Appeal by defendant from judgments entered 25 May 2006 by
Judge Thomas D. Haigwood in Martin County Superior Court. Heard in
the Court of Appeals 6 June 2007.
Attorney General Roy Cooper, by Assistant Attorney General Q.
Shanté Martin, for the State.
Glenn Gerding for defendant-appellant.
Defendant James Earl Ewell appeals from his convictions for
attempted first degree sex offense of a child under 13 years of
age, attempted statutory sex offense of a 13-year-old child, and
two counts of indecent liberties with a child. In arguing on
appeal that the trial court erred in denying his motion to dismiss,
defendant relies primarily on his contention that the child lacked
credibility. Since questions of credibility are for the jury, and
the record contains sufficient evidence to prove the other elements
of the crimes charged, we hold the trial court properly denied the
motion to dismiss. Further, in light of defendant's extensive
criminal record that became admissible when he testified, we find
unpersuasive defendant's contention that the court committed plainerror in allowing the State (1) to question defendant about
convictions more than 10 years old and (2) to attempt to elicit
facts underlying certain convictions. Finally, we disagree with
defendant's contention that the trial court, in this second trial
following a remand by this Court, imposed a sentence that exceeded
the sentence imposed at the first trial. Accordingly, we hold that
defendant received a trial free of prejudicial error.
The State's evidence at trial tended to show the following
facts. At the time of the incidents at issue, defendant was living
with his girlfriend and her daughter, "Tanya."
(See footnote 1)
Tanya ranged in
age from 11 to 13 during the time frame of the alleged offenses.
The first incident recalled by Tanya occurred on approximately
27 January 2001, when Tanya was 11 years old. Tanya's mother went
to work early that day. According to Tanya, defendant intercepted
her on her way to the bathroom and told her to use the bathroom in
her mother's room. Before she reached the bathroom, defendant told
her to lie down on the bed in her mother's room. When Tanya did
not comply, he placed her on the bed, removed her pajamas and
underwear, and began to have sexual intercourse with her. Tanya
cried and asked him to stop, but defendant told her to stop moving
and ejaculated on her stomach. Tanya testified defendant had sex
with her more than 13 times between January 2001 and October 2002. She could not remember other specific dates, but did recall the
circumstances surrounding some of the incidents.
Tanya testified defendant also tried to have oral sex with her
on multiple occasions after the January 2001 incident. According
to Tanya, defendant "would put his penis in any [sic] face" and
"kept pushing my head, pulling my head back, and he would push it
forward." During these incidents, Tanya noticed defendant had
"moles" on his penis. Tanya's mother confirmed that defendant in
fact had warts on his penis and testified further that the wart on
the tip of his penis was only visible when the penis was erect.
The State offered medical evidence that defendant had venereal
warts removed on 7 April 2003, and defendant admitted he had the
warts for five years.
On 9 September 2002, Tanya was diagnosed with Trichomonas, a
sexually transmitted disease. Following that diagnosis, she
admitted to her mother she had been sexually involved with
defendant. Tanya's mother had also suffered from Trichomonas in
2000 or 2001 and believed defendant had transmitted it to her. Dr.
Kathleen Previll, a pediatrician who examined Tanya on 5 February
2003, testified that Trichomonas is highly consistent with sexual
intercourse and that there is only a slight possibility of its
being transmitted through other types of contact.
Tanya's mother took Tanya to the Sheriff's Department on 15
November 2002 to report the allegations against defendant. On 2
December 2002, however, Tanya recanted. She later testified that
her mother asked her to recant and promised she would not allowdefendant to live with them again. Seven days later, on 9 December
2002, Tanya again changed her statement, stating that her first
statement was true and her recantation was false.
In October or November 2002, Tanya reported to Warren Webster,
a school counselor, that defendant had "mess[ed] with" her. She
returned to Mr. Webster in January 2003 when she became upset
because she thought defendant was moving back in with her mother.
Tanya also reported defendant's activities to Nancy Bullock Conner,
a social worker, and Suzanne Jolissaint from the Tedi Bear Clinic.
Although the results of Tanya's physical examination with Dr.
