An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-1455

NORTH CAROLINA COURT OF APPEALS

Filed: 15 November 2005

STATE OF NORTH CAROLINA

v .                         Henderson County
                            No. 03 CRS 52615
LORENZO M. DUARTE

    Appeal by defendant from judgment entered 10 March 2004 by Judge James U. Downs in Henderson County Superior Court. Heard in the Court of Appeals 9 June 2005.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Daniel P. O'Brien, for the State.

    William D. Auman, for defendant-appellant.

    JACKSON Judge.

    Defendant was indicted by a grand jury on the charge of first degree murder in the death of Teresa Williams (“Williams”). Defendant was convicted by a jury of second degree murder in Williams' death on 10 March 2004. The trial judge sentenced defendant in the aggravated range, after finding both aggravating and mitigating factors, to a term of 237 to 294 months. Defendant timely appealed the verdict and sentence.
    At trial the State's evidence tended to show that about 1:22 a.m. on 23 April 2003, police officers were dispatched to the boarding house where defendant and Williams shared a room. Upon arrival, the officers found Williams lying in bed with a stab wound, covered with a band-aid, to her left breast. There was an opened, lock-blade knife beside her head. Williams was semi-conscious, unable to relate to the officers what had happened, and mumbled that she “was hurting and wanted to sleep.” Defendant was standing in the room looking at Williams when the officers arrived. Williams was pronounced dead at 2:40 a.m. on 23 April 2003 after arriving at the hospital. Williams' autopsy found that she had a blood alcohol concentration of .290 and a cocaine concentration of .012 milligrams per liter.
    Officers obtained a search warrant for defendant and Williams' room, based in part on the statements of Stephen Duncan (“Duncan”) who was William's cousin and who rented a room on the same floor of the boarding house as Williams and defendant. Duncan registered a blood alcohol level of .20 on an Alcosensor some time after giving his account of the events leading up to Williams' death. The officer taking the statement, Detective Adams, testified that, although Duncan smelled of alcohol and appeared intoxicated, he appeared to be coherent and provided facts regarding the incident that also were coherent. In addition, Detective Adams testified that he based his application for the search warrant on the facts that: a person with a stab wound, who later died, had been found at the location; he suspected that the death was not the result of a suicide; and he wanted to search the location for sharp objects among other things as part of his investigation.
    As a result of the search conducted pursuant to the search warrant the following items were recovered: a bloody t-shirt, the lock-blade knife, a kitchen knife with an eight inch blade found under the corner of a microwave, blood stained carpeting, four beerbottles, and a bloody towel. The towel was not included in the inventory of items seized, however. Officers also collected the pants that defendant was wearing when he was arrested.
    Defendant made a pre-trial motion to suppress evidence regarding a prior alleged assault on Williams by defendant. The motion was denied. The State subsequently presented evidence showing that, four days prior to Williams' death, police had been called to the boarding house in reference to a domestic disturbance. The officers were let into the building by the landlord, whom they had to awaken. Officers found Williams bleeding from the nose and mouth. When asked about her injuries, Williams told the officers that the landlord had hit her. Because they had just had to awaken the landlord, the officers did not believe Williams and went upstairs to continue their investigation. They found defendant in the room he shared with Williams. There were drops of blood on the floor of the room and on defendant's pants. Defendant was arrested for domestic violence. Williams bailed defendant out of jail on Monday, 21 April.
    Testimony regarding the domestic violence incident was presented by the officer who had arrested defendant on the domestic violence charge, Duncan, and another of Williams' cousins, Nancy Dowler (“Dowler”). Duncan told the officer that he had called regarding the domestic disturbance, that Williams and defendant had been arguing all night, and that they were the only people in their room that night. Dowler testified that she had seen Williams two days after the alleged domestic assault and that Williams had toldher “[t]hat son of a bitch I live with” had beaten her up. The trial court gave a limiting instruction to the jury that the testimony about the alleged domestic violence could only be used to decide whether defendant had the motive to commit the offense for which he was being tried.
