{ "id": 9440617, "name": "STATE OF NORTH CAROLINA v. ERIC EARL GUICE", "name_abbreviation": "State v. Guice", "decision_date": "2000-12-29", "docket_number": "No. COA99-1261", "first_page": "177", "last_page": "202", "citations": [ { "type": "official", "cite": "141 N.C. App. 177" } ], "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": "147 L. Ed. 2d 435", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 9413911 ], "year": 2000, "opinion_index": -1, "case_paths": [ "/us/530/0466-01" ] }, { "cite": "511 U.S. 1008", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1147072, 1146881, 1146437, 1147653, 1147495, 1147336, 1146376, 1146968, 1147035, 1147352, 1146939, 1147452, 1147579, 1147614 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/us/511/1008-12", "/us/511/1008-07", "/us/511/1008-09", "/us/511/1008-06", "/us/511/1008-05", "/us/511/1008-04", "/us/511/1008-11", "/us/511/1008-03", "/us/511/1008-08", "/us/511/1008-13", "/us/511/1008-14", "/us/511/1008-10", "/us/511/1008-02", "/us/511/1008-01" ] }, { "cite": "490 U.S. 1100", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 604992, 605504, 604930, 605324, 605968, 605330, 605524, 605812, 605302, 605468, 605529, 605692, 605565, 604894, 604863 ], "year": 1989, "pin_cites": [ { "parenthetical": "the term \"law of the land\" in art. I, \u00a7 19 of the North Carolina Constitution is synonymous with \"due process of law\" as that term is used in the Fourteenth Amendment of the United States Constitution" } ], "opinion_index": 0, "case_paths": [ "/us/490/1100-15", "/us/490/1100-10", "/us/490/1100-01", "/us/490/1100-13", "/us/490/1100-05", "/us/490/1100-04", "/us/490/1100-06", "/us/490/1100-11", "/us/490/1100-03", "/us/490/1100-07", "/us/490/1100-08", "/us/490/1100-12", "/us/490/1100-09", "/us/490/1100-02", "/us/490/1100-14" ] }, { "cite": "513 S.E.2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "589", "parenthetical": "holding that federal circuit court decisions \"are not binding upon either the appellate or trial courts of this State\"" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 819", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240834 ], "year": 1999, "pin_cites": [ { "page": "820", "parenthetical": "holding that federal circuit court decisions \"are not binding upon either the appellate or trial courts of this State\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0819-01" ] }, { "cite": "522 S.E.2d 330", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "135 N.C. App. 781", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11243101 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc-app/135/0781-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-415.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "206-7" }, { "page": "207" } ], "opinion_index": 0 }, { "cite": "195 F.3d 205", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1738216 ], "year": 1999, "pin_cites": [ { "page": "206" } ], "opinion_index": 0, "case_paths": [ "/f3d/195/0205-01" ] }, { "cite": "18 U.S.C. \u00a7 922", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(g)(1)" } ], "opinion_index": 0 }, { "cite": "360 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "686" } ], "opinion_index": 0 }, { "cite": "320 N.C. 754", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4727239 ], "year": 1987, "pin_cites": [ { "page": "762" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0754-01" ] }, { "cite": "388 S.E.2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 155", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305404 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0155-01" ] }, { "cite": "508 S.E.2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "513", "parenthetical": "citing State v. Levan, 326 N.C. 155, 388 S.E.2d 429 (1990)" } ], "opinion_index": 0 }, { "cite": "349 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571580 ], "year": 1998, "pin_cites": [ { "page": "410", "parenthetical": "citing State v. Levan, 326 N.C. 155, 388 S.E.2d 429 (1990)" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0382-01" ] }, { "cite": "349 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "573" }, { "page": "573" } ], "opinion_index": 0 }, { "cite": "318 N.C. 457", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732391 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "469" }, { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0457-01" ] }, { "cite": "480 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "345 N.C. 389", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 54131 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0389-01" ] }, { "cite": "524 S.E.2d 332", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "340" } ], "opinion_index": 0 }, { "cite": "351 N.C. 192", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155594 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "204" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0192-01" ] }, { "cite": "520 S.E.2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "69" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 279", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240268 ], "year": 1999, "pin_cites": [ { "page": "287" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0279-01" ] }, { "cite": "525 S.E.2d 218", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "136 N.C. App. 634", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241294 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc-app/136/0634-01" ] }, { "cite": "337 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "841" } ], "opinion_index": 0 }, { "cite": "315 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715827 ], "year": 1985, "pin_cites": [ { "page": "86" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0076-01" ] }, { "cite": "488 S.E.2d 162", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "171", "parenthetical": "quoting State v. Smith, 315 N.C. 76, 86, 337 S.E.2d 833, 841 (1985)" } ], "opinion_index": 0 }, { "cite": "346 N.C. 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139473 ], "year": 1997, "pin_cites": [ { "page": "644", "parenthetical": "quoting State v. Smith, 315 N.C. 76, 86, 337 S.E.2d 833, 841 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0628-01" ] }, { "cite": "346 S.E.2d 638", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "644" } ], "opinion_index": 0 }, { "cite": "317 N.C. 590", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4772035 ], "year": 1986, "pin_cites": [ { "page": "598" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0590-01" ] }, { "cite": "459 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "340 N.C. 750", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790246 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/340/0750-01" ] }, { "cite": "393 S.E.2d 531", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "534" } ], "opinion_index": 0 }, { "cite": "327 N.C. 266", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2494547 ], "year": 1990, "pin_cites": [ { "page": "272" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0266-01" ] }, { "cite": "128 L. Ed. 2d 495", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "511 U.S. 1102", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1147201, 1147012, 1146585 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/us/511/1102-02", "/us/511/1102-03", "/us/511/1102-01" ] }, { "cite": "128 L. Ed. 2d 54", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "435 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 625", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531234, 2531972, 2532363, 2530606, 2529022 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0625-02", "/nc/334/0625-03", "/nc/334/0625-01", "/nc/334/0625-04", "/nc/334/0625-05" ] }, { "cite": "428 S.E.2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "224" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 491", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525843 ], "year": 1993, "pin_cites": [ { "page": "498" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0491-01" ] }, { "cite": "42 Pa. Cons. Stat. \u00a7 9756", "category": "laws:leg_statute", "reporter": "Pa. Cons. Stat.", "year": 1982, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "42 Pa. Cons. Stat. \u00a7 9712", "category": "laws:leg_statute", "reporter": "Pa. Cons. Stat.", "weight": 3, "year": 1982, "pin_cites": [ { "page": "81-82" } ], "opinion_index": 0 }, { "cite": "477 U.S. 79", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6203837 ], "weight": 7, "year": 1986, "pin_cites": [ { "page": "87" }, { "page": "77" }, { "page": "73" }, { "page": "88" }, { "page": "77" } ], "opinion_index": 0, "case_paths": [ "/us/477/0079-01" ] }, { "cite": "135 S.E.2d 659", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "661" } ], "opinion_index": 0 }, { "cite": "261 N.C. 645", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575129 ], "year": 1964, "pin_cites": [ { "page": "647" } ], "opinion_index": 0, "case_paths": [ "/nc/261/0645-01" ] }, { "cite": "95 L. Ed.2d 697", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6222105, 1148012 ], "weight": 13, "year": 1987, "pin_cites": [ { "page": "707" }, { "page": "707" }, { "page": "711" }, { "page": "747" }, { "page": "709" }, { "page": "748" }, { "page": "709" }, { "page": "752" }, { "page": "711-12" } ], "opinion_index": 0, "case_paths": [ "/us/481/0739-01", "/us/341/0001-01" ] }, { "cite": "481 U.S. 739", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6222105 ], "weight": 6, "year": 1987, "pin_cites": [ { "page": "745" }, { "page": "2100" }, { "page": "745" }, { "page": "2100" }, { "page": "751" } ], "opinion_index": 0, "case_paths": [ "/us/481/0739-01" ] }, { "cite": "528 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "343", "parenthetical": "upholding the constitutionality of North Carolina's short-form indictment despite a challenge in light of Jones" }, { "page": "343" } ], "opinion_index": 0 }, { "cite": "351 N.C. 481", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155877 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "508", "parenthetical": "upholding the constitutionality of North Carolina's short-form indictment despite a challenge in light of Jones" }, { "page": "508" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0481-01" ] }, { "cite": "523 U.S. 224", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11503479 ], "weight": 4, "year": 1998, "opinion_index": 0, "case_paths": [ "/us/523/0224-01" ] }, { "cite": "397 U.S. 358", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12054393 ], "weight": 3, "year": 1970, "opinion_index": 0, "case_paths": [ "/us/397/0358-01" ] }, { "cite": "391 U.S. 145", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767723 ], "weight": 3, "year": 1968, "opinion_index": 0, "case_paths": [ "/us/391/0145-01" ] }, { "cite": "515 U.S. 506", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1564227 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "510" }, { "page": "449" } ], "opinion_index": 0, "case_paths": [ "/us/515/0506-01" ] }, { "cite": "53 L. Ed. 2d 836", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1909, "pin_cites": [ { "page": "849" } ], "opinion_index": 0 }, { "cite": "213 U.S. 366", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8289641 ], "year": 1909, "pin_cites": [ { "page": "408" } ], "opinion_index": 0, "case_paths": [ "/us/213/0366-01" ] }, { "cite": "18 U.S.C. \u00a7 2119", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "245 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "37 N.C. App. 234", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551952 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/37/0234-01" ] }, { "cite": "211 S.E.2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "286 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566789 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/286/0366-01" ] }, { "cite": "329 S.E.2d 648", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "650", "parenthetical": "citing State v. Joyner, 286 N.C. 366, 211 S.E.2d 320 (1975)" }, { "page": "650" } ], "opinion_index": 0 }, { "cite": "313 N.C. 