{ "id": 9248912, "name": "STATE OF NORTH CAROLINA v. VINCENT TODD CARPENTER, Defendant", "name_abbreviation": "State v. Carpenter", "decision_date": "2002-12-31", "docket_number": "No. COA01-1600", "first_page": "35", "last_page": "51", "citations": [ { "type": "official", "cite": "155 N.C. App. 35" } ], "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": "937 F.2d 68", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10521666 ], "year": 1991, "pin_cites": [ { "page": "70" } ], "opinion_index": 0, "case_paths": [ "/f2d/937/0068-01" ] }, { "cite": "455 S.E.2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1995, "pin_cites": [ { "page": "911-12" }, { "page": "912" }, { "page": "912" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 549", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11919695 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "552-53" }, { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0549-01" ] }, { "cite": "449 S.E.2d 751", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 805", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2550182, 2549415, 2549431, 2549882, 2549179 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0805-05", "/nc/337/0805-04", "/nc/337/0805-02", "/nc/337/0805-01", "/nc/337/0805-03" ] }, { "cite": "445 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "612" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 547", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12135816 ], "year": 1994, "pin_cites": [ { "page": "549" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0547-01" ] }, { "cite": "552 S.E.2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 2001, "pin_cites": [ { "page": "699" }, { "page": "700", "parenthetical": "\"[T]he habitual misdemeanor assault statute was congruent in form to the habitual driving while impaired statute such that both were substantive and not 'merely' status offenses.\"" }, { "page": "700", "parenthetical": "emphasis in original" }, { "page": "700", "parenthetical": "citation omitted" }, { "page": "701" }, { "page": "700", "parenthetical": "emphasis in original" }, { "page": "701", "parenthetical": "emphasis in original" }, { "page": "701", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 381", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11357803 ], "weight": 5, "year": 2001, "pin_cites": [ { "page": "386" }, { "page": "385" }, { "page": "385" }, { "page": "386" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0381-01" ] }, { "cite": "504 S.E.2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "349 N.C. 219", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571663 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/349/0219-01" ] }, { "cite": "496 S.E.2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "816-17" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 394", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11654914 ], "year": 1998, "pin_cites": [ { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0394-01" ] }, { "cite": "546 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "353 N.C. 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135681, 135977, 135722, 135667, 135868 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/353/0277-04", "/nc/353/0277-01", "/nc/353/0277-05", "/nc/353/0277-03", "/nc/353/0277-02" ] }, { "cite": "533 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2000, "pin_cites": [ { "page": "520" }, { "page": "521" }, { "page": "520", "parenthetical": "\"Both the habitual misdemeanor assault statute and the habitual impaired driving statute declare that a person 'commits the offense' if that person currently commits specified acts and has been convicted of a specified number of similar offenses in the past.\"" }, { "page": "519-20", "parenthetical": "emphasis added" }, { "page": "521" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 209", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9496411 ], "weight": 5, "year": 2000, "pin_cites": [ { "page": "214" }, { "page": "214-15" }, { "page": "213" }, { "page": "212" }, { "page": "214" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0209-01" ] }, { "cite": "272 S.E.2d 621", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "623", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "50 N.C. App. 188", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2676110 ], "year": 1980, "pin_cites": [ { "page": "190", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/50/0188-01" ] }, { "cite": "570 S.E.2d 440", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "484" } ], "opinion_index": 0 }, { "cite": "356 N.C. 178", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511396 ], "year": 2002, "pin_cites": [ { "page": "258" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0178-01" ] }, { "cite": "243 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "125" } ], "opinion_index": 0 }, { "cite": "294 N.C. 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574188 ], "year": 1978, "pin_cites": [ { "page": "653" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0642-01" ] }, { "cite": "404 S.E.2d 671", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "677" } ], "opinion_index": 0 }, { "cite": "329 N.C. 202", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553489 ], "year": 1991, "pin_cites": [ { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0202-01" ] }, { "cite": "548 S.E.2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "723-24", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "353 N.C. 