{ "id": 9496411, "name": "STATE OF NORTH CAROLINA v. JAMES ALLEN SMITH", "name_abbreviation": "State v. Smith", "decision_date": "2000-08-01", "docket_number": "No. COA99-573", "first_page": "209", "last_page": "222", "citations": [ { "type": "official", "cite": "139 N.C. App. 209" } ], "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": "476 S.E.2d 128", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "344 N.C. 441", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867651, 867654, 867697, 867640, 867551 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/344/0441-03", "/nc/344/0441-04", "/nc/344/0441-05", "/nc/344/0441-02", "/nc/344/0441-01" ] }, { "cite": "472 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "123 N.C. App. 156", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11912347 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc-app/123/0156-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-7.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "parenthetical": "conviction used to establish status as habitual felon may not be used to determine prior record level" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 15-1340.14", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(c)(4)" } ], "opinion_index": 0 }, { "cite": "204 S.E.2d 817", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "829" } ], "opinion_index": 0 }, { "cite": "285 N.C. 256", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563941 ], "year": 1974, "pin_cites": [ { "page": "273" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0256-01" ] }, { "cite": "484 S.E.2d 835", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "838", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 262", "category": "reporters:state", "reporter": "N.C. 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Ed.", "year": 1948, "opinion_index": 1 }, { "cite": "334 U.S. 728", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6159137 ], "year": 1948, "opinion_index": 1, "case_paths": [ "/us/334/0728-01" ] }, { "cite": "385 U.S. 554", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11341302 ], "weight": 2, "year": 1967, "opinion_index": 1, "case_paths": [ "/us/385/0554-01" ] }, { "cite": "445 U.S. 263", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1777320 ], "weight": 2, "year": 1980, "opinion_index": 1, "case_paths": [ "/us/445/0263-01" ] }, { "cite": "462 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 1 }, { "cite": "341 N.C. 653", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793121, 793060, 793106, 793175, 793112 ], "year": 1995, "opinion_index": 1, "case_paths": [ "/nc/341/0653-03", "/nc/341/0653-02", "/nc/341/0653-05", "/nc/341/0653-01", "/nc/341/0653-04" ] }, { "cite": "453 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "194" } ], "opinion_index": 1 }, { "cite": "117 N.C. 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Stat.", "year": 1996, "opinion_index": 1 }, { "cite": "326 S.E.2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 1 }, { "cite": "313 N.C. 110", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4721300 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "117" } ], "opinion_index": 1, "case_paths": [ "/nc/313/0110-01" ] }, { "cite": "449 S.E.2d 751", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 1 }, { "cite": "337 N.C. 805", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2550182, 2549415, 2549431, 2549882, 2549179 ], "year": 1994, "opinion_index": 1, "case_paths": [ "/nc/337/0805-05", "/nc/337/0805-04", "/nc/337/0805-02", "/nc/337/0805-01", "/nc/337/0805-03" ] }, { "cite": "445 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 1 }, { "cite": "115 N.C. App. 547", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12135816 ], "year": 1994, "opinion_index": 1, "case_paths": [ "/nc-app/115/0547-01" ] } ], "analysis": { "cardinality": 1010, "char_count": 30929, "ocr_confidence": 0.768, "pagerank": { "raw": 6.913890036475972e-07, "percentile": 0.9649344421238458 }, "sha256": "11b47fe3f382b69db39ffd9d47b4d38b27fb47036cf1f18ebb4bc98d4871660a", "simhash": "1:656bc20ae62a8f50", "word_count": 4972 }, "last_updated": "2023-07-14T19:40:43.899160+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge HUNTER concurs.", "Judge WYNN concurs in a separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. JAMES ALLEN SMITH" ], "opinions": [ { "text": "MARTIN, Judge.