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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. ALEXANDER CRAIG CROMARTIE
Filed: 04 April 2006
1. Assault_no instruction on lesser offense_evidence of intent to kill present_no plain
There was no plain error in a prosecution for assault with a deadly weapon with intent to
kill inflicting serious injury by not instructing on the lesser included offense of assault with a
deadly weapon inflicting serious injury. The uncontradicted evidence was that defendant went
into his home, retrieved a loaded gun, pointed the gun at the victim at close range, told the victim
he was not leaving the alley that day, and then shot the victim in the back. Pointing the gun at
the victim and pulling the trigger is evidence from which an intent to kill may be inferred, as well
as shooting the victim in the torso, where most major organs are located. It is irrelevant that
defendant shot the victim only once.
2. Criminal Law_joinder of offenses_assault and possession of firearm by felon_not
The joinder of assault and firearms possession charges for trial did not unjustly or
prejudicially hinder defendant's ability to defend himself or to receive a fair hearing.
Additionally, the evidence was not complicated and the trial court's instruction to the jury clearly
separated the two offenses.
3. Evidence_prior conviction_no limiting instruction_no plain error
A discussion of whether a pattern jury instruction was applicable did not constitute an
objection to the instruction, and the trial court's failure to give a limiting instruction on
defendant's prior conviction was not erroneous. Plain error review was waived because it was
not argued in the brief. Even so, the instruction would not have been applicable because it
involved evidence of prior crimes admitted for purposes other than those in this case.
4. Sentencing_prior record worksheet_used to minimize record_stipulated
A defendant cannot use the prior record worksheet to seek a lesser sentence during his
sentencing hearing and then disavow this conduct on appeal. The evidence here supported the
trial court's findings of prior record points during sentencing where the only evidence of prior
convictions was a prior record level worksheet which defense counsel acknowledged by specific
reference and then used to minimize defendant's record.
Appeal by defendant from judgment entered 4 August 2004 by
Judge Ernest B. Fullwood in New Hanover County Superior Court.
Heard in the Court of Appeals 8 March 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General Daniel D. Addison, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Benjamin Dowling-Sendor, for defendant-appellant.
Defendant, Alexander Craig Cromartie, appeals his conviction
of assault with a deadly weapon with intent to kill inflicting
serious injury and the sentence imposed. For the reasons discussed
herein, we find no error.
The evidence at trial tended to show that defendant shot and
wounded Ricky Allen (Allen) with a handgun on 27 July 2002. Allen
testified he and defendant were neighbors and he had known
defendant for seven or eight years. About three years before the
shooting, defendant borrowed $100.00 from Allen. Defendant
eventually repaid some of the money, but still owed the remainder.
Allen occasionally asked defendant when he was going to repay the
rest of the money, the last time being two weeks before the
On the morning of 27 July 2002, Allen was riding his
motorcycle when defendant approached in a car. Allen pulled over
to see what defendant wanted. Defendant told Allen to follow him
to his mother's house. Allen agreed because he thought defendant
was finally going to repay him. Once they arrived at his mother's
house, defendant went inside and came out a few minutes later.
Allen testified that when defendant came out he was holding a
handgun, partially wrapped in a T-shirt. Defendant put the gun to
Allen's head and said, You not leaving out this alley today.
Defendant then walked past Allen about fifteen feet and said herego you mother - - MF money and shot Allen one time in the back.
Allen slid off his motorcycle and ran towards his house. When he
looked back, defendant was still standing in the same spot. As
soon as Allen arrived home he called 911. He then went outside and
sat on the grass and waited for the police to arrive. Allen told
the police what happened and identified defendant as the person who
shot him. Allen was taken to the hospital for treatment. The
bullet from defendant's gun crossed Allen's spine, broke a rib and
lodged under his shoulder blade.
In an interview with Detective Craig of the Wilmington Police
Department following the shooting, defendant recounted the events
leading up to the shooting. Approximately eight months after the
shooting, police arrested defendant. He was indicted for one count
of assault with a deadly weapon with intent to kill inflicting
serious injury and one count of possession of a firearm by a felon.
The matter came on for trial and the jury found defendant guilty on
both charges. The trial court sentenced defendant to consecutive
terms of imprisonment of 133 to 169 months for the assault and 16
to 20 months for possession of a firearm by a felon. Defendant
 In defendant's first argument, he contends the trial court
committed plain error when it failed to instruct the jury on the
lesser included offense of assault with a deadly weapon inflicting
serious injury. We disagree.