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135574 ], "year": 2001, "pin_cites": [ { "page": "584", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0568-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "378-79" }, { "page": "379" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "661" }, { "page": "661" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "558 S.E.2d 463", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "477" } ], "opinion_index": 0 }, { "cite": "355 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220002 ], "year": 2002, "pin_cites": [ { "page": "93" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0073-01" ] }, { "cite": "566 S.E.2d 81", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "355 N.C. 754", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220066, 220101, 219944, 219955, 219933 ], "year": 2002, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0754-03", "/nc/355/0754-01", "/nc/355/0754-02", "/nc/355/0754-04", "/nc/355/0754-05" ] }, { "cite": "563 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "4-5", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 713", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9131462 ], "year": 2002, "pin_cites": [ { "page": "718-19", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0713-01" ] }, { "cite": "571 S.E.2d 619", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "622", "parenthetical": "quoting State v. Hannah, 149 N.C. App. 713, 718-19, 563 S.E.2d 1, 4-5, disc. review denied, 355 N.C. 754, 566 S.E.2d 81 (2002) (citations omitted)" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 176", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249282 ], "year": 2002, "pin_cites": [ { "page": "181", "parenthetical": "quoting State v. Hannah, 149 N.C. App. 713, 718-19, 563 S.E.2d 1, 4-5, disc. review denied, 355 N.C. 754, 566 S.E.2d 81 (2002) (citations omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0176-01" ] }, { "cite": "567 S.E.2d 206", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "208" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 211", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249483 ], "year": 2002, "pin_cites": [ { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0211-01" ] }, { "cite": "501 S.E.2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "343", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "348 N.C. 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659843 ], "year": 1998, "pin_cites": [ { "page": "488", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0474-01" ] }, { "cite": "560 S.E.2d 776", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "781" }, { "page": "781" } ], "opinion_index": 0 }, { "cite": "355 N.C. 294", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220055 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "301" }, { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0294-01" ] }, { "cite": "566 S.E.2d 121", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "123" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 530", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9081109 ], "year": 2002, "pin_cites": [ { "page": "532" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0530-01" ] }, { "cite": "273 S.E.2d 661", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "664" } ], "opinion_index": 0 }, { "cite": "302 N.C. 157", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564177 ], "year": 1981, "pin_cites": [ { "page": "160-61" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0157-01" ] }, { "cite": "467 S.E.2d 28", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "31" } ], "opinion_index": 0 }, { "cite": "342 N.C. 580", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795978 ], "year": 1996, "pin_cites": [ { "page": "584" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0580-01" ] }, { "cite": "415 S.E.2d 716", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "717" } ], "opinion_index": 0 }, { "cite": "331 N.C. 272", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499251 ], "year": 1992, "pin_cites": [ { "page": "275" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0272-01" ] }, { "cite": "392 S.E.2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "363" } ], "opinion_index": 0 }, { "cite": "326 N.C. 792", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5309049 ], "year": 1990, "pin_cites": [ { "page": "794" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0792-01" ] }, { "cite": "430 S.E.2d 254", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "258-59", "parenthetical": "emphasis in original" }, { "page": "259" } ], "opinion_index": 0 }, { "cite": "333 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2547649 ], "year": 1993, "pin_cites": [ { "page": "652-53", "parenthetical": "emphasis in original" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0644-01" ] } ], "analysis": { "cardinality": 1201, "char_count": 39650, "ocr_confidence": 0.748, "pagerank": { "raw": 4.936796885215299e-07, "percentile": 0.9346077705688632 }, "sha256": "6f6a81fe030078d551e82366f2e105a8d5e87ed7f1c8827f9b8666861d57b5c3", "simhash": "1:9f6ae02af6a88e6e", "word_count": 6325 }, "last_updated": "2023-07-14T20:08:10.559314+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TYSON and THOMAS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. VINCENT TODD CARPENTER, Defendant" ], "opinions": [ { "text": "EAGLES, Chief Judge.\nVincent Todd Carpenter (\u201cdefendant\u201d) appeals from judgment entered on jury verdicts finding him guilty of assault inflicting serious injury, assault on a female, and habitual felon. After careful consideration of the briefs and record, we discern no error in part, reverse in part, vacate in part and remand for resentencing.\nAt trial, the State\u2019s evidence tended to show that defendant called the American Fiber and Finishing plant several times to speak with Melissa Alexander (\u201cAlexander\u201d) on 5 August 1999. Alexander testified that she did not want to speak with defendant. Calvin Gainey (\u201cGainey\u201d), a shift manager, answered one telephone call from defendant and at Alexander\u2019s request, would not put Alexander on the phone. Gainey testified that defendant told him that \u201che was coming down to that plant and he was going to whip her God damn ass and anybody that got in the way.\u201d At approximately 1:45 p.m., Alexander saw defendant at the plant. Alexander began to run but defendant caught her and pushed her to the ground. Defendant kicked Alexander and struck her in the head and stomach. Gainey testified that he received a radio call that \u201csome guy was downstairs beating on [Alexander].\u201d Gainey and his manager, Shane Phillips (\u201cPhillips\u201d), ran to the scene. They saw Alexander lying on the ground and defendant near her. Phillips told defendant that he should leave. Defendant took a step toward Gainey and struck him in the cheek with his fist. Gainey and Phillips then grabbed hold of defendant. Defendant then attempted to grab Gainey and Gainey struck defendant twice in the head. Defendant then \u201cclaw[ed]\u201d Gainey\u2019s face and grabbed Gainey\u2019s bottom lip, and \u201cripped [his] bottom lip open.\u201d Defendant stuck his fingers in Gainey\u2019s mouth and \u201cripped [Gainey\u2019s] soft tissue out from under [Gainey\u2019s] tongue\u201d while Gainey bit defendant. Phillips pulled defendant away and defendant pulled his hand out of Gainey\u2019s mouth which broke Gainey\u2019s jaw. Gainey and Phillips were holding onto defendant as the three men fell to the floor. Soon after, the police arrived.