{ "id": 8319054, "name": "STATE OF NORTH CAROLINA v. RASHAWN DREAN YARRELL", "name_abbreviation": "State v. Yarrell", "decision_date": "2005-08-02", "docket_number": "No. COA03-1454", "first_page": "135", "last_page": "143", "citations": [ { "type": "official", "cite": "172 N.C. App. 135" } ], "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": "614 S.E.2d 262", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633103 ], "year": 2005, "opinion_index": -1, "case_paths": [ "/se2d/614/0262-01" ] }, { "cite": "615 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633238 ], "year": 2005, "opinion_index": -1, "case_paths": [ "/se2d/615/0256-01" ] }, { "cite": "542 U.S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868041 ], "weight": 2, "year": 2004, "opinion_index": -1, "case_paths": [ "/us/542/0296-01" ] }, { "cite": "359 N.C. 602", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3799620 ], "year": 2005, "opinion_index": -1, "case_paths": [ "/nc/359/0602-01" ] }, { "cite": "359 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796256 ], "year": 2005, "opinion_index": -1, "case_paths": [ "/nc/359/0425-01" ] }, { "cite": "614 S.E.2d 262", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633103 ], "year": 2005, "pin_cites": [ { "page": "264" } ], "opinion_index": 0, "case_paths": [ "/se2d/614/0262-01" ] }, { "cite": "615 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633238 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "265" }, { "page": "265" }, { "page": "269" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0256-01" ] }, { "cite": "582 S.E.2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491439 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0257-01" ] }, { "cite": "405 S.E.2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "329 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556466 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0061-01" ] }, { "cite": "553 S.E.2d 103", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "109", "parenthetical": "citing N.C. Gen. Stat. \u00a7 14-17; State v. Bonney, 329 N.C. 61, 405 S.E.2d 145 (1991)" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 523", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11360197 ], "year": 2001, "pin_cites": [ { "page": "531", "parenthetical": "citing N.C. Gen. Stat. \u00a7 14-17; State v. Bonney, 329 N.C. 61, 405 S.E.2d 145 (1991)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0523-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-17", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2003, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-32", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "243 S.E.2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "373" } ], "opinion_index": 0 }, { "cite": "295 N.C. 55", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560971 ], "year": 1978, "pin_cites": [ { "page": "64-65" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0055-01" ] }, { "cite": "301 S.E.2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "430" } ], "opinion_index": 0 }, { "cite": "61 N.C. App. 610", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523179 ], "year": 1983, "pin_cites": [ { "page": "611" } ], "opinion_index": 0, "case_paths": [ "/nc-app/61/0610-01" ] }, { "cite": "411 S.E.2d 407", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "410" }, { "page": "410" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 766", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524176 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "770-71" }, { "page": "770-71" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0766-01" ] }, { "cite": "530 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "138 N.C. App. 37", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11078470 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc-app/138/0037-01" ] }, { "cite": "569 S.E.2d 657", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "663", "parenthetical": "citing State v. Krider, 138 N.C. App. 37, 530 S.E.2d 569 (2000); State v. Grumbles, 104 N.C. App. 766, 770-71, 411 S.E.2d 407, 410 (1991); State v. Jacobs, 61 N.C. App. 610, 611, 301 S.E.2d 429, 430 (1983)" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 203", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249135 ], "year": 2003, "pin_cites": [ { "page": "211", "parenthetical": "citing State v. Krider, 138 N.C. App. 37, 530 S.E.2d 569 (2000); State v. Grumbles, 104 N.C. App. 766, 770-71, 411 S.E.2d 407, 410 (1991); State v. Jacobs, 61 N.C. App. 610, 611, 301 S.E.2d 429, 430 (1983)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0203-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-33", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "opinion_index": 0 }, { "cite": "476 S.E.2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "319" } ], "opinion_index": 0 }, { "cite": "344 N.C. 583", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867525 ], "year": 1996, "pin_cites": [ { "page": "587" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0583-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "526 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "455" } ], "opinion_index": 0 }, { "cite": "351 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155599 ], "year": 2000, "pin_cites": [ { "page": "378" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0373-01" ] }, { "cite": "517 S.E.2d 605", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "615-19", "parenthetical": "holding that the trial court did not abuse discretion by denying a challenge for cause of a juror who favored the death penalty in a murder case but whom the court determined was nevertheless able to consider life imprisonment" } ], "opinion_index": 0 }, { "cite": "350 N.C. 776", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 131962 ], "year": 1999, "pin_cites": [ { "page": "791-98", "parenthetical": "holding that the trial court did not abuse discretion by denying a challenge for cause of a juror who favored the death penalty in a murder case but whom the court determined was nevertheless able to consider life imprisonment" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0776-01" ] }, { "cite": "558 S.E.2d 167", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "171", "parenthetical": "quotations omitted" } ], "opinion_index": 0 }, { "cite": "355 N.C. 150", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220197 ], "year": 2002, "pin_cites": [ { "page": "155", "parenthetical": "quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0150-01" ] }, { "cite": "493 S.E.2d 435", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "443" } ], "opinion_index": 0 }, { "cite": "347 N.C. 352", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551271 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/347/0352-01" ] }, { "cite": "509 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "436", "parenthetical": "quoting State v. Stephens, 347 N.C. 352, 365 493 S.E.2d 435, 443 (1997)" } ], "opinion_index": 0 }, { "cite": "349 N.C. 459", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571512 ], "year": 1998, "pin_cites": [ { "page": "471", "parenthetical": "quoting State v. Stephens, 347 N.C. 352, 365 493 S.E.2d 435, 443 (1997)" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0459-01" ] }, { "cite": "542 U.S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868041 ], "weight": 2, "year": 2004, "opinion_index": 0, "case_paths": [ "/us/542/0296-01" ] }, { "cite": "359 N.C. 602", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3799620 ], "year": 2005, "pin_cites": [ { "page": "606" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0602-01" ] }, { "cite": "359 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796256 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "437" }, { "page": "438-39" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0425-01" ] } ], "analysis": { "cardinality": 754, "char_count": 18873, "ocr_confidence": 0.735, "pagerank": { "raw": 3.7385616398760044e-07, "percentile": 0.8946361351569145 }, "sha256": "68083d75677959606c18d711ed2001552c5e34abfdb5b73e5f2c75b9e4e3172e", "simhash": "1:1d2dc32c7e670e78", "word_count": 3066 }, "last_updated": "2023-07-14T22:22:54.702952+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge McGEE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. RASHAWN DREAN YARRELL" ], "opinions": [ { "text": "WYNN, Judge.\nDefendant, Rashawn Drean Yarrell, argues that the trial court erred by: (1) denying his challenge for cause of juror Mildred Williams, whose beliefs about the death penalty rendered her unqualified to sit on the jury; (2) denying his motion to dismiss the charges because the State failed to present sufficient evidence as to every element of the charged offenses; (3) denying his motion to dismiss the charge of first-degree murder because the indictment failed to allege every element of that offense; and (4) finding aggravating factors and sentencing Defendant in the aggravated range. After careful review, we conclude that no error was committed by the trial court below, except as to the trial court\u2019s finding aggravating factors and sentencing Defendant in the aggravated range. We therefore remand for resentencing.