An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1347


Filed: 3 June 2003


         v.                        Martin County
                                Nos. 01 CRS 13-14

    Appeal by defendant from judgments entered 8 February 2002 by Judge Thomas D. Haigwood in Martin County Superior Court. Heard in the Court of Appeals 26 May 2003.

    Attorney General Roy Cooper, by Assistant Attorney General C. Norman Young, Jr., for the State.

    William H. Dowdy, for defendant-appellant.

    CALABRIA, Judge.

    Defendant Jerry Hinton was charged with first degree murder and robbery with a dangerous weapon. Prior to trial, defendant filed motions to dismiss and to quash the first degree murder indictment. The trial court denied both of these motions.
    At trial, the State's evidence tended to show that defendant killed Heather Howell, an employee of a Williamston, North Carolina convenience store, during the commission of a robbery on or about 2 January 2001. Defendant presented evidence which tended to show that he was mildly mentally retarded.
    At the close of the State's evidence, and again at the close of all of the evidence, defendant moved to dismiss the chargesagainst him. The trial court denied both motions, and a jury thereafter found defendant guilty as charged. Defendant appeals from judgments entered upon the verdicts imposing consecutive sentences for a minimum term of 133 months and a maximum term of 169 months and life imprisonment without parole.
    By his sole assignment of error brought forward on appeal, defendant argues that the trial court erred in denying his motions to dismiss the first degree murder charge and quash the subject indictment. Referencing the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000), defendant argues that the “short form” indictment utilized in this case violates the Fifth and Sixth Amendments to the United States Constitution. This argument is without merit.
    The North Carolina Supreme Court has previously addressed this same argument and held that North Carolina's “short form” murder indictment complies with both the North Carolina and United States Constitutions, and “is sufficient to charge first-degree murder on the basis of any of the theories[.]” State v. Braxton, 352 N.C. 158, 174, 531 S.E.2d 428, 437 (2000); see also State v. Williams, 355 N.C. 501, 541, 565 S.E.2d 609, 633 (2002), cert. denied, ___ U.S. ___, 154 L. Ed. 2d 808 (2003). Defendant has failed to distinguish his case from Braxton and its progeny. Hence, in accordance with our Supreme Court's holdings in Braxton and Williams, we conclude that the indictment in this case was sufficient to charge defendant with first degree murder and was inno way constitutionally infirm. This assignment of error is overruled.
    Defendant has failed to bring his remaining assignments of error forward on appeal, and therefore, they are taken as abandoned. N.C.R. App. P. 28(b)(6) (2003). In light of the foregoing, we hold that defendant received a fair trial, free from prejudicial error.
    No error.
    Judges MARTIN and McCULLOUGH concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***