An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.

NO. COA04_917


Filed: 4 October 2005

v .                         Pitt County
                            Nos.    03 CRS 9847
STEVEN ANTONIO EBRON,                03 CRS 57799    

    Appeal by defendant from judgments entered 25 February 2004 by Judge W. Russell Duke, Jr., in Pitt County Superior Court. Heard in the Court of Appeals 10 March 2005.

    Attorney General Roy Cooper, by Solicitor General Christopher G. Browning, Jr., for the State.

    George E. Kelly III for defendant-appellant.

    GEER, Judge.

    Defendant Steven Antonio Ebron appeals from his convictions of robbery with a dangerous weapon and assault with a deadly weapon with intent to kill inflicting serious injury. The trial court sentenced defendant in the aggravated range based on facts that the trial court found during the sentencing hearing. On appeal, defendant contends that the indictment was flawed, that the trial court erred in admitting testimony by an eyewitness that defendant had threatened her, that the court erred in its instructions to the jury, that the State failed to present sufficient evidence of defendant's prior record level, and that defendant's aggravated sentence for assault violated Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004). We hold that defendantreceived a trial free from prejudicial error, but that he is entitled to a new sentencing hearing to determine his prior record level and, with respect to his assault conviction, to resentencing in accordance with State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005).

    The State's evidence tended to show the following. The victim, Quentin Lloyd, was riding his bike home from a friend's house between midnight and 1:00 a.m. on 13 June 2003. Lloyd was approached by defendant, Kendrick Green, and a third individual whom Lloyd did not know. Defendant and Green both had guns. The unknown individual, along with defendant, began punching Lloyd, while Green held up his gun and demanded money. Lloyd handed over $600.00 in cash and ran.
    Lloyd went to a friend's house, armed himself with a gun, and left in search of his assailants. When he found defendant and Green in a park, he demanded that they return his money. Defendant shot Lloyd in the chest and when Lloyd fell to the ground, Green shot him again in the leg. As a result of his injuries, Lloyd was hospitalized for over two months. He sustained damage to his right lung and is paralyzed, possibly permanently.
    A jury convicted defendant of robbery with a firearm and assault with a deadly weapon with intent to kill inflicting serious injury. As to the robbery conviction, the trial judge sentenced defendant in the aggravated range to a term of 95 to 123 months, finding as an aggravating factor that "defendant joined with morethan one other person in committing the offense and was not charged with committing a conspiracy." As to the assault conviction, the trial judge also imposed an aggravated sentence of 125 to 159 months, finding as an aggravating factor that the victim had suffered "serious injury that is permanent and debilitating." The sentences were to run consecutively.

    Defendant argues that the indictment with respect to the charge of assault with a deadly weapon with intent to kill inflicting serious bodily injury was insufficient because it did not provide specific information regarding the nature of the serious injury and did not state underlying facts supporting an intent to kill. Defendant did not challenge the indictment at trial. Our Supreme Court has held:
        As a general rule, a defendant waives an attack on the indictment when the indictment is not challenged at trial. However, when an indictment is alleged to be facially invalid, thereby depriving the trial court of its jurisdiction, it may be challenged at any time, notwithstanding a defendant's failure to contest its validity in the trial court.

State v. Call, 353 N.C. 400, 428_29, 545 S.E.2d 190, 208 (internal citations omitted), cert. denied, 534 U.S. 1046, 151 L. Ed. 2d 548, 122 S. Ct. 628 (2001). We may, therefore, review the facial validity of the indictment.
    As this Court has explained, "an indictment couched in the language of the statute is sufficient to charge the statutory offense." State v. Blackmon, 130 N.C. App. 692, 699, 507 S.E.2d 42, 46, cert. denied, 349 N.C. 531, 526 S.E.2d 470 (1998). "It isalso generally true that an indictment need only allege the ultimate facts constituting the elements of the criminal offense and that evidentiary matters need not be alleged." Id.
    In the present case, the indictment alleges that "defendant . . . unlawfully, willfully and feloniously did assault Queintin [sic] Lloyd, with a handgun, a deadly weapon, with the intent to kill and inflicting serious injury." The corresponding statute provides, "Any person who assaults another person with a deadly weapon with intent to kill and inflicts serious injury shall be punished as a Class C felon." N.C. Gen. Stat. § 14_32(a) (2003). The indictment's language thus directly parallels that of the relevant statute and alleges the necessary ultimate facts. The facts that defendant contends should have been included are evidentiary matters that the State was not required to allege. We, therefore, hold that the indictment was facially valid.

