{ "id": 8411467, "name": "STATE OF NORTH CAROLINA v. KENNETH LEON SPELLMAN", "name_abbreviation": "State v. Spellman", "decision_date": "2004-12-21", "docket_number": "No. COA03-1526", "first_page": "374", "last_page": "395", "citations": [ { "type": "official", "cite": "167 N.C. App. 374" } ], "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": "411 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "413" } ], "opinion_index": 0 }, { "cite": "104 N.C. 793", "category": "reporters:state", "reporter": "N.C.", "year": 1991, "pin_cites": [ { "page": "797" } ], "opinion_index": 0 }, { "cite": "419 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "192", "parenthetical": "\"The trial court did not need to find an aggravating factor for the breaking and entering count since the defendant was convicted of a misdemeanor which is not subject to N.C. Gen. Stat. \u00a7 15A-1340.4(b" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 184", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527315 ], "year": 1992, "pin_cites": [ { "page": "190-91", "parenthetical": "\"The trial court did not need to find an aggravating factor for the breaking and entering count since the defendant was convicted of a misdemeanor which is not subject to N.C. Gen. Stat. \u00a7 15A-1340.4(b" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0184-01" ] }, { "cite": "398 S.E.2d 314", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "317" } ], "opinion_index": 0 }, { "cite": "327 N.C. 599", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497579 ], "year": 1990, "pin_cites": [ { "page": "606" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0599-01" ] }, { "cite": "335 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "350" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 433", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523182 ], "year": 1985, "pin_cites": [ { "page": "436" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0433-01" ] }, { "cite": "540 S.E.2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "383" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 679", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12133610 ], "year": 2000, "pin_cites": [ { "page": "690" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0679-01" ] }, { "cite": "364 S.E.2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 477", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569057, 2570019, 2572295, 2569672, 2570462 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0477-03", "/nc/321/0477-05", "/nc/321/0477-02", "/nc/321/0477-01", "/nc/321/0477-04" ] }, { "cite": "359 S.E.2d 485", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "491" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 24", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8357808 ], "year": 1987, "pin_cites": [ { "page": "34" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0024-01" ] }, { "cite": "583 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "387" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 546", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8957257 ], "year": 2003, "pin_cites": [ { "page": "557" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0546-01" ] }, { "cite": "495 S.E.2d 373", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "376", "parenthetical": "approving use of mandatory presumption where victim did not see a weapon but testified that defendant covered her head and threatened to shoot her if she resisted" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 506", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11655638 ], "year": 1998, "pin_cites": [ { "page": "510-11", "parenthetical": "approving use of mandatory presumption where victim did not see a weapon but testified that defendant covered her head and threatened to shoot her if she resisted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0506-01" ] }, { "cite": "438 S.E.2d 727", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "729" }, { "page": "729", "parenthetical": "approving use of mandatory presumption where victim believed defendant possessed a gun after he pulled an object \"wrapped in something\" from his pocket, despite defendant's testimony that he did not own or \"mess with guns\"" } ], "opinion_index": 0 }, { "cite": "335 N.C. 518", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532405 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "523" }, { "page": "523" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0518-01" ] }, { "cite": "268 S.E.2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "489" }, { "page": "489" } ], "opinion_index": 0 }, { "cite": "300 N.C. 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562770 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "507" }, { "page": "507" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0494-01" ] }, { "cite": "324 S.E.2d 841", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "844", "parenthetical": "emphasis in original" }, { "page": "844" }, { "page": "844" } ], "opinion_index": 0 }, { "cite": "312 N.C. 779", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750808 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "782", "parenthetical": "emphasis in original" }, { "page": "783" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0779-01" ] }, { "cite": "273 S.E.2d 716", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "719" } ], "opinion_index": 0 }, { "cite": "302 N.C. 137", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564083 ], "year": 1981, "pin_cites": [ { "page": "141" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0137-01" ] }, { "cite": "337 S.E.2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "315 N.C. 188", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715712, 4720431, 4715122, 4720187, 4718559 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/315/0188-02", "/nc/315/0188-05", "/nc/315/0188-04", "/nc/315/0188-03", "/nc/315/0188-01" ] }, { "cite": "331 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1985, "pin_cites": [ { "page": "254" }, { "page": "254" }, { "page": "254" }, { "page": "254" }, { "page": "254-55" } ], "opinion_index": 0 }, { "cite": "75 N.C. App. 543", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526305 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "548" }, { "page": "548" } ], "opinion_index": 0, "case_paths": [ "/nc-app/75/0543-01" ] }, { "cite": "154 S.E.2d 53", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1967, "pin_cites": [ { "page": "58" } ], "opinion_index": 0 }, { "cite": "270 N.C. 241", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566904 ], "year": 1967, "pin_cites": [ { "page": "247" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0241-01" ] }, { "cite": "558 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "103" } ], "opinion_index": 0 }, { "cite": "355 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219899 ], "year": 2002, "pin_cites": [ { "page": "125" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0117-01" ] }, { "cite": "74 L. Ed. 2d 513", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "459 U.S. 1018", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6468801, 6468547, 6469476, 6468711, 6469608, 6469353, 6468967, 6468624, 6468240, 6468465, 6469044, 6468343, 6469144, 6469246 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/459/1018-07", "/us/459/1018-04", "/us/459/1018-13", "/us/459/1018-06", "/us/459/1018-14", "/us/459/1018-12", "/us/459/1018-08", "/us/459/1018-05", "/us/459/1018-01", "/us/459/1018-03", "/us/459/1018-09", "/us/459/1018-02", "/us/459/1018-10", "/us/459/1018-11" ] }, { "cite": "676 F.2d 995", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 562145 ], "pin_cites": [ { "page": "1002" } ], "opinion_index": 0, "case_paths": [ "/f2d/676/0995-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.) (footnotes omitted) (emphasis in original), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.) (footnotes omitted) (emphasis in original), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "259 S.E.2d 356", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "357", "parenthetical": "citations omitted" }, { "page": "358" } ], "opinion_index": 0 }, { "cite": "43 N.C. App. 541", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553358 ], "year": 1979, "pin_cites": [ { "page": "543", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/43/0541-01" ] }, { "cite": "155 S.E.2d 303", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "305" } ], "opinion_index": 0 }, { "cite": "270 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569982 ], "year": 1967, "pin_cites": [ { "page": "658" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0655-01" ] }, { "cite": "314 S.E.2d 828", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "832", "parenthetical": "quoting State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967)" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 238", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526950 ], "year": 1984, "pin_cites": [ { "page": "244", "parenthetical": "quoting State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0238-01" ] }, { "cite": "571 S.E.2d 619", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "620-21" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 176", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249282 ], "year": 2002, "pin_cites": [ { "page": "178" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0176-01" ] }, { "cite": "572 S.E.2d 850", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "853" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 607", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251343 ], "year": 2002, "pin_cites": [ { "page": "609" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0607-01" ] }, { "cite": "431 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "247" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 810", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526556 ], "year": 1993, "pin_cites": [ { "page": "812" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0810-01" ] }, { "cite": "243 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "352-53" } ], "opinion_index": 0 }, { "cite": "294 N.C. 503", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574036 ], "year": 1978, "pin_cites": [ { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0503-01" ] }, { "cite": "459 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "513" }, { "page": "513" }, { "page": "513" } ], "opinion_index": 0 }, { "cite": "341 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793125 ], "year": 1995, "pin_cites": [ { "page": "177" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0173-01" ] }, { "cite": "588 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 510", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491488, 491905, 491778, 491757, 491888, 491603, 491573, 491413, 491447, 491645 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0510-01", "/nc/357/0510-09", "/nc/357/0510-05", "/nc/357/0510-07", "/nc/357/0510-04", "/nc/357/0510-08", "/nc/357/0510-02", "/nc/357/0510-06", "/nc/357/0510-03", "/nc/357/0510-10" ] }, { "cite": "530 S.E.2d 849", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "852" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 185", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11079078 ], "year": 2000, "pin_cites": [ { "page": "189" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0185-01" ] }, { "cite": "582 S.E.2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "pin_cites": [ { "page": "307" }, { "page": "307" }, { "page": "307" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 628", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188765 ], "weight": 2, "pin_cites": [ { "page": "635" }, { "page": "636" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0628-01" ] }, { "cite": "231 S.E.2d 693", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "694" } ], "opinion_index": 0 }, { "cite": "32 N.C. App. 298", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550200 ], "year": 1977, "pin_cites": [ { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/nc-app/32/0298-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-34.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-32", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "269 S.E.2d 250", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1980, "pin_cites": [ { "page": "255", "parenthetical": "emphasis in original" }, { "page": "255" }, { "page": "255" }, { "page": "279" }, { "page": "254" } ], "opinion_index": 0 }, { "cite": "48 N.C. App. 274", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550187 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "281", "parenthetical": "emphasis in original" }, { "page": "282" }, { "page": "282" } ], "opinion_index": 0, "case_paths": [ "/nc-app/48/0274-01" ] }, { "cite": "232 S.E.2d 424", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "428" } ], "opinion_index": 0 }, { "cite": "292 N.C. 170", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567750 ], "year": 1977, "pin_cites": [ { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0170-01" ] }, { "cite": "517 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "667", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 338", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11144448 ], "year": 1999, "pin_cites": [ { "page": "342", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0338-01" ] } ], "analysis": { "cardinality": 1498, "char_count": 50962, "ocr_confidence": 0.749, "pagerank": { "raw": 3.394573627539155e-07, "percentile": 0.8771127196991021 }, "sha256": "e7e65997d1cdb3dd240d7d3bd122457980888e9211415a1c5c0f81efa8994631", "simhash": "1:0868c0fc4e2e1cb0", "word_count": 8411 }, "last_updated": "2023-07-14T15:53:28.670431+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and McCULLOUGH concur." ], "parties": [ "STATE OF NORTH CAROLINA v. KENNETH LEON SPELLMAN" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nKenneth Leon Spellman (\u201cdefendant\u201d) appeals his conviction for robbery with a dangerous weapon, second-degree kidnapping, assault with a deadly weapon on a government official, and assault with a deadly weapon. For the reasons discussed herein, we hold that defendant received a trial free of prejudicial error, but we remand the case for resentencing.\nThe State\u2019s evidence presented at trial tended to show the following: On 30 October 2000, defendant entered the Bundles of Joy children\u2019s clothing store in Rocky Mount. Shortly after defendant entered the store, the store\u2019s owner, Deborah Collins (\u201cMrs. Collins\u201d), approached defendant and asked if she could help him. Defendant was wearing sunglasses and a jacket. Defendant told Mrs. Collins that he was shopping for clothing for his family members, and the two had a \u201ccasual conversation.\u201d Defendant then proceeded to the cash register with approximately $700.00 in children\u2019s clothing.\nOnce at the cash register, defendant asked Mrs. Collins if she had change for a thousand-dollar bill. Mrs. Collins replied that she did not, and defendant then placed his hand inside the front pocket of his jacket. Defendant laid the pocket of his jacket on the counter and demanded that Mrs. Collins give him money. At trial, Mrs. Collins testified that she could not see a muzzle or handle sticking out of defendant\u2019s pocket, but she believed defendant had a gun. According to Mrs. Collins, defendant told her, \u201cI know you are looking at me and if you identify me, I\u2019m going to kill you.\u201d\nAfter Mrs. Collins gave defendant the money in the cash register, defendant instructed Mrs. Collins to place the clothing items he had brought to the counter in a bag. Defendant then instructed Mrs. Collins to disconnect the phone lines in the store, enter the restroom, and stay inside the restroom for fifteen minutes. Mrs. Collins testified at trial that defendant threatened to kill her if she did not do as he instructed. According to Mrs. Collins, prior to leaving the store defendant said, \u201cI\u2019m going to pick up a few more things on my way out.\u201d Defendant then exited the store with approximately $1100.00 in merchandise and cash.\nAs defendant fled the store, Mrs. Collins\u2019 husband, North Carolina Highway Patrol Sergeant Ertle Frank Collins, Jr. (\u201cSergeant Collins\u201d), arrived at the store. Mrs. Collins informed Sergeant Collins that she had been robbed. Sergeant Collins, who was on duty and wearing his uniform at the time, then proceeded to the parking lot and approached defendant, whom Sergeant Collins had seen exiting the store when he entered.