An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d    u   r   e   .




                                 NO. COA13-1435

                      NORTH CAROLINA COURT OF APPEALS

                           Filed:    21 October 2014


STATE OF NORTH CAROLINA

      v.                                    Guilford County
                                            Nos. 13 CRS 71104
                                                  13 CRS 71106
MARTIN DELGADO RAZO



      Appeal by defendant from judgment entered 24 July 2013 by

Judge Lindsay R. Davis, Jr. in Guilford County Superior Court.

Heard in the Court of Appeals 23 April 2014.


      Roy Cooper, Attorney General, by Brent D. Kiziah, Assistant
      Attorney General, for the State.

      Sharon L. Smith for defendant-appellant.


      DAVIS, Judge.


      Martin     Delgado     Razo    (“Defendant”)      appeals     from     his

convictions of assault on a law enforcement officer inflicting

serious injury and simple assault.            On appeal, he contends that

the trial court (1) erred in denying his motion to dismiss; and

(2) abused its discretion by failing to instruct the jury on
                                              -2-


self-defense.          After careful review, we find no error in part

and vacate and remand for a new trial in part.

                                 Factual Background

       The     State’s       evidence    at    trial      tended    to   establish   the

following facts:             On 7 March 2013, Defendant, who was 23 years

old, was at his parents’ house in Greensboro, North Carolina

where he lived with his mother, father, and 13-year-old brother.

Defendant made several disparaging comments towards his younger

brother      which     ultimately       led     to    a    heated    argument   between

Defendant and his parents.                    Defendant’s brother placed a 911

call    to      the     Greensboro       Police        Department        reporting   the

disturbance.

       Officer        Sean    Patterson       (“Officer      Patterson”)      with   the

Greensboro Police Department was the first officer to respond to

the    call.      Upon       arrival    at    the    home,   Officer     Patterson   saw

Defendant standing outside the front door.                          Officer Patterson,

who was uniformed and driving a marked patrol car, identified

himself to Defendant as an officer with the Greensboro Police

Department and informed Defendant that he was responding to a

report of a domestic disturbance.                         Defendant invited Officer

Patterson inside and began explaining the nature of the argument

to him.

       While     Defendant       was     speaking         with     Officer   Patterson,

Officers     Christopher Feliciano (“Officer Feliciano”) and M.R.
                                       -3-


Leahey    (“Officer        Leahey”)    also      arrived      and    entered     the

residence.     The three officers separated the family members,

moving Defendant’s parents to one side of the room while keeping

Defendant at the other side of the room near the front door.

       Defendant’s    parents      began    discussing       with    the     officers

their legal options with regard to Defendant — specifically,

whether they could “kick him out, [or] if [the officers] could

arrest him[.]”        However, when the officers tried to explain

their    options     to    them,   Defendant       loudly     interrupted      them,

yelling out profanities.           The officers waited for Defendant to

stop yelling and then tried again to speak with his parents.

However, Defendant interrupted them a second time, once again

screaming profanities.         After waiting once more for Defendant to

quiet down, the officers attempted for a third time to speak

with     Defendant’s        parents,       and     Defendant        again      loudly

interrupted, using more profanity.                During the course of this

exchange,    another       officer,    Adam      Snyder     (“Officer       Snyder”),

arrived at the residence.

       After Defendant’s third interruption, Officer Leahey told

him that if he interrupted the officers again before they could

finish speaking with Defendant’s parents, he would be arrested

for    obstruction    of    justice.       Defendant      responded     to   Officer

Leahey by yelling “f--- you.           Take me to jail.”            Officer Leahey

then moved to grab Defendant’s wrist so as to restrain him and
                                         -4-


place him in handcuffs.           When Officer Leahey seized Defendant’s

wrist, Defendant threw a closed-fist punch at him with his free

hand, striking Officer Leahey in the mouth.

       Officer       Patterson,   upon    seeing       Defendant     punch     Officer

Leahey, grabbed Defendant from behind in a bear hug in order to

restrain      him,    and   Officer     Leahey      proceeded   to    take    hold   of

Defendant in a similar manner from the front.                      Officer Leahey’s

foot then came in contact with the leg of a couch, causing him

to fall backwards onto the couch and Defendant to fall on top of

him.        Defendant began grabbing at Officer Leahey’s belt, and

Officers Patterson and Feliciano — believing Defendant to be

reaching for Officer Leahey’s weapon — took hold of Defendant’s

hands and placed him in handcuffs.                    Throughout the struggle,

Defendant was yelling and using profanity.

