STATE of North Carolina
v.
Thomas E. ROWLAND.
No. 819SC388.
Court of Appeals of North Carolina.
November 3, 1981.*544 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Richard L. Kucharski, Raleigh, for the State.
Ramsey, Hubbard & Galloway by Mark E. Galloway and Burke & King by Ronnie P. King, Roxboro, for defendant-appellant.
*545 HEDRICK, Judge.
Defendant assigns as error the court's failure to grant his timely motions as of nonsuit. G.S. § 14-33 in pertinent part provides:
(b) Unless his 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 misdemeanor punishable by a fine, imprisonment for not more than two years, or both such fine and imprisonment if, in the course of the assault, assault and battery, or affray, he:
. . . . .
(4) Assaults a law-enforcement officer... while the officer ... is discharging or attempting to discharge a duty of his office.
The evidence is clearly sufficient to require submission of the case to the jury on the charge that defendant violated G.S. § 14-33(b)(4). The State offered evidence tending to show that W. C. Chandler was a law enforcement officer, that he identified himself as such to defendant, that he was in the performance of his duty as an officer, and that defendant assaulted him by hitting him in the face.
Defendant's fifth assignment of error has no merit.
By his fourth assignment of error, the defendant contends the court erred in not submitting to the jury as a possible verdict the lesser included offense of simple assault. It is well settled in this State that when a defendant is indicted for a criminal offense he may be convicted of the offense charged or of a lesser included offense when the greater offense in the bill includes all the essential elements of the lesser offense. State v. Snead, 295 N.C. 615, 247 S.E.2d 893 (1978). Further,
[w]hen there is conflicting evidence of the essential elements of the greater crime and evidence of a lesser included offense, the trial judge must instruct on the lesser included offense even where there is no specific request for such instruction. An error in this respect will not be cured by a verdict finding a defendant guilty of the greater crime.
State v. Brown, 300 N.C. 41, 50, 265 S.E.2d 191, 197 (1980) [Emphasis added.]
In the present case, the charge set out in the warrant embodies the lesser included offense of simple assault. Each element of simple assault is included in the charge of assaulting an officer in the performance of his duty, G.S. § 14-33(b)(4). In State v. Mayberry, 38 N.C.App. 509, 248 S.E.2d 402 (1978), this Court discussed whether the trial court erred in not instructing the jury on the lesser included offense of assault when defendant had been charged with assault with a firearm upon a law enforcement officer. The Court there stated:
The State's uncontroverted evidence in this case tended to show that the defendant pointed a shotgun in the direction of the Sheriff and was weaving back and forth.... The uncontroverted evidence of the State also indicated that the Sheriff was in the performance of his duties of investigating the alleged crime of assault with intent to commit rape. The State's evidence also indicated that the defendant had been previously arrested by the Sheriff and, therefore, knew he was a law enforcement officer....
No evidence before the trial court tended to indicate that the defendant did not know that the Sheriff was a law enforcement officer or that he was acting in the performance of his duties. No evidence of a lesser included offense having been presented, the trial court correctly declined to instruct the jury with regard to any lesser included offense.
State v. Mayberry, supra at 512, 248 S.E.2d at 404.
In the present case, there is plenary evidence from the defendant that he did not know that Chandler was a law enforcement officer, that the officer was not in uniform and had about him no indicia of official authority, that defendant repeatedly requested identification from Chandler but was not shown any, and that Chandler actually struck defendant about the head before defendant struck him.
*546 In order to obtain a conviction under G.S. § 14-33(b)(4), the burden is on the State to satisfy the jury from the evidence and beyond a reasonable doubt that the party assaulted was a law enforcement officer performing the duty of his office, and that the defendant knew his victim was a law enforcement officer. See State v. Atwood, 290 N.C. 266, 273-76, 225 S.E.2d 543, 547-48 (1976) (Exum, J., concurring) and State v. Powell, 141 N.C. 780, 53 S.E. 515 (1906). Therefore, since there was conflicting evidence in the record as to whether the defendant knew Chandler was a law enforcement officer, it was the duty of the trial judge to submit to the jury the possible verdict of simple assault.
New trial.
CLARK and HARRY C. MARTIN, JJ., concur.