{ "id": 11916223, "name": "STATE OF NORTH CAROLINA v. ROBERT EDWARD YOUNG, Defendant", "name_abbreviation": "State v. Young", "decision_date": "1995-10-17", "docket_number": "No COA94-1317", "first_page": "456", "last_page": "462", "citations": [ { "type": "official", "cite": "120 N.C. App. 456" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "7 ALR5th 263", "category": "reporters:specialty", "reporter": "A.L.R. 5th", "opinion_index": -1 }, { "cite": "80 ALR2d 1196", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "75 S.E.2d 791", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "237 N.C. 675", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617610 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/237/0675-01" ] }, { "cite": "235 S.E.2d 871", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "33 N.C. App. 589", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551193 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/33/0589-01" ] }, { "cite": "192 S.E.2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 240", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564162 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0240-01" ] }, { "cite": "233 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1977, "pin_cites": [ { "page": "587", "parenthetical": "emphasis added" }, { "page": "587", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "292 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569971 ], "weight": 3, "year": 1977, "pin_cites": [ { "page": "433" }, { "page": "434" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0431-01" ] }, { "cite": "326 S.E.2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 110", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4721300 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0110-01" ] }, { "cite": "436 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "112 N.C. App. 462", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522071 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/112/0462-01" ] }, { "cite": "436 S.E.2d 160", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "161" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 512", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522347 ], "year": 1993, "pin_cites": [ { "page": "515" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0512-01" ] }, { "cite": "279 S.E.2d 835", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "parenthetical": "evidence is sufficient to withstand a motion to dismiss and to take the case to the jury if it gives rise to a reasonable inference of defendant's guilt based on the circumstances" } ], "opinion_index": 0 }, { "cite": "303 N.C. 500", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574086 ], "year": 1981, "pin_cites": [ { "parenthetical": "evidence is sufficient to withstand a motion to dismiss and to take the case to the jury if it gives rise to a reasonable inference of defendant's guilt based on the circumstances" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0500-01" ] }, { "cite": "277 S.E.2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "384", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "303 N.C. 75", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571418 ], "year": 1981, "pin_cites": [ { "page": "87", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0075-01" ] }, { "cite": "379 S.E.2d 255", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "93 N.C. App. 596", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528377 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/93/0596-01" ] }, { "cite": "302 S.E.2d 799", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "803" } ], "opinion_index": 0 }, { "cite": "308 N.C. 470", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4708015 ], "year": 1983, "pin_cites": [ { "page": "477" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0470-01" ] }, { "cite": "74 L.Ed.2d 622", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "459 U.S. 1056", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6487664, 6487779 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/459/1056-01", "/us/459/1056-02" ] }, { "cite": "292 S.E.2d 264", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "270" } ], "opinion_index": 0 }, { "cite": "305 N.C. 691", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573061 ], "year": 1982, "pin_cites": [ { "page": "700" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0691-01" ] } ], "analysis": { "cardinality": 650, "char_count": 13446, "ocr_confidence": 0.75, "pagerank": { "raw": 1.3800640710025508e-07, "percentile": 0.640333278117759 }, "sha256": "6bb1195556cd076624d697292be543bd172e30027467e56858b32d7ea478a0a4", "simhash": "1:1baa53a7847a3a5e", "word_count": 2242 }, "last_updated": "2023-07-14T16:17:04.771230+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and McGEE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ROBERT EDWARD YOUNG, Defendant" ], "opinions": [ { "text": "MARTIN, John C., Judge.