\nA brief procedural and factual history of the instant appeal is as follows: On 16 September 2000, Defendant attended a party at the home of Reannon Wilkes (\u201cWilkes\u201d) and Melissa Thiele (\u201cThiele\u201d). Michael Robbins (\u201cRobbins\u201d) and Quincy McKinney (\u201cMcKinney\u201d) were also present. The party descended into chaos when Defendant and others burst into Thiele\u2019s bedroom, where Thiele was getting intimate with Robbins, to attack Robbins. As a result of the assault, Robbins was cut over his right eye \u2014 an injury requiring stitches \u2014 and had knots in the back of the head. Thiele incurred a nasal fracture, sinus fracture, and closed head injury, and required surgery on her nose, out of which she still cannot breathe.\nFollowing the assault on Robbins and Thiele, Wilkes instructed the party attendants to leave the house. Outside the house, party attendants began assaulting McKinney. Defendant got a rubber mallet, beat McKinney with the mallet while McKinney lay on the ground, and thereafter stole McKinney\u2019s shoes from his feet. McKinney was taken to the hospital, where he was declared brain-dead. An autopsy revealed blunt force injuries, including severe tearing injuries to the left ear, a split skull, extensive fracturing of the left skull, fracturing on the inner surface of the skull, bleeding over the surface of the brain, hemorrhaging of the brain, a rib fracture, and lung damage. Defendant also struck Wilkes as Wilkes attempted to stop Defendant\u2019s assault on McKinney. Wilkes incurred a laceration over her left eye and required stitches, antibiotics, and a tetanus shot.\nDefendant and others fled the scene, throwing the rubber mallet at a nearby building, where it was later found. Defendant was seen wearing McKinney\u2019s shoes and stated to others \u201cI killed him, I killed him.\u201d Defendant was also seen in possession of Robbins\u2019 coat.\nDefendant was arrested and indicted for first-degree murder of McKinney, assault of Thiele with a deadly weapon inflicting serious injury, assault of Robbins with a deadly weapon, and assault of Wilkes with a deadly weapon with the intent to kill and inflicting serious injury. Defendant pleaded not guilty and went before a jury. Defendant was convicted of first-degree murder of McKinney, assault with a deadly weapon inflicting serious injury on Thiele, assault with a deadly weapon on Robbins, and assault with a deadly weapon inflicting serious injury on Wilkes. On 10 December 2002, Defendant was sentenced to life imprisonment without parole for the first-degree murder count, thirty-one to forty-seven months imprisonment for each of the counts of assault with a deadly weapon inflicting serious injury, and sixty days for the count of assault with a deadly weapon. Defendant appeals from these convictions and sentences.\nOn appeal, Defendant first contends that the trial court erred by denying his challenge for cause of juror Mildred Williams, whose beliefs about the death penalty rendered her unqualified to sit on the jury. \u201cThe decision \u2018whether to allow a challenge for cause in jury selection is . . . ordinarily left to the sound discretion of the trial court which will not be reversed on appeal except for abuse of discretion.\u2019 \u201d State v. Bowman, 349 N.C. 459, 471, 509 S.E.2d 428, 436 (1998) (quoting State v. Stephens, 347 N.C. 352, 365 493 S.E.2d 435, 443 (1997)). \u201cAn abuse of discretion occurs where the trial judge determination is manifestly unsupported by reason and is so arbitrary that it could not have been the result of a reasoned decision.\u201d State v. Reed, 355 N.C. 150, 155, 558 S.E.2d 167, 171 (2002) (quotations omitted).\nHere, the record shows that the trial court carefully questioned Williams as to her views about the death penalty versus life imprisonment. The court ensured that Williams understood, inter alia, the difference between the guilt and sentencing phases of trial, the burden of proof on the State, and her duty as a juror to listen to and fully consider both sides\u2019 arguments and evidence. The trial court determined to its satisfaction that Williams was capable thereof; this decision was not an abuse of discretion. See State v. Hedgepeth, 350 N.C. 776, 791-98, 517 S.E.2d 605, 615-19 (1999) (holding that the trial court did not abuse discretion by denying a challenge for cause of a juror who favored the death penalty in a murder case but whom the court determined was nevertheless able to consider life imprisonment).