STATE OF NORTH CAROLINA
v
.
Robeson County
Nos. 01 CRS 16412-15, 16418
02 CRS 498
HARRIS EMANUEL FORD
Attorney General Roy Cooper, by Assistant Attorney General
Daniel Addison, for the State.
Paul Pooley, for defendant-appellant.
CALABRIA, Judge.
Harris Emanuel Ford (“defendant”) appeals from judgments
entered in Robeson County Superior Court upon jury verdicts finding
him guilty of two counts of first-degree sexual offense, first-
degree rape, robbery with a dangerous weapon, first-degree
kidnapping, and felony larceny. Defendant was sentenced for the
rape and each sex offense conviction to consecutive terms of 384 to
470 months in the North Carolina Department of Correction.
Defendant was sentenced for the kidnapping conviction to 117 to 150
months, consecutive to the previous sentences. The armed robberyand felony larceny sentences were consolidated for a term of 113 to
145 months, concurrent with the sentence entered on the kidnapping
conviction. We find no error in the trial, but remand for
resentencing.
Prior to 27 August 2001, defendant and Lora Ann Bridges (the
“victim”) lived together for approximately three months; however,
defendant had recently left the victim's residence to spend more
time with Lakesa Wiggins (“Wiggins”), defendant's baby's mother.
On 27 August 2001 around 12:30 a.m., defendant was dropped off
by a man at the victim's house. When the victim responded to
defendant's requests for money by explaining that she did not have
any, defendant retrieved a roll of duct tape and carried it to the
back of the victim's home. Defendant summoned the victim to the
bedroom, where she found him standing with a knife and demanding
that she get down on her knees. Defendant then used duct tape to
tape the victim's mouth and to bind her hands behind her back.
Defendant picked up the victim, took her out to her car, and forced
her into the trunk of her car.
Defendant started driving, but, due to fumes emanating from a
gas can in the trunk and a fear of small spaces, the victim
experienced difficulty breathing and began kicking the trunk with
her feet and making other noises. Defendant stopped the car,
removed the victim's restraints, and allowed the victim to sit in
the passenger seat of her car, threatening to kill her if she
attempted anything. Defendant proceeded to Lumberton where, after
he re-iterated his warning to the victim not to try anything, heleft her locked in the car without keys. Defendant spoke to two
girls and arranged the sale of the victim's air conditioning unit,
which he had previously removed from her home after he had forced
her into the trunk of her car.
Defendant and the victim then returned to the victim's house,
where defendant followed the victim with the knife to her bedroom
and forced her to engage in sexual intercourse and perform sexual
acts on him, causing the victim to vomit. Thereafter, defendant
stated he could kill the victim and “nobody would ever know because
nobody knows I'm here.” Defendant choked the victim until she lost
consciousness. When she woke up, defendant insulted the victim and
again choked her into unconsciousness. The victim did not regain
consciousness until the next day.
When the victim woke the following day, defendant was slapping
her, insulting her, and again demanding money. The victim gave him
three dollars. Because that was not enough, defendant took her
television and put it in the trunk of her car. Defendant took the
victim to Lumberton and arranged for the sale of the victim's
television.
In Lumberton, the victim began experiencing scleral
hemorrhaging, a symptom consistent with her testimony concerning
the strangulations inflicted the previous night during the time the
victim was with defendant, and the victim began “crying blood.”
She “begged” defendant to take her to the hospital but defendant
refused and continued to drive different places to get more money
from other people. After the victim tried to flee from the car,defendant forced her to drive to a trailer park in Fayetteville,
where he left her. The victim drove herself to Cape Fear Valley
Hospital where she received medical treatment. The treating nurse
testified the victim presented with symptoms consistent with
strangulation, including hemorrhaged blood vessels in the eyes, a
hoarse and raspy voice, and a swollen tongue bleeding around the
edges.
Defendant testified on his own behalf and stated that the
victim had become angry, threatening, and abusive after drinking
and smoking crack cocaine. Defendant further testified the victim
initiated a physical altercation and threatened him with a knife.
Nonetheless, defendant remained at the victim's house because he
had no means of transportation. Defendant testified the victim
later calmed down and offered to pawn the television in order to
give him money if he would get a job and repay her. Defendant
explained the victim's injuries resulted from their physical
altercation and a later altercation between the victim and Wiggins.
