An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA05-747
NORTH CAROLINA COURT OF APPEALS
Filed:
7 March 2006
STATE OF NORTH CAROLINA
v.
McDowell County
No. 04 CRS 50534
GREGORY S. PRINGLE
Appeal by defendant from judgment entered 3 February 2005 by
Judge Laura J. Bridges in McDowell County Superior Court. Heard in
the Court of Appeals 16 January 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Lisa H. Graham, for the State.
William D. Auman, for defendant-appellant.
ELMORE, Judge.
Defendant was convicted of malicious conduct by a prisoner.
He was sentenced to an active term of 17 to 21 months to run at the
expiration of a sentence he was serving.
The indictment charged that on 14 February 2004 defendant
“willfully and feloniously did knowingly cause to be used as a
projectile, bodily fluid, at Shawn Presnell, who was performing his
duties of cell search, as an employee of the North Carolina
Department of Correction.”
The State’s evidence tended to show on 14 February 2004
defendant was housed in the segregation unit of Marion Correctional
-2Institution.
Sergeant
Charles
E.
Hoerig
(Sgt.
Hoerig),
the
correctional sergeant in charge of the segregation unit, went to
defendant’s
cell
disturbance.
to
investigate
why
defendant
was
causing
a
After defendant cursed and threatened Sgt. Hoerig
with bodily harm,
Sgt. Hoerig directed Correctional Officer Shawn
Presnell (Officer Presnell) to place defendant in restraints and
move him to a holding cell so defendant’s cell could be searched
for any possible weapons defendant could use to carry out his
threats.
In searching defendant’s vacated cell for weapons, Officer
Presnell found a drawing of a suspected gang symbol.
members
often
have
tattoos,
whether he had any.
Officer
Presnell
Because gang
asked
defendant
Defendant refused to show the officer any
tattoos. As Officer Presnell turned to walk away, defendant called
Officer Presnell back to the holding cell.
Defendant directed the
officer’s attention to his left arm as if he had a tattoo there.
As Officer Presnell came within three feet of the holding cell,
defendant lunged forward and spit on Officer Presnell.
Officer
Presnell immediately reported the incident to Sgt. Hoerig.
Sgt. Hoerig observed spittle on Officer Presnell’s head, neck,
and
shoulder.
Sgt.
Hoerig
then
notified
Lieutenant
Michael
Arrowood (Lt. Arrowood), the officer in charge of the facility that
day, about the incident.
Lt. Arrowood, Sgt. Hoering and a third
officer went to the holding cell to question defendant about the
matter.
Defendant
denied
spitting
on
Officer
Presnell.
As
defendant was being returned to his cell, defendant lunged at Sgt.
-3Hoerig and struck the him on the side of his face.
Lt. Arrowood
grabbed defendant and forced him to the floor. Defendant threw his
head back and struck Lt. Arrowood’s right cheekbone.
Two other
officers ultimately subdued defendant by spraying him with pepper
spray.
At trial, defendant and another inmate testified that
defendant did not spit on Officer Presnell.
Defendant first contends the court erred by denying his motion
in limine to exclude evidence of the assaults on Sgt. Hoerig and
Lt. Arrowood.
He contends the evidence should have been excluded
pursuant to Rule 403 of the Rules of Evidence because the probative
value, if any, of the evidence was outweighed by the danger of
unfair prejudice.
Defendant did not object to admission of the evidence when it
was received at trial.
Consequently, he waived his right to
challenge the admissibility of the evidence on appeal.
v. Tutt,
See State
N.C. App. ___, ___, 615 S.E.2d 688, 692-93 (2005).
Nonetheless, because defendant’s failure to object may have been in
reliance upon the amendment to Rule 103 ruled unconstitutional by
this Court in Tutt, we apply Appellate Rule 2 and consider whether
the evidence was properly admitted.
Id.
Evidence is relevant and admissible if it has “any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence.”
(2005).
N.C. Gen. Stat. § 8C-1, Rule 401
“Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair
-4prejudice, confusion of the issues, or misleading the jury, or by
considerations
of
undue
delay,
waste
of
time,
or
needless
presentation of cumulative evidence.” N.C. Gen. Stat. § 8C-1, Rule
403.
The decision whether to exclude evidence on the ground the
probative value of the evidence is outweighed by unfair prejudice
or confusion of the issues is addressed to the sound discretion of
the trial judge.
State v. Mason, 315 N.C. 724, 731, 340 S.E.2d
430, 435 (1986). A discretionary decision will not be disturbed by
an
appellate
court
unless
it
is
manifestly unsupported by reason.
shown
that
the
decision
is
State v. Parker, 315 N.C. 249,
258-59, 337 S.E.2d 497, 502-03 (1985).
To convict a defendant of malicious conduct by a prisoner, the
State must prove that the defendant acted knowingly and willfully.
State v. Robertson, 161 N.C. App. 288, 293, 587 S.E.2d 902, 905
(2003).
The court’s charge to the jury made it clear that in order
to find defendant guilty, the jury had to find defendant knowingly
and
willfully
projected
a
bodily
fluid
on
Officer
Presnell.
Evidence that the defendant assaulted two officers in the same
facility within minutes after defendant committed the charged
offense
against
Officer
Presnell
made
it
more
probable
that
defendant acted knowingly and willfully in spitting on Officer
Presnell.
We find no abuse of discretion.
Defendant next contends the court erred by denying his motion
to dismiss for insufficient evidence.
In deciding a motion to
dismiss, the trial court determines whether there is substantial
evidence to establish each element of the offense charged and to
-5identify the defendant as the perpetrator. State v. Earnhardt, 307
N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982).
The trial court must
consider the evidence in the light most favorable to the State,
giving it the benefit of every reasonable inference that may be
drawn from the evidence.
State v. Brown, 310 N.C. 563, 566, 313
S.E.2d 585, 587 (1984).
To
withstand
a
motion
to
dismiss
a
charge
conduct by a prisoner, the State must show:
of
malicious
(1) the defendant
threw, emitted, or caused to be used as a projectile a bodily fluid
or excrement at the victim; (2) the victim was a State or local
government employee; (3) the victim was performing his or her
duties at the time the fluid or excrement was released; (4) the
defendant acted knowingly and willfully; and (5) the defendant was
in the custody of the Department of Correction, the Department of
Juvenile Justice and Delinquency Prevention, any law enforcement
officer, or any local confinement facility.
App. 288, 293, 587 S.E.2d 902, 905 (2003).
Robertson, 161 N.C.
We hold the State
presented sufficient evidence to establish each of these elements,
and therefore overrule this assignment of error.
Defendant last contends that the running of the sentence
consecutive to the sentence he was already serving constituted an
invalid enhancement of sentence not based upon a jury finding.
Defendant’s contention is not supported by the facts or law.
Improper enhancement of a sentence occurs when a court increases
the term for the offense being sentenced based upon a judicial
finding of a factor in aggravation.
See State v. Allen, 359 N.C.
-6425, 438-39, 615 S.E.2d 256, 265-66 (2005).
The court did not
enhance defendant’s sentence for the instant conviction based upon
any judicial finding of aggravating factors.
The court imposed a
sentence within the presumptive range.
We hold defendant’s trial and sentence are free of prejudicial
error.
No error.
Judges McCULLOUGH and TYSON concur.
Report per Rule 30(e).
