STATE OF NORTH CAROLINA
v. Guilford County
No. 04 CRS 93602
REGINALD LEE ROGERS
Attorney General Roy Cooper, by Assistant Attorney General
Susan R. Lundberg, for the State.
Brian Michael Aus for defendant appellant.
McCULLOUGH, Judge.
Reginald Lee Rogers (defendant) appeals from his conviction
for habitual misdemeanor assault. For the reasons stated below, we
find no error.
On 8 November 2004, the Guilford County grand jury indicted
defendant on charges of misdemeanor assault on a female and
habitual misdemeanor assault. At trial beginning on 24 January
2005, the State introduced evidence tending to show the following:
Defendant and Tabitha Lynn Rogers (victim) were married on 28
November 1995. Because the victim was working at a second job on
the night of 24 September 2004 (a Friday), defendant's parents kept
the couple's two children that weekend. The victim then worked on
the following day at her regular job and returned home between twoand three o'clock in the afternoon. She testified defendant wanted
to go out with her that evening, but she declined because she was
mad at him. The victim instead played games on her cell phone in
their bedroom while defendant played video games in their living
room. Defendant accused the victim that same evening of sending
text messages to people on her cell phone, and they began arguing
at around five or six o'clock. The victim went to bed before
defendant, who continued playing video games in the living room
that night.
At approximately six o'clock on Sunday morning, the victim
awakened and began getting ready for work. She said defendant
noticed a missed call on her cell phone which came from a private
number at about 2:00 a.m., and they began arguing over the missed
call. Both of them were yelling, throwing things and breaking
things. As she was standing in front of her dresser, they also
argued over which of them would take the truck that morning. When
the victim saw defendant coming through the door, she tried to get
away. Defendant started punching her and struck her on the side of
her head. She fell to the floor, and defendant began kicking her
in her back. The victim told him to stop and let her get ready for
work because she could not afford to stay out of work. She
“probably tried to hit him a couple of times . . . trying to get
him off of me.” Defendant stopped, but they continued arguing as
both of them were getting ready.
The victim was in the bathroom brushing her teeth when
defendant pushed her into the bathtub and broke a plastic mouthwashbottle over her. A button was ripped off the front of her shirt
when defendant tried to get her up one time. The victim attempted
to leave the house, but defendant would not allow her to leave
because he said she would call the police. While at the backdoor,
the victim hit defendant underneath his eye and scratched him with
her ring. Defendant then began hitting her again. The victim ran
to the front door but was unable to unlock it. Defendant
eventually told the victim to straighten up so that she could get
ready for work, and she reapplied her makeup and pulled her hair
back up. As defendant drove her to work, they were “kind of
arguing in the truck,” and she “just kept promising that [she]
wouldn't call the police.”
After arriving at work, the victim called police and told two
officers what had occurred. The victim then called a friend to
come get her, and the victim left with her. She went before a
magistrate before lunch that day and took out a warrant for the
assault. Later that same day, officers arrested defendant at the
family residence. Because she could not hear out of her left ear
where defendant had struck her, the victim went to the emergency
room that evening. On Monday morning, the victim obtained a
domestic violence protection order.
Out of the jury's presence, defendant admitted two prior
convictions for misdemeanor assault on a female. Both convictions
occurred on 12 September 2003. An assistant clerk of Guilford
County Superior Court subsequently testified as to court records of
prior convictions for assault on a government official, forresisting and obstructing a public officer, and for simple assault.
The court records contained discrepancies as to the spelling of
defendant's name, the year of his birth, and his residence at the
time of the offenses.
At the close of the State's evidence, defendant moved to
dismiss the charges of assault on a female and habitual misdemeanor
assault. The trial court denied the motions, and defendant then
testified on his own behalf. Defendant said the victim's cell
phone rang at about 6:00 o'clock on the morning of 26 September
2004, and he answered it as the victim was getting dressed. A man
asked defendant if the victim was around, but hung up when
defendant identified himself as her husband and asked if the man
wanted to leave a message. The victim complained about defendant
answering her cell phone, and she said she did not know who the
caller was because it was a private number. Defendant told her
that he was tired of trying to make it work and that he was
leaving.
