State v. McLean, COA23-1100, ___ N.C. App. ___ (Aug. 6, 2024)

In this Rowan County case, defendant appealed his conviction for assault inflicting physical injury on an employee of a state detention facility, arguing the jury should have been instructed on the lesser included offense of assault on an officer or employee of the State. The Court of Appeals disagreed, finding no error. 

In March of 2021, defendant was confined at Piedmont Correctional Center. He became agitated because he did not receive the personal hygiene items he needed and began discussing the matter with correctional officers. Eventually, a sergeant asked him to leave his cell and walk to a private area to discuss. During the walk, defendant turned around and struck the sergeant in the face with his fist, leading to a tussle before defendant was subdued. At trial, a video recording of the incident was played for the jury, and the sergeant testified that he was struck “multiple times in the face, around six to ten times.” Slip Op. at 3. During the charge conference, defense counsel requested the lesser included offense, but the trial court denied the request. 

Before taking up the substance of defendant’s appeal, the Court of Appeals discussed the appellate jurisdiction for the case. Defendant gave notice of appeal in open court but gave this notice the day after the trial court sentenced him for the offense. The court considered what “at the time of trial” meant for purposes of the appeal. Id. at 5. After reviewing relevant precedent and appellate rules, the court concluded that defendant’s appeal was timely because he “provided notice of appeal in open court while the judgment was in fieri and the trial court possessed the authority to modify, amend, or set aside judgments entered during that session.” Id. at 8. 

Moving to the jury instruction, the court noted the distinction between the two offenses was the “physical injury” element not present in the lesser offense. The court found the physical injury element was sufficiently satisfied by the evidence showing defendant struck the sergeant in the face. Because the State supplied sufficient evidence of each element of the offense, there was no error in omitting the instruction on the lesser included offense.