\nDefendant was charged with assault on a female, assault inflicting serious injury, two counts of habitual misdemeanor assault and being an habitual felon. At trial, the jury returned guilty verdicts of assault on a female and assault inflicting serious injury. Defendant stipulated to the five misdemeanors listed in the two habitual misdemeanor assault indictments. The trial court then re-impaneled the jury for the habitual felon phase of the trial. After the jury returned a guilty verdict of being an habitual felon, the trial court pronounced that she \u201craised the level of the two misdemeanor assaults to class H felony, habitual misdemeanor assault convictions.\u201d The trial court entered judgment and sentenced defendant to a minimum term of imprisonment of 133 months to a maximum term of 169 months. Defendant appeals.\nOn appeal, defendant contends that the trial court erred when: (1) the trial court engaged in ex parte communication with and dismissed jurors; (2) the trial court denied his request to represent himself; (3) his assault on a female conviction was not vacated because the statute is unconstitutional; (4) his assault inflicting serious injury conviction was not vacated for insufficiency of the evidence; (5) his assault convictions were not vacated because the jury instructions were erroneous; (6) his habitual misdemeanor assault conviction was not vacated because the statute is unconstitutional; (7) his habitual felon conviction was not vacated because habitual misdemeanor assault is not a substantive offense; (8) his habitual felon conviction was not vacated because the trial court erred by failing to dismiss the indictment because of incompetent prior convictions; (9) his habitual felon conviction was not vacated because the \u201cprincipal indictments\u201d are insufficient to support his sentence as an habitual felon; (10) his habitual felon conviction was not vacated because the trial court had not found defendant guilty of a felony before the habitual felon proceeding; and (11) his sentence was not vacated because the trial court sentenced defendant at the incorrect prior record level. After careful consideration we discern no error in part, reverse in part, vacate in part, and remand for resentencing.\nDefendant presents arguments relating to 18 of the 36 assignments of error in the record on appeal. Any assignments of error not argued in defendant\u2019s brief are deemed abandoned. N.C.R. App. P. 28(b)(6).\nFirst, defendant contends that the trial court\u2019s ex parte communication with and dismissal of jurors was inappropriate. Defendant requested full recordation of the proceedings pursuant to G.S. \u00a7 15A-1241(b). Defendant contends that the trial court held unrecorded bench conferences, deferred five jurors without noting any reasons in the record and swore in the remaining jury pool. Defendant argues that the trial court\u2019s actions violated his Sixth and Fourteenth Amendment rights under the United States Constitution and Article I, \u00a7 23 of the North Carolina Constitution. We do not agree.\nOn 20 March 2001, the trial court heard and ruled on defendant\u2019s motion to suppress a statement made by defendant. Defendant and his counsel were present for the hearing. After the trial court denied the motion, the trial court ruled on some other preliminary motions. Defendant and his counsel left the courtroom and the jury pool was brought in. The trial court then deferred five members of the jury pool. The clerk of court swore in the remaining members of the jury pool. The trial court then had the jury pool leave the courtroom. Defendant and his counsel came back to the courtroom for another preliminary motion. The jury pool reentered the courtroom, the trial court stated \u201cwe\u2019re ready to begin the [defendant\u2019s] trial\u201d and jury selection commenced.\n\u201cThe Confrontation Clause in Article I, Section 23 of North Carolina\u2019s Constitution \u2018guarantees the right of . . . defendant to be present at every stage of the trial.\u2019 \u201d State v. Rannels, 333 N.C. 644, 652-53, 430 S.E.2d 254, 258-59 (1993) (emphasis in original) (quoting State v. Smith, 326 N.C. 792, 794, 392 S.E.2d 362, 363 (1990)). Rannels held that \u201cdefendant\u2019s trial had not begun when the complained of unrecorded bench conferences with prospective jurors took place. They occurred . . . before any case had been called for trial.\u201d Id. at 654, 430 S.E.2d at 259.\nHere, defendant\u2019s trial had not commenced when the court held unrecorded bench conferences and deferred five jurors. This occurred before the trial court began defendant\u2019s trial. \u201cThe jurors were not excused at a stage of the defendant\u2019s trial and the defendant did not have the right to be present at the conferences.\u201d State v. Cole, 331 N.C. 272, 275, 415 S.E.2d 716, 717 (1992). This assignment of error is overruled.\nDefendant contends that he is entitled to a new trial because the trial court denied his request to represent himself. We do not agree.\nDefendant failed to object at trial and now seeks plain error review of this assignment of error. Our Supreme Court \u201chas elected to review unpreserved issues for plain error when they involve either (1) errors in the judge\u2019s instructions to the jury, or (2) rulings on the admissibility of evidence.\u201d State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). Defendant\u2019s assignment of error here does not involve jury instructions or the admissibility of evidence. Accordingly, this assignment of error is dismissed.\nNext, defendant contends that his habitual misdemeanor assault conviction must be vacated because G.S. \u00a7 14-33(c)(2) violates defendant\u2019s constitutional right to equal protection of the laws. We are not persuaded.\nG.S. \u00a7 14-33(c)(2) (2001) states that \u201cany person who commits any assault... is guilty of a Class A1 misdemeanor if, in the course of the assault... he or she: (2) Assaults a femal\u00e9, he being a male person at least 18 years of age.\u201d Defendant concedes that he did not raise the constitutionality of the statute at trial but requests that this Court review his claim pursuant to Appellate Rule 2. It is well settled that this Court will not review constitutional questions that \u201c[were] not raised or passed upon in the trial court.