At the close of the State's evidence and again at the close of
all the evidence, defendant moved to dismiss all charges against
him. The trial court denied both motions, and the jury convicted
defendant on all counts. The trial court consolidated the robbery
and larceny charges, entered separate judgments for each remaining
count, and imposed aggravated sentences. Defendant appeals.
I. Short-form Indictment
Defendant argues in his first assignment of error that the
trial court erred in allowing the short-form indictments forfirst-degree rape and first-degree sexual offense because they
failed to allege all the elements of each offense or allege matters
in aggravation. Defendant asserts, therefore, his convictions and
sentences are not supported by the indictment and violate the
Constitutions of the United States and North Carolina. Defendant
concedes our Supreme Court has upheld the short-form indictment as
constitutional, see State v. Wallace, 351 N.C. 481, 528 S.E.2d 326,
cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000). “Our Court
has [also] previously addressed this matter as it pertained to N.C.
Gen. Stat. § 15-144.1 (2001) for rape and N.C. Gen. Stat. §
15-144.2 (2001) for sexual offense and upheld the short form.”
State v. O'Hanlan, 153 N.C. App. 546, 551, 570 S.E.2d 751, 755
(2002). As in O'Hanlan, “[w]e find nothing in our previous cases
or in defendant's argument that persuades us the short form
indictments for rape [and] sexual offense . . . are invalid or
unconstitutional.” Id. This assignment of error is overruled.
II. Superseded Indictment
In his second assignment of error, defendant asserts the trial
court lacked jurisdiction to try and sentence defendant for first-
degree kidnapping because the State proceeded at trial with an
indictment which had been superseded. North Carolina General
Statutes § 15A-646 (2003) provides, in pertinent part, as follows:
If at any time before entry of a plea of
guilty to an indictment or information, or
commencement of a trial thereof, another
indictment or information is filed in the same
court charging the defendant with an offense
charged or attempted to be charged in the
first instrument, the first one is, with
respect to the offense, superseded by thesecond and, upon the defendant's arraignment
upon the second indictment or information, the
count of the first instrument charging the
offense must be dismissed . . . .
The record on appeal contains only one indictment for first-
degree kidnapping, which incorrectly lists the date of the offense.
During the trial, defendant moved to dismiss the indictment based
on the incorrect date. The State responded by asserting the date
had been corrected in a superseding indictment, which “should have
been in the [court] file.” When the trial court pointed out no
superseding indictment was in the court file, the State deferred to
“what the Court record show[ed].” The State went on to candidly
admit, “I don't have the Court file so I don't know. It was some
time ago back in the beginning.” Except for the State's equivocal
statements, nothing in the record before this Court or in the trial
court's file indicates the existence of a superseding indictment.
Rule 9(a) of the Rules of Appellate Procedure provides that
appellate review is limited to the record on appeal. N.C.R. App.
P. 9(a) (2004). “It is the [defendant's] responsibility to make
sure that the record on appeal is complete and in proper form.”
Miller v. Miller, 92 N.C. App. 351, 353, 374 S.E.2d 467, 468
(1988). “An appellate court cannot assume or speculate that there
was prejudicial error when none appears on the record before it.”
State v. Moore, 75 N.C. App. 543, 548, 331 S.E.2d 251, 254 (1985).
The State's equivocal statements do not constitute evidence of the
existence of a superseding indictment, and the appellate record
does not otherwise indicate the existence of a superseding
indictment. Accordingly, this assignment of error is overruled.III. Effective Assistance of Counsel
Defendant's third assignment of error asserts the trial court
erred in preventing him from conferring with his attorney during a
lunch recess during the State's case. The right to assistance of
counsel is guaranteed by the Sixth Amendment of the United States
Constitution, which is made applicable to the states by the
Fourteenth Amendment, and by N.C. Const. art. I §§ 19 and 23.
State v. Alderman, 25 N.C. App. 14, 17, 212 S.E.2d 205, 207 (1975).
This includes the right of an accused to have a reasonable time to
investigate, prepare, and present a defense, see id., which, in
turn, includes the right of counsel to confer with witnesses and
consult with the accused. State v. Rigsbee, 285 N.C. 708, 712, 208
S.E.2d 656, 659 (1974).