Since defendant failed to object to the jury charge or any
omission thereto before the jury retired to consider its verdict,
our review is limited to plain error. State v. Odom, 307 N.C. 655,
661, 300 S.E.2d 375, 378-79 (1983). The plain error rule only
applies in truly exceptional cases, such that where it is applied
[i]t is the rare case in which an improper instruction will
justify reversal of a criminal conviction when no objection has
been made in the trial court.'
Id. at 661, 300 S.E.2d 379
To constitute plain error, defendant bears
the burden of convincing the appellate court that absent the error,
the jury probably would have reached a different verdict. Odom,
307 N.C. at 661, 300 S.E.2d 379.
Defendant asserts the trial court committed plain error by
failing to instruct the jury to consider whether defendant was
guilty of assault with a deadly weapon inflicting serious injury,
a lesser-included offense of assault with a deadly weapon with
intent to kill inflicting serious injury. Defendant asserts the
evidence concerning his intent to kill was equivocal; therefore,
the judge should have instructed the jury on the lesser assault
crime. Specifically, defendant argues that since he did not
immediately shoot Mr. Allen, but walked past him and then shot him
only one time in the back, rather than the head, this evidence
raises a issue of intent to kill.
The only difference in what the State must prove for the
offense of assault with a deadly weapon inflicting serious injury
and assault with a deadly weapon with intent to kill inflicting
is the element of intent to kill. See State v.
Grigsby, 351 N.C. 454, 526 S.E.2d 460 (2000).
Where all theevidence tends to show a shooting with a deadly weapon with the
intent to kill, the trial court does not err in refusing to submit
the lesser included offense of assault with a deadly weapon.
State v. Riley, 159 N.C. App. 546, 554, 583 S.E.2d 379, 385 (2003)
(citing State v. Oliver, 334 N.C. 513, 523, 434 S.E.2d 202, 207
(1993)). 'The defendant's intent to kill may be inferred from the
nature of the assault, the manner in which it was made, the conduct
of the parties, and other relevant circumstances.' Id. (quoting
State v. James, 321 N.C. 676, 688, 365 S.E.2d 579, 586 (1988)).
In State v. Riley, this Court held the trial court did not
commit plain error in failing to instruct the jury on the
misdemeanor of assault with a deadly weapon as a possible lesser
included offense of the charge of felonious assault with a deadly
weapon with the intent to kill. 159 N.C. App. at 553-54, 583
S.E.2d at 385
. The only difference between the two charges was
intent to kill. Id. We held there was sufficient evidence of the
defendant's intent to kill where he fired a handgun in a crowd of
people while only eighteen feet away and after shouting words to
the effect of I got you now, I got you now[.] Id. at 554, 583
S.E.2d at 385.
In the instant case,
the uncontradicted evidence establishes
that defendant went into his home, retrieved a loaded gun, pointed
the gun at the victim at close range, told the victim he was not
leaving the alley that day, and then shot the victim in the back.
Where the defendant points a gun at the victim and pulls the
trigger, this constitutes evidence from which intent to kill may beinferred.
See James, 321 N.C. at 688, 365 S.E.2d at 586; State v.
Reives, 29 N.C. App. 11, 12-13, 222 S.E.2d 727, 728 (1976).
Moreover, defendant shot Mr. Allen in his torso, where the majority
of his major organs are located. This also demonstrates an intent
to kill since an assailant 'must be held to intend the natural
consequences of his deliberate act.' Grigsby, 351 N.C. at 457,
526 S.E.2d at 462 (citations omitted).
It is irrelevant that
defendant only shot the victim one time. The lack of multiple
shots fired does not negate intent to kill. See State v. Larry,
345 N.C. 497, 518, 481 S.E.2d 907, 919 (1997).
Defendant has failed to demonstrate to this Court that absent
the alleged error, the jury would probably have reached a different
result. This argument is without merit.
 In defendant's second argument, he contends the trial
court erred in granting the State's motion for joinder for trial of
the two charges, assault with a deadly weapon with intent to kill
inflicting serious injury
and possession of a firearm by a felon.
Defendant argues that in proving he was a felon in possession of a
firearm the State was permitted to introduce evidence of one of his
prior felony convictions, which would have been inadmissible had he
been tried separately on the assault charge.
