Opinion
No. 07-1226.
Filed 5 August 2008.
Cleveland County Nos. 06 CRS 55875, 07 CRS 3126, 07 CRS 3127, 07 CRS 2403.
Appeal by defendant from judgments entered 14 June 2007 and 15 June 2007 by Judge Richard D. Boner in Cleveland County Superior Court. Heard in the Court of Appeals 15 April 2008.
Attorney General Roy Cooper, by Special Deputy Attorney General Elizabeth N. Strickland, for the State. Hartsell Williams, P.A., by Christy E. Wilhelm, for defendant-appellant.
Antwan Montrece Banks ("defendant") appeals judgments entered upon jury verdicts finding him guilty of assault on a female inflicting physical injury, habitual misdemeanor assault, and attaining the status of an habitual felon. We find no error.
On 18 September 2006, defendant and his girlfriend LeKeshia McKinney ("the victim") argued about the location of defendant's speakers which defendant left on the back porch of the apartment they shared. The victim alleges defendant yelled and cursed at her. When she tried to leave, defendant grabbed her by the arm, threw her on the couch, and pushed her down. The victim yelled and defendant grabbed her by the throat and started choking her. When the victim managed to loosen defendant's grip and tried to escape, defendant grabbed her by the arm and pulled her into the hallway. The victim contends defendant pushed her to the ground and choked her a second time. One of defendant's friends stopped by the apartment and defendant went outside to talk to his friend. While defendant was outside, the victim escaped and went to her sister's house. The same day, the victim went to the magistrate's office to seek a Chapter 50B restraining order against defendant. The State presented photographs of bruises the victim sustained on her neck and back as evidence of injuries inflicted by defendant.
According to defendant, during their argument, defendant grabbed the victim by the arm and pulled her to him. The victim pushed defendant and he held the victim by her shoulders and pushed her down on the couch. Defendant's friend pulled into the driveway and defendant left. When defendant returned, he began cooking a pizza. The police knocked on the door and placed defendant under arrest. Since defendant had a prior criminal history, he was charged with habitual misdemeanor assault and attaining the status of an habitual felon.
On 4 June 2007, the Honorable Richard D. Boner ("Judge Boner") presided over the trial in Cleveland County Superior Court. At the close of the State's evidence, defendant moved to dismiss the charge of assault inflicting physical injury and the charge of habitual misdemeanor assault. The trial court denied the motion.
After the close of the State's case, the defense presented evidence. During the State's cross-examination of the defendant, defendant's testimony included his prior convictions. Specifically, defendant stated that he was convicted of committing a felony with a firearm in 2004, assault with a deadly weapon with intent to inflict serious injury in 2002, attempted second-degree kidnapping in 1997, assault on a female in 1997, and second-degree kidnapping and attempted common law robbery in 1993. At the close of all the evidence, the defendant renewed his motion to dismiss. Judge Boner contemplated dismissing the habitual misdemeanor assault charge because the State failed to present evidence of prior convictions during its case-in-chief. However, based upon the parties' agreement to bifurcate the proceedings and to allow the State to present evidence of the prior convictions during the habitual offense phase of the trial, Judge Boner denied the motion and allowed the habitual misdemeanor assault charge to go to the jury. Defense counsel did not object to Judge Boner's decision.
While the jury deliberated, defendant left the courtroom and did not return. He was subsequently charged with failure to appear on a felony charge and attaining additional habitual felon status and pled guilty to those charges.
The jury found defendant guilty of assault on a female inflicting physical injury. The trial court then allowed the State to present evidence of defendant's prior convictions, specifically, defendant's convictions for assault occurring within fifteen years of 18 September 2006. The State presented Renita Melton's testimony. As a clerk with the Cleveland County Clerk's Office, she authenticated the records of defendant's prior convictions of assault on a female and assault with a deadly weapon inflicting serious injury. The jury found defendant guilty of two or more prior convictions of assault occurring within fifteen years of 18 September 2006. The jury also found defendant guilty of attaining the status of an habitual felon. Defendant was sentenced as an habitual felon to a minimum term of 120 months to a maximum term of 153 months in the custody of the North Carolina Department of Correction for the habitual misdemeanor assault charge. Defendant was also sentenced as an habitual felon to a minimum term of 107 months to a maximum term of 138 months in the North Carolina Department of Correction for failure to appear on a felony charge. Defendant appeals.
I. Motion to Dismiss
Defendant argues the trial court erred by denying his motion to dismiss the habitual misdemeanor assault charge because the State did not present evidence of the two prior assault convictions during its case-in-chief. Since defendant presented evidence after the trial court denied his motion to dismiss at the close of the State's evidence, he waived his right to appeal that motion to dismiss. N.C.R. App. P. 10(b)(3) (2007); State v. Yelton, 175 N.C. App. 349, 357, 623 S.E.2d 594, 599, n. 1 (2006); State v. Elliott, 69 N.C. App. 89, 100, 316 S.E.2d 632, 640 (1984). Therefore, our review is limited to whether the trial court erred in denying defendant's motion to dismiss at the close of all the evidence. The standard of review on a motion to dismiss for insufficient evidence is whether the State presented substantial evidence of each essential element of the offense and evidence that defendant was the perpetrator. State v. Smith, 139 N.C. App. 209, 216, 533 S.E.2d 518, 522 (2000) (citations omitted). Substantial evidence is any relevant evidence a reasonable mind might accept as adequate to support a conclusion. Id. (citing State v. Cross, 345 N.C. 713, 717, 483 S.E.2d 432, 434 (2000)). The reviewing court views the evidence in the light most favorable to the State. Id. (citations omitted).
