STATE OF NORTH CAROLINA
v. Northampton County
Nos. 01 CRS 1028 & 1361
MALCOLM EDWARDS
Attorney General Roy Cooper, by Assistant Attorney General
Daniel P. O'Brien, for the State.
Irving Joyner for defendant-appellant.
MARTIN, Judge.
Defendant was indicted upon charges of assault with a deadly
weapon with intent to kill inflicting serious injury and of
attempted first degree murder. The attempted murder indictment,
which was captioned “attempted first degree murder,” stated that
defendant “unlawfully, willfully and feloniously did attempt to
murder Troy Williams with malice aforethought.” Its caption also
listed that the “Offense [was] in Violation of G.S. § 14-2.5.”
A jury found defendant guilty of the charge of assault with a
deadly weapon with intent to kill inflicting serious injury and not
guilty of the charge of attempted first degree murder. The trial
court found one aggravating factor, that “[t]he victim of thisoffense suffered serious injury that is permanent and
debilitating[,]” and found no mitigating factors. After finding
that the aggravating factors outweighed the mitigating factors, the
trial court imposed a sentence from the aggravated range of 125 to
159 months imprisonment based upon the class C felony and
defendant's prior record level of II. Defendant appeals.
At trial, the State introduced evidence tending to show the
following: On the evening of 28 April 2001, defendant approached
Troy Williams (“victim”) in a pool hall and tried to purchase some
marijuana. The two men “had some words” after the victim refused
to sell him marijuana, and the victim left the pool hall. While he
was getting into his car, an acquaintance approached and asked the
victim to sell him some marijuana. The victim walked over to a
trash can and removed three bags of marijuana which he had placed
in it. As he was reaching to give the marijuana to his
acquaintance, defendant walked up to him with a gun and said, “You
seen it before, f--- you, Shake, you die[.]” Defendant then shot
the victim at point blank range in his chest with a nine millimeter
gun and hit him in the mouth with the gun. After the victim fell
to the ground, someone kicked him in the back of the head.
Kimberly Ricks testified she heard the shot as she was about
to drive by the pool hall. She then saw the victim fall and
defendant run. When Ms. Ricks turned and drove back to see what
had happened, defendant got into the car while she was stopped at
a stop sign. A second man, Clyde Pretty, jumped on the hood, and
defendant told her to stop. Mr. Pretty then got into the car. Defendant asked Ms. Ricks to take him to his girlfriend's house.
At one point during that drive, Ms. Ricks heard defendant say, “You
mean to tell me I shot this mother-f---er and didn't get nothing
but three bags of weed?” A pool hall patron, Adrion Pugh,
testified that he saw defendant shoot the victim after the victim
refused to give his marijuana to defendant.
The victim was in a coma for two weeks. When he was
questioned by a police detective about two weeks after he came out
of the coma, the victim identified defendant as the person who had
shot him. The victim spent about two and a half to three months in
intensive care and was hospitalized for about six months. Because
of damage caused by the bullet, the victim lost a kidney, his
spleen, and half of his pancreas. The bullet lodged between two of
his vertebrae, and one of the victim's legs is paralyzed. He has
had one hip joint replaced as a result of damage caused by the
medications he was given while he was in the coma. The victim
cannot urinate normally because of permanent nerve damage to his
bladder caused by the bullet. He initially was taking about sixty-
five to seventy-five pills a day for various problems and was still
taking about sixteen to seventeen pills a day about a year later at
the time of trial. Defendant presented no evidence.
In his first argument, defendant contends the trial court
erred by not dismissing the attempted murder charge. He argues the
State's indictment only charged attempted second degree murder,
which is a crime that does not exist under North Carolina law.
Defendant further claims he was subjected to double jeopardy by adual prosecution for a single act. We disagree.
