State v Breedlove, (04-1251) 11/15/2005

Appeal by defendant from judgment entered 7 July 2004 by Judge Mark E. Klass in Davidson County Superior Court. Heard in the Court of Appeals 26 September 2005.

Attorney General Roy Cooper, by Special Deputy Attorney General W. Richard Moore, for the State.

John T. Hall for defendant-appellant.

GEER, Judge.

    Defendant Robert Eugene Breedlove was convicted of robbery with a dangerous weapon and pled guilty to attaining the status of habitual felon. On appeal, defendant contends that the trial court erred in denying his motion to dismiss the charge of robbery with a dangerous weapon and that the habitual felon indictment was inadequate to vest jurisdiction in the trial court. We disagree.
    The State's evidence tended to show that Darrell Chapman was home sick on 26 December 2002. Around midnight, Chapman heard a knock at the door. Chapman looked through the window of the door and saw T.C. Owens and another male, who was later identified as defendant. Chapman opened the door and, as he turned around, Owens hit Chapman on the head with a bottle and started stranglingChapman. Defendant and Owens told Chapman to "quit struggling" and defendant announced that he had a knife. When Chapman calmed down, he felt a "hand or something on [his] neck." Owens then ransacked the bedroom, taking Chapman's metal detector, wallet, change, fishing reel, and personal cassette player. Owens and defendant told Chapman to "stay down for ten minutes and we are gone." Afterwards, Chapman ran to a neighbor's house and called the police.
    At trial, Owens testified that at the time of the robbery, he was living with defendant. On the night of the robbery, defendant brought up the subject of money because Owens had not been paying rent. Owens told defendant that Chapman might have some money and the two decided to go to Chapman's house. On the way to Chapman's house, Owens told defendant that he was going to knock on Chapman's door and then hit Chapman over the head with a bottle. Owens testified that once he hit Chapman over the head, he started to choke Chapman, but defendant pushed Owens away. Defendant then got on Chapman's back and held a knife to Chapman's neck. Owens testified that defendant took Chapman's metal detector and sold it to a man defendant knew in Thomasville.
    A jury found defendant guilty of robbery with a dangerous weapon. Defendant subsequently pled guilty to attaining habitual felon status. The trial court sentenced defendant to 135 to 171 months imprisonment, which is within the presumptive range for a Class C felon with defendant's prior record level of VI. Defendant appeals.    Defendant first contends the trial court erred in denying his motion to dismiss the armed robbery charge. "In ruling on a motion to dismiss for insufficient evidence, the trial court must consider the evidence in the light most favorable to the State, which is entitled to every reasonable inference which can be drawn from that evidence." State v. Dick, 126 N.C. App. 312, 317, 485 S.E.2d 88, 91, disc. review denied, 346 N.C. 551, 488 S.E.2d 813 (1997). The trial court must grant a defendant's motion to dismiss if the State fails to present "substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense." State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Williams, 133 N.C. App. 326, 328, 515 S.E.2d 80, 82 (1999).
    The essential elements of robbery with a dangerous weapon are "'(1) the unlawful taking or an attempt to take personal property from the person or in the presence of another (2) by use or threatened use of a firearm or other dangerous weapon (3) whereby the life of a person is endangered or threatened.'" State v. Small, 328 N.C. 175, 181, 400 S.E.2d 413, 416 (1991) (quoting State v. Beaty, 306 N.C. 491, 496, 293 S.E.2d 760, 764 (1982)). Contrary to defendant's argument, facts in the record on appeal support a reasonable inference that defendant perpetrated each element of armed robbery.
    The State presented evidence that defendant and Owens agreedto "stop by" Chapman's house after discussing the fact that Chapman had money. On the way to Chapman's house, Owens told defendant he was going to hit Chapman over the head with a bottle. At Chapman's house, Chapman heard defendant tell him to "quit struggling" and that "he had a knife." Defendant then held a knife to Chapman's neck while Owens took Chapman's property. Defendant sold Chapman's metal detector to a man in Thomasville.
    This evidence could reasonably lead a jury to conclude that defendant, by using a dangerous weapon, took possession of the victim's property without his permission. This evidence is sufficient to support defendant's conviction. Accordingly, we uphold the trial court's denial of defendant's motion to dismiss.
    Defendant also contends the trial court lacked jurisdiction to accept his guilty plea to being a habitual felon. He maintains the indictment charging him as a habitual felon failed to confer jurisdiction on the trial court because the indictment did not allege that defendant was 18 years old when he committed the offenses and did not allege defendant's correct name.
    We first determine whether this Court has jurisdiction to address defendant's argument. "Pursuant to G.S. 15A-1444(a1), a defendant who has entered a plea of guilty to a felony is not entitled to appeal as a matter of right unless his sentence exceeds the presumptive term set by G.S. 15A-1340.4." State v. Farrior, 117 N.C. App. 429, 433, 451 S.E.2d 332, 335 (1994), remanded on other grounds, 340 N.C. 116, 455 S.E.2d 663 (1995). A defendant may, however, petition this Court for review by writ of certiorari.N.C. Gen. Stat. § 15A-1444(a1) (2003). Here, the trial court entered judgment upon defendant's plea of guilty and defendant thereafter failed to move to withdraw his plea. Defendant has not petitioned for writ of certiorari, nor are any of the exceptions enumerated in N.C. Gen. Stat. § 15A-1444(e) applicable. Under these circumstances, this Court is without jurisdiction to consider defendant's argument. Nevertheless, we conclude that defendant's argument is without merit because the requirements of N.C. Gen. Stat. § 14-7.3 (2003) were met by the allegations in defendant's habitual felon indictment, and defendant received sufficient notice that he would be tried as a recidivist.

    No error.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

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