Previll were normal, Dr. Previll testified that normal findings
were not inconsistent with allegations of abuse.
On 23 June 2003, defendant was indicted for first degree
statutory rape; statutory rape of a person 13, 14, or 15; attempted
first degree sex offense; attempted statutory sex offense;
indecent liberties with a child under 13; and indecent liberties
with a child who was 13. After the initial trial, in which
defendant was convicted of each charge, defendant appealed, and a
new trial was ordered as a result of the admission of improper
expert testimony. See State v. Ewell
, 168 N.C. App. 98, 606 S.E.2d
914, disc. review denied
, 359 N.C. 412, 612 S.E.2d 326 (2005). At
the second trial, defendant denied ever being sexually involved
with Tanya. He testified Tanya could have known of his warts
because she walked into the bathroom on occasion when he was
urinating or saw him exiting the shower. Defendant also denied
having Trichomonas. The jury found defendant guilty of attempted first degree sex
offense, attempted statutory sex offense, and two counts of
indecent liberties. The jury acquitted defendant of first degree
statutory rape and statutory rape of a person 13 years of age. The
trial court imposed four consecutive sentences: 25 to 30 months for
each indecent liberties conviction and 225 to 279 months for each
attempted sex offense conviction.
Defendant first argues that the trial court improperly denied
his motion to dismiss for insufficiency of the evidence. When
considering a motion to dismiss, the trial court must determine
whether the State presented substantial evidence of each element of
the crime and of the defendant's being the perpetrator. State v.
, 355 N.C. 320, 336, 561 S.E.2d 245, 255, cert. denied
U.S. 1006, 154 L. Ed. 2d 404, 123 S. Ct. 488 (2002). "'Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.'" State v. Matias
N.C. 549, 552, 556 S.E.2d 269, 270 (2001) (quoting State v. Brown
310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984)). The evidence must
be viewed "in the light most favorable to the State, giving the
State the benefit of every reasonable inference and resolving any
contradictions in its favor." State v. Rose
, 339 N.C. 172, 192,
451 S.E.2d 211, 223 (1994), cert denied
, 515 U.S. 1135, 132 L. Ed.
2d 818, 115 S. Ct. 2565 (1995).
With respect to the charges of attempted first degree sex
offense and attempted statutory sex offense, defendant argues thatthe State presented insufficient evidence of an overt act or a
specific intent to commit the crime. The elements of attempted sex
offense include: "(1) an intent to commit the crime, (2) an overt
act done for that purpose, going beyond mere preparation, (3) but
falling short of the completed offense." State v. Collins
N.C. 54, 60, 431 S.E.2d 188, 192 (1993).
Defendant contends that, at most, the State presented evidence
that he requested that Tanya perform fellatio on him and that a
request is insufficient to constitute the required overt act. This
Court rejected an identical argument in State v. Henderson
N.C. App. ___, 642 S.E.2d 509 (2007). As described by the Court,
the evidence in that case "tended to show that defendant removed
his pants, walked into the room where his seven-or eight-year-old
daughter was seated, stood in front of her, and asked her to put
his penis in her mouth." Id.
at __, 642 S.E.2d at 513. This Court
described as "legally incorrect" the defendant's argument that a
mere request, in the absence of evidence of accompanying assaultive
or violent behavior, was insufficient to constitute an attempt.
at __, 642 S.E.2d at 514. While the Court acknowledged in
that the defendant had previously threatened the child
and physically abused her stepmother, it stressed that "violence is
not a necessary component of an overt act, even in the context of
attempted sexual offenses." Id.
In this case, Tanya testified that when she was between the
ages of 11 and 13, defendant tried on multiple occasions to make
her perform fellatio by standing in front of Tanya with his penisclose to her face and using his hands to move her face towards his
penis. Based on Henderson
, there can be no question that this
evidence was sufficient to meet the requirement of an overt act
necessary to support the charges of attempted first degree sex
offense and attempted statutory sex offense.
Defendant also argues that the State failed to prove that he
had the specific intent to have her perform fellatio. "An act must
be done with specific intent to commit the underlying crime before
a defendant may be convicted of an attempted crime." State v.
