Opinion
No. COA02-963
Filed 1 July 2003 This case not for publication
Appeal by defendant from judgments entered 11 April 2002 by Judge J. Gentry Caudill in Mecklenburg County Superior Court. Heard in the Court of Appeals 14 May 2003.
Attorney General Roy Cooper, by Assistant Attorney General Daniel D. Addison, for the State. Carlton, Rhodes Carlton, by Gary C. Rhodes, for defendant-appellant.
Mecklenburg County Nos. 99 CRS 28945, 99 CRS 145026-28.
Timothy J. Ballard ("defendant") appeals from his convictions of common law robbery and second-degree kidnapping. For the reasons stated herein, we reverse in part and find no error in part in the judgments of the trial court.
The evidence presented by the State tended to show the following: On the morning of 26 July 1999, Patti Harris ("Harris") was driving in the right lane of Seventh Street in Charlotte, North Carolina. As she was driving, she noticed the vehicles ahead of her slow and swerve, and when Harris reached the area where the vehicles swerved, she observed defendant lying in the street, blocking the right-hand lane. A pedestrian helped defendant to stand. After he stood up, defendant staggered towards Harris's vehicle, which was stopped in traffic, and threw himself upon the windshield, thereby breaking it. Defendant rolled off of the hood of the vehicle, jerked open the driver's side door and shoved Harris, who was restrained by her seatbelt, against the center console of her vehicle. Harris screamed and resisted defendant's entry. Defendant sat in the driver's seat and attempted to put the vehicle's automatic transmission in gear. As defendant attempted to drive the vehicle, Harris continued to scream and struggle with defendant and her seatbelt. Harris testified that she thought defendant then "got [the vehicle] in neutral . . . [b]ecause it kind of rolled up onto the curb or hit the curb side. And I was still screaming." Defendant then said words to the effect, "I might as well forget it" or "I'm done," exited the vehicle, and walked away.
Defendant presented evidence in the form of expert testimony by a clinical psychologist and a psychiatrist, both of whom testified that defendant was in a "psychotic state" when he committed the acts for which he was charged.
At the close of evidence, the jury found defendant guilty of common law robbery and second-degree kidnapping. Defendant then stipulated his habitual felon status, and the trial court entered two consecutive sentences of 160 to 201 months' imprisonment. Defendant appeals.
As an initial matter, we note that defendant's brief contains arguments supporting only six of the original eight assignments of error on appeal. "Assignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned." N.C.R. App. P. 28(b)(6) (2002). We therefore limit our review to those six assignments of error properly preserved by defendant for appeal. Defendant has further violated Appellate Rule 28(b)(6) by failing to identify the assignments of error pertinent to each argument by their number or the page number at which they appear in the printed record. "Under Rule 28(b)[(6)] we could deem all of appellant's questions to have been abandoned and consequently dismiss his appeal." State v. Shelton, 53 N.C. App. 632, 635, 281 S.E.2d 684, 688 (1981), disc. review denied and appeal dismissed, 305 N.C. 306, 290 S.E.2d 707 (1982). We nevertheless elect to examine defendant's assignments of error on their merits. See id.
Defendant argues that the trial court erred by (1) denying his motion to dismiss the charges against him; (2) failing to intervene ex mero motu during the State's closing argument; (3) placing the burden of proof of insanity on defendant; (4) enhancing defendant's sentence based on his habitual felon status; (5) incorrectly calculating points on defendant's felony sentencing worksheet; and (6) sentencing defendant as an habitual felon.
Defendant first argues that the trial court erred in denying his motion to dismiss the charges of common law robbery and second-degree kidnapping. Defendant asserts there was insufficient evidence to support these charges.
In ruling on a motion to dismiss, the trial court must determine whether there is substantial evidence of each element of the offense charged. See State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387 (1984). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). When reviewing the evidence, the trial court must consider even incompetent evidence in the light most favorable to the prosecution, granting the State the benefit of every reasonable inference. See State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). Any contradictions or discrepancies in the evidence should be resolved by the jury. See id.
