IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-816
Filed: 18 April 2017
Watauga County, No. 15 CRS 51160
STATE OF NORTH CAROLINA
v.
DANIEL MYLETT, Defendant
Appeal by defendant from judgment entered 31 March 2016 by Judge Alan Z.
Thornburg in Watauga County Superior Court. Heard in the Court of Appeals 9
February 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Kevin G.
Mahoney, for the State.
Arnold & Smith, PLLC, by Laura M. Cobb, for defendant-appellant.
MURPHY, Judge.
Daniel Mylett (“Defendant”) appeals from his conviction for assault on a
government officer. On appeal, he contends that the trial court erred by (1) denying
his motion for a continuance; and (2) denying his motions to dismiss. Specifically, he
argues that the trial court should have granted his motion for a continuance so that
he could prepare a motion to dismiss on the basis that video footage of the assault
recorded on officers’ body cameras was destroyed prior to trial in violation of Brady
v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215 (1963).
STATE V. MYLETT
Opinion of the Court
He further asserts that, because he did not intend to assault a government
officer, but instead intended to assault civilians standing behind the officer, the
charge of assault on a government officer in violation of N.C.G.S. § 14-33(c)(4) (2015)
was erroneously submitted to the jury as the State failed to establish the requisite
intent element of the offense. After careful review, we reject Defendant’s arguments
and conclude that he received a fair trial free from error.
Factual Background
At 1:37 a.m. on 29 August 2015, Officer Jason Lolies (“Officer Lolies”) and
Officer Forrest (“Officer Forrest”) with the Boone Police Department responded to a
call regarding a male who was bleeding from his head at 200 Misty Lane in Boone,
North Carolina. Upon arriving at the Misty Lane address, Officers Lolies and Forrest
encountered several hundred individuals, most of whom were college-aged.
Officer Lolies recalled that “[a]s we got to the crest of the hill, the driveway,
that’s when we heard a commotion and it sounded like some arguments, some
screaming, some fighting sort of” coming from a smaller group of approximately 30
individuals. Upon investigation, Officer Lolies observed “people pushing and shoving
over top of [Defendant]” who was “laying on the ground.” Officer Lolies continued
that “[i]t appeared that some of the people were trying to defend [Defendant] and
there was obviously people trying to attack him[.]”
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Opinion of the Court
The officers moved in to break up the altercation, and, after subduing the
combatants, were approached by Defendant’s girlfriend, Kathryn Palmer (“Palmer”),
who informed them that Defendant was bleeding from his head. Officer Lolies then
went over to Defendant and observed that both of Defendant’s eyes were bleeding and
that he had bruising and a large knot developing over his left eye.
Defendant then jumped up from the ground where he was lying, acted
aggressively towards Officer Lolies, and told him “to do [his] motherfucking job.”
While Defendant was yelling at him, Officer Lolies detected a strong odor of alcohol
on his breath. Defendant then explained to Officer Lolies that the reason he had been
beaten was because he had tried to stop Palmer from dancing with another man.
Shortly thereafter, Officer Dennis O’Neal (“Officer O’Neal”) arrived on the
scene to assist Officers Lolies and Forrest. Officers Lolies and Forrest attempted to
question several other individuals on hand, but were unable to do so because
“[Defendant] was pretty erratically challenging people to fights. He would call them
pussies, just very loud” and “[h]e charged at a couple of people a couple of different
times and Officer Forrest, and eventually when Officer O’Neal arrived on the scene
they would restrain him to prevent him from doing that.” Defendant continued to
verbally berate Officers Lolies, Forrest, and O’Neal by “telling [them] as law
enforcement officers to do [their] . . . motherfucking jobs.”
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Opinion of the Court
The officers called for an ambulance for Defendant, and, upon its arrival,
Officer O’Neal directed Defendant into the back of the vehicle. Defendant initially
complied, but proceeded to exit abruptly from the ambulance. Defendant resumed
swearing at the officers and challenging nearby individuals to fight him.
Officer O’Neal positioned himself between Defendant and these individuals
and at that point Defendant “attempted to spit at folks that were walking behind,
behind [Officer O’Neal’s] location, over [his] shoulder.” Defendant’s spit made contact
with the left side of Officer O’Neal’s face and shirt. Defendant spat two additional
times, despite Officer O’Neal ordering him to stop, again hitting Officer O’Neal in his
face and on his shirt.
Officer O’Neal ultimately corralled Defendant back into the ambulance and
rode with him to Watauga Medical Center to receive treatment for his injuries.
