{ "id": 8996407, "name": "STATE OF NORTH CAROLINA v. WALLACE ANTIJUAN BOSTON", "name_abbreviation": "State v. Boston", "decision_date": "2004-07-06", "docket_number": "No. COA02-1717", "first_page": "214", "last_page": "222", "citations": [ { "type": "official", "cite": "165 N.C. App. 214" } ], "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": "560 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "pin_cites": [ { "page": "869" }, { "page": "869" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 462", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9128962 ], "weight": 2, "pin_cites": [ { "page": "465" }, { "page": "465" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0462-01" ] }, { "cite": "18 U.S.C. \u00a7 922", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(g)(1)" } ], "opinion_index": 0 }, { "cite": "205 F.3d 1292", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11464325 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "1297" } ], "opinion_index": 0, "case_paths": [ "/f3d/205/1292-01" ] }, { "cite": "389 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "54" } ], "opinion_index": 0 }, { "cite": "326 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306215 ], "year": 1990, "pin_cites": [ { "page": "278-79" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0268-01" ] }, { "cite": "392 S.E.2d 346", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "350" } ], "opinion_index": 0 }, { "cite": "326 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305505 ], "year": 1990, "pin_cites": [ { "page": "696" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0689-01" ] }, { "cite": "244 S.E.2d 654", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1978, "pin_cites": [ { "page": "660" }, { "page": "661-62" } ], "opinion_index": 0 }, { "cite": "295 N.C. 189", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561983 ], "weight": 4, "year": 1978, "pin_cites": [ { "page": "200" }, { "page": "200-01" }, { "page": "203" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0189-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "page": "(b)(l)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 90-90", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "page": "(l)(d)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-415.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "page": "(c)", "parenthetical": "emphasis added" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 788, "char_count": 17192, "ocr_confidence": 0.729, "pagerank": { "raw": 2.652024682122275e-07, "percentile": 0.8241401332664569 }, "sha256": "72982e20f8b5d38d88b8e6a88a159d439a6615867da8f1d0171076ed474d8438", "simhash": "1:b72fbf67f56ebcf5", "word_count": 2848 }, "last_updated": "2023-07-14T17:46:04.930387+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge ELMORE concurs.", "Judge WYNN concurs in the result." ], "parties": [ "STATE OF NORTH CAROLINA v. WALLACE ANTIJUAN BOSTON" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nWallace Antijuan Boston (\u201cdefendant\u201d) appeals his convictions of second-degree trespass and possession of firearms by a felon. For the reasons stated herein, we conclude that defendant received a trial free of prejudicial error.\nThe factual and procedural history of this case is as follows: In June 1997 Michael Godwin (\u201cGodwin\u201d), deputy director for the Housing Authority of the City of Asheville (\u201cHousing Authority\u201d), sent a letter to defendant banning him from all Housing Authority properties, specifically the Deaverview Apartment complex (\u201cDeaverview\u201d). The ban was based on a prior, dismissed illegal gambling charge against defendant, and an April 1996 conviction of possession with intent to sell and distribute cocaine.\nDeaverview resident Derrick Smith (\u201cSmith\u201d) testified at trial that on 25 October 2000, he observed defendant walking through the parking lot of the apartment complex carrying a pistol. Defendant walked toward Jonathan Daniels (\u201cDaniels\u201d) who, upon observing defendant, ran behind a parked car. Defendant chased Daniels around the car several times. Smith heard defendant repeat the following statement to Daniels two or three times: \u201cLet\u2019s put the guns down, put the guns down, let\u2019s fight like men.\u201d Defendant placed his gun on the ground. Daniels reached over the car, aimed a gun at defendant who was in a crouched position behind the car, and shot defendant four times. Soon thereafter, police officers from the Asheville Police Department and paramedics arrived'on the scene.\nDefendant was taken to Mission Hospital, where he was treated for four gunshot wounds. On 9 November 2000, two arrest warrants were issued, charging defendant with second-degree trespassing and possession of firearms by a felon. Defendant was subsequently arrested and indicted on these two charges.