    Defendant presented the testimony of Steven Smith (“Smith”), Williams' ex-husband, that Williams told him on 19 April that someone other than defendant had beaten her up. Williams' employer, Gene Albertson (“Albertson”), also testified for the defense. Albertson testified that Williams had told him that someone named Lucas, a.k.a. Hector, had beaten her up.
    The State presented the testimony of Brandon Ledford (“Ledford”), an inmate who had been incarcerated with defendant, who testified that defendant had admitted to stabbing Williams because he believed she was being unfaithful. Ledford stated that defendant told him that after stabbing Williams, he washed the knife off with Joy - which Ledford assumed to mean Joy dish soap - and then threw the knife over the fence behind the apartment. No knife was found behind the fence in back of defendant's apartment. The State stipulated that Ledford had been promised that his truthful testimony in this case would be taken into consideration in the prosecution of charges which were pending against him.
    The defense presented the expert testimony of Dr. Andrew Mason (“Dr. Mason”), a forensic toxicologist. Dr. Mason testified, without objection, as to the possible effect of combined alcohol and cocaine intoxication causing violent behavior - to includeself-injurious behavior. However, when asked by the defense on direct examination if he had an opinion of what effect, if any, combined alcohol and cocaine intoxication had on Williams in this particular case, the State objected. The State's objection was sustained. On cross-examination, Dr. Mason testified that he could not predict whether a particular individual would be violent because of the effects of alcohol.
    Dr. Patrick Lantz (“Dr. Lantz”) - a pathologist, Forsyth County Medical Examiner, and regional forensic pathologist with the State of North Carolina - testified regarding the results of the autopsy he performed on Williams shortly after her death. Dr. Lantz testified that Williams died from a stab wound just to the left of her breast bone, which went between her ribs about five inches and penetrated the right ventricle of her heart. Dr. Lantz described the fatal wound as having a “blunt extremity” which would correspond to the dull edge of a knife and a “sharp extremity” which would correspond with the cutting edge of a knife. These details led Dr. Lantz to conclude that the wound had been inflicted with a single edged knife rather than by a knife with two cutting edges, such as a dagger, which would have had two “sharp extremities.”
    Dr. Lantz testified that he normally takes measurements of the length of a stab wound and the width of the “blunt extremity” of the wound. Dr. Lantz further testified that, although the length of the wound does not necessarily correspond to the width of the knife blade which caused it, due to cutting action of the bladegoing in and coming out, the width of the “blunt extremity” normally corresponds closely with the thickness of the blade at its blunt edge.
    After being shown and examining the two knives taken from defendant's apartment, Dr. Lantz was asked if the length and thickness of the kitchen knife's blade was consistent with the characteristics of Williams' fatal wound. Dr. Lantz answered that it was. Dr. Lantz was then asked whether the length and thickness of the blade on the lock-blade knife was consistent with the characteristics of Williams' fatal wound. Dr. Lantz opined that it was unlikely, based on the length and thickness of its blade, that it was the knife that caused Williams' fatal wound. Dr. Lantz went on to explain that it was possible for a knife with a blade that length to have penetrated far enough to strike Williams' heart, due to the compressibility of the tissue, but it would have to be inserted up to its handle.
    Dr. Lantz stated that it did not appear that the knife that caused the fatal wound had been inserted up to the handle because there was no bruising or abrasions at the ends of the wound which he would expect to be caused by the knife's choil. Dr. Lantz also testified that he would have expected the wound to have two squared off extremities, caused by the choil, rather than one “blunt extremity” and one “sharp extremity” if the lock-blade knife had been inserted up to the handle. Dr. Lantz testified that, although either of the knives possibly could have caused the fatal wound, based on his observations in conducting the autopsy his opinion wasthat the kitchen knife more likely had been used to inflict the wound.