\nDefendant appeals from judgments entered upon his convictions of two counts of habitual misdemeanor assault, and being an habitual felon. The evidence presented at trial tended to show that on 15 May 1998 defendant beat Karen Conard with his fists while Conard was on the ground outside the home of her neighbor, Susan Philipsheck. Conard\u2019s daughter, Kieyoundra McDowell, was standing behind defendant and pulling on his shirt while defendant was beating Conard and defendant then turned and hit McDowell.\nConard sought safety in the Philipsheck\u2019s house, where she was protected until defendant broke into the Philipsheck\u2019s home by kicking in the front door. Law enforcement officers arrived shortly thereafter; defendant surrendered and was arrested.\nDefendant challenges his convictions of habitual misdemeanor assault and being an habitual felon and the sentences imposed upon those convictions by numerous assignments of error. We have carefully considered his arguments and find no error.\nI.\nDefendant first contends the trial court erred by sentencing him as an habitual felon under G.S. \u00a7 14-7.1 in cases 98 CRS 3061 and 3062, in which he was convicted of habitual misdemeanor assault. Defendant argues (1) the recently enacted habitual misdemeanor assault statute, G.S. \u00a7 14-33.2, does not constitute a substantive offense but merely confers a status onto defendant, (2) two of his past convictions could not be used to support the convictions under G.S. \u00a7 14-33.2 because they occurred prior to the enactment of that statute and to permit their use would violate the ex post facto prohibition contained in both the United States Constitution and the Constitution of North Carolina.\nDefendant first argues the habitual misdemeanor assault statute merely confers a status upon a defendant for the purpose of enhancing punishment and does not constitute a substantive offense. Therefore, defendant argues, a conviction of habitual misdemeanor assault may not be used as one of the three felonies required to support an habitual felon conviction. A close analysis of the precise wording of the habitual offender statutes in North Carolina reveals the intent of the Legislature that habitual misdemeanor assault be a substantive offense rather than merely a status for purposes of sentence enhancement.\nG.S. \u00a7 14-33.2, the habitual misdemeanor assault statute, provides in pertinent part:\nA person commits the offense of habitual misdemeanor assault if that person violates any of the provisions of G.S. 14-33(c) or G.S. 14-34 and has been convicted of five or more prior misdemeanor convictions, two of which were assaults. A person convicted of violating this section is guilty of a Class H felony (emphasis added).\nThe language of this statute is very similar to that used in G.S. \u00a7 20-138.5, the habitual impaired driving statute, which provides in pertinent part:\n(a) A person commits the offense of habitual impaired driving if he drives while impaired as defined in G.S. 20-138.1 and has been convicted of three or more offenses involving impaired driving as defined in G.S. 20-4.01(24a) within seven years of the date of this offense (emphasis added).\n(b) A person convicted of violating this section shall be punished as a Class F felon ....\nIn contrast, G.S. \u00a7 14-7.1, the habitual felony statute, reads:\nAny person who has been convicted of or pled guilty to three felony offenses in any federal court or state court in the United States or combination thereof is declared to be an habitual felon (emphasis added).\nBoth the habitual misdemeanor assault statute and the habitual impaired driving statute declare that a person \u201ccommits the offense\u201d if that person currently commits specified acts and has been convicted of a specified number of similar offenses in the past. The habitual felon statute, by contrast, provides only that a person is an habitual felon if he has been convicted of three felonies. G.S. \u00a7 14-33.2 and G.S. \u00a7 20-138.5 both describe the habitual conduct as an \u201coffense,\u201d denoting that it is a substantive offense, while G.S. \u00a7 14-7.1 employs the phrase \u201cdeclared to be\u201d immediately before \u201chabitual felon,\u201d denoting a status, rather than an offense. There is no reference in the habitual felon statute to any current behavior, thus imposing a status on defendant that would have consequences during the penalty phase of subsequent convictions. See generally State v. Penland, 89 N.C. App. 350, 365 S.E.2d 721 (1988).