In the instant case, defendant was convicted of common law robbery and second-degree kidnapping. Common law robbery is an aggravated form of larceny and is defined as "the felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear." State v. Smith, 305 N.C. 691, 700, 292 S.E.2d 264, 270, cert. denied, 459 U.S. 1056, 74 L.Ed.2d 622 (1982). Absent the elements of violence or intimidation, the offense becomes larceny. See id. Defendant argues there was insufficient evidence that (1) he took personal property from Harris (2) by means of violence or fear. We disagree.
"`The least removal of an article, from the actual or constructive possession of the owner, so as to be under the control of the felon, will be a sufficient asportation'" to support the charge of larceny. State v. Walker, 6 N.C. App. 740, 743, 171S.E.2d 91, 93 (1969) (quoting State v. Jones, 65 N.C. 395, 397 (1871)). Although defendant argues that he was never "in control" of the victim's vehicle, the evidence suggests otherwise. Taken in the light most favorable to the State, the evidence tended to show that defendant forcibly entered Harris's vehicle, shoved her to one side, sat in the driver's seat, and put the vehicle in neutral gear, whereupon the vehicle rolled several feet before hitting the street curb. We conclude that this was sufficient evidence from which the jury could find that defendant dispossessed the victim of ownership of her vehicle.
Defendant further argues that there was no evidence that he utilized fear or violence in obtaining Harris's vehicle. This argument has no merit. The evidence showed that defendant threw himself onto the victim's vehicle, breaking the windshield in the process. This alone constituted a violent assault on Harris. See State v. Parrish, 251 N.C. 274, 279, 111 S.E.2d 314, 318 (1959); State v. Hobbs, 216 N.C. 14, 16-17, 3 S.E.2d 431, 432-33 (1939). Defendant moreover forcibly entered the vehicle, pushed Harris to one side, and continued to struggle with her while attempting to put the vehicle in gear. Harris testified that she was "scared" and "flipping out" during the assault. This evidence sufficiently supports a finding by the jury that defendant took Harris's vehicle by means of violence or intimidation. The trial court therefore did not err in denying defendant's motion to dismiss the charge of common law robbery.
Defendant further argues that the trial court erred in failing to dismiss the charge of second-degree kidnapping. Specifically, defendant asserts there was insufficient evidence (1) that he restrained the victim; (2) that such restraint was for the purpose of facilitating a felony; and (3) that such restraint was an independent act, separate and apart from the underlying felony.
Kidnapping is defined in relevant part as follows:
(a) Any person who shall unlawfully confine, restrain, or remove from one place to another, any other person 16 years of age or over without the consent of such person . . . shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of:
. . . .
(2) Facilitating the commission of any felony or facilitating flight of any person following the commission of a felony.
N.C. Gen. Stat. § 14-39 (2001). "It is the fact, not the distance of forcible removal of the victim that constitutes kidnapping." State v. Lowry and State v. Mallory, 263 N.C. 536, 541, 139 S.E.2d 870, 874, cert. denied, 382 U.S. 22, 15 L.Ed.2d 16 (1965). The central question is whether the kidnapping charge is supported by evidence from which a jury could reasonably find that the necessary restraint for kidnapping exposed the victim to greater danger than that inherent in the robbery itself or was subjected to the kind of danger and abuse the kidnapping statute was designed to prevent. See State v. Hill, 139 N.C. App. 471, 482, 534 S.E.2d 606, 614 (2000).
In the present case, defendant forced his way into and physically took control of the victim's vehicle, thus completing the force necessary to commit the robbery. Harris continued to struggle with and resist defendant, who, despite her resistance, did not allow Harris to exit the vehicle. Instead, defendant attempted to drive the vehicle with the victim trapped inside it and managed to move the vehicle at least several feet before abandoning his course of action. By further struggling with and restraining Harris in her automobile, the jury could reasonably find that defendant exposed the victim to greater danger than that inherent in the robbery such as to support the conviction of second-degree kidnapping. See id. There was moreover sufficient evidence from which the jury could reasonably infer that defendant restrained the victim for the purpose of committing common law robbery. We therefore overrule defendant's first assignment of error.
