State v. YoungState v. Young
- Reporters:
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- Before:
- Martin
I.
Defendant first assigns error to the trial court’s denial of his motion to dismiss the charge of common law robbery. Common law robbery is defined as the “felonious, non-consensual taking of money or рersonal property from the person or presence of another by means of violence or fear.”
State v. Smith,
305 N.C. 691, 700, 292 S.E.2d 264,
In ruling on a defendant’s motion to dismiss criminal charges, the trial court is required to consider the evidence in the light most favorable to the State, аllowing the State every reasonable inference to be drawn therefrom. State v. Styles, 93 N.C. App. 596, 379 S.E.2d 255 (1989). The question for the court is whether there is substantial evidence of each essential element of thе crime charged, or of a lesser offense included therein, and that the defendant was the perpetrator of the offense. Richardson, supra. If so, the court must overrule the motion and submit the cаse to the jury. Id. “ ‘Substantial evidence’ is that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion . . . .” State v. Cox, 303 N.C. 75, 87, 277 S.E.2d 376, 384 (1981) (citations omitted).
In the present case, the evidence tended to show that defendant, accompanied by someone named “Mike,” went to the home of the alleged victim, Adaron Lofton, a sixty-one yeаr old partially paralyzed man, between 1:00 a.m. and 2:00 a.m. on 1 December 1993. Defendant knew Mr. Lofton and had some discussion with him about repairing an automobile. Defendant then went to the bаck of the house to use the bathroom and called for Mr. Lofton to come back there. When Mr. Lofton refused defendant’s request, defendant returned, grabbed Mr. Lofton and shoved him ontо the couch. Each time Mr. Lofton would try to get up, defendant would push him back down on the couch. Meanwhile, “Mike” unhooked Mr. Lofton’s stereo and left the house, followed by defendant.
This evidence, considered in the light most favorable to the State, is sufficient to give rise to a reasonable inference that defendant, act ing in concert with “Mike” and through forcible mеans, took Mr. Lofton’s property from his presence and without his consent. See State v. Jones, 303 N.C. 500, 279 S.E.2d 835 (1981) (evidence is sufficient to withstand a motion to dismiss and to take the case to the jury if it gives rise to a reasonаble inference of defendant’s guilt based on the circumstances). That Mr. Lofton testified on cross-examination he was not in fear of defendant is of no consequence; any incоnsistencies and contradictions in the evidence are to be disregarded and resolved in favor of the State for purposes of a motion to dismiss. Styles, supra. Accordingly, the trial court prоperly submitted the charge of common law robbery to the jury.
II.
Prior to his plea of guilty to the charge of being an habitual felon, defendant moved to dismiss the charge on the grounds,
inter alia,
that the сharge was contained as an additional count in the same bill of indictment in which he was charged with common law robbery, and was contrary to the provisions of G.S. § 14-7.3. His motion was denied and hе has assigned error. Having pleaded guilty to being an habitual felon, and not having moved in the trial court to withdraw his guilty plea, defendant is not entitled to an appeal of right from the trial cоurt’s ruling.
See
G.S. § 14-7.3 provides, in pertinent part:
An indictment which charges a person who is an habitual felon within the meaning of G.S. 14-7.1 with the commission of any felony under the laws of the State of North Carolina must, in order to sustain a conviction of habitual felon, also charge that said person is an habitual felon. The indictment charging the defendant as an habitual felon shall be separate from the indictment charging him with the principal felony ....
The statute contains “obvious internal inconsistencies.” State v. Smith, 112 N.C. App. 512, 515, 436 S.E.2d 160, 161 (1993). In State v. Hodge, 112 N.C. App. 462, 436 S.E.2d 251 (1993), the defendant challenged the habitual felon indictment on the grounds that it was a separate bill of indictment from that charging him with the underlying felony. We rejected his appeal, citing State v. Todd, 313 N.C. 110, 326 S.E.2d 249 (1985), and State v. Allen, 292 N.C. 431, 233 S.E.2d 585 (1977), in which our Supreme Court stated that an habitual felоn charge could be made by a separate bill of indictment.
