              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-816

                                Filed: 18 April 2017

Watauga County, No. 15 CRS 51160

STATE OF NORTH CAROLINA

             v.

DANIEL MYLETT, Defendant


      Appeal by defendant from judgment entered 31 March 2016 by Judge Alan Z.

Thornburg in Watauga County Superior Court. Heard in the Court of Appeals 9

February 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Kevin G.
      Mahoney, for the State.

      Arnold & Smith, PLLC, by Laura M. Cobb, for defendant-appellant.


      MURPHY, Judge.


      Daniel Mylett (“Defendant”) appeals from his conviction for assault on a

government officer. On appeal, he contends that the trial court erred by (1) denying

his motion for a continuance; and (2) denying his motions to dismiss. Specifically, he

argues that the trial court should have granted his motion for a continuance so that

he could prepare a motion to dismiss on the basis that video footage of the assault

recorded on officers’ body cameras was destroyed prior to trial in violation of Brady

v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215 (1963).
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      He further asserts that, because he did not intend to assault a government

officer, but instead intended to assault civilians standing behind the officer, the

charge of assault on a government officer in violation of N.C.G.S. § 14-33(c)(4) (2015)

was erroneously submitted to the jury as the State failed to establish the requisite

intent element of the offense. After careful review, we reject Defendant’s arguments

and conclude that he received a fair trial free from error.

                               Factual Background

      At 1:37 a.m. on 29 August 2015, Officer Jason Lolies (“Officer Lolies”) and

Officer Forrest (“Officer Forrest”) with the Boone Police Department responded to a

call regarding a male who was bleeding from his head at 200 Misty Lane in Boone,

North Carolina. Upon arriving at the Misty Lane address, Officers Lolies and Forrest

encountered several hundred individuals, most of whom were college-aged.

      Officer Lolies recalled that “[a]s we got to the crest of the hill, the driveway,

that’s when we heard a commotion and it sounded like some arguments, some

screaming, some fighting sort of” coming from a smaller group of approximately 30

individuals. Upon investigation, Officer Lolies observed “people pushing and shoving

over top of [Defendant]” who was “laying on the ground.” Officer Lolies continued

that “[i]t appeared that some of the people were trying to defend [Defendant] and

there was obviously people trying to attack him[.]”




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      The officers moved in to break up the altercation, and, after subduing the

combatants, were approached by Defendant’s girlfriend, Kathryn Palmer (“Palmer”),

who informed them that Defendant was bleeding from his head. Officer Lolies then

went over to Defendant and observed that both of Defendant’s eyes were bleeding and

that he had bruising and a large knot developing over his left eye.

      Defendant then jumped up from the ground where he was lying, acted

aggressively towards Officer Lolies, and told him “to do [his] motherfucking job.”

While Defendant was yelling at him, Officer Lolies detected a strong odor of alcohol

on his breath. Defendant then explained to Officer Lolies that the reason he had been

beaten was because he had tried to stop Palmer from dancing with another man.

      Shortly thereafter, Officer Dennis O’Neal (“Officer O’Neal”) arrived on the

scene to assist Officers Lolies and Forrest. Officers Lolies and Forrest attempted to

question several other individuals on hand, but were unable to do so because

“[Defendant] was pretty erratically challenging people to fights. He would call them

pussies, just very loud” and “[h]e charged at a couple of people a couple of different

times and Officer Forrest, and eventually when Officer O’Neal arrived on the scene

they would restrain him to prevent him from doing that.” Defendant continued to

verbally berate Officers Lolies, Forrest, and O’Neal by “telling [them] as law

enforcement officers to do [their] . . . motherfucking jobs.”




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      The officers called for an ambulance for Defendant, and, upon its arrival,

Officer O’Neal directed Defendant into the back of the vehicle. Defendant initially

complied, but proceeded to exit abruptly from the ambulance. Defendant resumed

swearing at the officers and challenging nearby individuals to fight him.