    Defendant assigns as error the trial court's admission, over his objection, of the following testimony from an eyewitness, Nikki Barnhill: "[Defendant] said everybody was telling him that I left in the car with the police officers. He knew that I snitched. And if he found out that I snitched he was going to do something to me, if he found out I snitched."
    Although defendant does not dispute that this testimony is relevant, defendant nonetheless argues that the testimony should have been excluded because its prejudicial effect outweighed its probative value under N.C.R. Evid. 403. A trial court's weighingof the probative value of the evidence against its potential for causing unfair prejudice is evaluated on appeal under an abuse of discretion standard. State v. Prevatte, 356 N.C. 178, 250, 570 S.E.2d 440, 480 (2002), cert. denied, 538 U.S. 986, 155 L. Ed. 2d 681, 123 S. Ct. 1800 (2003). Accordingly, we may only disturb the trial court's ruling if we find it to be "so arbitrary that it could not have been based on reason." Id.
    It is well-established in this State that evidence of a defendant's efforts to intimidate a witness are admissible as tending to show the defendant's consciousness of his guilt. See, e.g., State v. Mason, 337 N.C. 165, 171, 446 S.E.2d 58, 61 (1994) (holding that testimony concerning the defendant's threats to the State's principal witness was a strong indication of the defendant's awareness of his own guilt); State v. Hicks, 333 N.C. 467, 485, 428 S.E.2d 167, 177 (1993) (holding that a witness' testimony that defendant "had pushed him to the floor, held a steak knife over him, and threatened to kill him if he told anyone what the defendant had done" was admissible), overruled in part on other grounds by State v. Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001). Defendant has not pointed to any circumstance or fact in this case that made Barnhill's testimony more prejudicial than in similar cases in which such testimony was allowed. See Mason, 337 N.C. at 171-72, 446 S.E.2d at 61 (finding no abuse of discretion when testimony was not presented in a manner designed to inflame the jury or otherwise suggest decision on an improper basis). We,therefore, hold that the trial court did not abuse its discretion in admitting this testimony.
    Defendant next argues that Barnhill's testimony regarding defendant's out-of-court statement was inadmissible hearsay. Even assuming, arguendo, that the statement constituted an out-of-court statement offered for the truth of the matter asserted, N.C.R. Evid. 801(c), since the statement was made by defendant himself, it constituted an admission of a party-opponent and, therefore, was admissible. N.C.R. Evid. 801(d) ("A statement is admissible as an exception to the hearsay rule if it is offered against a party and it is . . . his own statement, in either his individual or a representative capacity . . . .").
    Finally, defendant argues that Barnhill's testimony should have been the subject of a limiting instruction. Specifically, defendant contends that the trial judge should have instructed the jury to "consider the testimony only to the extent that they found it indicated ill will or fear on the part of the victim towards the defendant and for no other reason in the case." Since, however, defendant did not specifically request such a limiting instruction at trial, he has not properly preserved this objection for appellate review. State v. Stager, 329 N.C. 278, 310, 406 S.E.2d 876, 894 (1991) ("The defendant, having failed to specifically request or tender a limiting instruction at the time the evidence was admitted, is not entitled to have the trial court's failure to give limiting instructions reviewed on appeal."). Accordingly, this assignment of error is overruled.

    With respect to the jury instructions, defendant argues that the trial court erred in instructing the jury that a handgun is a deadly weapon and that a gunshot wound to the chest is a serious injury. The challenged instruction reads as follows:
            The defendant has also been charged with assault with a deadly weapon with intent to kill inflicting serious injury.

            For you to find the defendant guilty of this offense the state must prove four things beyond a reasonable doubt: First, that the defendant assaulted the victim by intentionally and without justification or excuse shooting the victim.

            Second, that the defendant used a deadly weapon. A deadly weapon is a weapon that is likely to cause death or serious bodily injury. A handgun is a deadly weapon.

            Third, the state must prove that the defendant had the specific intent to kill the victim.

            . . . .

            Fourth, that the defendant inflicted serious injury. Serious injury may be defined as such physical injury as causes great pain and suffering.

            A gunshot wound to the chest would be a serious injury.