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718547 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "461", "parenthetical": "citing State v. Joyner, 286 N.C. 366, 211 S.E.2d 320 (1975)" }, { "page": "462" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0460-01" ] }, { "cite": "221 S.E.2d 307", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1976, "pin_cites": [ { "page": "311" }, { "page": "311" }, { "parenthetical": "citations omitted" }, { "page": "311" } ], "opinion_index": 0 }, { "cite": "289 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566779 ], "weight": 3, "year": 1976, "pin_cites": [ { "page": "101" }, { "page": "101" }, { "page": "101" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0095-01" ] }, { "cite": "143 S.E.2d 293", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1965, "pin_cites": [ { "page": "299" }, { "page": "299" }, { "page": "299", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "265 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574729 ], "weight": 3, "year": 1965, "pin_cites": [ { "page": "180" }, { "page": "180" }, { "page": "180" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0173-01" ] }, { "cite": "508 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1998, "pin_cites": [ { "page": "282" }, { "page": "282", "parenthetical": "citations omitted" }, { "page": "281-82" } ], "opinion_index": 0 }, { "cite": "349 N.C. 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571662 ], "weight": 4, "year": 1998, "pin_cites": [ { "page": "491" }, { "page": "491" }, { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0483-01" ] }, { "cite": "281 S.E.2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1981, "pin_cites": [ { "page": "767" }, { "page": "767", "parenthetical": "\"the touchstone of due process is the presence of fundamental fairness in any judicial proceeding adversely affecting the interests of an individual\"" } ], "opinion_index": 0 }, { "cite": "53 N.C. App. 649", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523110 ], "weight": 3, "year": 1981, "pin_cites": [ { "page": "650" }, { "page": "651" } ], "opinion_index": 0, "case_paths": [ "/nc-app/53/0649-01" ] }, { "cite": "493 S.E.2d 74", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "81" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 663", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11799643 ], "year": 1997, "pin_cites": [ { "page": "674-75" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0663-01" ] }, { "cite": "418 S.E.2d 705", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "709" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527061 ], "year": 1992, "pin_cites": [ { "page": "9" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0001-01" ] }, { "cite": "368 S.E.2d 595", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 396", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515756 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0396-01" ] }, { "cite": "354 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "353" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 93", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169625 ], "year": 1987, "pin_cites": [ { "page": "97" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0093-01" ] }, { "cite": "104 L. Ed. 2d 1007", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1989, "pin_cites": [ { "parenthetical": "the term \"law of the land\" in art. I, \u00a7 19 of the North Carolina Constitution is synonymous with \"due process of law\" as that term is used in the Fourteenth Amendment of the United States Constitution" } ], "opinion_index": 0 }, { "cite": "374 S.E.2d 866", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "the term \"law of the land\" in art. I, \u00a7 19 of the North Carolina Constitution is synonymous with \"due process of law\" as that term is used in the Fourteenth Amendment of the United States Constitution" } ], "opinion_index": 0 }, { "cite": "323 N.C. 703", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2565270 ], "year": 1989, "pin_cites": [ { "parenthetical": "the term \"law of the land\" in art. I, \u00a7 19 of the North Carolina Constitution is synonymous with \"due process of law\" as that term is used in the Fourteenth Amendment of the United States Constitution" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0703-01" ] }, { "cite": "368 S.E.2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "90 N.C. App. 161", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523142 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0161-01" ] }, { "cite": "290 S.E.2d 675", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 520", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571269 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0520-01" ] }, { "cite": "392 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "326 N.C. 486", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5308416, 5304771, 5309702, 5307243, 5304989 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/326/0486-04", "/nc/326/0486-03", "/nc/326/0486-01", "/nc/326/0486-05", "/nc/326/0486-02" ] }, { "cite": "386 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "444" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 533", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523434 ], "year": 1989, "pin_cites": [ { "page": "541" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0533-01" ] }, { "cite": "514 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "727" } ], "opinion_index": 0 }, { "cite": "350 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132119 ], "year": 1999, "pin_cites": [ { "page": "405" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0400-01" ] }, { "cite": "489 U.S. 288", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12032050 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "302-03", "parenthetical": "\"new rules should always be applied retroactively to cases on direct review, but . . . generally they should not be applied retroactively to cases on collateral review\"" }, { "page": "350-51", "parenthetical": "\"new rules should always be applied retroactively to cases on direct review, but . . . generally they should not be applied retroactively to cases on collateral review\"" } ], "opinion_index": 0, "case_paths": [ "/us/489/0288-01" ] }, { "cite": "264 S.E.2d 390", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "46 N.C. App. 120", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549446 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/46/0120-01" ] }, { "cite": "1993 N.C. Sess. Laws 2298", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "311 S.E.2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 295", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2397021 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0295-01" ] }, { "cite": "505 S.E.2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1998, "pin_cites": [ { "page": "581" }, { "page": "580" }, { "page": "581" } ], "opinion_index": 0 }, { "cite": "349 N.C. 213", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571719 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "216-17" }, { "page": "216" }, { "page": "216-17" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0213-01" ] }, { "cite": "296 S.E.2d 267", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "271" } ], "opinion_index": 0 }, { "cite": "307 N.C. 42", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560548 ], "year": 1982, "pin_cites": [ { "page": "48" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0042-01" ] }, { "cite": "244 S.E.2d 709", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "36 N.C. App. 447", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554121 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/36/0447-01" ] }, { "cite": "284 S.E.2d 298", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "305", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "304 N.C. 447", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569083 ], "year": 1981, "pin_cites": [ { "page": "458", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0447-01" ] }, { "cite": "293 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "125" } ], "opinion_index": 0 }, { "cite": "306 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568285 ], "year": 1982, "pin_cites": [ { "page": "298" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0288-01" ] }, { "cite": "77 L. Ed. 2d 1456", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1983, "opinion_index": 0 }, { "cite": "463 U.S. 1249", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6267545 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/us/463/1249-01" ] }, { "cite": "77 L. Ed. 2d 1398", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1983, "opinion_index": 0 }, { "cite": "463 U.S. 1213", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6237890, 6236868, 6238726, 6237546, 6236523, 6238317, 6235632, 6237202, 6236246, 6235963, 6235325 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/us/463/1213-09", "/us/463/1213-06", "/us/463/1213-11", "/us/463/1213-08", "/us/463/1213-05", "/us/463/1213-10", "/us/463/1213-02", "/us/463/1213-07", "/us/463/1213-04", "/us/463/1213-03", "/us/463/1213-01" ] }, { "cite": "283 S.E.2d 761", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 249", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567447 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0249-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-39", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 6, "year": 1996, "opinion_index": 0 }, { "cite": "340 S.E.2d 401", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1986, "pin_cites": [ { "page": "404" }, { "page": "404" }, { "page": "404" }, { "page": "405" } ], "opinion_index": 0 }, { "cite": "315 N.C. 738", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720408 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "743" }, { "page": "743" }, { "page": "743" }, { "page": "745" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0738-01" ] }, { "cite": "526 U.S. 227", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11133049 ], "weight": 26, "year": 1999, "pin_cites": [ { "page": "232" }, { "page": "319", "parenthetical": "\"Much turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that elements must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt.\"" }, { "page": "243" }, { "page": "326" }, { "page": "233" }, { "page": "319-20" }, { "page": "239" }, { "page": "324" }, { "page": "324" }, { "page": "239" }, { "page": "324" }, { "page": "251-52" }, { "page": "331" }, { "parenthetical": "\"Any doubt on the issue of statutory construction is hence to be resolved in favor of avoiding [the serious constitutional] questions\" raised by the government's view" }, { "page": "252-53" }, { "page": "332" }, { "page": "253" }, { "page": "332" } ], "opinion_index": 0, "case_paths": [ "/us/526/0227-01" ] }, { "cite": "147 L. Ed. 2d 435", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 9413911 ], "weight": 20, "year": 2000, "pin_cites": [ { "page": "446", "parenthetical": "\"The strength of the state interests that are served by the ... legislation has no more bearing on this procedural question than the strength of the interests served by other provisions of the criminal code.\"" }, { "page": "447" }, { "page": "447" }, { "page": "455" }, { "page": "449", "parenthetical": "emphasis added in part" }, { "page": "457" }, { "page": "455" }, { "page": "455" }, { "page": "457" }, { "page": "455" }, { "page": "459", "parenthetical": "finding that the procedures in New Jersey's challenged hate-crime statute represent \"an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system.\"" } ], "opinion_index": 0, "case_paths": [ "/us/530/0466-01" ] } ], "analysis": { "cardinality": 1884, "char_count": 63311, "ocr_confidence": 0.75, "pagerank": { "raw": 5.145709050298168e-07, "percentile": 0.9392302408364349 }, "sha256": "e7715ff340254b0dfef6893c44700932932f00e186d5b6cb19a4579366772a88", "simhash": "1:8aefe72e566f0ed6", "word_count": 10342 }, "last_updated": "2023-07-14T21:28:13.659098+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and HUNTER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ERIC EARL GUICE" ], "opinions": [ { "text": "WYNN, Judge.\nFollowing his trial, a jury convicted the defendant of various offenses stemming from events which occurred on 19 July 1998. He appeals from his conviction and sentence.\nIn the summer of 1997, the defendant met and befriended Kris Wall. Around November of that year, Ms. Wall separated from her husband. The nature of the relationship between the defendant and Ms. Wall is controverted; but, the record on appeal shows that Ms. Wall made attempts to end their relationship sometime during the late spring or early summer of 1998. In May 1998, Ms. Wall gave birth to a son.\nOn 19 July 1998, the defendant called Ms. Wall around 5 a.m. and again around 10:30 a.m. Shortly thereafter, the defendant arrived at Ms. Wall\u2019s house, entering unannounced and uninvited, and confronted her. The two argued and Ms. Wall fled from her house, with the defendant in pursuit. Clothed only in a t-shirt, Ms. Wall ran into the home of Michael Lawing, whose front door was open, and the defendant followed her inside. While pointing a gun \u00bft Mr. Lawing, the defendant ordered Mr. Lawing to lie face down on the floor. After Mr. Lawing complied with this order, the defendant and Ms. Wall continued to argue in Mr. Lawing\u2019s house.\nThe defendant then dragged Ms. Wall outside. After Ms. Wall refused to leave with the defendant, he retrieved his keys from Ms. Wall\u2019s house and departed. Shortly thereafter, John Ruisi, a police officer employed with the Charlotte-Mecklenburg Police Department, arrived and spoke with Ms. Wall. The defendant called Ms. Wall and spoke with Officer Ruisi. Officer Ruisi later took Ms. Wall to the hospital, where he prepared a written statement for her which she signed. The defendant turned himself in later that day.\nIn August 1998, the defendant was indicted for multiple offenses, including assault by pointing a gun, communicating threats, assault on a female, damage to personal property, and possession of a firearm by a felon. In June 1999, the defendant was indicted for second-degree kidnaping under a superceding indictment arising out of the same events. At the close of the State\u2019s evidence, the trial court dismissed the damage to personal property charge but denied the defendant\u2019s motion to dismiss the charge of second-degree kid-naping. On 22 June 1999, the jury returned verdicts of guilty on the remaining charges and the trial court entered judgment accordingly. After consolidating the cases under the second-degree kid-naping charge for sentencing purposes, the trial court enhanced the defendant\u2019s sentence for the kidnaping conviction under the firearm enhancement statute, N.C. Gen. Stat. \u00a7 15A-1340.16A (Supp. 1996).\nThe defendant appealed, asserting as assignments of error that the trial court erred in: (1) denying his motion to dismiss the charge of second-degree kidnaping; (2) enhancing his sentence on the count of second-degree kidnaping under the firearm enhancement provision found in N.C. Gen. Stat. \u00a7 15A-1340.16A; (3) allowing into evidence alleged hearsay statements of Ms. Wall; and (4) refusing to permit him to introduce evidence of a specific prior bad act of Ms. Wall. The defendant has also filed a motion for appropriate relief in light of the United States Supreme Court\u2019s recent decisions in Apprendi v. New Jersey, 530 U.S. -, 147 L. Ed. 2d 435 (2000), and Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311 (1999). We find no error in the trial, but remand for resentencing.\nFirst, the defendant argues that the State failed to prove the specific intent necessary to support a conviction for second-degree kidnaping; specifically, that he unlawfully confined, restrained or removed Ms. Wall for the purpose of terrorizing her. We disagree.\nAs kidnaping is a specific intent crime, the State bears the burden of proving that the defendant \u201cunlawfully confined, restrained, or removed the [victim] for one of the eight purposes set out in the statute.\u201d State v. Moore, 315 N.C. 738, 743, 340 S.E.2d 401, 404 (1986); see N.C. Gen. Stat. \u00a7 14-39 (Supp. 1996). \u201cThe indictment in a kidnap-ing case must allege the purpose or purposes upon which the State intends to rely, and the State is restricted at trial to proving the purposes alleged in the indictment.\u201d Moore, 315 N.C. at 743, 340 S.E.2d at 404.\nN.C. Gen. Stat. \u00a7 14-39 provides in relevant part that:\n(a) Any person who shall unlawfully confine, restrain, or remove from one place to another, any other person 16 years of age or over without the consent of such person, . . . shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of: . . .\n(3) [Terrorizing the person so confined, restrained or removed . . . ;\n(b) There shall be two degrees of kidnapping as defined by subsection (a). ... If the person kidnapped was released in a safe place by the defendant and had not been seriously injured or sexually assaulted, the offense is kidnapping in the second degree and is punishable as a Class E felony.\nN.C. Gen. Stat. \u00a7 14-39. The superceding indictment for second-degree kidnaping in the present case stated the following:\nThe jurors for the State upon their oath present that on or about the 19th day of July, 1998, in Mecklenburg County, Eric Earl Guice did unlawfully, wilfully and feloniously kidnap Kris Lavanta Wall, a person who had attained the age of sixteen (16) years, by unlawfully confining, restraining and removing her from one place to another, without her consent, and for the purpose of terrorizing.\nThe State was therefore limited at trial to proving that the defendant acted with the specific purpose of terrorizing Ms. Wall, and the jury was only allowed to convict the defendant on that theory. See Moore, 315 N.C. at 743, 340 S.E.2d at 404; see also State v. Taylor, 304 N.C. 249, 283 S.E.2d 761 (1981), cert. denied, 463 U.S. 1213, 77 L. Ed. 2d 1398, reh\u2019g denied, 463 U.S. 1249, 77 L. Ed. 2d 1456 (1983).\nIn reviewing the trial court\u2019s denial of the defendant\u2019s motion to dismiss for insufficiency of the evidence to sustain a conviction, \u201cwe must examine the evidence adduced at trial in the light most favorable to the State to determine if there is substantial evidence of every essential element of the crime.\u201d State v. McKinnon, 306 N.C. 288, 298, 293 S.E.2d 118, 125 (1982). Substantial evidence is that which a reasonable person would consider adequate to support the conclusion that each essential element exists. Id. In short, we must determine \u201cwhether any rational trier of fact could have found the essential ele-merits of the crime beyond a reasonable doubt.\u201d State v. Barnette, 304 N.C. 447, 458, 284 S.E.2d 298, 305 (1981) (citations omitted).\nIn determining whether there was sufficient evidence to support the jury\u2019s conclusion that the defendant sought to terrorize Ms. Wall, \u201cthe test is not whether subjectively [Ms. Wall] was in fact terrorized, but whether the evidence supports a finding that the defendant\u2019s purpose was to terrorize her.\u201d Moore, 315 N.C. at 745, 340 S.E.2d at 405. Terrorizing requires more than just putting Ms. Wall in a state of fear; it requires \u201cputting [her] in some high degree of fear, a state of intense fright or apprehension.\u201d Id. (citing State v. Jones, 36 N.C. App. 447, 244 S.E.2d 709 (1978)). The defendant\u2019s intent or purpose to terrorize Ms. Wall, or the absence of such intent or purpose, may be inferred from the circumstances surrounding the alleged crime. State v. White, 307 N.C. 42, 48, 296 S.E.2d 267, 271 (1982).