Defendant continued swearing at and verbally berating Officer O’Neal in the
ambulance and at one point “stood up in the back of . . . the ambulance, off the gurney,
and began punching the interior walls of the ambulance” prompting Officer O’Neal to
restrain him until they reached the hospital. Later that day, a warrant was issued
and Defendant was arrested for assault on a government officer in connection with
his spitting on Officer O’Neal.
Prior to Defendant’s district court trial, his original trial counsel received
copies of video recordings taken on the officers’ body-cams of the events surrounding
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Opinion of the Court
the 29 August 2015 altercation at 200 Misty Lane. However, counsel opted not to
obtain copies or use the footage at trial. After counsel’s review, the original recordings
were destroyed in accordance with the Boone Police Department’s evidence retention
schedule.
On 9 November 2015, Defendant was tried before the Honorable Rebecca E.
Eggers-Gryder in Watauga County District Court. That same day, Judge Eggers-
Gryder found Defendant guilty of assault on a government officer and sentenced him
to 60 days imprisonment, suspended sentence, and placed him on 12 months
supervised probation. On 12 November 2015, Defendant appealed to superior court
for a trial de novo.
A jury trial was held in Watauga County Superior Court before the Honorable
Alan Z. Thornburg from 29 March 2016 through 31 March 2016. Prior to the jury
being empaneled, Defendant’s new trial counsel moved for a continuance on the
ground that counsel wished to prepare a motion to dismiss since the video recordings
of the events of 29 August 2015 taken on the officers’ body cameras had been
destroyed and were therefore unavailable for use by the defense. After hearing
arguments from defense counsel and the State, the trial court ultimately denied the
motion. Significantly, no motion was filed in District Court relating to the videos and
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STATE V. MYLETT
Opinion of the Court
defense counsel did not move to dismiss on this ground in the four and a half months
prior to the trial in Superior Court.1
At trial, the State proceeded on a theory of transferred intent as to the assault
on an government officer charge. To this end, it elicited testimony from, among other
witnesses, Officers Lolies and O’Neal.
Officer O’Neal testified as follows concerning the spitting incident:
Q. I’m sorry -- but was he just talking loudly and a little bit
of spit came out or was he actually projecting spit?
A. He was attempting -- or projected, projecting spit
attempting to hit folks that were walking behind me.
Q. And when it hit you was it just a little driplet (sic) or
was it a lot of liquid?
A. If you know it was like the, you know, what a sneeze
feels like, you know, a sneeze will make you feel the
droplets on your face and you can see you got some stuff on
your shirt.
Q. And how about the third time, did that hit you?
A. Yes, sir, it did, but it was, there wasn’t near as much,
you know, liquid, or I couldn’t feel as much on the third
time.
....
Q. And what did you do at that point?
1Although appellate counsel for Defendant argued for the first time at oral argument that
Defendant’s original counsel had subpoenaed the videos, the record is silent as to the issuance of any
subpoenas by Defendant at any stage.
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Opinion of the Court
A. I asked him to stop. I said, please stop, you know, I
commanded, you know, stop spitting.
Q. And the second time did you hear the sound beforehand?
A. Yes.
Q. All right. And where did you get hit?
A. It would have been right here on my uniform shirt.
Q. Did any of it actually go over your shoulder?
A. Sir, I don’t know that.
Q. And the third time you said was it still --
A. Yes.
Q. And was he trying to kind of get around you to spit?
A. Yes, yes he was.
Officer Lolies, in turn, testified as follows concerning the spitting incident:
Q. So I think I asked you, what happened, did anything
draw your attention to Officer O’Neal and the Defendant
at some point later, once the ambulance arrived?
A. Yes, sir. I had three people over here, basically detained
at this point, but I intended on placing them under arrest
when I got the chance. And I was dealing with them,
especially the one that ran so much. But I heard Officer
O’Neal, who was dealing with [Defendant] at the time, ask
the question to the effect of, I don’t remember the exact
words, but did you just spit on me.
Q. And what did you do when you heard that?
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Opinion of the Court
A. I looked over at Officer O’Neal, made sure he was okay,
I didn’t go over there and assist him or anything, but I just
kept my eye on them to watch them to make sure that they
were okay. And I continued to deal with these three people
here.
Q. Did you see Officer O’Neal right after he said that do
anything?
A. He made a gesture across the top of his uniform.
Q. And what did that gesture appear to you to be?
MR. ISAACS: Objection.
THE COURT: Overruled.
A. It appeared to me that he was wiping something off of
his uniform.
Q. Could you tell if anyone else was around Officer O’Neal
and the defendant when that incident occurred?
