Volume 141 — North Carolina Court of Appeals Reports

<bold>Discovery — child abuse — social services records</bold> <block_quote> There was prejudicial error in a prosecution for first-degree sexual offense and indecent liberties where defendant was denied access to social services records concerning prior allegations of abuse. Upon review of the sealed records, the Court of Appeals determined that defendant was denied evidence favorable to him which could have been used to impeach the credibility of key witnesses for the State; that the evidence was material because there is a reasonable probability that the result would have been different had the records been disclosed; and that there was prejudice because a defendant charged with sexual abuse of a minor has a constitutional right to have the records of the child abuse agency pertaining to the prosecuting witness reviewed, with disclosure of favorable and material evidence, and the State here did not argue that the error was harmless and thus failed to meet its burden of showing that the constitutional error was harmless beyond a reasonable doubt.</block_quote>

<bold>1. Homicide — attempted murder and assault — intent to kill — sufficiency</bold> <bold>of evidence</bold> <block_quote> There was sufficient evidence to deny defendant's motion to dismiss charges of attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury where defendant contended that there was insufficient evidence of intent to kill but the evidence was that defendant and the victim had been involved in an altercation only an hour or two earlier in which the victim had hit defendant in the face; defendant pulled up next to the victim, got out of the car, and pointed a gun at the victim; defendant used a gun to assault the victim; he fired and missed, paused, and then fired again; his second shot hit the victim; he was only a few feet from the victim when he fired; and, even after the second shot, defendant continued to approach the victim with an angry look and only retreated at the urging of his aunt.</block_quote> <bold>2. Appeal and Error — assignment of error — multiple issues — violation</bold> <bold>of appellate rules</bold> <block_quote> Raising two separate issues in a single assignment of error violated N.C. R. App. P. 10(c)(1).</block_quote> <bold>3. Constitutional Law — double jeopardy — assault with intent to kill —</bold> <bold>attempted murder</bold> <block_quote> There was no double jeopardy in the imposition of separate sentences for attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury. The assault conviction requires proof of the use of a deadly weapon as well as proof of a serious injury, elements not required for attempted first-degree murder, and attempted first-degree murder requires premeditation and deliberation, which goes beyond an intent to kill.</block_quote> <bold>4. Criminal Law — defendant's argument — possible sentences — refusal to</bold> <bold>permit — no prejudice</bold> <block_quote> Although defense counsel in a prosecution for assault with a deadly weapon with intent to kill and attempted murder should have been allowed to advise the jury of possible sentences, the<page_number>Page 116</page_number> error did not have an impact on the jury's determination where jurors were presented with conflicting versions of events, in one of which defendant was simply not at the scene.</block_quote>

<bold>1. Kidnapping — purpose of terrorizing victim — sufficiency of evidence</bold> <block_quote> The trial court did not err by denying a kidnapping defendant's motion to dismiss for insufficient evidence where the indictment alleged that defendant had acted for the specific purpose of terrorizing the victim, so that the jury could convict on that issue only, and the evidence was that defendant called the victim twice and entered her home uninvited and unannounced despite her threats to call the police; defendant repeatedly punched the victim<page_number>Page 178</page_number> in the face, pointed a gun at her face, and demanded the gun she kept in her house; she complied with that demand, then fled, clad only in a tee shirt, to a neighbor's house; defendant pursued her there and entered the house, pointing a gun at the homeowner, who was a total stranger, and forcing him to lie on the floor; defendant pushed a table against the victim, choked her, and dragged her outside; defendant finally left after the victim implored him to do so; and the victim suffered multiple bumps on the head, bruises on her arms, and fractured ribs.</block_quote> <bold>2. Sentencing — firearm enhancement — underlying crimes — use of firearm</bold> <bold>not an essential element</bold> <block_quote> The trial court did not err by enhancing a second-degree kidnapping defendant's sentence based upon use of a firearm where defendant argued that use of the gun was necessary to the essential element of terrorizing the victim and that defendant was contemporaneously convicted of possession of a firearm by a convicted felon and assault by pointing a gun. Use of a firearm is not an essential element of second-degree kidnapping, regardless of the purpose alleged. As for the firearm-related convictions, all of the convictions were consolidated under the second-degree kidnapping conviction, for which defendant was sentenced.</block_quote> <bold>3. Criminal Law — motion for appropriate relief on appeal — proper</bold> <block_quote> A motion for appropriate relief was properly before the Court of Appeals where a kidnapping defendant asserted that a United States Supreme Court decision represented a significant change in the law applied in his sentencing and that retroactive application of the changed legal standard was required.</block_quote> <bold>4. Sentencing — firearm enhancement — underlying facts not alleged</bold> <block_quote> A kidnapping defendant's argument that the trial court was without jurisdiction to impose the 60-month firearm enhancement because the facts underlying the enhancement were not alleged in the indictment was without merit. Neither Apprendi v. New Jersey, <cross_reference>147 L.Ed.2d 435</cross_reference> (2000), nor any other United States Supreme Court case, nor any binding case law from other federal courts or North Carolina courts command such an outcome under either the United States or the North Carolina constitutions.</block_quote><page_number>Page 179</page_number> <bold>5. Sentencing — firearm enhancement — statute violates due process</bold> <block_quote> A kidnapping defendant's motion for appropriate relief in the Court of Appeals was granted insofar as it requested a determination that the firearm sentencing enhancement is facially unconstitutional. The statute removed from the jury the assessment of facts that increase the prescribed range of penalties to which the criminal defendant is exposed and is facially unconstitutional as violative of due process. N.C.G.S. § <cross_reference>15A-1340.16A</cross_reference></block_quote> <bold>6. Evidence — hearsay — excited utterance exception — statement by victim</bold> <bold>to officer at scene</bold> <block_quote> The trial court did not err in a kidnaping prosecution by allowing the State on three occasions to present an alleged hearsay statement by the victim where the statement was made by the victim to an officer when he first arrived on the scene, within several minutes of defendant dragging the victim from a house. She was crying and so terrified she was having difficulty breathing; her statement to the officer was properly admitted as an excited utterance.</block_quote> <bold>7. Evidence — victim's written statement — admitted as corroboration —</bold> <bold>read by officer</bold> <block_quote> The trial court did not err in a kidnapping prosecution by allowing into evidence a written statement from the victim where the statement was admitted for the limited purpose of corroborating the victim's testimony rather than as substantive evidence. Furthermore, it was not improper for the officer who took the statement to read a redacted version aloud; the declarant is not the only party entitled to read aloud a prior consistent statement that corroborates her in-court testimony.</block_quote> <bold>8. Evidence — prior bad act — extrinsic evidence</bold> <block_quote> There was no reversible or plain error in a kidnapping prosecution where the trial refused to allow defendant to introduce evidence that the victim had previously let the air out of the tires of defendant's vehicle. Defendant sought to elicit this testimony on direct examination from defendant's sister and did not question the victim concerning this incident during cross-examination.</block_quote><page_number>Page 180</page_number>