\nIn State v. Priddy, 115 N.C. App. 547, 445 S.E.2d 610, disc. review denied, 337 N.C. 805, 449 S.E.2d 751 (1994), we relied heavily on the Legislature\u2019s use of distinctive language in determining that the Legislature intended the habitual impaired driving statute to affect more than a defendant\u2019s status at a sentencing hearing.\nBecause G.S. \u00a7 14-7.1 simply defines certain persons to be habitual felons, who, as such, are subject to greater punishment for criminal offenses, our Supreme Court has held that being an habitual felon is not a crime and cannot support, standing alone, a criminal sentence. Rather, being an habitual felon is a status justifying an increased punishment for the principal felony. State v. Allen, 292 N.C. 431, 233 S.E.2d 585 (1977).\nBy contrast, the legislature chose the specific language to define the crime of habitual impaired driving as a separate felony offense, capable of supporting a criminal sentence. Thus, the legislature must not have intended to make habitual impaired driving solely a punishment enhancement status.\nId. at 549, 445 S.E.2d at 612. We find the reasoning articulated in Priddy equally applicable to the habitual misdemeanor assault statute, G.S. \u00a7 14-33.2. Thus, we hold the habitual misdemeanor statute to be a substantive offense.\nEven so, defendant argues that he was improperly convicted of habitual misdemeanor assault because some of the misdemeanors used to support the conviction occurred prior to the effective date of the statute. Defendant argues that to allow convictions prior to the effective date of G.S. \u00a7 14-33.2 to satisfy elements of the habitual misdemeanor assault charge violates the prohibition against ex post facto laws in both the United States Constitution, Art. I \u00a7 10, cl. 1, and the North Carolina Constitution, Art. I \u00a7 16, by increasing the penalty for these crimes after the offenses were committed. We disagree.\nNoting the increased danger that a repeat offender poses to society, our Supreme Court has held that the habitual felon statute does not violate the prohibition against ex post facto laws because it does not punish defendant for his previous conduct, but rather for his current conduct to a greater degree, due to his previous similar offenses. See State v. Todd, 313 N.C. 110, 326 S.E.2d 249 (1985). Likewise, in State v. Mason, 126 N.C. App. 318, 488 S.E.2d 818 (1997), we determined that the violent habitual felon statute, G.S. \u00a7 14-7.7, withstood the same constitutional scrutiny. As the habitual misdemeanor assault statute similarly does not impose punishment for previous crimes, but imposes an enhanced punishment for behavior occurring after the enactment of the statute, because of the repetitive nature of such behavior, we hold the habitual misdemeanor assault statute does not violate the prohibition on ex post facto laws.\nII.\nNext, defendant argues that he received ineffective assistance from his counsel during trial because his counsel failed to object to a question, elicited incriminating evidence from the victim on cross-examination, and failed to submit a proposed jury instruction in written form.\nTo establish ineffective assistance of counsel, \u201cdefendant must show that: (1) the counsel\u2019s performance fell below an objective standard of reasonableness as defined by professional norms and (2) the error committed was so serious that a reasonable probability exists that the trial result would have been different absent the error.\u201d State v. Pretty, 134 N.C. App. 379, 387, 517 S.E.2d 677, 683, disc. review denied, 351 N.C. 117, -S.E.2d- (1999). Defendant first argues his trial counsel\u2019s failure to object to an allegedly improper question posed by the prosecutor during the direct examination of the victim, combined with trial counsel\u2019s cross-examination of the victim, allowed the admission of evidence without which the State could not have obtained the conviction. Defendant bases this argument \u2022 on the assertion that prior to the prosecutor\u2019s allegedly improper question and the cross-examination by trial counsel, the incriminating evidence had yet to be adduced. However, a close inspection of the trial transcript reveals that the incriminating evidence in question had, in fact, been given earlier by the witness in response to the prosecutor\u2019s question: \u201cOkay, what happened then?\u201d Because the transcript does not substantiate defendant\u2019s arguments in support of these contentions, we reject them.