Appeal by defendant from judgments entered 24 July 2002 by
Judge Claude S. Sitton in Gaston County Superior Court. Heard in
the Court of Appeals 11 June 2003.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Sueanna P. Sumpter, for the State.
Carlton, Rhodes & Carlton, by Gary C. Rhodes, for defendant-
appellant.
HUNTER, Judge.
Tyrone Edward McCree (“defendant”) appeals his convictions and
sentencing for two counts of habitual misdemeanor assault, assault
with a deadly weapon, and possession of a firearm by a felon. For
the reasons stated herein, we grant defendant a new trial with
respect to his conviction for assault with a deadly weapon and
remand for correction of a clerical error in the judgment form.
The State's evidence tended to show that around noon on 25
August 2001 defendant, along with another man, approached Walter
Brown (“Brown”) and Linda Young (“Young”) (now Linda Brown) while
the two were sitting on the steps of their home in Gastonia, North
Carolina. At the time, Young was holding the couple's fifteen-
month old daughter on her lap. The two men, including defendant,
asked Brown if he was “T.J.” When Brown stated that he was “T.J.,”defendant pulled out a handgun, pointed it at Brown, Young, and
their child and told them not to move. Despite defendant's threat,
Young took the child and went into the house to call 911. While
Young was in the house, defendant struck Brown in his face, on his
head, and on his jaw. During the attack, Brown went in and out of
consciousness. Brown indicated that he only remembered being
struck by a fist on the first blow, and that he could not remember
any details regarding the subsequent blows. As a result of the
incident, he suffered several injuries including a swollen jaw,
several chipped and missing teeth, bruises on his face and head,
and a dent in his skull.
Officer Mike McKenzie (“Officer McKenzie”), of the Gastonia
City Police Department, investigated the incident. In a victim's
impact statement dated 15 September 2001, Brown stated that a man
had pointed a gun at him and Young, and that he had been beaten
with that gun. Officer McKenzie showed Brown a photographic lineup
which included a picture of defendant. Although Brown was unable
to identify defendant as his assailant from the lineup, Young was
able to identify him. Shortly thereafter, defendant was arrested
and charged with three counts of habitual misdemeanor assault
pursuant to N.C. Gen. Stat. § 14-33.2 (based on the enhancement of
charges of assault by pointing a handgun at Brown, Young, and their
child pursuant to N.C. Gen. Stat. . 14-34), feloniously assaulting
Brown with a deadly weapon inflicting serious injury pursuant to
N.C. Gen. Stat. § 14-32(b), and possession of a firearm by a felon
pursuant to N.C. Gen. Stat. § 14-415.1. At trial, defendant presented evidence tending to show that
his brother, Tracy McCree, went to Brown's home upon learning of an
altercation between Brown and his father, Buck McCree. When Tracy
McCree questioned Brown about the altercation, Brown became
hostile. Tracy McCree approached Brown and hit him several times
with his fists and then left. Defendant did not accompany his
brother on this occasion and was not involved in the beating of
Brown.
Based on the evidence presented, the jury found defendant
guilty of two counts of habitual misdemeanor assault with respect
to his assaults by pointing a gun at both Young and Brown, one
count of assault with a deadly weapon on Brown pursuant to N.C.
Gen. Stat. § 14.33(c)(1) (a lesser included offense of the original
charge of assault with a deadly weapon inflicting serious injury),
and possession of a firearm by a felon. Defendant appeals his
convictions.
I.
[1] By his first assignment of error, defendant argues the
trial court erred in failing to dismiss the habitual misdemeanor
assault charges since three of his five prior misdemeanor offenses
required to establish the charge occurred before the effective date
of the habitual misdemeanor assault statute. Specifically,
defendant asserts that three of the prior convictions _- two
charges of assault with a deadly weapon (92 CRS 28803), and a
charge for use of profane language on a highway (90 CRS 22710) _-
occurred before the enactment of N.C. Gen. Stat. § 14-33.2 and
subjects defendant to
ex post facto. However, this Court expresslyrejected this argument in
State v. Smith, 139 N.C. App 209, 533
S.E.2d 518 (2000). As we noted in
Smith,
the habitual felon statute does not violate
the prohibition against
ex post facto laws
because it does not punish defendant for his
previous conduct, but rather for his current
conduct to a greater degree, due to his
previous similar offenses. . . . As the
habitual misdemeanor assault statute similarly
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. “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). Therefore, we are bound by
Smith and overrule this
assignment of error.
