to assist such

individuals. Davis v. Town of S. Pines, 116 N.C. App. 663, 671, 449 S.E.2d 240, 245

(1994). An officer may only so assist if an “intoxicated individual is apparently in



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need of and apparently unable to provide for himself food, clothing, or shelter but is

not apparently in need of immediate medical care and if no other facility is readily

available to receive him.” N.C.G.S. § 122C-303; see also Davis, 116 N.C. App. at 671,

449 S.E.2d at 245 (applying N.C.G.S. § 122C-303). Taking an individual to jail under

N.C.G.S. § 122C-303 against his will constitutes an arrest. Davis, 116 N.C. App. at

671, 449 S.E.2d at 245.

      Therefore, as it is apparent that Defendant did not consent to the Officer

taking him to jail pursuant to N.C.G.S. § 122C-303, the Officer did not have the

authority to take Defendant to jail under § 122C-303 without it constituting an

arrest. See id. at 671, 449 S.E.2d at 245. However, the Officer’s failure to recognize

this point of law does not make Defendant’s arrest a per se violation of the Fourth

Amendment because objective probable cause to arrest Defendant existed prior to the

Officer imposing his will over Defendant’s liberty.

      Indeed, the Officer himself testified: “I was just trying to simply do my job,

trying to get this guy in detox. I decided not to charge him with anything even though

I had several charges on him.” (Emphasis added).

                          B. Objective Probable Cause to Arrest

      The Officer had objective probable cause to arrest Defendant. In Devenpeck,

the Supreme Court of the United States held warrantless arrests are reasonable

under the Fourth Amendment if there is objective probable cause to arrest for the



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violation of an offense. Devenpeck, 543 U.S. at 152-53, 160 L.E. 2d at 544. Thus, it

is not necessary that Defendant was arrested for the commission of the offense for

which probable cause exists, so long as the facts known to the Officer objectively

provided probable cause to arrest him. See id. at 153, 160 L.E. 2d at 544; see also

Whren v. United States, 517 U.S. 806, 813, 135 L. Ed. 2d 89, 98 (1996) (“[T]he fact

that the officer does not have the state of mind which is hypothecated by the reasons

which provide the legal justification for the officer’s action does not invalidate the

action taken as long as the circumstances, viewed objectively, justify that action.”)

(quotation omitted).

      Here, the objective facts known to the Officer provided him with sufficient

probable cause to arrest Defendant for second-degree trespass.          See N.C.G.S.

§ 14-159.13 (2015) (“second-degree trespass”). Under Devenpeck, it does not matter

that the Officer did not arrest Defendant for second-degree trespass. The arrest was

lawful because there was objective probable cause that Defendant committed

second-degree trespass in his presence. See Devenpeck, 543 U.S. at 152-53, 160 L. E.

2d at 544.

      Second-degree trespass occurs when a person “enters or remains on premises

of another” without authorization:

             (1) After he has been notified not to enter or remain there
             by the owner, by a person in charge of the premises, by a
             lawful occupant, or by another authorized person; or



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               (2) That are posted, in a manner reasonably likely to come
               to the attention of intruders, with notice not to enter the
               premises.

N.C.G.S. § 14-159.13. Second-degree trespass is a Class 3 misdemeanor. Id.

       Here, throughout the Officer’s investigation, Defendant remained at the

apartment complex without authorization, even after he had been notified not to

enter or remain there by a person authorized to so notify him: the Officer. The trial

court found the Officer had such authority, as the Smithfield police have authority to

remove certain persons from Kay Drive. The Smithfield police officers have an agency

agreement enforcing this authority.3

       The Officer testified Defendant understood that he was trespassing, and it was

only after the Officer notified Defendant that he was trespassing that the Officer

advised Defendant he was going to be transported for a detox. Thus, even though the

Officer did not arrest Defendant with second-degree trespass, there was objective

probable cause to do so at the time of Defendant’s arrest.

       Defendant argues probable cause to arrest for second-degree trespass does not

create objective probable cause to make Defendant’s arrest lawful under Devenpeck

because second-degree trespass is a misdemeanor, not a felony. However, neither



        3 The Officer testified the police have authority to remove persons from Kay Drive, as that

section and the apartments therein are subject to Section 8 housing and there is an agency agreement
giving the officers this authority.




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                                       STATE V. BURWELL

                                       Opinion of the Court



N.C.G.S. § 15A-401(b) nor Devenpeck limit themselves in this way.4 Since there was

objective probable cause to arrest Defendant for second-degree trespass, the Officer

lawfully arrested Defendant. Therefore, the trial court did not err when it did not

include the right to resist an unlawful arrest in its jury instructions because the

evidence demonstrated that an objectively lawful and constitutional arrest occurred.

As there was no error, there was no plain error. See Cummings, 361 N.C. at 470, 648

S.E.2d at 807.

   IV.       Right to Defend Oneself From Excessive Use of Force by a Law
             Enforcement Officer Instruction

         Defendant argues the trial court erred or plainly erred by failing to instruct

the jury on the right to defend oneself from excessive force by a law enforcement

officer. Based on the evidence presented at trial, this argument lacks merit.

