STATE OF NORTH CAROLINA
v
.
Cherokee County
No. 01 CRS 000064-65
TERRY DEWAYNE OWNBEY,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Dorothy Powers, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Anne M. Gomez, for defendant-appellant.
EAGLES, Chief Judge.
Terry Dewayne Ownbey (“defendant”) appeals from judgment
entered on his convictions of assault on a female, habitual
misdemeanor assault and being an habitual felon. After careful
consideration of the briefs and record, we discern no error.
The State's evidence tended to show that Shylon Cable
(“Cable”) lived with Sally McTaggert (“McTaggert”) in McTaggert's
home. On 4 January 2001, Cable and Wendell Ownbey arrived at
McTaggert's house with some carpet as McTaggert and her boyfriend
were leaving. Cable saw defendant, Doug Underwood and Chris Hardin
walking across the street towards the house as Cable was shutting
the front door. Defendant entered the house without knocking andbegan yelling at Cable. Defendant then struck Cable in the mouth
knocking her to the floor. Defendant picked Cable up and threw her
to the ground twice. Defendant took out a pocketknife and
continued to yell at Cable. Cable attempted to leave through the
back door but was stopped by defendant. During the struggle,
Wendell attempted to talk to the defendant while Underwood and
Hardin sat on the couch. Defendant cornered Cable in the bathroom
and threatened her with a “big, big knife.” As Wendell moved
towards a door and defendant went after him, Cable left the
bathroom and went into the living room. Defendant pushed Wendell
to the ground and then smashed the telephone as Cable was
attempting to reach it. Defendant then pushed Cable over the couch
and “suffocated [her] until there was no more air left in [her].”
McTaggert came home and as she entered the house, defendant let
Cable go. Cable ran out of the house and drove to see her
daughter. Cable's daughter then took Cable to the hospital. Cable
was “black and blue from the top of [her] head to the bottom of
[her] feet,” had broken ribs, and suffered injuries to her nose and
mouth.
Defendant was charged with assault on a female, habitual
misdemeanor assault and being an habitual felon. The matter was
tried at the 14 May 2001 Criminal Session of Cherokee County
Superior Court before Judge James L. Baker, Jr. Defendant
stipulated to the five prior misdemeanors listed in the habitual
misdemeanor assault indictment. The jury returned a verdict of
guilty of assault on a female. Based on the stipulation and thejury verdict, the trial court found defendant guilty of habitual
misdemeanor assault. The jury then returned a verdict of guilty of
being an habitual felon. The trial court entered judgment and
sentenced defendant to a minimum term of imprisonment of 133 months
to a maximum term of 169 months. Defendant appeals.
Defendant raises three issues on appeal. Defendant contends
that his habitual misdemeanor assault conviction must be vacated
because G.S. § 14-33.2 violates constitutional prohibitions against
double jeopardy and ex post facto laws. Defendant further contends
that his habitual felon conviction must be vacated because
“habitual misdemeanor assault is not a substantive felony for
purposes of the habitual felon statute.” Defendant also contends
that his habitual misdemeanor assault conviction must be vacated
because G.S. § 14-33(c)(2) violates defendant's rights to equal
protection of the laws. After careful consideration, we discern no
error.
Defendant presents arguments relating to 5 of the 19
assignments of error in the record on appeal. Any assignments of
error not argued in defendant's brief are deemed abandoned. N.C.R.
App. P. 28(b)(6).
First, defendant contends that his habitual felon conviction
must be vacated because “habitual misdemeanor assault is not a
substantive felony for purposes of the habitual felon statute.” We
do not agree.
Defendant concedes that State v. Smith, 139 N.C. App. 209,
214, 533 S.E.2d 518, 520, appeal dismissed, 353 N.C. 277, 546S.E.2d 391 (2000) held that the habitual misdemeanor assault
statute defines a substantive offense. Defendant seeks for this
Court to review the issue and overrule Smith. “Where a panel of
the Court of Appeals has decided the same issue, albeit in a
different case, a subsequent panel of the same court is bound by
that precedent, unless it has been overturned by a higher court.”
In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379
S.E.2d 30, 37 (1989). We are bound by Smith and dismiss this
assignment of error.
Next, defendant contends that his habitual misdemeanor assault
conviction must be vacated because G.S. § 14-33(c)(2) violates
defendant's rights to equal protection of the laws. We are not
persuaded.
G.S. § 14-33(c)(2) (2001) states that:
Unless the conduct is covered under some other
provision of law providing greater punishment,
any person who commits any assault, assault
and battery, or affray is guilty of a Class A1
misdemeanor if, in the course of the assault,
assault and battery, or affray, he or she:
. . . .
(2) Assaults a female, he being a male person
at least 18 years of age.
Defendant concedes that he did not raise the constitutionality
of the statute at trial but requests that this Court review his
claim pursuant to Rule 2 of the North Carolina Rules of Appellate
Procedure. It is well settled that this Court will not review
constitutional questions that “[were] not raised or passed upon in
the trial court.” State v. Elam, 302 N.C. 157, 160-61, 273 S.E.2d661, 664 (1981). We decline to review this issue pursuant to Rule
2. This assignment of error is dismissed.
Defendant next contends that his habitual misdemeanor assault
conviction violates the provisions of the double jeopardy and ex
post facto clauses of the United States and North Carolina
Constitutions. Specifically, defendant argues that G.S. § 14-33.2
is unconstitutional on its face and is unconstitutional as applied
to the defendant.
As to defendant's argument that G.S. § 14-33.2 is
unconstitutional on its face, defendant argues that his conviction
for habitual misdemeanor assault violates double jeopardy because
his prior misdemeanor convictions are elements of the habitual
misdemeanor assault offense. Defendant further argues that his
habitual misdemeanor assault conviction violates double jeopardy
because it is a substantive offense, rather than a penalty
enhancing offense.
Defendant did not object at trial to his conviction on double
jeopardy grounds. Defendant seeks for this Court to review this
assignment of error pursuant to Rule 2 of the North Carolina Rules
of Appellate Procedure. This Court will not review constitutional
questions on appeal that were not argued or raised in the trial
court. Elam, 302 N.C. at 160-61, 273 S.E.2d at 664. We decline to
review this issue pursuant to Rule 2. This assignment of error is
dismissed.
Defendant argues that the habitual misdemeanor assault statute
is unconstitutional as applied to defendant because itretroactively increases the punishment for defendant's five
misdemeanor charges used to support the habitual misdemeanor
assault charge. Defendant argues that some of the prior
misdemeanors preceded the enactment of the habitual misdemeanor
assault statute. Defendant argues that this violates the ex post
facto clauses of the United States and North Carolina
Constitutions.
Defendant's argument that the habitual misdemeanor assault
conviction violates the ex post facto prohibitions has already been
rejected by this Court. See Smith, 139 N.C. App. at 214-15, 533
S.E.2d at 520-21. Because the habitual misdemeanor assault statute
“does not impose punishment for previous crimes, but imposes an
enhanced punishment for behavior occurring after the enactment of
the statute, because of the repetitive nature of such behavior, we
hold the habitual misdemeanor assault statute does not violate the
prohibition on ex post facto laws.” Id. at 214-15, 533 S.E.2d at
521.
No error.
Judges TYSON and THOMAS concurs.
Report per Rule 30(e).
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