Contrary to defendant's assertion, the transcript of the
proceedings before the trial court does not reveal defendant was
denied the right to consult with his attorney. At trial, the
following exchange took place:
THE COURT: Anything else from the Defendant
before we take lunch recess?
[DEFENDANT]: Would it be possible for me to
consult with John on one-to-one, please?
THE COURT: No, you cannot do that. That is
not permissible.
[DEFENDANT]: I mean just me and my attorney.
THE COURT: No, sir; you cannot.
. . .
[DEFENDANT]: There's just so many things that
I feel as though if these people could hear
and know.
THE COURT: This is the State's case in chief.
. . . [A]ny questions or concerns you have you
need to address them with your attorney; okay?
[DEFENDANT]: So, basically, I have to speak
through him, bottom line?
THE COURT: Yes, yes.
The record reveals defendant requested to speak to an individual
named “John.” Defendant was represented in this case by Robert
Jacobson. While it is unclear with whom defendant wanted to speak,
the conversation between the trial court and defendant indicates
defendant wanted to present some testimony or evidence during the
State's case in chief. The trial court correctly responded to
defendant's request by instructing him to deal with questions and
concerns through his attorney. Far from denying defendant the
right to consult with his attorney, the trial court encouraged it.
This reading is bolstered by defendant's response in which he
illustrates his understanding by confirming that he has to “speak
through [his attorney], bottom line[.]” Given the appropriate
context of the conversation and the surrounding circumstances, it
appears that “John” referred to someone other than defendant's
attorney, and the trial court correctly directed defendant to
consult with his attorney in handling his case. This assignment of
error is overruled.
IV. Self-representation
In his fourth assignment of error, defendant asserts the trial
court impermissibly denied his right to self-representation in
violation of his constitutional rights. A defendant has a
constitutional “right to carry out his own defense without an
attorney when he voluntarily and intelligently elects to do so.”
State v. Cole, 293 N.C. 328, 335, 237 S.E.2d 814, 818 (1977).
Where a “defendant clearly indicates a desire to have counsel
removed and proceed pro se, then the trial judge should makefurther inquiry” pursuant to N.C. Gen. Stat. § 15A-1242 (2003),
which “fully satisfies the constitutional requirement that waiver
of counsel must be knowing and voluntary.” State v. Gerald, 304
N.C. 511, 519, 284 S.E.2d 312, 317 (1981) (emphasis added).
Accordingly, the first question that must be addressed is whether
defendant clearly indicated a desire to have counsel removed. We
do not agree that he did.
After the State presented its case in chief at trial, counsel
for defense moved to have all charges dismissed for insufficiency
of the evidence. After hearing arguments, defendant spontaneously
addressed himself to the trial judge.
[DEFENDANT]: At this time I do not wish to
dismiss my counsel, but I wish to act upon my
own free will with full knowledge of knowing
everything that I have to say in this Court
will be taken into consideration and used
against me. At the same time I would like to
keep my counsel as advisor, but yet, I have
something I feel is pertinent to my case that
I must present to you now.
. . .
THE COURT: Do you want to at least tell your
lawyer what it is first?
[DEFENDANT]: He's just been advised as far as
I'm concerned, ma'am.
. . .
THE COURT: Okay. Can I make my ruling first
before I --
[DEFENDANT]: Ma'am, if you would allow me to
introduce, I have some relevance, some case
law here, which is true divine law that I
would like to enter which is _ I mean, I
respect everything Mr. Prosecutor says.
THE COURT: Okay. With regard to the Motion to
Dismiss, is the case law you have relevant
with regard to the Motion to Dismiss?
After being assured the case law was relevant to the pending
motion, the trial judge allowed defendant to present his argumentsconcerning his motion to dismiss and addressed those arguments in
denying defendant's motion. Besides the clear statement by
defendant that he “d[id] not want to dismiss [his] counsel,” the
totality of the conversation between defendant and the trial judge
indicates that defendant's outburst was prompted merely by a desire
to present additional arguments and case law for the trial court's
consideration, not by a desire to represent himself. Defense
counsel, following the exchange between defendant and the court,
stated, “Judge, . . . as I heard it . . . he wanted to act as his
own counsel and have me as advisory counsel.” While the better
practice would have been to make further inquiry under N.C. Gen.
