An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1484


Filed: 20 September 2005


v .                         Forsyth County
                            No. 02 CRS 55018

    Appeal by defendant from judgment entered 26 May 2004 by Judge Michael F. Helms in Forsyth County Superior Court. Heard in the Court of Appeals 19 May 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Robert C. Montgomery, for the State.

    Irving Joyner for defendant-appellant.

    Kyle Edward Morton (“defendant”) appeals his conviction for robbery with a dangerous weapon. For the reasons discussed herein, we reverse defendant's conviction for robbery with a dangerous weapon and remand the case for entry of judgment on the offense of common law robbery.
    The facts and procedural history of the case relevant to this appeal are as follows: On 2 May 2002, an officer of the Lexington Police Department stopped the car in which defendant was a passenger pursuant to a police radio announcement to be on the lookout for a red Camaro, late 80s, with T-tops, and no tag as the occupants were suspects in purse snatchings in the area. Defendant and Christopher Greer (“Greer”) were arrested and transported to the Lexington Police Department where they were placed in separateinterrogation rooms. The car in which the two had traveled was driven to the police station by an officer and its contents were inventoried. A wallet belonging to James Baity (“Baity”) of Forsyth County and two women's purses were among the items found in the car.
    At the police station, defendant was questioned by Officer Marty Berry (“Officer Berry”). Prior to being questioned by Officer Berry, defendant was asked by Detective Travis Buntin (“Detective Buntin”) if he desired Detective Buntin call his parents. Defendant replied yes and gave Detective Buntin his parents' phone number. After being informed by Detective Buntin that his parents were on the way, defendant made a statement to Officer Berry concerning his having taken a wallet from Baity at Hanes Mall the previous day. At the time of his arrest, defendant was sixteen years of age.
    On 24 June 2002, a grand jury indicted defendant on a charge of common law robbery. On 9 February 2004, the grand jury handed down a superseding indictment charging defendant with robbery with a dangerous weapon and first-degree kidnapping.
    Defendant filed a motion in limine seeking to suppress the statement he made to the police on 2 May 2002. The trial court conducted a voir dire hearing on 24 May 2004. At the conclusion of that hearing, the trial court made findings of fact and conclusions of law and denied defendant's motion to suppress.
    At trial, the evidence tended to show the following: On 1 May 2002, defendant and Greer skipped school and went to Hanes Mall inWinston-Salem. They decided to rob someone. Greer told defendant that defendant should do it because defendant was bigger. Although the stores were not yet open, elderly people were walking around the mall. Defendant and Greer waited near the restroom and when eighty-three-year-old Baity entered the restroom, defendant followed. Mr. Baity was standing at a urinal when defendant came up behind him, put an arm around his throat, and choked him until Baity became unconscious.
    After defendant went into the restroom, Greer sat on a bench in the mall and served as lookout. When defendant exited the restroom, Greer noted defendant had a bulge in his pocket. Defendant motioned for Greer to follow him. They left the mall and went to a sporting goods store where they parked and went through the wallet, discovered it contained $500.00, and split the money. Defendant told Greer, “I placed my arm around his neck and choked him out and laid him to the floor.”
    When he awoke, Baity found himself on the floor near the urinal struggling to get his breath and to get up. His wallet, which contained $500.00, was missing.
    At the conclusion of the State's evidence, defendant moved to dismiss the charge of robbery with a dangerous weapon on the ground the evidence was insufficient to submit the charge to the jury. The trial court denied the motion to dismiss. Defendant presented no evidence. The jury found defendant guilty of robbery with a dangerous weapon. At sentencing, the trial court determined defendant had four prior record points and a prior record level ofII. The court sentenced defendant to a prison term of seventy to ninety-three months _- a level of punishment within the presumptive guidelines.

