An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced
NORTH CAROLINA COURT OF APPEALS
Filed: 16 August 2005
STATE OF NORTH CAROLINA
Nos. 03 CRS 53662
04 CRS 1673
RHONDA MARIE MOORE
Appeal by defendant from judgment entered 21 May 2004 by Judge
James Floyd Ammons, Jr. in Superior Court, Brunswick County. Heard
in the Court of Appeals 18 May 2005.
Attorney General Roy Cooper, by Special Deputy Attorney
General Thomas R. Miller, for the State.
McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III and
Kirby H. Smith, III for defendant-appellant.
Rhonda Marie Moore (defendant) was indicted on 14 July 2003 on
three counts of assault with a deadly weapon with intent to kill in
violation of N.C. Gen. Stat. § 14-32(c) and on one count of going
armed to the terror of the people. Defendant was indicted on one
count of possession of a firearm by a felon in violation of N.C.
Gen. Stat. § 14-415.1 on 15 March 2004. Defendant was again
indicted on the three counts of assault with a deadly weapon with
intent to kill in a superseding indictment on 15 March 2004.
Defendant pled not guilty to all of the charges but stipulated
that she was a convicted felon, having been convicted on 4 February
2003 of discharging a weapon into an occupied property. At trial,the State's evidence tended to show that on the evening of 24 June
2003, Theodore Granger (Granger) and two of his friends, Andy
Hewitt (Hewitt) and Thomas Burns (Burns), went to watch a friend's
child participate in a "T-ball" game. While at the game, Granger
noticed defendant sitting in the bleachers. Granger and defendant
had dated about a year earlier. Granger testified that defendant
was at the game with defendant's mother, defendant's two children,
and defendant's boyfriend, Shannon Simmons (Simmons).
The testimony of Granger, Hewitt, and Burns showed that during
the game, defendant left the bleachers and went to her vehicle.
When defendant returned, she gave something to Simmons. As Simmons
put the object in his waistband under his shirt, both Granger and
Hewitt saw that the object was a handgun. The game ended about
twenty minutes later and shortly thereafter, Simmons was standing
outside defendant's vehicle in the parking lot. Simmons lifted up
his shirt, exposing the handgun, and threatened to shoot Granger.
Granger and Simmons yelled and cursed at each other, and an
argument ensued. Defendant and Simmons got into defendant's
vehicle, but before they drove off, Simmons lowered the passenger-
side window of the vehicle, and pointed the gun at Granger, Hewitt
and Burns. As Granger, Hewitt, and Burns walked to their vehicle,
Simmons rolled the window down further. Simmons again pointed the
gun first at Granger, then at Hewitt, and then at Burns. As
defendant drove her vehicle out of the parking lot, Simmons fully
extended his arm out of the vehicle window and fired the gun twice
in the direction of Granger, Hewitt and Burns. Simmons testified for the State that he had brought his
handgun with him to the game and that he had showed it to defendant
while they were traveling to the game. Simmons further testified
that after seeing Granger, Hewitt, and Burns, he asked defendant to
retrieve his gun from her vehicle. Defendant brought the gun to
Simmons and Simmons put the gun in his waistband. After the game,
Simmons and defendant walked out to the parking lot together.
Simmons showed his gun to Granger, "flashing it to let [Granger]
know that [Simmons] had [a gun]." In the parking lot, Simmons,
Granger, Hewitt, and Burns yelled at each other. Defendant and
Simmons got into defendant's vehicle, and Simmons showed the gun to
Granger, Hewitt, and Burns through the window of the vehicle.
Simmons fired the gun at the ground as he and defendant were
exiting the parking lot. Simmons testified that he fired the gun
because defendant had told him: "Stick it out the window and shoot
Defendant did not testify, and defendant's mother, Mary Moore
(Moore), was the only defense witness. Moore testified that she,
defendant, defendant's two children, and Simmons had attended the
game on 24 June 2003. Moore further testified that approximately
ten to fifteen minutes before the game ended, defendant alerted
Moore that Granger, Hewitt, and Burns were also at the game. Moore
testified that during the game, Granger, Hewitt and Burns
approached the bleachers where Moore, defendant and Simmons were
seated, and that Granger stared at Simmons. Moore testified she
told Granger to leave defendant and Simmons alone, and that Grangerthreatened to kill Simmons. Moore also testified that at no time
during the game did she or defendant leave; nor did defendant
retrieve anything from defendant's vehicle.