\nDefendant was sitting in a red pickup truck parked in the parking lot. Sergeant Collins ordered defendant to exit the vehicle. Defendant refused, telling Sergeant Collins, \u201cMan, I ain\u2019t got time to mess with you.\u201d Sergeant Collins then approached the truck and again instructed defendant to exit. Sergeant Collins testified that defendant then reached for something in a bag laying on the passenger seat of the truck, which caused Sergeant Collins to back away from the vehicle.\nAfter defendant began backing the truck out of its parking space, Sergeant Collins attempted to approach the truck a second time. Sergeant Collins tried to open the driver-side door, but defendant continued to back the truck out of the parking space. Defendant then proceeded to drive the truck through the parking lot while Sergeant Collins held onto the driver-side door. According to Sergeant Collins, the two men then \u201cgot to fighting over the steering wheel and trying to cut the truck off.\u201d During the struggle, defendant struck Sergeant Collins with his elbow while continuing to drive the truck through the parking lot.\nSergeant Collins eventually pulled defendant out of the moving truck and onto the ground. As the two men landed on the ground, Sergeant Collins was struck by the driver-side door of the truck and was run over by one of the truck\u2019s tires. Defendant immediately returned to the truck and \u201cstarted toward\u201d Sergeant Collins, whose leg had been broken when the truck ran over it. Sergeant Collins drew his weapon and fired a shot at defendant from the ground. Following the shot from Sergeant Collins, defendant stopped the truck and \u201chesitated.\u201d Sergeant Collins fired another shot at defendant, who then drove the vehicle from the parking lot and onto a nearby street. As defendant fled the scene, Sergeant Collins wrote down the license plate number of the truck and reported it to a 9-1-1 dispatcher.\nDefendant was subsequently apprehended and indicted for robbery with a dangerous weapon, second-degree kidnapping, assault with a deadly weapon on a government official, and assault with a deadly weapon with intent to kill. Defendant was tried before a jury the week of 28 April 2003. On 1 May 2003, the jury found defendant guilty of robbery with a dangerous weapon, second-degree kidnapping, assault with a deadly weapon on a government official, and assault with a deadly weapon. The trial court sentenced defendant to a total of seventeen to twenty-two years incarceration. Defendant appeals.\nWe note initially that defendant\u2019s brief contains arguments supporting only thirteen of the original thirty-one assignments of error. Pursuant to N.C.R. App. P. 28(b)(6) (2004), the omitted assignments of error are deemed abandoned. Therefore, we limit our present review to those issues properly preserved by defendant for appeal.\nThe issues on appeal are: (I) whether defendant\u2019s conviction for both assault with a deadly weapon on a government official and assault with a deadly weapon violate his constitutional protection from double jeopardy; (II) whether the trial court erred by denying defendant\u2019s motion to dismiss the charge of assault with a deadly weapon on a government official; (III) whether the State\u2019s reference to and presentation of a BB gun constituted prosecutorial misconduct and violated defendant\u2019s right to due process; (IV) whether defendant was deprived of meaningful appellate review due to an incomplete recordation of the trial court proceedings; (V) whether the trial court erred by failing to instruct the jury on the lesser-included offense of common-law robbery; (VI) whether the trial court committed plain error by finding aggravating factors; and (VII) whether the State presented sufficient evidence to support the trial court\u2019s finding that defendant had twelve prior record level points and a prior record level IV.\nI.\nDefendant first argues that his conviction for both assault with a deadly weapon on a government official and assault with a deadly weapon violate his constitutional protection from double jeopardy. Defendant contends that the trial court was required to arrest judgment on one of the two offenses. We disagree.\nWe note initially that the State contends that defendant waived this argument by not asserting it during his motion to dismiss. The record reflects that defendant moved to dismiss the charge of assault with a deadly weapon at the close of the State\u2019s evidence, arguing that defendant was not in control of the truck when it ran over Sergeant Collins\u2019 leg. Defendant did not raise the issue of double jeopardy at that time. However, the record also reflects that prior to trial, defendant raised a similar issue, arguing as follows:\nAnother matter that I\u2019d like to also bring up, and I realize that this may be more appropriate at the close of the State\u2019s evidence; however, I would like to do it now so that there won\u2019t be any possibility of a waiver. One of my concerns, Your Honor, is in this case two of the charges are assault with a deadly weapon with intent to kill inflicting serious injury and assault on a government official. Under these facts, Your Honor, it\u2019s anticipated that those two assault charges involve the same victim and it seems unfair to me in terms of [defendant] receiving a fair trial how the State, I understand the argument .... But it seems to me that in the interest of a fair trial, I think it prejudices or causes [defendant] harm that the State gets to do both of these assault charges when it involves the same victims. The person was either assaulted as a government official or the person was allegedly assaulted with a deadly weapon with the intent to kill inflicting serious injury. . . . Your Honor, I\u2019d just like to raise that issue and preserve it.\nTo avoid waiving the right to argue the issue on appeal, \u201ca defendant must properly raise the issue of double jeopardy before the trial court. Failure to raise this issue at the trial court level precludes reliance on the defense on appeal.\u201d State v. White, 134 N.C. App. 338, 342, 517 S.E.2d 664, 667 (1999) (citation omitted). \u201cSimply put, \u2018double jeopardy protection may not be raised on appeal unless the defense and the facts underlying it are brought first to the attention of the trial court.\u2019 \u201d Id. (quoting State v. McKenzie, 292 N.C. 170, 176, 232 S.E.2d 424, 428 (1977)). In light of defendant\u2019s actions in the instant case, we conclude that defendant sufficiently preserved the double jeopardy issue for appeal. Accordingly, we will address its merits infra.\n\u201c[T]he constitutional guaranty against double jeopardy protects a defendant from multiple punishments for the same offense.\u201d State v. Partin, 48 N.C. App. 274, 281, 269 S.E.2d 250, 255 (1980) (emphasis in original). In Partin, the defendants were convicted of assault with a deadly weapon under N.C. Gen. Stat. \u00a7 14-32 and assault on a law enforcement officer with a firearm. This Court arrested judgment on the defendants\u2019 convictions for assault with a deadly weapon, concluding that \u201c[a]ssault and the use of a deadly weapon (in this case, a firearm) are necessarily included in the offense of assault on a law enforcement officer with a firearmf.]\u201d 48 N.C. App. at 282, 269 S.E.2d at 255.\nIn the instant case, defendant was convicted of assault with a deadly weapon and assault with a deadly weapon on a government official. As defined by N.C. Gen. Stat. \u00a7 14-32 (2003), an individual is guilty of assault with a deadly weapon where the individual: (I) commits an assault; (II) with a deadly weapon. As defined by N.C. Gen. Stat. \u00a7 14-34.2 (2003), an individual is guilty of assault with a deadly weapon on a government official where the individual: (I) commits an assault; (II) with a firearm or other deadly weapon; (III) on a government official; (IV) who is performing a duty of the official\u2019s office. Thus, according to the definitions of the two offenses, the elements of assault with a deadly weapon are \u201cnecessarily included\u201d in the offense of assault with a deadly weapon on a government official. Partin, 48 N.C. App. at 282, 269 S.E.2d at 255.