State v. Taylor (Lawyers Weekly No. 11-07-0571, 27 pp.) (Sam Ervin IV, J.) Appealed from Cleveland County Superior Court. (A. Robinson Hassell & Richard L. Doughton, JJ.) N.C. App. Click here for the full text opinion.
Holding: Even though the two-year statute of limitations on misdemeanors had already run when defendant was indicted for felony obstruction of justice, defendant’s conviction of the lesser-included offense of misdemeanor obstruction of justice was not barred by the statute of limitations.
We find no error in defendant’s conviction of obstruction of justice. We affirm the denial of his motion for appropriate relief.
Dr. Daniel Senft was arrested for driving while impaired. Dr. Senft’s employee was dating defendant, the chief deputy in the county in which Dr. Senft was arrested.
Defendant went to the sheriff’s office and took Dr. Senft into his office. Defendant asked for the arresting officer’s Alco-Sensor, took it back to his office, and returned with it later. Defendant told the arresting officer that Dr. Senft had blown a .07 and been released.
Defendant was charged with common law felony obstruction of justice and convicted of common law misdemeanor obstruction of justice.
Even if the allegations in the indictment against defendant would have satisfied the elements of a statutory offense (G.S. § 14-223, resisting, delaying or obstructing an officer), the state still had authority to prosecute defendant for felonious common law obstruction of justice. State v. Wright, 696 S.E.2d 832 (2010).
Defendant argues that, because he was indicted for felonious obstruction of justice more than two years after the date of the alleged offense, the trial court had no authority to submit the issue of his guilt of misdemeanor obstruction of justice to the jury, despite the fact that it is a lesser included offense of felonious obstruction of justice. We disagree.
A defendant is entitled to have all lesser degrees of offenses supported by the evidence submitted to the jury as possible alternative verdicts. Defendant is arguing that this rule is subject to an implicit exception, which is that a defendant is not entitled to submission of a lesser included offense which happens to be a misdemeanor unless he was indicted within two years of the alleged offense date.
Defendant has not cited any authority in support of this position, and we know of none. Such a result would deprive certain defendants charged with committing felony offenses of the right to have the issue of lesser included misdemeanor offenses submitted for the jury’s consideration despite the fact that the failure to so instruct constitutes reversible error that cannot be cured by a verdict finding the defendant guilty of the greater offense, a result we do not believe to be consistent with the General Assembly’s intent.
We conclude that the statute of limitations set out in G.S. § 15-1 does not control the submission of the issue of a defendant’s guilt of a misdemeanor lesser included offense to the jury, provided that the greater offense was properly charged in a timely manner. Defendant’s challenge to the trial court’s decision to submit the issue of his guilt of misdemeanor obstruction of justice to the jury as a lesser included offense does not justify an award of appellate relief.
No error as to defendant’s conviction; affirmed as to the denial of his motion for appropriate relief.