      Officer O’Neal positioned himself between Defendant and these individuals

and at that point Defendant “attempted to spit at folks that were walking behind,

behind [Officer O’Neal’s] location, over [his] shoulder.” Defendant’s spit made contact

with the left side of Officer O’Neal’s face and shirt. Defendant spat two additional

times, despite Officer O’Neal ordering him to stop, again hitting Officer O’Neal in his

face and on his shirt.

      Officer O’Neal ultimately corralled Defendant back into the ambulance and

rode with him to Watauga Medical Center to receive treatment for his injuries.

Defendant continued swearing at and verbally berating Officer O’Neal in the

ambulance and at one point “stood up in the back of . . . the ambulance, off the gurney,

and began punching the interior walls of the ambulance” prompting Officer O’Neal to

restrain him until they reached the hospital. Later that day, a warrant was issued

and Defendant was arrested for assault on a government officer in connection with

his spitting on Officer O’Neal.

      Prior to Defendant’s district court trial, his original trial counsel received

copies of video recordings taken on the officers’ body-cams of the events surrounding



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the 29 August 2015 altercation at 200 Misty Lane. However, counsel opted not to

obtain copies or use the footage at trial. After counsel’s review, the original recordings

were destroyed in accordance with the Boone Police Department’s evidence retention

schedule.

       On 9 November 2015, Defendant was tried before the Honorable Rebecca E.

Eggers-Gryder in Watauga County District Court. That same day, Judge Eggers-

Gryder found Defendant guilty of assault on a government officer and sentenced him

to 60 days imprisonment, suspended sentence, and placed him on 12 months

supervised probation. On 12 November 2015, Defendant appealed to superior court

for a trial de novo.

       A jury trial was held in Watauga County Superior Court before the Honorable

Alan Z. Thornburg from 29 March 2016 through 31 March 2016. Prior to the jury

being empaneled, Defendant’s new trial counsel moved for a continuance on the

ground that counsel wished to prepare a motion to dismiss since the video recordings

of the events of 29 August 2015 taken on the officers’ body cameras had been

destroyed and were therefore unavailable for use by the defense. After hearing

arguments from defense counsel and the State, the trial court ultimately denied the

motion. Significantly, no motion was filed in District Court relating to the videos and




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defense counsel did not move to dismiss on this ground in the four and a half months

prior to the trial in Superior Court.1

       At trial, the State proceeded on a theory of transferred intent as to the assault

on an government officer charge. To this end, it elicited testimony from, among other

witnesses, Officers Lolies and O’Neal.

       Officer O’Neal testified as follows concerning the spitting incident:

               Q. I’m sorry -- but was he just talking loudly and a little bit
               of spit came out or was he actually projecting spit?

               A. He was attempting -- or projected, projecting spit
               attempting to hit folks that were walking behind me.

               Q. And when it hit you was it just a little driplet (sic) or
               was it a lot of liquid?

               A. If you know it was like the, you know, what a sneeze
               feels like, you know, a sneeze will make you feel the
               droplets on your face and you can see you got some stuff on
               your shirt.

               Q. And how about the third time, did that hit you?

               A. Yes, sir, it did, but it was, there wasn’t near as much,
               you know, liquid, or I couldn’t feel as much on the third
               time.

               ....

               Q. And what did you do at that point?



       1Although appellate counsel for Defendant argued for the first time at oral argument that
Defendant’s original counsel had subpoenaed the videos, the record is silent as to the issuance of any
subpoenas by Defendant at any stage.

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             A. I asked him to stop. I said, please stop, you know, I
             commanded, you know, stop spitting.

             Q. And the second time did you hear the sound beforehand?

             A. Yes.

             Q. All right. And where did you get hit?

             A. It would have been right here on my uniform shirt.

             Q. Did any of it actually go over your shoulder?

             A. Sir, I don’t know that.

             Q. And the third time you said was it still --

             A. Yes.

             Q. And was he trying to kind of get around you to spit?

             A. Yes, yes he was.

Officer Lolies, in turn, testified as follows concerning the spitting incident:

             Q. So I think I asked you, what happened, did anything
             draw your attention to Officer O’Neal and the Defendant
             at some point later, once the ambulance arrived?