\nWe note that this Court reached its decision in Partin only after first \u201c [conceding that the facts underlying defendants\u2019 indictment of assault with a deadly weapon under G.S. 14-32(a) and (c) are the same facts which underlie defendants\u2019 indictment for assault on a law enforcement officer under G.S. 14-34.2[.]\u201d Id. at 279, 269 S.E.2d at 254. The necessity of such concession stemmed from our prior holding in State v. Lewis, 32 N.C. App. 298, 301, 231 S.E.2d 693, 694 (1977), where we concluded that \u201c[f]or the plea of former jeopardy to be good, the plea must be grounded on the \u2018same offense\u2019 both in law and in fact. It is not sufficient that the two offenses arise out of the same transaction.\u201d In the instant case, we conclude that the facts underlying defendant\u2019s indictment for assault with a deadly weapon with intent to kill are not the same facts used to indict defendant for assault with a deadly weapon on a government official.\nIn the indictment for assault with a deadly weapon with intent to kill, the grand jury alleged that defendant \u201cunlawfully, willfully and feloniously did assault Trooper E.F. Collins with a Ford pick-up truck, a deadly weapon, with the intent to kill him.\u201d In the indictment for assault with a deadly weapon on a government official, the grand jury alleged that defendant \u201cunlawfully, willfully and feloniously did assault Trooper E.F. Collins with the North Carolina State Highway Patrol with a Ford pick-up truck, which is a deadly weaponf,] by dragging him with the truck and running over the officer\u2019s leg.\u201d (emphasis added). Thus, although the same deadly weapon was allegedly used in both offenses, separate facts support the separate indictments.\nSimilarly, the facts underlying the jury\u2019s verdict of guilty of assault with a deadly weapon on a government official are not the same facts underlying the jury\u2019s verdict of guilty of assault with a deadly weapon. As the parties discussed at the charge conference, the first instance of assault with a deadly weapon occurred when defendant\u2019s vehicle struck Sergeant Collins and ran over Sergeant Collins\u2019 leg. The second instance of assault with a deadly weapon occurred after defendant reentered the vehicle and drove it toward Sergeant Collins, thereby placing Sergeant Collins in fear of injury. The evidence at trial tended to show that the second instance of assault occurred independent from the other, and the trial court instructed the jury accordingly. The jury charge contained the following pertinent instructions:\nThe defendant Kenneth Leon Spellman in file number 00 CRS 54072 has been charged with assault with a deadly weapon upon an officer of the State while such officer was in the performance of his duties. Now I charge that for you to find the defendant guilty of this offense the State must prove four things beyond a reasonable doubt.\nFirst, that the defendant assaulted the victim by intentionally hitting him with a Ford pickup truck and running over his leg.\nIf you do not find the defendant guilty of assault with a deadly weapon with intent to kill, you must determine whether he is guilty of assault with a deadly weapon. For you to find the defendant guilty of assault with a deadly weapon the State must prove two things beyond a reasonable doubt.\nFirst, that the defendant assaulted the victim . . . intentionally through a show of violence by use of a Ford pickup truck. And second, that the defendant used a deadly weapon. A deadly weapon is a weapon which is likely to cause death or serious bodily injury. In determining whether a Ford pickup truck is a deadly weapon you should consider the nature of the Ford pickup truck, the manner in which it was used, and the size and strength of the defendant as compared to the victim.\n\u201cIn order for a criminal defendant to be charged and convicted of two separate counts of assault stemming from one transaction, the evidence must establish \u2018a distinct interruption in the original assault followed by a second assault[,]\u2019 so that the subsequent assault may be deemed separate and distinct from the first.\u201d State v. Littlejohn, 158 N.C. App. 628, 635, 582 S.E.2d 301, 307 (quoting State v. Brooks, 138 N.C. App. 185, 189, 530 S.E.2d 849, 852 (2000)), disc. review denied, 357 N.C. 510, 588 S.E.2d 377 (2003). In Littlejohn, this Court found no error at trial where the defendant had been convicted for two assaults that were \u201cdistinct in time and inflicted wounds in different locations on the victim\u2019s body.\u201d 158 N.C. App. at 636, 582 S.E.2d at 307. After noting that the second assault \u201coccurred only after the original assault had ceased and the victim had fallen to the floor[,]\u201d we held that \u201cthe State\u2019s evidence was sufficient to show that there were indeed two separate assaults.\u201d Id. at 636-37, 582 S.E.2d at 307.\nSimilarly, in State v. Rambert, 341 N.C. 173, 177, 459 S.E.2d 510, 513 (1995), our Supreme Court rejected the defendant\u2019s claim that double jeopardy protections prevented three separate convictions for discharging a firearm into occupied property. In Rambert, the defendant produced a gun following a verbal altercation with the victim. As the defendant fired through the victim\u2019s vehicle\u2019s windshield, the victim ducked down in a seat in the vehicle. After the victim drove his vehicle forward, the defendant fired at the victim through the passenger-side door of the victim\u2019s vehicle. As the victim continued to drive away, the defendant fired a third time into the rear of the victim\u2019s vehicle. The Court concluded that \u201cdefendant\u2019s actions were three distinct and, therefore, separate events[,]\u201d Id. at 176, 459 S.E.2d at 513, noting that\nEach shot, fired from a pistol, as opposed to a machine gun or other automatic weapon, required that defendant employ his thought processes each time he fired the weapon. Each act was distinct in time, and each bullet hit the vehicle in a different place.\nId. at 176-77, 459 S.E.2d at 513.\nThe indictments in the instant case, coupled with the instructions provided to the jury, demonstrate that the two assault charges stem from separate and distinct facts. The evidence presented at trial tended to show that, after the truck had run over Sergeant Collins\u2019 leg, thereby completing the assault alleged in the indictment for assault with a deadly weapon on a government official, defendant and Sergeant Collins were laying on the ground. Defendant got up from the ground and ran approximately eighty feet across the parking lot toward the truck, which had come to rest at the curb of the parking lot. Once defendant reentered the truck, he \u201cstarted toward\u201d Sergeant Collins in the truck, then backed the truck away from Sergeant Collins and drove away from the parking lot. Thus, as in Rambert, the evidence in the instant case tends to show that defendant employed his thought process prior to committing the second assault, which occurred at a distinct and separate time after the first assault was completed.\n\u201c[N] either the Fourteenth Amendment to the Constitution of the United States nor Article I, \u00a7 19, of the Constitution of North Carolina forbids the prosecution and punishment of a defendant for two separate, distinct crimes[.]\u201d State v. Fulcher, 294 N.C. 503, 525, 243 S.E.2d 338, 352-53 (1978). In the instant case, we conclude that two separate and distinct crimes were alleged and established, and thus the trial court did not err in imposing consecutive sentences. Accordingly, we hold that defendant\u2019s conviction for both assault with a deadly weapon and assault with a deadly weapon on a government official did not violate defendant\u2019s constitutional protection from double jeopardy. Defendant\u2019s first argument is overruled.\nII.\nDefendant next argues that the trial court erred by denying his motion to dismiss the charge of assault with a deadly weapon on a government official. Defendant asserts that the State failed to introduce sufficient evidence to support the charge. We disagree.