Opinion
No. COA10-1079
Filed 17 May 2011 This case not for publication
Appeal by defendant from judgment entered 20 April 2010 by Judge Yvonne Mims Evans in Cleveland County Superior Court. Heard in the Court of Appeals 21 February 2011.
Roy Cooper, Attorney General, by Dahr Joseph Tanoury, Assistant Attorney General, for the State. The Law Office of Bruce T. Cunningham, Jr., by Bruce T. Cunningham, Jr. and Amanda S. Zimmer, for defendant-appellant.
Cleveland County Nos. 09 CRS 50314-15, 09 CRS 20322, 09 CRS 727.
Defendant, Michael Chad Deaton, was charged in indictments with malicious conduct by a prisoner, communicating threats, impaired driving, injury to personal property, exceeding a safe speed, and having attained habitual felon status. He appeals from a judgment entered upon jury verdicts finding him guilty of malicious conduct by a prisoner, communicating threats, impaired driving, and having attained habitual felon status.
When defendant's case was called for trial, immediately before jury selection began, defendant's counsel informed the court that, although he was "in the process of working on a [written] motion to dismiss the habitual felon indictment," it was "not quite ready." He stated that his "essential argument is that using H and I felonies to get someone to the habitual status violates the Eighth Amendment." The record indicates defendant's counsel did not file the motion until the second and final day of defendant's trial. The motion asserted that "the habitual felon statute in North Carolina violates the 8th Amendment to the United States Constitution," and "that the habitual felon statute, as applied to the Defendant violates the Defendant's right to equal protection of the laws." The motion also requested an order "directing the State to supply [defendant] . . . a copy of the disposition of all habitual felon indictments returned by the grand jury within the past 36 months in order that [he] . . . might be in a position to examine the disposition of such indictments to adequately prepare for an evidentiary hearing." The trial court denied the motion.
At trial, the State's evidence tended to show that on 15 January 2009, a trooper with the North Carolina State Highway Patrol was called to a single vehicle accident. Upon arriving at the scene, he noticed that a red Chevrolet Camaro had struck a tree. The front end of the vehicle was extensively damaged. The trooper determined that defendant had been the driver of the Camaro, and attempted to ask him some questions. He testified that defendant was belligerent, hostile, and unsteady on his feet, had mumbled speech, and seemed confused about where he was going. Defendant informed the trooper that he was taking Valium, hydrocodone, and methadone. Defendant was uncooperative with sobriety tests and refused treatment by EMS. Defendant was placed under arrest and placed in the back of a vehicle of a patrol officer with the Cleveland County Sheriff's Department. As the trooper traveled behind defendant while defendant was being transported, the trooper saw defendant's feet beat the ceiling of the vehicle and the plexiglass separating the driver's side seat from the back seat of the vehicle. The officer transporting defendant stopped the vehicle and he and the trooper placed defendant in a "rip hobble," which secured defendant's feet together. Defendant was irate and cussed and threatened the officer and the trooper. After he was back in the vehicle, defendant got close to the passenger side, which was separated from the front passenger seat by a cage, and began spitting. Spit landed on the side of the officer's face, in his eye and in his ear, and ran down the inside collar of his shirt. The officer stopped the vehicle a second time. A sergeant was called to the scene and defendant was placed in a "spit hood." After he was back in the vehicle, defendant continued to cuss and threaten the officer. A short while later, a search warrant was obtained for defendant's blood and, following testing, it was determined that his blood contained "THCA metabolite, TCH, cocaine, benzoylecgonine metabolite of cocaine, diazepam, mordiazepam[,] . . . diphenhydramine[,] and . . . an opiate that would be hydrocodone[,]" although it could not be conclusively identified.
The trial court granted defendant's motion to dismiss the charges of injury to personal property and exceeding a safe speed. Defendant offered evidence tending to show that he had previously been diagnosed with bipolar disorder, panic attacks with agoraphobia, and schizoaffective disorder and that he was under the influence of an intoxicant or narcotic the day of the accident.