\nWhen viewed in the light most favorable to the State, the evidence presented at trial showed that the defendant called Ms. Wall twice and entered her home uninvited and unannounced despite her threats to call the police. Ms. Wall testified that the defendant punched her repeatedly in the face and pointed a gun in her face, and demanded that she give him the gun she kept in her house. After she complied with this demand, Ms. Wall \u2014 clothed only in a t-shirt \u2014 fled to Mr. Lawing\u2019s house, where she was pursued and tracked down by the defendant. The defendant entered Mr. Lawing\u2019s house in pursuit of Ms. Wall, pointed a gun at him \u2014 a total stranger \u2014 and forced him to lie down on the floor. The defendant struggled further with Ms. Wall, pushed a table against her, choked her, and dragged her outside. After Ms. Wall again implored the defendant to leave, the defendant finally departed. During the course of the struggle with the defendant, Ms. Wall suffered multiple bumps on her head, bruises on her arms, and fractured ribs. We conclude that the State presented substantial evidence from which a rational trier of fact could have found beyond a reasonable doubt that the defendant acted with the purpose of terrorizing Ms. Wall.\nThe defendant next contends that the trial court erred by enhancing his sentence for the second-degree kidnaping conviction as a result of his use of a firearm during the crime. Upon the jury returning guilty verdicts on all charges, the trial court held a sentencing hearing and consolidated all charges under the second-degree kidnaping charge for sentencing purposes. The trial court sentenced the defendant to a minimum term of 29 months imprisonment for the kid-naping conviction, and enhanced the sentence, citing N.C. Gen. Stat. \u00a7 15A-1340.16A, by 60 additional months for a minimum of 89 months imprisonment.\nN.C. Gen. Stat. \u00a7 15A-1340.16A provides in part that:\n(a) If a person is convicted of a Class . . . E felony and the court finds that the person used, displayed, or threatened to use or display a firearm at the time of the felony, the court shall increase the minimum term of imprisonment to which the person is sentenced by 60 months.\nSecond-degree kidnaping constitutes a Class E felony. See N.C. Gen. Stat. \u00a7 14-39. Subsection (b) of N.C. Gen. Stat. \u00a7 15A-1340.16A provides:\nSubsection (a) of this section does not apply in any of the following circumstances:\n(2) The evidence of the use, display, or threatened use or display of a firearm is needed to prove an element of the underlying . . . felony.\nThe defendant argues that the trial court\u2019s enhancement of the defendant\u2019s sentence for second-degree kidnaping under N.C. Gen. Stat. \u00a7 15A-1340.16A was improper as the use of the gun by the defendant was necessary for the State to prove the essential element of terrorizing to support the kidnaping charge. Alternatively, the defendant argues that the trial court improperly enhanced the sentence on the second-degree kidnaping charge for using a firearm when he was contemporaneously convicted on charges of possession of a firearm by a convicted felon and assault by pointing a gun. As to both theories, we disagree.\nAs to the defendant\u2019s first theory, we note that the use of a firearm is not an essential element of the crime of second-degree kid-naping, regardless of the purpose alleged. See N.C. Gen. Stat. \u00a7 14-39. Therefore, the State need not have shown that the defendant used, displayed, or threatened to use or display a firearm to prove that he intended to terrorize Ms. Wall. As our Supreme Court has stated, \u201c[b]ecause the use or display of a firearm is not an essential element of second-degree kidnapping, the trial court was not precluded from relying on evidence of defendant\u2019s use of the firearm and enhancing defendant\u2019s term of imprisonment pursuant to the firearm enhancement section.\u201d State v. Ruff, 349 N.C. 213, 216-17, 505 S.E.2d 579, 581 (1998).\nAs for the defendant\u2019s alternative argument that his \u201ccontemporaneous convictions\u201d on firearm-related charges prevents the use of the firearm as a sentence-enhancement factor, we again disagree. First, we note that the defendant\u2019s convictions were consolidated by the trial court under the second-degree kidnaping charge, for which conviction he was sentenced. The defendant cites State v. Lattimore, 310 N.C. 295, 311 S.E.2d 876 (1984) for the proposition that a defendant\u2019s sentence cannot be enhanced by factors that are based on joined offenses of which the defendant has been contemporaneously convicted. However, as was noted in Ruff the Lattimore case was,\ndecided under the former Fair Sentencing Act, N.C.G.S. ch. 15A, art. 81A (1988). However, our legislature has since repealed the Fair Sentencing Act. Act of July 24, 1993, ch. 538, sec. 14, 1993 N.C. Sess. Laws 2298, 2318. Since defendant was found guilty and sentenced for crimes occurring after 1 October 1994, the Structured Sentencing Act, N.C.G.S. ch. 15A, art. 81B (1997), provides the controlling law. N.C.G.S. \u00a7 15A-1340.10 (1997).\nRuff, 349 N.C. at 216, 505 S.E.2d at 580. Similarly, in the instant case the defendant was convicted and sentenced for crimes occurring after 1 October 1994, so the Structured Sentencing Act controls. As was noted in Ruff, N.C. Gen. Stat. \u00a7 15A-1340.16A(a) does not apply where \u201c[t]he evidence of the use, display, or threatened use or display of a firearm is needed to prove an element of the underlying . . . felony.\u201d See id. (quoting N.C. Gen. Stat. \u00a7 15A-1340.16A(b)(2)). The underlying felony in the instant case, as in Ruff, is second-degree kidnaping, of which the use or display of a firearm is not an essential element. See Ruff, 349 N.C. at 216-17, 505 S.E.2d at 581. The trial court therefore committed no error in using the firearm enhancement provision to enhance the defendant\u2019s sentence on the charge of second-degree kidnaping. See id.\nThe defendant also challenges the constitutionality of the firearm enhancement provision in his motion for appropriate relief. According to the defendant, the recent holdings by the United States Supreme Court in Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311 (1999), and Apprendi v. New Jersey, 530 U.S. \u2014, 147 L. Ed. 2d 435 (2000), render N.C. Gen. Stat. \u00a7 15A-1340.16A unconstitutional on its face, and additionally argues that the statute was unconstitutionally applied to the defendant in the instant case. In support of his argument, the defendant also cites the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, and Article I, Sections 19 and 23 of the North Carolina Constitution. We agree that the firearm enhancement statute is facially unconstitutional pursuant to the Supreme Court\u2019s holding in Apprendi, under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution.\nWe first point out that the defendant\u2019s motion for appropriate relief is properly before this Court. N.C. Gen. Stat. \u00a7 15A-1418(a) (1999); State v. Brock, 46 N.C. App. 120, 264 S.E.2d 390 (1980); N.C. Gen. Stat. \u00a7 15A-1415 (1999). He asserts in his motion that the Apprendi decision is a Constitutional ruling and, as such, represents \u201ca significant change in law\u201d that was applied by the trial court in sentencing him, such that \u201cretroactive application of the changed legal standard is required.\u201d N.C. Gen. Stat. \u00a7 15A-1415(b)(7) (1999). The defendant further asserts that he was \u201csentenced under a statute that was in violation of the Constitution of the United States or the Constitution of North Carolina.\u201d N.C. Gen. Stat. \u00a7 15A-1415(b)(4) (1999). Accepting the defendant\u2019s assertions as true, arguendo, we consider the defendant\u2019s motion for appropriate relief. We also note that Apprendi was decided on 26 June 2000, while this case was on direct review; as such, Apprendi applies here. See Teague v. Lane, 489 U.S. 288, 302-03, 103 L. Ed. 2d 334, 350-51 (1989) (\u201cnew rules should always be applied retroactively to cases on direct review, but . . . generally they should not be applied retroactively to cases on collateral review\u201d); State v. Green, 350 N.C. 400, 405, 514 S.E.2d 724, 727 (1999).\nArticle I, Section 19 of the North Carolina Constitution provides the basis for due process in North Carolina:\nNo person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land. No person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin.\nN.C. Const, art I, \u00a7 19. Our courts have long held that \u201c[t]he \u2018law of the land\u2019 clause has the same meaning as \u2018due process of law\u2019 under the Federal Constitution.\u201d Summey Outdoor Advertising, Inc. v. County of Henderson, 96 N.C. App. 533, 541, 386 S.E.2d 439, 444, disc. review denied, 326 N.C. 486, 392 S.E.2d 101 (1989); see also State v. Jones, 305 N.C. 520, 290 S.E.2d 675 (1982); State v. Smith, 90 N.C. App. 161, 368 S.E.2d 33 (1988), aff'd, 323 N.C. 703, 374 S.E.2d 866, cert. denied, 490 U.S. 1100, 104 L. Ed. 2d 1007 (1989) (the term \u201claw of the land\u201d in art. I, \u00a7 19 of the North Carolina Constitution is synonymous with \u201cdue process of law\u201d as that term is used in the Fourteenth Amendment of the United States Constitution). Nonetheless, federal court interpretations (including those of the United States Supreme Court) of due process under the Fourteenth Amendment of the United States Constitution, while highly persuasive, are not binding in construing the \u201claw of the land\u201d clause under N.C. Const, art I, \u00a7 19. Armstrong v. Armstrong, 85 N.C. App. 93, 97, 354 S.E.2d 350, 353 (1987), rev\u2019d on other grounds, 322 N.C. 396, 368 S.E.2d 595 (1988); see also Smith, 90 N.C. App. at 163, 368 S.E.2d at 35; Bentley v. North Carolina Ins. Guar. Ass\u2019n, 107 N.C. App. 1, 9, 418 S.E.2d 705, 709 (1992); Lorbacher v. Housing Auth. of City of Raleigh, 127 N.C. App. 663, 674-75, 493 S.E.2d 74, 81 (1997). It is axiomatic that our \u201cState constitutional due process requirements may be more expansive than the minimal due process requirements of the United States Constitution,\u201d Wake County ex ret. Carrington v. Townes, 53 N.C. App. 649, 650 n. 1, 281 S.E.2d 765, 766-67 n. 1 (1981), but that our state due process requirements under N.C. Const, art. I, \u00a7 19 must equal or surpass those imposed under U.S. Const, amend. XIV. Therefore, to comport with our state due process requirements, a statute must, at the least, meet the due process requirements under U.S. Const, amend. XTV. We therefore begin our analysis with a review of Fourteenth Amendment due process requirements.