State v. Norman

1

STATE OF NORTH CAROLINA v. KENDRICK ONEAL NORMAN, Defendant

No. COA23-697

Court of Appeals of North Carolina

November 19, 2024

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

Heard in the Court of Appeals 9 January 2024.

Appeal by Kendrick Norman from judgment entered 29 April 2022 by Judge G. Bryan Collins Jr. in Durham County, Nos.20CRS51940 21CRS1124-25, 21CRS54197, 21CRS54199 Superior Court.

Thomas Ferguson & Beskind, LLP, by Attorney Kellie Mannette, for the defendant-appellant.

Attorney General Joshua H. Stein, by Assistant Attorney General, Rana M. Badwan, for the State.

STADING, JUDGE

Kendrick Norman ("Defendant") appeals from a final judgment after a jury found him guilty of two counts of assault on a law enforcement officer inflicting physical injury, two counts of habitual assault, and one count of resisting delaying, or obstructing an officer ("RDO"). After careful review, we affirm the judgment.

I. Background

On 20 August 2021, several law enforcement officers from the Durham Police Department's Homicide Unit were investigating a report of a missing female at a local HomeTowne Inn and Suites. Each officer-Corporal Novotny, Investigator Williams, and Investigator Turner-arrived at separate times. All officers were visibly armed and wearing their police badges.

Upon the officers' arrivals, someone from a nearby group including Defendant began to heckle the officers. Investigator Williams heard one of the group members say "F*** the police," to which he responded, "we're not even here for you" as he continued towards the hotel's office. As the officers entered the hotel, Defendant approached Investigator Williams who reiterated his previous statement.

Meanwhile, Investigator Turner approached as Defendant was yelling at Investigator Williams. Upon the arrival of the other officers, Defendant persisted. Defendant shouted at Investigator Williams, "I'm not going to f****** talk to you." In response, the officers informed Defendant that "he was not being detained" and he was "free to leave at any time." Even so, Defendant persisted. Without engaging Defendant, Corporal Novotny instructed the officers to "just go inside the office" so they could continue their investigation. Defendant followed the officers and continued to heckle Investigator Williams, stating, "You're not sh*t without that badge." The officers entered the office and discussed the missing person's case with the hotel manager.

Defendant entered the office moments later and demanded the name and badge number of Investigator Williams. Corporal Novotny, the supervising officer, was not present during the first interaction between Defendant and Investigator Williams. In an attempt to understand Defendant's request, Corporal Novotny met Defendant at the office door. After some conversation, Corporal Novotny understood that Defendant wanted to file a complaint against Investigator Williams. To Defendant's dissatisfaction, Corporal Novotny offered his badge number and name, as the supervising officer. Defendant then struck Corporal Novotny, and a physical altercation ensued.

The other officers responded to Defendant's attack. During the struggle, Defendant swung his arms around and struck Investigator Williams on the head. Defendant put his arms around Investigator Turner's neck and bit his hand. Defendant also attempted to bite Corporal Novotny. The struggle lasted for more than three minutes before the officers were able to place Defendant in handcuffs. Subsequently, a medic responded to assist the injured parties. The altercation led to Investigators Williams and Turner requiring medical treatment. Investigator Williams received stitches for his head injury, and Investigator Turner was prescribed antibiotics for his bitten hand. The altercation prevented the officers from completing their investigation and another team was required to take their place.

A grand jury indicted Defendant for two counts of felony habitual misdemeanor assault, one count of felony assault inflicting physical injury on a law enforcement officer, one count of felony assault inflicting serious bodily injury on a law enforcement officer, and two counts of RDO. Defendant's trial commenced on 25 April 2022.

At the conclusion of Defendant's trial, the jury found him guilty of two counts of felony habitual misdemeanor assault, two counts of felony assault inflicting physical injury on a law enforcement officer, and one count of RDO. The trial court sentenced Defendant to two concurrent terms of thirty-six months' supervised probation with a special condition to serve two split sentences of four months each. Defendant timely entered his notice of appeal.