On appeal, defendant first argues that the trial court erred by denying his request to instruct the jury on the offense of assault on a government official as a lesser included offense of malicious conduct by a prisoner. Although acknowledging that "misdemeanor assault on a government official is not a lesser included offense of felony malicious conduct by a prisoner," State v. Crouse, 169 N.C. App. 382, 386, 610 S.E.2d 454, 457, disc. review denied, 359 N.C. 637, 616 S.E.2d 923 (2005), defendant attempts to argue that in certain factual circumstances, misdemeanor assault on a government official should be a lesser included offense of felony malicious conduct by a prisoner. This contention is without merit.
When a defendant is indicted for a criminal offense, he may be convicted of the charged offense or a lesser included offense when the greater offense charged in the bill of indictment contains all of the essential elements of the lesser, all of which could be proved by proof of the allegations in the indictment. Further, when there is some evidence supporting a lesser included offense, a defendant is entitled to a charge thereon even when there is no specific prayer for such instruction, and error in failing to do so will not be cured by a verdict finding a defendant guilty of a higher degree of the same crime.
State v. Weaver, 306 N.C. 629, 633-34, 295 S.E.2d 375, 377 (1982) (internal quotation marks omitted), overruled in part on other grounds by State v. Collins, 334 N.C. 54, 61, 431 S.E.2d 188, 193 (1993).
Our Supreme Court has rejected "the proposition that the facts of a particular case should determine whether one crime is a lesser included offense of another." Id. at 635, 295 S.E.2d at 378. "The determination is made on a definitional, not a factual basis." Id. at 635, 295 S.E.2d at 379. Thus, "the definitions accorded the crimes determine whether one offense is a lesser included offense of another crime." Id. at 635, 295 S.E.2d at 378. Under the definitional test, "[a]ll of the essential elements of the lesser crime must also be essential elements included in the greater crime. If the lesser crime has an essential element which is not completely covered by the greater crime, it is not a lesser included offense." Id. at 635, 295 S.E.2d at 378 (emphasis added) (holding that the crime of taking indecent liberties with a minor is not a lesser included offense of first-degree rape because, although "under certain factual circumstances" the age differential element of both offenses is satisfied, under other factual circumstances, both of the elements are not satisfied and, thus, "[t]he age differential element of the `lesser' crime of taking indecent liberties is not completely included in the `greater' crime").
In State v. Crouse, in holding that assault on a government official is not a lesser included offense of malicious conduct by a prisoner, this Court noted that although "bespattering a law enforcement official with bodily fluids or excrement certainly includes an assault" and that, therefore, under particular factual circumstances, "an assault may be included in the commission of malicious conduct by a prisoner," "an assault would also occur where the official is merely placed in reasonable apprehension of such conduct," and therefore "it need not be" included in the commission of malicious conduct by a prisoner. 169 N.C. App. at 387, 610 S.E.2d at 458. Thus, because "assault on a government official includes at least one element[— an assault —]that is not necessarily a part of the definition of malicious conduct by a prisoner," id. (emphasis added), "misdemeanor assault on a government official is not a lesser included offense of felony malicious conduct by a prisoner." Id. at 386, 610 S.E.2d at 457. Defendant's argument is overruled.
Defendant next contends that the trial court erred by denying his motion to dismiss the habitual felon indictment "on the grounds that the enhancement of the Defendant's sentence pursuant to the Habitual Felon Act violated the Eighth Amendment to the United States Constitution." This contention is without merit.
Defendant begins by asserting that the trial court erred by stating that it was powerless to dismiss the habitual felon charge. He essentially suggests that the trial court should have determined whether his sentence was unconstitutionally excessive by comparing the gravity of the offense and the severity of the sentence to determine whether an inference of gross disproportionality existed. On appeal, he contends his sentence was "grossly disproportionate to the crime." He points out that "H and I felonies would not have been considered as felonies at the time the Habitual Felon Act was enacted" and that his case involves "a person with panic attacks, agoraphobia and bi-polar disorder."
