NO. COA01-989
Appeal by defendant from judgments entered 30 October 2000 by
Judge Narley L. Cashwell in Alamance County Superior Court. Heard
in the Court of Appeals 22 May 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Donald W. Laton, for the State.
Daniel H. Monroe for defendant-appellant.
CAMPBELL, Judge.
Defendant was indicted on one count of first degree rape, one
count of felony breaking or entering, one count of first degree
kidnapping, two counts of misdemeanor assault inflicting serious
injury, and one count of assault with a deadly weapon with intent
to kill inflicting serious injury. The State did not proceed on
the misdemeanor assault inflicting serious injury charge naming
Pamela Hadley as the victim.
(See footnote 1)
Following a jury trial, defendantwas convicted of attempted first degree rape, felony breaking or
entering, first degree kidnapping, and assault with a deadly weapon
with intent to kill inflicting serious injury. The trial court
arrested judgment on first degree kidnapping and sentenced
defendant for second degree kidnapping. Defendant was sentenced to
four consecutive terms of imprisonment. Defendant appeals.
The State's evidence tended to show that on 19 May 2000, at
approximately 11:30 a.m., defendant knocked on the front door of
Bonnie Prevette's (“Prevette”) residence at 1011 South Main Street
in Burlington and asked Prevette if he could mow her lawn for
twenty dollars. After declining defendant's offer, Prevette
stepped back to close the door. Defendant grabbed the screen door
and started pushing his way into the house. Prevette responded:
“You're not coming in my house. Get out of my house. You cannot
come in my house.” Defendant reached through the screen door and
hit Prevette in the face, causing her to lose her grip on the front
door. Defendant continued hitting Prevette in the face, eventually
knocking her to the floor. Defendant then positioned himself on
top of Prevette, tore off Prevette's shorts, pulled down his own
pants, removed his penis, and began “working it back and forth”
with one hand while keeping the other hand on Prevette's throat.
Defendant then placed his hand and penis between Prevette's legsand began pushing his penis up against her vaginal area, while
keeping one hand on her throat. Prevette protested.
While defendant was assaulting Prevette, Prevette's daughter,
Pamela Hadley (“Hadley”), entered the house through the back door.
Hadley walked through the kitchen and into the next room where she
saw her son, Nolan, asleep on the floor. Hadley opened a door
which led to the living room, where she thought her mother would be
watching television. When Hadley opened the door, she saw a man's
legs sticking out from the hallway. She then heard Prevette state,
“Just get off me. Please get off.” Hadley also noticed Prevette's
eyeglasses on the floor. Realizing her mother was in trouble,
Hadley ran outside and called 911 from her car phone.
After calling 911, Hadley went back into the house hoping to
retrieve her son. She again entered the house through the back
door. As she was walking through the house, Hadley was confronted
by defendant and her mother. Defendant had stopped attempting to
rape Prevette when he was startled by a noise in the house, and had
dragged Prevette through the house as he was looking for the source
of the noise.
Upon confronting Hadley, defendant grabbed her by the shirt,
hit her in the face, and knocked her to the floor. Defendant then
hit Hadley multiple times in the face before he got on top of her
and began choking her. As he was beating and choking Hadley withone hand, defendant was holding Prevette with the other. Prevette
kicked defendant in the stomach, which caused him to stagger and
release his grip on Hadley's throat. Defendant responded by
hitting both victims several more times. Hadley then rolled over
and noticed her son, whereupon she started screaming loudly.
Defendant then stopped attacking the women and allowed Hadley to
hold her son. For approximately two to three minutes, defendant
did not assault the two women. Officer Amy Isley then knocked on
the front door and defendant fled from the house.
At the conclusion of the State's evidence, defendant moved to
dismiss all of the charges against him on the grounds of
insufficiency of the evidence. The trial court dismissed the first
degree rape charge but allowed the State to proceed on attempted
first degree rape. The trial court also dismissed the misdemeanor
assault inflicting serious injury charge naming Bonnie Prevette as
the victim.
Defendant's evidence consisted solely of the testimony of his
mother, Dorothea Rogers, who testified that defendant had a history
of mental illness for which he had been hospitalized on five or
more occasions. At the close of all the evidence, defendant moved
to dismiss the remaining charges against him. The trial court
denied this motion. Defendant asserts twelve assignments of error in the record on
appeal. However, defendant fails to present argument or authority
in support of several of his assignments of error. Those
assignments of error are deemed abandoned pursuant to N.C. R. App.