\nAt the beginning of trial, defendant made an oral motion to dismiss the charge of possession of firearms by a felon. Defendant argued that the bill of indictment did not provide the penalty for the felony of which defendant was previously convicted, and therefore the indictment was fatally defective. The trial court denied defendant\u2019s motion, and proceeded with the trial. The jury subsequently found defendant guilty of second-degree trespassing and possession of firearms by a felon. Defendant was sentenced to a term of fifteen to eighteen months imprisonment. It is from these convictions that defendant appeals.\nAs an initial matter, we note that defendant\u2019s brief contains arguments supporting only three of the original five assignments of error on appeal. The two omitted assignments of error are deemed abandoned pursuant to N.C. R. App. P. 28(b)(6) (2004). We therefore limit our review to those assignments of error addressed in defendant\u2019s brief.\nThe issues presented for appeal are whether the trial court erred by (I) denying defendant\u2019s motion to dismiss the indictment for possession of firearms by a felon; (II) allowing the State to introduce evidence that defendant\u2019s probationary sentence was revoked; and (III) failing to instruct the jury that justification is an affirmative defense to the charge of possession of firearms by a felon.\nDefendant first argues that the trial court erred by denying defendant\u2019s motion to dismiss the indictment for possession of firearms by a felon. Defendant argues that the indictment is fatally defective because it fails to state the statutory penalty for the underlying felony conviction. We disagree.\nDefendant was charged pursuant to \u00a7 14-415.1 with possession of firearms by a felon. Section 14-415.1(a) prohibits \u201cany person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any handgun or other firearm . . . .\u201d Specific information is required for a proper indictment of possession of firearms by a felon. The indictment\nmust set forth the date that the prior offense was committed, the type of offense and the penalty therefor, and the date that the defendant was convicted or plead guilty to such offense, the identity of the court in which the' conviction or plea of guilty took place and the verdict and judgment rendered therein.\nN.C. Gen. Stat. \u00a7 14-415.1(c) (2003) (emphasis added).\nIn the case sub judice, the indictment in question reads as follows:\n[T]he defendant named above unlawfully, willfully and felo-niously did did [sic] have in his custody, care and control a handgun, on October 25, 2000. The defendant is a convicted felon in that on or about December 1, 1995, the defendant did commit the felony of Possess [sic] with Intent to Sell or Deliver Cocaine, in violation of G.S. 90-95(a)(l), and that on or about April 9, 1996, the defendant was convicted of that felony in Buncombe County Superior Court, Asheville, North Carolina, and was sentenced to 8-10 months in the North Carolina Department of Corrections.\nThus, the indictment expressly contains all of the elements required by \u00a7 14-415.1(c), except for the penalty for Possession with Intent to Sell or Deliver Cocaine. Cocaine is classified as a Schedule II controlled substance. See N.C. Gen. Stat. \u00a7 90-90(l)(d) (2003). Section 90-95, referenced in the statute, provides as follows: \u201c[A]ny person who violates G.S. 90-95(a)(l) with respect to a controlled substance classified in Schedule I or II shall be punished as a Class H felon....\u201d N.C. Gen. Stat. \u00a7 90-95(b)(l) (2003).\nThe facts of this case are analogous to State v. House, 295 N.C. 189, 244 S.E.2d 654 (1978). In House, the defendant challenged a bill of indictment, arguing that it did not comply with N.C. Gen. Stat. \u00a7 15A-644(a), which provided as follows:\n(a) An indictment must contain:\n(1) The name of the Superior Court in which it is filed;\n(2) The title of the action;\n(3) Criminal charges pleaded as provided in Article 49 of this Chapter, Pleadings and Joinder;\n(4) The signature of the solicitor, but its omission is not a fatal defect; and\n(5) The signature of the foreman or acting foreman of the grand jury attesting the concurrence of twelve or more grand jurors in the finding of a true bill of indictment.\n295 N.C. at 200, 244 S.E.2d at 660, citing N.C. Gen. Stat. \u00a7 15A-644 (emphasis added). The indictment in question contained the foreman\u2019s signature beneath the statement that the bill was found a \u201ctrue bill,\u201d but contained no express attestation that twelve or more grand jurors concurred in finding it a true bill. Id., 295 N.C. at 200-01.\nUpon reviewing House, the Supreme Court stated the following:\n\u201cIn determining the mandatory or directory nature of a statute, the importance of the provision involved may be taken into consideration. Generally speaking, those provisions which are a mere matter of form, or which are not material, do not affect any substantial right, and do not relate to the essence of the thing to be done so that compliance is a matter of convenience rather than substance, are considered to be directory.