Appeal by defendant from judgments entered 27 August 2003 by
Judge Frank R. Brown in Washington County Superior Court. Heard in
the Court of Appeals 17 November 2004.
Attorney General Roy A. Cooper, III, by Assistant Attorneys
General David J. Adinolfi, II and Rudy Renfer, for the State.
Everett & Hite, L.L.P., by Stephen D. Kiess, for defendant-
appellant.
HUNTER, Judge.
Jami Tor Allah (“defendant”) appeals from judgments dated 27
August 2003 entered consistent with a jury verdict finding him
guilty of assault with a deadly weapon with intent to kill
inflicting serious injury and discharging a weapon into occupied
property, and a guilty plea to possession of a firearm by a felon.
The evidence tends to show that on 24 November 2002, defendant
confronted Ronald Toppin (“Toppin”), the owner of Faith
Transportation Company. Defendant, an independent semi-tractor
operator, was seeking payment from Toppin following a vehicular
accident in which defendant had been involved in Virginia on 23
November 2002. Defendant arrived carrying a .32 or .38 caliber
revolver and approached Toppin in the dispatch area of the office.
After discussing his payment, defendant began firing his weapon at
Toppin, who was wounded by the gunfire. Defendant fled towards the
rear of the establishment, continuing to fire his weapon. Defendant then exited the building, and was seen firing at the
building with a firearm described as a .22 or .25 caliber slide-
action semi-automatic.
Toppin contacted 911 and was transported to the hospital,
during which time he identified defendant as his assailant.
Defendant called 911 to turn himself in, and was taken into custody
by the Williamston police. A .32 caliber handgun was found in
defendant's possession when he was taken into custody, but the
semi-automatic handgun was not recovered. Defendant testified at
trial that he acted in self-defense, but admitted on cross-
examination that he did not see a firearm in Toppin's possession.
Defendant was convicted by jury verdict of assault with a
deadly weapon with intent to kill inflicting serious injury and
discharging a weapon into occupied property. Prior to trial,
defendant had entered a plea of guilty to possession of a firearm
by a felon. The trial court found defendant to be a prior record
level III and sentenced defendant to consecutive sentences of 116
to 149 months for assault with a deadly weapon with intent to kill
inflicting serious injury, thirty-four to fifty months for
discharging a weapon into occupied property, and sixteen to twenty
months for possession of a firearm by a felon. Defendant appeals.
The issues in this case are whether: (1) defendant's
conviction for possession of a firearm should be vacated, (2) the
trial court deprived defendant of his constitutional right to a
presumption of innocence, (3) the trial court erred in finding
eight record points in sentencing defendant, (4) the trial court
erred in imposing judgment for both assault with a deadly weaponwith intent to kill while inflicting serious injury and discharging
a weapon into occupied property, (5) the trial court erred in
failing to find whether the offenses were mitigated, and (6) the
trial court committed reversible error in imposing an aggravated
sentence without making any findings in aggravation.
I.
[1] By his first assignment of error, and in a separate motion
for appropriate relief, defendant contends the conviction for
possession of a firearm by a felon should be vacated as a matter of
law, as defendant's right to possession of a firearm had been
restored prior to the date of the alleged offense, and as the
prohibition on possession was inapplicable to defendant at his
place of business. We disagree.
N.C. Gen. Stat. . 14-415.1(a) (2003) prohibits possession of
a firearm by a convicted felon except within his own home or lawful
place of business. The statute further specifies that prior
convictions which cause disentitlement include felony convictions
in North Carolina that occurred before, on, or after 1 December
1995. N.C. Gen. Stat. . 14-415.1(b)(1). The statute, amended in
1995, contains no time bar for possession of a firearm and includes
no provisions for restoration of the right to possess a firearm by
a convicted felon.
See State v. Gaither, 161 N.C. App. 96, 103,
587 S.E.2d 505, 510 (2003).
Here, defendant pled guilty to the charge of possession of a
firearm by a felon. Defendant had a felony conviction prior to 1
December 1995, and as a result had no right to possess a firearm
outside his home or place of business under N.C. Gen. Stat. . 14-415.1. Defendant's argument supported by superceded case law is
without merit and the motion for appropriate relief is denied.
[2] Defendant further contends that his possession of a
firearm is exempted under N.C. Gen. Stat. . 14-415.1 because it
occurred at his place of business. “A defendant who is charged
with the substantive offense and seeks to utilize the exception has
the burden of bringing himself within the exception.”
State v.
Bishop, 119 N.C. App. 695, 698, 459 S.E.2d 830, 832 (1995). This
Court has construed the exception for possession of a firearm by a
felon narrowly, limited “to the convicted felon's own premises over
which he has dominion and control to the exclusion of the public.”
State v. Cloninger, 83 N.C. App. 529, 532, 350 S.E.2d 895, 897
(1986).