Since defendant did not object to this instruction at trial, we may only review this particular jury instruction for plain error. N.C.R. App. P. 10(b)(2) & (c)(4).
    Defendant argues that "[w]hile a 'handgun' of some varieties and employed in certain circumstances may be a deadly weapon, a handgun in and of itself is not." Our courts have, however, ruledto the contrary. State v. Powell, 238 N.C. 527, 531, 78 S.E.2d 248, 251 (1953) (holding that a pistol is a "deadly weapon per se"); State v. Pettiford, 60 N.C. App. 92, 98, 298 S.E.2d 389, 392 (1982) (holding that an instruction "that a pistol or revolver was a deadly weapon" was not error because "[a] pistol is a deadly weapon per se"). Accordingly, defendant's objection to this portion of the jury instructions has no merit.
    We also hold that the trial court did not err in instructing the jury that the gunshot wound to Lloyd's chest constituted a serious injury. "[W]here, as in the case at bar, the State's evidence with respect to the injuries is uncontradicted and the injuries could not conceivably be considered anything but serious, then the trial judge may instruct the jury that if they believe the evidence as to the injuries, then they will find that there was serious injury." State v. Davis, 33 N.C. App. 262, 264, 234 S.E.2d 762, 763 (1977) (holding, with respect to an assault instruction, that trial court properly instructed the jury that a "fractured skull is a serious injury"). Here, the victim's undisputed testimony was that he had sustained damage to one of his lungs as a result of the bullet in his chest, was no longer able to walk, and had spent two and a half months in the hospital following the assault. The evidence was, therefore, sufficient to justify the trial court's instruction.


    Defendant next seeks a new sentencing hearing. He first contends with respect to both convictions that the trial courterred in sentencing him as a Level II offender when the State offered no evidence of defendant's prior record level. During defendant's sentencing hearing, the record suggests that the only information supplied to the trial court as to defendant's prior record level was a worksheet completed by the State. The record does not contain any indication that the State submitted evidence regarding defendant's prior record level and it does not contain any express stipulation by defendant to that record level. See N.C. Gen. Stat. § 15A-1340.14 (2003) (specifying the methods by which a prior record level may be proven).
    The law is well-established that "the State's unverified assertion that a defendant was convicted of the prior crimes listed on a prior record level worksheet" is not sufficient to support a sentence. State v. Goodman, 149 N.C. App. 57, 72, 560 S.E.2d 196, 205 (2002), rev'd in part on other grounds per curiam, 357 N.C. 43, 577 S.E.2d 619 (2003). Thus, as a matter of law, the State did not present sufficient evidence of defendant's prior crimes. See State v. Jeffery, __ N.C. App. __, __, 605 S.E.2d 672, 675 (2004) (State failed to satisfy its burden of proving defendant's prior record level merely by submitting a prior record level worksheet). In accordance with Goodman and Jeffery, we hold that the trial court erred in sentencing defendant as a Level II offender based solely on the State's prior record level worksheet. Defendant is, therefore, entitled to a new sentencing hearing to determine his prior record level.    Defendant also challenges his aggravated sentence on the assault charge on the grounds that it was based on facts not found by a jury in violation of Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004).   (See footnote 1)  The trial court based its aggravated sentence on its finding that "[t]he victim of this offense suffered serious injury that is permanent and debilitating."
    As our Supreme Court recently held, based on Blakely, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed presumptive range must be submitted to a jury and proved beyond a reasonable doubt." Allen, 359 N.C. at 437, 615 S.E.2d at 265 (citing Blakely, 542 U.S. at __, 159 L. Ed. 2d at 413_14, 124 S. Ct. at 2537; Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362 (2000)). The failure to do so constitutes structural error and is reversible per se. Id. at 449, 615 S.E.2d at 272. Accordingly, defendant is, as to his assault conviction, entitled to a new sentencing hearing at which any aggravating circumstances shall be found by a jury beyond a reasonable doubt.    In summary, this case is remanded to the trial court for a new sentencing hearing at which defendant's prior record level may properly be determined for both the robbery and assault sentences. With respect to his sentence for assault, file number 03 CRS 57799, he is also entitled to a new sentencing hearing in compliance with Blakely and Allen.

    No error in part; remanded for a new sentencing hearing in part.

    Judges TIMMONS-GOODSON and CALABRIA concur.

    Report per Rule 30(e).

Footnote: 1
    Although defendant also received a sentence in the aggravated range as a result of his robbery conviction, he has not challenged that sentence under Blakely on appeal. We, therefore, do not address the propriety of the robbery sentence apart from the issue of the prior record level already addressed. See Viar v. N.C. Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005) ("It is not the role of the appellate courts . . . to create an appeal for an appellant. . . . [T]he Rules of Appellate Procedure must be consistently applied; otherwise, the Rules become meaningless, and an appellee is left without notice of the basis upon which an appellate court might rule.").

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