             A. Yes, sir. I had three people over here, basically detained
             at this point, but I intended on placing them under arrest
             when I got the chance. And I was dealing with them,
             especially the one that ran so much. But I heard Officer
             O’Neal, who was dealing with [Defendant] at the time, ask
             the question to the effect of, I don’t remember the exact
             words, but did you just spit on me.

             Q. And what did you do when you heard that?




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A. I looked over at Officer O’Neal, made sure he was okay,
I didn’t go over there and assist him or anything, but I just
kept my eye on them to watch them to make sure that they
were okay. And I continued to deal with these three people
here.

Q. Did you see Officer O’Neal right after he said that do
anything?

A. He made a gesture across the top of his uniform.

Q. And what did that gesture appear to you to be?

      MR. ISAACS: Objection.

      THE COURT: Overruled.

A. It appeared to me that he was wiping something off of
his uniform.

Q. Could you tell if anyone else was around Officer O’Neal
and the defendant when that incident occurred?

A. There was some other people around, I feel like it may
have been his girlfriend and his brother, and there seemed
to be two males who were giving this information in
support of [Defendant’s] statements and sort of his
recollection of events, but there was also some people from
the opposing party gathered around. And it seemed to me
that these people in the background were taunting each
other.

Q. And the people that you thought were taunting each
other for the opposing party, where were they standing in
relation to Officer O’Neal?

A. They were all around. We were intermingled with all
these people.




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                                  Opinion of the Court



      Defendant moved to dismiss the charge of assault on a government officer at

the close of the State’s evidence and renewed his motion at the close of all the

evidence. The trial court denied both motions.

      The jury found Defendant guilty of assault on a government officer. The trial

court sentenced Defendant to ten days imprisonment to be served over five

consecutive weekends and ordered Defendant to pay costs in the amount of $1,657.50.

It is from this judgment that Defendant appeals.

                                      Analysis

I. Motion for Continuance

      Defendant initially argues on appeal that the trial court erred by denying his

motion for a continuance. Specifically, Defendant claims he should have been allowed

additional time to file a motion due to the destruction of the officers’ body camera

video recordings of the events of 29 August 2015 amounting to a Brady violation. We

disagree. “A motion for a continuance is generally a matter within the trial court’s

discretion, and a denial is not error absent an abuse of that discretion. Defendant,

therefore, bears the burden of showing that the trial court’s ruling was so arbitrary

that it could not have been the result of a reasoned decision.” State v. Carter, 184

N.C. App. 706, 711, 646 S.E.2d 846, 850 (2007) (internal citations and quotation

marks omitted). The trial court did not abuse its discretion.




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                                  Opinion of the Court



      “In Brady, the United States Supreme Court held that suppression by the

prosecution of evidence favorable to an accused upon request violates due process

where the evidence is material either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution. This includes evidence known only to police

investigators and not to the prosecutor.      The duty to disclose such evidence is

applicable even though there has been no request by the accused.” State v. Dorman,

225 N.C. App. 599, 620, 737 S.E.2d 452, 466 (internal citations, quotation marks, and

brackets omitted), appeal dismissed and disc. review denied, 366 N.C. 594, 743 S.E.2d

205 (2013).

              To establish a Brady violation, a defendant must show (1)
              that the prosecution suppressed evidence; (2) that the
              evidence was favorable to the defense; and (3) that the
              evidence was material to an issue at trial. Favorable
              evidence can be either exculpatory or useful in impeaching
              the State’s evidence. Evidence is considered material if
              there is a reasonable probability of a different result had
              the evidence been disclosed. A reasonable probability is a
              probability sufficient to undermine confidence in the
              outcome. However, when the evidence is only potentially
              useful or when no more can be said of the evidence than
              that it could have been subjected to tests, the results of
              which might have exonerated the defendant, the State’s
              failure to preserve the evidence does not violate the
              defendant’s constitutional rights unless a defendant can
              show bad faith on the part of the State.