Properly construed this act clearly contemplates that when one who has already attained the status of аn habitual felon is indicted for the commission of another felony, that person may then be also indicted in a separate bill as being an habitual felon.
Allen, 292 N.C. at 433, 233 S.E.2d at 587 (emphasis added). In Smith, supra, defendant claimed that the indictment charging him with being an habitual felon was violative of the statute becаuse it was not separate from the indictment charging him with the underlying felony. Our examination of the record disclosed, however, that the charges were in fact contained in separаte bills of indictment, though they bore the same administrative file number, distinguished only by the use of the designations (A) and (B), and we rejected his appeal. Contrary to defendant’s assertion in his brief, our decisions in Hodge and Smith were entirely consistent with each other and with the statutory construction stated in Allen, supra.
The present case, however, presents a different issue. Unlike Hodge and Smith, defendant was charged with the undеrlying felony, common law robbery, and with being an habitual felon, in separate counts of the same bill, of indictment rather than in separate bills of indictment. Defendant argues that this procedure violates both G.S. § 14-7.3 and the rule set forth in Allen. We disagree.
G.S. § 14-7.3 provides that the indictment charging a defendant with habitual felon status “shall be separate from” the indictment for the principal felony. Contrary to defendant’s argument, however, the statute does not require that it be contained in a separate bill of indictment. “Separate” is defined by Black’s Law Dictionary, Sixth Edition (1990), as “individual; distinct; pаrticular; disconnected,” and by Webster’s New Collegiate Dictionary (1977), as “set or kept apart.” Thus, we interpret the statute as requiring merely that the indictment charging a defendant with habitual felon status be distinct, or set apart, from the charge of the underlying felony. The reason for such requirement is obvious, so that the underlying felony may be presented to the jury without the risk of prejudice to the defendant which would most certainly result from mention of defendant’s having attained the alleged status as an habitual felon as a result of previous convictions.
Moreover, while the Supreme Court stated in Allen, supra, that the habitual felon charge may be contаined in a bill of indictment separate from the bill of indictment alleging the underlying felony, the Court did not state that the two charges must be charged in separate bills of indictment. The Court described the proceeding contemplated by the Habitual Felon Act, G.S. § 14-7.1 et seq., as requiring “the indictment or information charging the defendant to be separated into two parts, the first alleging the present, or substantive crime, and the second alleging defendant’s recidivist status.” Allen, 292 N.C. at 434, 233 S.E.2d at 587 (emphasis added).
In our view, then, it makes no difference whether defendant is charged with the underlying felony and with habitual felon status in separate bills of indictment, or in separate counts of the same bill of indictment. Either method accomplishes the purpose of an indictment, i.e., to notify the defendant of the charges against him so that he may prepаre his defense, and to enable the court to pronounce judgment in the event he is convicted. State v. Russell, 282 N.C. 240, 192 S.E.2d 294 (1972). Either method also enables the trial court to proceed as prescribed by G.S. § 14-7.5, i.e., that the defendant is tried first for the principal felony without it being revealed to the jury that he is also charged with having attained habitual felon status, and, if he is convicted of the underlying prinсipal felony, that the ancillary habitual felon charge may then proceed to trial before the same jury.
Defendant also asks that we review the denial of his motion to dismiss the habitual felon charge on constitutional grounds. His con stitutional arguments have been considered and decided adversely to him by our Supreme Court in Todd, supra; see also Smith, supra; Hodge, supra.
Finally, defendant’s arguments with respect to the failure of the habitual felon indictment to adequately allege “the name of the state or other sovereign against whom said [prior] felony offenses were committed ...” have been considered by this Court on virtually identical facts and found to be without merit. See Hodge, supra. Accоrdingly, we hold the trial court correctly denied defendant’s motion to dismiss the habitual felon charge contained in the second count of the bill of indictment in this case.
Defendant received a fair trial, free from prejudicial error.
No error.
Judges WALKER and McGEE concur.