P. 28(b)(6). We only address those assignments of error properly
set forth and argued in defendant's brief.
I.
Defendant first contends the trial court erred in denying his
motions to dismiss the charges of attempted first degree rape,
first degree kidnapping, and assault with a deadly weapon with
intent to kill inflicting serious injury.
A motion to dismiss is properly denied if “there is
substantial evidence of each essential element of the offense
charged and of the defendant being the perpetrator of the offense.”
State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996).
“Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
State v.
Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). In ruling
on a motion to dismiss, the trial court must consider the evidence
in the light most favorable to the State and give the State the
benefit of every reasonable inference that may be drawn from the
evidence.
State v. Jaynes, 342 N.C. 249, 274, 464 S.E.2d 448, 463
(1995). The test of the sufficiency of the evidence is the samewhether the evidence is direct, circumstantial, or both.
State v.
Jones, 303 N.C. 500, 504, 279 S.E.2d 835, 838 (1981).
Attempted First Degree Rape
N.C. Gen. Stat. § 14-27.2 (2001) defines first degree rape in
pertinent part as follows:
(a) A person is guilty of rape in the first
degree if the person engages in vaginal
intercourse:
. . .
(2) With another person by force and
against the will of the other person, and:
. . .
b. Inflicts serious personal injury
upon the victim
or another person; or
. . . .
The trial court in the mandate of its instructions to the jury
on the charge of attempted first degree rape stated:
So I charge you, that if you find from the
evidence beyond a reasonable doubt that on or
about May the 19th, 2000, the Defendant
intended to have vaginal intercourse with
Bonnie Prevette by force and against her will,
and that the Defendant performed an act or
acts which was or were calculated and designed
to bring about vaginal intercourse by force
and against Bonnie Prevette's will, and would
have resulted in such intercourse had the
Defendant not been stopped or prevented from
completing his apparent course of action, and
that the Defendant inflicted serious personal
injury upon Bonnie Prevette
or another person,
it would be your duty to return a verdict ofguilty of attempted first degree rape.
(Emphasis added).
Defendant contends there was insufficient evidence the victim
of the attempted rape, Bonnie Prevette, suffered serious personal
injury. Defendant further contends the State could not rely on the
injuries suffered by Pamela Hadley in elevating the offense to
attempted
first degree rape because Hadley was not present during
the attempted rape.
When the State is proceeding under the theory that the serious
personal injury was inflicted on a person other than the victim of
the rape, or attempted rape, there is no requirement under N.C.G.S.
§ 14-27.2(a)(2)(b) that the other person actually be present during
the rape, or attempted rape.
See State v. Blackstock, 314 N.C.
232, 333 S.E.2d 245 (1985). In
Blackstock, the Supreme Court held
that the element of infliction of serious personal injury is
satisfied
when there is a series of incidents forming
one continuous transaction between the rape or
sexual offense and the infliction of the
serious personal injury. Such incidents
include injury inflicted on the victim to
overcome resistance or to obtain submission,
injury inflicted upon the victim or another in
an attempt to commit the crimes or in
furtherance of the crimes of rape or sexual
offense, or injury inflicted upon the victim
or another for the purpose of concealing the
crimes or to aid in the assailant's escape.
Id. at 242, 333 S.E.2d at 252 (emphasis added). In the instant case, the State's evidence tended to show
Hadley came into the house while defendant was attacking Prevette.
Defendant apparently heard Hadley and discontinued his attempt to
rape Prevette. Defendant then pulled Prevette through the house,
whereupon the two of them encountered Hadley, who had reentered the
house after calling the police. Defendant then attacked Hadley,
hitting her in the face and choking her. Viewing the evidence in
the light most favorable to the State, a jury could have reasonably
inferred that defendant attacked Hadley for the purpose of
concealing the attempted rape of Prevette or aiding in his escape
from apprehension and that the attempted rape of Prevette and the
attack on Hadley were part of one continuous transaction.
Accordingly, the State could properly rely on the injuries suffered
by Hadley in elevating the attempted rape to attempted
first degree
rape.
