{ "id": 4162770, "name": "STATE OF NORTH CAROLINA v. SAQUAN DEVEL HUSSEY", "name_abbreviation": "State v. Hussey", "decision_date": "2008-12-16", "docket_number": "No. COA08-620", "first_page": "516", "last_page": "524", "citations": [ { "type": "official", "cite": "194 N.C. App. 516" } ], "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": "616 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633665 ], "year": 2005, "pin_cites": [ { "page": "917" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0914-01" ] }, { "cite": "359 N.C. 824", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3798415 ], "year": 2005, "pin_cites": [ { "page": "828" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0824-01" ] }, { "cite": "605 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "675" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 575", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8412328 ], "year": 2004, "pin_cites": [ { "page": "579" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0575-01" ] }, { "cite": "186 S.E.2d 395", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "452" } ], "opinion_index": 0 }, { "cite": "186 S.E.2d 384", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1972, "pin_cites": [ { "page": "452" }, { "page": "395-96" }, { "page": "452" } ], "opinion_index": 0 }, { "cite": "280 N.C. 435", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572439 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0435-01" ] }, { "cite": "226 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "638" } ], "opinion_index": 0 }, { "cite": "290 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561442 ], "year": 1976, "pin_cites": [ { "page": "324" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0313-01" ] }, { "cite": "301 S.E.2d 91", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "95" } ], "opinion_index": 0 }, { "cite": "308 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710741 ], "year": 1983, "pin_cites": [ { "page": "164" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0159-01" ] }, { "cite": "347 S.E.2d 773", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "781" } ], "opinion_index": 0 }, { "cite": "318 N.C. 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4736806 ], "year": 1986, "pin_cites": [ { "page": "220" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0208-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-415.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "opinion_index": 0 }, { "cite": "560 S.E.2d 776", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "782", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "355 N.C. 294", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220055 ], "year": 2002, "pin_cites": [ { "page": "303", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0294-01" ] }, { "cite": "281 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "381", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0 }, { "cite": "303 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575150 ], "year": 1981, "pin_cites": [ { "page": "685", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0680-01" ] }, { "cite": "309 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "190" } ], "opinion_index": 0 }, { "cite": "309 N.C. 771", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763094 ], "year": 1983, "pin_cites": [ { "page": "774-75" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0771-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-409.39", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2007, "opinion_index": 0 }, { "cite": "462 S.E.2d 656", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "670", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 278", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915444 ], "year": 1995, "pin_cites": [ { "page": "298", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0278-01" ] }, { "cite": "239 S.E.2d 406", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "409" } ], "opinion_index": 0 }, { "cite": "293 N.C. 633", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566760 ], "year": 1977, "pin_cites": [ { "page": "636" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0633-01" ] } ], "analysis": { "cardinality": 750, "char_count": 19194, "ocr_confidence": 0.764, "pagerank": { "raw": 5.6089013594425323e-08, "percentile": 0.35128360765434585 }, "sha256": "aac22b9db1a9f0c831eb0698b5991a33d2d8e5f0e9c12623c2ccf1a478c6cf24", "simhash": "1:a32fd437f51cecb7", "word_count": 3203 }, "last_updated": "2023-07-14T16:50:43.594733+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TYSON and McCULLOUGH concur." ], "parties": [ "STATE OF NORTH CAROLINA v. SAQUAN DEVEL HUSSEY" ], "opinions": [ { "text": "CALABRIA, Judge.\nSaquan Devel Hussey (\u201cdefendant\u201d) appeals from a judgment entered upon jury verdicts finding him guilty of robbery with a dangerous weapon and possession of a firearm by a felon. He also appeals his sentence based on the method of determining his prior record level. We find no error.\nThe State presented evidence that on 22 December 2006 at approximately 4 P.M., George Walker (\u201cMr. Walker\u201d or \u201cthe victim\u201d), an 82-year-old retiree, went to McDonald\u2019s restaurant (\u201cthe restaurant\u201d or \u201cMcDonald\u2019s\u201d) with his wife. Mr. Walker testified that after entering the restaurant, he went into the restroom. The defendant was already in the restroom. When Mr. Walker looked up, defendant pointed a pistol at his head and demanded money. Mr. Walker responded \u201cwhat did you say?