A. There was some other people around, I feel like it may
have been his girlfriend and his brother, and there seemed
to be two males who were giving this information in
support of [Defendant’s] statements and sort of his
recollection of events, but there was also some people from
the opposing party gathered around. And it seemed to me
that these people in the background were taunting each
other.
Q. And the people that you thought were taunting each
other for the opposing party, where were they standing in
relation to Officer O’Neal?
A. They were all around. We were intermingled with all
these people.
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Opinion of the Court
Defendant moved to dismiss the charge of assault on a government officer at
the close of the State’s evidence and renewed his motion at the close of all the
evidence. The trial court denied both motions.
The jury found Defendant guilty of assault on a government officer. The trial
court sentenced Defendant to ten days imprisonment to be served over five
consecutive weekends and ordered Defendant to pay costs in the amount of $1,657.50.
It is from this judgment that Defendant appeals.
Analysis
I. Motion for Continuance
Defendant initially argues on appeal that the trial court erred by denying his
motion for a continuance. Specifically, Defendant claims he should have been allowed
additional time to file a motion due to the destruction of the officers’ body camera
video recordings of the events of 29 August 2015 amounting to a Brady violation. We
disagree. “A motion for a continuance is generally a matter within the trial court’s
discretion, and a denial is not error absent an abuse of that discretion. Defendant,
therefore, bears the burden of showing that the trial court’s ruling was so arbitrary
that it could not have been the result of a reasoned decision.” State v. Carter, 184
N.C. App. 706, 711, 646 S.E.2d 846, 850 (2007) (internal citations and quotation
marks omitted). The trial court did not abuse its discretion.
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Opinion of the Court
“In Brady, the United States Supreme Court held that suppression by the
prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution. This includes evidence known only to police
investigators and not to the prosecutor. The duty to disclose such evidence is
applicable even though there has been no request by the accused.” State v. Dorman,
225 N.C. App. 599, 620, 737 S.E.2d 452, 466 (internal citations, quotation marks, and
brackets omitted), appeal dismissed and disc. review denied, 366 N.C. 594, 743 S.E.2d
205 (2013).
To establish a Brady violation, a defendant must show (1)
that the prosecution suppressed evidence; (2) that the
evidence was favorable to the defense; and (3) that the
evidence was material to an issue at trial. Favorable
evidence can be either exculpatory or useful in impeaching
the State’s evidence. Evidence is considered material if
there is a reasonable probability of a different result had
the evidence been disclosed. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome. However, when the evidence is only potentially
useful or when no more can be said of the evidence than
that it could have been subjected to tests, the results of
which might have exonerated the defendant, the State’s
failure to preserve the evidence does not violate the
defendant’s constitutional rights unless a defendant can
show bad faith on the part of the State.
Id. at 620-21, 737 S.E.2d at 466 (internal citations, quotation marks, and brackets
omitted).
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Opinion of the Court
In the present case, the record clearly establishes that the recordings at issue
were erased in routine conformity with the Boone Police Department’s evidence
retention schedule. It is undisputed that prior to their destruction, the recordings
were reviewed by both Defendant’s original counsel2 and the prosecutor. Defense
counsel’s decision not to make or preserve copies of the videos — regardless of
counsel’s reason for declining to do so — cannot serve as a basis for arguing a Brady
violation was committed by the State. See State v. Jennings, 333 N.C. 579, 604, 430
S.E.2d 188, 200 (“The law is . . . clear, however, that ‘[a] defendant is not prejudiced
. . . by error resulting from his own conduct.’ ” (quoting N.C.G.S. § 15A-1443(c))), cert.
denied, 510 U.S. 1028, 126 L. Ed. 2d 602 (1993). Consequently, as nothing in the
record tends to demonstrate that the Boone Police Department or the State
suppressed evidence or otherwise acted in bad faith, Defendant has failed to carry his
burden in establishing a due process violation under Brady.
In addition to Defendant’s inability to demonstrate that a Brady violation
occurred, it is also worth emphasizing that he has failed to establish precisely how a
continuance would have enabled him to better prepare for trial given that it is
undisputed that no copies of the videos remain in existence. Therefore, as a
functional matter, the granting of a continuance by the trial court would have served
2 Although the record is vague on this point, it appears that Defendant’s original counsel,
Shannon Aldous, was replaced as counsel by Kenneth D. Isaacs sometime after Defendant was found
guilty in District Court and prior to his trial de novo in Superior Court.
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Opinion of the Court
no operative purpose. See State v. Gray, 234 N.C. App. 197, 201-02, 758 S.E.2d 699,
702-03 (2014) (“To establish that the trial court’s failure to give additional time to
prepare constituted a constitutional violation, defendant must show how his case
would have been better prepared had the continuance been granted or that he was
materially prejudiced by the denial of his motion.” (citation and quotation marks
omitted)), disc. review improvidently allowed, 368 N.C. 324, 776 S.E.2d 681 (2015).
