Appeal by defendant from judgment entered 12 October 2004 by
Judge A. Moses Massey in Forsyth County Superior Court. Heard in
the Court of Appeals 22 March 2006.
Attorney General Roy Cooper, by Assistant Attorney General
David L. Elliott, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Benjamin Dowling-Sendor, for defendant-appellant.
Defendant Dedric Paxton Crump appeals his conviction for
possession of a firearm by a felon. Defendant argues that the
indictments charging him with this offense and as attaining the
status of a habitual felon unconstitutionally subjected him to
double jeopardy by "double-counting" a prior controlled substances
conviction and a prior conviction for possession of a firearm by a
felon. Defendant's arguments confuse "double-counting" with doublejeopardy. Defendant has not shown that he has been re-prosecuted
or re-punished for his prior offenses, but, rather, has merely
shown that some of his prior convictions factored into his current
conviction and sentence in accord with North Carolina's recidivist
statutes. Consequently, defendant has failed to show a violation
of the Double Jeopardy Clause.
The State's evidence at trial tended to show the following
facts. In the early morning hours of 30 May 2003, Officer James
Deeney of the Winston-Salem Police Department observed a white Ford
Contour sedan weave into the opposing traffic lane for about half
a block. The officer ran a history of the license plate and
discovered that it actually belonged to a Chevrolet pickup truck.
Officer Deeney pulled up behind the Contour and initiated a
traffic stop by turning on his lights and sounding his siren. The
Contour, however, continued driving and ultimately turned down two
roads before coming to a stop in defendant's driveway. As
defendant exited from the driver's seat, Officer Deeney observed
that two other passengers remained in the car. After the officer
determined that defendant's license had been permanently suspended,
he arrested defendant and placed him in the rear of the patrol car.
When the officer returned to the Contour, he noticed a handgun in
the grass about a foot away from the front passenger door.
At the police station, defendant told police that he had been
outside a bar with his younger brother and his brother's friend,
"Mossey." Mossey told defendant that he could not get into the barbecause he had a gun and asked defendant if he would hide it for
him. Defendant agreed, took the gun, and began driving home. When
defendant was stopped by Officer Deeney, he asked his passengers to
throw the gun out of the car window.
On 21 July 2003, defendant was indicted for possession of a
firearm by a felon. According to the indictment, defendant, at the
time of his 2003 arrest, was a felon because of a 1998 conviction
for possession of a firearm by a felon. On 20 October 2003,
defendant was also indicted for having achieved habitual felon
status. For the three predicate felonies, the indictment alleged
convictions for possession of cocaine in 1991, felony larceny in
1997, and possession of a firearm by a felon in 1998.
At trial, Precious Bailey testified on defendant's behalf.
She explained that she and her sister were the passengers Officer
Deeney observed in the Contour on 30 May 2003. Ms. Bailey stated
that the two women had been waiting in the car outside of a bar
while defendant made a phone call. Before defendant returned,
Mossey got into the rear seat next to Ms. Bailey and placed the gun
underneath the driver's seat. After they drove away from the bar,
Ms. Bailey told defendant there was a gun in the car, and he
responded "okay." When they pulled into the driveway, and the
patrol car pulled in behind them, defendant reached under his seat
and handed the gun to Ms. Bailey's sister, who was seated in the
front passenger seat, and told her to throw the gun out of the
window. On 12 October 2004, a jury found defendant guilty of
possession of a firearm by a felon. Defendant thereafter pled
guilty to achieving habitual felon status and was sentenced to a
term of 93 to 121 months in prison. Defendant timely appealed to
 We first address defendant's argument that his habitual
felon indictment subjected him to double jeopardy because "it
resulted in the State's use of [his 1998 conviction for possession
of a firearm by a felon] for two purposes" _ namely, to support
defendant's current conviction for possession of a firearm by a
felon and to support defendant's sentencing as a habitual felon.