The statute defining the offense of habitual misdemeanor assault states in relevant part:
A person commits the offense of habitual misdemeanor assault if that person violates any of the provisions of G.S. § 14-33 and causes physical injury . . . and has two or more prior convictions for either misdemeanor or felony assault, with the earlier of the two prior convictions occurring no more than 15 years prior to the date of the current violation. A conviction under this section shall not be used as a prior conviction for any other habitual offense statute.
N.C. Gen. Stat. § 14-33.2 (2007).
Defendant does not contest that there was substantial evidence to show he committed an offense under N.C. Gen. Stat. § 14-33 causing physical injury. The next issue is whether there was substantial evidence that defendant had "two or more prior convictions for either misdemeanor or felony assault, with the earlier of the two prior convictions occurring no more than 15 years prior to the date of the current violation." N.C. Gen. Stat. § 14-33.2. Before the close of all the evidence, the State elicited testimony on cross-examination from the defendant admitting to two prior assault convictions: assault with a deadly weapon inflicting serious injury in 2002 and assault on a female in 1997. Accordingly, we find no error.
II. Sentencing
Defendant argues that because the trial court's denial of the motion to dismiss was error, the State could not submit the habitual misdemeanor assault conviction as the principal felony upon which to base the habitual felon sentence. Since we determined the trial court did not err in denying the motion to dismiss, this assignment of error is overruled.
Defendant also argues the habitual felon sentence was error because the trial court relied upon the habitual misdemeanor assault conviction as the principal felony upon which to sentence him as an habitual felon. The State contends it presented sufficient evidence to support sentencing defendant as an habitual felon. The State's evidence showed defendant's convictions included: second-degree kidnapping in 1993, attempted common law robbery in 1993, second-degree attempted kidnaping in 1997, and felony assault with a deadly weapon in 2002.
The standard of review for an error in sentencing is whether the sentence is supported by evidence introduced at trial and the sentencing hearing. State v. Deese, 127 N.C. App. 536, 540, 491 S.E.2d 682, 685 (1997) (citations and quotations omitted). The case sub judice presents the question of whether the State can use an habitual misdemeanor assault conviction as an underlying felony to assign defendant the status of an habitual felon. We hold the State properly used the conviction.
In Smith, this Court determined that habitual misdemeanor assault is a substantive offense and can be relied upon as a felony offense within the meaning of the habitual felon statute. 139 N.C. App. at 214, 533 S.E.2d at 520. In 2004, the General Assembly amended the habitual misdemeanor assault statute to include the sentence: "A conviction under this section shall not be used as a prior conviction for any other habitual offense statute." N.C. Gen. Stat. § 14-33.2, amended by S.L. 2004-186, § 10.1, eff. Dec. 1, 2004.
The State contends, as applied in this case, the term "prior conviction" refers to using the felony habitual misdemeanor assault as one of the three felony convictions required to charge defendant with attaining the status of an habitual felon. N.C. Gen. Stat. § 14-7.1 (2007). According to the State, since the State relied upon defendant's convictions for three other felonies, and not the felony habitual misdemeanor assault, there was no error in sentencing. Defendant argues N.C. Gen. Stat. § 14-33.2 prohibits the State from using the habitual misdemeanor assault conviction as the principal felony to charge defendant with attaining the status of an habitual felon. We disagree.
The plain language of the statute prohibits the use of an habitual misdemeanor assault conviction as a prior conviction to enhance a felony to habitual felon status. N.C. Gen. Stat. § 14-33.2 (emphasis added). Nothing in the language of § 14-33.2 indicates the legislature intended the term "prior conviction" to refer to the use of an habitual misdemeanor assault conviction as the principal felony upon which to base an habitual felon status charge. See State v. Artis, 181 N.C. App. 601, 602, 641 S.E.2d 314, 315, n. 1 (2007), disc. rev. denied, 361 N.C. 430, 648 S.E.2d 846 (2007), cert. denied, 128 S. Ct. 544, 169 L. Ed. 2d 381 (2007) ("The habitual misdemeanor assault statute was amended in 2004 to prohibit the use of prior habitual misdemeanor assault convictions as predicate offenses for other recidivist statutes."). Defendant's sentence for attaining the status of an habitual felon was supported by evidence of three prior felony convictions, including his 1993 second-degree kidnapping and attempted common law robbery convictions, his 1997 attempted second-degree kidnapping conviction, and his 2002 assault with a deadly weapon conviction. We find no error in defendant's sentence for attaining the status of an habitual felon.
No error.
Judges WYNN and GEER concur.
Report per Rule 30(e).