Stat. § 15A-1242, see State v. Gerald, 304 N.C. at 518, 284 S.E.2d
at 317, defendant's comments did not amount to a clear indication
of his desire to have counsel removed and to proceed pro se.
Accordingly, this assignment of error is overruled.
V. Session of Court
Defendant, in his next assignment of error, asserts the trial
court erred by continuing defendant's trial and imposing judgments
based on verdicts reached after the session of court was completed.
North Carolina General Statutes § 15-167 (2003) states, in
pertinent part, as follows:
Whenever a trial for a felony is in progress
on the last Friday of any session of court and
it appears to the trial judge that it is
unlikely that such trial can be completed
before 5:00 P.M. on such Friday, the trial
judge . . . may recess court on Friday or
Saturday of such week to such time on the
succeeding Sunday or Monday as, in his
discretion, he deems wise. . . . Whenever a
trial judge continues a session pursuant tothis section, he shall cause an order to such
effect to be entered in the minutes, which
order may be entered at such time as the judge
directs, either before or after he has
extended the session.
In State v. Harris, 181 N.C. 600, 607, 107 S.E. 466, 469
(1921) our Supreme Court addressed what was necessary for a “court
to make a formal order continuing the trial of the cause after the
expiration of the term by limitation.”
(See footnote 1)
Our Supreme Court held
“the statute was complied with by the daily entries on the docket:
'Pending the trial of the case of S. v. J. T. Harris, the court
takes a recess until 9:30 tomorrow,' and the entry next day, 'Court
convened at 9:30 a. m. pursuant to recess,' etc., in regular form.”
Id., 181 N.C. at 607, 107 S.E. at 470.
We find the analysis in Harris instructive. In this case, the
judge announced in open court at the close of court on Friday, 3
May 2002, “Members of the jury, the Court will now stand in recess
until Monday morning at 9:30.” The court did, in fact, reconvene
on the following Monday at 9:30 a.m. without an objection from
defendant. When the court closed that afternoon, the trial judge
announced in open court, “We'll come back tomorrow morning at9:30,” and recessed the case to reconvene at 9:30 a.m. the
following morning. Additionally, we note the Superior Court
minutes contain a handwritten notation under the name of the
designated court reporter reflecting that the 29 April 2002 session
of court continued beyond 3 May 2002 and further proceedings were
held on 6 and 7 May 2002. While no formal order appears in the
minutes, the notation contained therein and the announcement by the
trial judge in open court, without an objection from defendant,
satisfied the requirements found in N.C. Gen. Stat. § 15-167.
Nonetheless, the better practice is to expressly set forth in the
minutes a formal order extending the session of court. This
assignment of error is overruled.
VI. Release in Safe Place
Defendant argues in his sixth assignment of error that the
trial court erred in denying defendant's motions to dismiss the
first-degree kidnapping count because the evidence was insufficient
to prove all elements of the crime. “When a defendant moves for
dismissal, the trial court is to determine only whether there is
substantial evidence of each essential element of the offense
charged and of the defendant being the perpetrator of the offense.”
State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991).
“Substantial evidence is 'such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.'” Id.
(quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169
(1980)). “Whether evidence presented constitutes substantial
evidence is a question of law for the court.” Id. All “evidencemust be considered in the light most favorable to the State, giving
the State every reasonable inference which may be drawn therefrom.”
State v. Jerrett, 309 N.C. 239, 263, 307 S.E.2d 339, 352 (1983).
“[I]n order to properly indict a defendant for first degree
kidnapping, it [is] necessary for the State to allege both the
essential elements of kidnapping as provided in G.S. § 14-39(a) and
at least one of the elements of first degree kidnapping listed in
G.S. § 14-39(b),” which includes that the person kidnapped was not
released by the defendant in a safe place. State v. Bell, 311 N.C.
131, 137, 316 S.E.2d 611, 614 (1984). “This provision . . .
implies some willful action on the part of the defendant to ensure
that his victim is released in a safe place.” State v. Raynor, 128
N.C. App. 244, 250-51, 495 S.E.2d 176, 180 (1998). Accord State v.
Jerrett, 309 N.C. at 262, 307 S.E.2d at 351 (observing this
provision of N.C. Gen. Stat. § 14-39(b) “implies a conscious,
willful action on the part of the defendant to assure that his
victim is released in a place of safety”). Defendant's motions to
dismiss were predicated solely on a challenge to the evidence
indicating a failure to release the victim in a safe place.