II.
[2] Defendant also assigns error to the trial court sentencing
him as an habitual misdemeanor offender on the grounds that he
neither pled guilty to the offense, nor did the trial court submit
the issue to the jury. It is well established that a plea of
guilty is equivalent to a conviction and no evidence of guilt is
required and no verdict of a jury is required as a prerequisite to
the imposition of a lawful sentence.
State v. Shrader, 290 N.C.
253, 262, 225 S.E.2d 522, 529 (1976). Here, defendant asserts that
he merely stipulated to the convictions, and did not plead guilty
to the habitual misdemeanor assault charge. Yet, the transcriptreveals the trial court entered into the following dialogue with
defendant:
THE COURT: With that understanding, do
you desire to admit your guilt as to those
five previous convictions and to waive your
right to a trial by jury in regard thereto?
MR. MCCREE: Yes, sir.
THE COURT: Are you, in fact, guilty of
those five previous misdemeanors?
MR. MCCREE: Yes. Sir.
This portion of the transcript clearly indicates that defendant
pled guilty to the five previous misdemeanor convictions and waived
his right to a jury determination of his status as an habitual
offender. We, therefore, overrule defendant's assignment of error.
III.
By defendant's next assignment of error, he argues the trial
court erred in failing to dismiss charges against him due to
insufficiency of the evidence. Defendant advances the following
contentions: (1) the trial court erred in failing to grant his
motion to dismiss the underlying charge of assault by pointing a
gun with respect to the alleged assault on Young;
(See footnote 1)
(2) the trial
court failed to dismiss the charge of possession of a firearm by a
felon because the State failed to provide evidence that the gun was
operable; (3) the trial court failed to dismiss the charge of
assault with a deadly weapon inflicting serious injury on Brown for
lack of sufficient evidence that the gun
was a deadly weapon; and
(4) the trial court failed to dismiss the charge of assault with adeadly weapon inflicting serious injury on Brown for lack of
sufficient evidence that the injuries were caused by the
use of a
deadly weapon. We address each of defendant's arguments
separately.
When determining whether to dismiss a criminal action, the
trial court must consider the evidence in the light most favorable
to the State, giving the State the benefit of every reasonable
inference which may be drawn from the evidence and resolving all
inconsistencies in the State's favor.
State v. Davis, 130 N.C.
App. 675, 679, 505 S.E.2d 138, 141 (1998). A motion to dismiss is
properly denied if “there is substantial evidence (1) of each
essential element of the offense charged and (2) that defendant is
the perpetrator of the offense.”
State v. Lynch, 327 N.C. 210,
215, 393 S.E.2d 811, 814 (1990). The term “'substantial
evidence,'” as interpreted by our Supreme Court in the context of
a motion to dismiss, is interchangeable with “'more than a
scintilla of evidence.'”
State v. Faison, 330 N.C. 347, 358, 411
S.E.2d 143, 149 (1991) (citation omitted).
[3] Defendant first contends the trial court erred in failing
to dismiss the charge of assault by pointing a gun at Young on the
grounds that the State failed to prove he
intentionally pointed the
gun at Young. According to defendant, all of the evidence supports
the sole inference that Brown was the only intended victim of the
alleged assault. We disagree.
The assault by pointing a gun statute, N.C. Gen. Stat. § 14-34
(2001), provides that “[i]f any person shall point any gun or
pistol at any person, either in fun or otherwise, whether such gunor pistol be loaded or not loaded, he shall be guilty of a Class A1
misdemeanor.” At trial, Young testified that defendant pointed a
gun directly at her and told her not to move. She also identified
defendant both in a photo lineup and in court as the person who
pointed a gun at her. Furthermore, our Courts have interpreted the
provisions of Section 14-34 to include an additional qualification
that the intentional pointing of a pistol constitutes a violation
only if it is done without legal justification.