, 158 N.C. App. 79, 85, 579 S.E.2d 895, 899, cert. denied
N.C. 468, 587 S.E.2d 69 (2003). We hold that evidence of
defendant's erect penis placed in close proximity to the child's
face and attempts to move the child's head toward the penis is
ample evidence of a specific intent to perform the charged sexual
offenses. See id.
at 86, 579 S.E.2d at 900 (holding that
sufficient evidence of intent for attempted statutory sexual
offense existed when defendant took child to secluded place and
demanded she perform fellatio).
In addition, with respect to all of the charges _ including
the attempted sexual offense charges and the indecent liberties
charges _ defendant argues that because Tanya lacked credibility,
her testimony cannot constitute substantial evidence for purposes
of the motion to dismiss. Defendant, without citing any authority,
points to the rape acquittal and argues that if the jury did not
believe Tanya's testimony regarding sexual intercourse, they wererequired also to reject the remainder of her testimony. Defendant
also notes inconsistencies in Tanya's prior statements.
"It is . . . well-settled that the testimony of a single
witness is adequate to withstand a motion to dismiss when that
witness has testified as to all the required elements of the crimes
at issue." State v. Whitman
, 179 N.C. App. 657, 670, 635 S.E.2d
906, 914 (2006). Any issues relating to Tanya's credibility _
such as those urged on appeal _ were for the jury to decide. State
, 72 N.C. App. 37, 43, 323 S.E.2d 56, 60 (1984). We note
that based on Tanya's knowledge of the warts on defendant's penis
(apparent only when defendant's uncircumcised penis was erect), the
jury could reasonably have decided that while no intercourse
occurred, defendant still attempted a sexual offense and committed
indecent liberties. The jury was equally entitled to reject
defendant's proffered innocent explanations for Tanya's knowledge.
We, therefore, conclude that the trial court did not err in denying
defendant's motion to dismiss.
Defendant next contends the trial court committed plain error
when it allowed the State to question him on cross-examination
about convictions more than 10 years old. Although a defendant's
credibility may be impeached during cross-examination by evidence
of prior convictions, N.C.R. Evid. 609(a), evidence of convictions
more than 10 years old are inadmissible "unless the court
determines, in the interests of justice, that the probative value
of the conviction supported by specific facts and circumstancessubstantially outweighs its prejudicial effect," N.C.R. Evid.
Before the trial began, the prosecutor gave notice of his
intent to offer convictions more than 10 years old in the event the
defendant chose to testify. The trial court asked defense counsel
whether he wanted the court to address the issue at that time:
THE COURT: . . . Do you feel the need _
that I can rule on that motion at this time,
or do you want me to _ would it be appropriate
just to wait and deal with that should the
issue come forward?
[DEFENSE COUNSEL]: I think that would be
appropriate. Let's see if it's going to
become an issue. It may or [sic] not become
. . . .
THE COURT: All right, then, I'm just
going to hold that in abeyance based on your
agreement until you let me know that you feel
a need that it needs to be ruled on.
[DEFENSE COUNSEL]: Yes, sir.
