An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1158
                        NORTH CAROLINA COURT OF APPEALS

                                Filed: 20 May 2014


STATE OF NORTH CAROLINA

       v.                                     Tyrrell County
                                              Nos. 11 CRS 295-96
TEWANIA LYKISHA SPENCER



       Appeal by Defendant from judgments entered 10 June 2013 by

Judge W. Russell Duke, Jr., in Superior Court, Tyrrell County.

Heard in the Court of Appeals 29 April 2014.


       Attorney General Roy Cooper, by Assistant Attorney General
       James C. Holloway, for the State.

       Anna S. Lucas for Defendant-Appellant.


       McGEE, Judge.


       On appeal from her convictions in district court, a jury

found Tewania Lykisha Spencer (“Defendant”) guilty of two counts

of assault on a government officer or employee under N.C. Gen.

Stat.       §   14-33(c)(4)    (2013),    and     one   count     of    resisting,

delaying, or obstructing (“RDO”) a public officer under N.C.

Gen.    Stat.     §   14-223   (2013).      The    trial    court      consolidated

Defendant’s offenses into two judgments and sentenced Defendant
                                   -2-
to a total of 150 days of imprisonment.             Defendant gave notice

of appeal in open court.

    The State’s evidence at trial tended to show that, on the

morning of 22 November 2011, Chief Deputy Karen Simmons (“Chief

Deputy Simmons”) of the Tyrrell County Sheriff’s Office drove to

a residence at 6525 Highway 74 East in Columbia, North Carolina

(the residence), to serve a writ of possession upon Carl Combs.

Defendant, who also lived at the residence, came to the front

door and said Combs was not home.             Chief Deputy Simmons posted

the writ of possession on a sliding glass door approximately

twenty feet from the front door, believing that to be the actual

entrance   to   Combs’   portion   of   the    residence.   Chief     Deputy

Simmons then left.

    Chief       Deputy   Simmons    decided      she   should   add     some

information to the writ, so she returned to the residence with

Deputy Matthew Myers (“Deputy Myers”).            Deputy Myers waited in

the patrol car while Chief Deputy Simmons attempted to write

additional information on the writ.              At this time, Defendant

approached Chief Deputy Simmons from behind and pressed “her

whole body . . . forcibly against [Chief Deputy Simmons], and

[Defendant] was trying to reach around [Chief Deputy Simmons]

. . . to tear the paper off of the . . . sliding glass doors.”
                                         -3-
Defendant     ignored     Chief   Deputy      Simmons’     repeated     requests    to

“[g]et off of me” and “[l]eave the paper alone[.]”                           Defendant

“kept . . . pushing into [Chief Deputy Simmons’] body trying to

reach the paper” posted on the door.

       Deputy Myers exited the patrol car and attempted to arrest

Defendant.       Deputy Myers advised Defendant that he was going to

place   her     under    arrest   for    “resist,       delay,    and   obstruct[,]”

Defendant replied: “I’m not going anywhere[,]” and walked away

from    Deputy    Myers    toward       the    door.      Deputy     Myers     pursued

Defendant and grabbed her by the left hand in order to handcuff

her. Defendant “snatched away” from Deputy Myers and continued

walking, saying:         “I’m not going anywhere with you.”                    Deputy

Myers    made     a     second    attempt      to      grasp     Defendant’s    hand.

Defendant,       “[o]nce again . . . resisted and snatched away” and

“kept walking back towards the house.”                   When Deputy Myers tried

a third time to take hold of Defendant’s hand, Defendant “turned

around, and she slapped [him] across the face” – knocking his

sunglasses to the ground.            Chief Deputy Simmons then fired her

Taser into Defendant’s right shoulder and assisted Deputy Myers

in taking Defendant into custody.                   Defendant was convicted of

assaulting Chief Deputy Simmons and convicted of both resisting,

delaying or obstructing, and assaulting, Deputy Myers.
                                      -4-
    In her sole argument on appeal, Defendant challenges the

convictions related to Deputy Myers.                Specifically, Defendant

argues the trial court’s entry of judgment on both of those

convictions resulted in Defendant’s being “punished twice for

the same conduct” in violation of the constitutional prohibition

against double jeopardy.

