State v Brewer, (02-994) 06/03/2003

Appeal by defendant from judgment entered 21 March 2002 by Judge Christopher Collier in Union County Superior Court. Heard in the Court of Appeals 16 April 2003.

Attorney General Roy Cooper, by Assistant Attorney General David J. Adinolfi, II.

Office of the Public Defender, by Assistant Public Defenders Dean P. Loven and Julie Ramseur Lewis.

    ELMORE, Judge.

    The State presented evidence that the defendant went to a hotel room where Maeda Nelson (Nelson) was staying with a female friend. Nelson and her friend were preparing to go out for the evening when the defendant knocked on the door. Nelson let him in, at which point he grabbed her, hit her, and knocked her over a table, breaking the table. Nelson was over the age of eighteen at the time. The friend told defendant to stop or she would call the police. Defendant said he wasn't going to do anything to Nelson, that his ring had just come off in the room. The three began looking for the ring without success. Nelson started curling herhair. Nelson and the defendant were “saying stuff” to one another which the friend told them to stop because they'd been doing that for ten years. Defendant walked over to the sink, grabbed Nelson by the hair, jerked her down to the floor and started choking her. Nelson told him that she did not care what he did and “if you want to hit me, hit me.” She then said “you want me to call my brother?” Defendant grabbed Nelson's cell phone which was in her hand, and it dropped to the floor. He picked it up and left. Nelson and her friend said they then saw from the balcony the defendant bust out the driver's side window of Nelson's car.
    The defense alleges that when the defendant entered the room, he grabbed Nelson and they “fell” over the table. He also alleges that when he grabbed her hair “it did not hurt”. Nelson, when defendant picked up her cell phone, told him to take it, that she didn't care. Defendant also alleges that the women did not see him bust out the window of the car, but later discovered the busted window.
    The defendant was indicted for felony assault on a female (with the necessary prior misdemeanors listed for habitual misdemeanor assault), larceny from the person, damage to personal property, and later for habitual felon (with the necessary prior felonies listed). Defendant was found guilty of assault on a female and misdemeanor larceny, and acquitted of the damage to personal property charge. He pled guilty to the habitual felon charge. The trial court determined that defendant's prior felony record level was IV, and his prior misdemeanor conviction level wasIII, and sentenced him accordingly to 107 to 138 months in the department of corrections. The sentence is within the presumptive range according to the sentencing guidelines in section 15A-1340.17 of the General Statutes.
    Defendant raises five issues on appeal. The first two concern his habitual misdemeanor assault (HMA) conviction. Defendant contends that the HMA conviction must be vacated because the sentence constitutes cruel and unusual punishment, and secondly because N.C. Gen. Stat. § 14-33.2 violates the constitutional prohibition against double jeopardy. Thirdly, defendant contends that his habitual felon conviction must be vacated because “habitual misdemeanor assault is not a substantive offense” for purposes of the habitual felon statute. Fourth, defendant contends that the trial court erred in denying his motion to dismiss charges where he contends the evidence was insufficient. And lastly, defendant also assigns error to the calculation of his prior record level.

Defendant contends that his HMA conviction violates the eighth amendment of the United States and Art. I, section 27 of the North Carolina Constitution, as an “excessive” sanction. We note that the text of those provisions provides: “excessive bail shall not be required, nor excessive fines imposed, nor cruel and [N.C. Const. “or”] unusual punishments inflicted.” We also note the lack of clarity in the higher courts regarding cruel and unusual punishment analysis (Justice O'Connor, writing for the majority, noted:“Indeed, in determining whether a particular sentence for a term of years can violate the Eighth Amendment, we have not established a clear or consistent path for courts to follow.” Lockyer v. Andrade, 155 L.Ed.2d 144, 123 S. Ct. 1166, 1172 (2003)).
Under the Rules of Appellate Procedure, this Court will not entertain constitutional issues which have not been raised at trial. State v. Elam, 302 N.C. 157, 160-61, 273 S.E.2d 661, 664 (1981). The general supervisory power which defendant argues we should employ is exclusively granted to our Supreme Court. Virmani v. Presbyterian Health Services Corp., 350 N.C. 449, 462, 515 S.E.2d 675, 684-85 (1999). This assignment of error is therefore dismissed.

As to defendant's argument that N.C. Gen. Stat. § 14-33.2 is unconstitutional on its face, defendant argues that his conviction for HMA violates double jeopardy because his prior misdemeanor convictions are elements of the HMA offense. Defendant further argues that his HMA 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. For the reasons stated above, this Court will not review constitutional questions on appeal that were not argued or raised in the trial court. Elam at 160-61, 273 S.E.2d at 664. This assignment of error is dismissed.