       After Defendant had been handcuffed, Officers Feliciano and

Snyder      began    escorting    him    out   of    the   house     toward    Officer

Patterson’s patrol          car with each officer holding one of                     his

arms.          Officers      Patterson         and     Leahey      were      following

approximately 10 to 15 feet behind them.

       As     they     approached       Officer      Patterson’s       patrol     car,

Defendant jumped up in the air and kicked Officer Feliciano in

his left leg.          He then jumped again and kicked Officer Snyder,

making contact with Officer Snyder’s right shin.                     At that point,

Officer Leahey moved forward and delivered a front-thrust kick
                                       -5-


to Defendant’s back, causing Defendant to fall to the ground.

The officers then placed a restraint device around Defendant’s

feet    while    Defendant    continued      to    curse     and   yell    at    the

officers.       Once Defendant was restrained, the officers placed

him in the back of Officer Patterson’s patrol car.                   As a result

of    the   altercation,    Officer    Leahey     suffered    a    one-and-a-half

inch gash on his lip and was transported to the emergency room

for treatment.

       On 20 May 2013, Defendant was indicted for assault on a law

enforcement     officer     inflicting    serious     injury       based    on   his

punching of Officer Leahey.           Defendant was also charged with one

count of misdemeanor assault on an officer with regard to his

kicking of Officer Snyder and one count of misdemeanor assault

on an officer with regard to his kicking of Officer Feliciano.

Defendant moved to join these offenses for trial, and the trial

court granted Defendant’s motion.                 A jury trial was held in

Guilford County Superior Court on 23 July 2013.

       Defendant testified in his own defense at trial, giving the

following account of the events taking place on 7 March 2013

upon the officers’ arrival at his parents’ home:                   After stating

his    explanation    for    the   family     argument       to    the    officers,

Defendant interrupted the officers while they were speaking with

his parents because his mother had a “speech impairment, so she

couldn’t exactly, um, explain everything correctly as to the way
                                     -6-


it happened.”      Upon the officers asking his father if he wanted

Defendant     arrested,   Defendant      interrupted   to    say    that    the

officers could not arrest him as he had “not broken any laws.”

    Officer Leahey told Defendant “in a very loud voice, I am

the law — um — I am allowed to locate you or relocate you from

location to location as needed.”           Officer Leahey then violently

shoved him and grabbed his wrist.            Defendant stated that Officer

Leahey’s actions “kind of scared me and put me in a fright, and

it caused for me to react in a way of self-defense, which then I

struck the officer to the upper lip.”

    After he had been           handcuffed    and was being escorted to

Officer Patterson’s patrol car, he turned around to look back at

Officer   Leahey    who   was   behind     him.    Officer   Leahey     called

Defendant a “F---ing mutt” at which point Officer Snyder gave

Defendant’s arm “a large tug or pull” as if he was “trying to

dislocate [Defendant’s] arm.”            As an act of self-defense, he

kicked Officer Snyder in the back of the leg.

    The jury found Defendant guilty of (1) assault on a law

enforcement    officer    inflicting     serious   injury    as    to   Officer

Leahey in case number 13 CRS 71106; and (2) simple assault on

Officer Snyder — as a lesser included offense of the charge of

assault on an officer — in case number 13 CRS 71104.                Defendant

was found not guilty of assault on an officer and not guilty of

the lesser included offense         of simple assault        as to Officer
                                      -7-


Feliciano.        The    trial      court    sentenced      Defendant   to    a

consolidated   term     of   6–17   months   imprisonment,     suspended     the

sentence, and placed Defendant on supervised probation for 36

months.     As a term of special probation, Defendant was ordered

to attend an anger management program.             Defendant filed a timely

notice of appeal.

                                      Analysis

I. Denial of Motion to Dismiss

      Defendant   first      argues   that   the    trial    court   erred   in

denying his motion to dismiss all charges against him based on

the   insufficiency     of   the    evidence.      Specifically,     Defendant

claims that he had a right to resist the officers’ attempts to

take him into custody         because they       lacked probable cause to

arrest him pursuant to N.C. Gen. Stat. § 14-223 in that he did

not willfully resist, delay, or obstruct a public officer in

discharging or attempting to discharge a duty of his office.

