State v. Lightner , 108 N.C. App. 349 ( 1992 )

WALKER, Judge.

Defendant’s only argument on appeal is that his motion to dismiss should have been granted since Officers Henry and Ferguson were off-duty at the time of the incident and therefore he did not commit an assault on a law enforcement officer. In determining if the evidence is sufficient to withstand defendant’s motion to dismiss, the court must consider the evidence in the light most favorable to the state, allowing every reasonable inference to be drawn therefrom. State v. Irwin, 304 N.C. 93, 282 S.E.2d 439 (1981).

According to defendant, there was not sufficient evidence presented to establish a violation of G.S. § 14-33(b)(4). In pertinent part this statute provides that a person is guilty of misdemeanor assault if he:

Assaults a law-enforcement officer, . . . while the officer ... is discharging or attempting to discharge a duty of his office.

As regards this statute, it does not appear our Courts have considered the question of whether an off-duty police officer retains the status of a law-enforcement officer and is still discharging the duties of his office.

While not examining the precise question before us, our Supreme Court recently resolved a very similar controversy. In State v. Gaines, 332 N.C. 461, 421 S.E.2d 569 (1992), defendant argued there was not sufficient evidence presented to establish the capital punishment aggravating circumstance of G.S. § 15A-2000(e)(8). This aggravating circumstance exists where “[t]he capital felony was committed against a law-enforcement officer . . . while engaged in the performance of his official duties or because of the exercise of his official duty.” The evidence presented in Gaines disclosed that the officer who was killed was a Charlotte policeman “moonlighting” as a security guard for Red Roof Inn. The officer was fully uniformed and carrying a sidearm. The Court further noted that the officer’s off-duty employment was arranged by the Charlotte Police Department and the officer was required to conform to the same standard of conduct as when he was on duty. Based upon the facts, the Court held there was sufficient evidence to establish that the officer retained his status as a law-enforcement officer and was “engaged in the performance of his official duties.” State v. Gaines, 332 N.C. at 477, 421 S.E.2d at 577.

In the present case, Officers Henry and Ferguson were off-duty members of the Charlotte Police Department. They were working in full police uniform and were carrying sidearms. As in Gaines, the officers’ employment with Bojangles had been arranged through the Charlotte Police Department and the officers were required to follow Department mandated rules and guidelines. Furthermore, at the time they were assaulted, Officers Henry and Ferguson were attempting to place defendant under arrest. Making arrests is one of the official duties of law-enforcement officers. See State v. Gaines, 332 N.C. at 471, 421 S.E.2d at 574. Under the reasoning of the Gaines decision, we find there was sufficient evidence presented at trial to establish a violation of G.S. 14-33(b)(4) and therefore the trial court properly denied defendant’s motion to dismiss.

No error.

Judges GREENE and WYNN concur.