\nDefendant further argues the result of his trial would have been different if his trial counsel had been prepared to submit a written request for a jury instruction on the issue of misdemeanor disorderly conduct. Defendant asserts that, had the requested instruction been given, the jury could have found defendant guilty of disorderly conduct instead of one or both counts of assault. We are not persuaded.\nDefense counsel requested an instruction on the issue of defendant\u2019s guilt or innocence of misdemeanor disorderly conduct. The State argued in opposition that disorderly conduct was not a lesser included offense for any charge defendant was facing. Although the trial court stated the motion was denied \u201cunless [defense counsel] has something prepared and written out,\u201d we cannot assume the trial court would have granted defendant\u2019s request had the instruction been properly presented as required by G.S. \u00a7 15A-1231. Disorderly conduct, a violation of G.S. \u00a7 14-288.4, is not a lesser included offense of any charge for which defendant was on trial. Therefore, even if defense counsel had submitted a written request for the instruction, it is unlikely that the request would have been granted or that a different result would have been reached. This assignment of error is overruled.\nIII.\nDefendant next assigns error to the trial court\u2019s failure to grant his motion to dismiss the charge of assault on a female against Kieyoundra McDowell. Defendant argues there was not substantial evidence to prove each element of the crime.\nTo survive a defendant\u2019s motion to dismiss a criminal charge, the State must offer substantial evidence of every essential element of the crime. State v. Gross, 345 N.C. 713, 483 S.E.2d 432 (1997). \u201cSubstantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.\u201d Id. at 717, 483 S.E.2d at 434 (citation omitted). In ruling upon a motion to dismiss, all the evidence is considered in the light most favorable to the State, and the motion must be denied if there is substantial evidence of each element of the crime charged and that defendant was the perpetrator. See State v. Jacobs, 128 N.C. App. 559, 495 S.E.2d 757, disc. review denied, 348 N.C. 506, 510 S.E.2d 665 (1998); State v. Allen, 127 N.C. App. 182, 488 S.E.2d 294 (1997). Under G.S. \u00a7 14-33(c)(2), one commits assault on a female if he \u201c[a]ssaults a female, he being a male person at least 18 years of age.\u201d\nMs. McDowell, who is a female, testified defendant, a male over age 18, \u201chit me across the chest_\u201d This evidence viewed in the light most favorable to the State presents substantial evidence from which a jury could determine whether defendant was guilty or not guilty of assault on a female. This assignment of error is overruled.\nIV.\nDefendant next assigns error to the trial court\u2019s decision to remove him from the courtroom during trial. Defendant further argues that the trial court erred in failing to give an appropriate instruction warning the jury not to consider defendant\u2019s removal in making their determination as to his guilt or innocence.\n\u201cA trial judge, after warning a defendant whose conduct is disrupting his trial, may order the defendant removed from the trial if he continues conduct which is so disruptive that the trial cannot proceed in an orderly manner.\u201d N.C. Gen. Stat. \u00a7 15A-1032(a) (1999). \u201cA defendant removed from the courtroom must be given the opportunity of learning of the trial proceedings through his counsel at reasonable intervals as directed by the court and must be given opportunity to return to the courtroom during the trial upon assurance of his good behavior.\u201d State v. Callahan, 93 N.C. App. 579, 583, 378 S.E.2d 812, 814, disc. review denied, 325 N.C. 274, 384 S.E.2d 521 (1989).\nDefendant made two outbursts during the State\u2019s presentation of evidence regarding the charge of habitual felon. After the first outburst, the trial court warned defendant not to speak out of turn again. After defendant again disrupted the trial and verbally abused persons in the courtroom, the trial court made the appropriate findings of fact and conclusions of law and ordered that defendant be removed from the courtroom. Defendant was allowed to return to the courtroom for his sentencing hearing the following Monday and his counsel was permitted to consult with him during the portion of the trial from which defendant was excluded. The trial court, however, failed to comply with the requirements of G.S. \u00a7 15A-1032(b)(2) which provides: \u201cIf the judge orders a defendant removed from the courtroom, he must... (2) [ijnstruct the jurors that the removal is not to be considered in weighing evidence or determining the issue of guilt.