Here, Toppin testified that he owned Faith Transportation and
that all drivers were independent contractors. Defendant provided
no proof that Faith Transportation was his place of business where
he had dominion and control to the exclusion of the public, and in
fact testified that Toppin owned Faith Transportation. Defendant
therefore failed to meet the burden to bring himself within the
exception, and thus the assignment of error is without merit.
[3] Defendant finally contends ineffective assistance of
counsel in pleading guilty to the charge of possession of a firearm
by a felon. In order to reverse a conviction on the basis of
ineffective assistance of counsel, a defendant must show that the
counsel's conduct fell below an objective standard of
reasonableness.
See Strickland v. Washington, 466 U.S. 668, 688,
80 L. Ed. 2d 674, 693 (1984). Defendant must show first thatcounsel's performance was deficient and second that the deficient
performance prejudiced the defendant in a manner so serious as to
deprive the defendant of a fair trial.
Id. at 687, 80 L. Ed. 2d at
693.
As defendant's assignment of error to the charge of possession
of a firearm by a felon is without merit as a matter of law,
defendant fails to show that counsel's performance in advising
defendant to enter a plea of guilty was deficient. Therefore
defendant's claim of ineffective assistance of counsel is
overruled.
II.
[4] Defendant next contends the trial court deprived defendant
of his constitutional right to presumption of innocence by
instructing the jury not to form an opinion as to defendant's guilt
or innocence. We disagree.
N.C. Gen. Stat. . 15A-1236(a)(3) (2003) instructs the trial
judge at appropriate times to admonish the jury “[n]ot to form an
opinion about the guilt or innocence of the defendant, or express
any opinion about the case until they begin their deliberations[.]”
Id.
Here, the trial court instructed the jury under N.C. Gen.
Stat. § 15A-1236(a) not to discuss the case, speak with parties,
witnesses, or counsel, or form an opinion about defendant's guilt
or innocence on three occasions, all before the court was about to
recess. The trial court's adherence to the statutory language
almost verbatim cannot be found as error.
See State v. Harrington,
335 N.C. 105, 118, 436 S.E.2d 235, 242 (1993) (holding that aninstruction for a jury to keep an open mind, in context, is proper
and contains no expression of opinion about any question to be
decided by the jury or about the weight of the evidence).
Therefore defendant's assignment of error is without merit.
Defendant additionally presents arguments regarding the
propriety of the trial court's jury instructions, contending that
the trial court's failure to instruct the jury on presumption of
innocence pursuant to the Pattern Jury Instruction further deprived
defendant of his right to presumption of innocence. Our courts
have previously noted that a judge's failure to instruct on
presumption of innocence is not error when the trial court has
clearly defined the offense and placed the burden of proof beyond
a reasonable doubt upon the State to find the defendant guilty.
See State v. Perry, 226 N.C. 530, 534, 39 S.E.2d 460, 464 (1946);
State v. Bowser, 214 N.C. 249, 254, 199 S.E. 31, 34 (1938);
State
v. Herring, 201 N.C. 543, 548-49, 160 S.E. 891, 894 (1931).
Here, the trial court instructed the jury:
In these cases, the defendant has entered
pleas of “not guilty”. The fact that he has
been charged is no evidence of guilt. Under
our system of justice, when a defendant pleads
“not guilty”, he is not required to prove his
innocence; he has denied the charges pending
against him. It becomes the obligation of the
prosecution to prove the defendant's guilt, to
prove it beyond a reasonable doubt, and that
means that after you've heard all of the
evidence in these cases, you must, and I
repeat, you must find the defendant not guilty
unless you decide that the guilt of the
defendant has been proven not by a
probability, not to a reasonable certainty,
nor to any lesser standard, but beyond a
reasonable doubt.
Such an instruction is not error when the trial court clearly
instructed the jury as to the burden of proof upon the State to
show guilt beyond a reasonable doubt. As we do not find the trial
court deprived defendant of his constitutional right to presumption
of innocence by its instructions, this error is overruled.
III.
[5] Defendant next contends the trial court erred in assigning
defendant a prior record level III after erroneously finding
defendant had eight record points. We disagree.
A Prior Record Level III is assigned for at least five but no
more than eight points.
See N.C. Gen. Stat. § 15A-1340.14(c)
(2003). Defendant takes issue with only one of the eight prior
record points found by the trial court, based on the trial court's
allegedly erroneous finding that all the elements of defendant's
present offense were included in a prior offense.
See N.C. Gen.
Stat. § 15A-1340.14(b)(6). Assuming
arguendo the one point was
erroneously assessed, defendant would still have seven prior record
points and would have properly been assigned a prior record level
of III. As removal of the prior record point would not change
defendant's prior record level, this error is therefore deemed
harmless.
See State v. Adams, 156 N.C. App. 318, 324, 576 S.E.2d
377, 381-82 (2003).