\nNext, Defendant contends that the trial court erred by denying his motion to dismiss the charges because the State failed to present sufficient evidence as to every element of the charged offenses. To survive a motion to dismiss, the State must present substantial evidence of each element of the offense charged and the defendant\u2019s being the perpetrator. State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000). In considering whether such substantial evidence, i.e., \u201csuch relevant evidence as a reasonable mind might accept as adequate to support a conclusion\u201d State v. Smith, 300 N.C. 71, 78, 265 S.E.2d 164, 169 (1980) (citations omitted), exists, the trial court must view the evidence \u201cin the light most favorable to the State, giving the State the benefit of every reasonable inference.\u201d State v. Price, 344 N.C. 583, 587, 476 S.E.2d 317, 319 (1996).\nAn assault with a deadly weapon requires that there have been an assault, during the course of which a deadly weapon was utilized. N.C. Gen. Stat. \u00a7 14-33 (2003). \u201c[H]ands and fists may be considered deadly weapons, given the manner in which they were used and the relative size and condition of the parties involved.\u201d State v. Rogers, 153 N.C. App. 203, 211, 569 S.E.2d 657, 663 (2003) (citing State v. Krider, 138 N.C. App. 37, 530 S.E.2d 569 (2000); State v. Grumbles, 104 N.C. App. 766, 770-71, 411 S.E.2d 407, 410 (1991); State v. Jacobs, 61 N.C. App. 610, 611, 301 S.E.2d 429, 430 (1983)). \u201c[W]here [an] instrument, according to the manner of its use or the part of the body at which the blow is aimed, may or may not be likely to produce [death or great bodily harm], its allegedly deadly character is one of fact to be determined by the jury.\u201d Id. (quoting State v. Joyner, 295 N.C. 55, 64-65, 243 S.E.2d 367, 373 (1978), and citing Grumbles, 104 N.C. App. at 770-71, 411 S.E.2d at 410).\nIn this case, the State provided substantial evidence that, in the light most favorable to the State, demonstrated Defendant assaulted Robbins and Defendant\u2019s hands and/or feet were used as deadly weapons. Testimony at trial revealed that Defendant went into the room where Robbins and Thiele were getting intimate, and Defendant later reemerged from the room wearing Robbins\u2019 jacket. Other testimony revealed that at the time of the assault, Robbins was undressed and facing downward in an unlit bedroom. Robbins was hit in the head from behind and dragged to the ground, where he was then kicked while facing downward. As a result of the assault, Robbins received knots in the back of his head and required stitches above his right eye. We conclude that the State provided substantial evidence as to all elements of the assault with a deadly weapon offense.\nThe crime of assault with a deadly weapon inflicting serious injury entails: (1) an assault, (2) with a deadly weapon, and (3) infliction of a serious injury not resulting in death. N.C. Gen. Stat. \u00a7 14-32. In this case, the State provided substantial evidence that, in the light most favorable to the State, demonstrated Defendant assaulted Thiele. Testimony at trial revealed that Defendant went into the room where Robbins and Thiele were getting intimate, and Defendant later reemerged from the room wearing Robbins\u2019 jacket. Other testimony revealed that at the time of the assault, Thiele was undressed and lying in bed in an unlit bedroom. Thiele was struck, was bleeding, and blacked out. As a result of the assault, Thiele incurred a nasal fracture, sinus fracture, and closed head injury, and required surgery on her nose, out of which she still cannot breathe. We conclude that the State provided substantial evidence as to all elements of this assault with a deadly weapon inflicting serious injury offense.\nRegarding the assault with a deadly weapon inflicting serious bodily injury on Wilkes, the State provided substantial evidence that, in the light most favorable to the State, demonstrated Defendant assaulted McKinney, which resulted in an assault on Wilkes, during which Defendant used a rubber mallet as a deadly weapon that inflicted serious injuries. Testimony at trial revealed that Defendant swung his hands and a rubber mallet at McKinney, that during the attack on McKinney Defendant hit Wilkes in the head, and that Wilkes then fell to the ground. As a result of the assault, Wilkes incurred a deep laceration over her left eye and required stitches, antibiotics, and a tetanus shot. We conclude that the State provided evidence as to all elements of this assault with a deadly weapon inflicting serious bodily injury offense.