    Pathologist Dr. Richard Page Hudson (“Dr. Hudson”) testified that, based on his experience and his review of the police incident report, the autopsy report, the county medical examiner's report and the toxicology report in this case, Williams' wounds were consistent with suicide. On direct examination, Dr. Hudson opined that either of the two knives recovered from the incident location could have caused the fatal wound. Dr. Hudson explained that the shorter, lock-blade knife possibly could have made the five and a half inch deep wound due to the compressibility of the tissue.
    On cross examination, Dr. Hudson testified that in order for the lock-blade knife to have made the fatal wound, it likely would have had to be pushed in up to its handle due to its short length. This, combined with the autopsy finding that Williams was likely a chronic alcoholic and therefore much more susceptible to bruising, would make it more likely, but not inevitable, that bruising would have occurred if the wound were made with the lock-blade knife than if it were inflicted using the longer kitchen knife. Dr. Hudson ultimately testified that it would be difficult for him to state which knife caused the fatal wound.
    Defendant was convicted of second degree murder. Defendant timely appeals from the verdict and the resulting sentence.
    On appeal, defendant assigns as error: (1) the trial court's denial of his motion to suppress the bloody towel seized pursuant to the search warrant; (2) the admission of testimony regarding aprior alleged assault by defendant upon Williams; (3) the trial court's exclusion of Dr. Mason's testimony regarding the possible effect of the combination of alcohol and cocaine on Williams' actions on the night of her death; (4) the trial court's denial of his motion to dismiss for insufficient evidence; and (5) the imposition of a sentence in the aggravated range when the aggravating and mitigating factors were determined by the trial judge and not the jury.
    Defendant first argues that his motion to suppress evidence regarding a bloody towel seized from the apartment was denied improperly as the towel was not included on the list of items seized pursuant to the search warrant, as required by North Carolina General Statutes, section 15A-254 (2003). Section 15A-254 requires that a list of items taken from a place be provided to the owner of the premises, or a person apparently in control of the premises, or, if no one is present, left within the premises. As this Court previously has noted, “[t]he primary interest protected by the prohibition against unreasonable searches and seizures is the individual's reasonable expectation of privacy.” State v. Fruitt, 35 N.C. App. 177, 181, 241 S.E.2d 125, 127, disc. review denied, 295 N.C. 93, 244 S.E.2d 261 (1978).
    In Fruitt, officers executed a valid search warrant on the defendant's premises while he was not present and discovered a quantity of marijuana, which was seized. The officers failed to leave a copy of the search warrant affixed to the premises and did not leave a receipt of items taken, as required by North CarolinaGeneral Statutes, sections 15A-252 and 15A-254 respectively, upon leaving the premises. Id. at 178, 241 S.E.2d at 126. The defendant in Fruitt sought to have the marijuana suppressed as unlawfully obtained evidence pursuant to North Carolina General Statutes, section 15A-974. The Fruitt Court held that the statutory violations did not have an adverse impact on the defendant's right to be free from unreasonable searches and seizures as the violations occurred after the lawful search was complete - as was the case here as well. Id. at 181, 241 S.E.2d at 127.
    Unlike the defendant in Fruitt, defendant in the case sub judice argues that the omission of the towel from the inventory constitutes a failure to disclose evidence, a discovery issue, rather than a violation of his constitutional right against unreasonable searches and seizures. North Carolina General Statues, section 15A-254 is not an evidentiary or discovery statute, but rather a procedural statute specifically related to the execution of search warrants. The obvious purpose of this statute is accountability for items of personal property obtained pursuant to a search warrant. However, defendant would have this Court extend its application to serve as a notice requirement in the discovery process. We decline to extend the application of this statute as suggested by defendant and accordingly overrule this assignment of error.
    Defendant attempts to interpose an additional argument into this assignment of error which he fails to include in hisassignments of error listed in the record on appeal. Defendant's assignment of error as contained in the record reads as follows:
        1.    The trial court's error in denying defendant's motion to suppress evidence of a “bloody towel” seized pursuant to a search warrant, as such was in violation of the defendant's rights under the 4th and 14th Amendments to the U.S. Constitution and Article I, sections 19 and 20 of the N.C. Constitution.