The Double Jeopardy Clause of the Fifth Amendment states that no
person shall "be subject for the same offense to be twice put in
jeopardy of life or limb." U.S. Const. amend. V. Although the
North Carolina Constitution contains no express provision
prohibiting double jeopardy, it is regarded as an "integral part"
of our Constitution's Law of the Land Clause, N.C. Const. art. I,
§ 19. State v. Ballard
, 280 N.C. 479, 482, 186 S.E.2d 372, 373
The United States Supreme Court has explained that the Double
Jeopardy Clause "serves the function of preventing both successive
punishment and successive prosecution, and that the Constitution
was designed as much to prevent the criminal from being twice
punished for the same offence [sic] as from being twice tried for
it." Witte v. United States
, 515 U.S. 389, 395-96, 132 L. Ed. 2d351, 361, 115 S. Ct. 2199, 2204 (1995) (internal citations and
quotation marks omitted). Accordingly, our Supreme Court has
recently explained that "[t]he Clause protects against three
distinct abuses: (1) a second prosecution for the same offense
after acquittal, (2) a second prosecution for the same offense
after conviction, and (3) multiple punishments for the same
offense." State v. Tirado
, 358 N.C. 551, 578, 599 S.E.2d 515, 534
(2004), cert. denied sub nom. Queen v. North Carolina
, 544 U.S.
909, 161 L. Ed. 2d 285, 125 S. Ct. 1600 (2005).
In this case, defendant does not specify which of these three
double jeopardy abuses he is alleging the State committed. We can
be certain that it is not the first; there is no acquittal at
issue. Moreover, defendant has not been "re-prosecuted" for his
1998 possession of a firearm by a felon conviction _ the
prosecution below related only to his possession of a firearm on 30
May 2003. See Missouri v. Hunter
, 459 U.S. 359, 365, 74 L. Ed. 2d
535, 542, 103 S. Ct. 673, 678 (1983) ("Because respondent has been
subjected to only one trial, it is not contended that his right to
be free from multiple trials for the same offense has been
. Thus, to the extent defendant has been subjected to
double jeopardy, it must be under the third variation: multiple
punishments for the same offense.
Consequently, defendant's only potential double jeopardy
argument is that, by utilizing his 1998 conviction for possession
of a firearm by a felon as both (1) the underlying felony for his
current possession of a firearm prosecution and (2) one of theunderlying felonies for his habitual felon indictment, he has been
punished multiple times for his 1998 conviction for possession of
a firearm by a felon. This Court has, however, already rejected
this argument. See State v. Glasco
, 160 N.C. App. 150, 160, 585
S.E.2d 257, 264 ("[E]lements used to establish an underlying
conviction may also be used to establish a defendant's status as a
habitual felon."), disc. review denied
, 357 N.C. 580, 589 S.E.2d
It is well-settled that a sentence flowing from habitual felon
status is not another punishment for a prior offense _ i.e.
1998 possession of a firearm by a felon conviction _ but, rather,
an enhanced sentence for the present underlying felony, i.e.
current possession of a firearm by a felon. See, e.g.
, State v.
, 119 N.C. App. 229, 231, 458 S.E.2d 230, 232 (1995) ("Being
an habitual felon . . . subjects the individual subsequently
convicted of a crime to increased punishment for that crime
(emphasis added)), rev'd on other grounds
, 342 N.C. 633, 466 S.E.2d
708 (1996); State v. Penland
, 89 N.C. App. 350, 351, 365 S.E.2d
721, 722 (1988)
("Upon a conviction as an habitual felon, the court
must sentence the defendant for the underlying felony
as a Class C
felon." (emphasis added)). See also State v. Todd
, 313 N.C. 110,
117, 326 S.E.2d 249, 253 (1985) ("We begin by rejecting outright
the suggestion that our legislature is constitutionally prohibited
from enhancing punishment for habitual offenders as violations of
constitutional strictures dealing with double jeopardy . . . ."). Indeed, the United States Supreme Court adopted this very
rationale over 100 years ago in Moore v. Missouri
, 159 U.S. 673, 40
L. Ed. 301, 16 S. Ct. 179 (1895), while explicitly rejecting a
double jeopardy challenge to recidivist sentencing. The Court held
The reason for holding that the accused
is not again punished for the first offense is
. . . that the punishment is for the last
offense committed, and it is rendered more
severe in consequence of the situation into
which the party had previously brought
himself; . . . that the statute imposes a
higher punishment for the same offense upon
one who proves, by a second or third
conviction, that the former punishment has
been inefficacious in doing the work of reform
for which it was designed; . . . that the
punishment for the second is increased,
because by his persistence in the perpetration
of crime, he has evinced a depravity which
merits a greater punishment, and needs to be
restrained by severer penalties than if it
were his first offense; and . . . that it is
just that an old offender should be punished
more severely for a second offense _ that
repetition of the offense aggravates guilt.