\nA \u201cwillful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempted perpetration of any [specific intent] felony committed or attempted with the use of a deadly weapon shall be deemed to be murder in the first degree[.]\u201d N.C. Gen. Stat. \u00a7 14-17 (2003). \u201cThe elements required for conviction of first degree murder are (1) the unlawful killing of another human being; (2) with malice; and (3) with premeditation and deliberation.\u201d State v. Haynesworth, 146 N.C. App. 523, 531, 553 S.E.2d 103, 109 (2001) (citing N.C. Gen. Stat. \u00a7 14-17; State v. Bonney, 329 N.C. 61, 405 S.E.2d 145 (1991)).\nIn this case, the State provided substantial evidence that, in the light most favorable to the State, demonstrated, inter alia, that Defendant attacked McKinney after McKinney had been knocked to the ground by another. Defendant retrieved from a vehicle a rubber mallet and beat McKinney with it. Defendant then stole the shoes off McKinney\u2019s feet and fled the scene. During his flight, Defendant stated to others \u201cI killed him, I killed him.\u201d We conclude that the State provided substantial evidence as to all elements of the first-degree murder offense.\nDefendant also contends that the trial court erred by denying his motion to dismiss the indictment for first-degree murder because the indictment failed to allege all of the elements of the offense. Defendant concedes, however, that our Supreme Court has ruled against his position. See State v. Hunt, 357 N.C. 257, 582 S.E.2d 593 (2003). Accordingly, we find no error.\nFinally, in a motion for appropriate relief, Defendant contends that, regarding the two counts of assault with a deadly weapon inflicting serious injury, the trial court erred in finding aggravating factors and sentencing him within the aggravated range in violation of his Sixth Amendment right to a jury trial. See Blakely, 542 U.S. 296, 159 L. Ed. 2d 403. The trial court found the aggravating factors that: (1) Defendant committed the offense while on pretrial release on another charge; (2) Defendant joined with more than one other person in committing the offense and was not charged with committing conspiracy; and (3) Defendant had previously been adjudicated delinquent for an offense that would be a Class A, B, C, D, or E felony if committed by an adult.\nOur Supreme Court recently held that \u201c[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed presumptive range must be submitted to a jury and proved beyond a reasonable doubt.\u201d Allen, 359 N.C. at 437, 615 S.E.2d at 265; see Speight, 359 N.C. at 606, 614 S.E.2d at 264. Therefore,\n[T]hose portions of N.C.G.S. \u00a7 15A-1340.16 (a), (b), and (c) which require trial judges to consider evidence of aggravating factors not found by a jury or admitted by the defendant and which permit imposition of an aggravated sentence upon judicial findings of such aggravating factors by a preponderance of the evidence violate the Sixth Amendment to the United States Constitution.\nAllen, 359 N.C. at 438-39, 615 S.E.2d at 265. Accordingly, our Supreme Court concluded that \u201cBlakely errors arising under North Carolina\u2019s Structured Sentencing Act are structural and, therefore, reversible per se\u201d Id. at 444, 615 S.E.2d at 269.\nThe aggravating factors that Defendant committed the offense while on pretrial release on another charge and that Defendant joined with more than one other person in committing the offense and was not charged with committing conspiracy were not prior convictions, the factors were not admitted by Defendant, and the facts for these aggravating factors were not presented to a jury and proved beyond a reasonable doubt. Further, the aggravating factor that Defendant has previously been adjudicated delinquent does not constitute a prior conviction pursuant to section 7B-2412 of our General Statutes and was neither presented to a jury and proved beyond a reasonable doubt nor admitted by Defendant. N.C. Gen. Stat. \u00a7 7B-2412 (2004) (\u201cAn adjudication that a juvenile is delinquent . . . shall neither be considered conviction of any criminal offense nor cause the juvenile to forfeit any citizenship rights.\u201d). Therefore, pursuant to Allen and Speight we must remand for resentencing.\nIn sum, we hold that the trial court did not err in denying Defendant\u2019s challenge for cause of juror Mildred Williams, Defendant\u2019s motion to dismiss the charges at the close of evidence, or Defendant\u2019s motion to dismiss the first-degree murder indictment. Defendant failed to argue his other assignments of error, which are therefore deemed abandoned. See N.C. R. App. R 28(b)(6). The trial court did, however, err in finding impermissible aggravating factors and sentencing Defendant in the aggravated range; accordingly, we remand for resentencing.