State v. Raynor

236 S.E.2d 307 (1977)

33 N.C. App. 698

STATE of North Carolina v. Gary W. RAYNOR.

No. 774SC158.

Court of Appeals of North Carolina.

July 20, 1977.

*308 Atty. Gen. Rufus L. Edmisten, by Special Deputy Atty. Gen., John R. B. Matthis, Raleigh, for the State.

Billy Sandlin, Hamilton & Sandlin, Jacksonville, for defendant-appellant.

MORRIS, Judge.

In his sole assignment of error brought forward on appeal, defendant contends that the trial court erred in overruling his motion for judgment as of nonsuit as to the charges of resisting arrest and assault on a police officer.

Of course, it is well settled in North Carolina that a person has a right to resist an unlawful arrest. State v. Mobley, 240 N.C. 476, 83 S.E.2d 100 (1954); State v. Williams, 32 N.C.App. 204, 231 S.E.2d 282 (1977); State v. Allen, 14 N.C.App. 485, 188 S.E.2d 568 (1972). G.S. 15A-401(b) sets forth the instances in which a police officer may legally make an arrest without a warrant.

"(1) Offense in Presence of Officer.An officer may arrest without a warrant any person who the officer has probable cause to believe has committed a criminal offense in the officer's presence. (2) Offense Out of Presence of Officer.An officer may arrest without a warrant any person who the officer has probable cause to believe: a. Has committed a felony; or b. Has committed a misdemeanor, and: 1. Will not be apprehended unless immediately arrested, or 2. May cause physical injury to himself or others, or damage to property unless immediately arrested."

Defendant argues that his warrantless arrest was unlawful because there was no evidence showing that he committed a criminal offense in the officer's presence within G.S. 15A-401(b)(1). We cannot agree. Although Officer Acevedo did not quote defendant's precise language to the jury, he did testify that defendant "was cursing and threatening Mr. Nail", "kept using abusive language" and said that "he was going to get" Nail. Thus, the threats to the cab driver and defendant's profane language were continued by defendant in the presence of Officer Acevedo. We believe, and so hold, that this evidence was sufficient to sustain the legality of defendant's *309 arrest for disorderly conduct. Therefore, defendant had no right to resist, and the trial judge did not err in denying the motions for nonsuit on the charges stemming from the arrest.

However, this appeal presents an additional problem not raised by defendant. The citation in No. 76CR13385 alleged that:

". . . on or about Sat. 3:40 a. m. the 21 day of Aug., 1976 in the named county, the named defendant did unlawfully and wilfully assault a police officer to wit: by striking officers G. Acevedo and R. Paul on chest and hands of both said officers while said officers were discharging a duty of this office to wit discharging arresting the defendant for disorderly conduct."

The citation in No. 76CR13386 (after allegations sufficient to support a charge of disorderly conduct) alleged that:

". . . on or about Sat. 3:40 a. m., the 21 day of Aug. 1976, in the named county, the named defendant did unlawfully and wilfully resist arrest to wit by kicking and punching officers G. Acevedo and Roger Paul while they were discharging a duty of their office to wit arresting defendant for disorderly conduct."

Moreover, the record reveals that defendant was convicted of both resisting arrest and assault on an officer in the performance of his duties on the same evidence.

In this situation, the State should have been required to elect between the two charges at the close of all the evidence. Its failure to do so, and the subsequent judgments of guilty on both charges, resulted in defendant's being twice convicted and sentenced for the same criminal offense. Nor does the fact that defendant was given concurrent sentences make the duplication of punishment and sentences any less a violation of defendant's constitutional right not to be put in jeopardy twice for the same offense. State v. Summrell, 282 N.C. 157, 192 S.E.2d 569 (1972). Accordingly, the citation charging defendant with assault on a police officer in the performance of his duties is quashed, the verdict is set aside as to that charge and the judgment entered thereon is vacated. State v. Summrell, supra; State v. Hatcher, 277 N.C. 380, 177 S.E.2d 892 (1970).

As to defendant's convictions for disorderly conduct and resisting arrest in No. 76CR13386, we find no error.

As to defendant's conviction for assault on a police officer in the performance of his duties in No. 76CR13385, the conviction is set aside and the judgment is vacated.

PARKER and CLARK, JJ., concur.