\nThe term \u201cdue process\u201d has a dual significance, insofar as it \u201cprovides two types of protection for individuals against improper governmental action.\u201d State v. Thompson, 349 N.C. 483, 491, 508 S.E.2d 277, 282 (1998); see also State v. Smith, 265 N.C. 173, 180, 143 S.E.2d 293, 299 (1965); In re Moore, 289 N.C. 95, 101, 221 S.E.2d 307, 311 (1976). First,\n\u201cSubstantive due process\u201d protection prevents the government from engaging in conduct that \u201cshocks the conscience,\u201d ... or interferes with rights \u201cimplicit in the concept of ordered liberty.\u201d\nThompson, 349 N.C. at 491, 508 S.E.2d at 282 (citations omitted); see also Smith, 265 N.C. at 180, 143 S.E.2d at 299; Moore, 289 N.C. at 101, 221 S.E.2d at 311. Second,\n\u201cProcedural due process\u201d protection ensures that when government action depriving a person of life, liberty, or property survives substantive due process review, that action is implemented in a fair manner.\nId. (citations omitted).\nAn individual\u2019s liberty interest is substantial, and due process must be afforded when a state seeks to deprive an individual of that liberty interest. See Townes, 53 N.C. App. at 650, 281 S.E.2d at 767. Substantive due process \u201cmay be characterized as a standard of reasonableness, and as such it is a limitation upon the exercise of the police power.\u201d Smith, 265 N.C. at 180, 143 S.E.2d at 299 (citations omitted). \u201cThe traditional substantive due process test has been that a statute must have a rational relation to a valid state objective.\u201d Moore, 289 N.C. at 101, 221 S.E.2d at 311. Substantive due process, therefore, provides \u201ca guaranty against arbitrary legislation, demanding that the law be substantially related to the valid object sought to be obtained.\u201d Lowe v. Tarble, 313 N.C. 460, 461, 329 S.E.2d 648, 650 (1985) (citing State v. Joyner, 286 N.C. 366, 211 S.E.2d 320 (1975)); see State v. Killian, 37 N.C. App. 234, 245 S.E.2d 812 (1978). Thus, we may not invoke Fourteenth Amendment substantive due process to overturn N.C. Gen. Stat. \u00a7 15A-1340.16A if there is some rational basis for the enactment of the statute. Tarble, 313 N.C. at 462, 329 S.E.2d at 650.\nThe defendant in this case does not contest \u2014 and indeed we hold \u2014 that the General Assembly had a reasonable basis for enacting N.C. Gen. Stat. \u00a7 15A-1340.16A. \u201c[T]he governmental objectives of the statute are legitimate and permissible. The legislation is not arbitrary and is substantially related to the legislative goals.\u201d Id.) see Apprendi, 530 U.S. at -, 147 L. Ed. 2d at 446 (\u201cThe strength of the state interests that are served by the ... legislation has no more bearing on this procedural question than the strength of the interests served by other provisions of the criminal code.\u201d).\nAs the substantive basis for the firearm enhancement statute is not at issue, we consider whether the statute comports with Fourteenth Amendment procedural due process requirements. See Townes, 53 N.C. App. at 651, 281 S.E.2d at 767 (\u201cthe touchstone of due process is the presence of fundamental fairness in any judicial proceeding adversely affecting the interests of an individual\u201d). The United States Supreme Court\u2019s decisions in Jones and Apprendi are particularly instructive in analyzing this aspect of the North Carolina firearm enhancement statute, and we consider each decision in detail.\nAt issue in Jones was the federal carjacking statute, 18 U.S.C. \u00a7 2119 (1988 ed., Supp. V), and in particular certain provisions of the statute that established higher penalties to be imposed when the proscribed conduct resulted in serious bodily injury or death. The United States Supreme Court considered whether the fact of resulting serious bodily injury or death was a mere sentencing factor, or rather an additional element of the offense that must be charged in the indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict. 526 U.S. at 232, 143 L. Ed. 2d at 319 (\u201cMuch turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that elements must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt.\u201d) In a footnote, the United States Supreme Court stated the principle underlying its view, \u201cthat the carjacking statute, as construed by the Government, may violate the Constitution,\u201d id. at 243, 143 L. Ed. 2d at 326, as follows:\n[U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. Because our prior cases suggest rather than establish this principle, our concern about the Government\u2019s reading of the statute rises only to the level of doubt, not certainty.\nId. at 243 n. 6, 143 L. Ed. 2d at 326 n. 6. Early in its opinion, the United States Supreme Court expressed skepticism toward the government\u2019s reading of the statute, stating that \u201c[i]t is at best questionable whether the specification of facts sufficient to increase a penalty range ... was meant to carry none of the process safeguards that elements of an offense bring with them for a defendant\u2019s benefit.\u201d Id. at 233, 143 L. Ed. 2d at 319-20.\nHowever, the United States Supreme Court recognized the possibility of two differing views of the carjacking statute: The construction advocated by the government, urging that the fact of \u201cserious bodily harm\u201d or death under the statute is a mere sentencing factor, and the opposing view treating the fact of such harm or death as an element of an offense. With these differing views in mind, the United States Supreme Court noted the rule that \u201c \u2018where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.\u2019 \u201d Id. at 239, 143 L. Ed. 2d at 324 (quoting United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408, 53 L. Ed. 2d 836, 849 (1909)).\nAs the construction advocated by the government would \u201copen [the statute] to constitutional doubt in light of a series of cases over the past quarter century, dealing with due process and the guarantee of trial by jury,\u201d id. at 240, 143 L. Ed. 2d at 324, the United States Supreme Court instead adopted what it deemed the \u201cfairest reading\u201d of the statute, id. at 239, 143 L. Ed. 2d at 324, construing \u201cserious bodily harm\u201d as a distinct element of a separate offense from the carjacking offense, \u201cwhich must be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict.\u201d Id. at 251-52, 143 L. Ed. 2d at 331. The United States Supreme Court thereby avoided ruling on the constitutionality of the carjacking statute, instead remanding the case for further consistent proceedings. Id. (\u201cAny doubt on the issue of statutory construction is hence to be resolved in favor of avoiding [the serious constitutional] questions\u201d raised by the government\u2019s view).\nIn Apprendi, the United States Supreme Court considered a challenge to New Jersey\u2019s hate-crime statute, which provided for sentence enhancement if the trial judge found, by a preponderance of the evidence, that the defendant acted to intimidate on the basis of \u201crace, color, gender, handicap, religion, sexual orientation or ethnicity.\u201d 530 U.S. at -, 147 L. Ed. 2d at 442 (citing N.J. Stat. Ann. \u00a7 2C:44-3(e) (West Supp. 2000)). At the outset, the United States Supreme Court in Apprendi noted that \u201cconstitutional protections of surpassing importance\u201d were at stake therein, including the Fourteenth Amendment \u201cproscription of any deprivation of liberty without \u2018due process of law,\u2019 \u201d as well as the Sixth Amendment guarantee to an accused in a criminal prosecution of \u201c \u2018the right to a speedy and public trial, by an impartial jury.\u2019 \u201d Id. at -, 147 L. Ed. 2d at 447. \u201cTaken together, these rights indisputably entitle a criminal defendant to \u2018a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.\u2019 \u201d Id. at -, 147 L. Ed. 2d at 447 (quoting United States v. Gaudin, 515 U.S. 506, 510, 132 L. Ed. 2d 444, 449 (1995)). The question before the United States Supreme Court was to what extent the same procedural protections should extend to facts which, while not formally defined by the legislature as \u201celements\u201d of an offense, nonetheless increase the maximum statutory penalty to which a defendant may be subjected.\nThe United States Supreme Court elevated the above-quoted language in Jones from dicta to the status of constitutional law with respect to state prosecutions of state offenses, finding that New Jersey\u2019s hate-crime statute violated due process. In so doing, it held that \u201c[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.\u201d 530 U.S. at -, 147 L. Ed. 2d at 455. Following its discussion of the historical underpinnings of the constitutional guarantees of due process and trial by jury, the United States Supreme Court stated:\nWe should be clear that nothing in this history suggests that it is impermissible for judges to exercise discretion \u2014 taking into consideration various factors relating both to offense and offender \u2014 in imposing a judgment within the range prescribed by statute. We have often noted that judges in this country have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case.\n530 U.S. at -, 147 L. Ed. 2d at 449 (emphasis added in part). Thus, the rule set forth in Apprendi is not violated unless the trial court, following its discretionary consideration of factors relating to both the offense and the offender, imposes a penalty that exceeds the maximum the defendant could receive, by statute, for the particular underlying offense. The United States Supreme Court stated the relevant inquiry as so: \u201c[D]oes the required finding expose the defendant to a greater punishment than that authorized by the jury\u2019s guilty verdict?\u201d Id. at -, 147 L. Ed. 2d at 457.\nThe defendant in this case first argues in his motion that the enhancement of his sentence under the firearm enhancement statute should be vacated, as the elements required for the enhancement, i.e., that the defendant \u201cused, displayed, or threatened to use or display a firearm at the time of the felony,\u201d N.C. Gen. Stat. \u00a7 15A-1340.16A, were not alleged in the second-degree kidnaping indictment. According to the defendant, the omission of such facts rendered the indictment deficient, and the trial court therefore lacked the jurisdiction to impose the firearm enhancement.