A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).

NO. COA01-1099

NORTH CAROLINA COURT OF APPEALS

Filed: 4 June 2002

STATE OF NORTH CAROLINA

         v.                        Randolph County
                                Nos. 99 CRS 6015-16
GARRY LYNN SHOFFNER, 99 CRS 6213-15
            Defendant.                
    

    Appeal by defendant from judgments entered 12 December 2000 by Judge A. Moses Massey in Randolph County Superior Court. Heard in the Court of Appeals 28 May 2002.

    Attorney General Roy Cooper, by Assistant Attorney General Thomas G. Meacham, Jr., for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Constance E. Widenhouse, for the defendant.

    HUDSON, Judge.

    Defendant Garry Lynn Shoffner was charged with two counts of first degree murder, two counts of second degree kidnapping, and fraudulently setting fire to a dwelling house. The evidence tends to show the following: Defendant and Priscilla Shoffner were once married, but they separated after years of domestic violence and abuse. Defendant and Priscilla, however, continued to see each other regularly. On 5 May 1999, after accompanying Priscilla and her mother to court, where Priscilla disposed of an unrelated traffic matter, defendant kidnapped Priscilla at gun point. After extracting a declaration of love from Priscilla and forcing her topromise that she would return to him, defendant released Priscilla. However, upon seeing Priscilla and her mother at the Asheboro Police Department, where they were reporting the earlier kidnapping, defendant followed Priscilla and her mother after they left the police department. Defendant intentionally crashed his car into the vehicle occupied by the two women. Defendant got out of his car and walked to the women's vehicle and fired multiple shots, killing both Priscilla and her mother. Thereafter, defendant got into a pick-up truck, which was stopped at the stoplight adjacent to the site of the collision and which was occupied by Jim Orcutt and Jim Burner. Defendant stuck a “finger or something” into Orcutt's ribs, ordered Orcutt to move over, and told Burner to drive. Defendant directed Burner to a street near his apartment, where he got out of the truck. Defendant entered his apartment, set fires in the bathroom and his children's bedroom, and attempted to commit suicide by cutting his wrists. Defendant had planned to commit suicide by shooting himself after shooting Priscilla and her mother, but the gun jammed. Fire fighters and police officers responded to the scene, and took defendant into custody.
    A jury found defendant guilty as charged. Upon recommendation of the jury, the trial court sentenced defendant to consecutive life sentences without the possibility of parole for each of the murders. The court imposed additional consecutive terms of twenty- nine to forty-four months imprisonment for each second-degree kidnapping conviction, and eight to ten months imprisonment for thefraudulently burning a dwelling conviction. Defendant appeals.
    Defendant's sole argument on appeal is that his conviction for first degree murder must be vacated because the “short-form” murder indictment used in his case failed to adequately charge the offense of first degree murder. Defendant acknowledges, “that the Supreme Court of North Carolina has rejected similar challenges to the short-form murder indictment commonly used in this State.” However, he presents this issue for reconsideration in light of the Supreme Court's recent ruling in State v. Lucas, 353 N.C. 568, 548 S.E.2d 712 (2001). Defendant also explains that the issue is raised to preserve his rights to present this issue in future appellate proceedings.
    As defendant concedes, our Supreme Court has found that the use of short-form indictments to charge first degree murder is constitutional. The Court noted in State v. Braxton, 352 N.C. 158, 175, 531 S.E.2d 428, 437-38 (2000), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001),
        [t]he crime of first-degree murder and the accompanying maximum penalty of death, as set forth in N.C.G.S. § 14-17 and North Carolina's capital sentencing statute, are encompassed within the language of the short-form indictment. . . . Thus, no additional facts needed to be charged in the indictment. Given the foregoing, defendant had notice that he was charged with first-degree murder and that the maximum penalty to which he could be subjected was death. Moreover, under the law of this State, whenever a defendant is charged with murder, questions of fact related to guilt or innocence and to capital sentencing must be determined by the jury; and the State has the burden of proving all elements of the crime and aggravating circumstances beyond a reasonable doubt. In Lucas, our Supreme Court addressed the issue of whether the firearm enhancement under N.C. Gen. Stat. § 15A-1340.16A (1999), which could result in a defendant being sentenced to a prison term greater than the prescribed statutory maximum, had to be charged in an indictment, submitted to the jury for determination, and proved beyond a reasonable doubt. See Lucas, 353 N.C. 568, 548 S.E.2d 712. The Court held that under the United States Supreme Court's holdings in Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311 (1999), and Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000), the firearm enhancement under N.C.G.S. § 15A-1340.16A must be charged in the indictment, proven beyond a reasonable doubt, and passed upon by the jury. See Lucas, 353 N.C. at 597-98, 548 S.E.2d at 731. The Lucas Court, citing Jones, also noted that each element “must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Lucas, 353 N.C. at 595, 548 S.E.2d at 730 (internal citations omitted.)
    However, pursuant to the North Carolina Supreme Court's determination that it has “examined the validity of short-form indictments in light of the Supreme Court's decisions in Jones and Apprendi, and concluded that nothing in either case altered prior case law on these matters,” we are bound to reject defendant's argument. State v. King, 353 N.C. 457, 468, 546 S.E.2d 575, 585 (2001) (citing State v. Braxton, 352 N.C. at 175, 531 S.E.2d at 437-8), cert. denied, ___ U.S. ___, 151 L. Ed. 2d 1002 (2002).
    No error.
    Judges GREENE and TYSON concur.    Report per Rule 30(e).

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