STATE OF NORTH CAROLINA
v
.
Mecklenburg County
Nos. 99 CRS 28945
TIMOTHY J. BALLARD 99 CRS 145026-28
Attorney General Roy Cooper, by Assistant Attorney General
Daniel D. Addison, for the State.
Carlton, Rhodes & Carlton, by Gary C. Rhodes, for defendant
appellant.
TIMMONS-GOODSON, Judge.
Timothy J. Ballard (“defendant”) appeals from his convictions
of common law robbery and second-degree kidnapping. For the
reasons stated herein, we reverse in part and find no error in part
in the judgments of the trial court.
The evidence presented by the State tended to show the
following: On the morning of 26 July 1999, Patti Harris (“Harris”)
was driving in the right lane of Seventh Street in Charlotte, North
Carolina. As she was driving, she noticed the vehicles ahead of
her slow and swerve, and when Harris reached the area where the
vehicles swerved, she observed defendant lying in the street,
blocking the right-hand lane. A pedestrian helped defendant to
stand. After he stood up, defendant staggered towards Harris'svehicle, which was stopped in traffic, and threw himself upon the
windshield, thereby breaking it. Defendant rolled off of the hood
of the vehicle, jerked open the driver's side door and shoved
Harris, who was restrained by her seatbelt, against the center
console of her vehicle. Harris screamed and resisted defendant's
entry. Defendant sat in the driver's seat and attempted to put the
vehicle's automatic transmission in gear. As defendant attempted
to drive the vehicle, Harris continued to scream and struggle with
defendant and her seatbelt. Harris testified that she thought
defendant then “got [the vehicle] in neutral . . . [b]ecause it
kind of rolled up onto the curb or hit the curb side. And I was
still screaming.” Defendant then said words to the effect, “I
might as well forget it” or “I'm done,” exited the vehicle, and
walked away.
Defendant presented evidence in the form of expert testimony
by a clinical psychologist and a psychiatrist, both of whom
testified that defendant was in a “psychotic state” when he
committed the acts for which he was charged.
At the close of evidence, the jury found defendant guilty of
common law robbery and second-degree kidnapping. Defendant then
stipulated his habitual felon status, and the trial court entered
two consecutive sentences of 160 to 201 months' imprisonment.
Defendant appeals.
____________________________________________________
As an initial matter, we note that defendant's brief contains
arguments supporting only six of the original eight assignments oferror on appeal. “Assignments of error not set out in the
appellant's brief, or in support of which no reason or argument is
stated or authority cited, will be taken as abandoned.” N.C.R.
App. P. 28(b)(6) (2002). We therefore limit our review to those
six assignments of error properly preserved by defendant for
appeal. Defendant has further violated Appellate Rule 28(b)(6) by
failing to identify the assignments of error pertinent to each
argument by their number or the page number at which they appear in
the printed record. “Under Rule 28(b)[(6)] we could deem all of
appellant's questions to have been abandoned and consequently
dismiss his appeal.” State v. Shelton, 53 N.C. App. 632, 635, 281
S.E.2d 684, 688 (1981), disc. review denied and appeal dismissed,
305 N.C. 306, 290 S.E.2d 707 (1982). We nevertheless elect to
examine defendant's assignments of error on their merits. See id.
Defendant argues that the trial court erred by (1) denying his
motion to dismiss the charges against him; (2) failing to intervene
ex mero motu during the State's closing argument; (3) placing the
burden of proof of insanity on defendant; (4) enhancing defendant's
sentence based on his habitual felon status; (5) incorrectly
calculating points on defendant's felony sentencing worksheet; and
(6) sentencing defendant as an habitual felon.
Defendant first argues that the trial court erred in denying
his motion to dismiss the charges of common law robbery and second-
degree kidnapping. Defendant asserts there was insufficient
evidence to support these charges.
In ruling on a motion to dismiss, the trial court mustdetermine whether there is substantial evidence of each element of
the offense charged. See State v. Bullard, 312 N.C. 129, 160, 322
S.E.2d 370, 387 (1984). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164,
169 (1980). When reviewing the evidence, the trial court must
consider even incompetent evidence in the light most favorable to
the prosecution, granting the State the benefit of every reasonable
inference. See State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585,
587 (1984). Any contradictions or discrepancies in the evidence
should be resolved by the jury. See id.