\nIn ruling on a motion to dismiss, the trial court must consider whether there is substantial evidence of each essential element of the offense charged. State v. Roddey, 110 N.C. App. 810, 812, 431 S.E.2d 245, 247 (1993). Whether the State\u2019s evidence is sufficient is a question of law for the trial court. State v. Lowe, 154 N.C. App. 607, 609, 572 S.E.2d 850, 853 (2002). The motion to dismiss must be denied if the evidence, viewed in the light most favorable to the State, would allow a jury to reasonably infer that defendant is guilty. State v. Williams, 154 N.C. App. 176, 178, 571 S.E.2d 619, 620-21 (2002).\nThis Court has defined an assault as \u201c \u2018an 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 . . . sufficient to put a [reasonable person] in fear of immediate bodily harm.\u2019 \u201d State v. Davis, 68 N.C. App. 238, 244, 314 S.E.2d 828, 832 (1984) (quoting State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967)). While noting that \u201c[i]ntent is an essential element of the crime of assault,\u201d this Court has recognized that \u201cintent may be implied from culpable or criminal negligence ... if the injury or apprehension thereof is the direct result of intentional acts done under circumstances showing a reckless disregard for the safety of others and a willingness to inflict injury.\u201d State v. Coffey, 43 N.C. App. 541, 543, 259 S.E.2d 356, 357 (1979) (citations omitted).\nIn the instant case, defendant contends that the State failed to introduce sufficient evidence that he intended to strike Sergeant Collins with the truck. However, as detailed above, the evidence presented at trial tended to show that after Sergeant Collins ordered defendant to exit the truck, defendant backed the truck out its parking space and into the parking lot. Defendant continued to drive the truck through the parking lot while Sergeant Collins held onto the driver-side door, and defendant repeatedly struck Sergeant Collins while he was holding onto the door of the moving vehicle. Sergeant Collins testified that defendant was \u201ctrying to push me out and he\u2019s slapping at me and hitting me with his elbow and so forth as that, trying to knock me back out.\u201d We conclude that the evidence introduced by the State was sufficient to allow a jury to reasonably infer that defendant operated the truck dangerously and with reckless disregard for the safety of Sergeant Collins. The evidence was also sufficient to allow a jury to reasonably infer that defendant \u201ccould have foreseen that death or bodily injury would be the probable result of his actions.\u201d Id. at 544, 259 S.E.2d at 358. Accordingly, we hold that the trial court did not err in denying defendant\u2019s motion to dismiss the charge of assault with a deadly weapon on a government official. Therefore, defendant\u2019s second argument is overruled.\nIII.\nDefendant next argues that the trial court committed plain error by allowing the State to refer to and present a BB gun in connection with the charges of armed robbery and second-degree kidnapping. Defendant asserts that the reference and presentation of the weapon constituted prosecutorial misconduct and violated defendant\u2019s right to due process. We disagree.\nOur Supreme Court has previously held that\n\u201c[T]he plain error rule is . . . always to be applied cautiously and only . . . where .. . the claimed error is a \u2018fundamental error, . . . so basic, so prejudicial, so lacking in its elements that justice cannot have been done,\u2019 or \u2018where [the error] is grave error which amounts to a denial of a fundamental right of the accused,\u2019 or... has \u2018 \u201cresulted in a miscarriage of justice or in the denial to appellant of a fair trial\u201d \u2019 or... \u2018seriously affectfs] the fairness, integrity or public reputation of judicial proceedings].]\u2019 \u201d\nState v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.) (footnotes omitted) (emphasis in original), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)). When reviewing a defendant\u2019s assignment of plain error, the defendant \u201cis entitled to a new trial only if the error was so fundamental that, absent the error, the jury probably would have reached a different result.\u201d State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002).\nIn the instant case, defendant contends that in its opening statement to the jury, the State asserted that it would present evidence regarding a BB gun found in defendant\u2019s hotel room. During the State\u2019s direct examination of Rocky Mount Police Department Corporal Gary Wester (\u201cCorporal Wester\u201d), the State presented and marked State\u2019s Exhibit Number 57 (\u201cExhibit 57\u201d), which, according to Corporal Wester, was \u201ca BB gun that was turned into evidence by one of [the] officers at the Rocky Mount Police Department.\u201d Corporal Wester testified that the officer who turned the BB gun into the police department \u201cdid not list his name on the evidence sheet.\u201d Corporal Wester further testified that he believed he had \u201cread a report that Officer Collins may have done it,\u201d but that he was \u201cnot sure.\u201d\nThe BB gun was then neither introduced into evidence nor referred to again by the parties until defendant cross-examined Corporal Wester. During the cross-examination of Corporal Wester, the following pertinent exchange occurred:\nCounsel: Item number 57 is the BB gun that was found at the hotel room?\nWitness: No, sir.\nCounsel: You found-that where?\nWitness: I did not find it at all.\nCounsel: Where did you collect it into evidence from?\nWitness: It was turned into the evidence room by, I believe, Officer Collins, to the Rocky Mount Police Department. .\nCounsel: And based on your job as the evidence collector for your police department where did you believe this BB gun came from?\nWitness: According to his evidence sheet, if I can refer to that\u2014 according to the evidence sheet it was found at the Super 8 Motel, Room 132, apparently by a person by the name of Wiley, W-I-L-E-Y, John, J-O-H-N.\nCounsel: And who is Wiley, please?\nWitness: I have no idea, sir.\nCounsel: Now this item that you found, the BB gun, did you process that for any of these identifiable or latent or known fingerprints that you [had previously] talked about?\nWitness: No, sir, I did not.\n[Defendant\u2019s counsel then placed the BB gun inside the right pocket of the jacket allegedly worn by defendant during the commission of the robbery.]\nCounsel: Do you see [the gun\u2019s] handle sticking out of [the jacket pocket]?\nWitness: Yes, sir, I do.\nCounsel: And if I take the handle and put it in first do you see the muzzle sticking out of it?\nWitness: Yes, I do.\n[Defendant\u2019s counsel then asked Corporal Wester to place the BB gun inside the right pocket of the jacket to see if the handle would stick out.]\nWitness: In placing this particular BB gun in this pocket it will not go all the way in.\n[Defendant\u2019s counsel then asked Corporal Wester to place the BB gun inside the right pocket of the jacket \u201chandle-first\u201d to see if the muzzle would stick out.]\nWitness: Putting it in handle first and stuffing it all the way through it still will not fit completely in the pocket.\n[Defendant\u2019s counsel then asked Corporal Wester to place the BB gun inside the right pocket with the sight of the BB gun in an upright position to see if any part of the BB gun was still visible.]\nWitness: Yes, you can still see it sticking out.\n[Defendant\u2019s counsel then asked Corporal Wester to place the BB gun inside the left pocket in the same manner as above.]\nCounsel: \u2014you do agree in terms of what you demonstrated for the jury that that gun does not fit in either of those pockets?\nWitness: Yes, this gun does not fit in these pockets.\nFollowing defendant\u2019s cross-examination of Corporal Wester, the State asked Corporal Wester to place the BB gun in his hand as if he were to fire it, place his hand inside the jacket pocket, and \u201c[s]how the jury.\u201d Corporal Wester complied, and the State ended its questioning of the witness. On recr.oss-examination, the following exchange occurred:\nCounsel: Stand in front of that rail. As you hold that gun, just put it on top of that bannister as though you were placing it on that bannister?