\u201d This omission was error.\nNot every error, however, warrants a new trial. See State v. Ginyard, 334 N.C. 155, 431 S.E.2d 11 (1993). An error is considered harmful when there is a reasonable probability that without the error a different result would have occurred. N.C. Gen. Stat. \u00a7 15A-1443(a). Defendant\u2019s outbursts occurred after the jury had already returned verdicts finding defendant guilty of injury to real property, communicating threats, and two counts of assault on a female. The only issue left for determination by the jury was defendant\u2019s guilt or innocence of having attained the status of an habitual felon. The evidence with respect to the issue consisted of proof, through three exhibits, that defendant had been previously convicted of second degree arson, assault with a deadly weapon inflicting serious injury, and habitual misdemeanor assault. The exhibits were comprised of transcripts of the pleas and judgments as to each of the offenses. Given the clear and undisputed nature of the evidence before the jury, it is difficult to imagine that defendant\u2019s outburst and subsequent removal had any effect on the determination of his guilt or innocence of being an habitual felon. Under these narrow circumstances, we do not find any reasonable probability that a different result would have been reached had the required instruction been given. Accordingly, this assignment of error is overruled.\nV.\nDefendant\u2019s next assignment of error, directed to the trial court\u2019s refusal to instruct the jury on disorderly conduct, is deemed abandoned for his failure to cite any reason or authority in support thereof. N.C.R. App. P. 28(b)(5). In any event, disorderly conduct is not a lesser included offense of any offense with which defendant was charged.\nVI.\nDefendant next assigns error to the trial court\u2019s refusal to allow him to show the jury a copy of G.S. \u00a7 14-33.2, including its effective date. Defendant contends that he should have been permitted to argue that because two of the offenses named in the indictment occurred prior to the enactment of the habitual misdemeanor assault statute, they should not have been considered in determining the issue of defendant\u2019s guilt on this charge.\nControl of jury arguments is within the trial court\u2019s discretion, State v. Parker, 350 N.C. 411, 516 S.E.2d 106 (1999), cert. denied, 528 U.S. 1084, 145 L.Ed.2d 681 (2000), and the decisions of the trial court \u201cwill not be disturbed \u2018in the absence of [a] gross abuse of discretion.\u2019 \u201d State v. Little, 126 N.C. App. 262, 268, 484 S.E.2d 835, 838 (1997) (citations omitted). G.S. \u00a7 7A-97 states in pertinent part that \u201c[i]n jury trials the whole case as well of law as of fact may be argued to the jury.\u201d The statute is permissive in allowing the law to be argued to juries, but presents no mandatory requirement that, upon request by defendant, he be allowed to argue his version of the law. The permissive nature of G.S. \u00a7 7A-97 comports with the wide discretion that trial courts have in controlling the arguments presented by counsel. See generally Parker, supra; Little, supra.\nMoreover, the argument defendant wished to make regarding G.S. \u00a7 14-33.2 was both incorrect and unrelated to the issues before the jury at that time.\nCounsel may, in his argument to the jury, . . ., read or state to the jury a statute or other rule of law relevant to such case, .... He may not, however, state the law incorrectly .... Nor may counsel argue to the jury that the law ought to be otherwise, . . . and, therefore, the jury should find the defendant not guilty of the offense charged but should find him guilty of a lesser offense or acquit him entirely.\nState v. Britt, 285 N.C. 256, 273, 204 S.E.2d 817, 829 (1974). As explained above, the use of offenses occurring before the effective date of G.S. \u00a7 14-33.2 to satisfy its elements is neither improper nor unconstitutional. Therefore, the trial court properly exercised its discretion in thus limiting defendant\u2019s argument to the jury and this assignment of error is overruled.\nVII.\nFinally, defendant assigns error to the sentencing proceeding. The trial court determined defendant\u2019s prior record level to be level TV, based upon its finding that he had ten prior record points. The point range for level IV is nine to fourteen points. N.C. Gen. Stat. \u00a7 15-1340.14(c)(4). Defendant takes issue with two of the ten points found by the trial court and contends the trial court should have determined his prior record points to be eight and, therefore, his prior record level to be level III.