In the instant case, defendant was convicted of common law
robbery and second-degree kidnapping. Common law robbery is an
aggravated form of larceny and is defined as “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.
Smith, 305 N.C. 691, 700, 292 S.E.2d 264, 270, cert. denied, 459
U.S. 1056, 74 L. Ed. 2d 622 (1982). Absent the elements of
violence or intimidation, the offense becomes larceny. See id.
Defendant argues there was insufficient evidence that (1) he took
personal property from Harris (2) by means of violence or fear. We
disagree.
“'The least removal of an article, from the actual or
constructive possession of the owner, so as to be under the control
of the felon, will be a sufficient asportation'” to support the
charge of larceny. State v. Walker, 6 N.C. App. 740, 743, 171S.E.2d 91, 93 (1969) (quoting State v. Jones, 65 N.C. 395, 397
(1871)). Although defendant argues that he was never “in control”
of the victim's vehicle, the evidence suggests otherwise. Taken in
the light most favorable to the State, the evidence tended to show
that defendant forcibly entered Harris's vehicle, shoved her to one
side, sat in the driver's seat, and put the vehicle in neutral
gear, whereupon the vehicle rolled several feet before hitting the
street curb. We conclude that this was sufficient evidence from
which the jury could find that defendant dispossessed the victim of
ownership of her vehicle.
Defendant further argues that there was no evidence that he
utilized fear or violence in obtaining Harris's vehicle. This
argument has no merit. The evidence showed that defendant threw
himself onto the victim's vehicle, breaking the windshield in the
process. This alone constituted a violent assault on Harris. See
State v. Parrish, 251 N.C. 274, 279, 111 S.E.2d 314, 318 (1959);
State v. Hobbs, 216 N.C. 14, 16-17, 3 S.E.2d 431, 432-33 (1939).
Defendant moreover forcibly entered the vehicle, pushed Harris to
one side, and continued to struggle with her while attempting to
put the vehicle in gear. Harris testified that she was “scared”
and “flipping out” during the assault. This evidence sufficiently
supports a finding by the jury that defendant took Harris's vehicle
by means of violence or intimidation. The trial court therefore
did not err in denying defendant's motion to dismiss the charge of
common law robbery.
Defendant further argues that the trial court erred in failingto dismiss the charge of second-degree kidnapping. Specifically,
defendant asserts there was insufficient evidence (1) that he
restrained the victim; (2) that such restraint was for the purpose
of facilitating a felony; and (3) that such restraint was an
independent act, separate and apart from the underlying felony.
Kidnapping is defined in relevant part as follows:
(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:
. . . .
(2) Facilitating the commission of any felony
or facilitating flight of any person following
the commission of a felony.
N.C. Gen. Stat. § 14-39 (2001). “It is the fact, not the distance
of forcible removal of the victim that constitutes kidnapping.”
State v. Lowry and State v. Mallory, 263 N.C. 536, 541, 139 S.E.2d
870, 874, cert. denied, 382 U.S. 22, 15 L. Ed. 2d 16 (1965). The
central question is whether the kidnapping charge is supported by
evidence from which a jury could reasonably find that the necessary
restraint for kidnapping exposed the victim to greater danger than
that inherent in the robbery itself or was subjected to the kind of
danger and abuse the kidnapping statute was designed to prevent.
See State v. Hill, 139 N.C. App. 471, 482, 534 S.E.2d 606, 614
(2000).
In the present case, defendant forced his way into and
physically took control of the victim's vehicle, thus completing
the force necessary to commit the robbery. Harris continued tostruggle with and resist defendant, who, despite her resistance,
did not allow Harris to exit the vehicle. Instead, defendant
attempted to drive the vehicle with the victim trapped inside it
and managed to move the vehicle at least several feet before
abandoning his course of action. By further struggling with and
restraining Harris in her automobile, the jury could reasonably
find that defendant exposed the victim to greater danger than that
inherent in the robbery such as to support the conviction of
second-degree kidnapping. See id. There was moreover sufficient
evidence from which the jury could reasonably infer that defendant
restrained the victim for the purpose of committing common law
robbery. We therefore overrule defendant's first assignment of
error.