\nI.\nDefendant first assigns error to the trial court\u2019s denial of his motion to dismiss the charge of common law robbery. Common law robbery is defined as the \u201cfelonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear.\u201d State v. Smith, 305 N.C. 691, 700, 292 S.E.2d 264, 270, cert. denied, 459 U.S. 1056, 74 L.Ed.2d 622 (1982). The use of violence or fear \u201cmust be such as to induce the victim to part with his or her property.\u201d State v. Richardson, 308 N.C. 470, 477, 302 S.E.2d 799, 803 (1983). Defendant contends that the State\u2019s evidence in the present case was insufficient to show that the alleged victim was placed in fear or that he was subjected to any \u201cviolence.\u201d\nIn ruling on a defendant\u2019s motion to dismiss criminal charges, the trial court is required to consider the evidence in the light most favorable to the State, allowing 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 the 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 case to the jury. Id. \u201c \u2018Substantial evidence\u2019 is that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion . . . .\u201d State v. Cox, 303 N.C. 75, 87, 277 S.E.2d 376, 384 (1981) (citations omitted).\nIn the present case, the evidence tended to show that defendant, accompanied by someone named \u201cMike,\u201d went to the home of the alleged victim, Adaron Lofton, a sixty-one year 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 back of the house to use the bathroom and called for Mr. Lofton to come back there. When Mr. Lofton refused defendant\u2019s request, defendant returned, grabbed Mr. Lofton and shoved him onto the couch. Each time Mr. Lofton would try to get up, defendant would push him back down on the couch. Meanwhile, \u201cMike\u201d unhooked Mr. Lofton\u2019s stereo and left the house, followed by defendant.\nThis evidence, considered in the light most favorable to the State, is sufficient to give rise to a reasonable inference that defendant, acting in concert with \u201cMike\u201d and through forcible means, took Mr. Lofton\u2019s 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 reasonable inference of defendant\u2019s guilt based on the circumstances). That Mr. Lofton testified on cross-examination he was not in fear of defendant is of no consequence; any inconsistencies 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 properly submitted the charge of common law robbery to the jury.\nII.\nPrior 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 charge 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. \u00a7 14-7.3. His motion was denied and he 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 court\u2019s ruling. See N.C. Gen. Stat. \u00a7 15A-1444(e) (1988). However, we treat the assignment of error as a petition for writ of certiorari and elect to grant review of the issue.\nG.S. \u00a7 14-7.3 provides, in pertinent part:\nAn 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 ....\nThe statute contains \u201cobvious internal inconsistencies.\u201d 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 felon charge could be made by a separate bill of indictment.\nProperly construed this act clearly contemplates that when one who has already attained the status of an 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.\nAllen, 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 because 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 separate 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\u2019s 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.\nThe present case, however, presents a different issue. Unlike Hodge and Smith, defendant was charged with the underlying 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. \u00a7 14-7.3 and the rule set forth in Allen. We disagree.\nG.S. \u00a7 14-7.3 provides that the indictment charging a defendant with habitual felon status \u201cshall be separate from\u201d the indictment for the principal felony. Contrary to defendant\u2019s argument, however, the statute does not require that it be contained in a separate bill of indictment. \u201cSeparate\u201d is defined by Black\u2019s Law Dictionary, Sixth Edition (1990), as \u201cindividual; distinct; particular; disconnected,\u201d and by Webster\u2019s New Collegiate Dictionary (1977), as \u201cset or kept apart.\u201d 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\u2019s having attained the alleged status as an habitual felon as a result of previous convictions.\nMoreover, while the Supreme Court stated in Allen, supra, that the habitual felon charge may be contained 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. \u00a7 14-7.1 et seq., as requiring \u201cthe 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\u2019s recidivist status.\u201d Allen, 292 N.C. at 434, 233 S.E.2d at 587 (emphasis added).