      A trial court's denial of a defendant's motion to dismiss

is reviewed de novo.         State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007).            On appeal, this Court must determine

“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.”    State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451,

455 (internal citation omitted), cert. denied, 531 U.S. 890, 148
                                         -8-


L.Ed.2d    150   (2000).         Substantial      evidence       is    “such    relevant

evidence    as   a    reasonable     mind      might   accept         as    adequate    to

support a conclusion.”           State v. Smith, 300 N.C. 71, 78–79, 265

S.E.2d 164, 169 (1980).            Evidence must be viewed in the light

most    favorable     to   the   State    with    every   reasonable           inference

drawn in the State's favor.              State v. Rose, 339 N.C. 172, 192,

451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132

L.Ed.2d 818 (1995).

       N.C. Gen. Stat. § 14-223 provides that “[i]f any person

shall    willfully     and   unlawfully        resist,    delay        or    obstruct   a

public officer in discharging or attempting to discharge a duty

of his office, he shall be guilty of a Class 2 misdemeanor.”

N.C. Gen. Stat. § 14-223 (2013).                 The elements of this offense

are as follows:

                     1) that   the       victim     was      a        public
                        officer;

                     2) that the defendant knew or had
                     reasonable grounds to believe that the
                     victim was a public officer;

                     3) that the victim was discharging or
                     attempting to discharge a duty of his
                     office;

                     4)   that   the    defendant resisted,
                     delayed, or obstructed the victim in
                     discharging or attempting to discharge
                     a duty of his office; and

                     5) that the defendant acted willfully
                     and unlawfully, that is intentionally
                     and without justification or excuse.
                                     -9-



State v. Cornell, __ N.C. App. __, __, 729 S.E.2d 703, 705

(2012) (internal citation omitted).

    Here, Defendant does not offer any argument as to the first

three elements of the offense.         Our inquiry is therefore limited

to the fourth and fifth elements — that is, whether Defendant

resisted, delayed, or obstructed the officers in discharging or

attempting   to   discharge   a    duty    of   their   office,   and   if   so,

whether Defendant acted willfully and unlawfully.

         [T]he fourth element establishes the right
         to be free from arrest for violating N.C.
         Gen.    Stat.    §   14-223     when  merely
         remonstrating with an officer or criticizing
         or questioning an officer while he is
         performing his duty when done in an orderly
         manner.   The touchstone of the inquiry is
         orderliness, even where no actual violence
         or force was used by defendant.

Id. at __, 729 S.E.2d at 705-06 (internal citations, quotation

marks, brackets, and ellipses omitted).

    What constitutes an “orderly manner” of remonstration in

the context of this offense is illustrated by several of our

prior cases.      In Cornell, an officer at a bluegrass festival

noticed that two rival gangs appeared to be squaring off and

about to fight.     Id. at __, 729 S.E.2d at 704-05.              The officer

attempted to instruct one of the gangs to disperse and move away

from the other gang.    Id.       The defendant, a member of one of the

gangs, stepped in between his gang and the officer and told the
                                   -10-


officer to speak to him instead, refusing to get out of the

officer’s   way   for   10   to   15   seconds   despite    the   officer’s

repeated orders for him to step aside.            Id.      This Court held

that the defendant’s actions went beyond merely arguing with the

officer and amounted to the obstruction of a public officer in

the course of discharging or attempting to discharge a duty of

his office.   Id. at __, 729 S.E.2d at 706.

    In State v. Leigh, 10 N.C. App. 202, 178 S.E.2d 85 (1970),

rev’d on other grounds, 278 N.C. 243, 179 S.E.2d 708 (1971),

while a deputy sheriff was attempting to question a suspect in

an ongoing investigation, the defendant repeatedly yelled to the

suspect: “You don't have to go with that Gestapo Pig.”              Id. at

204-05, 178 S.E.2d at 86-87.       We held that the defendant

            did not have the right, by the continued use
            of loud and abusive language, to prevent the
            officer from talking to [the suspect]. . . .
            The deputy sheriff was unable to talk to
            [the suspect] because of the loud and
            abusive language of the defendant over a
            period of several minutes.   He had to drive
            away from the scene in order to talk to [the
            suspect], and this constituted a delay in
            the performance of his duty as an officer.