\u201d The defendant responded \u201cdon\u2019t ask no questions, just do what I tell you to do.\u201d The defendant told Mr. Walker to give him his money. Mr. Walker explained what happened:\nGot it right in my pocket book, right in there and I handed it to him just like this here . . . and he opened it with his right hand, took it up under his arm like that, took the money out of the pocket book and put it in his pocket. And I said now give me my pocketbook back because my social security card. I reached over and took my pocketbook from him, put it my pocket like this. He said, you\u2019ve got more money than that, give me that damn pocketbook back. I said, well you ought to know, you looked in it. I took it out of my pocket and handed it back to him. He looked in it again and thumbed through it, thumbed through it. I kept noticing that gun, that gun was dead on me and so he shut it back up like that and I reached over and took the pocketbook and put it back in my pocket. He said, give me that damn pocketbook back, you telling a damn lie, you\u2019ve got more money than that. I said, you ain\u2019t getting that damn pocketbook cause I forgot he got a gun to my head and I shouldn\u2019t have said that and I looked up and that gun was still pointed at my head. And all at once everything just went out like it blew a lamp out. I just hit the floor, I reckon, and so in a few minutes \u2014 I don\u2019t know how long I was down there .... But anyway, I tried to get up and I couldn\u2019t get up so I laid back down there a minute or two. In a few minutes I reached up there and got a hold of the urinal like this here, and pulled myself up on my knees and my head stopped swimming a little bit and so I got up from there and I went on out and I went and told my wife what had happened....\nAlthough prior to trial Mr. Walker chose not to attempt to identify defendant through a photo lineup, at trial he immediately and confidently identified the defendant as his attacker. Several other State witnesses confirmed that one of defendant\u2019s two friends arrived at the McDonald\u2019s in a grey car and also left in a grey car. The driver of the grey car was Montrell Sumlin (\u201cSumlin\u201d). Sumlin told a detective later that upon entering the car defendant told him he knocked a man out in the restroom and took ten dollars from him.\nThe jury returned verdicts finding defendant guilty of robbery with a dangerous weapon and possession of a firearm by a felon. During the sentencing phase, the prosecution presented a worksheet used to calculate defendant\u2019s prior record level. The worksheet listed defendant\u2019s prior convictions and defendant\u2019s points were calculated for a total of eleven points which classified defendant\u2019s prior record level as a level IV. Section III of the worksheet was entitled \u201cSTIPULATION\u201d and stated that defense counsel stipulated that the information on the worksheet was accurate. Both the prosecutor and defendant\u2019s counsel signed this worksheet.\nDefendant was sentenced to a minimum of 117 to a maximum of 150 months for robbery and a minimum of 20 to a maximum of 24 months for possession of a firearm by a felon, both sentences were to be served in the North Carolina Department of Correction. Defendant appeals.\nI. Variance in the Indictment\nThe defendant contends that there was a fatal variance between the indictment and the evidence offered. The indictment alleges that Mr. Walker was robbed \u201cwith the threatened use of a revolver, a dangerous weapon.\u201d The evidence presented at trial, as well as the jury instructions, described the weapon as a \u201cpistol,\u201d \u201cgun,\u201d or \u201cfirearm.\u201d The defendant contends that this distinction between a firearm and a revolver is fatal to his conviction. We disagree.\nThe purpose of the criminal indictment is \u201c[fjirst, to make clear the offense charged so that the investigation may be confined to that offense, that proper procedure may be followed, and applicable law invoked; second, to put the defendant on reasonable notice so as to enable him to make his defense.\u201d State v. Palmer, 293 N.C. 633, 636, 239 S.E.2d 406, 409 (1977). Therefore, \u201c[t]he allegations [in the indictment] and the proof must correspond.\u201d State v. Rhome, 120 N.C. App. 278, 298, 462 S.E.2d 656, 670 (1995) (citation omitted).\nThe General Statutes of North Carolina, under the heading \u201cFirearm Regulation\u201d define a firearm as \u201c[a] handgun, shotgun, or rifle which expels a projectile by action of an explosion.\u201d N.C. Gen. Stat. \u00a7 14-409.39 (2007). A handgun is defined as \u201c[a] pistol, revolver, or other gun that has a short stock and is designed to be held and fired by the use of a single hand.\u201d Id. This statute indicates that a revolver is a handgun and a handgun is included in the definition of a firearm. To the extent there are distinctions between each, these distinctions are not so great as to make the indictment unclear as to the nature of the crime charged. Whether the indictment said firearm or revolver the defendant was on notice that the State would present evidence that he threatened the victim with a handheld weapon. That level of specificity is sufficient, and there was no fatal variance between the indictment and the evidence.\nII. Sufficiency of the Evidence\nThe defendant argues that the trial court erred by denying defendant\u2019s motion to dismiss the charges based on insufficiency of the evidence. We disagree.