\n[The witness complied.]\nCounsel: Can it be distinctly seen?\nWitness: Possibly, yes, sir.\nFollowing the recross-examination of Corporal Wester, there was no mention of Exhibit 57 during the remaining witness examinations. When the State moved to introduce its exhibits into evidence, it specifically excluded Exhibit 57. The exhibit was not thereafter referred to again while the jury was in the courtroom.\nConsidering the record before us, we are unable to conclude that any plain error warranting a new trial occurred with respect to the presentation of the BB gun. Cast in the light most favorable to the State, the testimony and evidence concerning the BB gun establishes only that, while holding this particular BB gun, Corporal Wester could fit his own hand inside the pocket of the jacket worn by defendant. As the record reflects, Corporal Wester was unable to fit the entire BB gun inside the pocket of the jacket, and there was no indication at trial that a reliable chain of custody existed to link defendant to this particular BB gun. Thus, we are not convinced that a fundamental error occurred with respect to the BB gun. Furthermore, we are not convinced that a fundamental right of defendant was violated or that a different result would have been reached had the BB gun not been marked by the State and referred to by both parties. Accordingly, we hold that the reference to and presentation of the BB gun was not plain error. Defendant\u2019s third argument is therefore overruled.\nIV.\nDefendant next argues that his due process rights were violated by the trial court reporter\u2019s failure to completely record the proceedings. The record reflects that prior to trial, defendant filed a written motion for full recordation of all proceedings in the instant case. On 28 April 2003, the trial court granted defendant\u2019s request. However, the trial court reporter failed to record the parties\u2019 opening and closing statements. Defendant asserts that he is entitled to a new trial as a result of the error. We disagree.\nOur Supreme Court has previously recognized that there is \u201ca presumption in favor of regularity\u201d at trial. State v. Duncan, 270 N.C. 241, 247, 154 S.E.2d 53, 58 (1967). \u201cThus, where the matter complained of does not appear of record, [the] appellant has failed to make irregularity manifest.\u201d Id. Similarly, this Court has previously held that our \u201creview on appeal is limited to what is in the record or in the designated verbatim transcript of proceedings.\u201d State v. Moore, 75 N.C. App. 543, 548, 331 S.E.2d 251, 254, disc. review denied, 315 N.C. 188, 337 S.E.2d 862 (1985); see N.C.R. App. P. 9(a) (2004). Our courts have recognized that \u201c[i]t is the duty of an appellant to see that the record on appeal is properly made up and transmitted to the appellate court,\u201d State v. Milby and State v. Boyd, 302 N.C. 137, 141, 273 S.E.2d 716, 719 (1981), and we have concluded that \u201c[a]n appellate court cannot assume or speculate that there was prejudicial error when none appears on the record before it.\u201d Moore, 75 N.C. App. at 548, 331 S.E.2d at 254.\nIn Moore, the defendant argued in a motion for appropriate relief that the State \u201cmade improper comments and referred to matters outside the trial record\u201d during its closing arguments. Id. at 547, 331 S.E.2d at 254. The defendant also argued that he was denied the opportunity for appellate review because of the trial court\u2019s failure to record the State\u2019s closing argument. On appeal, we noted that the defendant had requested the trial court record the State\u2019s closing argument, but declined the trial court\u2019s post-trial invitation to reconstruct the argument. Id. at 548, 331 S.E.2d at 254. Thus, we held that \u201c[b]ecause [the] defendant failed to cooperate with the trial court to provide this Court with a record of the State\u2019s closing argument, we are precluded from reviewing the argument on appeal.\u201d Id. at 548, 331 S.E.2d at 254-55.\nAs in Moore, defendant in the instant case contends that as a result of the trial court reporter\u2019s failure to record the State\u2019s opening and closing statements, defendant \u201cis deprived of his statutory right to appeal and is deprived of... a full and effective appellate review.\u201d Specifically, defendant states that he \u201ccannot determine what the prosecutor argued to the jury concerning the BB gun that is such a critical piece of this case.\u201d However, as discussed above, this Court is unable to assume or speculate that prejudicial error occurred where no error appears on the record before us, and we will decline review of an issue where the appellant does not undertake those efforts necessary to secure the record pertaining to the issue. In the instant case, the record contains no indication that defendant attempted to reconstruct the State\u2019s opening and closing arguments, and we note that defendant failed to file a motion for appropriate relief or a motion to reconstruct pursuant to N.C.R. App. P. 9. Accordingly, we are precluded from reviewing this argument on appeal, and we therefore overrule defendant\u2019s fourth argument.\nV.\nDefendant next argues that the trial court erred in instructing the jury. Specifically, defendant contends that he provided sufficient evidence at trial to require the trial court to instruct the jury on common-law robbery. We disagree.\n\u201cWhen a person commits a robbery by the use or threatened use of an implement which appears to be a firearm or other dangerous weapon, the law presumes, in the absence of any evidence to the contrary, that the instrument is what his conduct represents it to be \u2014 an implement endangering or threatening the life of the person being robbed.\u201d State v. Joyner, 312 N.C. 779, 782, 324 S.E.2d 841, 844 (1985) (emphasis in original). \u201cThe mandatory presumption ... is of the type which merely requires the defendant \u2018to come forward with some evidence (or take advantage of evidence already offered by the prosecution) to rebut the connection between the basic and elemental facts[.]\u2019 \u201d Id. at 783, 324 S.E.2d at 844 (quoting State v. White, 300 N.C. 494, 507, 268 S.E.2d 481, 489 (1980)) (emphasis in original). \u201c[W]hen any evidence is introduced tending to show that the life of the victim was not endangered or threatened, \u2018the mandatory presumption disappears, leaving only a mere permissive inference\u2019 \u201d that requires the trial court to instruct the jury on common-law robbery as well as armed robbery. Joyner, 312 N.C. at 783, 324 S.E.2d at 844 (quoting White, 300 N.C. at 507, 268 S.E.2d at 489) (emphasis in original). Therefore, in deciding whether it was proper for the trial court to instruct only on armed robbery, \u201cthe dispositive issue ... is whether any substantial evidence was introduced at trial tending to show affirmatively that the instrument used by the defendant was not a firearm or deadly weapon[.]\u201d State v. Williams, 335 N.C. 518, 523, 438 S.E.2d 727, 729 (1994).\nIn the instant case, Mrs. Collins testified at trial that she believed her life was in danger because she believed defendant had a firearm hidden inside his jacket pocket. On direct examination, Mrs. Collins testified as follows:\nIt was an object like it was pointed at me. I did not see it, but he made me aware that he would hurt me if I didn\u2019t do what he said to do. ... I thought he had a gun, sir.\nHowever, on cross-examination, Mrs. Collins testified that \u201c[o]nly when [defendant] put his hand on the counter, like I showed earlier, was something bulging out of the pocket [of his jacket].\u201d Mrs. Collins also testified that she did not notice anything in defendant\u2019s jacket when he was talking to her while inside the store. Mrs. Collins further testified that she did not see a muzzle or handle of a gun sticking out of defendant\u2019s jacket pocket. Although Sergeant Collins testified on direct examination that he saw defendant \u201creach over up under the bags\u201d laying in the passenger seat of defendant\u2019s vehicle, Sergeant Collins testified on cross-examination that he did not see anything after witnessing defendant reach toward the bags. Notwithstanding the BB gun discussed above, no weapon that could be linked to defendant was recovered following the robbery.