\u201d State v. Elam, 302 N.C. 157, 160-61, 273 S.E.2d 661, 664 (1981). We decline to review this issue pursuant to Rule 2. This assignment of error is dismissed.\nDefendant next contends that his conviction for assault inflicting serious injury must be vacated for insufficiency of the evidence. Specifically, defendant argues that the State did not produce any evidence to show that defendant \u201cvolitionally or knowingly caused these injuries.\u201d We are not persuaded.\n\u201cWhen ruling on a motion to dismiss for insufficiency of the evidence, the trial court determines whether substantial evidence exists for each essential element of the offense charged, and whether defendant is the perpetrator of the offense.\u201d State v. Gay, 151 N.C. App. 530, 532, 566 S.E.2d 121, 123 (2002). \u201cSubstantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion.\u201d State v. Mann, 355 N.C. 294, 301, 560 S.E.2d 776, 781 (2002), cert. denied, - U.S. -, - L. Ed. 2d -(Nov. 4, 2002) (No. 02-6059). \u201c[T]he trial court is not to be concerned with the weight of the evidence. Ultimately, the question for the court is whether a reasonable inference of defendant\u2019s guilt may be drawn from the circumstances.\u201d State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998) (citation omitted). \u201cIn resolving this question, the trial court must examine the evidence in the light most advantageous to the State, drawing all reasonable inferences from the evidence in favor of the State\u2019s case.\u201d Mann, 355 N.C. at 301, 560 S.E.2d at 781. \u201cThe motion to dismiss should be denied if there is substantial evidence supporting a finding that the offense charged was committed.\u201d State v. Craycraft, 152 N.C. App. 211, 213, 567 S.E.2d 206, 208 (2002).\nDefendant was charged with assault inflicting serious injury pursuant to G.S. \u00a7 14-33. \u201c[A]ny person who commits any assault, assault and battery, or affray is guilty of a Class A1 misdemeanor if, in the course of the assault, assault and battery, or affray, he or she: (1) Inflicts serious injury upon another person or uses a deadly weapon.\u201d G.S. \u00a7 14-33(c)(1) (2001). \u201cOur courts have defined \u2018serious injury\u2019 as injury which is serious but falls short of causing death and have indicated that \u2018the element of \u201cserious bodily injury\u201d requires proof of more severe injury than the element of \u201cserious injury\u201d \u2019 \u201d State v. Williams, 154 N.C. App. 176, 181, 571 S.E.2d 619, 622 (2002) (quoting State v. Hannah, 149 N.C. App. 713, 718-19, 563 S.E.2d 1, 4-5, disc. review denied, 355 N.C. 754, 566 S.E.2d 81 (2002) (citations omitted)). The indictment here alleged that defendant \u201cdid assault and strike Calvin L. Gainey, by hitting him with his hands and fists thereby inflicting serious injury, to wit: a broken bone in Calvin Gainey\u2019s mouth, a damaged tooth and a broken bone in Calvin Gainey\u2019s hand.\u201d\nHere, Gainey testified that defendant: struck him in the left cheek; \u201cclaw[ed] at my face\u201d; \u201cgrabbed my bottom lip, and [defendant] ripped my bottom lip open\u201d; and \u201cstuck his hand back in my mouth and ripped my soft tissue out from under my tongue.\u201d Gainey also testified that Phillips grabbed the defendant and that defendant \u201cpulled his hand out of my mouth and it broke my jaw, is what it done, around my tooth. And we fell to the floor.\u201d The evidence, taken in the light most favorable to the State, is sufficient to support a finding that defendant committed the assault inflicting serious injury and to withstand a motion to dismiss.\nDefendant next contends that his assault convictions must be vacated because the trial court\u2019s jury instructions were erroneous. Defendant argues that the trial court erred in answering a jury question and then failing to correct the error, by instructing the jury on a theory of the case not presented by the indictment, and by failing to incorporate a full self-defense instruction into the assault inflicting serious injury charge. We are not persuaded.\nDefendant argues that the trial court committed plain error by erroneously answering a jury question and failing to correct it. The jury sent a question to the trial court asking for the \u201cDefinition of Assault.\u201d The trial court then instructed the jury that:\nAn assault is an \u2014 is an overt act or an attempt or the unequivocal appearance of an attempt with force and violence to do some immediate physical injury to the person of another which show of force or menace of violence must be sufficient to put a person of reasonable firmness in fear of immediate bodily harm.\nThe following day, the jury sent another question to the trial court which stated: \u201cDefinition of Assault differs from \u2018charge\u2019 definition by omitting the word Attempt. In proving guilty [sic] of Assault does Physical contact have to occur?\u201d The trial court then instructed the jury that:\nThe agreement of all the parties, and I agreed with their recommendation, is that I ask you to rely on the jury instructions that you\u2019ve already been given. You\u2019ve been given the definition of assault and been given other instructions as far as the offense is concerned. And it\u2019s our belief that the answer to that question lies within the instructions you\u2019ve already been given. So I would ask you to go back through the instructions.\nDefendant argues that the indictments here did not allow the State to prove either assault based on a theory of \u201cattempt.\u201d Defendant argues that these instructions allowed the jury to consider \u201cattempt\u201d as a basis for a guilty verdict. We do not agree.\n\u201cIn order to establish plain error, a defendant must establish that the trial court committed error and that absent this error, the jury would have probably reached a different result.\u201d State v. Gainey, 355 N.C. 73, 93, 558 S.E.2d 463, 477 (2002), cert. denied, - U.S. -, - L. Ed. 2d - (Oct. 7, 2002) (No. 02-5130). \u201cIn deciding whether a defect in the jury instruction constitutes \u2018plain error,\u2019 the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury\u2019s finding of guilt.\u201d State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378-79 (1983).\nThe error in the instructions must be \u201cso fundamental that it denied the defendant a fair trial and quite probably tilted the scales against him.