STATE OF NORTH CAROLINA
v
.
Alamance County
No. 02 CRS 52625
JIMMY LAWRENCE SHUE 02 CRS 52626
Attorney General Roy Cooper, by Assistant Attorney General Amy
C. Kunstling, for the State.
Brian Michael Aus for defendant-appellant.
ELMORE, Judge.
Jimmy Lawrence Shue (defendant) appeals from the trial court's
decision to sentence him to active time for an indecent liberties
charge and assault on a minor charge for which judgment had been
continued. He argues that the activation of his sentence for the
previously continued judgments, following an appeal of several
additional convictions in the previous trial, violates his
statutory and due process rights. Further, he argues there was
insufficient evidence to support the charge of assault on a minor.
We disagree, and uphold the judgments and sentences against
defendant.
Prior to this appeal, defendant successfully appealed issues
arising from his trial__one of his convictions was reversed. SeeState v. Shue, 163 N.C. App. 58, 592 S.E.2d 233, cert. denied, 358
N.C. 380, 597 S.E.2d 773 (2004). A jury found defendant guilty of
several crimes against two children committed at a restaurant in
Burlington on 25 March 2002. Defendant was in the bathroom when
P.H., an eight-year-old boy, entered and had some trouble locking
the stall door. P.H. asked defendant for assistance. “Defendant,
age forty-seven, entered the stall along with P.H. and attempted to
engage the lock. Once defendant had successfully locked the stall,
he turned towards P.H. and attempted to grab P.H.'s arm. Defendant
left the stall when P.H. jerked his arm away. P.H. returned to his
family's table.” Id. at 59, 592 S.E.2d at 235.
Sometime following P.H.'s return to the table, his younger
brother N.H., a five-year-old, went to the bathroom. Just as N.H.
finished urinating, defendant entered his stall and closed the
door. Defendant then touched N.H.'s penis. Due to N.H.'s extended
absence from the table, N.H.'s mother sent P.H. and his cousin K.R.
into the bathroom to check on N.H. P.H. testified at trial that he
saw defendant leave the stall where N.H. was; K.R. testified that,
upon entering the bathroom, he thought he heard defendant tell N.H.
to be quiet.
Based on this evidence, defendant was convicted of second-
degree kidnapping and indecent liberties for his actions with N.H.
and taking indecent liberties and assault on a child for his
actions with P.H. The trial court sentenced defendant to an active
term on the second-degree kidnapping charge and the charge of
indecent liberties against P.H., which together totaled 41 to 59months imprisonment. The trial court continued prayer for
judgment, however, on the assault charge and the other indecent
liberties charge. Defendant appealed. This Court upheld his
conviction for second-degree kidnapping, but reversed the
conviction for the indecent liberties charge with P.H. We held
that there was insufficient evidence as to defendant's deviant
purpose in entering the stall with P.H., and accordingly the trial
court erred in denying defendant's motion to dismiss that count of
indecent liberties. Id. at 62, 592 S.E.2d at 236.
Following defendant's appeal, in which his sentence was
reduced by 16 to 20 months, the State moved the trial court to
enter judgments on the previously continued convictions for
indecent liberties with N.H. and assault on P.H. The State asked
that defendant be sentenced to a consecutive 16 to 20 month term
for the indecent liberties charge against N.H. and a concurrent
sentence of 60 days for the assault charge on P.H. The trial court
entered judgments accordingly. Defendant appeals.
First, defendant argues that the trial court's entry of
judgment on the previously continued judgments violates his due
process rights. But this contention is without merit. In State v.
Van Trusell, 170 N.C. App. 33, 612 S.E.2d 195 (2005), this Court
reviewed the propriety of the trial court granting the State's
motion to enter judgment on previously continued judgments after
the defendant was successful in an appeal of a related conviction.
That case, and its analysis, controls our decision here. There,
defendant was convicted of two counts of robbery with a dangerousweapon, first-degree kidnapping, and assault with a deadly weapon.