In his argument regarding the admission of evidence of the bloody towel, defendant also argues that the search warrant itself was granted improperly as the information upon which it was based was unreliable. This issue is not properly before this Court as it is not included in the assignments of error as required by the North Carolina Rules of Appellate Procedure and therefore is not considered. N.C.R. App. P. Rule 10(a) (2005); State v. Smith, 160 N.C. App. 107, 122, 584 S.E.2d 830, 840 (2003).
    Defendant next argues that the trial court erred in allowing the State to introduce evidence of an alleged prior assault on Williams by defendant over his objection. “[E]vidence of prior bad acts is generally admissible if it tends to prove any relevant fact other than the defendant's propensity to commit the offense . . ., unless the probative value of the evidence is substantially outweighed by its prejudicial effect, [pursuant to] N.C.G.S. § 8C-1, Rule 403 (2003).” State v. Morgan, 359 N.C. 131, 158; 604 S.E.2d 886, 902 (2004), cert. denied, __ N.C. __, __ S.E.2d __ (2005) (internal citation omitted).
    Defendant contends that the evidence of the alleged prior assault was introduced for the purpose of showing that he had aviolent character and that he acted in conformity therewith. Rule 404(b) of the North Carolina Rules of Evidence prohibits the introduction of prior bad acts evidence for such a purpose. N.C. Gen. Stat. . 8C-1, Rule 404(b) (2003). The State argues that the evidence was introduced to demonstrate defendant's state of mind showing ill will and malice toward Williams and to show lack of accident in Williams' death. Our Supreme Court “has repeatedly held that a defendant's prior assaults on the victim, for whose murder defendant is presently being tried, are admissible for the purpose of showing malice, premeditation, deliberation, intent or ill will against the victim.” State v. Alston, 341 N.C. 198, 229, 461 S.E.2d 687, 703 (1995), cert. denied, 516 U.S. 1148, 134 L. Ed. 2d 100 (1996); see also State v. Syriani, 333 N.C. 350, 376-78, 428 S.E.2d 118, 132, cert. denied, 510 U.S. 948, 126 L. Ed. 2d 341 (1993), reh'g denied, 510 U.S. 1066, 126 L. Ed. 2d 707 (1994); State v. Spruill, 320 N.C. 688, 692-93, 360 S.E.2d 667, 669 (1987), cert. denied, 486 U.S. 1061, 100 L. Ed. 2d 934, 108 S. Ct. 2833 (1988).
    After extensive voir dire on the matter, the trial court determined that the evidence was being presented for a permissible purpose under Rule 404(b) and overruled defendant's objection. The court then gave a proper limiting instruction to the jury regarding the evidence.
    We hold that, as the evidence in question tended to show defendant's malice or ill will toward Williams, it was relevant toan issue other than defendant's character and, therefore, was admissible pursuant to Rule 404(b).
    After the trial court has determined that the evidence of the prior bad act is being introduced for a permissible purpose under Rule 404(b), it then must determine whether the probative value of that evidence is outweighed by the danger of undue prejudice. N.C. Gen. Stat. . 8C-1, Rule 403 (2003); State v. Everhardt, 96 N.C. App. 1, 18, 384 S.E.2d 562, 572 (1989), aff'd, 326 N.C. 777, 392 S.E.2d 391 (1990). “[S]imilarity and temporal proximity” to the offense charged determine the probative value of the prior bad act. State v. Artis, 325 N.C. 278, 299, 384 S.E.2d 470, 481 (1989), vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990). The determination of whether the probative value is outweighed by the danger of unfair prejudice lies within the discretion of the trial court and only will be overturned if it is found to be “so arbitrary that it could not have resulted from a reasoned decision.” State v. Bidgood, 144 N.C. App. 267, 272, 550 S.E.2d 198, 202, cert. denied, 354 N.C. 222, 554 S.E.2d 647 (2001).
    In the case sub judice, the evidence sought to be introduced involved an act of domestic violence allegedly committed by defendant against Williams only four nights prior to her death in the room they shared and in which she was killed. The prior act clearly occurred in close temporal proximity to Williams' murder and the location and alleged offender were the same in both instances. Accordingly, the trial court's decision to allow the introduction of the evidence of the prior assault did notconstitute an abuse of discretion and this assignment of error is overruled.
    Defendant's next argument is that the trial court erred in sustaining the State's objection to defendant's question to Dr. Mason regarding the combined effects cocaine and alcohol intoxication had on Williams' actions. Defendant made no offer of proof as to what Dr. Mason's answer to the question would have been, however. When it is not evident what an excluded answer would be and “'the substance of the excluded testimony was not necessarily apparent from the context within which the question was asked . . . an offer of proof [is] necessary to preserve [the] issue for appeal.'” State v. Williams, 355 N.C. 501, 534, 565 S.E.2d 609, 629 (2002), cert. denied, 537 U.S. 1125, 154 L. Ed. 2d 808 (2003) (quoting State v. Braxton, 352 N.C. 158, 184, 531 S.E.2d 428, 443 (2000), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001)). As no offer of proof was made and we cannot discern from the record what Dr. Mason's answer would have been, this assignment of error is overruled.