Subsequently, defendant chose to testify and, during cross-
examination, the State proceeded to ask questions about defendant's
criminal record, including the convictions occurring more than 10
years earlier. Defendant did not assert any objection to those
questions. On appeal, defendant acknowledges this lack of
objection, but argues both plain error and ineffective assistance
Plain error is "'fundamental
error, something so basic, so
prejudicial, so lacking in its elements that justice cannot have
been done . . . .'" State v. Odom
, 307 N.C. 655, 660, 300 S.E.2d375, 378 (1983) (quoting United States v. McCaskill
, 676 F.2d 995,
1002 (4th Cir.), cert. denied
, 459 U.S. 1018, 74 L. Ed. 2d 513, 103
S. Ct. 381 (1982)). "Under the plain error rule, defendant must
convince this Court not only that there was error, but that absent
the error, the jury probably would have reached a different
result." State v. Jordan
, 333 N.C. 431, 440, 426 S.E.2d 692, 697
Even assuming, arguendo
, that admission of the older
convictions was error, defendant has failed to demonstrate that the
jury would probably have reached a different result in the absence
of those convictions. The State properly established on cross-
examination that defendant was convicted within the past 10 years
of: (1) two counts of assault on a female, (2) making a false
report to police, (3) injury to personal property, (4) injury to
real property, and (5) two counts of breaking and entering. The
convictions more than 10 years old included: providing false
information to the Employment Security Commission and four counts
of assault on a female. Given defendant's substantial recent
criminal history _ involving relatively recent deceitfulness and
violence towards women _ we do not believe that elimination of the
older convictions would have caused the jury to change its view of
defendant's credibility so substantially as to result in a not-
guilty verdict. See State v. Hensley
, 77 N.C. App. 192, 196, 334
S.E.2d 783, 785 (1985) (no reversible error when defendant was
properly impeached by seven other convictions before his
13-year-old conviction was improperly introduced since theinclusion "could not have appreciably worsened the jury's view of
his credibility"), disc. review denied
, 315 N.C. 393, 338 S.E.2d
Defendant also contends that the court's failure to make
specific findings under Rule 609 that the probative value of the
older convictions outweighed the prejudicial effect of the
convictions' admission constitutes plain error. Defendant cites no
authority suggesting that a trial court is obligated to make
findings of fact when a defendant has failed to object to the
admission of evidence. Regardless, "even if the trial judge's
findings on a challenge to the admissibility of prior conviction
evidence are found to be inadequate under Rule 609(b), Defendant
would be entitled to a new trial only if the admission of such
evidence unfairly prejudiced his defense." State v. Shelly
N.C. App. 575, 584, 627 S.E.2d 287, 295 (2006). Defendant has,
however, failed to demonstrate the prejudice necessary for plain
Finally, defendant also argues that the State's questions
regarding the facts underlying certain convictions constituted
plain error. Specifically, defendant points to questions by the
State during defendant's cross-examination "about the facts
underlying his conviction for providing false information to the
Employment Security Commission; the facts underlying his assault on
a female conviction; and the facts underlying the breaking and
entering and injury to property convictions." According todefendant, the facts underlying the convictions were inadmissible
under Rule 609 and under Rule 404(b).
In State v. Lynch
, 334 N.C. 402, 409, 432 S.E.2d 349, 352
(1993), our Supreme Court held that even if prior convictions are
admissible under Rule 609, the State's inquiry is limited to "the
name of the crime, the time and place of the conviction, and the
punishment imposed." It is also well established, however, that
evidence inadmissible under Rule 609 may still be admissible under
Rule 404(b). See, e.g.
, State v. Wilkerson
, 148 N.C. App. 310,
323, 559 S.E.2d 5, 13 (Wynn, J., dissenting) ("[E]vidence eliciting
details of acts that formed the basis of prior convictions may be
elicited under Rule 404(b) even though such evidence may be barred
under Rule 609."), adopted per curiam
, 356 N.C. 418, 571 S.E.2d 583
(2002); State v. Barnett
, 141 N.C. App. 378, 389, 540 S.E.2d 423,
430 (2000) ("[T]hat the evidence could not be admitted pursuant to
Rule 609(a) does not preclude its admission under [Rule 404(b)]."),
aff'd per curiam
, 354 N.C. 350, 554 S.E.2d 644 (2001).
Here, defendant first points to the State's questions relating
to whether defendant would lie to obtain a "benefit." Defendant
initially responded, "[N]othing but unemployment, if that's what
you're referring to." In reply to the State's follow-up question
that he explain "about the untruths you told to the folks at the
Unemployment [sic] Security Commission," defendant admitted he had
continued to accept unemployment checks while in fact working.
When asked if he had ever "told an untruth to the law," defendant
responded "only making false report, if that's what you're tryingto say." When asked about the details of the false report,
defendant responded, "I don't exactly remember what it was about,
but when I was arrested, the truth came out. I didn't deny it."