Id. at 35, 612 S.E.2d at 197. The trial court continued judgment
on one of the robbery counts and the assault charge; defendant was
sentenced to consecutive terms totaling 237 to 312 months on the
other charges. Id. Defendant appealed and our Supreme Court
reversed his conviction for first-degree kidnapping, but remanded
for entry of second-degree kidnapping. After the Supreme Court's
mandate, the State filed a motion seeking the trial court to enter
a judgment on the previously continued judgments of robbery and
assault. The trial court did so, and defendant appealed. Id. at
36, 612 S.E.2d at 197.
After reviewing the relevant case law, including the rationale
that might initially lead a trial court to continue a judgment, the
Van Trusell Court rejected defendant's due process arguments,
“declin[ing] to recognize a presumption of vindictiveness when a
trial court sentences on a prayer for judgment following an appeal
of a separate conviction.” Id. at 42, 612 S.E.2d at 201. Instead,
a defendant must show “actual vindictiveness” on behalf of either
the trial court or the prosecutor. Id. In Van Trusell, the Court
noted the trial court gave a legitimate reason for entry of the
judgment and, that absent additional more punitive evidence, there
was insufficient evidence suggesting actual vindictiveness. Id. at
44, 612 S.E.2d at 202.
The reason given by the trial court in entering the judgment
following appeal was one of equity: prior to the appeal the trial
judge felt the sentence was “appropriate,” but after the sentencewas reduced, the trial judge, in his discretion, felt entry of
judgment on the continued charges was proper. Id. This Court
agreed; absent a showing of vindictiveness, the trial court does
not relinquish its right to impose a sentence on a continued
judgment following an appeal when that appeal has upset the
equities first weighed by the court allowing the sentence. See id.
Defendant's situation is no different. At the hearing on the
State's motion, the trial court noted it had previously continued
judgment on the indecent liberty and assault charges due to the
fact that defendant was receiving an appropriate sentence. In
imposing the sentences pursuant to the State's motion, the trial
court further noted that it was not increasing defendant's sentence
any more than he initially received. And in bringing the motion,
the State argued a similar legitimate reason for imposing a
sentence on the continued judgments.
We're simply asking the Court to impose a
judgment in the indecent liberties with a
child case that the Court previously continued
judgment on. We're asking the Court to impose
a 16 to 20 month active sentence to run at the
expiration of the kidnapping charge, in
essence, giving Mr. Shue the exact same
sentence he had received upon the initial
entry of judgment back at the original trial.
We'd also ask the Court to enter a judgment on
the assault on the child under 12 charge and
do with that whatever the Court wishes. But
in this particular case, the assault on a
child case regards [P.H.]. The case that was
reversed involved [P.H.]. Your Honor -- the
State's asking that judgment be entered in
that case just so that the victim in that
case, [P.H.], gets some justice in his name.
. . .
The Court did Mr. Shue -- I would say that the
Court did Mr. Shue a favor by allowing those
two cases not to be imposed -- judgments not
to be imposed at the time. We're simply
asking now that the judgments be imposed and
that he receive what he received initially.
Not asking for anything more, Your Honor.
Accordingly, since defendant has brought forth no evidence of
actual vindictiveness, and we can find none ourselves, we hold
there was no violation of defendant's due process rights. See
State v. Lea, 156 N.C. App. 178, 181, 576 S.E.2d 131, 133 (2003)
(no error in imposing sentences following appeal on continued
judgments where the “State sought to ensure that defendant suffered
some consequences for his criminal conduct.”).
Defendant also argues that the judgment violates section 15A-
1335 of our General Statutes. Foremost, this argument is not
properly before us. Defendant's relevant assignment of error
states the imposition of a sentence on the continued judgment “was
in violation of the Defendant's Federal and State Constitutional
rights.” This assignment of error does not encompass the legal
argument that the judgment was entered in violation of any statute.