"In determining whether serious personal injury has been
inflicted, the court must consider the particular facts of each
case."
State v. Herring, 322 N.C. 733, 739, 370 S.E.2d 363 (citing
State v. Roberts, 293 N.C. 1, 235 S.E.2d 203 (1977)). The injury
must be serious but it must fall short of causing death.
See
Roberts, 293 N.C. at 13, 235 S.E.2d at 211;
State v. Jones, 258
N.C. 89, 91, 128 S.E.2d 1, 3 (1962). Our courts have consistently
stated that further definition seems neither wise nor desirable.
Roberts, 293 N.C. at 13, 235 S.E.2d at 211;
Jones, 258 N.C. at 91,
128 S.E.2d at 3.
Here, the State's evidence tended to show that both Prevette
and Hadley were hit in the face multiple times and were choked by
defendant. Prevette suffered a broken nose, a concussion, bruises
on the upper and lower parts of both arms, and abrasions to other
parts of her body. Dr. Strickland testified that Prevette's broken
nose was the type of injury that would cause “severe pain.” Hadley
suffered a cracked cheekbone, a broken nose and a broken jaw. The
broken jaw required surgery which resulted in Hadley's jaw being
wired shut for three weeks. We conclude that the evidence, taken
in the light most favorable to the State, supports the serious
personal injury element of attempted
first degree rape based on the
injuries suffered by either of the two victims in the instant case.
Defendant also argues the trial court should have granted his
motion to dismiss attempted
first degree rape because the
indictment did not allege which element the State was relying on to
elevate the crime to a
first degree offense. However, N.C. Gen.
Stat. § 15-144.1 does not require that an indictment for rape
contain such an allegation.
See State v. Lowe, 295 N.C. 596, 247
S.E.2d 878 (1978).
Assault With a Deadly Weapon With Intent to Kill Inflicting
Serious Injury
Defendant contends there was insufficient evidence of his use
of a deadly weapon or his intent to kill Pamela Hadley to support
submitting the felony assault charge to the jury. We disagree.
The indictment alleged defendant assaulted Pamela Hadley with
his hand, a deadly weapon, with the intent to kill inflicting
serious injury. Defendant contends that the evidence presented at
trial was insufficient to classify defendant's singular hand, as
opposed to his hands or fists, as a deadly weapon. Defendant
further maintains that no prior case has supported the proposition
that a single hand may be used as a deadly weapon.
A deadly weapon is “any article, instrument or substance which
is likely to produce death or great bodily harm.”
State v.
Sturdivant, 304 N.C. 293, 301, 283 S.E.2d 719, 725 (1981). "It has
long been the law of this state that '[w]here the alleged deadly
weapon and the manner of its use are of such character as to admit
of but one conclusion, the question as to whether or not it is
deadly . . .
is one of law, and the Court must take responsibility
of so declaring.'”
State v. Torain, 316 N.C. 111, 119, 340 S.E.2d
465, 470 (1986) (quoting
State v. Smith, 187 N.C. 469, 470, 121
S.E.737, 737 (1924)
(emphasis in original)). However, "where the
instrument, according to the manner of its use or the part of thebody at which the blow is aimed, may or may not be likely to
produce [death or great bodily harm], its allegedly deadly
character is one of fact to be determined by the jury."
State v.
Joyner, 295 N.C. 55, 64-65, 243 S.E.2d 367, 373 (1978);
see also
State v. Grumbles, 104 N.C. App. 766, 770-71, 411 S.E.2d 407, 410
(1991). This Court has held that hands and fists may be considered
deadly weapons, given the manner in which they were used and the
relative size and condition of the parties involved.
See State v.
Krider, 138 N.C. App. 37, 530 S.E.2d 569 (2000);
Grumbles, 104 N.C.
App. at 771, 411 S.E.2d at 410;
State v. Jacobs, 61 N.C. App. 610,
611, 301 S.E.2d 429, 430 (1983).
In the instant case, the State's evidence showed that the
manner in which defendant used his hand to assault the victim,
Pamela Hadley, had devastating physical effect. Defendant hit the
victim so hard that she suffered a cracked cheekbone, a broken nose
and a broken jaw. The broken jaw required surgery. The evidence
also showed that defendant choked the victim so severely that red
marks were left on her neck. Further, the evidence shows that
defendant is six feet two inches tall and weighs one hundred sixty-
five (165) pounds, while the victim is a female approximately five
feet three inches tall and weighing ninety-nine (99) pounds.