Id. at 205, 178 S.E.2d at 807; see also State v. Burton, 108

N.C. App. 219, 226, 423 S.E.2d 484, 488 (1992) (holding that

willful obstruction was established where defendant’s yelling at

officer who had pulled over defendant’s vehicle prevented that

officer from calling in to check on vehicle’s registration),
                                  -11-


appeal dismissed and       disc. review denied, 333 N.C. 576, 429

S.E.2d 574 (1993).

      In the present case, the State presented evidence tending

to   show   that   while   officers   were   attempting   to    talk   with

Defendant’s parents in furtherance of their investigation into a

reported family disturbance, Defendant interrupted the officers

three separate times by yelling loudly and profanely over his

parents’ answers to the officers’ questions.         The officers were

forced to wait for him to finish yelling each time so that they

could attempt to obtain the parents’ information.              This led to

Officer Leahey warning Defendant that if he did not remain quiet

and allow the officers to speak to his parents, he would be

arrested for obstruction.       Defendant responded to this warning

by yelling: “[F]--- you. Take me to jail.”        We conclude that the

evidence was sufficient to satisfy the fourth element of N.C.

Gen. Stat. § 14-223.

      With regard to the willfulness element, we believe that

issue was likewise a question of fact for the jury to decide

given that “willfulness [is] a state of mind which is seldom

capable of direct proof, but which must be inferred from the

circumstances of the particular case.”        Cornell, __ N.C. App. at

__, 729 S.E.2d at 706 (internal citation and quotation marks

omitted).
                                     -12-


    While Defendant relies heavily on State v. Allen, 14 N.C.

App. 485, 188 S.E.2d 568 (1972), his reliance is misplaced.                   In

Allen,   the   driver   of   a    car   in   which   the   defendant    was    a

passenger was arrested for driving under the influence of an

intoxicating liquor.         The arresting officer seized a sealed,

unopened bottle of whiskey from the back seat of the car as

evidence and took it back to his patrol car.                   The defendant

followed the officer back to the officer’s car and argued that

the whiskey was his property, not the driver’s, and that the

officer had no right to confiscate it.               The officer told the

defendant that if he did not stop arguing he would be arrested.

The defendant did not stop arguing and was ultimately arrested.

Id. at 487, 188 S.E.2d at 570.          This Court held that

           mere remonstrances or even criticisms of an
           officer are not usually held to be the
           equivalent of unlawful interference. . . .

           [The defendant] was merely arguing with the
           officer and protesting the confiscation of
           his liquor. He had committed no offense and
           the officer had no authority to arrest him.

Id. at 492, 188 S.E.2d at 573 (internal citation and quotation

marks omitted).

    Allen      is   distinguishable     from   the   present    case.     The

defendant in Allen was calm and deliberate in his argument with

the arresting officer.           He “followed the officer back to the

patrol car insisting that the officer return the liquor.                      He
                                          -13-


made    no   attempt    to    interfere      with         the    officer   and    did   not

threaten to do so.            There was no threat of physical violence.

[The defendant] offered no resistance to the officer until he

was placed under arrest.”            Id. at 491, 188 S.E.2d at 573.

       Conversely, the repeated interruptions and profane yelling

by Defendant directly interfered with the officers’ attempts to

discharge their duties.           Therefore, because Defendant’s argument

regarding the trial court’s denial of his motion to dismiss

hinges on his mistaken contention that the officers lacked a

legal basis for placing him under arrest, we hold that the trial

court did not err in denying his motion.

II. Self-Defense Instruction

       Defendant’s      final    argument        on       appeal   is    that   the   trial

court erred in failing to expressly instruct the jury on self-

defense      as    to   the     assault     on        a    law     enforcement     officer

inflicting serious injury charge regarding Defendant’s punching

of Officer Leahey.        We agree.

       It is well established that “[i]n certain circumstances,

the theory of self-defense entitles an individual to use such

force as is necessary or apparently necessary to save himself

from death or great bodily harm.                      A person may exercise such

force   if    he   believes     it   to    be    necessary         and   has    reasonable

grounds for such belief.”                 State v. Whetstone, 212 N.C. App.
                                       -14-


551,     557,    711   S.E.2d   778,    783   (2011)    (internal     citation,

quotation marks, brackets, and ellipses omitted).