Id. at 620-21, 737 S.E.2d at 466 (internal citations, quotation marks, and brackets

omitted).




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                                       Opinion of the Court



       In the present case, the record clearly establishes that the recordings at issue

were erased in routine conformity with the Boone Police Department’s evidence

retention schedule. It is undisputed that prior to their destruction, the recordings

were reviewed by both Defendant’s original counsel2 and the prosecutor. Defense

counsel’s decision not to make or preserve copies of the videos — regardless of

counsel’s reason for declining to do so — cannot serve as a basis for arguing a Brady

violation was committed by the State. See State v. Jennings, 333 N.C. 579, 604, 430

S.E.2d 188, 200 (“The law is . . . clear, however, that ‘[a] defendant is not prejudiced

. . . by error resulting from his own conduct.’ ” (quoting N.C.G.S. § 15A-1443(c))), cert.

denied, 510 U.S. 1028, 126 L. Ed. 2d 602 (1993). Consequently, as nothing in the

record tends to demonstrate that the Boone Police Department or the State

suppressed evidence or otherwise acted in bad faith, Defendant has failed to carry his

burden in establishing a due process violation under Brady.

       In addition to Defendant’s inability to demonstrate that a Brady violation

occurred, it is also worth emphasizing that he has failed to establish precisely how a

continuance would have enabled him to better prepare for trial given that it is

undisputed that no copies of the videos remain in existence.                   Therefore, as a

functional matter, the granting of a continuance by the trial court would have served



       2  Although the record is vague on this point, it appears that Defendant’s original counsel,
Shannon Aldous, was replaced as counsel by Kenneth D. Isaacs sometime after Defendant was found
guilty in District Court and prior to his trial de novo in Superior Court.

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no operative purpose. See State v. Gray, 234 N.C. App. 197, 201-02, 758 S.E.2d 699,

702-03 (2014) (“To establish that the trial court’s failure to give additional time to

prepare constituted a constitutional violation, defendant must show how his case

would have been better prepared had the continuance been granted or that he was

materially prejudiced by the denial of his motion.” (citation and quotation marks

omitted)), disc. review improvidently allowed, 368 N.C. 324, 776 S.E.2d 681 (2015).

      For all of these reasons, the trial court did not err in denying Defendant’s

motion for a continuance. Defendant’s arguments on this issue are meritless.

II. Assault on a Government Officer

      Defendant’s final argument on appeal is that the trial court erred by denying

his motions to dismiss the charge of assault on a government officer. Specifically,

Defendant contends that, because the evidence at trial tended to establish that he

intended to assault civilians standing behind Officer O’Neal and not Officer O’Neal

himself, the State failed to establish the knowledge element of N.C.G.S. § 14-33(c)(4).

We disagree.

               The trial court’s denial of a motion to dismiss is reviewed
               de novo on appeal. Upon defendant’s motion for dismissal,
               the question for the Court is whether there is substantial
               evidence (1) of each essential element of the offense
               charged, or of a lesser offense included therein, and (2) of
               defendant’s being the perpetrator of such offense. If so, the
               motion is properly denied.




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State v. Williams, __ N.C. App. __, __, 784 S.E.2d 232, 233 (citation omitted), disc.

review denied, __ N.C. __, 792 S.E.2d 503 (2016).

      N.C.G.S. § 14-33(c)(4) provides that

             (c) Unless the conduct is covered under some other
             provision of law providing greater punishment, any person
             who commits any assault, assault and battery, or affray is
             guilty of a Class A1 misdemeanor if, in the course of the
             assault, assault and battery, or affray, he or she:

             ....

                    (4) Assaults an officer or employee of the State or
                    any political subdivision of the State, when the
                    officer or employee is discharging or attempting to
                    discharge his official duties[.]