With respect to the false report to the police, defendant
could not provide the facts underlying the conviction. He could
only say "I think" it had something to do "with some boys
supposedly having a gas can in Robersonville[.]" We do not see how
these rather vague "facts" could be more prejudicial than the
conviction for making a false report to the police, which was
properly admitted under Rule 609.
We agree that the State should not have been allowed to elicit
the facts underlying the conviction for a false statement to the
Employment Security Commission. Those facts relate only to
defendant's credibility and, therefore, cannot be admitted under
Rule 404(b) independently of Rule 609. See State v. Cook
, 165 N.C.
App. 630, 637-38, 599 S.E.2d 67, 72 (2004) (holding that facts
underlying conviction offered only to impeach defendant's
credibility could not be admitted under Rule 404(b) when they were
inadmissible under Rule 609). Nevertheless, defendant has failed
to demonstrate that admission of those facts tipped the scales with
respect to the jury's verdict. See State v. Holbrook
, 137 N.C.
App. 766, 769, 529 S.E.2d 510, 512 (2000) (holding that plain error
may not be applied "on a cumulative basis," but rather defendant
must show that each individual error rises to the level of plain
error). Defendant next argues that the following questions regarding
his assault on a female convictions were impermissible:
Q. Would it be fair to say, Mr. Ewell, that
you really don't have much respect for women?
A. I have plenty of respect for women.
Q. You do?
A. Yes, I do.
Q. What about Tina Peele?
A. What about Tina Peele? That was a
relationship that I had lots of trouble with
it. Drugs and a lot of stuff was involved in
Q: How many times have you been convicted of
Assault on a Female?
A: I don't recall exactly how many, but most
of them was with Ms. Peele, and it's something
that happened because I was a working man in
the house, and, by the time I would come home,
she had done spent all of the money that I
worked for in drugs.
Q: So six would be an accurate number?
A: Hey, I don't know. I don't know how many
times I was charged with it, but I know _ but,
as far as assault on a female, that's it. I
never had any sexual charge.
The transcript reveals that the State did not specifically attempt
to elicit the facts underlying the assault convictions. Instead,
it sought only to establish the number of convictions. Defendant
volunteered the information regarding why he had apparently
assaulted Ms. Peele. That testimony cannot establish a basis for
reversible error. See N.C. Gen. Stat. § 15A-1443(c) (2005) ("A
defendant is not prejudiced . . . by error resulting from his own
conduct."). Lastly, defendant points to "[t]he State badger[ing] Defendant
about the facts relat[ing] to the breaking and entering and injury
to property convictions, asking Defendant whether he cut [Tanya's
mother's] phone lines and repeatedly asking whether he started a
fire under her trailer." Defendant denied that the breaking and
entering and injury to property charges related to the setting of
a fire under Tanya's mother's trailer. He explained that the
breaking and entering was the result of his returning to the house
to remove his belongings in 2001, and he "got caught" hiding in the
bedroom under the bed. He admitted that three weeks earlier he
threw a cigarette on the ground near the house, but he did not know
whether the cigarette caught fire on trash under the house. With
respect to the phone lines, the State asked:
Q. . . . Would you ever do anything to
interfere with [Tanya's mother's] getting
ahold of the Martin County Sheriff's Office
because something was going on between the two
A. I never stopped [her] from coming to the
Sheriff's Department. I never, I never even
told her not to go to the Sheriff's
Q. Well, didn't you cut her phone lines a
couple of times?
Q. You didn't do that?
Q. As a matter of fact, on December the 7th_
A. I was accused of cutting her phone lines.
But, as far as being charged with cutting her
phone lines, no, I was not.
He testified that the convictions occurred while his relationship
with the mother was not going smoothly.
The critical question raised by this testimony is whether it
was admissible under Rule 404(b). Rule 404(b) of the North
Carolina Rules of Evidence provides:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
Our Supreme Court has held that this rule is "a clear general rule
of inclusion of relevant evidence of other crimes, wrongs or acts
by a defendant, subject to but one exception requiring its
exclusion if its only probative value is to show that the defendant
has the propensity or disposition to commit an offense of the
nature of the crime charged." State v. Coffey, 326 N.C. 268,
278-79, 389 S.E.2d 48, 54 (1990).