\nIn 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 prepare 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. \u00a7 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 principal felony, that the ancillary habitual felon charge may then proceed to trial before the same jury.\nEven if we agreed with defendant that the indictment should have been dismissed because both charges were contained in a single bill of indictment, he has demonstrated no prejudice by reason thereof. The two counts of the bill of indictment were sufficient to give defendant notice of the charges against him so that he could prepare his defense, and to enable the court to pronounce judgment. See Russell, supra. The bill of indictment may not be read to the jury or to the prospective jurors, G.S. \u00a7 15A-1221(b), and there is no suggestion in this case that the jurors were apprised of the habitual felon charge at any time before or during defendant\u2019s trial for common law robbery. The burden is upon the defendant to show not only error, but also prejudice. State v. McLaurin, 33 N.C. App. 589, 235 S.E.2d 871 (1977). A bill of indictment will not be dismissed for minor defects which neither mislead the defendant nor affect the merits of the case. Russell, supra; State v. Brady, 237 N.C. 675, 75 S.E.2d 791 (1953).\nDefendant also asks that we review the denial of his motion to dismiss the habitual felon charge on constitutional grounds. His constitutional arguments have been considered and decided adversely to him by our Supreme Court in Todd, supra; see also Smith, supra; Hodge, supra.\nFinally, defendant\u2019s arguments with respect to the failure of the habitual felon indictment to adequately allege \u201cthe name of the state or other sovereign against whom said [prior] felony offenses were committed ...\u201d have been considered by this Court on virtually identical facts and found to be without merit. See Hodge, supra. Accordingly, we hold the trial court correctly denied defendant\u2019s motion to dismiss the habitual felon charge contained in the second count of the bill of indictment in this case.\nDefendant received a fair trial, free from prejudicial error.\nNo error.\nJudges WALKER and McGEE concur.", "type": "majority", "author": "MARTIN, John C., Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Special Deputy Attorney General Douglas A. Johnston, for the State.", "John T. Hall for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ROBERT EDWARD YOUNG, Defendant\nNo COA94-1317\n(Filed 17 October 1995)\n1. Robbery \u00a7 55 (NCI4th)\u2014 common law robbery \u2014 sufficiency of evidence\nThe trial court properly submitted the charge of common law robbery to the jury where it tended to show that defendant, acting in concert with another and through forcible means \u2014 shoving a partially paralyzed man back down on a couch every time he tried to stand up \u2014 took the victim\u2019s property from his presence and without his consent; the fact that the victim testified on cross-examination that he was not in fear of defendant was of no consequence, since any inconsistencies and contradictions in the evidence are to be disregarded and resolved in favor of the State for purposes of a motion to dismiss.\nAm Jur 2d, Robbery \u00a7\u00a7 24, 62 et seq.\n2. Criminal Law \u00a7 1283 (NCI4th)\u2014 habitual felon status\u2014 underlying felony \u2014 two charges in same indictment \u2014 separate counts \u2014 no error\nPursuant to N.C.G.S. \u00a7 14-7.3, 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, since either method is sufficient to notify defendant of the charges against him, to enable the court to pronounce judgment in the event defendant is convicted, and to allow defendant to be tried first for the principal felony without it being revealed to the jury that he is also charged with having attained habitual felon status.\nAm Jur 2d, Habitual Criminals and Subsequent Offenders \u00a7\u00a7 20, 21.\nForm and sufficiency of allegations as to time, place, or court of prior offenses or convictions, under habitual criminal act or statute enhancing punishment for repeated offenses. 80 ALR2d 1196.\nChronological or procedural sequence of former convictions as affecting enhancement of penalty under habitual offender statutes. 7 ALR5th 263.\nAppeal by defendant from judgment entered 1 March 1994 by Judge Narley L. Cashwell in Wake County Superior Court. Heard in the Court of Appeals 12 September 1995.\nDefendant was charged in Count I of the bill of indictment with common law robbery and in Count II with being an habitual felon as defined in G.S. \u00a7 14-7.1. A jury found defendant guilty of common law robbery; he subsequently pled guilty to being an habitual felon. He was sentenced as a Class C felon pursuant to G.S. \u00a7 14-7.6 and received a sentence of life imprisonment. Defendant appeals.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Douglas A. Johnston, for the State.\nJohn T. Hall for defendant-appellant." }, "file_name": "0456-01", "first_page_order": 490, "last_page_order": 496 }