According to defendant, as he was leaving, the victim said,
“You're not leaving me with two kids,” and she ripped all the
buttons off her own work shirt. Defendant had no contact with the
victim because he was on the other side of their bed. The victim
then threw the bottle of mouthwash at him while he was leaving.
While defendant was walking down the street away from their house,
the victim drove up in the truck and was blowing the horn. She
told him that it would never happen again and that she was sorry.
The victim asked him to take her to work, and defendant “gave inagain” and dropped her off at work.
Defendant returned to their home and parked the truck behind
their house near the hose spigot so that he could wash the truck
before church. He then got into the shower. The next thing that
defendant knew, the victim came in with two police officers and
they arrested him on an assault charge. Defendant renewed his
earlier motion to dismiss at the close of all the evidence, and the
trial court again denied the motion.
The trial court instructed the jury that it could convict
defendant of habitual misdemeanor assault and assault on a female,
and also gave an instruction on self-defense. The jury convicted
defendant of habitual misdemeanor assault, the trial court
sentenced him to a term of ten to twelve months' imprisonment.
Defendant now appeals.
In his first argument, defendant contends the trial court was
without jurisdiction to hear the charge of habitual misdemeanor
assault because the indictment was defective. He argues the
indictment did not properly allege five previous misdemeanor
convictions because two of those convictions occurred on the same
date. This argument lacks merit.
At the time of the offense, the applicable statute stated that
“[a] person commits the offense of habitual misdemeanor assault if
that person violates any of the provisions of G.S. 14-33(c) or G.S.
14-34 and has been convicted of five or more prior misdemeanor
convictions, two of which were assaults.” N.C. Gen. Stat. § 14-
33.2 (subsequently amended effective 1 December 2004). Thestatute, however, “contains no language which could be reasonably
construed as requiring that any of the prior misdemeanor
convictions either occur on separate dates or arise from separate
incidents.” State v. Forrest, 168 N.C. App. 614, 623, 609 S.E.2d
241, 247 (2005). Accordingly, we reject defendant's argument.
Defendant next contends the trial court erred by denying his
motion to dismiss based on insufficiency of the evidence. He
argues the evidence shows that the victim assaulted him. We
disagree.
“In ruling on a motion to dismiss based on the insufficiency
of the evidence, the trial court must determine whether there is
substantial evidence of each element of the crime charged and that
defendant was the perpetrator.” State v. Roddey, 110 N.C. App.
810, 812, 431 S.E.2d 245, 247 (1993). “Whether the evidence
presented is substantial is a question of law for the court.”
State v. Siriguanico, 151 N.C. App. 107, 109, 564 S.E.2d 301, 304
(2002) . The motion to dismiss must be denied if the evidence,
viewed in the light most favorable to the State, would allow a jury
to reasonably infer that the defendant is guilty. State v.
Williams, 154 N.C. App. 176, 178, 571 S.E.2d 619, 620-21 (2002).
“A person commits the offense of habitual misdemeanor assault
if that person violates any of the provisions of G.S. 14-33(c)
. . . and has been convicted of five or more prior misdemeanor
convictions, two of which were assaults.” N.C. Gen. Stat. § 14-
33.2. “The elements of assault on a female [codified at N.C. Gen.
Stat. § 14-33(c)(2) (2005)] are (1) an assault, (2) upon a femaleperson, (3) by a male person (4) who is at least eighteen years
old.” State v. Herring, 322 N.C. 733, 743, 370 S.E.2d 363, 370
(1988). Defendant here only challenges the element of assault,
which is defined 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.'”
State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967)
(citation omitted).
The victim testified that as she and defendant were arguing,
yelling and throwing things, defendant struck her on the side of
her head and then kicked her in her side and back after she had
fallen to the floor. He later pushed her into the tub while she
was brushing her teeth and “busted” a plastic bottle of mouthwash
over her. When viewed in the light most favorable to the State,
the victim's testimony provided substantial evidence of the
disputed element of assault. Accordingly, the trial court properly
denied defendant's motion to dismiss the charges.
No error.
Judges HUDSON and STEELMAN concur.
Report per Rule 30(e).
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