N.C. Gen. Stat. § 15A-926(a) governs the joinder for trial of
multiple charges against the same defendant. It provides that
[t]wo or more offenses may be joined for trial . . . when the
offenses, whether felonies or misdemeanors or both, are based on
the same act or transaction or on a series of acts or transactionsconnected together or constituting parts of a single scheme or
plan. N.C. Gen. Stat. § 15A-926(a)
(2005). The application of
this rule requires a two-part analysis: (1) a determination of
whether the offenses have a transactional connection, and (2) if
there is such a connection, consideration then must be given as to
whether the accused can receive a fair hearing on more than one
charge at the same trial. State v. Perry, 142 N.C. App. 177, 180-
81, 541 S.E.2d 746, 748 (2001) (internal quotation marks and
It is within the trial judge's discretion
whether to permit the consolidation of offenses against a defendant
and we will not overturn that decision absent a clear showing of
abuse of discretion. Id. at 181, 541 S.E.2d at 749. We note that
the parties disagree which statute applies, N.C. Gen. Stat. § 15A-
926 or § 15A-927 since defense counsel objected to the State's
motion for joinder before the trial and renewed his objection at
the close of the State's evidence. Regardless of which statute
applies, the test is still the same. See State v. Manning, 139
N.C. App. 454, 458-59, 534 S.E.2d 219, 223 (2000)
test used to review motion made pursuant to N.C. Gen. Stat. § 15A-
Defendant concedes that the two charges arose from the same
transaction, thereby satisfying the first part of the inquiry.
However, he contends the trial court abused its discretion in
permitting consolidation because it prejudiced his right to a fair
trial on the assault charge.
Defendant asserts there is inherent
prejudice in joining a charge of firearm possession by a felon withanother charge, particularly where that charge also includes the
element of a dangerous weapon because the State is permitted to
introduce evidence which would ordinarily not be admissible, i.e.,
that defendant had a prior felony conviction.
In State v. Floyd,
this Court joined for trial the charges of
larceny, robbery with a dangerous weapon, possession of a firearm
by a felon, and conspiracy to commit robbery with a weapon. 148
N.C. App. 290, 558 S.E.2d 237
This Court held the joinder
of theses charges did not 'unjustly or prejudicially' hinder
defendant's ability to defend himself. Id. at 293, 558 S.E.2d at
After reviewing the evidence in the instant case, we conclude
the joinder of the two charges did not unjustly or prejudicially
hinder defendant's ability to defend himself or to receive a fair
In addition, the evidence was not complicated and the
trial court's instruction to the jury clearly separated the two
offenses. See State v. Bracey, 303 N.C. 112, 118, 277 S.E.2d 390,
394 (1981). This argument is without merit.
 In defendant's third argument, he contends the trial court
erred by failing to give a limiting instruction concerning the
relevance of defendant's prior convictions.
In order to preserve a question for appellate review, a party
must have presented to the trial court a timely request, objection
or motion, stating the specific grounds for the ruling the party
desired the court to make . . . . N.C. R. App. P. 10(b)(1). In
addition, the complaining party must obtain a ruling upon the
party's request . . . . Id.
The entire exchange between defensecounsel and the judge concerning the limiting instruction was as
[Defense Counsel]: I don't have the text of
these [jury instructions] in front of me. I'm
going from the table of contents. Is 104.15
applicable, Your Honor, given the prior
evidence of similar acts or crimes?
The Court: I don't think that's appropriate.
[Defense Counsel]: Okay . . .
This exchange did not constitute a request within the meaning of
Rule 10(b)(1) of the Rules of Appellate Procedure.
counsel was simply going down a list of instructions to see what
applied. Moreover, counsel's response of okay to the judge's
statement that he did not believe this instruction was applicable
did not constitute an objection. Nor did defense counsel object to
the absence of this instruction after the charge conference or
after the judge instructed the jury. A party may not assign as
error an omission from the jury instruction unless they object
before the jury retires to consider the verdict. N.C. R. App. P.
10(b)(2). Since defendant did not properly preserve this issue for
appellate review, our review is limited to plain error.
N.C. at 661, 300 S.E.2d at 378-79. While
defendant assigned plain
error, he failed to argue plain error in his brief. Thus, he has
waived appellate review of this issue. N.C.R. App. P. 10(c)(4);
State v. Cummings, 352 N.C. 600, 636-37, 536 S.E.2d 36, 61 (2000).