After the game, Moore, defendant, defendant's children, and
Simmons tried to quickly leave the ballpark. They were followed by
Granger, Hewitt and Burns, who threatened Simmons, and cursed and
called Simmons names. Moore testified that Simmons and defendant
left together in defendant's vehicle, and that at defendant's
suggestion, Moore took defendant's children with her in her
vehicle. Defendant and Simmons drove out of the parking lot first,
then Granger and his friends, and finally Moore and defendant's
children. As defendant and Simmons exited the parking lot, Moore
heard something that sounded like a gun being fired. Moore later
learned from defendant that Simmons had fired a gun out of the
window of defendant's vehicle. Moore further testified that
Simmons subsequently told Moore that defendant had not known that
Simmons had a gun at the game.
During jury deliberations, the trial court dismissed the
charge of going armed to the terror of the people. The jury found
defendant not guilty on the charges of assault with a deadly weapon
on Hewitt and Burns. However, the jury found defendant guilty of
misdemeanor assault with a deadly weapon on Granger, and possession
of a firearm by a felon. The trial court consolidated the charges
for judgment, found two aggravating factors, and imposed an
aggravated range sentence of twenty to twenty-four months in
prison. Defendant appeals.
Defendant argues that the trial court erred by allowing the
State to cross-examine Moore about defendant's criminal history.
First, defendant argues that the trial court erred in allowing the
State to question Moore about defendant's prior felony conviction
for discharging a weapon into an occupied property over defendant's
objection to the State's line of questioning. Defendant argues
that this line of questioning by the State violated Rules 404 and
609 of the North Carolina Rules of Evidence.
However, the record shows defendant neither objected to the
State's line of questioning nor to the State's questions on the
grounds that they violated the North Carolina Rules of Evidence.
The State began its cross-examination of Moore by asking her if she
had called the police after the incident at the ballpark on the
evening of 24 June 2003. Moore responded that she had not called
the police. The State asked Moore if she was aware that defendant
"was on probation for shooting into somebody's home[.]"
Defendant's counsel did not object to this question. Moore
answered that she was aware that defendant was on probation but
that Moore had not called the police because she had "two crying
grandchildren" that she was trying to calm down, and she did not
know what to do. The State then asked Moore whether she knew that
defendant "was looking at 29 to 44 months for shooting into a
woman's home," and again defendant's counsel did not object.
The State confronted Moore with defendant's plea transcript
from the prior felony conviction and asked Moore whether she was inthe courtroom when defendant pled guilty to discharging a weapon
into an occupied property. Defendant's counsel neither objected to
the evidence in the plea transcript, nor to the question. Rather,
defendant's counsel objected only when the State later asked Moore
whether, "according to [defendant's] transcript of plea
. . . [defendant] said that she was in fact guilty of" discharging
a weapon into an occupied property. The trial court overruled the
objection before defendant's counsel had stated the grounds for his
objection, but the trial court reporter interrupted the proceedings
to clarify defendant's objection. Defendant's counsel responded
that he was objecting on the grounds that Moore did not have
"knowledge of [what was] on [the plea transcript]" because Moore
had just testified that she was not in the courtroom when defendant
had pled guilty to the prior felony. The trial court overruled the
objection, and defendant's counsel objected to the State's use of
the plea transcript on the ground that the State had not
authenticated it. The trial court similarly overruled this
objection, and the State then questioned Moore about the contents
of the plea transcript.
Defendant's counsel subsequently objected three more times
during the State's questioning of Moore about defendant's prior
felony conviction, but still defendant's counsel neither objected
to the line of questioning, nor objected on the grounds that the
State's questions violated the North Carolina Rules of Evidence.
Rather, defendant's counsel objected only on the grounds that Moore
did not have knowledge of the specifics of defendant's priorfelony. Generally, "to preserve a question for appellate review,
a party must have presented to the trial court a timely request,
objection or motion, stating the specific grounds for the ruling
the party desired the [trial] court to make if the specific grounds
were not apparent from the context." N.C.R. App. P. 10(b)(1).
