An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-497
                        NORTH CAROLINA COURT OF APPEALS

                             Filed:    21 October 2014

STATE OF NORTH CAROLINA

       v.                                       Surry County
                                                No. 12 CRS 53852
LINDA DAYE GEORGE



       Appeal by defendant from judgment entered 11 December 2013

by Judge Edwin G. Wilson, Jr., in Surry County Superior Court.

Heard in the Court of Appeals 22 September 2014.


       Attorney General Roy Cooper, by Assistant Attorney General
       Kimberly Grande, for the State.

       Wait Law,       P.L.L.C.,      by    John   L.     Wait,   for   defendant-
       appellant.


       McCULLOUGH Judge.


       Defendant Linda Daye George appeals from a judgment entered

upon a jury verdict finding her guilty of malicious conduct by a

prisoner.      The trial court sentenced defendant to a suspended

term    of   16   to    29   months        imprisonment    and    placed   her    on

supervised probation for 36 months.                 Defendant gave notice of

appeal in open court.
                                         -2-
       Defendant’s sole argument on appeal is that the trial court

erred in denying defendant’s motion to instruct the jury on the

charge   of     misdemeanor      assault   on     a    law   enforcement   officer.

Defendant contends she was entitled to the instruction because

misdemeanor assault on a law enforcement officer is a lesser

included offense of malicious conduct by a prisoner and the

facts    of     her    case    satisfy     both       offenses.     Defendant      is

incorrect.

       It is well established that “[a] defendant ‘is entitled to

an instruction on a lesser included offense if the evidence

would permit a jury rationally to find him guilty of the lesser

offense and acquit him of the greater.’”                     State v. Crouse, 169

N.C.    App.    382,   386,     610   S.E.2d    454,     457   (quoting    State   v.

Leazer, 353 N.C. 234, 237, 539 S.E.2d 922, 924 (2000)), disc.

review denied, 359 N.C. 637, 616 S.E.2d 923 (2005).                        However,

North Carolina courts use “‘a definitional test for determining

whether a crime is in fact a lesser offense that merges with the

greater offense.’”            Id. (quoting State v. Kemmerlin, 356 N.C.

446, 475, 573 S.E.2d 870, 890 (2002)).                    Using the definitional

test,    this    Court    has    held    that     “misdemeanor     assault    on   a

government official is not a lesser included offense of felony

malicious conduct by a prisoner.” Id.                    Accordingly, the trial
                              -3-
court did not err in denying defendant’s motion to instruct the

jury on the charge of misdemeanor assault on a law enforcement

officer as a lesser included offense to malicious conduct by a

prisoner.

    No error.

    Judges CALABRIA and GEER concur.

    Report per Rule 30(e).