Even assuming arguendo that defendant properly preserved this
issue for appeal, the trial court did not err in refusing to give
the jury the instruction contained in N.C.P.I. _ Crim. 104.15. This instruction relates to evidence of other crimes admitted
pursuant to Rule 404(b) of the Rules of Evidence to show proof of
motive, opportunity, intent, preparation, etc. In this case, the
evidence of defendant's other crimes was not admitted pursuant to
Rule 404(b) or for any of the purposes listed in N.C.P.I. _ Crim.
104.15, but was admitted to establish one of the elements of a
crime that the State was required to prove _ possession of a
firearm by a felon. Thus, a limiting instruction under N.C.P.I. _
Crim. 104.15 was not appropriate and the trial court did not err in
failing to give that instruction. This argument is without merit.
 In defendant's forth and final argument, he contends the
trial court's findings regarding his prior record points and prior
record level were unsupported by the evidence, and therefore, he is
entitled to a new sentencing hearing. We disagree.
Defendant contends the State failed to meet the requirements
to prove a defendant's prior conviction as set forth in N.C. Gen.
Stat. § 15A-1340.14(f). Proof of a defendant's prior conviction
may be done in one of four ways: (1) Stipulation of the parties[;]
(2) An original or copy of the court record of the prior
conviction[;] (3) A copy of records maintained by the Division of
Criminal Information, the Division of Motor Vehicles, or of the
Administrative Office of the Courts[;] (4) Any other method found
by the court to be reliable. N.C. Gen. Stat. § 15A-1340.14(f)
(2005). The State bears the burden of proving by a preponderance
of the evidence that a prior conviction exists and that the
individual before the court is the same person named in the priorconvictions. State v. Eubanks, 151 N.C. App. 499, 505, 565 S.E.2d
738, 742 (2002).
The record in the instant case indicates the only evidence
presented by the State was a prior record level worksheet listing
defendant's prior convictions. There is no question that a
worksheet, prepared and submitted by the State, purporting to list
a defendant's prior convictions is, without more, insufficient to
satisfy the State's burden in establishing proof of prior
Therefore, we must review the dialogue between
counsel and the trial court to determine whether there was a
stipulation of the prior convictions listed on the worksheet the
State presented. Id. Counsel need not affirmatively state what
a defendant's prior record level is for a stipulation with respect
to that defendant's prior record level to occur. State v.
Alexander, 359 N.C. 824, 830, 616 S.E.2d 914, 918 (2005).
In the instant case the following pertinent exchange occurred
[Defense Counsel]: I don't have the work sheet
in front of me, but it is my recollection that
most of Mr. Cromartie's offenses were
nonviolent. The prior possession of a firearm
by a felon was along with a prior concealed
weapon offense. It is my recollection that he
had some drug offenses, and I don't believe
there were any serious assaults in his
history. And again, Your Honor, I don't have
the sheet in front of me, but I don't believe
he's been convicted of anything since '97,
Defendant argues this statement cannot constitute a stipulation
because he did not admit to any specific convictions. In
Alexander, our Supreme Court found defense counsel had stipulatedto the defendant's prior convictions even though he did not refer
to any specific convictions, but instead stated, up until this
particular case [defendant] had no felony convictions, as you can
see from his worksheet. Id. Our Supreme Court held this language
constituted a stipulation to the five prior misdemeanor convictions
shown on the worksheet. Id.
In the instant case, trial counsel acknowledged the worksheet
by making specific reference to it. Counsel went further than
counsel in Alexander by specifically acknowledging the prior
convictions for possession of a firearm by a felon and drug
Then counsel proceeded to use the information contained
in the worksheet to minimize defendant's prior record as being
nonviolent. Finally, at no time did trial counsel dispute any of
the convictions on the worksheet. See Eubanks, 151 N.C. App. at
506, 565 S.E.2d at 743.
As our Supreme Court held in Alexander,
defendant cannot have his cake and eat it too. Id. Defendant
cannot use the worksheet during his sentencing hearing to seek a
lesser sentence and then have his appellate counsel disavow this
conduct on appeal in order to obtain a new sentencing hearing.
We hold that under the rationale of Alexander, defense counsel
stipulated to the convictions shown on the worksheet and found by
the trial court to support a felony record level IV.
is without merit.
For the reasons discussed herein, we find no error in
defendant's trial or sentencing.
NO ERROR. Judges ELMORE and JACKSON concur.
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