"where a theory argued on appeal was not
raised before the trial court, 'the law does
not permit parties to swap horses between
courts in order to get a better mount'" in the
appellate courts. . . . "The defendant may
not change his position from that taken at
trial to obtain a 'steadier mount' on appeal."
State v. Holliman, 155 N.C. App. 120, 123, 573 S.E.2d 682, 685
(2002) (citations omitted). Because defendant does not argue on
appeal that the State's questions were improper because Moore
lacked knowledge with regard to defendant's prior felony, and
because defendant did not present to the trial court the grounds
she now asserts on appeal, defendant has failed to preserve this
argument for our review. We thus dismiss defendant's argument that
the trial court erred in allowing the State to question Moore about
defendant's prior felony conviction for discharging a weapon into
an occupied property.
Second, defendant argues that the trial court erred in
permitting the State to question Moore about defendant's prior
convictions and criminal charges. Over defendant's objections, the
State questioned Moore about (1) defendant's pending hit and run
charge, (2) defendant's conviction for assault with a deadly
weapon, (3) defendant's conviction for maintaining a vehicle tokeep a controlled substance, and (4) defendant's conviction for
possession of drug paraphernalia. Specifically, defendant argues
that the trial court overruled defendant's objections in violation
of Rules 404 and 609 of the North Carolina Rules of Evidence. Rule
609 is inapplicable to the present case as it provides that the
credibility of a testifying witness may be attacked with the
witness's criminal convictions, and defendant did not testify in
the present case. N.C. Gen. Stat. § 8C-1, Rule 609 (2003).
Regarding Rule 404, defendant argues that the State's
questioning was improper because the State offered evidence of
defendant's prior convictions or other criminal acts to show that
defendant was acting in conformity with these crimes on 24 June
2003. While "[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show that
he acted in conformity therewith[,]" it may be admissible to show
"proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake, entrapment or
accident." N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003). Defendant
argues that because "at no time did the State ever say why it was
inquiring of [Moore] about [defendant's] prior criminal
convictions[,]" the "only probative value [of the evidence was] to
show that . . . defendant [had] the propensity or disposition to
commit an offense of the nature of the crime charged." State v.
West, 103 N.C. App. 1, 9, 404 S.E.2d 191, 197 (1991).
However, defendant ignores that Rule 404(a) permits character
evidence to be admitted "for the purpose of proving that[defendant] acted in conformity therewith on a particular occasion"
under certain circumstances. N.C. Gen. Stat. § 8C-1, Rule 404(a)
(2003). Specifically, Rule 404(a)(1) provides that character
evidence regarding the accused is "admissible for the purpose of
proving that [the accused] acted in conformity therewith" when the
evidence is "offered by an accused, or by the prosecution to rebut
the same[.]" Id. Moreover, in cross-examining a witness who has
testified about a defendant's character, the State may ask the
witness "about relevant specific instances of the defendant's
conduct." State v. Gappins, 320 N.C. 64, 70, 357 S.E.2d 654, 658
(1987); see also N.C. Gen. Stat. § 8C-1, Rule 405(a) (2003). The
record shows that the State introduced evidence of defendant's
prior convictions and other criminal acts to rebut Moore's
testimony that defendant was "a good girl" and had not done
anything wrong but had only "mess[ed] with the wrong people that
[got defendant] in trouble." The trial court did not err in
allowing the State to cross-examine Moore on specific instances of
defendant's conduct to rebut Moore's testimony that defendant was
a person of good character. Additionally, defendant does not show
that the trial court abused its discretion in admitting this
evidence in violation of Rule 403 of the North Carolina Rules of
Evidence. Defendant's assignment of error is overruled.
Defendant argues that the trial court violated the double
jeopardy clause of the North Carolina and United States
constitutions by assigning defendant four record points for herprior felony conviction of discharging a weapon into an occupied
property when that conviction was an element of the possession of
a firearm by a felon charge. However, defendant failed to raise
this issue at trial and thus, defendant has not properly preserved
this issue for our review. See N.C.R. App. P. 10(b)(1).