We begin by noting that North Carolina's habitual felon statute does not violate the Eighth and Fourteenth Amendments to the United States Constitution. State v. Todd, 313 N.C. 110, 117, 326 S.E.2d 249, 253 (1985). Furthermore, defendant fails to cite any authority supporting his assertion that sentencing a defendant as a habitual felon based on Class H and I felonies violates the Eighth and Fourteenth Amendments to the United States Constitution, and we see no basis for such an assertion. Cf. State v. Jones, 358 N.C. 473, 486-87, 598 S.E.2d 125, 133-34 (2004) (noting that, "[p]art and parcel of the General Assembly's authority to prescribe criminal punishment is its authority to classify criminal offenses," and therefore, holding that, because the legislature "classifies possession of cocaine as a felony, [the] defendant's . . . conviction for possession of cocaine was sufficient to serve as an underlying felony for his habitual felon indictment").
We further note that the United States Supreme Court has "rejected a[n Eighth Amendment] challenge to a sentence of 25 years to life for the theft of a few golf clubs under California's so-called three-strikes recidivist sentencing scheme." Graham v. Florida, 560 U.S. ___, ___, 176 L. Ed. 2d 825, 836 (2010) (citing Ewing v. California, 538 U.S. 11, 155 L. Ed. 2d 108 (2003)). Thus, defendant's contention, that his sentence to a term of 80 to 105 months' imprisonment resulting from his offenses gives rise to an inference of gross disproportionality, is without merit.
Finally, we note that defendant's statement that a court must consider the "characteristics of the offender" in deciding whether an inference of gross disproportionality exists misapplies the analysis articulated in Graham. In Graham, the Court explained that its "cases addressing the proportionality of sentences fall within two general classifications[:]" first, "challenges to the length of term-of-years sentences given all the circumstances in a particular case[;]" and second, "cases in which the Court implements the proportionality standard by certain categorical restrictions on the death penalty." Id. at ___, 176 L. Ed. 2d at 836. The Court stated that, in cases where it had used categorical rules to define Eighth Amendment standards, the categorical rules had consisted of two subsets, "one considering the nature of the offense, the other considering the characteristics of the offender." Id. at ___, 176 L. Ed. 2d at 836 (emphasis added). In Graham, the Court adopted a categorical restriction on a term-of-years sentence which prohibits the imposition of a life sentence without parole on a juvenile offender who has not committed a homicide offense. Id. at ___, 176 L. Ed. 2d at 850. We point out to defendant that the categorical restriction adopted in Graham is not relevant to this case. Furthermore, defendant's brief does not advocate for the adoption of a categorical restriction. Instead, he asserts a challenge to "the length of [his] term-of-years sentence[] given all the circumstances in [his] particular case." See id. at ___, 176 L. Ed. 2d at 836. Defendant's argument is overruled.
Finally, defendant contends that the trial court erred by denying his request for an order "directing the State to supply [him] . . . a copy of the disposition of all habitual felon indictments returned by the grand jury within the past 36 months in order that [he] . . . might be in a position to examine the disposition of such indictments to adequately prepare for an evidentiary hearing." Defendant contends the State selectively used the habitual felon charge and that it "violated the Defendant's equal protection rights secured by the Fourteenth Amendment." He contends that had he been provided discovery, that information "would have assisted him in gathering information that would have possibly supported a claim of selective prosecution."
The record indicates that the discovery motion was not filed until the second and final day of defendant's trial. On appeal to this Court, defendant fails to cite the standard of review applicable to the denial of a discovery motion or any authority supporting his contention that the trial court erred by denying a discovery motion filed the final day of the trial, and "[i]t is not the duty of this Court to supplement an appellant's brief with legal authority or arguments not contained therein." Goodson v. P.H. Glatfelter Co., 171 N.C. App. 596, 606, 615 S.E.2d 350, 358, supersedeas denied and disc. review denied, 360 N.C. 63, 623 S.E.2d 582 (2005); see N.C.R. App. P. 28(b)(6). We deem this issue abandoned.
No error.
Judges McGEE and McCULLOUGH concur.
Report per Rule 30(e).