    Next, 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, 546 S.E.2d 391 (2000), held that the language of the HMA statute defines a substantive offense, not merely a status. 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) (citations omitted). We are bound by Smith and dismiss this assignment of error.
    In addition to Smith, other recent decisions have established that some repeat-offender or recidivist statutes define both a status offense and a substantive offense. See State v. Carpenter, ___ N.C. App. ___, ___, 573 S.E.2d 668, 677 (2002), appeal dismissed, 355 N.C. 222, 559 S.E.2d 794 (2002), cert. denied, 154 L.Ed.2d 51, 123 S.Ct. 142 (2002); State v. Vardiman, 146 N.C. App. 381, 385, 552 S.E.2d 697, 700 (2001) (both cases define habitual impaired driving as a status as well as a substantive offense).
    Defendant concedes that he did not raise the constitutionality of the statute at trial but again requests that this Court reviewhis claim pursuant to Rule 2. This Court will not review constitutional questions not raised or passed upon in the trial court. Elam at 160-61, 273 S.E.2d at 664. This assignment of error is dismissed.

    Fourth, defendant contends that the trial court erred in failing to grant his motion to dismiss because there was insufficient evidence to support every element of the offense of larceny of the victim's cell phone.
    To survive a defendant's motion to dismiss a criminal charge, the State must offer substantial evidence of every essential element of the crime. State v. Cross, 345 N.C. 713, 483 S.E.2d 432 (1997). “Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Id. at 717, 483 S.E.2d at 434 (citation omitted). All the evidence being taken in a light most favorable to the State, the motion must be denied if there is substantial evidence of each element of the crime charged and that defendant was the perpetrator. See State v. Jacobs, 128 N.C. App. 559, 563, 495 S.E.2d 757, 760-61, disc. review denied, 348 N.C. 506, 510 S.E.2d 665 (1998); State v. Allen, 127 N.C. App. 182, 184-85, 488 S.E.2d 294, 296 (1997).
    The essential elements of larceny are that the defendant: (1) took the property of another; (2) carried it away; (3) without the owner's consent; and (4) with the intent to deprive the owner of his property permanently. State v. Perry, 305 N.C. 225, 233, 287 S.E.2d 810, 815 (1982). In the case at bar, the State's evidencetended to show that the defendant took the cell phone out of the victim's hotel room immediately after striking her, causing her to fall over a table with sufficient force to break it, grabbing her hair, and choking her, and that she told him to take the phone. Considering the events which gave rise to her statement to him to “take the phone, I don't care. Just take it” it was proper for the jury to decide whether consent was actually given. We overrule this assignment of error.

    Lastly, defendant assigns error to the calculation of his prior record level for sentencing purposes.
    The standard of review “when a defendant assigns error to the sentence imposed by the trial court . . . is 'whether [the] sentence is supported by evidence introduced at the trial and sentencing hearing.'” State v. Deese, 127 N.C. App. 536, 540, 491 S.E.2d 682, 685 (1997) (quoting N.C. Gen. Stat. § 15A-1444(a1) (Cum. Supp. 1996)). Although defendant's counsel stipulated to his prior record level worksheet at trial, we hold that the worksheet is inconsistent and therefore does not support the sentence.
    Defendant was assigned eleven prior conviction points, putting him in a prior record level of IV. The sentencing worksheet lists “sell or deliver cocaine” as the first prior felony, labeling it a class G. However, the plea transcript of the sell or deliver conviction, which is part of the record on appeal, lists it as a class H felony. Because the prior offense is actually a class H, defendant should have received two points instead of four.     Defendant was assigned a point each for misdemeanor fleeing to elude arrest and driving while license revoked. Section 15A- 1340.14(b) states:
         (5) For each prior misdemeanor conviction as defined in this subsection, 1 point. For purposes of this subsection, misdemeanor is defined as any Class A1 and Class 1 nontraffic misdemeanor offense, impaired driving (G.S. 20-138.1), impaired driving in a commercial vehicle (G.S. 20-138.2), and misdemeanor death by vehicle (G.S. 20-141.4(a2)), but not any other misdemeanor traffic offense under Chapter 20 of the General Statutes.

N.C. Gen. Stat. § 15A-1340.14(b)(5) (2001). Defendant contends that because the above mentioned offenses were traffic offenses, they do not result in points being added according to the statute. We agree. These two points were thus assigned in error.
    Further, defendant also contends that he was assigned an additional point in error because “all the elements of the present offense were not included in a prior offense.” We note that even if this point was in error, it would be harmless error since it would not result in any change in sentence for the defendant. If sentenced in accord with this opinion, he would have a total of seven points, which amounts to a prior record level of III. The one additional point would not change this outcome. We therefore determine that if there is any error therein, it is harmless.
    Assignments of error numbered 1-4, 7-14, 16-18, and 25 are not argued in defendant's brief and are deemed abandoned. N.C.R. App. P. 28(b)(6).    We therefore affirm the conviction, but vacate the determination of defendant's sentence, and remand for sentencing consistent with this opinion.
    No error in trial, vacated in part, remanded for resentencing.
    Judges MARTIN and HUDSON concur.
    Report per Rule 30(e).

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