In the present case, defendant never objected to the prior
record sheet submitted to the trial court by the State, nor did
defendant object to the trial court's using defendant's prior
felony conviction of discharging a weapon into an occupied property
to calculate prior record points. In fact, the trial transcript
shows that defendant's attorney expressly agreed that defendant had
"seven total points which place[d] her in conviction Level III."
Since defendant has neither preserved this issue for appeal, nor
argued why we should consider the issue despite defendant's failure
to preserve the issue, we dismiss this assignment of error.
Nevertheless, we note that defendant's argument is without merit
because we have previously held that "elements used to establish an
underlying conviction may also be used to establish a defendant's"
prior record level. See State v. Harrison, 165 N.C. App. 332, 335,
598 S.E.2d 261, 262 (holding that the "defendant was not subjected
to double jeopardy by including his conviction of second-degree
rape in calculating his prior record level" when the second-degree
rape conviction was the reportable conviction requiring the
defendant to register as a sexual offender under N.C. Gen. Stat. §
14-208.11(a)(2)), disc. review denied, 359 N.C. 72, 604 S.E.2d 922
Defendant also argues that the trial court erred in sentencing
her in the aggravated range without the aggravating factors being
proved beyond a reasonable doubt to a jury in violation of Blakley
, 542 U.S. 296, 159 L. Ed. 2d 403 (2004). In Blakely
the United States Supreme Court held that "[o]ther than the fact of
a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt." Blakely
, 542 U.S. at
___, 159 L. Ed. 2d at 412 (quoting Apprendi v. New Jersey
, 530 U.S.
466, 490, 147 L. Ed. 2d 435, 455 (2000)). In applying Blakely
our structured sentencing scheme, our Supreme Court determined that
our "presumptive range" is the equivalent of "statutory maximum."
State v. Allen
, ___ N.C. ___, ___, ___ S.E.2d ___, ___,(No.
485PA04)(1 July 2005). In other words, "[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." Id
. (emphasis added). Our
Supreme Court further held that under Blakely
, "those portions of
N.C.G.S. § 15A-1340.16.(a), (b), and (c) which require trial judges
to consider evidence of aggravating factors not found by a jury or
admitted by the defendant and which permit imposition of an
aggravated sentence upon judicial findings of such aggravating
factors by a preponderance of the evidence" violate the Sixth
, ___ N.C. at ___, ___ S.E.2d at ___. "[S]uch
errors are structural errors and are, therefore, reversibleper se
." State v. Bullock
, ___ N.C. App. ___, ___, ___ S.E.2d ___,
___ (No. COA04-665) (19 July 2005) (citing Allen
, ___ N.C. at ___,
___ S.E.2d at ___).
In the present case, defendant was sentenced for a Class G
felony for possession of a firearm by a felon. The trial court had
consolidated this charge with that of the misdemeanor assault with
a deadly weapon for sentencing. Having a prior record level III,
the minimum presumptive sentence for defendant was thirteen to
sixteen months in prison. See
N.C. Gen. Stat. § 15A-1340.17(c)
(2003). The minimum aggravated sentence for a Class G felony for
a defendant with a prior record level III is sixteen to twenty
months. N.C. Gen. Stat. § 15A-1340.17(d) (2003). The trial court
found two aggravating factors: (1) that defendant "induced others
to participate in the commission of the offense[,]" and (2) that
defendant "occupied a position of leadership or dominance of other
participants" in the commission of the offense. See
Stat. § 15A-1340.16(d)(1) (2003). Defendant was sentenced to an
aggravated sentence of twenty to twenty-four months in prison.
Defendant's sentence was therefore enhanced by an additional seven
to eight months in prison due to the trial court's finding of the
aggravating factors. Because these aggravating factors were not
found by a jury beyond a reasonable doubt, we reverse the trial
court's sentence and remand for a new sentencing hearing. We need
not consider defendant's other arguments that the trial court erred
in sentencing defendant.
Defendant's assignments of error numbers two and three, which are not argued in defendant's brief on appeal, are deemed abandoned
pursuant to N.C.R. App. P. 28(b)(6).
No error; remanded for resentencing.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).
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