\u201d We have observed that \u201c \u2018[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.\u2019 \u201d\nState v. Lucas, 353 N.C. 568, 584, 548 S.E.2d 712, 723-24 (2001) (citations omitted).\nHere, the trial court instructed the jury for assault on a female that \u201cthe defendant intentionally assaulted the victim by hitting her with his hands and feet.\u201d For the assault inflicting serious injury charge, the trial court instructed that \u201cthe defendant assaulted the victim by intentionally and without justification or excuse hitting and/or scratching the victim.\u201d The trial court did not instruct on the definition of assault during the jury charge. However, the trial court did define assault after it received a question from the jury for a definition of assault. The trial court, with the consent of both the State and the defendant\u2019s counsel, brought the jury back to the courtroom and read the pattern jury instruction on assault to the jury. The following day, the jury sent a question seeking clarification of the definition of assault. Again, both the State and defendant\u2019s counsel agreed with the instruction by the trial court for the jury to \u201crely on the jury instructions that [they have] already been given.\u201d\n\u201cThe trial court is not required to frame its instructions with any greater particularity than is necessary to enable the jury to understand and apply the law to the evidence bearing upon the elements of the crime charged.\u201d State v. Weddington, 329 N.C. 202, 210, 404 S.E.2d 671, 677 (1991). The definition of assault provided to the jury did include \u201cattempt or the unequivocal appearance of an attempt with force and violence to do some immediate physical injury.\u201d However, the trial court\u2019s instruction during the jury charge stated that \u201cthe defendant intentionally assaulted the victim by hitting her with his hands and feet\u201d and that \u201cthe defendant assaulted the victim by intentionally and without justification or excuse hitting and/or scratching the victim.\u201d The inclusion of \u201cattempt\u201d in the definition of assault and the trial court\u2019s instruction that the jury was to rely on the instructions already given do not constitute plain error. \u201cWhere the charge as a whole presents the law fairly and clearly to the jury, the fact that isolated expressions, standing alone, might be considered erroneous affords no grounds for a reversal.\u201d State v. Jones, 294 N.C. 642, 653, 243 S.E.2d 118, 125 (1978).\nDefendant further argues that the trial court erred by instructing the jury on a theory of the case not presented by the indictment. Defendant argues that the indictment charged defendant with assaulting Gainey \u201cby hitting him with his hands and fists thereby inflicting serious injury.\u201d The trial court instructed the jury \u201cthat the defendant assaulted the victim by intentionally and without justification or excuse hitting and/or scratching the victim; and second, that the defendant inflicted serious injury upon the victim.\u201d Defendant argues that this instruction reduced the burden of proof and allowed the jury to consider scratching as the cause of the injuries. We do not agree.\nHere, defendant again argues that this instruction constituted plain error. The indictment alleged \u201chitting [Gainey] with his hands\u201d and the trial court\u2019s instruction provided \u201chitting and/or scratching [Gainey].\u201d Assuming arguendo, that the instruction was flawed, it does not rise to the level of plain error. In reviewing the entire record to \u201cdetermine if the instructional error had a probable impact on the jury\u2019s finding of guilt,\u201d Odom, 307 N.C. at 661, 300 S.E.2d at 379, we conclude that it did not. This assignment of error is dismissed.\nDefendant\u2019s remaining argument is that the trial court erred by failing to incorporate a \u201cfull self-defense\u201d instruction into the assault inflicting serious injury charge. When instructing the jury on the assault inflicting serious injury charge, the trial court stated that \u201cI\u2019m not going to reread the instruction on self defense to you. Just remember the instructions I gave you previously, because they apply in this offense as well as in the prior one.\u201d Defendant argues that \u201cthe jury failed to hear the full instruction regarding self-defense with the elements of the charge in mind.\u201d We are not persuaded.\nThe trial court gave a complete self-defense instruction when it instructed the jury on the assault on a female charge. The trial court then instructed on the assault inflicting serious injury charge and provided a summary of the self-defense instruction and incorporated by reference the earlier instruction. From the transcript, the two instructions were given in close proximity as only two pages of transcript exist between the complete self-defense instruction and the complained of instruction. Under the plain error standard \u201creversal is justified when the claimed error is so basic, prejudicial, and lacking in its elements that justice was not done.\u201d State v. Prevatte, 356 N.C. 178, 258, 570 S.E.2d 440, 484 (2002). The absence of a second full self-defense instruction here is not plain error. This assignment of error is dismissed.\nIn addition, defendant argues that the trial court erred by not instructing the jury on the lesser included offenses of affray or simple assault. This Court \u201cwill not consider arguments based upon issues which were not presented or adjudicated by the trial tribunal. Further, the lack of an exception or assignment of error addressed to the issue attempted to be raised is a fatal defect.\u201d State v. Smith, 50 N.C. App. 188, 190, 272 S.E.2d 621, 623 (1980) (citations omitted). Defendant did not object at trial to this portion of the jury instructions and the record does not contain any assignments of error pertaining to the failure of the trial court to give instructions on the lesser included offenses of affray or simple assault. Accordingly, this argument is waived.\nNext, defendant contends that his habitual felon conviction must be vacated because habitual misdemeanor assault is not a substantive offense. Defendant concedes that State v. Smith, 139 N.C. App. 209, 214, 533 S.E.2d 518, 520, appeal dismissed, 353 N.C. 277, 546 S.E.2d 391 (2000) held that the habitual misdemeanor assault statute defines a substantive offense. Defendant asks this Court to review the issue and overrule Smith. \u201cWhen a panel of this Court has decided the same issue in a different case, subsequent panels are bound to the decision until it is overturned by a higher court.