Applying these principles, our Supreme Court has stated that
"[e]vidence of other crimes committed by a defendant may be
admissible under Rule 404(b) if it establishes the chain of
circumstances or context of the charged crime. Such evidence is
admissible if the evidence of other crimes serves to enhance the
natural development of the facts or is necessary to complete the
story of the charged crime for the jury." State v. White, 340 N.C.
264, 284, 457 S.E.2d 841, 853 (internal citations omitted), cert.
denied, 516 U.S. 994, 133 L. Ed. 2d 436, 116 S. Ct. 530 (1995).
The Court has explained further: "Evidence, not part of the crime charged but
pertaining to the chain of events explaining
the context, motive and set-up of the crime,
is properly admitted if linked in time and
circumstances with the charged crime, or [if
it] forms an integral and natural part of an
account of the crime, or is necessary to
complete the story of the crime for the jury."
State v. Agee, 326 N.C. 542, 548, 391 S.E.2d 171, 174 (1990)
(quoting United States v. Williford, 764 F.2d 1493, 1499 (11th Cir.
In this case, the questions regarding defendant's breaking and
entering into Tanya's mother's trailer, potentially setting a fire
under the house, and cutting the telephone lines were part of the
context of the charged sex crimes alleged to have been committed by
defendant on Tanya. As the State attempted to establish through
its questions, the breaking and entering, property damage, and fire
occurred during the same time frame Tanya testified that the sexual
intercourse had begun. Defendant admitted at this time that his
relationship with Tanya's mother was not going smoothly. The State
pointed to the severed telephone lines as evidence of defendant's
attempting to block contact with the Sheriff's Department.
These questions, therefore, went to defendant's motive and the
context of the events _ a rocky relationship with Tanya's mother _
as well as to why Tanya would not have earlier reported the
conduct. As such, they were not prohibited by Rule 404(b). See,
e.g., State v. Thompson, 139 N.C. App. 299, 305, 533 S.E.2d 834,
839 (2000) ("In sex abuse cases, the victim's state of mind can be
relevant. When it is relevant, any evidence tending to show the
victim is afraid of her abuser, or evidence explaining why thevictim never reported the sexual incidents to anyone, is
admissible." (internal citation omitted)); State v. Jenkins, 115
N.C. App. 520, 527, 445 S.E.2d 622, 626 (evidence that one month
prior to charged rape, defendant failed to return rape victim's
car, stole some money, broke into victim's home, and was arrested
was admissible under Rule 404(b) as part of history of event),
disc. review denied, 337 N.C. 804, 449 S.E.2d 752 (1994).
Alternatively, defendant argues that he received ineffective
assistance of counsel in violation of the Sixth Amendment of the
United States Constitution when his counsel failed to object to the
introduction of his criminal convictions that were more than 10
years old and to the State's questions regarding the facts
underlying certain convictions. Ineffective assistance of counsel
claims "brought on direct review will be decided on the merits when
the cold record reveals that no further investigation is required
. . . ." State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524
(2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162, 122 S. Ct.
2332 (2002). Recently, however, the United States Supreme Court
has held that ineffective assistance of counsel claims should
rarely be raised on direct appeal because
[i]f the alleged error is one of commission,
the record may reflect the action taken by
counsel but not the reasons for it. The
appellate court may have no way of knowing
whether a seemingly unusual or misguided
action by counsel had a sound strategic motive
or was taken because the counsel's
alternatives were even worse.
Massaro v. United States, 538 U.S. 500, 505, 155 L. Ed. 2d 714,
720, 123 S. Ct. 1690, 1694 (2003). As Massaro observes, we cannot determine from the cold record
if counsel had an explanation or a strategy for not objecting in
this case. His remarks to the judge about waiting to see how the
trial proceeded suggests there may have been a strategy.
Therefore, we conclude the ineffective assistance of counsel claim
cannot be decided on the existing record, and we dismiss this
appeal without prejudice to defendant's right to reassert such
claims in a motion for appropriate relief.