\nNo Error in part, Remanded for resentencing in part.\nChief Judge MARTIN and Judge McGEE concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General RalfF. Haskell, for the State.", "Daniel Shatz, for the defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RASHAWN DREAN YARRELL\nNo. COA03-1454\n(Filed 2 August 2005)\n1. Jury\u2014 denial of challenge for cause \u2014 death penalty views\nThe trial court did not abuse its discretion in a first-degree murder case by denying defendant\u2019s challenge for cause of a juror whose beliefs about the death penalty allegedly rendered her unqualified to sit on the jury, because the trial court carefully questioned the juror as to her views about the death penalty versus life imprisonment and determined that she was capable of following the law.\n2. Assault; Homicide\u2014 assault with deadly weapon inflicting serious injury \u2014 assault with deadly weapon \u2014 first-degree murder \u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charges of double assault with a deadly weapon inflicting serious injury, assault with a deadly weapon, and first-degree murder, because: (1) the State demonstrated how defendant\u2019s hands and feet were used as deadly weapons in the attack of one of the victims who was undressed and facing downward in an unlit bedroom when he was hit from behind, dragged to the ground, and then kicked while facing downward; (2) the State provided substantial elements for the assault with a deadly weapon inflicting serious injury of another victim who was also undressed and lying in bed in an unlit bedroom where she was struck, was bleeding, and blacked out; (3) the State showed that defendant used his hands and a rubber mallet to hit one victim and that during this attack another victim was hit in the head while she was trying to stop the attack which caused her to get a deep laceration over her left eye that required stitches, antibiotics, and a tetanus shot; and (4) with regard to the first-degree murder, the State showed substantial evidence that defendant attacked the victim after the victim had been knocked to the ground by another, defendant retrieved a rubber mallet from his vehicle and beat the victim with it, defendant stole the shoes from the victim\u2019s feet and fled the scene, and defendant told others during his flight that he had killed the victim.\n3. Homicide\u2014 first-degree murder \u2014 sufficiency of indictment\nAlthough defendant contends the trial court erred by denying defendant\u2019s motion to dismiss the charge of first-degree murder because the indictment failed to allege every element of the offense, he concedes that our Supreme Court has ruled against his position.\n4. Sentencing\u2014 aggravating factors \u2014 Blakely error\nThe trial court erred by finding aggravating factors and sentencing defendant in the aggravating range for two counts of assault with a deadly weapon inflicting serious injury, because: (1) the aggravating factors that defendant committed the offense while on pretrial release on another charge and that defendant joined with more than one other person in committing the offense and was not charged with committing conspiracy were not prior convictions, the factors were not admitted by defendant, and the facts for these aggravating factors were, not presented to a jury and proved beyond a reasonable doubt; and (2) the aggravating factor that defendant had previously been adjudicated delinquent does not constitute a prior conviction pursuant to N.C.G.S. \u00a7 7B-2412 and was neither presented to a jury and proved beyond a reasonable doubt nor admitted by defendant.\nAppeal by Defendant from conviction and sentencing entered 10 December 2002 by Judge Jerry Cash Martin in Superior Court, Randolph County. Heard in the Court of Appeals 13 September 2004.\nAttorney General Roy Cooper, by Special Deputy Attorney General RalfF. Haskell, for the State.\nDaniel Shatz, for the defendant-appellant.\n. By order of this Court, the filing of this opinion was delayed pending the outcome of the Supreme Court of North Carolina decisions in State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005) and State v. Speight, 359 N.C. 602, 614 S.E.2d 262 (2005) on issues arising from the United States Supreme Court\u2019s decision in Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004)." }, "file_name": "0135-01", "first_page_order": 165, "last_page_order": 173 }