\u201d State v. Taylor, 128 N.C. App. 394, 402, 496 S.E.2d 811, 816-17, aff'd, 349 N.C. 219, 504 S.E.2d 785 (1998). We are bound by Smith and overrule this assignment of error.\nDefendant next contends that his habitual misdemeanor assault convictions must be vacated because the habitual misdemeanor assault statute is unconstitutional. Specifically, defendant argues that G.S. \u00a7 14-33.2 is unconstitutional on its face and is unconstitutional as applied to the defendant. We do not agree.\nDefendant argues that the habitual misdemeanor assault statute is unconstitutional as applied to defendant because it retroactively increases the punishment for defendant\u2019s five misdemeanor charges used to support the habitual misdemeanor assault charge. Defendant argues that some of the prior misdemeanors preceded the enactment of the habitual misdemeanor assault statute. Defendant argues that this violates the ex post facto clauses of the United States and North Carolina Constitutions.\nDefendant\u2019s argument that the felony of habitual misdemeanor assault violates the ex post facto prohibitions has already been rejected by this Court. See Smith, 139 N.C. App. at 214-15, 533 S.E.2d at 521. Because the habitual misdemeanor assault statute \u201cdoes not impose punishment for previous crimes, but imposes an enhanced punishment for behavior occurring after the enactment of the statute, because of the repetitive nature of such behavior, we hold the habitual misdemeanor assault statute does not violate the prohibition on ex post facto laws.\u201d Id.\nDefendant\u2019s remaining argument is that G.S. \u00a7 14-33.2 is unconstitutional on its face. Defendant argues that his conviction violates double jeopardy because his prior misdemeanor convictions are elements of the habitual misdemeanor assault offense. Defendant further argues that his habitual misdemeanor assault conviction violates double jeopardy because it is a substantive offense, rather than a penalty enhancing offense.\nThese same arguments were made by the defendant in State v. Vardiman, 146 N.C. App. 381, 552 S.E.2d 697 (2001), cert. denied, - U.S. -, - L. Ed. 2d \u2014 (Oct. 7, 2002) (No. 01-10066) in challenging the habitual impaired driving statute. The Vardiman court rejected those arguments and upheld the constitutionality of the habitual impaired driving statute. Id. at 383, 552 S.E.2d at 699. Because we conclude that the logic of Vardiman applies with equal force here, we hold that the habitual misdemeanor assault statute does not violate the United States Constitution or the North Carolina Constitution provisions against double jeopardy.\nG.S. \u00a7 14-33.2 (2001) states that:\nA person commits the offense of habitual misdemeanor assault if that person violates any of the provisions of G.S. 14-33(c) or G.S. 14-34 and has been convicted of five or more prior misdemeanor convictions, two of which were assaults. A person convicted of violating this section is guilty of a Class H felony.\nThis Court has previously noted the similarities in the habitual misdemeanor assault statute and the habitual impaired driving statute. See Smith, 139 N.C. App. at 213, 533 S.E.2d at 520 (\u201cBoth the habitual misdemeanor assault statute and the habitual impaired driving statute declare that a person \u2018commits the offense\u2019 if that person currently commits specified acts and has been convicted of a specified number of similar offenses in the past.\u201d); Vardiman, 146 N.C. App. at 386, 552 S.E.2d at 700 (\u201c[T]he habitual misdemeanor assault statute was congruent in form to the habitual driving while impaired statute such that both were substantive and not \u2018merely\u2019 status offenses.\u201d). This Court\u2019s reasoning in Vardiman is instructive here with regard to the defendant\u2019s double jeopardy argument.\nThe Vardiman court \u201cconcluded that \u2018the legislature must not have intended to make habitual impaired driving solely a punishment enhancement status.\u2019 \u201d Vardiman, 146 N.C. App. at 385, 552 S.E.2d at 700 (emphasis in original) (quoting State v. Priddy, 115 N.C. App. 547, 549, 445 S.E.2d 610, 612, disc. review denied, 337 N.C. 805, 449 S.E.2d 751 (1994)).\nStatutes criminalizing behavior such as theft and murder, which are substantive offenses, are subject to double jeopardy analysis. Habitual impaired driving, however, is a substantive offense and a punishment enhancement (or recidivist, or repeat-offender) offense.\nIt is not disputed that the habitual impaired driving statute is a recidivist statute. Of the aforementioned cases that draw a distinction between substantive and status offenses, none hold a recidivist statute unconstitutional for double jeopardy reasons. Throughout the country, recidivist statutes are routinely upheld against double jeopardy concerns. The more authentic distinction to be drawn in assessing double jeopardy concerns is between recidivist and non-recidivist statutes, not between substantive and status offenses. While most recidivist statutes are set out in language that makes them classifiable as status offenses, the difference between a status offense and the habitual impaired driving statute, a substantive offense, is merely one of form, not substance. Prior convictions of driving while impaired are the elements of the offense of habitual impaired driving, but the statute \u201cdoes not impose punishment for [these] previous crimes, [it] imposes an enhanced punishment\u201d for the latest offense.\nId. at 385, 552 S.E.2d at 700 (citation omitted) (emphasis added). The court then relied on Smith to \u201chold that the habitual impaired driving statute does not punish prior convictions a second time, but rather punishes the most recent conviction more severely because of the prior convictions.\u201d Id. at 386, 552 S.E.2d at 701.\nHere, \u201c[a] close analysis of the precise wording of the habitual offender statutes in North Carolina reveals the intent of the Legislature that habitual misdemeanor assault be a substantive offense rather than merely a status for purposes of sentence enhancement.\u201d Smith, 139 N.C. App. at 212, 533 S.E.2d at 519-20 (emphasis added). Applying the reasoning in Vardiman here, we conclude that habitual misdemeanor assault \u201cis a substantive offense and a punishment enhancement (or recidivist, or repeat-offender) offense.