at 677, 40 L. Ed. at 303, 16 S. Ct. at 181 (internal quotation
marks omitted). See also Spencer v. Texas
, 385 U.S. 554, 560, 17
L. Ed. 2d 606, 611, 87 S. Ct. 648, 651 (1967) (noting that
recidivism statutes "have been sustained in this Court on several
occasions against contentions that they violate constitutional
strictures dealing with double jeopardy").
In the present case, as a consequence of defendant's 1998
conviction for possession of a firearm by a felon, it was unlawful
for defendant "to purchase, own, possess, or have in his custody,
care, or control any firearm or any weapon of mass death anddestruction as defined in G.S. 14-288.8(c)." N.C. Gen. Stat. § 14-
415.1(a) (2005). By possessing a firearm on 30 May 2003, defendant
committed a fresh violation of this statute, and his punishment for
that new crime cannot reasonably be said to re-punish the 1998
offense. Rather, it only punishes him for this new violation.
Accordingly, the mere reliance on the 1998 conviction to establish
that defendant was a recidivist for sentencing purposes does not
implicate double jeopardy concerns. We, therefore, reject
defendant's argument that he has been subjected to double jeopardy
with respect to his 1998 possession of a firearm by a felon
 We next turn to defendant's argument that his indictment
for possession of a firearm by a felon subjected him to double
jeopardy "because it resulted in double-counting of . . . his
conviction in 1991 . . . for possession with intent to manufacture,
sell, and deliver cocaine." Defendant contends that his 1991 drug
conviction has been impermissibly double-counted because it (1) was
the underlying felony for his 1998 possession of a firearm by a
felon conviction, and (2) was used "derivatively" as the underlying
felony for his current possession of a firearm by a felon
conviction, because the 1998 possession of a firearm by a felon
conviction was used as the underlying felony for his current
possession of a firearm by a felon conviction.
As was the case with defendant's 1998 firearm conviction,
defendant was neither acquitted of nor prosecuted a second time forhis 1991 drug conviction, and, consequently, defendant must show he
has received multiple punishments for the 1991 conviction in order
to establish a double jeopardy violation. Tirado
, 358 N.C. at 578,
599 S.E.2d at 534. In 1991, defendant was convicted of and
punished for his drug offense. One of the consequences of that
conviction was that he was barred from ever possessing a firearm
under N.C. Gen. Stat. § 14-415.1(a). When, in 1998, he possessed
a firearm in violation of that statute, he was again convicted and
punished _ not a second time for the 1991 drug conviction, but for
the first time for this new offense under § 14-415.1(a). Defendant
was, of course, still barred from thereafter possessing a firearm.
Consequently, when defendant, in 2003, again unlawfully possessed
a firearm, he was convicted and punished only for this new offense.
Defendant has, therefore, failed to show that he has received
multiple punishments for the 1991 conviction.
In short, defendant's arguments on appeal assert a legal
theory that does not exist. The "double-counting" alleged by
defendant in his arguments fails to implicate "double jeopardy" as
defendant has not been re-prosecuted or re-punished for either his
1998 or 1991 convictions. Accordingly, defendant's assignments of
error are overruled.
Judges McGEE and CALABRIA concur.
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