Based on this evidence, we conclude the trial court properly
allowed the jury to decide whether defendant's hand was a deadlyweapon. The distinction advanced by defendant on appeal between a
singular “hand,” as opposed to both “hands” or "fists," is
insignificant in light of the evidence in the instant case. The
evidence showed that defendant hit and choked Pamela Hadley with
one hand while holding the other victim, Bonnie Prevette, with his
other hand. Accordingly, we hold that a single hand may be
considered a deadly weapon, based on the manner in which it is used
and the relative size and condition of the parties involved.
Defendant also contends the evidence was insufficient to show
his intent to kill Pamela Hadley. Defendant focuses on the fact
that, after initially beating and choking Pamela Hadley, he stopped
and allowed her to hold and comfort her baby son, after which he
did not resume assaulting her. In fact, the evidence shows
defendant did not assault Pamela Hadley in the final two to three
minutes he was in the house prior to running from the police.
Accordingly, defendant argues the evidence was insufficient to show
intent to kill, but rather showed an ample opportunity to kill on
his part which was not acted upon. We disagree with defendant's
contention.
“The defendant's intent to kill may be inferred from the
nature of the assault, the manner in which it was made, the conduct
of the parties, and other relevant circumstances.”
State v. James,
321 N.C. 676, 688, 365 S.E.2d 579, 586 (1988) (citing
State v.Thacker, 281 N.C. 447, 189 S.E.2d 145 (1972)). There is ample
evidence in the record from which a jury could reasonably infer
that defendant intended to kill Pamela Hadley. Defendant hit
Hadley in the face with such force that she suffered a cracked
cheekbone, a broken nose, and a broken jaw. Defendant also choked
Hadley to the point where she was having extreme difficulty
breathing and thought that she was going to die. Although
defendant is correct that the evidence shows he stopped hitting and
choking Ms. Hadley for two to three minutes before he fled from the
house, these additional facts make the State's evidence no less
sufficient to send to the jury. In sum, the evidence supported a
reasonable inference that defendant intended to kill Pamela Hadley
while he was hitting and choking her. The fact defendant may have
changed his mind and allowed Hadley to escape from his attack does
not mean the State was precluded from getting to the jury on the
issue of his intent to kill. Defendant's argument to the contrary
lacks merit.
Kidnapping
Defendant contends the trial court erred in denying his motion
to dismiss the kidnapping charge because the evidence showed that
any removal of the victim occurred after he discontinued his
attempt to rape her. We disagree. N.C. Gen. Stat. § 14-39 (2001) provides in pertinent part:
(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:
(1) Holding such other person for a
ransom or as a hostage or using such other
person as a shield; or
(2) Facilitating the commission of any
felony or facilitating flight of any person
following the commission of a felony; or
(3) Doing serious bodily harm to or
terrorizing the person so confined, restrained
or removed or any other person; or
. . . .
The indictment in the instant case charged that defendant committed
kidnapping by unlawfully removing the victim from one place to
another for the purpose of facilitating the commission of first
degree rape. Accordingly, the jury was only permitted to convict
defendant of first degree kidnapping if the evidence showed that he
unlawfully removed the victim from one place to another for the
purpose of facilitating the commission, or the attempted
commission, of first degree rape.
See State v. Tucker, 317 N.C.
532, 346 S.E.2d 417 (1986).
The State's evidence tended to show that, after defendant
forced his way into Prevette's house, he knocked her to the floor
and attempted to rape her. According to Prevette, defendantapparently became startled, got up, grabbed her by the arm and
pulled her from room to room in the house while his pants were
still down. Defendant and Prevette then encountered Hadley, who
had entered the house through the back door. Defendant began
beating and choking Hadley with one hand while holding Prevette
with the other. Defendant struck both victims numerous times
before a police officer knocked on the front door causing defendant
to flee from the house.