\nThe State does not contest that these facts were not alleged in the indictment, but argues that the Apprendi decision does not require such facts to be alleged in the indictment in state cases. Notably, it is the Jones decision, concerning the prosecution of a federal crime in federal court, that includes language (quoted, supra) requiring such facts to be charged in the indictment. 526 U.S. at 243 n. 3, 143 L. Ed. 2d at 326 n. 3. The Apprendi Court, concerning a state prosecution of a state offense in state court, declared only that such facts \u201cmust be submitted to a jury, and proved beyond a reasonable doubt.\u201d 530 U.S. at -, 147 L. Ed. 2d at 455. The issue of whether the fact in question had to be charged in the indictment was not argued to the United States Supreme Court in Apprendi, wherein that Court stated in a footnote:\nApprendi has not here asserted a constitutional claim based on the omission of any reference to sentence enhancement or racial bias in the indictment. He relies entirely on the fact that the \u201cdue process of law\u201d that the Fourteenth Amendment requires the States to provide to persons accused of crimes encompasses the right to a trial by jury, Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968), and the right to have every element of the offense proved beyond a reasonable doubt, In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). That Amendment has not, however, been construed to include the Fifth Amendment right to \u201cpresentment or indictment of a Grand Jury\u201d that was implicated in our recent decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998). We thus do not address the indictment question separately today.\nId. at -n. 3, 147 L. Ed. 2d at 447 n. 3 (emphasis added).\nThus, the Apprendi decision does not support the defendant\u2019s assertion that \u201c[t]he Trial Court did not have jurisdiction to impose the 60-month firearm enhancement\u201d on the grounds that \u201cthe facts underlying their imposition were not alleged in the indictments.\u201d Indeed, we are unaware of any United States Supreme Court case which has applied the Due Process Clause of the Fourteenth Amendment in a manner which requires that a state indictment for a state offense must contain each element and fact which might increase the maximum punishment for the crime charged. See State v. Wallace, 351 N.C. 481, 508, 528 S.E.2d 326, 343 (2000) (upholding the constitutionality of North Carolina\u2019s short-form indictment despite a challenge in light of Jones). We are similarly unaware of any binding case law from any other federal courts, or from our own state courts, commanding such an outcome under either the United States Constitution or the North Carolina Constitution. The defendant\u2019s argument that the trial court was without jurisdiction to impose the 60-month firearm enhancement as the facts underlying the enhancement were not alleged in the indictment for second-degree kidnaping is therefore without merit. See Wallace, 351 N.C. at 508, 528 S.E.2d at 343.\nThe defendant next asserts that, in light of the Apprendi decision, the firearm enhancement statute is unconstitutional on its face, and as applied to him in this case, as it permits the trial court to make the requisite factual findings, instead of requiring that such factual determinations be submitted to the jury and proved beyond a reasonable doubt.\nThe defendant contends in his motion that, in determining the maximum penalty authorized by statute, one must consider the particular defendant\u2019s prior record level, as well as the existence or absence of aggravating or mitigating factors, as found by the trial court. Given the defendant\u2019s prior record level in the instant case of Level II and the absence of any finding of aggravating or mitigating factors, the defendant was subject to the presumptive range of minimum durations of punishment (23-29 months) for the offense of second-degree kidnaping, a Class E felony. See N.C. Gen. Stat. \u00a7 15A-1340.17 (Supp. 1996); N.C. Gen. Stat. \u00a7 14-39. The trial court imposed a minimum sentence of 29 months, which corresponds to a maximum term of imprisonment of 44 months. See N.C. Gen. Stat. \u00a7 15A-1340.17(e). The trial court then imposed the firearm enhancement, increasing the defendant\u2019s minimum term of imprisonment by 60 months to 89 months, which corresponds to a maximum term of imprisonment of 116 months. See N.C. Gen. Stat. \u00a7 15A-1340.16A(a); N.C. Gen. Stat. \u00a7 15A-1340.17(e). The defendant contends that his resulting sentence of 89 to 116 months was unconstitutional, as it far exceeded the \u201cprescribed statutory maximum\u201d for second-degree kid-naping, which, according to the defendant, was only 44 months.\nThe State counters that \u201cthe prescribed statutory maximum for an offense is the ultimate maximum possible provided by statute,\u201d such that the defendant\u2019s prior record level, and the absence or existence of aggravating or mitigating factors, is irrelevant in determining the maximum statutory punishment, and we need only look at the maximum punishment possible for the class of felony for which the defendant was convicted. Thus, by virtue of a jury\u2019s guilty verdict for a particular class of felony, the defendant would be subjected to the maximum punishment theoretically available to an offender committing that class of felony, assuming the highest prior record level (Level VI) and a finding of aggravating circumstances.\nRegardless of the manner in which the \u201cprescribed statutory maximum\u201d punishment is calculated, the State acknowledges that the firearm enhancement provision is unconstitutional as it was applied to the defendant in the instant case. Even assuming the State\u2019s asserted calculation of the \u201cprescribed statutory maximum\u201d punishment is correct, N.C. Gen. Stat. \u00a7 15A-1340.17(c) provides that for a defendant with prior record Level VI, and upon a finding of aggravating factors, the range of minimum durations of imprisonment for a Class E felony is 59-74 months. A minimum sentence of 74 months imprisonment (the absolute uppermost minimum term for a Class E felony) would correspond to a maximum term of 98 months. N.C. Gen. Stat. \u00a7 15A-1340.17(e). While the defendant contends the prescribed statutory maximum in this instance is 44 months, the State would apparently argue that the maximum penalty is 98 months. As the imposed sentence of 89 months minimum and 116 months maximum exceeded even the absolute uppermost statutory minimum of 74 months and maximum of 98 months, as calculated, the State concedes that the 60-month firearm enhancement was unconstitutionally applied in this instance. We agree.\nNonetheless, the State argues that the defendant has failed to establish that the statute is facially unconstitutional. Our Supreme Court has recently considered the requisite burden of proof in establishing the facial unconstitutionality of a statute, stating:\n\u201cA facial challenge to a legislative [a]ct is, of course, the most difficult challenge to mount successfully.\u201d United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100, 95 L. Ed.2d 697, 707 (1987). \u201cThe presumption is that any act passed by the legislature is constitutional, and the court will not strike it down if [it] can be upheld on any reasonable ground.\u201d Ramsey v. N.C. Veterans Comm\u2019n, 261 N.C. 645, 647, 135 S.E.2d 659, 661 (1964). An individual challenging the facial constitutionality of a legislative act \u201cmust establish that no set of circumstances exists under which the [a]ct would be valid.\u201d Salerno, 481 U.S. at 745, 107 S. Ct. at 2100, 95 L. Ed.2d at 707. The fact that a statute \u201cmight operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid.\u201d Id.\nThompson, 349 N.C. at 491, 508 S.E.2d at 281-82. According to the State, Thompson states the inquiry as whether there exists any circumstances under which the firearm enhancement statute could be valid. As the defendant has failed to establish that there exist no circumstances under which the firearm enhancement could be constitutionally applied, the State contends that the firearm enhancement statute therefore is not facially unconstitutional as the defendant argues. See id.\nEven assuming the defendant\u2019s more conservative method of calculating the prescribed statutory maximum punishment by considering the defendant\u2019s prior record level, the State argues that there are instances in which the 60-month firearm enhancement will not necessarily result in the imposition of a sentence exceeding the \u201cstatutory maximum.\u201d For example, a prior record Level II defendant convicted of a Class C felony may be subjected to a minimum term of 60 months (the lowermost term in the mitigated range) up to a minimum term of 125 months (the uppermost term in the aggravated range). If a defendant were sentenced in the mitigated range to a minimum of 60 months, even the imposition of the 60-month firearm enhancement would not exceed the uppermost statutory minimum in the aggravated range of 125 months. Again this ignores, in calculating the prescribed statutory maximum, any determination by the trial court of the absence or existence of mitigating or aggravating circumstances, such that the prescribed statutory maximum in every instance would be calculated based upon the highest statutory minimum in the aggravated range for a given class of felony and a given prior record level. The defendant argues that it is improper to ignore the trial court\u2019s finding of aggravating or mitigating circumstances in this manner.\nWhile we perceive inequity in attributing theoretical characteristics to a defendant in this manner in order to determine the \u201cprescribed statutory maximum\u201d punishment available for an offense, we need not decide this question to resolve the issue currently before us, i.e., whether the firearm enhancement statute can be applied in a manner that would not offend the United States Supreme Court\u2019s decision in Apprendi.\nIn United States v. Salerno, 481 U.S. 739, 95 L. Ed. 2d 697 (1987) \u2014 -relied upon by our Supreme Court in Thompson \u2014 the United States Supreme Court upheld the federal Bail Reform Act against a facial constitutionality challenge on the basis of substantive and procedural due process. As to the procedural due process challenge, the United States Supreme Court analyzed whether the procedures of the Bail Reform Act were sufficient to permit, pursuant thereto, the pretrial detention of some persons charged with crimes. Salerno, 481 U.S. at 751, 95 L. Ed. 2d at 711.