\nWe conclude that the evidence in the instant case is insufficient to extinguish the mandatory presumption discussed in Joyner. Although defendant sought to rebut the State\u2019s evidence regarding the use of the weapon by challenging the reasonableness of the witnesses\u2019 beliefs, defendant failed to \u201cshow affirmatively that the instrument used by the defendant was not a firearm or deadly weapon[.]\u201d Williams, 335 N.C. at 523, 438 S.E.2d at 729 (approving use of mandatory presumption where victim believed defendant possessed a gun after he pulled an object \u201cwrapped in something\u201d from his pocket, despite defendant\u2019s testimony that he did not own or \u201cmess with guns\u201d); see State v. Lee, 128 N.C. App. 506, 510-11, 495 S.E.2d 373, 376 (1998) (approving use of mandatory presumption where victim did not see a weapon but testified that defendant covered her head and threatened to shoot her if she resisted). The witnesses\u2019 testimony that they did not actually see or recover a weapon was insufficient to counter the mandatory presumption arising from the State\u2019s evidence that defendant possessed and used a weapon during the robbery. Accordingly, we hold that the trial court did not err in refusing to instruct the jury on common-law robbery, and we therefore overrule defendant\u2019s fifth argument.\nVL\nDefendant next presents two arguments regarding the sentencing phase of his trial. Defendant argues that the trial court erred by sentencing defendant as a prior record level IV offender and by applying aggravating factors to defendant\u2019s sentence. We agree that the trial court erred in its assignment of defendant\u2019s prior record level, and we agree in part that the trial court erred in applying certain aggravating factors to defendant\u2019s sentence. Therefore, we remand the case to the trial court for resentencing in light of the following analysis.\nN.C. Gen. Stat. \u00a7 15A-1340.14 (2003) requires that each of a felony offender\u2019s prior convictions be proven to determine the offender\u2019s prior record level. N.C. Gen. Stat. \u00a7 15A-1340.14(f) provides that the State bears the burden of proving any prior convictions by a preponderance of the evidence. Specifically, N.C. Gen. Stat. \u00a7 15A-1340.14(f) lists several methods the State may use to prove prior convictions, including the following:\n(1) Stipulation of the parties.\n(2) An original or copy of the court record of the prior conviction.\n(3) A copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts.\n(4) Any other method found by the court to be reliable.\nIn State v. Riley, 159 N.C. App. 546, 557, 583 S.E.2d 379, 387 (2003), although the State declared at trial that the defendant had seven prior record level points, the State nevertheless submitted \u201cno records of conviction, no records from the agencies listed in N.C.G.S. \u00a7 15A-1340.14(f)(3), nor . . . any evidence of a stipulation by the parties as to a prior record level.\u201d On appeal, we held that \u201c[a] statement by the State that an offender has seven points, and thus is a record level III, if only supported by a prior record level worksheet, is not sufficient to meet the catchall provision found in N.C.G.S. \u00a7 15A-1340.14(f)(4), even if uncontested by defendant.\u201d Id. (citing State v. Mack, 87 N.C. App. 24, 34, 359 S.E.2d 485, 491 (1987), disc. review denied, 321 N.C. 477, 364 S.E.2d 663 (1988), and State v. Hanton, 140 N.C. App. 679, 690, 540 S.E.2d 376, 383 (2000)).\nIn the instant case, the State concedes that the trial court erred in unilaterally determining that defendant had twelve prior record level points and was therefore a prior record level IV offender. As in Riley, notwithstanding the judgment and commitment worksheet filed by the trial court, the record in the instant case is devoid of any evidence of defendant\u2019s previous convictions or a stipulation by defendant regarding his prior record level. Therefore, in light of our previous decisions regarding prior record level assignment, we must remand the case for resentencing.\nFurthermore, we note that the judgment and commitment sheets indicate that the trial court made identical findings of aggravating and mitigating factors in sentencing defendant for the following three offenses: second-degree kidnapping, assault with a deadly weapon on a government official, and the consolidated multiple charges of common-law robbery, a felony, and assault with a deadly weapon, a misdemeanor. Specifically, the judgment and commitment sheet for each offense indicates that the trial court found the following aggravating factors: (i) defendant was armed with a deadly weapon at the time of the crime; (ii) the offense involved an attempted taking of property of great monetary value; and (iii) the victim of the offense suffered serious injury that is permanent and debilitating. After finding that the aggravating and mitigating factors balanced, the trial court sentenced defendant at the highest end of the presumptive range for the offenses of second-degree kidnapping and assault with a deadly weapon on a government official, and the lowest end of the presump-' tive range for the consolidated offenses of common-law robbery and assault with a deadly weapon.\nWhile \u201c[n]o appellate court in this State has ever held that the same factor may not be used to aggravate more than one conviction,\u201d State v. McCullers, 77 N.C. App. 433, 436, 335 S.E.2d 348, 350 (1985), the facts used to enhance a sentence must be supported by sufficient evidence in the record. State v. Rose, 327 N.C. 599, 606, 398 S.E.2d 314, 317 (1990). In the instant case, the record is devoid of any evidence that the victim of the second-degree kidnapping, Mrs. Collins, suffered any injury during the commission of the offense. Thus, the trial court\u2019s finding that the victim of the second-degree kidnapping offense suffered serious injury that is permanent or debilitating must be reversed. Although we conclude that the trial court did not err in applying the other aggravating factors to the offense, we note that the trial court sentenced defendant in the presumptive range for second-degree kidnapping after determining that a balance of aggravating and mitigating factors existed. Therefore, we remand the offense for resentencing following exclusion of the aggravating factor of serious injury from the trial court\u2019s consideration.\nDefendant maintains that the trial court w;as prohibited from enhancing the assault sentences by finding that defendant was armed with a deadly weapon during the commission of the offenses. We disagree.\nWe note initially that defendant\u2019s argument regarding the application of the aggravating factor to the assault with a deadly weapon charge is without merit, as the crime is a misdemeanor offense and therefore not subject to modification upon a finding of aggravating or mitigating factors. See N.C. Gen. Stat. \u00a7 15A-1340.16 (2003) (listing factors for consideration of aggravated and mitigating sentences for felony convictions); N.C. Gen. Stat. \u00a7 15A-1340.20 (2003) (stating that a sentence \u201cimposed for a misdemeanor shall contain a sentence disposition specified for the class of offense and prior conviction level[,]\u201d and providing no consideration of aggravating and mitigating factors); State v. Clark, 107 N.C. App. 184, 190-91, 419 S.E.2d 188, 192 (1992) (\u201cThe trial court did not need to find an aggravating factor for the breaking and entering count since the defendant was convicted of a misdemeanor which is not subject to N.C. Gen. Stat. \u00a7 15A-1340.4(b). The finding of an aggravating factor for the misdemeanor conviction, therefore, was superfluous and non-prejudicial error.