By his second assignment of error, defendant argues that the
trial court erred in failing to intervene ex mero motu during the
prosecutor's closing argument. Defendant neither objected to these
statements at trial, however, nor cited any authority in support of
his argument. Defendant has therefore abandoned this assignment of
error, and we do not address it. See N.C.R. App. P. 28(b)(6).
Defendant next contends that the trial court erred in “placing
the burden of proof of insanity on the defendant.” We note that
defendant fails to specify in his argument the manner in which the
trial court erred, in that defendant never explains how the trial
court “placed the burden of proof of insanity” on defendant. It is
nevertheless well settled in this State that “[e]very person is
presumed sane until the contrary is shown, and the defendant hasthe burden of proving his insanity . . . . to the satisfaction of
the jury.” State v. Evangelista, 319 N.C. 152, 161, 353 S.E.2d
375, 382 (1987); State v. Lynch, 340 N.C. 435, 467, 459 S.E.2d 679,
695 (1995), cert. denied, 517 U.S. 1143, 134 L. Ed. 2d 558 (1996).
Our Supreme Court has “repeatedly declined to change the
presumption of sanity or the rule that requires a defendant to
carry the burden of proving his insanity to the satisfaction of the
jury.” State v. Davis, 321 N.C. 52, 58, 361 S.E.2d 724, 727
(1987). We overrule this assignment of error.
Defendant next argues that the trial court erred in sentencing
defendant to consecutive enhanced sentences for two separate
habitual felon convictions of separate felony charges arising from
the same transaction. Defendant concedes, however, the existence
of “previous adverse authorities on these issues” see, e.g., State
v. Kilpatrick, 345 N.C. 451, 480 S.E.2d 400 (1997), and cites as
his only authority the dissent in Kilpatrick. We are bound by our
Supreme Court in this matter, see id., and we therefore overrule
defendant's assignment of error.
In his final two assignments of error, defendant argues that
the trial court erred in its sentencing of defendant.
Specifically, defendant contends that the trial court erred in
sentencing defendant as a habitual felon based solely on
defendant's stipulation to such status. Defendant further contends
that the felony sentencing worksheet erroneously assigned one point
against defendant for the elements of the present offense being
included in any prior offense. We agree that the trial court erredin these respects.
“While not a crime, our statutes still require either a
verdict by the jury that defendant is an habitual felon, see N.C.
Gen. Stat. § 14-7.5 (2001), or a guilty plea to the charge of being
an habitual felon.” State v. Edwards, 150 N.C. App. 544, 550, 563
S.E.2d 288, 291 (2002); see also State v. Gilmore, 142 N.C. App.
465, 471, 542 S.E.2d 694, 699 (2001) (reversing and remanding the
defendant's conviction of habitual felon status where the issue was
not submitted to the jury, and the defendant only stipulated, but
did not plead guilty, to being an habitual felon).
In the present case, the record shows that defendant
stipulated to his status as an habitual felon, but the trial court
did not establish a record that defendant's stipulation was a
guilty plea. We are therefore bound by Edwards and Gilmore to
reverse defendant's conviction of being an habitual felon and
remand this case for a new habitual felon hearing. See Edwards,
150 N.C. App. at 550, 563 S.E.2d at 291; Gilmore, 142 N.C. App. at
471, 542 S.E.2d at 699.
We further note that defendant's felony sentencing worksheet
incorrectly assigned against him one point for the elements of the
present offense being included in any prior offense. A review of
defendant's prior record level worksheet does not reveal any prior
offenses that include all of the elements of common law robbery or
kidnapping. While we agree with the State that this error makes no
difference in calculating defendant's prior record level for
purposes of sentencing, we trust that the trial court willnevertheless correct this technical error upon resentencing.
We hold that the trial court erred in sentencing defendant as
an habitual felon based solely on his stipulation to such status.
We therefore reverse defendant's conviction of habitual felon
status and remand this case for a new habitual felon hearing. We
otherwise find no error in the judgment of the trial court.
No error in part, reversed in part, and remanded.
Judges HUDSON and STEELMAN concur.
Report per Rule 30(e).
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