For all of these reasons, the trial court did not err in denying Defendant’s
motion for a continuance. Defendant’s arguments on this issue are meritless.
II. Assault on a Government Officer
Defendant’s final argument on appeal is that the trial court erred by denying
his motions to dismiss the charge of assault on a government officer. Specifically,
Defendant contends that, because the evidence at trial tended to establish that he
intended to assault civilians standing behind Officer O’Neal and not Officer O’Neal
himself, the State failed to establish the knowledge element of N.C.G.S. § 14-33(c)(4).
We disagree.
The trial court’s denial of a motion to dismiss is reviewed
de novo on appeal. Upon defendant’s motion for dismissal,
the question for the Court is 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. If so, the
motion is properly denied.
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Opinion of the Court
State v. Williams, __ N.C. App. __, __, 784 S.E.2d 232, 233 (citation omitted), disc.
review denied, __ N.C. __, 792 S.E.2d 503 (2016).
N.C.G.S. § 14-33(c)(4) provides that
(c) Unless the 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 Class A1 misdemeanor if, in the course of the
assault, assault and battery, or affray, he or she:
....
(4) Assaults an officer or employee of the State or
any political subdivision of the State, when the
officer or employee is discharging or attempting to
discharge his official duties[.]
“It is well established that this Court’s principal aim when interpreting
statutes is to effectuate the purpose of the legislature in enacting the statute, and
that statutory interpretation properly begins with an examination of the plain words
of the statute.” State v. Williams, 232 N.C. App. 152, 158, 754 S.E.2d 418, 423
(internal citations, quotation marks, and brackets omitted), appeal dismissed and
disc. review denied, 367 N.C. 784, 766 S.E.2d 846 (2014).
It is fundamental that
[t]he primary objective of statutory interpretation is to
ascertain and effectuate the intent of the legislature. If the
language of the statute is clear and is not ambiguous, we
must conclude that the legislature intended the statute to
be implemented according to the plain meaning of its
terms. Thus, in effectuating legislative intent, it is our
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Opinion of the Court
duty to give effect to the words actually used in a statute
and not to delete words used or to insert words not used.
Lunsford v. Mills, 367 N.C. 618, 623, 766 S.E.2d 297, 301 (2014) (internal citations
and quotation marks omitted). Moreover, “[w]here . . . the General Assembly includes
particular language in one section of a statute but omits it in another section of the
same Act, it is generally presumed that the legislative body acts intentionally and
purposely in the disparate inclusion or exclusion.” Comstock v. Comstock, __ N.C.
App. __, __, 780 S.E.2d 183, 186 (2015) (citation, quotation marks, and brackets
omitted).
Significantly, the Legislature did not choose to include a reference to intent in
authoring N.C.G.S. § 14-33(c)(4) despite the fact that it did so in other sections of
Article 8, Subchapter III of Chapter 14 of the North Carolina General Statutes
concerning criminal assaults. See, e.g., N.C.G.S. § 14-32(a) (2015) (“Any person who
assaults another person with a deadly weapon with intent to kill and inflicts serious
injury shall be punished as a Class C felon.” (emphasis added)). Nor has this Court
specifically delineated a scienter requirement in its discussion of the offense of
assault on a government officer. Instead, we have simply stated that “[t]he essential
elements of a charge of assault on a government official are: (1) an assault (2) on a
government official (3) in the actual or attempted discharge of his duties.” State v.
Noel, 202 N.C. App. 715, 718, 690 S.E.2d 10, 13, disc. review denied, 364 N.C. 246,
699 S.E.2d 642 (2010).
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Opinion of the Court
Defendant concedes that he did, in fact, commit an assault and that Officer
O’Neal was a law enforcement officer discharging his duty. Therefore, we need only
address whether assault on a government officer in violation of N.C.G.S. § 14-33(c)(4)
is a general intent or, alternatively, a specific intent crime.
Nonetheless, Defendant maintains that, even assuming he knew that Officer
O’Neal was a police officer discharging a duty of his office at the time of the assault,
the State failed to provide sufficient evidence that he intended to assault Officer
O’Neal. Essentially, he asserts that all of the evidence tended to show that he
intended to assault one or more civilians standing behind Officer O’Neal, and not
Officer O’Neal himself, thereby precluding him from being found guilty of the offense
of assault on a government officer.