“An indictment is constitutionally sufficient if it apprises
the defendant of the charge against him with enough certainty to
enable him to prepare his defense and to protect him from
subsequent prosecution for the same offense.” State v. Lowe, 295
N.C. 596, 603, 247 S.E.2d 878, 883 (1978). Here, the State's
indictment charged that defendant “unlawfully, willfully and
feloniously did attempt to murder Troy Williams with malice
aforethought.” This Court has previously held that similar
language, that a defendant “unlawfully, willfully and feloniously
and of malice aforethought did attempt to kill and murder [the
victim],” was sufficient to meet the “short-form” requirements for
first-degree murder indictments. State v. Choppy, 141 N.C. App.
32, 41, 539 S.E.2d 44, 50 (2000), appeal dismissed and disc. review
denied, 353 N.C. 384, 547 S.E.2d 817 (2001).
Although the indictment's caption refers to G.S. § 14-2.5
(punishment for attempt to commit a felony or misdemeanor), the
wording in the indictment's body describes a violation of G.S. §
14-17 (murder in the first and second degree defined; punishment).
Because “[t]he caption of an indictment, whether on the front or
the back thereof, is not a part of it and the designation therein
of the offense sought to be charged can neither enlarge nor
diminish the offense charged in the body of the instrument[,]”
State v. Bennett, 271 N.C. 423, 425, 156 S.E.2d 725, 726 (1967),
the indictment here properly charged defendant with the offense of
attempted first degree murder. Defendant's additional contention, that the State subjected
him to double jeopardy by charging him with both offenses, is
without merit. “Conviction for two separate offenses stemming from
one incident is not a violation of a defendant's constitutional
rights where each offense requires proof of at least one element
that the other does not.” State v. Peoples, 141 N.C. App. 115,
119, 539 S.E.2d 25, 29 (2000). This Court has previously held that
the offenses of attempted first degree murder and assault with a
deadly weapon with intent to kill inflicting serious injury each
require proof of at least one element which the other does not.
Id. at 119-20, 539 S.E.2d at 29. As a result, the State could
properly charge defendant with both of the offenses.
In his second argument, defendant contends the trial court
erred by using the serious injury element, which was necessary to
establish the offense, to find an aggravating factor. He asserts
the aggravating factor that “[t]he victim of this offense suffered
serious injury that is permanent and debilitating[,]” is no more
than another way of saying “serious injury.” Defendant's argument
is not persuasive.
While defendant is correct that “evidence necessary to prove
an element of the offense may not be used to prove any factor in
aggravation[,]” see G.S. § 15A-1340.16(d), the “long term effects
or extended effects that arise from the victim's injuries may be
properly used as an aggravating factor.” State v. Wampler, 145
N.C. App. 127, 132-33, 549 S.E.2d 563, 568 (2001). The victim lost
a kidney, his spleen, and half of his pancreas as a result of beingshot. The bullet remains lodged in his vertebrae, and one of his
legs is paralyzed. He has undergone replacement of one hip joint
and cannot urinate normally due to permanent nerve damage to his
bladder. A year after being shot, the victim was still taking
about sixteen to seventeen pills daily for various problems as a
result of being shot. In the present case, the victim's injuries
went beyond the “serious injury” necessary to convict defendant of
the offense. Accordingly, the trial court did not err by finding
as an aggravating factor that “[t]he victim of this offense
suffered serious injury that is permanent and debilitating.”
Defendant's final contention, that the trial court imposed a
sentence in excess of the sentence authorized by the General
Assembly, is in error. For defendant's class C felony at prior
record level II, the minimum term of imprisonment in the aggravated
sentencing range is 100 to 125 months. N.C. Gen. Stat. § 15A-
1340.17(c) (2001). The trial court imposed a minimum term of 125
months. As correctly found by the trial court, the corresponding
maximum term of imprisonment is 159 months imprisonment. N.C. Gen.
Stat. § 15A-1340.17(e) (2001).
No error.
Judges McCULLOUGH and CALABRIA concur.
Report per Rule 30(e).
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