\nWith respect to one of the prior record points, defendant contends a 16 May 1994 conviction of assault on a female was used to support his convictions of habitual misdemeanor assault and could not, therefore, also be used to establish his prior record level. See N.C. Gen. Stat. \u00a7 14-7.6 (conviction used to establish status as habitual felon may not be used to determine prior record level); State v. Misenheimer, 123 N.C. App. 156, 472 S.E.2d 191, disc. review denied, 344 N.C. 441, 476 S.E.2d 128 (1996). However, a close examination of the record reveals there was evidence that defendant was convicted of two separate offenses of assault on a female on 16 May 1994; one of these convictions was used to establish defendant\u2019s guilt of habitual misdemeanor assault under G.S. \u00a7 14-33.2, and the other conviction was applied as a point on his prior record level.\nAs to the other prior record point contested by defendant, he contends there was insufficient evidence to show that he was on probation when he committed the current offenses, and that the prior record point assessed by reason thereof was error. Our review of the evidence reveals no proof with respect to defendant\u2019s probationary status at the time of the offenses in the present cases, thus we must agree that the point was erroneously assessed. However, because defendant was correctly found to have nine prior record points, the erroneous finding of a tenth point based on his probationary status was harmless and defendant was correctly determined to have a prior record level of IV.\nWe have considered and find no merit in defendant\u2019s argument that the trial court\u2019s remarks after the verdict showed an incapacity to accord defendant an impartial sentencing hearing; we find no abuse of discretion in the imposition of consecutive sentences. Defendant\u2019s assignments of error with respect to his sentencing proceeding are overruled.\nDefendant\u2019s remaining assignments of error, which were not argued in his brief, are deemed abandoned. N.C.R. App. P. 28(a), 28(b)(5).\nNo error.\nJudge HUNTER concurs.\nJudge WYNN concurs in a separate opinion.", "type": "majority", "author": "MARTIN, Judge." }, { "text": "Judge Wynn\nconcurring.\nI join in the majority opinion and concur that the habitual misdemeanor assault statute creates a substantive felony offense. This conclusion is based upon similarities between the habitual misdemeanor assault statute and the habitual impaired driving statute, and upon this court\u2019s holding in State v. Priddy that the habitual impaired driving statute creates a substantive felony offense as opposed to a status offense. State v. Priddy, 115 N.C. App. 547, 445 S.E.2d 610, disc. review denied, 337 N.C. 805, 449 S.E.2d 751 (1994).\nThe habitual misdemeanor assault statute and the habitual impaired driving statute are unusual in nature in that they both purport to create a substantive recidivist felony out of conduct which would otherwise constitute a misdemeanor. For that reason, I find it prudent to take the analysis a step further to address whether a conviction under N.C. Gen. Stat. \u00a7 14-33.2 (1996) for habitual misdemeanor assault will properly serve to support an ancillary indictment under the Habitual Felons Act, N.C. Gen. Stat. \u00a7\u00a7 14-7.1 et seq. (1993), to adjudge the defendant an habitual felon. As to the habitual impaired driving statute, this court has previously addressed this question in State v. Baldwin, 117 N.C. App. 713, 453 S.E.2d 193, cert. denied, 341 N.C. 653, 462 S.E.2d 518 (1995), in which we held that \u201ca conviction for [habitual impaired driving] may serve as the basis for enhancement to habitual felon status.\u201d Id. at 716, 453 S.E.2d at 194. Analogizing the habitual misdemeanor assault statute and the habitual impaired driving statute again allows a similar conclusion that a conviction under N.C.G.S. \u00a7 14-33.2 will indeed support an ancillary indictment under the Habitual Felons Act to adjudge the defendant an habitual felon.