\u201d\nWhile, ordinarily, the word \u201cmust\u201d and the word \u201cshall,\u201d in a statute, are deemed to indicate a legislative intent to make the provision of the statute mandatory, and a failure to observe it fatal to the validity of the purported action, it is not necessarily so and the legislative intent is to be derived from a consideration of the entire statute. To interpret G.S. 15A-644 as requiring the quashing of a bill of indictment under the circumstances of this case would be to attribute to the Legislature an intent to paramount mere form over substance. This we decline to do.\n295 N.C. at 203, 244 S.E.2d at 661-62, quoting 73 Am. Jur. 2d, Statutes, \u00a7 19.\nIn the case subjudice, we hold that the provision of \u00a7 14-415.1(c) that requires the indictment to state the penalty for the prior offense is not material and does not affect a substantial right. Defendant is no less apprised of the conduct which is the subject of the accusation than he would have been if the penalty for the prior conviction had been included in the indictment. To hold otherwise would permit form to prevail over substance. Thus, the trial court did not err by denying defendant\u2019s motion to dismiss the indictment.\nDefendant next asserts that the trial court erred by allowing the State to introduce evidence that defendant\u2019s probationary sentence for the possession with intent to sell and distribute cocaine conviction was revoked, and that an active sentence was imposed. We disagree.\nThe standard of review for this Court assessing evidentiary rulings is abuse of discretion. State v. Meekins, 326 N.C. 689, 696, 392 S.E.2d 346, 350 (1990). North Carolina Evidence Rule 404(b) provides as follows:\nEvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.\nN.C. Gen. Stat. \u00a7 8C, Rule 404(b) (2003). The rule has been interpreted by North Carolina courts as \u201ca clear general rule of inclusion.\" State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990). Relevant evidence of other crimes, wrongs or acts by a defendant are admissible subject to but one exception: \u201cif its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.\u201d Id.\nIn the case sub judice, Elizabeth Whittenberger (\u201cWhittenberger\u201d), a deputy clerk of superior court, testified on direct examination by the State as follows:\nQ: I\u2019m going to show you two documents that we will mark collectively as State\u2019s Exhibit No. 2 and ask you if you will identify those.\nA: Okay. The first document that you\u2019re showing me is a judgment suspending sentence.\nQ: Who does that document pertain to?\nA: Wallace Boston.\nQ: And if you will look at \u2014 And for what conviction is that suspended judgment for?\nA: That is for Possession with Intent to Sell Schedule II Cocaine, a felony.\nQ: And if you will take a look at the second document that\u2019s in there.\nA: Okay. That\u2019s a revocation of the judgment. It\u2019s a judgment and commitment where Wallace Boston\u2019s suspended sentence was revoked.\nQ: And that\u2019s for the same charge, for Possession with Intent to Sell and Deliver Cocaine?\nA: Correct.\nMr. Brown: Objection. Motion to strike that statement, Your Honor.\nThe Court: I didn\u2019t hear all of the statement. I\u2019m sorry.\nQ: I just said, and that is for the same charge of Possession with Intent to Sell Schedule II Cocaine.\nThe Court: And your objection as to that question?\nMr. Brown: I\u2019m not objecting to that question. I\u2019m objecting to her answer. She didn\u2019t answer the question. I think her answer would be either it was or it wasn\u2019t.\nA: Well, I\u2019m sorry you didn\u2019t hear me. I said yes, it is the same conviction.\nQ: And are both of these documents certified and true copies?\nA: Correct.\nQ: And is that stamped \u201cCertified\u201d by you?\nA: Yes, it is.\nMr. Martin: Your Honor, the State would move to enter State Exhibit No. 2 into evidence.\nMr. Brown: I\u2019m going to object to part of the exhibit.\nThe Court: Let me see State\u2019s Exhibit No. 2.\n(PAUSE)\nThe Court: Come up here a minute.\n(DISCUSSION OFF THE RECORD)\nThe Court: All right, ladies and gentlemen of the jury, State\u2019s Exhibit No. 2 is offered and received into evidence for the limited purpose of showing the Defendant Wallace Boston\u2019s status on the day in question and for no other purpose.\nIt is unclear from this testimony whether defendant actually made a Rule 404 objection to Whittenberger\u2019s testimony, and thus whether defendant properly preserved this issue for review on appeal. We see in the above exchange that defendant objected twice during Whittenberger\u2019s testimony. His first objection came after the State\u2019s question tying the Revocation of Judgment to defendant\u2019s conviction of Possession with Intent to Sell and Distribute Cocaine. Defendant objected to the form of Whittenberger\u2019s answer. The second objection was to one of the two documents entered into evidence as State\u2019s Exhibit No. 2. However, because that objection was discussed off the record, we do not know the substance of defendant\u2019s objection.