While we agree that one inference to be drawn from this
evidence is that defendant permanently discontinued his attempt to
rape Prevette, an equally reasonable inference could be drawn that
defendant moved Prevette from room to room in the house while
maintaining his intent to rape her. Defendant still had his pants
down while dragging Prevette through the house and later assaulted
both she and her daughter. The jury could have reasonably inferred
that defendant intended to resume his attempted rape of Prevette
but was not provided the opportunity due to Hadley's entrance into
the house, the screaming of her baby son, and the police officer
knocking on the door. Viewed in the light most favorable to the
State, there was substantial evidence that defendant's removal of
Prevette through the house was for the purpose of facilitating the
attempted rape. We likewise disagree with defendant's contention that the
removal of Prevette was not a separate, complete act, independent
and apart from the acts necessary to constitute the attempted rape.
See State v. Silhan, 297 N.C. 660, 256 S.E.2d 702 (1979). It is
clear that the removal in the instant case was not necessary to
accomplish the attempted rape; in fact, the attempted rape had
already been accomplished at the time of the removal. Accordingly,
the trial court did not err in denying defendant's motion to
dismiss the kidnapping charge.
II.
Defendant next contends the trial court erred in its
instructions on attempted first degree rape by instructing the jury
that it could find defendant guilty if it found that he inflicted
serious personal injury on Bonnie Prevette or any other person.
Having already held that the State presented sufficient evidence to
show that the attempted rape of Prevette and the assault of Hadley
were part of a continuous transaction, we conclude that the trial
court's instructions on this charge were proper.
See Blackstock,
314 N.C. 232, 333 S.E.2d 245 (1985).
Defendant next contends the trial court erred in denying his
requests for jury instructions on voluntary intoxication.
Defendant argues that the evidence of his mental condition on theday of the crimes, coupled with his history of mental health,
alcohol and drug addiction problems, warranted a jury instruction
on voluntary intoxication. We disagree.
To be entitled to an instruction on voluntary intoxication, a
defendant must produce substantial evidence which would support a
conclusion by the judge that the defendant's mind and reason were
so completely intoxicated and overthrown as to render him utterly
incapable of forming the intent required to commit the offense.
State v. Mash, 323 N.C. 339, 346, 372 S.E.2d 532, 536 (1988);
see
also State v. Lancaster, 137 N.C. App. 37, 45, 527 S.E.2d 61, 67
(2000). "Evidence of mere intoxication, however, is not enough to
meet the defendant's burden of production."
Mash, 323 N.C. at 346,
372 S.E.2d at 536. A person may be excited, intoxicated and
emotionally upset, and still have the capability to formulate the
necessary intent required to commit a criminal offense.
See State
v. McQueen, 324 N.C. 118, 142, 377 S.E.2d 38, 52 (1989);
Mash, 323
N.C. at 347, 372 S.E.2d at 537;
State v. Hamby, 276 N.C. 674, 678,
174 S.E.2d 385, 387 (1970).
In the instant case, Officer Poston testified that defendant
had a moderate odor of alcohol about his person after he was
apprehended by police. Defendant was given an alco-sensor test
which showed a blood alcohol content of .07, a level below the
level at which one would be presumed to be driving while impairedunder our motor vehicle laws.
See State v. Medley, 295 N.C. 75,
243 S.E.2d 374 (1978) (holding evidence that a defendant's blood
alcohol content is such that driving would violate the motor
vehicle laws, standing alone, does not entitle the defendant to an
instruction on voluntary intoxication). Although Donna Balsinger
testified defendant had “wild-looking eyes” when he ran through her
business attempting to avoid the police, and defendant's mother
testified about his history of drug and alcohol abuse, Officer
Poston testified that, during questioning, defendant's speech was
clear and understandable and not slurred, that defendant was
responsive to the officer's questions, and that defendant's eyes
were clear. Further, both Officer Poston and Officer Long
testified that in their opinion defendant was not impaired.
Viewed in the light most favorable to defendant, there was not
substantial evidence that defendant was utterly incapable of
forming the requisite intent to commit the crimes at issue.
Therefore, defendant was not entitled to an instruction on
voluntary intoxication.
III.
Defendant next contends the trial court erred in denying his
motion to suppress the use of two prior misdemeanor convictions
used by the State to elevate his prior record level for sentencing
purposes from Level IV to Level V. Defendant argues that theseprior convictions were obtained in violation of his right to
counsel.
N.C. Gen. Stat. § 15A-980 governs defendant's motion to
suppress prior convictions in violation of his right to counsel.