II. Jurisdiction

This Court has jurisdiction to consider Defendant's appeal under N.C. Gen. Stat. § 15A-1444 (2023) and N.C. Gen. Stat. § 7A-27(b) (2023).

III. Analysis

Defendant's appeal raises several issues for our consideration. We address each of Defendant's concerns below. After careful review, we discern no error.

A. Self-Defense Instruction

Defendant first contends that the trial court erred or plainly erred by instructing the jury that he was not entitled to use self-defense if he was committing or attempting to commit a felony. Defendant argues that this instruction was erroneous because the only felonies supported by the evidence were the assaults for which he claimed self-defense. Assuming Defendant preserved this issue for review, and assuming the trial court did commit error in its instruction, such error is not prejudicial.

During the charge conference, the trial court stated, "I do intend to list all of the circumstances that the State has asked me to list." Defense counsel responded, "Yes, sir," as the trial court continued explaining its intentions. The trial court completed its explanation and asked, "Does anyone have anything they want to say about that?" The discussion moved to other parts of the instructions when the State inquired about a footnote in N.C. P.I.-Crim 308.40, entitled "Self-Defense-Assaults Not Involving Deadly Force." Footnote nine of N.C. P.I.-Crim 308.40 states "Pursuant to N.C. Gen. Stat. § 14-51.4(1), self-defense is also not available to a person who used defensive force and who was [attempting to commit] [committing] [escaping after the commission of] a felony. If evidence is presented on this point, then the instruction should be modified accordingly pursuant to N.C. P.I.-Crim. 308.90 to add this provision at this point in the substantive instruction." (Brackets in original). In reference to this request, the trial court asked defense counsel, "What do you say, Mr. Wilson?" Defense counsel responded, "I'm not sure what power I have to stop it, so- but for the record, I'd say I'm not for that particular provision, Your Honor."

Considering the context of the exchange among the prosecution, defense counsel, and trial judge-our analysis assumes defense counsel's statement was sufficient to preserve the issue for appellate review. See State v. McLymore, 380 N.C. 185, 192, 868 S.E.2d 67, 73 ("[the defendant's] objection to the substance of the trial court's self-defense instruction was sufficient to preserve the causal nexus argument for appellate review."); see also N.C. R. App. P. 10(a)(1) ("In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.").

"Whether a jury instruction correctly explains the law is a question of law, reviewable by this Court de novo." State v. Barron, 202 N.C.App. 686, 694, 690 S.E.2d 22, 29 (2010) (citation omitted). While we review questions of law de novo, "an error in jury instructions is prejudicial and requires a new trial only if there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises." State v. Castaneda, 196 N.C.App. 109, 116, 674 S.E.2d 707, 712 (2009) (cleaned up). Defendant maintains that a felony committed in self-defense cannot disqualify one from asserting self-defense. N.C. Gen. Stat. § 14-51.4 (2023).

In McLymore, our Supreme Court held "to disqualify a defendant from justifying the use of force as self-defense pursuant to [ N.C. Gen. Stat.] § 14-51.4(1), the State must prove the existence of an immediate causal nexus between the defendant's disqualifying conduct and the confrontation during which the defendant used force." 380 N.C. at 197, 868 S.E.2d at 77. To do so, "[t]he State must introduce evidence that but for the defendant attempting to commit, committing, or escaping after the commission of a felony, the confrontation resulting in injury to the victim would not have occurred." Id. at 197-98, 868 S.E.2d at 77 (cleaned up). If the State introduces such evidence, the existence of a causal nexus is a jury determination, and the trial court must instruct the jury that "the State [is required] to prove an immediate causal nexus between a defendant's attempt to commit, commission of, or escape after the commission of a felony and the circumstances giving rise to the defendant's perceived need to use force." Id. at 187, 868 S.E.2d at 70.

Although the State introduced the requisite evidence, the trial court did not instruct on an "immediate causal nexus between a defendant's attempt to commit, commission of, or escape after the commission of a felony and the...