State v Langley, (04-1028) 05/03/2005

    Appeal by defendant from judgment entered 18 May 2004 by Judge Thomas D. Haigwood in Pitt County Superior Court. Heard in the Court of Appeals 23 March 2005.
    Attorney General Roy Cooper by Assistant Attorney General Laura J. Gendy, for the State.

    Brannon Strickland, P.L.L.C., by Marlet M. Edwards for defendant-appellant.

    STEELMAN, Judge.
    Defendant was convicted of habitual misdemeanor assault and received an active sentence of 12 to 15 months imprisonment. He contends the trial court erred by: (1) denying his motion to quash count II of the indictment; (2) excluding evidence regarding the victim's character for truthfulness; (3) denying his motion to dismiss for insufficiency of the evidence; and (4) improperly instructing the jury on the charge of assault on a female. We do not find any of defendant's arguments to be persuasive, and find no error in the judgment of the trial court.    The State's evidence tended to show that the victim, Karen Faella, and defendant were married in January 2002 and were divorced in December 2003. On May 30, 2003 Faella went to defendant's residence to pick up her daughter. Defendant was intoxicated. When Faella attempted to enter the residence defendant grabbed her by the arm, pushed her against a door, and told Faella she wasn't going anywhere. Faella pushed him back, and defendant stumbled against a wall. Defendant took the keys from Faella's car, and when Faella attempted to recover them from defendant, her finger was cut on the keys. Faella called the police, defendant dropped the keys, and left his residence on a bicycle.
    The police found defendant lying in a road near his residence, having fallen off of his bicycle. The officers testified that defendant's eyes were bloodshot, his breath smelled strongly of alcohol, and he was wobbly on his feet. Defendant told the officers he had not hit a woman that day. The officers observed a reddish mark on Faella's arm and a cut on her hand.
    In defendant's first assignment of error, defendant argues that the trial court erred by denying defendant's motion to quash count II of the indictment. We disagree.
    Count I of the indictment charged defendant, a male person at least eighteen years of age, with assaulting Faella by grabbing herby the arm and shoving her against a door. Count II of the indictment charged defendant with habitual misdemeanor assault in violation of N.C. Gen. Stat. § 14-33.2 (2004). This statute provides:
A person commits the offense of habitual misdemeanor assault if that person violates any of the provisions of G.S. 14-33(c) or G.S. 14-34 and has been convicted of five or more prior misdemeanor convictions, two of which were assaults. A person convicted of violating this section is guilty of a Class H felony.

Defendant argues that count II of the indictment should be quashed since it failed to allege an essential element of the offense. Count II listed defendant's five previous misdemeanor convictions, but did not charge defendant with an assault. Implicit in defendant's argument is the assumption that the State charged him with two separate offenses, assault on a female and habitual misdemeanor assault. On this point defendant is mistaken.
Habitual misdemeanor assault is a substantive offense and is analogous to the offense of habitual impaired driving. State v. Smith, 139 N.C. App. 209, 214, 533 S.E.2d 518, 520, appeal dismissed, 353 N.C. 277, 546 S.E.2d 391 (2000). A defendant's prior convictions are an element of the offense. State v. Burch, 160 N.C. App. 394, 396, 585 S.E.2d 461, 463 (2003). Trials for habitual misdemeanor assault are required to follow the procedures set forth in N.C. Gen. Stat. § 15A-928 (2004). Section 15A-928(b) provides that:
An indictment or information for the offense must be accompanied by a special indictment or information, filed with the principal pleading, charging that the defendant was previously convicted of a specified offense. At the prosecutor's option, the special indictment or information may be incorporated in the principal indictment as a separate count. Except as provided in subsection (c) below, the State may not refer to the special indictment or information during the trial nor adduce any evidence concerning the previous conviction alleged therein.

    In this case, defendant was not charged with two separate offenses, but rather was charged with a single offense of habitual misdemeanor assault. In compliance with N.C. Gen. Stat. § 15A- 928(b), the prosecutor incorporated the special indictment alleging the five prior convictions as a separate count in the principal indictment. The indictment is not invalid because it contains all the material elements of the offense of habitual misdemeanor assault. We hold the trial court did not err in denying defendant's motion to quash count II of the indictment.
    In his third and fourth assignments of error, defendant argues that the trial court erred in failing to admit character evidence regarding the credibility of the State's witness, Faella. We disagree.
    Defendant's third assignment of error states that “the trial court erred by not allowing testimony regarding victim's priorfrivolous lawsuits.” Where evidence is excluded by a trial court, the party asserting error must show on appeal that the substance of the evidence was in fact made known to the trial court by proffer. N.C. Gen. Stat. § 8C, N.C. R. Evid. 103(a)(2) (2004); State v. Locklear, 159 N.C. App. 588, 594, 583 S.E.2d 726, 730 (2003), aff'd 359 N.C. 63, 602 S.E.2d 359 (2004) (per curiam). A proffer of oral evidence is made by calling a witness outside of the presence of the jury and asking questions. 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence § 18 (6th ed. 2004). The proffer must be “specific enough to permit an intelligent objection and an intelligent ruling.” Id.
    With regard to this assignment of error, defendant did not make a proffer of evidence to the trial court. The record on appeal shows that during defense counsel's examination of defendant, the State objected to a question regarding the results of a previous assault charge brought by Faella against defendant. The trial court sustained the objection, and defendant asked to be heard. Following the departure of the jury, defense counsel stated:
    While I understand that normally this type of evidence would not be admissible, in this case, Your Honor, it was the identical charge which resulted in a frivolous prosecution in Bertie County in which the cost of court was paid by Ms. Faella.
    Your Honor, there is a pattern of conduct herein which she charges Mr. Langley and this prior frivolous prosecution for the identical charge is especially relevant in this case because it is the identical charge. Because it is within one year in time, Your Honor, to the charge in the present case with the same two parties. And I would ask that the jury be allowed to hear that.