Considering the question in the light most favorable to the
State, the relevant evidence tended to show that defendant left the
victim after directing her to a trailer park in Fayetteville. The
victim testified she was not familiar with the trailer park or the
general area. Moreover, at the time of her release, blood vessels
in the victim's eyes were hemorrhaging as a result of the
strangulation, thus impairing her vision and ability to drive to alocation where she could obtain help. In addition, the victim's
ability to communicate a need for help was impaired because her
tongue was swollen and bleeding and her voice was hoarse and raspy
as a result of her previous strangulation. In short, the victim's
injured eyes diminished her ability to remove herself from the
unfamiliar surroundings where defendant had finally abandoned her,
and her injured voice hampered her ability to seek help from others
who might be inclined to render aid. As a result, the victim
necessarily faced further risk by driving with impaired vision
merely to obtain medical help for the injuries inflicted by
defendant. We find this evidence more than satisfies the standard
needed to present to the jury the question of whether defendant
failed to release the victim in a safe place. This assignment of
error is overruled.
VII. Jury Instructions on First-Degree Kidnapping
Defendant's seventh assignment of error challenges the trial
court's instructions to the jury as plain error. The trial judge
stated the jury could find defendant guilty of first-degree
kidnapping if it found that the victim “was not released by the
defendant in a safe place, or had been sexually assaulted, or had
been seriously injured.” In so instructing, the trial court set
forth the statutory elements elevating kidnapping to first-degree.
N.C. Gen. Stat. § 14-39(b) (2003). However, the verdict sheet did
not specify upon which statutory element the kidnapping charge was
elevated, and the kidnapping charge could not be elevated based ona sexual assault since defendant was separately convicted of the
underlying sexual assaults against victim.
Our Supreme Court has held “that the legislature did not
intend that defendants be punished for both the first degree
kidnapping and the underlying sexual assault.” State v.
Whittington, 318 N.C. 114, 123, 347 S.E.2d 403, 408 (1986) (citing
State v. Freeland, 316 N.C. 13, 21-23, 340 S.E.2d 35, 39-40
(1986)). Here, the verdict sheet was ambiguous because it failed
to specify the statutory element upon which the first-degree
kidnapping charge was premised. Thus, the jury could have found
defendant guilty of first-degree kidnapping for any of the
statutory elements found in N.C. Gen. Stat. § 14-39(b), including
the fact that defendant sexually assaulted the victim. Where a
verdict is ambiguous, this Court must construe the verdict in favor
of defendant. Id. This construction requires us to “assume that
the jury relied on defendant's commission of the sexual assault in
finding him guilty of first-degree kidnapping.” Id. Because this
would result in double punishment under the holding of Whittington,
the case is remanded to the trial court for resentencing.
In resentencing defendant, we note “[i]t has long been the law
of this state that a defendant must be convicted, if convicted at
all, of the particular offense charged in the warrant or bill of
indictment.” State v. Faircloth, 297 N.C. 100, 107, 253 S.E.2d
890, 894 (1979). We cannot say defendant was convicted of the
particular offense charged in the indictment: first-degree
kidnapping based upon failure to release in a safe place. Accordingly, we hold the appropriate method of resentencing is to
arrest judgment on the first-degree kidnapping conviction and
remand to the trial court with instructions to resentence defendant
for second-degree kidnapping. In so doing we need not further
address this issue with regards to the judgments entered on the
first-degree rape and first-degree sexual offense convictions.
VIII. Alleged Errors in Defendant's Sentencing Hearing
In his final assignment of error, defendant asserts a number
of errors were committed during the sentencing hearing and those
errors necessitate a new sentencing hearing. Defendant first
argues the trial court erred by failing to list separately the
aggravating and mitigating factors for each of the offenses
charged. State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983).
The record makes clear that a separate judgment was entered on each
offense except for the robbery and larceny charges, which were
consolidated for judgment. Each of defendant's judgments state
“The Court . . . makes Findings of Aggravating and Mitigating
Factors set forth on the attached AOC-CR-605.” Each judgment is
separately supported by findings of aggravating and mitigating
factors for each charge pursuant to N.C. Gen. Stat. § 15A-1340.16
(2003). Thus, the court made separate findings applicable to each
offense and judgment. Defendant's argument to the contrary is
without merit.