    As an initial matter, we note defendant's brief contains arguments supporting only three of the original six assignments of error on appeal. The omitted assignments of error are deemed abandoned pursuant to N.C.R. App. P. 28(b)(6)(2005). Therefore, we limit our review to the assignments of error properly preserved by defendant on appeal.
    The issues for appeal are whether the trial court erred by: (I) failing to suppress statements defendant made to police; (II) denying defendant's motion to dismiss the charge of robbery with a dangerous weapon; and (III) determining defendant had a prior record level of II.
    Defendant first argues the trial court erred by failing to suppress the statement he made to police officers during a custodial interrogation because the officers failed to advise him he had a right to consult with and have his parents present during the interrogation. Specifically, defendant contends he did not knowingly waive his right to have a parent or guardian present during interrogation as he was never advised he had that right.
    At the outset, we note the State argues defendant has waived his right to argue the issue on appeal because defendant failed to renew his objection to the evidence at trial following the court's denial of defendant's motion to suppress.     The legislature amended Rule 103 of the North Carolina Rules of Evidence in 2003 to provide that “[o]nce the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” N.C.R. Evid. 103 (a)(2) (2003). The amendment was effective 1 October 2003, and applies to rulings on evidence made on or after that date. The trial of the instant case occurred following the effective date of the amendment. This Court, however, has held that the amendment to Rule 103 is unconstitutional because the Constitution of North Carolina vests the Supreme Court with authority to make rules of procedure and practice for the State's appellate courts and the amendment is inconsistent with N.C.R. App. P. 10(b)(1). State v. Tutt, ___ N.C. App. ___, ___, 615 S.E.2d 688, 693 (2005); State v. Baublitz, ___ N.C. App. ___, ___, 616 S.E.2d 615, ___ (2005). Although this Court had made rulings consistent with Rule 103 prior to Tutt, see State v. Rose, ___ N.C. App. __, 612 S.E.2d 336 (2005) and In re S.W., ___ N.C. App. ___, 614 S.E.2d 424 (2005), we are bound to follow Tutt. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.”). Because the amendment to Rule 103 became effective prior to and was presumed constitutional at the time of defendant's trial, we electto review defendant's assignment of error on the merits pursuant to Rule 2 of the Rules of Appellate Procedure.
The State has the burden of demonstrating the admissibility of evidence at a hearing on a motion to suppress. State v. Tarlton, 146 N.C. App. 417, 420, 553 S.E.2d 50, 53 (2001). “In reviewing the trial court's ruling on a suppression motion, we determine only whether the trial court's findings of fact are supported by competent evidence, and whether these findings of fact support the court's conclusions of law.” Id. (citations omitted). Where the trial court's findings of fact support the court's conclusions of law, the conclusions are binding on appeal. Id.
            In Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), the United States Supreme Court held that a suspect must be informed of his rights upon being arrested: that is, to remain silent, to an attorney and that any statement made may be used as evidence against him. In addition to the above-mentioned constitutional rights, our legislature has granted to juveniles the right to have a parent, guardian or custodian present during questioning.

State v. Miller, 344 N.C. 658, 666, 477 S.E.2d 915, 920 (1996). See N.C. Gen. Stat. § 7B-2101 (2001). Consequently, in order to use evidence obtained as a result of a custodial interrogation of a juvenile, the State “must demonstrate that the warnings were made and that the juvenile knowingly, willingly and understandingly waived them.” Id. “Whether a waiver is knowingly and intelligently made depends on the specific facts and circumstances of each case, including the background, experience, and conduct of the accused.” State v. Simpson, 314 N.C. 359, 367, 334 S.E.2d 53,59 (1985). The totality of the circumstances “must be carefully scrutinized when determining if a youthful defendant has legitimately waived his Miranda rights.” Miller, 344 N.C. at 666, 477 S.E.2d at 920.
    In the case sub judice, the trial court made findings of fact that included the following:
            Detective Buntin then went into the other interrogation room, where this defendant, Kyle Morton, was being kept and indicated to this defendant that he would call the defendant's parents if the defendant wanted him to. The defendant indicated he did want them to be called and to come down and gave Detective Buntin his phone number at home.

