STATE OF NORTH CAROLINA
v
.
Robeson County
No. 99 CRS 201
ALFRED ODOM,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Judith Tillman, for the State.
William H. Dowdy for defendant-appellant.
ELMORE, Judge.
Defendant Alfred Odom was charged with assault with a deadly
weapon with intent to kill inflicting serious injury and assault
with a deadly weapon upon a law enforcement officer. This is the
third time defendant has been tried on charges arising out of
events that occurred on the evening of 23 September 1998.
The State's evidence tended to show that on the evening of 23
September 1998, Officers James Hunt and Joey Smith of the Robeson
County Sheriff's Department were engaged in law enforcement duties
on Interstate 95 (I-95) with Lt. Robbie Bishop from the Villa Rica
Police Department of Dallas, Georgia. Lt. Bishop was present to
train Officers Hunt and Smith to become part of an interstatecriminal enforcement team. All three officers were in an unmarked
car belonging to the Robeson County Sheriff's Department. Their
duties included enforcing traffic laws and identifying individuals
who might be transporting drugs or drug money along I-95.
While engaged in their duties, the officers observed a black
Chevy Camaro driven by defendant traveling at a high rate of speed
on I-95. With Officer Hunt driving, they pursued the vehicle. A
high-speed chase ensued after defendant feigned an attempt to pull
over. Officers C.T. Strickland and Alex Monroe of the Robeson
County Sheriff's Department subsequently joined the chase.
Eventually, defendant veered onto an exit ramp but lost
control of his vehicle, which then spun around several times before
coming to a stop. The officers rushed to defendant's car, and
defendant resisted Officer Hunt's attempts to remove him from it.
In the course of their struggle, Officer Hunt was shot twice in the
chest. Officers Monroe and Strickland fired at defendant but did
not hit him. While fleeing on foot, defendant fired at the
officers. After sending Officer Hunt to the hospital and calling
for assistance, the remaining officers apprehended defendant hiding
in a canal near the road.
In the first trial, defendant was tried on a variety of
charges including attempted murder of Officer Hunt, but the jury
was unable to reach a verdict. After the trial judge declared a
mistrial, the State then obtained a superseding indictment.
Defendant was thereafter tried for, among other things, attempted
first degree murder of Officer Hunt and assault with a deadlyweapon with intent to kill inflicting serious injury. The jury
acquitted defendant of attempted murder and all other charges, save
for two on which the jury was unable to reach a verdict. In the
third trial, a jury acquitted defendant of assault with a deadly
weapon upon a law enforcement officer with respect to Officer Smith
but convicted defendant of assault with a deadly weapon with intent
to kill inflicting serious injury with respect to Officer Hunt;
these were the two charges on which the jury had deadlocked in the
second trial. The trial court sentenced defendant to imprisonment
for 145 to 183 months. Defendant appeals.
Defendant contends that the trial court committed reversible
error in denying his motion to dismiss and his motion for nonsuit,
which allowed him to be tried on charges of assault with a deadly
weapon with intent to kill inflicting serious injury after he had
already been tried for the same charge _ a charge on which a
mistrial was previously declared. Defendant asserts that this
subsequent trial constituted double jeopardy in violation of his
rights under the United States and North Carolina Constitutions.
Because the trial for the charge on which defendant was later
convicted had ended in a mistrial, defendant's constitutional
protection against double jeopardy was not violated when he was
subsequently retried on that same charge. Our Supreme Court has
held that “[w]hen a mistrial has been declared properly, 'in legal
contemplation there has been no trial.'” State v. Sanders, 347
N.C. 587, 599, 496 S.E.2d 568, 576 (1998)(quoting State v. Tyson,
138 N.C. 627, 629, 50 S.E. 456, 456 (1905)). A deadlocked jury, asin defendant's second trial, is an appropriate basis for declaring
a mistrial, and a properly declared mistrial “will not ordinarily
cause a subsequent conviction after retrial to be susceptible to a
double jeopardy challenge.” The United States v. Perez, 22 U.S.
579, 580, 6 L. Ed. 165, 165-66 (1824). This is the standard our
Supreme Court applied in holding that “where a defendant is put on
trial and the jury is unable to reach a verdict, it is not
unconstitutional for the accused to be retried for the same
offense.” State v. Simpson, 303 N.C. 439, 447, 279 S.E.2d 542, 547
(1981).
Defendant next argues that his acquittal on the charges of
attempted murder in his first two trials should have precluded the
State from trying him on the assault with a deadly weapon with
intent to kill inflicting serious injury charge in the third trial.
It is not, however, a violation of a defendant's double jeopardy
protection for him to be tried and convicted of separate offenses
arising out of the same incident, provided “each offense requires
proof of at least one element that the other does not.” State v.