We find our Supreme Court’s decision in State v. Page, 346 N.C. 689, 488
S.E.2d 225 (1997), cert. denied, 522 U.S. 1056, 139 L. Ed. 2d 651 (1998), instructive
on this point. In Page, the defendant was convicted of first-degree murder and assault
with a deadly weapon on government officers for firing a high-powered rifle at several
officers, one of whom was hit and subsequently died from his gunshot wound. Id. at
692-94, 488 S.E.2d at 228. At trial, Page asserted that he was suffering from post-
traumatic stress disorder at the time he shot at the officers and requested a jury
instruction on diminished capacity in order to attempt to repudiate the knowledge
element of N.C.G.S. § 14-34.2. Id. at 694, 488 S.E.2d at 229. The trial court declined
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Opinion of the Court
to provide such an instruction and Page was ultimately sentenced to death. Id. at
698, 488 S.E.2d at 231.
On direct appeal to our Supreme Court, Page argued that the jury should have
been instructed on diminished capacity in order to negate the knowledge element of
N.C.G.S. § 14-34.2. The Court rejected this argument stating the following:
This Court has held that knowledge that the victim is an
officer or employee of the State is an essential element of
this offense. State v. Avery, 315 N.C. 1, 31, 337 S.E.2d 786,
803 (1985).
[Page] argues that the diminished-capacity defense should
be available to negate the knowledge element required by
Avery. This argument is without merit. We allow
defendants to assert diminished mental capacity as a
defense to a charge of premeditated and deliberate murder
because we recognize that some mental conditions may
impede a defendant’s ability to form a specific intent to kill.
See Shank, 322 N.C. at 250-51, 367 S.E.2d at 644. This
reasoning is not applicable to the knowledge element of the
felony of assault with a deadly weapon on a government
officer. Knowledge of the victim’s status as a government
officer is simply a fact that the State must prove; it is not a
state of mind to which the diminished-capacity defense may
be applied. In this case, the State presented evidence
tending to prove this fact. The trial court properly
instructed the jury that, in order to convict [Page] of these
charges, it must find that [Page] “knew or had reasonable
grounds to know” that the victims were officers performing
official duties. The State’s evidence indicated that
uniformed police officers and marked police cars were
directly in [Page’s] line of vision. Several officers testified
that defendant shot in their direction. Also, defendant’s ex-
girlfriend testified that she received a telephone call from
[Page] in which he stated that his apartment was
surrounded by police officers. This evidence was sufficient
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Opinion of the Court
to support the jury’s conclusion that the knowledge
element of assault with a deadly weapon on a government
officer was satisfied.
[Page] argues further that the diminished-capacity defense
should be available to negate the state of mind required for
defendant to be convicted of a violation of N.C.G.S. 14-34.2.
“In order to return a verdict of guilty of assault with a
firearm upon a law enforcement officer in the performance
of his duties, the jury is not required to find the defendant
possessed any intent beyond the intent to commit the
unlawful act, and this will be inferred or presumed from
the act itself.” State v. Mayberry, 38 N.C. App. 509, 513,
248 S.E.2d 402, 405 (1978). Thus, this felony may be
described as a general-intent offense.
Id. at 699-700, 488 S.E.2d at 232 (emphasis added).
While Page concerns an assault with a deadly weapon on a government officer,
we find its reasoning to be equally applicable to the offense of assault on a government
officer. Indeed, the only substantive difference between N.C.G.S. § 14-33(c)(4) and
N.C.G.S. § 14-34.2 is that the latter requires that the assault be committed with a
firearm. We therefore hold, in accordance with Page, that assault on a government
officer is a general intent crime. As such, we are satisfied that when Defendant spat
at members of the crowd and Officer O’Neal was struck by Defendant’s spit, the
requirements of N.C.G.S. § 14-33(c)(4) were satisfied as, for the reasons stated above,
the State clearly established — and indeed Defendant conceded at oral argument —
that Defendant knew Officer O’Neal was a law enforcement officer and Defendant
intended to commit an assault.
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Opinion of the Court
Were we to endorse Defendant’s argument and construe N.C.G.S. § 14-33(c)(4)
as necessitating specific intent — as opposed to general intent — the intrinsic purpose
of the statute would necessarily be defeated. Therefore, we expressly hold that the
knowledge element of assault on a government officer in violation of N.C.G.S. § 14-
33(c)(4) is satisfied whenever a defendant while in the course of assaulting another
individual instead assaults an individual he knows, or reasonably should know, is a
government officer. Defendant’s argument on this issue is consequently dismissed.
Conclusion
For the reasons stated above, we conclude that Defendant received a fair trial
free from error.
NO ERROR.
Chief Judge McGEE and Judge DAVIS concur.
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