See N.C.R. App. P. 10(c)(1). Notably though, even if the argument
were properly before us, it is meritless. Section 15A-1335 states
that after a conviction or sentence has been set aside by an
appellate court, a trial court may not impose upon a defendant a
more severe sentence than the previous one set aside. See N.C.
Gen. Stat. § 15A-1335 (2005) (“When a conviction or sentence
imposed in superior court has been set aside on direct review or
collateral attack, the court may not impose a new sentence for thesame offense, or for a different offense based on the same conduct,
which is more severe than the prior sentence less the portion of
the prior sentence previously served.”). This statute does not
come into play when dealing with continued judgments; when the
sentence is ultimately rendered upon the continued judgment it is
the first or original sentence, no prior sentence or conviction has
been “set aside.” See State v. Pakulski, 106 N.C. App. 444, 452,
417 S.E.2d 515, 520 (imposition of life sentence for previously
arrested judgment of armed robbery was not implicated by section
15A-1335 because the sentence did “not constitute a resentencing
within the meaning of [the statute]”), disc. review denied, 332
N.C. 670, 424 S.E.2d 415 (1992).
Second, defendant argues there was insufficient evidence to
support an assault charge against P.H. We disagree. As this Court
has previously stated, we review the evidence on a motion to
dismiss in the light most favorable to the State, and it is
entitled to all reasonable inferences drawn from the evidence.
When considering a motion to dismiss for
insufficient evidence, the trial court must
determine whether there is substantial
evidence of each element of the offense and
that the defendant committed the offense.
State v. Irwin, 304 N.C. 93, 97, 282 S.E.2d
439, 443 (1981). Substantial evidence is
“'such relevant evidence as a reasonable mind
might accept as adequate to support a
conclusion.'” State v. Smith, 150 N.C. App.
138, 140, 564 S.E.2d 237, 239, (quoting State
v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61
(1991) (citations omitted)), cert. denied, 355
N.C. 756, 566 S.E.2d 87 (2002). All evidence
is to be considered in the light most
favorable to the State and all reasonable
inferences are to be drawn therefrom. Irwin,
304 N.C. at 98, 282 S.E.2d at 443. Wherethere is a reasonable inference of a
defendant's guilt from the evidence, the jury
must determine whether that evidence
“convinces them beyond a reasonable doubt of
defendant's guilt.” Id.
Shue, 163 N.C. App. at 60, 592 S.E.2d at 235. “'There is no
statutory definition of assault in North Carolina, and the crime of
assault is governed by common law rules.'” State v. Mitchell, 358
N.C. 63, 69-70, 592 S.E.2d 543, 547 (2004) (quoting State v.
Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967)). Our
Supreme Court has defined assault as:
an overt act or an attempt, or the unequivocal
appearance of an attempt, with force and
violence, to do some immediate physical injury
to the person of another, which show of force
or menace of violence must be sufficient to
put a person of reasonable firmness in fear of
immediate bodily harm.
Id. (internal quotations omitted). Here, an eight-year-old boy was
confined in a bathroom stall with defendant, a forty-seven-year-old
male stranger. Defendant, although asked by P.H. to help with the
lock on the door, had no reason to remain in the same stall with
P.H. And, while standing in front of the locked stall door,
defendant had no reason to reach out for P.H.'s arm. P.H.
testified that defendant's action's “scared” him and he pulled
away. After defendant opened the stall door, P.H. immediately
returned to his table without using the bathroom. In the light
most favorable to the State, this evidence supports presenting the
charge of assault on a child under the age of twelve to the jury.
Based on the foregoing, and having reviewed defendant's other
arguments, we find no error in the trial court's entry of activesentences on the previously continued judgments of indecent
liberties and assault.
No error.
Judges McCULLOUGH and LEVINSON concur.
Report per Rule 30(e).
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