    In light of “our Supreme Court's decisions holding that a

double jeopardy issue cannot be raised for the first time on

appeal[,]”    we   conclude    Defendant’s    argument    is   not   properly

before this Court.      State v. Kirkwood, __ N.C. App. __, __, 747

S.E.2d 730, 736 (citation omitted), appeal dismissed, __ N.C.

__, 752 S.E.2d 487 (2013).        At no time did Defendant present her

claim   of   double   jeopardy   to   the   trial    court.    She   did   not

challenge the trial court’s submission of both charges involving

Deputy Myers to the jury, or the trial court’s entry of judgment

on both convictions.          Accordingly, Defendant waived appellate

review of this issue.         State v. McLaughlin, 321 N.C. 267, 272,

362 S.E.2d 280, 283 (1987).           Insofar as Defendant invokes N.C.

Gen. Stat. § 15A-1446(d)(18) (2014) as an alternative basis for

appellate review, we reiterate our recent holding in Kirkwood

that, “[s]ince we are bound by the rulings of our Supreme Court,

we find defendant's preservation argument based upon N.C. Gen.
                                                 -5-
Stat. § 15A-1446(d)(18) unpersuasive.”                          Kirkwood, __ N.C. App.

at   __,   747    S.E.2d        at   736        (citations      omitted).          We     dismiss

Defendant’s appeal.

       Assuming, arguendo, Defendant had properly preserved this

issue for appellate review, Defendant’s claim is without merit.

Assault    on    a    government           officer       or    employee      and     resisting,

delaying    or    obstructing          a    public       officer      “‘are      separate     and

distinct offenses’” for double jeopardy purposes, inasmuch as

each   contains       an    essential           element       not   found    in    the    other.

State v. Bell, 164 N.C. App. 83, 93, 594 S.E.2d 824, 830 (2004)

(citation       omitted).            Moreover,         the     “fact      that     each     crime

requires    proof          of   an     element         which        the   other      does     not

demonstrates         the    intent         of    the     General       Assembly      to     allow

multiple punishments to be imposed for the separate crimes.”

State v. Haynesworth, 146 N.C. App. 523, 531, 553 S.E.2d 103,

109 (2001).

       Nor were the charges based on the identical evidence or

conduct,    so       as    to   give       rise     to    potential         double      jeopardy

concerns.       “‘In determining whether two indictments are for the

same offense, our courts have used the same-evidence test.’”

State v. Newman, 186 N.C. App. 382, 387, 651 S.E.2d 584, 587

(2007) (citation omitted).                  In the case sub judice, the State’s
                                          -6-
statement of charges1 alleged that Defendant assaulted Deputy

Myers “by slapping [him] across the face[.]”                   By contrast, the

pleading     charged      that    Defendant       committed    the   offense   of

resisting, delaying or obstructing an officer “by pulling away,

struggling and resisting the efforts of Deputy Myers to arrest

[her].”     As reflected in the State’s proffer at trial, these two

counts clearly described separate conduct by Defendant and thus

did   not   rely   on     the    “same    evidence”   to   sustain   Defendant’s

convictions under N.C. Gen. Stat. §§ 14-33 and 14-223.                         See

Newman, 186 N.C. App. at 389, 651 S.E.2d at 589 (“[T]he evidence

is not in fact the same as the RDO warrant was validly based on

defendant ‘pulling away and elbowing at the officer’ whereas the

assault     was    only    based     on     the    defendant    ‘elbowing’     the

officer.”).

      Dismissed.

      Judges ELMORE and DAVIS concur.

      Report per Rule 30(e).




1
 See generally N.C. Gen. Stat. §§ 15A-921, -922 (2013)
(authorizing statement of charges as pleading in misdemeanor
cases initiated in district court).