      “It is well established that this Court’s principal aim when interpreting

statutes is to effectuate the purpose of the legislature in enacting the statute, and

that statutory interpretation properly begins with an examination of the plain words

of the statute.” State v. Williams, 232 N.C. App. 152, 158, 754 S.E.2d 418, 423

(internal citations, quotation marks, and brackets omitted), appeal dismissed and

disc. review denied, 367 N.C. 784, 766 S.E.2d 846 (2014).

      It is fundamental that

             [t]he primary objective of statutory interpretation is to
             ascertain and effectuate the intent of the legislature. If the
             language of the statute is clear and is not ambiguous, we
             must conclude that the legislature intended the statute to
             be implemented according to the plain meaning of its
             terms. Thus, in effectuating legislative intent, it is our



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             duty to give effect to the words actually used in a statute
             and not to delete words used or to insert words not used.

Lunsford v. Mills, 367 N.C. 618, 623, 766 S.E.2d 297, 301 (2014) (internal citations

and quotation marks omitted). Moreover, “[w]here . . . the General Assembly includes

particular language in one section of a statute but omits it in another section of the

same Act, it is generally presumed that the legislative body acts intentionally and

purposely in the disparate inclusion or exclusion.” Comstock v. Comstock, __ N.C.

App. __, __, 780 S.E.2d 183, 186 (2015) (citation, quotation marks, and brackets

omitted).

      Significantly, the Legislature did not choose to include a reference to intent in

authoring N.C.G.S. § 14-33(c)(4) despite the fact that it did so in other sections of

Article 8, Subchapter III of Chapter 14 of the North Carolina General Statutes

concerning criminal assaults. See, e.g., N.C.G.S. § 14-32(a) (2015) (“Any person who

assaults another person with a deadly weapon with intent to kill and inflicts serious

injury shall be punished as a Class C felon.” (emphasis added)). Nor has this Court

specifically delineated a scienter requirement in its discussion of the offense of

assault on a government officer. Instead, we have simply stated that “[t]he essential

elements of a charge of assault on a government official are: (1) an assault (2) on a

government official (3) in the actual or attempted discharge of his duties.” State v.

Noel, 202 N.C. App. 715, 718, 690 S.E.2d 10, 13, disc. review denied, 364 N.C. 246,

699 S.E.2d 642 (2010).


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                                    Opinion of the Court



      Defendant concedes that he did, in fact, commit an assault and that Officer

O’Neal was a law enforcement officer discharging his duty. Therefore, we need only

address whether assault on a government officer in violation of N.C.G.S. § 14-33(c)(4)

is a general intent or, alternatively, a specific intent crime.

      Nonetheless, Defendant maintains that, even assuming he knew that Officer

O’Neal was a police officer discharging a duty of his office at the time of the assault,

the State failed to provide sufficient evidence that he intended to assault Officer

O’Neal. Essentially, he asserts that all of the evidence tended to show that he

intended to assault one or more civilians standing behind Officer O’Neal, and not

Officer O’Neal himself, thereby precluding him from being found guilty of the offense

of assault on a government officer.

      We find our Supreme Court’s decision in State v. Page, 346 N.C. 689, 488

S.E.2d 225 (1997), cert. denied, 522 U.S. 1056, 139 L. Ed. 2d 651 (1998), instructive

on this point. In Page, the defendant was convicted of first-degree murder and assault

with a deadly weapon on government officers for firing a high-powered rifle at several

officers, one of whom was hit and subsequently died from his gunshot wound. Id. at

692-94, 488 S.E.2d at 228. At trial, Page asserted that he was suffering from post-

traumatic stress disorder at the time he shot at the officers and requested a jury

instruction on diminished capacity in order to attempt to repudiate the knowledge

element of N.C.G.S. § 14-34.2. Id. at 694, 488 S.E.2d at 229. The trial court declined



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to provide such an instruction and Page was ultimately sentenced to death. Id. at

698, 488 S.E.2d at 231.