The statute reads, in pertinent part:
(a) A defendant has the right to suppress the
use of a prior conviction that was obtained in
violation of his right to counsel if its use
by the State is to impeach the defendant or if
its use will:
(1) Increase the degree of crime of which
the defendant would be guilty; or
(2) Result in a sentence of imprisonment
that otherwise would not be imposed; or
(3) Result in a lengthened sentence of
imprisonment.
. . .
(c) When a defendant has moved to suppress use
of a prior conviction under the terms of
subsection (a), he has the burden of proving
by the preponderance of the evidence that the
conviction was obtained in violation of his
right to counsel. To prevail, he must prove
that at the time of the conviction [1] he was
indigent, [2] had no counsel, and [3] had not
waived his right to counsel. If the defendant
proves that a prior conviction was obtained in
violation of his right to counsel, the judge
must suppress use of the conviction at trial
or in any other proceeding if its use will
contravene the provisions of subsection (a).
N.C. Gen. Stat. § 15A-980 (2001). This Court has held that a
defendant must prove all three facts--(1) he was indigent, (2) hadno counsel, and (3) had not waived his right to counsel--by the
preponderance of the evidence.
State v. Brown, 87 N.C. App. 13,
22, 359 S.E.2d 265, 270 (1987);
Cf. State v. Haislip, 79 N.C. App.
656, 658, 339 S.E.2d 832, 834 (1986).
It is uncontroverted that the two prior convictions defendant
sought to suppress were used to elevate his prior record level to
Level V, which resulted in a lengthened sentence of imprisonment.
It is also uncontroverted that defendant had no counsel at the time
of the two prior convictions. Thus, the only issues are whether
defendant was indigent and whether defendant waived his right to
counsel.
In the instant case, the trial court conducted a hearing on
defendant's motion to suppress the prior convictions. At the
hearing, defendant testified as follows:
Q Never had a lawyer on any of those? Okay.
Back on July 11th, 1997, could you afford to
hire a lawyer back then?
A No, I couldn't.
. . .
Q We're not through yet. We're still in it,
but we've been trying it for six days. Now,
back in 19 -- on October 6, 1998, could you
afford to hire a lawyer back then?
A No.
Defendant's testimony was the only evidence elicited concerning
whether defendant was indigent at the time of the prior
convictions.
In
Brown, this Court was faced with a similar set of facts.
There, the trial court heard evidence following the defendant's
motion to suppress the use of a prior conviction. The defendant
was the sole witness. Following the defendant's testimony, the
trial court made the following pertinent findings of fact:
Next. That the defendant Brown testified that
he had called an attorney and was quoted a
fee; that he does not remember but he was
advised as to the penalty that he might
receive.
Next. That the defendant Brown then made his
own decision that he could not afford to hire
an attorney.
That the defendant did not make a request of
the Court at any time that he be appointed
counsel on the grounds of being indigent.
Based on these findings of fact, the trial court made the following
pertinent conclusion of law:
2. That the defendant has failed to prove by a
preponderance of the evidence that he was
indigent within the meaning of the General
Statutes of North Carolina.
The trial court denied the defendant's motion to suppress use of
the prior conviction, and this Court upheld that decision on
appeal.
Brown, 87 N.C. App.
at 22-24, 359 S.E.2d at 270-71. This Court's decision in
Brown stands for the proposition that
the mere assertion by a defendant that he could not afford an
attorney at the time of a prior conviction does not prove by a
preponderance of the evidence that the defendant was indigent, as
required under N.C.G.S. § 15A-980. Applying this proposition to
the instant case, we conclude defendant failed to prove by the
preponderance of the evidence that he was indigent at the time of
the two prior convictions which he sought to suppress at trial.
The only evidence of defendant's indigency was his mere assertion
that he could not afford an attorney at the time of the prior
convictions. Having concluded defendant failed to prove by a
preponderance of the evidence that he was indigent at the time of
the prior convictions, we need not consider whether defendant had
waived his right to counsel. Defendant's assignment of error is
overruled.
We have considered defendant's remaining assignments of error
and, based on the record, briefs, and applicable law, we find them
lacking in merit.
Defendant received a fair trial and sentencing free from
error.
No error.
Judges WYNN and HUNTER concur.
Footnote: 1