State v. Best

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-498 NORTH CAROLINA COURT OF APPEALS Filed: 5 November 2013 STATE OF NORTH CAROLINA v. Buncombe County Nos. 12 CRS 366; 53996 ANTHONY DEAN1 BEST Appeal by defendant from judgment entered 6 December 2012 by Judge Marvin P. Pope in Buncombe County Superior Court. Heard in the Court of Appeals 9 October 2013. Attorney General Roy Cooper, by Assistant Attorney General Jill F. Cramer, for the State. Appellate Defender Appellate Defender appellant. Staples Andrew S. Hughes, by DeSimone, for Assistant defendant- CALABRIA, Judge. Anthony entered 1 upon Deon jury Best ( defendant ) verdicts finding appeals him from guilty of a judgment attempted Both parties acknowledge in their briefs that the trial court s judgment contains a clerical error in that it erroneously lists defendant s middle name as Dean rather than Deon. -2robbery with a dangerous weapon ( attempted RWDW ) and attaining the status of an habitual felon. We find no error. I. Background On 24 March 2012, defendant entered Montfort Convenience Store in Asheville, North Carolina, and attempted to purchase beer. As David Walsh ( Walsh ), the store clerk, processed the transaction, defendant came around the counter money while raising a brick over his head. and demanded In response, Walsh locked the register and told defendant that it was jammed and would not open. Defendant attempted to open the register but was unable to do so. When another individual entered the store, Walsh went into a back room of the store, retrieved a baseball bat, and confronted defendant. Defendant threw the beer on the ground and left the store. On 9 July 2012, defendant was indicted for attempted RWDW and attaining the status of an habitual felon. The attempted RWDW indictment alleged that defendant committed this act by means of an assault consisting of threatening the use of a brick[.] having in possession and Beginning 4 December 2012, defendant was tried by a jury in Buncombe County Superior Court. -3On 6 December 2012, the jury returned verdicts finding defendant guilty of both charges. At sentencing, the trial court determined that defendant was a prior record level IV offender. This determination was partially conviction based upon defendant s robbery in Connecticut in 1998. prior for felony After the State provided the trial court with copies of the relevant 2012 Connecticut robbery statutes, the trial court concluded that defendant s Connecticut felony robbery conviction was substantially similar to a conviction for common law robbery in North Carolina, a class G felony. Defendant was then sentenced as a level IV offender to a minimum of 100 months to a maximum of 132 months in the North Carolina Division of Adult Correction. II. Defendant appeals. Sufficiency of Indictment Defendant argues that the trial court lacked subject matter jurisdiction to enter a judgment against him for his attempted RWDW conviction because defendant s indictment for that offense failed to sufficiently allege that defendant used a dangerous weapon during the robbery. We disagree. Although defendant did not challenge the validity of the indictment at trial, our Supreme Court has stated that where an indictment is alleged to be invalid on its face, thereby -4depriving the trial court of its jurisdiction, a challenge to that indictment may be made at any time, even if it was not contested in the trial court. State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 341 (2000). If an indictment does not include all the facts necessary to meet the elements of the offense ... defendant the and trial court subsequent lacks judgments jurisdiction are void and over the must be vacated. State v. Ellis, 168 N.C. App. 651, 655, 608 S.E.2d 803, 806 (2005) (citations omitted). This Court reviews the sufficiency of an indictment de novo. State v. McKoy, 196 N.C. App. 650, 652, 675 S.E.2d 406, 409 (2009). [T]he elements of attempted robbery are: (1) the unlawful attempt to possession, take use any or a personal threatened property use of from a another; firearm or (2) other dangerous weapon, and (3) danger or threat to the life of the victim. State v. Lee, ___ N.C. App. ___, ___, 720 S.E.2d 884, 895 (2012). In the instant case, defendant contends that the indictment fails to establish that he threatened the use of a dangerous weapon. When an indictment charges a crime that requires the use of a deadly weapon, the State is required to (1) name the weapon and (2) either to state expressly that the weapon used was a deadly weapon or to allege such facts as would necessarily -5demonstrate weapon. the deadly character of the State v. Ryder, 196 N.C. App. 56, 65-66, 674 S.E.2d 805, 812 (2009)(internal quotations and citations omitted). Defendant s indictment for attempted RWDW alleged that defendant unlawfully, willfully and feloniously did attempt to steal, take and carry away another s personal property, U.S. Currency, from Aytes Investments, Inc., DBA: Montford Convenience Store, when David Harold Walsh was present and in attendance. The defendant committed this act by means of an assault consisting of having in possession and threatening the use of a brick, whereby the life of David Harold Walsh was threatened and endangered. We find that the allegation that defendant threatened to use a brick that he had in his possession is sufficient demonstrate the deadly character of the weapon. 