IV.
[6] Defendant next contends the trial court erred in imposing
judgment for both assault with a deadly weapon with intent to kill
while inflicting serious injury and discharging a weapon intooccupied property, as such convictions violated defendant's right
to be free from double jeopardy. We disagree.
“It is an ancient and basic principle of criminal
jurisprudence that no one shall be twice put in jeopardy for the
same offense.”
State v. Hicks, 233 N.C. 511, 516, 64 S.E.2d 871,
875 (1951). In determining whether two indictments are for the
same offense, our courts have used the “'same-evidence test.'”
Id.
The same evidence test holds that there must be at least partial
reciprocity of the required elements of an offense for it to be the
same at law as another offense. In
State v. Hill, our Supreme
Court further explained this rule.
“'Therefore, in proving the required elements
A, B, and C under one statute in the first
indictment, and in proving the required
elements A, B, and D under another statute in
the second indictment, one will not run afoul
of the former jeopardy rule. C, an element of
the first is not an element of the second. D,
an element of the second, is not an element of
the first indictment. Therefore each offense
required proof of an element which the other
did not.'”
State v. Hill, 287 N.C. 207, 215, 214 S.E.2d 67, 73 (1975)
(citations omitted) (emphasis omitted).
In
State v. Shook, the Supreme Court of North Carolina held
that:
It is manifest that the two offenses . . .
(1) discharging a firearm into an occupied
building and, (2) assault with a deadly weapon
inflicting serious injury, are entirely
separate and distinct offenses. To prove the
one, the state must show that defendant fired
into an occupied building, an element which
need not be shown to support the second
charge. Likewise to prove the second charge,
it must show the infliction of serious injury,
which is not an element of the first charge.
Shook, 293 N.C. 315, 320, 237 S.E.2d 843, 847 (1977). As
discharging a weapon into occupied property and assault with a
deadly weapon inflicting serious injury are separate offenses with
unique elements which do not place defendant in double jeopardy,
this assignment of error is without merit.
V.
[7] Defendant next contends the trial court erred in failing
to find whether the offenses were mitigated, as evidence presented
to the court would have permitted the finding of numerous
mitigating factors. We disagree.
N.C. Gen. Stat. § 15A-1340.16 (2003) governs the imposition of
aggravated and mitigated sentences. N.C. Gen Stat.§ 15A-1340.16(c)
states that: “The court shall make findings of the aggravating and
mitigating factors present in the offense only if, in its
discretion, it departs from the presumptive range of sentences
specified in G.S.15A-1340.17(c)(2). Findings shall be in writing.”
Id. “Since the court may, in its discretion, sentence defendant
within the presumptive range without making findings regarding
proposed mitigating factors,” this Court has found no error in the
failure to make such findings. State v. Ramirez, 156 N.C. App.
249, 258-59, 576 S.E.2d 714, 721 (2003).
Here, the trial court sentenced defendant for the charge of
assault with a deadly weapon with intent to kill inflicting serious
injury, a Class C felony, to a minimum sentence of 116 months. The
presumptive range for a Class C felony with Prior Record Level III
is 93-116 months. See N.C. Gen. Stat. § 15A-1340.17 (2003). Thetrial court sentenced defendant for the charge of discharging a
weapon into occupied property, a Class E felony, to a minimum
sentence of thirty-four months. The presumptive range for a Class
E felony with Prior Record Level III is twenty-seven to thirty-four
months. Id. Finally, the trial court sentenced defendant for the
charge of possession of a firearm by a felon, a Class G felony, to
a minimum sentence of sixteen months. The presumptive range for a
Class G felony with Prior Record Level III is thirteen to sixteen
months. Id. As defendant was sentenced for all offenses in the
presumptive range, the trial court did not err in failing to make
findings as to mitigating factors.
VI.
[8] Finally, defendant contends the trial court committed
reversible error in imposing an aggravated sentence without making
any findings in aggravation. Defendant asserts that because
defendant was given a minimum sentence which falls in both the
presumptive and aggravated ranges, a finding of aggravation was
required. We disagree.
This question has been previously addressed by this Court.
See Ramirez,
156 N.C. App. 249, 576 S.E.2d 714. In
Ramirez, the
defendant argued it was error to sentence within an overlapping
range between a presumptive and aggravated sentence without a
finding of an aggravated factor.
Id. at 259, 576 S.E.2d at 721.
The Court in
Ramirez found “[t]he fact that the trial court could
have found aggravating factors and sentenced defendant to the same
term does not create an error in defendant's sentence[,]” and held
that the statute was not ambiguous as a result of the overlap.
Id. In accord with the holding in
Ramirez, defendant was properly
sentenced within the presumptive range and the trial court did not
err in failing to find aggravating factors.
For the reasons stated herein, we find no error.
No error.
Judges CALABRIA and STEELMAN concur.
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