STATE OF NORTH CAROLINA

v .                         Brunswick County
                            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.

    McGEE, Judge.

    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 it."
    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.

I.

    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). Moreover,
        "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.

II.

    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 (2004).

III.

    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 v. Washington, 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 to 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 Amendment. Allen, ___ N.C. at ___, ___ S.E.2d at ___. "[S]uch Blakely 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 N.C. Gen. 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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