\u201d). In support of his assertion that the aggravating factor should not have been applied to the charge of assault with a deadly weapon on a government official, defendant cites State v. Barbour, 104 N.C. 793, 797, 411 S.E.2d 411, 413 (1991), in which this Court held that the trial court is prohibited from enhancing a defendant\u2019s sentence for assault with a deadly weapon with intent to kill inflicting serious injury by relying on the defendant\u2019s use of the deadly weapon to commit the crime. However, our decision in Barbour is inapplicable to the instant case, because here the trial court enhanced defendant\u2019s sentence by finding that defendant was armed with a deadly weapon during the commission of the assault rather than used a deadly weapon during the commission of the assault. Furthermore, the deadly weapon used during the commission of the assault (the Ford pickup truck) was not the same deadly weapon defendant was armed with during the commission of the assault (the gun Mrs. Collins testified that defendant possessed). Thus, because the trial court did not enhance defendant\u2019s sentence for the assault by relying on facts used to satisfy an element of the assault, we conclude that the trial court did not err in finding that defendant was armed with a deadly weapon during the commission of the offense.\nVII.\nBased upon the foregoing conclusions, we hold that defendant received a trial free of prejudicial error, but we remand the case to the trial court for resentencing. On remand, the trial court is instructed to hear and receive any evidence regarding defendant\u2019s prior felony convictions necessary to satisfy the requirements of N.C. Gen. Stat. \u00a7 15A-1340.14, and to resentence defendant consistent with this opinion.\nNo error in part; remanded in part.\nJudges HUNTER and McCULLOUGH concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Robert M. Curran, for the State.", "Everett & Hite, L.L.P., by Stephen D. Kiess, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KENNETH LEON SPELLMAN\nNo. COA03-1526\n(Filed 21 December 2004)\n1. Constitutional Law\u2014 double jeopardy \u2014 convictions for assault with a deadly weapon on a government official and assault with a deadly weapon\nThe trial court did not violate defendant\u2019s right against double jeopardy by sentencing him for both assault with a deadly weapon on a government official and assault with a deadly weapon, because: (1) the facts underlying defendant\u2019s indictment for assault with a deadly weapon with intent to kill are not the same facts used to indict defendant for assault with a deadly weapon on a government official; (2) the facts underlying the jury\u2019s verdict of guilty are not the same for both offenses since one occurred when defendant\u2019s vehicle struck an officer and ran over his leg whereas the second instance occurred after defendant reentered the vehicle and drove it toward the officer thereby placing the officer in fear of injury; and (3) the evidence tended to show that defendant employed his thought process prior to committing the second assault which occurred at a distinct and separate time after the first assault was complete.\n2. Assault\u2014 deadly weapon \u2014 government official \u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of assault with a deadly weapon on a government official even though defendant contends there was insufficient evidence to show that he intended to strike the officer with a truck, because: (1) the evidence was sufficient to allow a jury to reasonably infer that defendant operated the truck dangerously and with reckless disregard for the safety of the officer; and (2) the evidence was also sufficient to allow a jury to reasonably infer that defendant could have foreseen that death or bodily injury would be the probable result of his actions.\n3. Evidence\u2014 BB gun \u2014 plain error analysis\nThe trial court did not commit plain error by allowing the State to refer to and present a BB gun in connection with the charges of armed robbery and second-degree kidnapping, because: (1) cast in the light most favorable to the State, the testi-many and evidence concerning the BB gun establishes only that, while holding this particular BB gun, the officer could fit his own hand inside the pocket of the jacket worn by defendant and he was unable to fit the entire BB gun inside the pocket of the jacket; (2) there was no indication at trial that a reliable chain of custody existed to link defendant to this particular BB gun; and (3) no fundamental right of defendant was violated nor would a different result have been reached had the BB gun not been marked by the State and referred to by both parties.\n4. Criminal Law\u2014 failure to record opening and closing arguments \u2014 failure to reconstruct argument\nA defendant\u2019s due process rights were not violated in a robbery with a dangerous weapon, second-degree kidnapping, assault with a deadly weapon on a government official, and assault with a deadly weapon case by the court reporter\u2019s failure to completely record the proceedings including the opening and closing arguments, because: (1) there is a presumption in favor of regularity at trial, and an appellate court cannot assume or speculate that there was prejudicial error when none appears on the record before it; and (2) defendant failed to undertake efforts necessary to secure the record pertaining to the issue since he did not attempt to reconstruct the State\u2019s opening and closing arguments, and he did not file a motion for appropriate relief or a motion to reconstruct pursuant to N.C. R. App. R 9.\n5. Robbery\u2014 armed \u2014 failure to instruct on common law\nThe trial court did not err in a robbery with a dangerous weapon case by failing to instruct to the jury on common law robbery, because: (1) although defendant sought to rebut the State\u2019s evidence regarding the use of a weapon by challenging the reasonableness of the witnesses\u2019 beliefs, defendant failed to show affirmatively that the instrument used by defendant was not a firearm or deadly weapon; and (2) the witnesses\u2019 testimony that they did not actually see or recover a weapon was insufficient to counter the mandatory presumption arising from the State\u2019s evidence that defendant possessed and used a weapon during the robbery.\n6. Sentencing\u2014 prior record level \u2014 unilateral determination\nThe trial court erred in a robbery with a dangerous weapon, second-degree kidnapping, assault with a deadly weapon on a government official, and assault with a deadly weapon case by sentencing defendant as a prior record level IV offender and the case is remanded for resentencing, because: (1) the trial court unilaterally determined that defendant had twelve prior record points; and (2) the record is devoid of any evidence of defendant\u2019s previous convictions or a stipulation by defendant regarding his prior record level.\n7. Sentencing\u2014 aggravating factors \u2014 victim suffered serious injury that is permanent or debilitating \u2014 armed with deadly weapon during commission of assault\nThe trial court erred by applying the aggravating factor to defendant\u2019s sentence that the second-degree kidnapping victim suffered serious injury that is permanent or debilitating, but it did not err by finding that defendant was armed with a deadly weapon during the commission of the assault, because: (1) the record is devoid of any evidence that the victim of the second-degree kidnapping suffered any injury during the commission of the offense; and (2) the assault with a deadly weapon charge is a misdemeanor offense that was not subject to modification upon a finding of aggravating or mitigating factors, and the trial court did not enhance defendant's sentence for the assault by relying on facts used to satisfy an element of the assault.\nAppeal by defendant from judgment entered 1 May 2003 by Judge Quentin T. Sumner in Nash County Superior Court. Heard in the Court of Appeals 14 September 2004.\nAttorney General Roy Cooper, by Assistant Attorney General Robert M. Curran, for the State.\nEverett & Hite, L.L.P., by Stephen D. Kiess, for defendant-appellant.\n. We note that the indictment and conviction sheets for the assault with a deadly weapon charge are contained within File No. 00 CRS 54073, while the judgment and commitment sheet for the charge is contained within File No. 00 CRS 54093." }, "file_name": "0374-01", "first_page_order": 404, "last_page_order": 425 }