Lowe v. Department
of Motor Vehicles, 244 N.C. 353, 360, 93 S.E.2d 448, 453 (1956).
Defendant does not contend that he had a legal justification to
point the gun at the victim. Thus, when viewing the evidence in
the light most favorable to the State, we are compelled to conclude
that there was sufficient evidence to withstand defendant's motion
to dismiss the charge of assault by pointing a gun at Young.
[4] Defendant also contends that the charge of possession of
a firearm by a felon should have been dismissed on the ground that
the evidence failed to support that defendant was in possession of
a
working firearm. Yet, despite defendant's contention,
operability of a firearm is not an essential element of the charge
of possession of a firearm by a felon, nor is it an affirmative
defense.
State v. Baldwin, 34 N.C. App. 307, 309, 237 S.E.2d 881,
882 (1977);
State v. Jackson, 353 N.C. 495, 503, 546 S.E.2d 570,
575 (2001). Accordingly, the trial court properly denied
defendant's motion to dismiss.
Defendant's remaining two contentions involve the felony
charge of assault with a deadly weapon inflicting serious injury.
The essential elements of the charge of assault with a deadlyweapon inflicting serious injury are (1) an assault (2) with a
deadly weapon (3) inflicting serious injury (4) not resulting in
death. N.C. Gen. Stat. § 14-32(b) (2001);
State v. Woods, 126 N.C.
App. 581, 592, 486 S.E.2d 255, 261 (1997). Of these elements,
defendant only takes exception with respect to the element
requiring the use of a deadly weapon.
[5] Defendant initially contends the State produced
insufficient evidence that Brown's injuries were caused by a deadly
weapon because in order to establish that a gun is a deadly weapon,
the State must show that defendant used the gun with deadly force.
However, this Court has previously held that a handgun is a deadly
weapon
per se. State v. Reives, 29 N.C. App. 11, 12, 222 S.E.2d
727, 728 (1976). Thus, whether or not deadly force was used to
inflict Brown's injuries, the State was merely required to show
that defendant possessed a handgun in order to establish the
“deadly weapon” element.
[6] Next, defendant contends that even assuming he was in
possession of a gun, the State failed to present sufficient
evidence that he struck Brown with the weapon because Brown
testified that he could not remember being struck with defendant's
gun. In light of that testimony, defendant further argues that a
prior statement of Brown's whereby he stated that he had been
beaten with a gun was erroneously admitted into evidence by the
trial court because the prior statement was inconsistent with
Brown's trial testimony and, had the statement not been admitted,
there would have been no evidence that a gun was used to inflict
Brown's injuries. Here, the State offered evidence that as a result of Brown's
beating by defendant he suffered “cuts and dents and bruises on
[his] head[,]” could not open his mouth due to swelling, and had a
tooth knocked out of his mouth as well as several other chipped and
cracked teeth. Brown spent approximately a month on pain
medication following the incident and still had visible signs of
the beating when he testified at trial approximately eleven months
later. Although not direct evidence, this Court has recognized
that circumstantial evidence may be sufficient to show whether a
deadly weapon was used to inflict injuries on a victim.
See State
v. Wright, 302 N.C. 122, 126, 273 S.E.2d 699, 703 (1981).
Specifically, in
State v. Rowland, 263 N.C. 353, 139 S.E.2d 661
(1965)
, this Court held that although the victim was hit in the
head from behind and did not see who or what hit her, the fact that
she was rendered unconscious, sustained a serious injury to her
head, and was hospitalized provided sufficient circumstantial
evidence for a jury to infer that she was hit with a deadly weapon.
Thus, even in the absence of testimony regarding Brown's prior
statement that he was hit with a gun, when viewing the evidence in
this case in the light most favorable to the State, defendant's
possession of the handgun, coupled with the extent of Brown's
injuries, was sufficient circumstantial evidence for the jury to
infer that an assault had been accomplished with a deadly weapon.