      On direct appeal to our Supreme Court, Page argued that the jury should have

been instructed on diminished capacity in order to negate the knowledge element of

N.C.G.S. § 14-34.2. The Court rejected this argument stating the following:

            This Court has held that knowledge that the victim is an
            officer or employee of the State is an essential element of
            this offense. State v. Avery, 315 N.C. 1, 31, 337 S.E.2d 786,
            803 (1985).

            [Page] argues that the diminished-capacity defense should
            be available to negate the knowledge element required by
            Avery. This argument is without merit. We allow
            defendants to assert diminished mental capacity as a
            defense to a charge of premeditated and deliberate murder
            because we recognize that some mental conditions may
            impede a defendant’s ability to form a specific intent to kill.
            See Shank, 322 N.C. at 250-51, 367 S.E.2d at 644. This
            reasoning is not applicable to the knowledge element of the
            felony of assault with a deadly weapon on a government
            officer. Knowledge of the victim’s status as a government
            officer is simply a fact that the State must prove; it is not a
            state of mind to which the diminished-capacity defense may
            be applied. In this case, the State presented evidence
            tending to prove this fact. The trial court properly
            instructed the jury that, in order to convict [Page] of these
            charges, it must find that [Page] “knew or had reasonable
            grounds to know” that the victims were officers performing
            official duties.     The State’s evidence indicated that
            uniformed police officers and marked police cars were
            directly in [Page’s] line of vision. Several officers testified
            that defendant shot in their direction. Also, defendant’s ex-
            girlfriend testified that she received a telephone call from
            [Page] in which he stated that his apartment was
            surrounded by police officers. This evidence was sufficient


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             to support the jury’s conclusion that the knowledge
             element of assault with a deadly weapon on a government
             officer was satisfied.

             [Page] argues further that the diminished-capacity defense
             should be available to negate the state of mind required for
             defendant to be convicted of a violation of N.C.G.S. 14-34.2.
             “In order to return a verdict of guilty of assault with a
             firearm upon a law enforcement officer in the performance
             of his duties, the jury is not required to find the defendant
             possessed any intent beyond the intent to commit the
             unlawful act, and this will be inferred or presumed from
             the act itself.” State v. Mayberry, 38 N.C. App. 509, 513,
             248 S.E.2d 402, 405 (1978). Thus, this felony may be
             described as a general-intent offense.

Id. at 699-700, 488 S.E.2d at 232 (emphasis added).

     While Page concerns an assault with a deadly weapon on a government officer,

we find its reasoning to be equally applicable to the offense of assault on a government

officer. Indeed, the only substantive difference between N.C.G.S. § 14-33(c)(4) and

N.C.G.S. § 14-34.2 is that the latter requires that the assault be committed with a

firearm. We therefore hold, in accordance with Page, that assault on a government

officer is a general intent crime. As such, we are satisfied that when Defendant spat

at members of the crowd and Officer O’Neal was struck by Defendant’s spit, the

requirements of N.C.G.S. § 14-33(c)(4) were satisfied as, for the reasons stated above,

the State clearly established — and indeed Defendant conceded at oral argument —

that Defendant knew Officer O’Neal was a law enforcement officer and Defendant

intended to commit an assault.



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      Were we to endorse Defendant’s argument and construe N.C.G.S. § 14-33(c)(4)

as necessitating specific intent — as opposed to general intent — the intrinsic purpose

of the statute would necessarily be defeated. Therefore, we expressly hold that the

knowledge element of assault on a government officer in violation of N.C.G.S. § 14-

33(c)(4) is satisfied whenever a defendant while in the course of assaulting another

individual instead assaults an individual he knows, or reasonably should know, is a

government officer. Defendant’s argument on this issue is consequently dismissed.

                                     Conclusion

      For the reasons stated above, we conclude that Defendant received a fair trial

free from error.

      NO ERROR.

      Chief Judge McGEE and Judge DAVIS concur.




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