Opinion
No. COA02-1266
Filed 15 April 2003 This case not for publication
Appeal by defendant from judgment entered 25 April 2002 by Judge J. Richard Parker in Northampton County Superior Court. Heard in the Court of Appeals 7 April 2003.
Attorney General Roy Cooper, by Assistant Attorney General Daniel P. O'Brien, for the State. Irving Joyner for defendant-appellant.
Northampton County Nos. 01 CRS 1028 1361.
Defendant was indicted upon charges of assault with a deadly weapon with intent to kill inflicting serious injury and of attempted first degree murder. The attempted murder indictment, which was captioned "attempted first degree murder," stated that defendant "unlawfully, willfully and feloniously did attempt to murder Troy Williams with malice aforethought." Its caption also listed that the "Offense [was] in Violation of G.S. § 14-2.5."
A jury found defendant guilty of the charge of assault with a deadly weapon with intent to kill inflicting serious injury and not guilty of the charge of attempted first degree murder. The trial court found one aggravating factor, that "[t]he victim of this offense suffered serious injury that is permanent and debilitating[,]" and found no mitigating factors. After finding that the aggravating factors outweighed the mitigating factors, the trial court imposed a sentence from the aggravated range of 125 to 159 months imprisonment based upon the class C felony and defendant's prior record level of II. Defendant appeals.
At trial, the State introduced evidence tending to show the following: On the evening of 28 April 2001, defendant approached Troy Williams ("victim") in a pool hall and tried to purchase some marijuana. The two men "had some words" after the victim refused to sell him marijuana, and the victim left the pool hall. While he was getting into his car, an acquaintance approached and asked the victim to sell him some marijuana. The victim walked over to a trash can and removed three bags of marijuana which he had placed in it. As he was reaching to give the marijuana to his acquaintance, defendant walked up to him with a gun and said, "You seen it before, f--- you, Shake, you die[.]" Defendant then shot the victim at point blank range in his chest with a nine millimeter gun and hit him in the mouth with the gun. After the victim fell to the ground, someone kicked him in the back of the head.
Kimberly Ricks testified she heard the shot as she was about to drive by the pool hall. She then saw the victim fall and defendant run. When Ms. Ricks turned and drove back to see what had happened, defendant got into the car while she was stopped at a stop sign. A second man, Clyde Pretty, jumped on the hood, and defendant told her to stop. Mr. Pretty then got into the car. Defendant asked Ms. Ricks to take him to his girlfriend's house. At one point during that drive, Ms. Ricks heard defendant say, "You mean to tell me I shot this mother-f---er and didn't get nothing but three bags of weed?" A pool hall patron, Adrion Pugh, testified that he saw defendant shoot the victim after the victim refused to give his marijuana to defendant.
The victim was in a coma for two weeks. When he was questioned by a police detective about two weeks after he came out of the coma, the victim identified defendant as the person who had shot him. The victim spent about two and a half to three months in intensive care and was hospitalized for about six months. Because of damage caused by the bullet, the victim lost a kidney, his spleen, and half of his pancreas. The bullet lodged between two of his vertebrae, and one of the victim's legs is paralyzed. He has had one hip joint replaced as a result of damage caused by the medications he was given while he was in the coma. The victim cannot urinate normally because of permanent nerve damage to his bladder caused by the bullet. He initially was taking about sixty-five to seventy-five pills a day for various problems and was still taking about sixteen to seventeen pills a day about a year later at the time of trial. Defendant presented no evidence.
In his first argument, defendant contends the trial court erred by not dismissing the attempted murder charge. He argues the State's indictment only charged attempted second degree murder, which is a crime that does not exist under North Carolina law. Defendant further claims he was subjected to double jeopardy by a dual prosecution for a single act. We disagree.
"An indictment is constitutionally sufficient if it apprises the defendant of the charge against him with enough certainty to enable him to prepare his defense and to protect him from subsequent prosecution for the same offense." State v. Lowe, 295 N.C. 596, 603, 247 S.E.2d 878, 883 (1978). Here, the State's indictment charged that defendant "unlawfully, willfully and feloniously did attempt to murder Troy Williams with malice aforethought." This Court has previously held that similar language, that a defendant "unlawfully, willfully and feloniously and of malice aforethought did attempt to kill and murder [the victim]," was sufficient to meet the "short-form" requirements for first-degree murder indictments. State v. Choppy, 141 N.C. App. 32, 41, 539 S.E.2d 44, 50 (2000), appeal dismissed and disc. review denied, 353 N.C. 384, 547 S.E.2d 817 (2001).
Although the indictment's caption refers to G.S. § 14-2.5 (punishment for attempt to commit a felony or misdemeanor), the wording in the indictment's body describes a violation of G.S. § 14-17 (murder in the first and second degree defined; punishment). Because "[t]he caption of an indictment, whether on the front or the back thereof, is not a part of it and the designation therein of the offense sought to be charged can neither enlarge nor diminish the offense charged in the body of the instrument[,]" State v. Bennett, 271 N.C. 423, 425, 156 S.E.2d 725, 726 (1967), the indictment here properly charged defendant with the offense of attempted first degree murder.
Defendant's additional contention, that the State subjected him to double jeopardy by charging him with both offenses, is without merit. "Conviction for two separate offenses stemming from one incident is not a violation of a defendant's constitutional rights where each offense requires proof of at least one element that the other does not." State v. Peoples, 141 N.C. App. 115, 119, 539 S.E.2d 25, 29 (2000). This Court has previously held that the offenses of attempted first degree murder and assault with a deadly weapon with intent to kill inflicting serious injury each require proof of at least one element which the other does not. Id. at 119-20, 539 S.E.2d at 29. As a result, the State could properly charge defendant with both of the offenses.
In his second argument, defendant contends the trial court erred by using the serious injury element, which was necessary to establish the offense, to find an aggravating factor. He asserts the aggravating factor that "[t]he victim of this offense suffered serious injury that is permanent and debilitating[,]" is no more than another way of saying "serious injury." Defendant's argument is not persuasive.
While defendant is correct that "evidence necessary to prove an element of the offense may not be used to prove any factor in aggravation[,]" see G.S. § 15A-1340.16(d), the "long term effects or extended effects that arise from the victim's injuries may be properly used as an aggravating factor." State v. Wampler, 145 N.C. App. 127, 132-33, 549 S.E.2d 563, 568 (2001). The victim lost a kidney, his spleen, and half of his pancreas as a result of being shot. The bullet remains lodged in his vertebrae, and one of his legs is paralyzed. He has undergone replacement of one hip joint and cannot urinate normally due to permanent nerve damage to his bladder. A year after being shot, the victim was still taking about sixteen to seventeen pills daily for various problems as a result of being shot. In the present case, the victim's injuries went beyond the "serious injury" necessary to convict defendant of the offense. Accordingly, the trial court did not err by finding as an aggravating factor that "[t]he victim of this offense suffered serious injury that is permanent and debilitating."
Defendant's final contention, that the trial court imposed a sentence in excess of the sentence authorized by the General Assembly, is in error. For defendant's class C felony at prior record level II, the minimum term of imprisonment in the aggravated sentencing range is 100 to 125 months. N.C. Gen. Stat. § 15A-1340.17(c) (2001). The trial court imposed a minimum term of 125 months. As correctly found by the trial court, the corresponding maximum term of imprisonment is 159 months imprisonment. N.C. Gen. Stat. § 15A-1340.17(e) (2001).
No error.
Judges McCULLOUGH and CALABRIA concur.
Report per Rule 30(e).