        . . . .

            Detective Buntin called the parents, told the parents that their son had asked them to come down and that they needed to come down.

            Detective Buntin returned to the interrogation room where Mr. Kyle Morton was. By this time, the officer who was involved in the case who was going to be questioning Kyle Morton was in the interrogation room and was in the process of reading this defendant his adult Miranda rights according to the pre- prepared form. When Detective Buntin entered, he waited for this officer, whose name is Officer Berry also of the Lexington Police Department, to finish and then Officer Buntin told this defendant that his parents were on the way and asked the defendant whether or not he wanted to wait for his parents to arrive or whether he wanted to go ahead and talk to Officer Berry at that time. The defendant said he wanted to go ahead and talk.

            Detective Buntin then made the statement to this defendant that we've caught you red handed and the best thing you can do is to tell the truth. When we get to trial, we will tell the judge that when he was caught he told us the truth and that's the best thing you can do for yourself right now.
        . . . .

            Officer Berry testified that he was in the interrogation room with this defendant and that he had advised the defendant of his adult Miranda rights when Detective Buntin returned and that he overheard from his independent, and recalls by his independent recollection, that Detective Buntin informed the defendant that his parents had been called and that they were on [their] way and did he wish to wait to make his statement until his parents arrived and that the defendant responded he would make his statement before his parents arrived and that Detective Buntin made the statement regarding the need for the defendant to tell the truth because they would tell the judge that he had told the truth when caught and that that was the best thing he could do in light of his situation at that time.

Based upon its findings of fact, the trial court made the following conclusions of law:
        [T]his defendant was not read his juvenile Miranda rights as such. But notwithstanding this, the juvenile was afforded the guarantees which are the underlying basis and purpose for the juvenile Miranda rights by the detective asking the juvenile, the defendant, if he wanted his parents called, by calling his parents, and by asking the defendant if he wanted to wait for them to arrive before he made any statement.
        . . . .

            [S]uch language . . . adequately conveyed the substance of the juvenile's right to have his parents present during the questioning if he so chose.

            The Court further concludes that upon being advised as hereinabove set out the juvenile willfully and knowingly waived his right to have his parents present and willingly, freely, voluntarily, and knowingly made his statement.
The trial court heard testimony from Detective Buntin of the Lexington Police Department. Detective Buntin testified he “walked into the other interview room and asked Kyle if he wanted me to call his parents and he said yes and he gave me his phone number.” The detective testified he telephoned defendant's parents' home and explained the situation to defendant's mother who informed him she would contact defendant's father and they would be on their way. Detective Buntin further testified:
        I went back into the interview room where Kyle was at and told him _ Officer Berry was in there at that time. . . . Officer Berry was Mirandizing Kyle with the rights form and statement form that I had left in there for him or for whoever went in to do it. He was reading him his rights. . . . I told him that I had spoke with his mother, that his father was not at home but she was going to get in contact with him and they were coming to the police department. I then asked him if he wanted to go on and speak to Officer Berry or did he want to wait until they got there and he said he would go on and talk to him. . . . He said he'd go on and talk to Officer Berry and tell him what happened and I [exited] the room.