Peoples, 141 N.C. App. 115, 120, 539 S.E.2d 25, 29 (2000); see
State v. Hill, 287 N.C. 207, 217, 214 S.E.2d 67, 74 (1975). In
such trials, the threat of double jeopardy is not present, and the
proceedings comply with the standards articulated by the United
States Supreme Court. See Blockburger v. United States, 284 U.S.
299, 304, 76 L. Ed. 306, 309 (1932)(holding that the test for
double jeopardy is whether one offense requires proof of at least
one element that the other offense does not). Defendant contends that the crime for which he was convicted
and the crime for which he had previously been acquitted were not
sufficiently dissimilar under the Blockburger test. This Court,
however, has previously held that these two crimes _ attempted
first degree murder and assault with a deadly weapon with intent to
kill inflicting serious injury _ are sufficiently distinct so as to
constitute separate crimes even when arising out of the same facts.
Peoples, 141 N.C. App. at 120, 539 S.E.2d at 29. As it was
possible for defendant to have faced these charges in one trial, it
was permissible for him to face them in separate proceedings. As
such, defendant's second trial for assault with a deadly weapon
with intent to kill inflicting serious injury did not constitute
double jeopardy.
By his next assignment of error, defendant argues that the
trial court erred in denying his motion to dismiss and his motion
for nonsuit on the ground that his trial was barred by collateral
estoppel. Defendant argues that his acquittal of attempted first
degree murder necessarily prevented his being tried for assault
with a deadly weapon with intent to kill inflicting serious injury.
This Court has previously held, however, that acquittal of
attempted murder does not necessarily prevent a subsequent trial
and conviction for assault with a deadly weapon with intent to kill
inflicting serious injury. State v. Tew, 149 N.C. App. 456, 460,
561 S.E.2d 327, 331 (2002).
In order to be successful on a claim of collateral estoppel,
a defendant must show “that the issue he seeks to foreclose wasnecessarily resolved in his favor at the prior proceeding.” State
v. Warren, 313 N.C. 254, 264, 328 S.E.2d 256, 263 (1985). In the
case sub judice, just as in Tew, there is more than one basis on
which the jury could have decided to acquit defendant, and
therefore no issue has been necessarily foreclosed. Cf. Tew, 149
N.C. App. at 460, 561 S.E.2d at 331. Defendant indicates no
particular issue on which his acquittals could be conclusive in
relation to the subsequent trial, and thus the trial court
committed no error in denying his motion to dismiss.
Defendant next contends that the trial court erred in denying
his motion to instruct the jury on the lesser included offense of
assault with a deadly weapon inflicting serious injury. However,
because defendant cites no authority to support his argument, this
issue is not properly before this Court. The North Carolina Rules
of Appellate Procedure mandate that “[t]he body of the argument
shall contain citations of the authorities upon which the appellant
relies.” N.C.R. App. P. 28(b)(6) (2004). When no reasonable
authority is cited to support a proposition, it is deemed
abandoned. State v. Bonney, 329 N.C. 61, 82, 405 S.E.2d 145, 157
(1991). We, therefore, conclude that this assignment of error is
abandoned and decline to consider it further.
By his final assignment of error defendant contends that the
trial court erred in denying his motion to dismiss and his motion
for nonsuit on the ground that the evidence, when viewed in the
light most favorable to the State, was insufficient to support hisconviction. Our Supreme Court has set forth the legal standard for
considering a defendant's motion to dismiss as follows:
[T]he trial court must 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. Evidence is substantial if
it is relevant and adequate to convince a reasonable mind
to accept a conclusion. In considering a motion to
dismiss, the trial court must analyze the evidence in the
light most favorable to the State and give the State the
benefit of every reasonable inference from the evidence.
The trial court must also resolve any contradictions in
the evidence in the State's favor. The trial court does
not weigh the evidence, consider evidence unfavorable to
the State, or determine any witness' credibility.
State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255-56 (2002)
(citation omitted); see also Simpson, 303 N.C. at 448, 279 S.E.2d
at 548.
After considering the evidence in the light most favorable to
the State, we find that there was substantial evidence with respect
to each element of assault with a deadly weapon with intent to kill
inflicting serious injury. The phrase “substantial evidence”
indicates that there is more than a scintilla of evidence, which
means simply “that the evidence must be existing and real, not just
seeming or imaginary.” State v. Powell, 299 N.C. 95, 99, 261
S.E.2d 114, 117 (1980). The State offered evidence tending to show
that a handgun engraved with a shortened version of defendant's
proper name was found at the scene, that the gun likely belonged to
defendant, that defendant intended to fire the gun at Officer Hunt,
that this gun would not likely have fired otherwise, that the gun
was very close to Officer Hunt's shirt at the time of its firing,
and that Officer Hunt was seriously injured by these actions. Based on this evidence, the trial court properly denied defendant's
motion.
No error.
Judges TIMMONS-GOODSON and BRYANT concur.
Report per Rule 30(e).
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