674 S.E.2d at 812. to Id. at 66, Our Supreme Court has previously noted that a brick thrown with force and violence in close proximity to the person of another, or used as a weapon to strike by holding it in hand, is a deadly weapon. State v. Perry, 226 N.C. 530, 535, 39 S.E.2d 460, 464 (1946) (internal quotation and citation omitted). brick The allegation that defendant threatened to use a against potential Walsh deadly uses, adequately and thus, encompasses the both indictment of these sufficiently -6charged defendant with attempted RWDW. This argument is overruled. III. Sentencing Defendant argues that the trial court erred by sentencing him as a prior record level IV offender because the State failed to prove that substantially offense. his 1998 similar to Connecticut North robbery Carolina s conviction common law was robbery We disagree. This Court reviews alleged sentencing errors for whether [the] sentence is supported by evidence introduced at the trial and sentencing hearing. State v. Deese, 127 N.C. App. 536, 540, 491 S.E.2d 682, 685 (1997) (quoting N.C. Gen. Stat. § 15A1444(a1) (Cum. sufficient Supp. evidence at 1996)). Whether sentencing that the a State prior presented out-of-state conviction is substantially similar to a North Carolina criminal offense is a question of law which is reviewed de novo. State v. Fortney, 201 N.C. App. 662, 669, 687 S.E.2d 518, 524 (2010). The prior record level of a felony offender is determined by calculating the sum of the points assigned to each of the offender s prior convictions . . . . N.C. Gen. Stat. § 15A1340.14(a) (2011). If the State proves by the preponderance of the evidence that an offense classified as -7either a misdemeanor or a felony in the other jurisdiction is substantially similar to an offense in North Carolina that is classified as a Class I felony or higher, the conviction is treated as that class of felony for assigning prior record level points. N.C. Gen. Stat. § 15A-1340.14(e). Whether an out-of-state offense is substantially similar to a North Carolina offense is a question of law involving comparison of the elements of the out-of-state offense to those of the North Carolina offense. State v. Hanton, 175 N.C. App. 250, 254-55, 623 S.E.2d 600, 604 (2006). Consequently, while a defendant may stipulate to the existence of an conviction out-of-state was a felony cannot stipulate to whether conviction or the and to misdemeanor conviction similar to a North Carolina offense. whether offense, is that he substantially State v. Henderson, 201 N.C. App. 381, 387, 689 S.E.2d 462, 466 (2009). In the instant case, the State included defendant s 1998 Connecticut conviction for (F) Robbery as part of his prior record level worksheet, and defendant stipulated that he had been convicted of that felony. find that defendant s substantially similar to offense, a Class G felony. The State asked the court to Connecticut North robbery Carolina s conviction common law was robbery Subsequently, the State provided the -8trial court statutes. with copies After of reviewing concluded that defendant s for an offense Carolina s three the was law robbery Connecticut statutes Connecticut which common 2012 provided, robbery the court robbery conviction substantially offense and was similar to North assessed defendant four prior record level points. Defendant contends that the State provided evidence to establish substantial similarity. insufficient In support of his argument, defendant relies upon Henderson and State v. Burgess, ___ N.C. App. ___, 715 S.E.2d 867 (2011). In Henderson, this Court held that the State failed to prove that the defendant s out-of-state convictions were substantially similar to a North Carolina offense because [t]he out-of-state crimes were not identified by statutes in the record, but instead only by brief and non-specific descriptions, especially robbery and domestic violence, which could arguably describe more than one specific [out-of-state] crime. 201 N.C. App. at 388, 689 S.E.2d at 467. Moreover, although the State attempted to identify, in its appellate brief, the specific out of-state statutes that the defendant was purportedly convicted under, it did not identify these . . . statutes during sentencing before the trial court or in the record on appeal. Id. In Burgess, this Court -9identified several errors similarity determination. 