            [W]hen there is sufficient evidence to
            present the question of self-defense the
            trial court must instruct the jury on that
            defense even in the absence of a request to
            do so.

            Similarly, there is no question that where
            there is evidence tending to show the use of
            excessive force by [a] law [enforcement]
            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.

State v. Robinson, 40 N.C. App. 514, 519, 253 S.E.2d 311, 314,

(1979)     (internal     citations,     quotation      marks,   and    ellipses

omitted).       Furthermore, we have held that

            [w]here there is evidence that defendant
            acted in self-defense, the court must charge
            on   this    aspect    even   though   there   is
            contradictory evidence by the State or
            discrepancies     in     defendant's    evidence.
            Thus, if the defendant's evidence, taken as
            true,    is    sufficient      to   support    an
            instruction for self-defense, it must be
            given even though the State's evidence is
            contradictory. The evidence is to be viewed
            in   the    light    most    favorable   to   the
            defendant.

Whetstone, 212 N.C. App. at 555, 711 S.E.2d at 781-82 (internal

citations, quotation marks, and brackets omitted).

       During the charge conference, the trial court stated that

while it believed an instruction on self-defense was warranted
                                   -15-


as to the charges relating to Defendant’s assaults on Officers

Feliciano and Snyder, it did not believe such an instruction was

warranted as to the charge stemming from Defendant’s assault on

Officer Leahey.

           This   Court   reviews    jury   instructions
           contextually and in its entirety.         The
           charge will be held to be sufficient if it
           presents the law of the case in such manner
           as to leave no reasonable cause to believe
           the jury was misled or misinformed.     Under
           such a standard of review, it is not enough
           for the appealing party to show that error
           occurred in the jury instructions; rather,
           it must be demonstrated that such error was
           likely, in light of the entire charge, to
           mislead the jury.    If a party requests a
           jury   instruction   which   is   a   correct
           statement of the law and which is supported
           by the evidence, the trial judge must give
           the instruction at least in substance.

Cornell,   __   N.C.   App.   at   __,   729   S.E.2d   at   708   (internal

citation, brackets, and ellipses omitted).

    The trial court instructed the jury on the law of self-

defense jointly as to the assault charges regarding Officers

Snyder and Feliciano      but did not extend        this instruction to

apply to the charge relating to the assault on Officer Leahey.

           In Case Nos. 13CRS71103 and 13CRS71104 the
           defendant is charged with assault on a
           government    officer,   Greensboro   Police
           Officers Christopher Feliciano and A.L.
           Snyder, respectively, while each officer was
           performing or attempting to perform a duty
           of his office.

           In each case your duty is to return one of
           the following verdict [sic]:     Guilty of
                    -16-


assault on a government officer while the
officer was discharging or attempting to
discharge a duty of his office; guilty of
simple assault; or not guilty.

. . . .

In addition, if the state has satisfied you
beyond a reasonable doubt that the defendant
assaulted the alleged victim, then you would
consider whether the defendant's actions are
excused and the defendant is not guilty
because the defendant acted in self-defense.

The state has the burden of proving from the
evidence, beyond a reasonable doubt, that
the defendant's action was not in self-
defense.     Even if you find, beyond a
reasonable    doubt,  that   the   defendant
assaulted the alleged victim, the assault
would be justified by self-defense under the
following circumstances:

1. If the circumstances at the time the
defendant acted would cause a person of
ordinary firmness to — reasonably to believe
that such action was necessary or apparently
necessary to protect that person from bodily
injury or offensive physical contact.

2. The circumstances created such belief in
the defendant's mind.

You determine the reasonableness of the
defendant's belief from the circumstances
appearing to the defendant at the time.

If you find that the defendant intentionally
kicked an officer escorting him after the
arrest and the arrest was unlawful, or if
you do not find that the defendant's assault
was justified by self-defense, then you will
not find the defendant guilty[.]
                                      -17-


    The      trial   court    reiterated      the        self-defense      doctrine

separately as to the charge relating to Defendant’s kicking of

Officer Feliciano:

           In addition, if the state has satisfied you,
           beyond   a   reasonable   doubt,   that  the
           defendant assaulted the alleged victim, then
           you would consider whether the defendant's
           action   —  actions are excused and the
           defendant   is   not   guilty   because  the
           defendant acted in self-defense.