Defendant's final assignment of error asserts that the trial
court erred in imposing a greater sentence on remand than it did in
the original trial. N.C. Gen. Stat. § 15A-1335 (2005) provides:
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 the same 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.
"Nevertheless, while that statute 'prohibits trial courts from
imposing stiffer sentences upon remand than originally imposed,
nothing prohibits the trial court from changing the way in which it
consolidated convictions during a sentencing hearing prior to
remand.'" State v. Moffitt, __ N.C. App. __, __, 648 S.E.2d 272,
274 (2007) (quoting State v. Ransom, 80 N.C. App. 711, 713, 343
S.E.2d 232, 234, cert. denied, 317 N.C. 712, 347 S.E.2d 450
(1986)). In State v. Oliver, 155 N.C. App. 209, 211, 573 S.E.2d
257, 258 (2002), appeal dismissed and disc. review denied, 357 N.C.
254, 583 S.E.2d 45 (2003), this Court similarly held: "N.C.G.S. §15A-1335 does not prohibit the trial court's replacement of
concurrent sentences with consecutive sentences upon resentencing,
provided neither the individual sentences, nor the aggregate
sentence, exceeds that imposed at the original sentencing hearing."
In Moffitt, the defendant was initially sentenced to a term of
34 to 50 months imprisonment on a conspiracy charge, followed by a
consecutive term of 145 to 183 months imprisonment on consolidated
charges of two counts of first degree kidnapping, two counts of
robbery with a dangerous weapon, and felony breaking and/or
entering. __ N.C. App. at __, 648 S.E.2d at 274. On remand from
this Court, the trial court consolidated the charges differently,
sentencing the defendant to 70 to 93 months imprisonment on the two
counts of first degree kidnapping and to a consecutive term of 61
to 83 months imprisonment for the conspiracy charge, the felony
breaking and/or entering charge, and the two counts of robbery with
a dangerous weapon. Id. After noting that the aggregated sentence
on remand was shorter than the aggregated sentence prior to appeal,
this Court held that "[d]efendant did not receive a more severe
sentence on remand and has failed to show any error in the trial
court's decision to consolidate the charges differently for
resentencing. Accordingly, this assignment of error is overruled."
Id. at __, 648 S.E.2d at 275.
In this case, following the first trial, the trial court
entered four judgments: (1) a judgment for attempted first degree
sex offense imposing a sentence of 225 to 279 months; (2) a
judgment for attempted first degree statutory sex offense imposinga concurrent sentence of 225 to 279 months; (3) a judgment
consolidating the convictions of first degree rape and one count of
indecent liberties and imposing a concurrent sentence of 339 to 416
months for the consolidated judgment; and (4) a judgment
consolidating the charges of statutory rape and the second count of
indecent liberties imposing a sentence of 339 to 416 months to run
consecutively to the sentence for first degree rape/indecent
liberties. Following the second trial, the trial court again
entered four judgments: (1) a judgment for attempted first degree
sex offense of a child under 13 years old imposing a sentence of
225 to 279 months; (2) a judgment for one count of indecent
liberties imposing a sentence of 25 to 30 months to run
consecutively to the sentence for attempted first degree sex
offense of a child under 13 years old; (3) a judgment for attempted
first degree sex offense of a child who was 13 years old imposing
a sentence of 225 to 279 months to run consecutively to the first
indecent liberties sentence; and (4) a judgment for a second count
of indecent liberties imposing a sentence of 25 to 30 months to run
consecutively to the sentence for attempted first degree sex
offense with a child who was 13 years old.
None of the sentences for the individual offenses exceeded the
sentence for that offense imposed after the first trial. The only
distinction is that defendant's concurrent terms of 225 to 279
months for the attempted sexual offenses were replaced with
consecutive sentences of 225 to 279 months. Further, defendant's
aggregate sentence on remand, 500 to 618 months, does not exceedhis original aggregate sentence of 678 to 832 months. Since the
trial court was permitted, under Moffitt and Oliver, to replace the
concurrent sentences with consecutive sentences without violating
N.C. Gen. Stat. § 15A-1335, we hold that defendant's sentences in
this case do not violate § 15A-1335.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).