\nHowever, neither this court nor our Supreme Court has directly addressed the constitutionality of either the habitual misdemeanor assault statute or the habitual impaired driving statute. In concluding that the habitual misdemeanor assault statute survives constitutional scrutiny, the majority relies upon our Supreme Court\u2019s determination of the constitutionality of the Habitual Felons Act in State v. Todd, 313 N.C. 110, 326 S.E.2d 249 (1985). While I believe that this analysis and outcome is proper given the current state of our case law, I am concerned that we may be, in a sense, comparing apples \u00e1nd oranges.\nIn Todd, our Supreme Court held that the Habitual Felons Act comports with constitutional guarantees of due process and equal protection. 313 N.C. at 117, 362 S.E.2d at 253 (citing Rummell v. Estelle, 445 U.S. 263, 63 L. Ed. 2d 382 (1980); Spencer v. Texas, 385 U.S. 554, 17 L. Ed. 2d 606 (1967)). In addition, the United States Supreme Court has long upheld such statutes in the face of challenges that they violate constitutional prohibitions against double jeopardy and ex post facto laws, reasoning that the defendant is being prosecuted for the present crime charged (rather than being punished again for the prior crimes), and that the punishment upon conviction for the present crime may be enhanced based on the previous convictions. See, e.g., Gryger v. Burke, 334 U.S. 728, 92 L. Ed. 1683 (1948).\nOur reliance on such logic to establish the constitutionality of the habitual misdemeanor assault statute is troublesome given our efforts in the majority opinion to establish the following important distinction: That the Habitual Felons Act creates a status offense (which will not independently support a criminal sentence) and the habitual misdemeanor assault statute creates a substantive offense (which will). With respect to the Habitual Felons Act, the defendant\u2019s prior convictions must be proven by the state in the sentencing phase, but arguably are not true elements of the offense (given that they are relevant only to the sentencing for the underlying principal felony). With respect to the habitual misdemeanor assault statute, however, the defendant\u2019s prior convictions are, by statute, essential elements of the substantive offense, which offense will independently support a criminal sentence. The question arises whether the habitual misdemeanor assault statute, which is dependent on elements consisting of prior convictions, is constitutional given this distinction. The same question may be asked of the habitual impaired driving statute. Since our Supreme Court has never directly addressed this issue, perhaps this case will present an opportunity for it to do so.", "type": "concurrence", "author": "Judge Wynn" } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Donald W. Lat\u00f3n, for the State.", "Phillip T. Jackson for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES ALLEN SMITH\nNo. COA99-573\n(Filed 1 August 2000)\n1. Sentencing\u2014 habitual felon \u2014 habitual misdemeanor assault \u2014 substantive offense\nThe trial court did not err by sentencing defendant as an habitual felon under N.C.G.S. \u00a7 14-7.1 in cases 98 CRS 3061 and 3062 in which defendant was convicted of two counts of habitual misdemeanor assault under N.C.G.S. \u00a7 14-33.2, because habitual misdemeanor assault is a substantive offense rather than merely a status for purposes of sentence enhancement, and therefore, can be used as one of the three felonies required to support an habitual felon conviction.\n2. Assault\u2014 habitual misdemeanor \u2014 no ex post facto violation\nThe trial court did not violate the prohibition against ex post facto laws by convicting defendant of habitual misdemeanor assault under N.C.G.S. \u00a7 14-33.2 even though some of the misdemeanors used to support the conviction occurred prior to the effective date of the statute, because the habitual misdemeanor assault statute does not impose punishment for previous crimes, but imposes an enhanced punishment for behavior occurring after the enactment of the statute based on the repetitive nature of such behavior.\n3. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to object to alleged improper question \u2014 evidence already adduced\nAlthough defendant argues he received ineffective assistance of counsel based on his trial counsel\u2019s failure to object to an allegedly improper question posed by the prosecutor during the direct examination of the victim allowing the admission of evidence without which the State could not have obtained the convictions for habitual misdemeanor assault, a review of the transcript reveals that the incriminating evidence had in fact been given earlier by the witness.\n4. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to request jury instruction on disorderly conduct\n\u2022 Defendant did not receive ineffective assistance of counsel in an habitual misdemeanor assault case based on his trial counsel\u2019s failure to submit a written request for a jury instruction as required by N.C.G.S. \u00a7 15A-1231 on the issue of misdemeanor disorderly conduct under N.C.G.S. \u00a7 14-288.4, because: (1) disorderly conduct is not a lesser included offense of any charge for which defendant was on trial; and (2) even if defense counsel submitted a written request for the instruction, it is unlikely the request would have been granted or that a different result would have been reached.\n5. Assault\u2014 on a female \u2014 motion to dismiss\nThe trial court did not err by failing to grant defendant\u2019s motion to dismiss the charge of assault on a female under N.C.G.S. \u00a7 14-33(c)(2), because the evidence viewed in the light most favorable to the State reveals that there was substantial evidence from which a jury could determine defendant\u2019s guilt or innocence based on the alleged victim\u2019s testimony that defendant hit the victim across the chest.\n6. Criminal Law\u2014 defendant\u2019s removal from courtroom \u2014 failure to instruct \u2014 harmless error\nAlthough the trial court erred by failing to instruct the jurors according to N.C.G.S. \u00a7 15A-1032(b)(2) that defendant\u2019s removal from the courtroom during trial was not to be considered in weighing evidence or determining the issue of guilt, there was no reasonable probability that a different result would have been reached had the required instruction been given based on the facts that: (1) defendant\u2019s outbursts occurred after the jury had already returned verdicts finding defendant guilty of injury to property, communicating threats, and two counts of assault on a female; (2) the only issue left for determination by the jury was defendant\u2019s guilt or innocence of having attained the status of an habitual felon; and (3) the evidence with respect to the remaining issue was clear and undisputed.\n7. Appeal and Error\u2014 preservation of issues \u2014 failure to cite authority\nAlthough defendant contends the trial court erred by refusing to instruct the jury on disorderly conduct, this argument is deemed abandoned based on defendant\u2019s failure to cite any reason or authority as required by N.C. R. App. P. 28(b)(5).\n8. Criminal Law\u2014 defendant\u2019s argument \u2014 request to show statute to jury \u2014 incorrect statement of law\nThe trial court did not abuse its discretion under N.C.G.S. \u00a7 7A-97 by refusing to allow defendant to show the jury a copy of the habitual misdemeanor assault statute under N.C.G.S. \u00a7 14-33.2 and its effective date, in an attempt to argue that two of the offenses named in the indictment occurred prior to the enactment of the habitual misdemeanor assault statute and could not be considered in determining defendant\u2019s guilt, because: (1) the argument defendant wanted to make regarding N.C.G.S. \u00a7 14-33.2 was both incorrect and unrelated to the issues before the jury at that time; and (2) the use of offenses occurring before the effective date of N.C.G.S. \u00a7 14-33.2 to satisfy its elements is neither improper nor unconstitutional.\n9. Sentencing\u2014 prior record level\nThe trial court did not err during a sentencing proceeding by determining that defendant\u2019s prior record level is level IV under N.C.G.S. \u00a7 15-1340.14(c)(4), because: (1) defendant was convicted of two separate offenses of assault on a female on 16 May 1994, and one of these convictions was used to establish defendant\u2019s guilt of habitual misdemeanor assault under N.C.G.S. \u00a7 14-33.2 while the other was applied as a point on his prior record level; and (2) even though there was insufficient evidence to show that defendant was on probation while he committed the current offenses and a prior record point was erroneously assessed, the error was harmless based on the fact that defendant already had nine prior record points.\nJudge Wynn concurring.\nAppeal by defendant from judgments entered 5 October 1998 by Judge Zoro J. Guice, Jr., in Henderson County Superior Court. Heard in the Court of Appeals 24 February 2000.\nAttorney General Michael F. Easley, by Assistant Attorney General Donald W. Lat\u00f3n, for the State.\nPhillip T. Jackson for defendant-appellant." }, "file_name": "0209-01", "first_page_order": 241, "last_page_order": 254 }