Criminal Practice – Felony Stalking – Assault with a Firearm on a Law Enforcement Officer

The stalking indictment was sufficient and the requested jury instruction for the assault charge was unsupported by the evidence.

The trial court did not err.

Defendant appealed his convictions for assault with a firearm on a law enforcement officer, stalking with a court order in effect, and resisting a public officer. Defendant contended the trial court erred by denying his motion to dismiss the stalking charge, claiming the indictment was fatally defective, and by refusing to give a jury instruction for the assault charge that included the optional language “without justification or excuse.”

The 2023 stalking charge alleged Defendant harassed Christopher and Jaime Berghout on multiple occasions, causing them to fear for their safety or suffer substantial emotional distress, while a valid no-contact order from 2022 was in effect. Defendant moved to dismiss the stalking charge, arguing the indictment lacked a “plain and concise factual statement.” The trial court denied the motion, noting Defendant had sufficient notice of the charge. The State later amended the indictment to change the date range of the alleged stalking to February 7–11, 2023.

Trial evidence showed long-standing tensions between Defendant and the Berghouts. In June 2022, Defendant and two other men assaulted Christopher Berghout, and Defendant drove his truck into Jaime, causing injury. Following these events, a court entered a no-contact order prohibiting Defendant from contacting or coming near the Berghouts’ residence for 18 months. On February 7–11, 2023, Defendant was observed repeatedly driving by their home and appeared in videos recorded by Christopher. On February 11, 2023, Defendant was seen in his truck near the Berghouts’ home firing a revolver. Two deputies arrived, identified themselves, and approached Defendant, who pointed a revolver at one deputy’s chest. Defendant slowly lowered the weapon only after being ordered multiple times and resisted being removed from his truck, requiring physical restraint.

At trial, Defendant moved to dismiss the charges at the close of the State’s case and again at the close of all evidence, both motions denied. He requested that the assault jury instruction include the optional “without justification or excuse” language, citing a claimed affirmative defense of automatism. The trial court denied the request, finding no evidence that Defendant acted involuntarily or was unaware of the deputies’ identities. The deputies’ testimony established that Defendant was awake, aware, and intentionally pointed the firearm.

The jury convicted Defendant on all charges. The trial court consolidated the assault and resisting convictions for sentencing, imposing 60–84 months’ imprisonment, and sentenced Defendant for stalking to 6–17 months, suspending the sentence and placing him on 36 months’ supervised probation.

On appeal, the Court of Appeals held that the indictment sufficiently notified Defendant of the stalking charge and that no prejudice was shown. Additionally, the record did not support the requested jury instruction for the assault charge, so the trial court did not err in denying it.

No error.

State v. Phillips (Lawyers Weekly No. 011-005-26, 14 pp.) (Allegra Collins, J.) Appealed from Haywood County Superior Court (William T. Stetzer, J.) Attorney General Jeff Jackson, by Assistant Attorney General Megan Shook, for the State-Appellee. Drew Nelson for Defendant-Appellant. North Carolina Court of Appeals