\nAssuming arguendo that defendant\u2019s second objection was based on Rule 404, we conclude that the evidence was relevant for the purpose of proving defendant\u2019s status as a convicted felon, and was therefore admissible. To the extent that the evidence tended to show that defendant committed inadmissible prior bad acts, i.e., that he violated the terms of his probation, we hold that the trial court\u2019s limiting instructions to the jury were sufficient to cure any prejudice against defendant. This assignment of error is overruled. .\nDefendant last argues that the trial court erred by failing to instruct the jury that justification is an affirmative defense to the charge of possession of firearms by a felon. We disagree.\nRecently, the federal courts have recognized justification as an affirmative defense to possession of firearms by a felon. See U.S. v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000). However, the North Carolina Court of Appeals has specifically noted \u201cthat the Deleveaux court limited the application of the justification defense to 18 U.S.C. \u00a7 922(g)(1) cases (federal statute for possession of a firearm by a felon) in \u2018only extraordinary circumstances.\u2019 \u201d State v. Napier, 149 N.C. App. 462, 465, 560 S.E.2d 867, 869, quoting Deleveaux, 205 F.3d at 1297.\nIn Napier, the defendant was a convicted felon who was involved in an on-going dispute with his neighbor and the neighbor\u2019s son. On or about 30 June 1999, the neighbor\u2019s son discharged a shotgun directed over the defendant\u2019s property. The neighbor\u2019s son continued this action for the next several days. On 3 July 1999, the defendant walked over to the neighbor\u2019s property armed with a nine millimeter handgun in a holster on his hip to confront the neighbor and the neighbor\u2019s son. The confrontation escalated into a. physical altercation and the defendant shot the neighbor\u2019s son in the arm.\nThis Court declined to apply the Deleveaux rationale in Napier because the evidence did not support a conclusion that the defendant was under an imminent threat of death or injury. 149 N.C. App. at 465, 560 S.E.2d at 869. This Court reached this conclusion despite evidence that the neighbor had been firing bullets over the defendant\u2019s property and that the two parties engaged in prior altercations. Id.\nIn the case sub judice, the evidence tended to show that defendant and Daniels were engaged in an on-going conflict whereby in the week prior to the shooting, Daniels threatened to kill defendant, and on at least one prior occasion Daniels fired a gun at defendant. However, the evidence also tends to show that on the day of the shooting, defendant was observed walking through the apartment complex carrying a pistol. The State\u2019s evidence also tended to show that defendant chased Daniels around a parked car with the gun in hand. Therefore, we hold that, as in Napier, there is no evidence to support the conclusion that defendant was under an imminent threat of death or injury when he made the decision to carry the gun. Accordingly, the trial court did not err in failing to instruct the jury on justification as an affirmative defense.\nNo error.\nJudge ELMORE concurs.\nJudge WYNN concurs in the result.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General June S. Ferrell, for the State.", "Reita P. Pendry for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WALLACE ANTIJUAN BOSTON\nNo. COA02-1717\n(Filed 6 July 2004)\n1. Firearms and Other Weapons\u2014 possession of firearm by felon \u2014 penalty for underlying offense \u2014 substantial right not affected\nThe trial court did not err by denying defendant\u2019s motion to dismiss an indictment for possession of a firearm by a felon where the indictment did not state the penalty for the underlying conviction. The provision of N.C.G.S. \u00a7 14-415.1(c) that requires the indictment to state the penalty is not material and does not affect a substantial right. Defendant is no less apprised of the conduct which is the subject of the accusation than he would have been if the penalty had been included.\n2. Evidence\u2014 possession of firearm by felon \u2014 probation for underlying offense revoked \u2014 relevant\nEvidence that defendant\u2019s probation had been revoked was admissible in a prosecution for possession of a firearm by a felon. The evidence was relevant to proving defendant\u2019s status as a felon and the court\u2019s limiting instructions were sufficient to cure any prejudice.\n3. Firearms and Other Weapons\u2014 possession by felon \u2014 no instruction on justification\nThe trial court did not err by refusing to give an instruction on justification in a prosecution for possession of a firearm by a felon. Defendant was involved in ah ongoing dispute, but there was no evidence that he was under an imminent threat of death or injury when he decided to carry a gun.\nJudge Wynn concurs in the result.\nAppeal by defendant from judgment entered 23 April 2002 by Judge Zoro J. Guice, Jr., in Buncombe County Superior Court. Heard in the Court of Appeals 14 October 2003.\nAttorney General Roy Cooper, by Assistant Attorney General June S. Ferrell, for the State.\nReita P. Pendry for defendant-appellant." }, "file_name": "0214-01", "first_page_order": 246, "last_page_order": 254 }