By his second assignment of error, defendant argues that the trial court erred in failing to intervene ex mero motu during the prosecutor's closing argument. Defendant neither objected to these statements at trial, however, nor cited any authority in support of his argument. Defendant has therefore abandoned this assignment of error, and we do not address it. See N.C.R. App. P. 28(b)(6).
Defendant next contends that the trial court erred in "placing the burden of proof of insanity on the defendant." We note that defendant fails to specify in his argument the manner in which the trial court erred, in that defendant never explains how the trial court "placed the burden of proof of insanity" on defendant. It is nevertheless well settled in this State that "[e]very person is presumed sane until the contrary is shown, and the defendant has the burden of proving his insanity . . . . to the satisfaction of the jury." State v. Evangelista, 319 N.C. 152, 161, 353 S.E.2d 375, 382 (1987); State v. Lynch, 340 N.C. 435, 467, 459 S.E.2d 679, 695 (1995), cert. denied, 517 U.S. 1143, 134 L.Ed.2d 558 (1996). Our Supreme Court has "repeatedly declined to change the presumption of sanity or the rule that requires a defendant to carry the burden of proving his insanity to the satisfaction of the jury." State v. Davis, 321 N.C. 52, 58, 361 S.E.2d 724, 727 (1987). We overrule this assignment of error.
Defendant next argues that the trial court erred in sentencing defendant to consecutive enhanced sentences for two separate habitual felon convictions of separate felony charges arising from the same transaction. Defendant concedes, however, the existence of "previous adverse authorities on these issues" see, e.g., State v. Kilpatrick, 345 N.C. 451, 480 S.E.2d 400 (1997), and cites as his only authority the dissent in Kilpatrick. We are bound by our Supreme Court in this matter, see id., and we therefore overrule defendant's assignment of error.
In his final two assignments of error, defendant argues that the trial court erred in its sentencing of defendant. Specifically, defendant contends that the trial court erred in sentencing defendant as a habitual felon based solely on defendant's stipulation to such status. Defendant further contends that the felony sentencing worksheet erroneously assigned one point against defendant for the elements of the present offense being included in any prior offense. We agree that the trial court erred in these respects.
"While not a crime, our statutes still require either a verdict by the jury that defendant is an habitual felon, see N.C. Gen. Stat. § 14-7.5 (2001), or a guilty plea to the charge of being an habitual felon." State v. Edwards, 150 N.C. App. 544, 550, 563 S.E.2d 288, 291 (2002); see also State v. Gilmore, 142 N.C. App. 465, 471, 542 S.E.2d 694, 699 (2001) (reversing and remanding the defendant's conviction of habitual felon status where the issue was not submitted to the jury, and the defendant only stipulated, but did not plead guilty, to being an habitual felon).
In the present case, the record shows that defendant stipulated to his status as an habitual felon, but the trial court did not establish a record that defendant's stipulation was a guilty plea. We are therefore bound by Edwards and Gilmore to reverse defendant's conviction of being an habitual felon and remand this case for a new habitual felon hearing. See Edwards, 150 N.C. App. at 550, 563 S.E.2d at 291; Gilmore, 142 N.C. App. at 471, 542 S.E.2d at 699.
We further note that defendant's felony sentencing worksheet incorrectly assigned against him one point for the elements of the present offense being included in any prior offense. A review of defendant's prior record level worksheet does not reveal any prior offenses that include all of the elements of common law robbery or kidnapping. While we agree with the State that this error makes no difference in calculating defendant's prior record level for purposes of sentencing, we trust that the trial court will nevertheless correct this technical error upon resentencing.
We hold that the trial court erred in sentencing defendant as an habitual felon based solely on his stipulation to such status. We therefore reverse defendant's conviction of habitual felon status and remand this case for a new habitual felon hearing. We otherwise find no error in the judgment of the trial court.
No error in part, reversed in part, and remanded.
Judges HUDSON and STEELMAN concur.
Report per Rule 30(e).