    Defendant next argues that the trial court erred in denying his motion to dismiss for insufficient evidence. In support of this argument, defendant contends that he presented a more compelling case for suicide being the cause of Williams' death, that Ledford's testimony was not credible, and that, other than Ledford's testimony, the State's evidence was purely circumstantial.    When deciding a motion to dismiss for insufficient evidence, the trial court must determine if there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002). Substantial evidence is relevant evidence that would be sufficient to persuade a rational juror to accept a particular conclusion. State v. Frogge, 351 N.C. 576, 584, 528 S.E.2d 893, 899, cert. denied, 531 U.S. 994, 148 L. Ed. 2d 459 (2000).
    Evidence must be viewed in the light most favorable to the State and the benefit of every reasonable inference must be afforded to the State in determining the sufficiency of the evidence. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). Contradictions in the evidence are to be resolved by the jury and do not warrant dismissal. Id. A trial court does not weigh the evidence in deciding a motion to dismiss, but only determines whether it is sufficient for consideration by the jury. State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652 (1982).
    In the instant case, Ledford's testimony that defendant confessed to committing the crime to him, alone, viewed in the light most favorable to the State, is sufficient to overcome a motion to dismiss. Defendant, however, would have this Court weigh the evidence rather than simply determine its sufficiency. This we cannot do.
    Defendant's contention that the State's evidence was insufficient because it was largely circumstantial also isunavailing. “Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence.” State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988) (citing State v. Stephens, 244 N.C. 380, 384, 93 S.E.2d 431, 433 (1956)). Consequently, this assignment of error is overruled.
    Finally, defendant argues that the trial court erred in sentencing him in the aggravated range when the aggravating factor was not included in the indictment and had not been found beyond a reasonable doubt by a jury. Defendant asserts that the imposition of an aggravated sentence under the circumstances of this case was contrary to the decision of the United States Supreme Court in Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004).
    Our Supreme Court consistently has held that statutory aggravating factors are not required to be alleged in state indictments. State v. Allen, 359 N.C. 425, 438, 615 S.E.2d 256, 265 (2005) (“'[T]he Fifth Amendment [does] not require aggravators, even if they were fundamental equivalents of elements of an offense, to be pled in a state-court indictment.'”(quoting State v. Hunt, 357 N.C. 257, 272, 582 S.E.2d 593, 603, cert. denied, 539 U.S. 985, 156 L. Ed. 2d 702 (2003)). Accordingly, this assignment of error is overruled as to the lack of aggravating factors in the indictment.
    Defendant next contends that the trial court erred in sentencing him in the aggravated range based upon a past conviction which increased his prior record level and the finding of anaggravating factor _ neither of which were found by the jury.     Defendant was found to have a prior record level of two with one point based upon the testimony of a deputy clerk of court that defendant previously had been convicted of larceny. Defendant argues that his prior conviction was required to have been found by a jury because it increased the penalty beyond the presumptive range. A defendant's prior record level does not, however, affect whether the sentence imposed is in the statutory mitigated, presumptive or aggravated ranges, but rather establishes what those ranges are. Defendant has assigned error to the trial court's sentencing him in the aggravated range, an issue upon which his prior record level has no bearing, but fails to assign error to the determination of his prior record level. Accordingly, any issue regarding his prior conviction is not properly before this Court for review. N.C. R. App. P. Rule 10(a) (2005).
    The only aggravating factor found by the trial court was that the offense had been committed while defendant was on pretrial release. “Other 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; see also Blakely, 542 U.S. 296, 159 L. Ed. 2d 403. Accordingly, the aggravating factor found by the trial court in the case sub judice was required to have been found by the jury beyond a reasonable doubt. The State argues that any error in the trial court, rather than the jury, finding this aggravating factor is harmless as thejury could not have failed to find that fact. The State's brief was filed prior to our Supreme Court's decision in Allen, in which the Court held unequivocally that Blakely errors under our Structured Sentencing Act are structural and, therefore, reversible per se. Allen, 359 N.C. at 444, 615 S.E.2d at 269.
    As the statutory aggravating factor that defendant committed the offense while on pretrial release, which was used as a basis to increase defendant's sentence, was neither stipulated to by defendant nor found by the jury, we hold that it constituted reversible error. Accordingly, this assignment of error is sustained. The case is remanded for re-sentencing.
    Affirmed in part and remanded for re-sentencing.
    Judges HUDSON and STEELMAN concur.
    Report per 30(e).

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