The trial court's findings are supported by competent evidence and “the findings sustain the conclusion that defendant's statement was not taken in violation of his additional juvenile Miranda rights.” Miller, 344 N.C. at 667, 477 S.E.2d at 921.
    Defendant's next assignment of error is that the trial court erred in refusing to dismiss, at the close of the State's evidence, the charge of robbery with a dangerous weapon. Defendant argues the State failed to present sufficient evidence to support the submission of the charge to the jury. We agree.    “In ruling upon defendants' motion to dismiss, the trial court is required to interpret the evidence in the light most favorable to the State, drawing all reasonable inferences in the State's favor.” State v. Porter, 303 N.C. 680, 685, 281 S.E.2d 379, 381 (1981). In order to survive defendant's motion to dismiss, the State must have offered substantial evidence of every essential element of the crime charged against defendant. Id. Substantial evidence is “that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion.” State v. Kemmerlin, 356 N.C. 446, 473, 573 S.E.2d 870, 889 (2002). The essential elements of the offense of robbery with a dangerous weapon include: (1) the unlawful taking or attempt to take personal property from the person or in the presence of another, (2) by use or threatened use of a dangerous weapon, implement, or means; and (3) thereby threatening or endangering the life of a person. Id. “The gist of the offense of robbery with firearms is the accomplishment of robbery by the use or threatened use of firearms or other dangerous weapons.” State v. Black, 286 N.C. 191, 194, 209 S.E.2d 458, 460 (1974). “[A]n individual's bare hands, fists, and feet are not considered dangerous weapons for the purposes of N.C. Gen. Stat. § 14-87.” State v. Duff, ___ N.C. App. ___, ___, 615 S.E.2d 373, 381 (2005), disc. review denied, ___ N.C. ___, ___ S.E.2d ___ (18 August 2005) (No. 407P05). In the instant case, defendant contends the evidence presented by the State fails to show defendant used a dangerous weapon. The indictment alleges defendant stole the wallet and $500.00 in cash from the person of James Baity “with theuse of a dangerous and deadly weapon to wit: the hands of the defendant and Christopher M. Greer in that the defendant and Christopher M. Greer committed this act by means of an assault consisting of choking James Baity by hand and arms . . . .” The evidence produced at trial shows the defendant used his hand and arms to choke Baity into unconsciousness. There is no indication defendant used any weapon external to defendant's body in robbing Baity. Where, as here, the evidence fails to show the defendant possessed, used, or threatened to use an external weapon in the commission of the robbery, the evidence is insufficient for submission to the jury on the charge of robbery with a dangerous weapon. Accordingly, we hold the trial court erred in failing to dismiss the charge of robbery with a dangerous weapon. Because the evidence supports all of the elements of the offense of common law robbery, the case is remanded to the trial court with instructions to enter judgment on the offense of common law robbery.
    Defendant next argues the trial court erred during his sentencing by determining that he had a prior record level of II where the lone conviction in support of this conclusion occurred after the commission of the crime for which he had been convicted. On 4 August 2003, defendant was convicted of common law robbery for the offense he committed on 2 May 2002. In the instant case, defendant was convicted of robbery with a dangerous weapon for the offense he committed on 1 May 2002. Defendant argues, in essence, it was error to consider his conviction for a crime committed after the crime in this case as a prior conviction.
    N.C. Gen. Stat. § 15A-1340.13(b) requires the court determine the prior record level for the offender pursuant to N.C. Gen. Stat. § 15A-1340.14 when imposing a sentence for a felony conviction. N.C. Gen. Stat. § 15A-1340.14(a) provides that “[t]he prior record
level of a felony offender is determined by calculating the sum of the points assigned to each of the offender's prior convictions that the court finds to have been proved in accordance with this section.” Prior record points are assessed for “prior convictions.” N.C. Gen. Stat. § 15A-1340.11(7) in turn defines “prior conviction” as follows: “A person has a prior conviction when, on the date a criminal judgment is entered, the person being sentenced has been previously convicted of a crime . . . [i]n the superior court, regardless of whether the conviction is on appeal to the appellate division . . . .” The statute is clear in defining the phrase “prior conviction” and it requires no additional interpretation.
    At the time of defendant's sentencing in this case he had been convicted previously of common law robbery. Based upon a plain reading of the statute, at the time of sentencing in this case, defendant had a prior conviction. Therefore the trial court did not err by using defendant's prior common law robbery conviction in calculating defendant's prior record level.
    In conclusion, we hold that defendant received a trial free of prejudicial error in part, we reverse defendant's conviction for robbery with a dangerous weapon, and remand the case for entry of judgment on the offense of common law robbery.
    Reversed and remanded in part; no error in part.     Judges McCULLOUGH and STEELMAN concur.
    Report per Rule 30(e).

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