The motion to dismiss the charge of assault with a deadly weapon
inflicting serious injury was properly denied.
[7] Nevertheless, we conclude that whether defendant's prior
statement was inadmissible must also be determined because it mayhave impacted the jury's ultimate decision to find defendant guilty
of the lesser charge of assault with a deadly weapon. At trial,
Brown testified that despite defendant being armed with a handgun,
he did not remember defendant striking him with that gun. He
testified that he did, however, remember initially being struck by
a fist. During redirect examination of Brown, the State presented
a statement dated 15 September 2001, in which Brown indicated that
he had been beaten with a gun. According to defendant, the
statement should have been excluded because it did not corroborate
Brown's testimony at trial. We agree.
It is well established that a witness's prior statements may
be admitted to corroborate the witness's sworn trial testimony but
they may not be used as substantive evidence.
State v. Harrison,
328 N.C. 678, 681, 403 S.E.2d 301, 303-04 (1991). “In order to be
corroborative and therefore properly admissible, the prior
statement of the witness need not merely relate to specific facts
brought out in the witness's testimony at trial, so long as the
prior statement in fact tends to add weight or credibility to such
testimony.”
State v. Ramey, 318 N.C. 457, 469, 349 S.E.2d 566, 573
(1986).
See also State v. Mickey, 347 N.C. 508, 519, 495 S.E.2d
669, 676,
cert. denied, 525 U.S. 853, 142 L. Ed. 2d 106 (1998).
However, prior statements that indicate additional or new
information that is not referred to in the witness's trial
testimony, may never be admitted as corroborative evidence.
Ramey,
318 N.C. at 469, 349 S.E.2d at 574. Additionally, the witness's
prior contradictory statements may not be admitted under the guise
of corroborating his testimony.
Id. During Brown's testimony attrial, he indicated that he had been struck by a fist, and that he
could not remember anything regarding the other times he was hit.
At no time during his testimony did he mention that he may have
been struck by a handgun. However, in his 15 September 2001
statement he asserted that he was struck with a gun. We hold the
prior statement and Brown's trial testimony were contradictory; and
thus, the trial court erred in admitting the prior statement.
[8] Despite sufficient circumstantial evidence being offered
by which the jury could have inferred that defendant was hit by a
deadly weapon, the erroneous admission of Brown's prior
inconsistent statement was the only direct evidence that Brown was
struck with the weapon. That direct evidence may have persuaded
the jury to find defendant guilty of assault with a deadly weapon
instead of either assault inflicting serious injury or simple
assault, both of which were other lesser included offenses of
assault with a deadly weapon inflicting serious injury that were
submitted to the jury. Therefore, since we cannot definitively
conclude the inadmissible statement was not a significant factor in
the jury's verdict, defendant is entitled to a new trial based on
his conviction of assault with a deadly weapon.
See generally
State v. Frogge, 345 N.C. 614, 618, 481 S.E.2d 278, 280 (1997).
IV.
[9] By defendant's final assignment of error, he contends the
trial court erred in Case No. O1CRS61902 by imposing a consecutive
sentence to begin at the end of another sentence with an identical
case number. On the judgment form for case number 01CRS61902, the
trial court indicated that defendant was sentenced to serve 150days, and that at the end of this sentence he was to begin serving
time for a sentence imposed in case number 01CRS61902 -- the same
case number. The trial court should have listed the second case
number as 01CRS61903. The State concedes the trial court erred in
placing the incorrect case number on the judgment form, but it
contends that the error should not result in our vacating
defendant's sentence. In
State v. Lorenzo, 147 N.C. App. 728, 735,
556 S.E.2d 625, 629 (2001), this Court held that where a sentence
was proper, but improperly recorded, the case must be remanded to
the trial court to correct the judgment so that it conforms to the
sentence. Aside from being improperly recorded on the judgment
form, defendant's sentences would have otherwise been correct.
Thus we remand defendant's case to the trial court to correct the
judgments in the manner stated above.
Partial new trial. Remanded for correction.
Judges TIMMONS-GOODSON and ELMORE concur.
Footnote: 1