The specific facts of the prior incident were not presented to the court. Further, defendant did not argue during this offer of proof, as he does before this Court, that the evidence was offered to attack the credibility of the State's witness. Since neither the facts nor the purpose for admitting the evidence were offered to the trial court, defendant failed to preserve this error for appeal. See N.C. R. Evid. 103(a)(2); N.C. R. App. P. 10(b)(1) (2004).
    Defendant's fourth assignment of error asserts that “the trial court erred by not allowing testimony regarding violent actions taken by victim towards the defendant.” This assignment of error was not properly preserved for appeal because defendant failed to present or discuss the questions raised by this assignment in his brief. “Questions raised by assignments of error in appeals from trial tribunals but not then presented and discussed in a party's brief, are deemed abandoned.” N.C. R. App. P. 28(a).
    Defendant's third and fourth assignments of error are dismissed based upon defendant's failure to properly preserve them for appeal.     In his sixth assignment of error, defendant argues that the trial court erred by denying his motion to dismiss for insufficiency of the evidence. We disagree.
    First, defendant argues that the police officers did not witness the alleged assault and there was no evidence to show that the cuts on Faella were recently inflicted. When considering a motion to dismiss, the trial court must view the evidence in the light most favorable to the State, and must give the State the benefit of every reasonable inference that can be drawn from its evidence. State v. Stocks, 319 N.C. 437, 439, 355 S.E.2d 492, 493 (1987). In ruling on such a motion, the trial court assumes the State's evidence to be true. State v. Bowman, 232 N.C. 374, 376, 61 S.E.2d 107, 109 (1950). Whether the evidence proves to be true is a matter for the jury. Id.
    Faella testified at trial that defendant assaulted her, and the police officers' testimony and the photographs of the cuts on Faella's hand corroborated her testimony.
    Second, defendant argues there was insufficient evidence of certain elements of the offense of assault on a female. Defendant notes that assault is a common law offense that is not statutorily defined. See State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967). Defendant contends that the common law definition of assault requires a showing that Faella either feared defendant orthat the defendant's touching of Faella was unwanted. We disagree.
    “Every battery includes an assault. When a battery is shown, it is not necessary to show that the victim was placed in fear in order to convict the defendant of assault.” State v. Scott, __ N.C. App. __,__, __ S.E.2d __, __ (2005)(internal citations omitted). The offense of assault on a female may be proven either by finding an assault or a battery of the victim. State v. West, 146 N.C. App. 741, 743, 554 S.E.2d 837, 839-40 (2001). “Battery is an assault whereby any force is applied, directly or indirectly, to the person of another.” Id; 554 S.E.2d at 840 (internal citations omitted).
    In the instant case, the State's evidence tended to show that defendant grabbed Faella by the arm and pushed her against a door. Defendant's actions constitute a battery, and thus automatically constitute an assault.
    We hold the trial court did not err by denying defendant's motion to dismiss for insufficient evidence.
    Finally, defendant argues the trial court committed plain error by not including in its instruction to the jury a charge that for the jury to find defendant guilty of assault on a female, the jury must find that Faella feared the defendant or that the defendant's grabbing and shoving of Faella was unwanted. We disagree.
     The trial court instructed the jury that for the jury to find the defendant guilty of assault on a female by a male person, theState must prove the defendant intentionally grabbed the victim's arms and shoved her against the wall, thereby assaulting her; that the victim was a female person; and that the defendant was a male person of at least eighteen years of age. These instructions set forth all of the elements of the offense of assault on a female. See N.C. Gen. Stat. § 14-33(c)(2) (2004). The assault element is satisfied by proving the defendant battered Faella. See State v. West, 146 N.C. App. at 743, 554 S.E.2d at 839-40. We hold this assignment of plain error is without merit.
    Assignments of Error 2 and 5 were not argued before this Court and are deemed abandoned. N.C. R. App. P. 28(a).