State v. MasonState v. Mason
- Reporters:
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- Before:
- McGee
Defendant first contends the violent habitual felon statute,
Defendant also contends the statute is unconstitutional as applied to him. Defendant argues “there was a violation of procedural due process prejudicial to him as well as circumstances which manifest inherent unfairness or injustice, in the application of the statute to him.” We disagree.
In this case, defendant was charged in one bill of indictment with assault with a deadly weapon with intent to kill inflicting serious injury, and in a separate bill of indictment with being a violent habitual felon. Defendant argues he was not legally charged as a violent habitual felon because the indictment charging him with assault with a deadly weapon did not also charge that he is a violent habitual felon. This Court has already rejected this argument with regard to the habitual felon statute.
See, e.g., State v. Keyes,
56 N.C. App. 75, 78, 286 S.E.2d 861, 863 (1982) (“We do not believe the legislature intended to require that the first indictment, notifying defendant of the substantive charge, should include his recidivist status. That is the function of the second indictment.”);
State v. Hodge,
112 N.C. App. 462, 466-67, 436 S.E.2d 251, 254 (1993). Because the structure and wording of the charging statutes for both habitual felons and violent habitual felons are virtually identical,
see
Defendant next argues the indictment as a violent habitual felon should be dismissed because it alleges, inter alia, he “established] himself as a violent habitual felon pursuant to N.C.G.S. 14-7.7 when he did commit the felony of assault with a deadly weapon with intent to kill inflicting serious injury [on May 25, 1995].” Defendant contends that because he was convicted of the lesser included offense of assault with a deadly weapon inflicting serious injury, there was a fatal variance between the evidence presented and the indictment. We find no merit to this argument.
“[An] habitual felon indictment is not required to specifically refer to the predicate substantive felony.”
State v. Cheek,
339 N.C. 725, 727, 453 S.E.2d 862, 863 (1995). This is so because the defendant is not defending himself against the predicate substantive felony, but against the charge that he has been previously convicted of the required number
Defendant next argues the violent habitual offender indictment should be dismissed because it fails to name the state in which the felony of manslaughter was committed. The indictment states, in material part,
On December 3, 1982, in Wake County, North Carolina, the defendant committed the felony of assault with a deadly weapon inflicting serious injury and was thereafter charged and was found guilty by a jury and judgment was entered in Wake County Superior Court on June 9, 1987; and on March 20, 1992, in Wake County the defendant committed the felony of voluntary manslaughter and was thereafter charged and pleaded guilty and judgment was entered in Wake County Superior Court on September 9, 1992.
We find no prejudicial error.
While G.S.
Defendant next argues that because the crimes of assault with a deadly weapon inflicting serious injury and voluntary manslaughter were Class H and F felonies respectively at the time of commission, treating them as Class E felonies for establishing violent habitual
offender status violated his protection against
ex post facto
laws. We disagree. We first note that although
Defendant next argues the trial court erred by denying his motion to dismiss the charge of assault with a deadly weapon inflicting serious injury based upon insufficiency of the evidence. Specifically, defendant alleges there was insufficient evidence of intent to inflict serious injury because there
Upon a motion to dismiss, the court must determine if there is substantial evidence to support the allegations in the indictment. State v. Franklin, 327 N.C. 162, 171-72, 393 S.E.2d 781, 787 (1990).
Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. ... If there is any evidence tending to prove guilt or which reasonably leads to this conclusion as a fairly logical and legitimate deduction, it is for the jury to say whether it is convinced beyond a reasonable doubt of defendant’s guilt.
Id. (citations omitted). “If there is more than a scintilla of competent evidence to support allegations in the warrant or indictment, it is the court’s duty to submit the case to the jury.” State v. Everhardt, 96 N.C. App. 1, 11, 384 S.E.2d 562, 568 (1989) (quoting State v. Horner, 248 N.C. 342, 103 S.E.2d 694 (1958)), aff‘d, 326 N.C. 777, 392 S.E.2d 391 (1990). In this case, the State presented more than a scintilla of evidence tending to show defendant intended to seriously injure the victim.
Here, defendant and the victim were engaged in a heated argument. Defendant ran to the car to retrieve the gun, and told the victim “you don’t believe I’ll shoot you.” Defendant pointed the gun at the victim. The State’s expert witness on firearms testified the clicking sound made when the trigger was pulled during the earlier scuffle between the victim and Hayes meant the gun either misfired, was unloaded, or there was no shell in the chamber. In order for the gun to fire after any of these occurrences, in addition to loading the gun or chambering the shell, if necessary, the gun had to be recocked. The expert also testified the trigger pull on the gun was within the normal range, meaning that “you know you are pulling the trigger when you do so.” He also testified the gun would not fire unless the trigger was pulled or a blow of moderate force struck the rear of the gun. The State presented sufficient evidence that defendant intentionally shot the victim for the case to be submitted to the jury. This assignment of error is overruled.
Lastly, defendant argues the trial court erred by “accepting the verdict of the jury” concerning the violent habitual offender charge and sentencing defendant to life imprisonment without parole. Defendant principally relies on the same arguments we have already rejected. Defendant also makes three additional arguments concerning the wording of the verdict sheet, the testimony of an assistant clerk of Superior Court for Wake County, and an alleged problem with the Notice of Reinstatement form. We find no merit to these arguments.
For the reasons stated, we find the defendant received a trial free from prejudicial error.
No Error.
Judges COZORT and JOHN concur.