\u201d Vardiman, 146 N.C. App. at 385, 552 S.E.2d at 700 (emphasis in original).\nThe defendant in Vardiman also argued that habitual impaired driving violated the double jeopardy provisions because the statute \u201cencompasses prior driving while impaired convictions as elements of the crime of habitual driving while impaired.\u201d Vardiman, 146 N.C. App. at 386, 552 S.E.2d at 701 (emphasis in original). Again, the Vardiman court\u2019s rationale is instructive.\nDefendant cites a litany of cases that seem to stand for the proposition that \u201cwhen a criminal offense in its entirety is an essential element of another offense a defendant may not be punished for both offenses.\u201d The United States Supreme Court, however, distinguishes prior convictions as elements of a crime from other elements of a crime, holding that \u201c[ojther 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 the jury, and proved beyond a reasonable doubt.\u201d Apprendi is in line with our conclusion in the case sub judice, that whether a statute survives a double jeopardy constitutional analysis does not depend on whether the statute is called substantive or status, or whether the statute is comprised of elements or sentencing factors, but what the statute accomplishes in reality. The point that \u201c[l]abels do not afford an acceptable answer . . . applies as well... to the constitutionally novel and elusive distinction between \u2018elements\u2019 and \u2018sentencing factors.\u2019 \u201d \u201cDespite what appears to us the clear \u2018elemental\u2019 nature of the factor here, the relevant inquiry is one not of form, but of effectf.]\u201d The effect of section 20-138.5 is that a defendant is punished more severely for a recent crime based on having committed previous crimes. Consequently, section 20-138.5 does not violate the United States and North Carolina Constitutions.\nId. at 386-87, 552 S.E.2d at 701 (citations omitted).\nThis Court has previously stated that \u201cthe habitual misdemeanor assault statute similarly does not impose punishment for previous crimes, but imposes an enhanced punishment for behavior occurring after the enactment of the statute.\u201d Smith, 139 N.C. App. at 214, 533 S.E.2d at 521. Accordingly, we hold that the habitual misdemeanor assault statute does not violate the double jeopardy provisions of the United States and North Carolina Constitutions.\nDefendant next contends that his habitual felon conviction must be vacated because the trial court erred by failing to dismiss the indictment due to incompetent prior convictions. Defendant argues that the trial court erred by denying his motion to dismiss the habitual felon indictment because the two New Jersey convictions were \u201cnot felonies within the meaning of the North Carolina Habitual Felons Act.\u201d Defendant contends that the State did not show that defendant\u2019s New Jersey convictions were felonies under the law of New Jersey. We agree.\nIn State v. Lindsey, 118 N.C. App. 549, 552-53, 455 S.E.2d 909, 911-12 (1995), this Court reversed the denial of defendant\u2019s motion to dismiss his habitual felon charge when one of the three convictions was a New Jersey conviction. Lindsey noted that:\nThe indictment does not charge defendant with felonious possession of stolen property. The judgment does not recite that defendant pled guilty to a felony or was sentenced as a felon. There was no certification from any official that the offense charged in Count III was a felony in New Jersey in 1975. We cannot conclude from the length of defendant\u2019s sentence (two to three years) that the offense was a felony in New Jersey.\nId. at 553, 455 S.E.2d at 912. The Lindsey court \u201cagree[d] with [the] defendant that the State did not present substantial evidence that this third conviction relied upon was a felony as required by our law.\u201d Id.\nHere, defendant\u2019s two New Jersey judgments do not state that he was convicted of a felony or sentenced as a felon. In addition, there was no certification from any official that the two offenses were felonies in New Jersey. We note the State\u2019s argument that defendant could have received sentences exceeding one year for each of his two New Jersey convictions and that \u201cunder New Jersey law, offenses punishable by more than one year in prison constitute common-law felonies.\u201d United States v. Brown, 937 F.2d 68, 70 (2nd Cir. 1991). However, Lindsey provided that \u201c[w]e cannot conclude from the length of defendant\u2019s sentence (two to three years) that the offense was a felony in New Jersey.\u201d Lindsey, 118 N.C. App. at 553, 455 S.E.2d at 912. We conclude that the trial court erred in denying defendant\u2019s motion to dismiss the habitual felon indictment.\nBecause we conclude that defendant\u2019s habitual felon conviction must be vacated due to incompetent prior convictions and the matter must be remanded for resentencing, we need not address defendant\u2019s remaining assignments of error regarding his habitual felon conviction and prior record level.\nNo error in part, reversed in part, vacated in part and remanded for resentencing.\nJudges TYSON and THOMAS concur.", "type": "majority", "author": "EAGLES, Chief Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General, John P. Scherer, II, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender, Aaron Edward Carlos, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. VINCENT TODD CARPENTER, Defendant\nNo. COA01-1600\n(Filed 31 December 2002)\n1. Jury\u2014 dismissal of jurors \u2014 ex parte communication\u2014 absence of defendant\nThe trial court did not err in an assault inflicting serious injury and assault on a female case by conducting alleged ex parte communication with jurors and thereafter dismissing those jurors, because: (1) defendant\u2019s trial had not commenced when the court held unrecorded bench conferences and deferred five jurors; and (2) the jurors were not excused at a stage of defendant\u2019s trial, and defendant did not have the right to be present at the conferences.\n2. Constitutional Law\u2014 denial of right to self-representation \u2014 no plain error\nAlthough defendant contends he is entitled to a new trial in an assault inflicting serious injury and assault on a female case based on the trial court\u2019s denial of defendant\u2019s request to represent himself, this assignment of error is dismissed because: (1) plaintiff failed to object at trial and plain error review involves either errors in the judge\u2019s jury instructions or rulings on the admissibility of evidence; and (2) defendant\u2019s assignment of error does not involve jury instructions or the admissibility of evidence.