An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 December 2005
STATE OF NORTH CAROLINA
v. Cabarrus County
Nos. 03 CRS 020097
KENNETH CONYERS 04 CRS 013149
Appeal by defendant from judgment entered 16 December 2004 by
Judge Clarence E. Horton, Jr., in Cabarrus County Superior Court.
Heard in the Court of Appeals 2 December 2005.
Attorney General Roy Cooper, by Special Deputy Attorney
General R. Marcus Lodge, for the State.
John T. Hall, for defendant-appellant.
Kenneth Conyers (defendant) appeals from judgment entered
after a jury found him to be guilty of possession of a firearm by
a felon and having attained habitual felon status. We find no
The State's evidence tended to show that around 9:00 p.m. on
14 June 2003, Lizzette Dominguez (Dominguez) was washing her
automobile at the Auto Sudz Car Wash in Concord, along with her
brother, mother, and grandmother. Defendant walked toward the
Dominguez family as they finished washing the automobile with a
towel over his hand. Defendant exchanged greetings with Dominguez,
opened the driver's side door of Dominguez's automobile, and satdown in the driver's seat. Dominguez asked defendant, What are
you doing? That's my car. Defendant stood up and revealed a gun
in his hand. Defendant pointed the gun at Dominguez and said, If
you don't want to die, give me your keys. Dominguez started to
walk toward defendant but she stopped when defendant pointed the
gun toward her grandmother. Dominguez's grandmother described the
gun as a black pistol. Defendant again demanded the car keys and
Dominguez threw them close to defendant. Defendant picked up the
keys, re-entered the automobile, and drove off.
The next morning, Sergeant Chris Forehand (Sergeant
Forehand) of the Ayden Police Department stopped defendant for
driving in excess of the posted twenty-five m.p.h. speed limit.
Upon learning that the automobile had been reported stolen,
Sergeant Forehand arrested defendant. On cross-examination,
Sergeant Forehand testified that he did not find a weapon in the
Defendant testified on his own behalf and denied possessing a
firearm when he took the automobile. On 16 December 2004, a jury
found defendant to be guilty of possession of a firearm by a felon
and of attaining habitual felon status. The trial court sentenced
defendant as a Class C felon to 156 to 197 months imprisonment.
The issues on appeal are whether the trial court erred by:
(1) sentencing defendant as a Class C felon; and (2) denying
defendant's motion to dismiss the charge of possession of a firearmby a convicted felon.
III. Habitual Felon Status
Defendant first contends the trial court lacked jurisdiction
to sentence him as an habitual felon because his habitual felon
indictment failed to allege his date of birth or age when he
allegedly committed the three predicate offenses. We disagree.
N.C.G.S. § 14-7.3 requires the State to allege all the
elements of the offense of being an habitual felon thereby
providing a defendant with sufficient notice that he is being tried
as a recidivist to enable him to prepare an adequate defense to
that charge. State v. Cheek, 339 N.C. 725, 729, 453 S.E.2d 862,
864 (1995). The general requirements for an habitual felon
indictment are set forth in N.C. Gen. Stat. § 14-7.3 (2003):
An indictment which charges a person with
being an habitual felon must set forth the
date that prior felony offenses were
committed, the name of the state or other
sovereign against whom said felony offenses
were committed, the dates that pleas of guilty
were entered to or convictions returned in
said felony offenses, and the identity of the
court wherein said pleas or convictions took
The bill of indictment alleging defendant's status as an habitual
felon fully comports with N.C. Gen. Stat. § 14-7.3. All
requirements of the statute were set out in the indictment.
Contrary to defendant's assertion, an habitual felon indictment is
not required to allege a defendant's age or date of birth.
Defendant had sufficient prior notice that he would be tried as a
recidivist. Because the indictment sufficiently stated all
required statutory provisions and the jury returned a guiltyverdict, the trial court possessed jurisdiction to sentence
defendant as an habitual felon. This assignment of error is
IV. Motion to Dismiss
Defendant also contends the trial court erred by denying his
motion to dismiss based on insufficiency of the evidence.
The standard of review for ruling on a motion to dismiss is
whether there is 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) (citation omitted). Substantial evidence is that
relevant evidence which a reasonable mind might accept as adequate
to support a conclusion. State v. Patterson, 335 N.C. 437, 449-50,
439 S.E.2d 578, 585 (1994).
A defendant is presumed to be innocent and the State must
prove each element of the offense charged beyond a reasonable
doubt. In ruling on a motion to dismiss, the trial court must
consider all of the evidence in the light most favorable to the
State. The State is entitled to all reasonable inferences which
may be drawn from the evidence. State v. Davis, 130 N.C. App. 675,
679, 505 S.E.2d 138, 141 (1998).
To prevail on the charge against defendant in this case, the
State must present substantial evidence
of the following: (1) the
person has been convicted of a felony; and (2) the person
purchases, owns, possesses, or has in his custody, care, or
control, any handgun or any weapon of mass death and destruction asdefined in G.S. 14-288.8(c). N.C. Gen. Stat. § 14-415.1(a) (2003).
In the case before us, defendant disputes whether the State
presented substantial evidence tending to show he possessed a
firearm the night he stole the automobile. To overcome defendant's
motion, the State must have presented substantial evidence that
defendant possessed a firearm the night he stole Dominguez's
automobile. At trial, Dominguez testified as follows:
Q. You saw him with a gun?
Q. Did the gun get pointed in any particular
A. It was to me at first.
Dominguez's grandmother testified:
Q. Did he continue to point the gun at
A. (Interpreter) yes, because I got mad and I
said, I'll get him out of the car, and I
took a few steps in his direction and then he
pointed the gun at me and then I went back.
. . . .
Q. What did the gun look like?
A. (Interpreter) Well, I - - I know about
guns because my father has guns at the ranch
and it was a black pistol.
Viewed in the light most favorable to the State, the evidence is
sufficient for a jury to find defendant possessed a firearm when he
stole Dominguez's automobile. This assignment of error is
The trial court did not err in sentencing defendant as anhabitual felon. The indictment is not required to allege a
defendant's date of birth or age at the time of the predicate
felonies. The trial court did not err in denying defendant's
motion to dismiss the charge of possession of a firearm by a felon.
Sufficient evidence was presented from which the jury could find
defendant possessed a firearm when he stole Dominguez's automobile.
Defendant received a fair trial free from the errors he assigned
Judges MCCULLOUGH and ELMORE concur.
Report per Rule 30(e).
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