870. in the trial court s substantial ___ N.C. App. at ___, 715 S.E.2d at Pertinent to defendant s current argument, the Court found that the trial court s substantial similarity determination was erroneous because [a]lthough the State presented the trial court with Exhibit 3, printed copies of outof-state statutes purportedly serving as the basis for the nine out-of-state convictions the State used in computing defendant's prior record level, the out-of-state crimes [on the State s worksheet] were not identified by statutes, but only by brief and non-specific descriptions and could arguably describe more than one specific South Carolina and [Florida] crime, which makes it unclear whether those statutes were the basis for defendant s convictions. Id. (internal quotations and citation omitted). Henderson and Burgess, description of an failure the State actual of sentencing under court Court out-of-state out-of-state convicted this did to to provide statutes not make the provide a found conviction Thus, in both that a coupled generic with definitive evidence defendants were sufficient substantial of the the purportedly evidence similarity for the finding. Defendant contends that this precise scenario occurred in the instant case. -10However, defendant s sentencing hearing in this case is distinguishable from the sentencing hearings in Henderson and Burgess. While the description of defendant s Connecticut conviction on his prior record level worksheet, (F) Robbery, is similar to the generic descriptions in those cases which were found to be insufficient, the evidence presented by the State at defendant s sentencing hearing exceeds the evidence presented in Henderson and Burgess. In Henderson, the State failed to provide any out-of-state statutes to the trial court, and in Burgess, the State only provided a single statute for each conviction. case, the State potentially provided applicable the trial Connecticut court felony In the instant with all robbery of the statutes. After reviewing each of the statutes provided by the State, the trial court conviction offense determined was of that substantially common law defendant s Connecticut similar the robbery. The to elements North of robbery Carolina common-law robbery are 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. Moss, 332 N.C. 65, 72, 418 S.E.2d 213, omitted). 217 (1992) (internal quotations and citation Analogous elements are included in all three of the -11Connecticut robbery statutes provided to the trial court, and as a result, a conviction pursuant to any of the three statutes would be, at the very least, substantially similar to a common law robbery conviction in North Carolina.2 Thus, unlike Henderson and Burgess, the instant case presents no danger that the trial court examined only the wrong specific out-of-state offense when performing its substantial similarity comparison. Since the trial court considered all of the possible Connecticut robbery statutes and each statute is substantially similar to our common law robbery offense, the State provided sufficient evidence for the trial court to conclude that defendant was convicted of an offense that was substantially similar to common law robbery. Defendant also argues that the trial court erred in concluding that defendant s Connecticut robbery conviction was substantially similar to common law robbery because the State only submitted the statutes, without unchanged since 2012 version establishing defendant s of that the those conviction in Connecticut robbery statutes remained 1998. See, e.g., State v. Morgan, 164 N.C. App. 298, 309, 595 S.E.2d 804, 812 2 The State did not argue that defendant s prior conviction was substantially similar to any offense other than common law robbery. -12(2004)(remanding for resentencing when the State presented a copy of a 2002 out-of-state homicide statute but offered no evidence that the statute was unchanged from the 1987 version under which Morgan, court the the in 2012 the defendant was Connecticut instant case convicted). statutes However, provided included to unlike trial history statutory the which sufficiently demonstrated that the 2012 statutes were the same version of the statutes which were in effect at the time of defendant s 1998 conviction. Thus, the trial court properly relied and upon defendant s these statutes Connecticut robbery correctly conviction determined was similar to our common law robbery offense. that substantially Accordingly, the trial court did not err when it assigned four prior record level points to that conviction. This argument is overruled. IV. Defendant s indictment Conclusion for attempted RWDW included sufficient allegations to demonstrate that he used a brick as a dangerous weapon during the course of the robbery. The State provided sufficient evidence for the trial court to conclude that defendant s substantially offense. 1998 similar to Consequently, Connecticut North the robbery Carolina s trial court conviction common law properly was robbery sentenced -13defendant as a level IV offender. Defendant received a fair trial, free from error. No error. Judges ELMORE and STEPHENS concur. Report per Rule 30(e).

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