\nThe United States Supreme Court noted that the Bail Reform Act limited the possibility of pretrial detention to only the most serious crimes, id. at 747, 95 L. Ed. 2d at 709, and concluded that \u201cthe pretrial detention contemplated by the Bail Reform Act is regulatory in nature, and does not constitute punishment before trial in violation of the Due Process Clause.\u201d Id. at 748, 95 L. Ed. 2d at 709. The United States Supreme Court declined to \u201cintimate [a] view as to the point at which detention in a particular case might become excessively prolonged, and therefore punitive, in relation to Congress\u2019 regulatory goal.\u201d Id. at 747 note 4, 95 L. Ed. 2d at 709 n. 4. In rejecting the facial constitutionality challenge, the United States Supreme Court relied upon the legitimate and compelling regulatory purpose of the Act, as well as its finding that there were extensive procedural safeguards to protect the rights of pretrial detainees under the Act. Id. at 752, 95 L. Ed. 2d at 711-12.\nIn Thompson, our Supreme Court addressed the constitutionality of N.C. Gen. Stat. \u00a7 15A-534.1, authorizing the temporary pretrial detention, in limited circumstances, of certain persons charged with certain crimes of domestic violence. N.C. Gen. Stat. \u00a7 15A-534.1 (Supp. 1996). As in Salerno, the statute in Thompson involved a discretionary imposition of pretrial detention for a limited time (a maximum of 48 hours without a determination being made by a judge or magistrate), with attendant procedural safeguards for the protection of the detainees\u2019 rights. The pretrial detention statute survived the facial constitutional challenge on the basis that the application of the procedural safeguards built into the statute served to protect the rights of defendants detained thereunder. While certain defendants (including Thompson) may, despite those safeguards, have their due process rights unconstitutionally denied as a result of an improper application of the statute, the General Assembly, in enacting the statute, included such safeguards to make such unconstitutional applications an anomaly, rather than the norm.\nIn contrast to the statutes at issue in Salerno and Thompson, the North Carolina firearm enhancement statute offers no such procedural safeguards, but instead removes from the jury the determination of facts that, if found, automatically deprive defendants of their liberty for a period of 60 months above and beyond that which the trial court could otherwise impose based upon the jury\u2019s guilty verdict on the underlying felony. The statute thus deprives defendants of their liberty while categorically denying them the attendant historical procedural safeguards: The right to have facts subjecting them to an increased penalty submitted to an impartial jury, and proved beyond a reasonable doubt.\nThe Bail Reform Act in Salerno presented federal prosecutors with a framework within which to seek pretrial detention in limited circumstances (yielding to trial courts the discretion to impose such detention), and established numerous procedural safeguards for the protection of the rights of persons so detained. The question of the constitutionality of the Act therefore became a matter of degree in its application, rather than constitutionality on its face. We find the facts of Salerno and its consideration of the federal Bail Reform Act to be inapposite to our present consideration of our state firearm enhancement statute. Likewise, insofar as Thompson, 349 N.C. 483, 508 S.E.2d 277, relies upon Salerno, we find Thompson to be inapposite, as it, too, dealt with a regulatory scheme rather than a punitive measure, and afforded discretion to trial judges, together with safeguards for defendants. It is precisely the lack of such discretion and procedural safeguards in the firearm enhancement statute which the defendant here contests.\nWithout endorsing the State\u2019s preferred method of calculating the \u201cprescribed statutory maximum,\u201d we recognize the view that there may be circumstances (albeit rare) wherein the 60-month enhancement may be applied without exceeding the \u201cprescribed statutory maximum\u201d punishment. Nonetheless, the United States Supreme Court\u2019s decision in Apprendi commands that we find the firearm enhancement statute unconstitutional. The Apprendi Court expressly endorsed:\nthe statement of the rule set forth in the concurring opinions in [Jones]: \u201c[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.\u201d 526 U.S. at 252-53, 119 S. Ct. [at 1228-29, 143 L. Ed. 2d at 332] (opinion of Stevens, J.); see also id., at 253, 119 S. Ct. [at 1229, 143 L. Ed. 2d at 332] (opinion of Scalia, J.).\nApprendi, 530 U.S. at -, 147 L. Ed. 2d at 455. The North Carolina firearm enhancement statute mandates that \u201cthe court shall increase the minimum term of imprisonment to which the [defendant] is sentenced by 60 months\u201d if the court \u201cfinds that the [defendant] used, displayed, or threatened to use or display a firearm at the time of the felony,\u201d thereby explicitly removing from the jury the requisite factual determination. N.C. Gen. Stat. \u00a7 15A-1340.16A(a). Here, as in Apprendi, the statute in question removes any judicial discretion and requires an automatic enhancement of the sentence if the trial court makes a certain factual determination. See N.J. Stat. Ann. \u00a7 2C:44-3 (West Supp. 2000) (requiring the trial court to sentence the defendant \u201cto an extended term if it finds, by a preponderance of the evidence,\u201d that the defendant \u201cacted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity\u201d). Such a scheme directly contravenes the rule established in Apprendi.\nContrary to the State\u2019s assertions, the United States Supreme Court\u2019s holding in McMillan v. Pennsylvania, 477 U.S. 79, 91 L. Ed. 2d 67 (1986), does not lend support to its argument. In McMillan, the United States Supreme Court considered a challenge to Pennsylvania\u2019s Mandatory Minimum Sentencing Act, 42 Pa. Cons. Stat. \u00a7 9712 (1982), which subjected defendants convicted of certain felonies to a mandatory minimum sentence of five years\u2019 imprisonment if the sentencing judge found, by a preponderance of the evidence, that the defendant \u201cvisibly possessed a firearm\u201d during the commission of the underlying felony. A separate sentencing statute mandated that the court \u201cshall impose a minimum sentence of confinement which shall not exceed one-half of the maximum sentence imposed.\u201d 42 Pa. Cons. Stat. \u00a7 9756(b) (1982).\nConstruing \u00a7 9712 and \u00a7 9756(b) together, the shortest maximum term permissible under the Mandatory Minimum Sentencing Act would be 10 years. The enumerated felonies listed in the Act consisted of felonies of the first degree, carrying a maximum penalty of 20 years\u2019 imprisonment, and of the second degree, carrying a maximum penalty of 10 years\u2019 imprisonment. McMillan, 477 U.S. at 87, 91 L. Ed. 2d at 77; see 42 Pa. Cons. Stat. \u00a7\u00a7 9712, 9756(b). The statute thus operated \u201cto divest the judge of discretion to impose any sentence of less than five years for the underlying felony,\u201d but did not \u201cauthorize a sentence in excess of that otherwise allowed for that offense.\u201d Id. at 81-82, 91 L. Ed. 2d at 73.\nThat is, the Act \u201cups the ante\u201d for defendants, id. at 88, 91 L. Ed. 2d at 77, by increasing the minimum sentence to 5 years, and incidentally (pursuant to \u00a7 9756(b)) placing a lower limit of 10 years on the maximum term. Given that the maximum term of imprisonment (ignoring the 5-year minimum imposed by the Act) for the commission of the underlying felonies carries a maximum term of at least 10 years (and up to 20 years), the Act itself, when enforced according to its terms, does not expose defendants to greater or additional punishment. The same cannot be said of the North Carolina firearm enhancement statute, which, as demonstrated in the present case, \u201cexpose[s] the defendant to a greater punishment than that authorized by the jury\u2019s guilty verdict.\u201d Apprendi, 530 U.S. at -, 147 L. Ed. 2d at 457.\nAs we find that the firearm enhancement statute at issue here, when enforced according to its terms, \u201cremove[s] from the jury the assessment of facts that increase the prescribed range of penalties to which [the] criminal defendant is exposed,\u201d id. at -, 147 L. Ed. 2d at 455, we must, pursuant to Apprendi, declare the statute facially unconstitutional as violative of due process. See id. at -, 147 L. Ed. 2d at 459 (finding that the procedures in New Jersey\u2019s challenged hate-crime statute represent \u201can unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system.\u201d) See also U.S. Const, amend. V, VI, XIV. As a result, the defendant\u2019s \u201cas applied\u201d constitutionality argument is moot; similarly, we need not consider the defendant\u2019s arguments under the North Carolina Constitution. The defendant\u2019s motion for appropriate relief is therefore (1) denied in part insofar as it requests the right to a full briefing on all issues raised therein, and (2) granted in part insofar as it requests a determination that N.C. Gen. Stat. \u00a7 15A-1340.16A is facially unconstitutional, and requests that the defendant\u2019s 60-month firearm sentence enhancement be vacated. See N.C. Gen. Stat. \u00a7 15A-1415(b)(7).\nIn the defendant\u2019s third assignment of error, he argues that the trial court erred on three separate occasions in allowing the State to present alleged hearsay statements made by Ms. Wall. First, the defendant contends that the trial court erred in allowing Officer Ruisi to testify concerning oral statements made to him by Ms. Wall after he first found her in Mr. Lawing\u2019s back yard. Second, the defendant contends the trial court erred in allowing into evidence Ms. Wall\u2019s written statement which was taken by Officer Ruisi approximately two hours and forty-five minutes after the argument with the defendant. Third, the defendant argues that the trial court erred in allowing Officer Ruisi to read Ms. Wall\u2019s written statement aloud to the jury. We find no error.\nHearsay is defined as \u201ca statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\u201d N.C.R. Evid. 801(c) (1992). Statements which constitute hearsay are \u201cinadmissible except as provided by statute or the rules of evidence.