         At trial, Defendant neither requested, nor objected to the omission of, a jury

instruction on the right to defend oneself from the excessive use of force by a law

enforcement officer. Therefore, this issue is not properly preserved for our review on

appeal. At Defendant’s request, we review for plain error whether the trial court

erred by not instructing the jury on the right to defend oneself from excessive use of

force by a law enforcement officer.




         4Moreover, while not binding on our Court, we have previously applied Devenpeck in an
unpublished case to a scenario where the objective probable cause to arrest a defendant was based on
a misdemeanor crime. See State v. Stephens, No. COA05-1218, 178 N.C. App. 393, 631 S.E.2d 235
(N.C. Ct. App. July 5, 2006) (unpublished).

                                              - 20 -
                                  STATE V. BURWELL

                                   Opinion of the Court



      We review Defendant’s appeal of improper jury instructions for plain error.

See Garris, 191 N.C. App. at 287, 663 S.E.2d at 349 (citation omitted); see also

Lawrence, 365 N.C. at 518, 723 S.E.2d at 334 (citations omitted). However, we first

determine “whether the instruction complained of constitutes error.” Cummings, 361

N.C. at 470, 648 S.E.2d at 807.

      “If attempting a lawful arrest, an officer has the right to use reasonable force

to subdue the arrestee and the arrestee has no right to resist.” State v. Burton, 108

N.C. App. 219, 226, 423 S.E.2d 484, 488 (1992) (citation omitted). However, if “an

officer uses excessive force to execute a lawful arrest, the arrestee may defend against

the excessive force.” Id. at 226, 423 S.E.2d at 488; see State v. Mensch, 34 N.C. App.

572, 575, 239 S.E.2d 297, 299 (1977).

             [W]here there is evidence tending to show the use of such
             excessive force by the law officer, the trial court should
             instruct the jury that the assault by the defendant upon
             the law officer was justified or excused if the assault was
             limited to the use of reasonable force by the defendant in
             defending himself from that excessive force.

Mensch, 34 N.C. App. at 575, 239 S.E.2d at 299.

      In the case before us, Defendant did not testify that his actions were an

attempt to protect himself from excessive force, and the trial court did not instruct

the jury about the right to defend oneself against the use of excessive force during an

arrest. Only if the evidence tended to show that the use of force by the Officer was




                                          - 21 -
                                  STATE V. BURWELL

                                   Opinion of the Court



excessive did the trial court err by not instructing on this right. See Mensch, 34 N.C.

App. at 575, 239 S.E.2d at 299.

      The evidence did not tend to show the use of force by the Officer was excessive.

As discussed supra, the Officer lawfully arrested Defendant. Defendant provoked the

Officer’s use of force when he became aggressive as the Officer reached for his

handcuff pouch. Defendant tensed, pulled away from the Officer, and tried to turn

around. The Officer responded by pushing Defendant into the vehicle to prevent

Defendant from escaping. Defendant then attempted to punch the Officer. The

Officer stepped away, removed his Taser, pointed the Taser at Defendant, and told

Defendant he was under arrest. Defendant fled, and then fell down. The Officer

again pointed his Taser at Defendant, commanding Defendant to roll over and put

his hands behind his back. Defendant did not comply; instead, he took “a combat

stance[.]” Due to Defendant’s noncompliance and aggressive stance, Defendant fired

the Taser, momentarily incapacitating Defendant. Defendant then fled again. This

time, the Officer gave chase, commanding Defendant to stop, and eventually tackling

Defendant to the ground.

      Defendant proceeded to hit the Officer, remove the Officer’s radio, and grab the

Officer’s pistol. The Officer tried to get control of Defendant by striking him with his

baton and his hands, attempting to protect himself, to effectuate the arrest, and to

prevent Defendant’s escape. The Officer could not gain control; Defendant continued



                                          - 22 -
                                   STATE V. BURWELL

                                    Opinion of the Court



to hit him. Defendant then bit the Officer multiple times. All the Officer “could do

was just hold” on until backup arrived. Before backup arrived, Defendant was able

to sit on top of the Officer, straddling him, delivering blows to the Officer’s face, body,

and head.      Backup officers arrived, securing Defendant.         This incident lasted

approximately two and a half minutes.

         This course of events, which Defendant did not present evidence to contradict,

does not tend to show the Officer used excessive force. The Officer used the amount

of force necessary to bring the situation under control. Therefore, since the trial court

is only required to instruct the jury based on the evidence presented at trial, see State

v. Anderson, 40 N.C. App. 318, 321, 253 S.E.2d 48, 50 (1979), the trial court did not

err when it did not instruct on the right to defend oneself against the use of excessive

force during an arrest. There cannot be plain error, as there was no error. See

Cummings, 361 N.C. at 470, 648 S.E.2d at 807.

                                      Conclusion

         For the reasons stated above, the trial court did not err. The trial court

properly denied Defendant’s Motion to Dismiss and his Motion to Suppress.

Furthermore, the trial court did not err when it did not sua sponte instruct the jury

on the right to resist an unlawful arrest and the right to defend oneself against

excessive force by a law enforcement officer. Defendant received a fair trial, free from

error.



                                           - 23 -
                      STATE V. BURWELL

                       Opinion of the Court




NO ERROR.

Judges HUNTER, JR. and DAVIS concur.




                              - 24 -