Second, defendant argues that the charges of first-degree rape
and first-degree sexual offense were impermissibly aggravated by
the factor that defendant was armed with a deadly weapon at thetime of the crime. See N.C. Gen. Stat. § 15A-1340.16 (“[e]vidence
necessary to prove an element of the offense shall not be used to
prove any factor in aggravation . . .”). We agree. North Carolina
General Statutes § 14-27.4 (2003) states, in pertinent part, that
a “person is guilty of a sexual offense in the first degree if the
person engages in a sexual act . . . [w]ith another person by force
and against the will of the other person and . . . [e]mploys or
displays a dangerous or deadly weapon . . . .” Similarly, North
Carolina General Statutes § 14-27.2 (2003) states, in pertinent
part, that a “person is guilty of rape in the first degree if the
person engages in vaginal intercourse . . . [w]ith another person
by force and against the will of the other person, and . . .
[e]mploys or displays a dangerous or deadly weapon . . . .” While
both statutes contain alternative grounds upon which a person may
be guilty of the statutory offenses, the verdict sheets did not
specify which theories were relied upon by the jury in finding
defendant guilty. Therefore, we must construe the verdict in favor
of defendant and assume the jury relied on the use of a deadly
weapon in finding defendant guilty of these offenses. State v.
Whittington, 318 N.C. at 123, 347 S.E.2d at 408. Accordingly, we
remand for resentencing on these charges without the use of the
aggravating factor that defendant was armed with a deadly weapon at
the time of the crime.
Third, defendant contends that the offense of robbery with a
firearm or other dangerous weapon was impermissibly aggravated by
the factor that defendant was armed with a deadly weapon at thetime of the crime. See N.C. Gen. Stat. § 15A-1340.16. We agree.
North Carolina General Statutes § 14-87 (2003) requires the
commission of this crime be accompanied by the possession, use, or
threatened use of a firearm or other dangerous weapon. Since the
fact that defendant was armed with a deadly weapon was a fact
necessary to prove an element of this offense, we remand for
resentencing on this charge without the use of the aggravating
factor that defendant was armed with a deadly weapon at the time of
the crime.
Fourth, defendant contends the trial court erred in
aggravating all offenses charged with the factor that they were
especially heinous, atrocious or cruel. A trial court may
aggravate a sentence if the “offense was especially heinous,
atrocious, or cruel.” N.C. Gen. Stat. § 15A-1340.16(d)(7) (2003).
This factor focuses on “'whether the facts of the case disclose
excessive brutality, or physical pain, psychological suffering, or
dehumanizing aspects not normally present in that offense.'” State
v. Choppy, 141 N.C. App. 32, 43, 539 S.E.2d 44, 51 (2000) (quoting
State v. Blackwelder, 309 N.C. 410, 414, 306 S.E.2d 783, 786
(1983)). The “'entire set of circumstances surrounding the offense
must be considered in making this decision.'” Id. (quoting State
v. Hager, 320 N.C. 77, 88, 357 S.E.2d 615, 621 (1987)).
A number of facts in the instant case support the finding of
this aggravating factor. Defendant twice choked the victim into
unconsciousness and refused, despite the victim's pleas, to allow
her to seek medical intervention when it resulted in hemorrhagingin her eyes affecting her vision. Defendant made multiple threats
to the victim's life as well as other taunts (including vulgar
remarks concerning his expectations during the sexual assaults) and
engaged in actions designed to humiliate and degrade the victim
over the hours he held her against her will. Defendant's sexual
assault caused the victim to vomit, which defendant responded to by
berating the victim and calling her degrading names. Defendant
forced the victim to ride in the trunk of her car despite the
presence of fumes from a gas can making breathing difficult. In
spite of their past relationship, defendant's conduct over the
hours during which the victim was held caused pain and humiliation
exceeding that to which one is normally subjected, even when
kidnapped and sexually assaulted. Accordingly, we find no merit to
defendant's argument.
We have carefully considered defendant's remaining arguments
and find them to be without merit. We remand for resentencing in
accordance with this opinion.
Affirmed in part and remanded in part for resentencing.
Judges McGEE and HUDSON concur.
Report per Rule 30(e).
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