\u201d State v. Rogers, 109 N.C. App. 491, 498, 428 S.E.2d 220, 224, disc. review denied, 334 N.C. 625, 435 S.E.2d 348 (1993), cert. denied, 511 U.S. 1008, 128 L. Ed. 2d 54, reh\u2019g denied, 511 U.S. 1102, 128 L. Ed. 2d 495 (1994); see also N.C.R. Evid. 802 (1992).\nAn exception to the general rule of inadmissibility of hearsay is acknowledged for excited utterances. \u201c[TJestimony of a witness as to a statement made by a declarant relating to a startling event and made while the declarant was under the stress of that event is not excludable under the hearsay rule.\u201d State v. Sneed, 327 N.C. 266, 272, 393 S.E.2d 531, 534 (1990); see also State v. Littlejohn, 340 N.C. 750, 459 S.E.2d 629 (1995); N.C.R. Evid. 803(2) (1992). Rule 803(2) provides that \u201c[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition\u201d should not be excluded by the hearsay rule, even though the declarant is available to testify. N.C.R. Evid. 803(2). The rationale underlying the admissibility of an excited utterance is its inherent trustworthiness. State v. Winguard, 317 N.C. 590, 598, 346 S.E.2d 638, 644 (1986). In order for a statement to fall within the parameters of the excited utterance exception of Rule 803(2), \u201c \u2018there must be (1) a sufficiently startling experience suspending reflective thought and (2) a spontaneous reaction, not one resulting from reflection or fabrication.\u2019 \u201d State v. Pickens, 346 N.C. 628, 644, 488 S.E.2d 162, 171 (1997) (quoting State v. Smith, 315 N.C. 76, 86, 337 S.E.2d 833, 841 (1985)).\nThe evidence presented at trial showed that Ms. Wall made an oral statement to Officer Ruisi when he first arrived at Mr. Lawing\u2019s house and found her in Mr. Lawing\u2019s back yard. This oral statement was made to Officer Ruisi within several minutes of the defendant dragging Ms. Wall out of Mr. Lawing\u2019s house. Officer Ruisi testified that Ms. Wall was crying when he first found her and was so terrified she was having difficulty breathing. The trial court permitted Officer Ruisi to testify as to Ms. Wall\u2019s oral statement to him on the basis that her statement constituted an excited utterance under Rule 803(2). Based on the circumstances surrounding the statement, we find no error in the trial court\u2019s determination that this oral statement was an excited utterance, and its admission via Officer Ruisi\u2019s testimony was not improper.\nThe defendant\u2019s argument that Ms. Wall\u2019s written statement was inadmissible hearsay is likewise without merit. The trial court admitted the written statement not as substantive evidence, but for the limited purpose of corroborative evidence only, which does not constitute hearsay. See State v. Ford, 136 N.C. App. 634, 640 n. 2, 525 S.E.2d 218, -n. 2 (2000); State v. Marine, 135 N.C. App. 279, 287, 520 S.E.2d 65, 69 (1999). Our courts have long held that a witness\u2019s prior consistent statements may be admissible to corroborate the witness\u2019s in-court testimony. See State v. Gell, 351 N.C. 192, 524 S.E.2d 332 (2000); State v. Coffey, 345 N.C. 389, 480 S.E.2d 664 (1997). In order to be admissible as corroborative evidence, \u201cthe prior statement of the witness need not merely relate to specific facts brought out in the witness\u2019s testimony at trial, so long as the prior statement in fact tends to add weight or credibility to such testimony.\u201d State v. Ramey, 318 N.C. 457, 469, 349 S.E.2d 566, 573 (1986). Nonetheless, while \u201c [t]he trial court has wide latitude in deciding when a prior consistent statement can be admitted for corroborative, nonhearsay purposes,\u201d State v. Call, 349 N.C. 382, 410, 508 S.E.2d 496, 513 (1998) (citing State v. Levan, 326 N.C. 155, 388 S.E.2d 429 (1990)), the State may not introduce as corroborative evidence prior statements of a witness that directly contradict the witness\u2019s trial testimony. See Gell, 351 N.C. at 204, 524 S.E.2d at 340.\nWe find that the written statement given by Ms. Wall to Officer Ruisi at the hospital was a prior consistent statement that the trial court properly admitted for the limited purpose of corroborating Ms. Wall\u2019s in-court testimony. While Ms. Wall\u2019s written statement was not identical to her in-court testimony, it nonetheless was generally consistent with and tended to add weight or credibility to her sworn testimony. See Ramey, 318 N.C. at 468, 349 S.E.2d at 573; see also State v. Locklear, 320 N.C. 754, 762, 360 S.E.2d 682, 686 (1987). Furthermore, the trial court allowed defense counsel to redact certain portions of the statement, and instructed the jury to consider the statement for corroborative purposes only. We further conclude that it was not improper for the trial court to permit Officer Ruisi to read aloud the written statement (with appropriate portions redacted as requested by defense counsel) to the jury. We are aware of no authority holding that the declarant is the only party entitled to read aloud a prior consistent statement that corroborates their in-court testimony, and we decline to so hold. The defendant\u2019s third assignment of error is therefore overruled.\nThe defendant\u2019s final assignment of error asserts that the trial court erred in preventing the defendant from introducing evidence of a prior bad act performed by Ms. Wall. In an effort to impeach Ms. Wall\u2019s credibility, the defendant sought to introduce extrinsic evidence showing that in February 1998, Ms. Wall let the air out of the tires of the defendant\u2019s vehicle. The defendant sought to elicit testimony to this effect on direct examination from the sister of the defendant, who was testifying as a defense witness. At no time did the defendant question Ms. Wall concerning this incident on cross-examination. The trial court held a voir dire hearing and declined to admit this evidence. We note that N.C.R. Evid. 608(b) prohibits such use of evidence of specific instances of conduct. See N.C.R. Evid. 608(b) (1992). We conclude that the trial court did not commit reversible or plain error by excluding this evidence.\nBased upon our finding that the firearm enhancement statute, N.C. Gen. Stat. \u00a7 15A-1340.16A, is unconstitutional pursuant to the United States Supreme Court\u2019s decision in Apprendi, we vacate the defendant\u2019s sentence and remand in part to the trial court for resentencing.\nNo error in part, vacated and remanded in part for resentencing.\nJudges LEWIS and HUNTER concur.\n. We note that the United States Court of Appeals, Fourth Circuit, recently construed North Carolina\u2019s structured sentencing scheme in order to determine what constitutes a previous conviction for \u201ca crime punishable by imprisonment for a term exceeding one year\u201d for purposes of applying 18 U.S.C. \u00a7 922(g)(1). United States v. Jones, 195 F.3d 205, 206 (4th Cir. 1999). The defendant had a prior felon-in-possession conviction in North Carolina under N.C. Gen. Stat. \u00a7 14-415.1, a Class H felony. The defendant, with a prior record level II, argued that the maximum he could have received was 12 months, assuming the presence of aggravating factors (corresponding to a 10-month minimum, the uppermost available in the Class H-Level II cell in the structured sentencing grid, N.C. Gen. Stat. \u00a7 15A-1340.17(c), (e)). Id. at 206-7. The Fourth Circuit disagreed, opting to view the \u201coffense statutory maximum as the statutory maximum for the crime, regardless of the prior criminal record status of the defendant.\u201d Id. at 207. Nonetheless, we must only accord decisions of the Fourth Circuit such persuasiveness as they might reasonably command. See Milligan v. State, 135 N.C. App. 781, 783 n. 2, 522 S.E.2d 330, 332 n. 2 (1999); State v. Adams, 132 N.C. App. 819, 820, 513 S.E.2d 588, 589 (1999) (holding that federal circuit court decisions \u201care not binding upon either the appellate or trial courts of this State\u201d).", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Special Deputy Attorney General James P. Longest, Jr., for the State.", "Rudolf Maher Widenhouse & Fialko, by Christopher C. Fialko, for the defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ERIC EARL GUICE\nNo. COA99-1261\n(Filed 29 December 2000)\n1. Kidnapping\u2014 second degree \u2014 purpose of terrorizing victim \u2014 sufficiency of evidence\nThe trial court did not err by denying a kidnapping defendant\u2019s 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 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\u2019s house; defendant pursued her there and entered the house, pointing a gun at the 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.\n2. Sentencing\u2014 firearm enhancement \u2014 underlying crimes\u2014 use of firearm not an essential element\nThe trial court did not err by enhancing a second-degree kidnapping defendant\u2019s 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.\n3. Criminal Law\u2014 motion for appropriate relief on appeal\u2014 proper\nA 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.\n4. Sentencing\u2014 firearm enhancement \u2014 underlying facts not alleged\nA kidnapping defendant\u2019s 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, 147 L. Ed. 2d 435 (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.\n5. Sentencing\u2014 firearm enhancement \u2014 statute violates due process\nA kidnapping defendant\u2019s 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. \u00a7 15A-1340.16A\n6. Evidence\u2014 hearsay \u2014 excited utterance exception \u2014 statement by victim to officer at scene\nThe trial court did not err in a kidnapping 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.\n7. Evidence\u2014 victim\u2019s written statement \u2014 corroboration\u2014 read by officer\nThe 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\u2019s 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.\n8. Evidence\u2014 prior bad act \u2014 extrinsic evidence\nThere 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\u2019s vehicle. Defendant sought to elicit this testimony on direct examination from defendant\u2019s sister and did not question the victim concerning this incident during cross-examination.\nAppeal by defendant from judgment entered 22 June 1999 by Judge Loto G. Caviness in Superior Court, Mecklenburg County. Heard in the Court of Appeals 20 September 2000.\nAttorney General Michael F. Easley, by Special Deputy Attorney General James P. Longest, Jr., for the State.\nRudolf Maher Widenhouse & Fialko, by Christopher C. Fialko, for the defendant-appellant." }, "file_name": "0177-01", "first_page_order": 207, "last_page_order": 232 }