           The state has the burden of proving from the
           evidence, beyond a reasonable doubt, that
           the defendant's action was not in self-
           defense.

           The instructions previously given regarding
           self-defense apply as well here.

           If you do not so find at least one of these
           elements of justification or excuse, or that
           the defendant's assault was not justified by
           self-defense, or if you have a reasonable
           doubt as to any of these things, then it
           would be your duty to return a verdict of
           not guilty[.]

    The      trial   court    then     gave   an     essentially        identical

additional     instruction     on     self-defense         as   to   the    charge

concerning Defendant’s kicking of Officer Snyder.                    With regard

to the charge relating to Officer Leahey, however, the trial

court’s    instructions      merely    stated,      in     pertinent    part,    as

follows:

           If Officer Leahey was making or attempting
           to make a lawful arrest, then the defendant
           had the duty to submit to that arrest.   If
           the defendant struck Officer Leahey in the
           face with his fist while Officer Leahey was
                                         -18-


              making or attempting to make such arrest,
              then the defendant's striking of Officer
              Leahey would not be justified or excused.
              If the arrest was not a lawful arrest, then
              the defendant had a right to resist the
              unlawful arrest.    In doing so, he was
              justified in using such force as reasonably
              appeared to him to be necessary, under the
              circumstances,  to   prevent  the  unlawful
              restraint of his liberty.     The resisting
              force by the defendant cannot have been
              excessive.

(Emphasis added.)

      Thus,    Defendant      failed     to   receive    an    overt   self-defense

instruction as to the charge relating to his assault on Officer

Leahey despite receiving such an instruction as to the charges

relating to Officers Feliciano and Snyder.                    Moreover, the trial

court’s instructions regarding the charge relating to Officer

Leahey   suggested      that    Defendant       was   not     entitled    to   defend

himself against any excessive force used by Officer Leahey if

Officer Leahey’s arrest of Defendant was lawful.                       In our view,

the   refusal     to    give     such     a   self-defense       instruction      was

erroneous given Defendant’s testimony that he punched Officer

Leahey   in    the     face    because    Officer       Leahey   had     shoved   him

violently moments before and that, as a result, Defendant was in

fear for his safety.

              The right to defend oneself from the
              excessive use of force by a police officer
              must be carefully distinguished from the
              well-guarded right to resist an arrest which
              is unlawful.     One resisting an illegal
              arrest is not resisting an officer within
                                    -19-


           the   discharge of   his  official duties.
           However, the right to use force to defend
           oneself against the excessive use of force
           during an arrest may arise despite the
           lawfulness of the arrest, and the use of
           excessive force does not render the arrest
           illegal.

State v. Anderson, 40 N.C. App. 318, 322, 253 S.E.2d 48, 51

(1979) (internal citations omitted).

     We further believe that Defendant was prejudiced by the

trial court’s failure to give a self-defense instruction as to

the charge relating to Officer Leahey.            Because a clear self-

defense instruction was given as to the charges relating to

Defendant’s    assaults    on   Officers     Feliciano   and    Snyder,   a

reasonable juror would have been left with the impression that

Defendant’s right of self-defense was significantly greater as

to the charges relating to these officers than as to the charge

involving Officer Leahey.        Moreover, the jury was likely also

left with the erroneous impression that Defendant did not have

any right of self-defense at all as to Officer Leahey if it

found   that   Officer   Leahey’s   arrest   of   Defendant    was   lawful.

Accordingly, we conclude that Defendant is entitled to a new

trial on the charge of assault on a law enforcement officer

inflicting serious injury (13 CRS 71106).1

                                Conclusion

1
  Because Defendant’s conviction on this offense was consolidated
for judgment with his conviction on the charge of simple assault
on Officer Snyder (13 CRS 71104), we remand for resentencing.
                                -20-


    For   the   reasons   stated   above,     we   vacate    Defendant’s

conviction on the charge of assault on a law enforcement officer

inflicting serious injury (13 CRS 71106) and remand for a new

trial solely as to that charge.         As to Defendant’s conviction

for simple assault (13 CRS 71104), we find no error.

    NO ERROR IN PART;     NEW   TRIAL    IN   PART;   AND   REMANDED   FOR
    RESENTENCING.

    Judges ELMORE and McCULLOUGH concur.

    Report per Rule 30(e).