\n3. Appeal and Error\u2014 preservation of issues \u2014 failure to raise constitutional issue at trial\nAlthough defendant contends the trial court violated his equal protection rights by failing to vacate his habitual misdemeanor assault conviction under N.C.G.S. \u00a7 14-33(c)(3), this assignment of error is dismissed because: (1) defendant did not raise the constitutionality of the statute at trial; and (2) the Court of Appeals will not review constitutional questions that were not raised or passed upon in the trial court.\n4. Assault\u2014 inflicting serious injury \u2014 sufficiency of evidence \u2014 volitionally or knowingly causing injuries\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of assault inflicting serious injury under N.C.G.S. \u00a7 14-33 based on alleged insufficient evidence to show that defendant volitionally or knowingly caused these injuries, because the evidence viewed in the light most favorable to the State revealed that defendant broke a bone in the victim\u2019s mouth, damaged the victim\u2019s tooth, and broke a bone in the victim\u2019s hand.\n5. Assault\u2014 instruction \u2014 definition including \u201cattempt\u201d\u2014 not plain error\nThe trial court did not commit plain error by giving the jury a definition of assault that included \u201cattempt or the unequivocal appearance of an attempt with force and violence to do some immediate physical injury\u201d when the indictments did not allege assaults based on a theory of \u201cattempt\u201d because the court instructed the jury that, in order to find defendant guilty of assault on a female, it must find that \u201cthe defendant intentionally assaulted the victim by hitting her with his hands and feet,\u201d and in order to find defendant guilty of assault inflicting serious injury, it must find that \u201cthe defendant assaulted the victim by intentionally and without justification or excuse hitting and/or scratching the victim.\u201d\n6. Assault\u2014 inflicting serious injury \u2014 on a female \u2014 jury instruction \u2014 theory not presented in indictment \u2014 scratching\nAssuming that the trial court erred in an assault inflicting serious injury case by instructing the jury on a theory of the case not presented in the indictment by allowing the consideration of scratching of the victim as the cause of the injuries when the indictment alleged only hitting the victim with hands and fists, the error does not rise to the level of plain error since it did not have a probable impact on the jury\u2019s finding of guilt.\n7. Assault\u2014 inflicting serious injury \u2014 self-defense instruction\nThe trial court did not commit plain error by failing to incorporate a full self-defense instruction into the assault inflicting serious injury charge, because: (1) the trial court gave a complete self-defense instruction when it instructed the jury on the assault on a female charge; (2) the trial court then instructed on the assault inflicting serious injury charge and provided a summary of the self-defense instruction and incorporated by reference the earlier instruction; and (3) the transcript revealed that the two instructions were given in close proximity.\n8. Appeal and Error\u2014 preservation of issues \u2014 failure to object at trial \u2014 no assignment of error\nAlthough defendant contends the trial court erred in an assault inflicting serious injury and assault on a female case by failing to instruct the jury on the lesser-included offenses of affray or simple assault, this argument is waived because: (1) defendant did not object at trial to this portion of the jury instructions; and (2) the record does not contain any assignments of error pertaining to this issue.\n9. Appeal and Error\u2014 preservation of issues \u2014 issue already decided\nAlthough defendant contends the trial court erred in an assault inflicting serious injury and assault on a female case by failing to vacate defendant\u2019s habitual felon conviction since his habitual misdemeanor assault conviction allegedly is not a substantive offense, this assignment of error is overruled because: (1) a panel of the Court of Appeals has decided the same issue against defendant in a different case; and (2) subsequent panels are bound to the decision until it is overturned by a higher court.\n10.Assault\u2014 habitual misdemeanor assault convictions \u2014 ex post facto laws \u2014 double jeopardy\nThe trial court did not err by failing to vacate defendant\u2019s habitual misdemeanor assault convictions even though defendant contends N.C.G.S. \u00a7 14-33.2 is unconstitutional on its face and as applied to defendant, because: (1) defendant\u2019s argument that habitual misdemeanor assault convictions violate ex post facto prohibitions has already been rejected by our Court of Appeals; and (2) the statute does not violate the United States Constitution or the North Carolina Constitution provisions against double jeopardy since the statute is a substantive offense and a punishment enhancement offense rather than a statute imposing punishment for previous crimes.\n11. Sentencing \u2014 habitual felon \u2014 incompetent prior convictions\nThe trial court erred by denying defendant\u2019s motion to dismiss the habitual felon indictment based on incompetent prior convictions in the indictment, because: (1) the State did not show that defendant\u2019s New Jersey convictions were felonies under the law of New Jersey; (2) defendant\u2019s two New Jersey judgments do not state that defendant was convicted of a felony or sentenced as a felon; (3) there was no certification from any official that the two offenses were felonies in New Jersey; and (4) it cannot be concluded from the length of defendant\u2019s sentence that the offense was a felony in New Jersey.\nAppeal by defendant from judgment entered 22 March 2001 by Judge Kimberly S. Taylor in Stanly County Superior Court. Heard in the Court of Appeals 14 October 2002.\nAttorney General Roy Cooper, by Assistant Attorney General, John P. Scherer, II, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender, Aaron Edward Carlos, for defendant-appellant." }, "file_name": "0035-01", "first_page_order": 65, "last_page_order": 81 }