\nThe standard of review for the court\u2019s denial of a motion to dismiss for insufficient evidence is whether when considered in the light most favorable to the State, there is substantial evidence of each essential element of the offense charged and that defendant is the perpetrator. State v. Robbins, 309 N.C. 771, 774-75, 309 S.E.2d 188, 190 (1983). \u201cSubstantial evidence is defined as that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Porter, 303 N.C. 680, 685, 281 S.E.2d 377, 381 (1981) (internal quotations and citations omitted).\nThe elements of robbery with a dangerous weapon are: \u201c(1) an unlawful taking or an attempt to take personal property from the person or in the presence of another, (2) by use or threatened use of a firearm or other dangerous weapon, (3) whereby the life of the person is endangered or threatened.\u201d State v. Mann, 355 N.C. 294, 303, 560 S.E.2d 776, 782 (2002) (internal citations omitted).\nMr. Walker provided evidence that the defendant aimed a pistol at his head, demanded money, then took money from him. Defendant argues the testimony that the 82-year-old victim took his pocket book back from his assailant and said \u201cYou ain\u2019t getting that damn pocket book\u201d shows that the victim\u2019s life was not threatened or endangered. Although no evidence was presented showing the defendant verbally threatened the life of the victim, or actually used the weapon to strike the victim, viewing the evidence in the light most favorable to the State, a jury could reasonably infer that aiming a gun at someone and demanding money is sufficient evidence to show both that defendant threatened to use a firearm and that the victim\u2019s life was endangered and threatened. Therefore, there was substantial evidence presented on each element of the charge of robbery with a dangerous weapon.\nThe crime of possession of a firearm by a felon states \u201c [i]t shall be unlawful for any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any firearm or any weapon of mass death and destruction as defined in G.S. 14-288.8(c).\u201d N.C. Gen. Stat. \u00a7 14-415.1 (2007). Therefore there are two elements to the offense. The State must provide substantial evidence that the defendant has a prior felony conviction, and a firearm in his possession. A certified copy of defendant\u2019s prior felony conviction was admitted into evidence, and the victim testified that the defendant had a gun in his hand in the restroom. Viewed in the light most favorable to the State, there was sufficient evidence presented on each element of the offense of possession of a firearm by a felon. This assignment of error is overruled.\nIII. In-Court Identification\nThe defendant argues that the trial court erred by refusing to strike the victim\u2019s testimony regarding his in-court identification of the defendant as his assailant.\nThe victim did not identify his assailant prior to trial. When contacted for a photo lineup the victim refused to view the pictures. It was not until he was seated in the courtroom prior to the beginning of the trial that he viewed the defendant for the first time since the robbery. Defendant was seated at the defense table, and the victim recognized the defendant as his assailant.\nAn identification at an unnecessarily suggestive pretrial identification procedure is not inadmissible unless the procedure employed was so suggestive that there is a substantial likelihood of irreparable misidentification. State v. Flowers, 318 N.C. 208, 220, 347 S.E.2d 773, 781 (1986). \u201cEven though a pretrial identification procedure may be suggestive, it will be impermissibly suggestive only if all the circumstances indicate that the procedure resulted in a very substantial likelihood of irreparable misidentification.\u201d State v. Harris, 308 N.C. 159, 164, 301 S.E.2d 91, 95 (1983).\nWe have held that the viewing of a defendant in the courtroom during the various stages of a criminal proceeding by witnesses who are offered to testify as to identification of the defendant is not, of itself, such a confrontation as will taint an in-court identification unless other circumstances are shown which are so unnecessarily suggestive and conducive to irreparable mistaken identification as would deprive defendant of his due process rights.\nState v. Covington, 290 N.C. 313, 324, 226 S.E.2d 629, 638 (1976). As in Covington, the defendant\u2019s only argument that his in-court identification was impermissibly suggestive was that the victim saw the defendant sitting across from him in the courtroom. This alone is insufficient to show that such a confrontation tainted the in-court identification.\nIn State v. Bass, 280 N.C. 435, 186 S.E.2d 384 (1972), the North Carolina Supreme Court was presented with similar facts. The victim in Bass did not attempt to identify one of her attackers prior to a preliminary hearing. She saw one of the defendants for the first time after her attack when she walked into the courtroom for the preliminary hearing. She testified that she recognized the defendant \u201cas soon as I came into the room. He was seated over on one side of the room against the wall.\u201d Id. at 452, 186 S.E.2d at 395-96. The trial court in Bass held that this procedure was not impermissibly suggestive, and the Supreme Court agreed stating that nothing in the record indicated \u201cthat the preliminary hearing was rigged for the purposes of identifying [the defendant].\u201d Id. at 452, 186 S.E.2d 395. Further the Court held\nHer positive in-court identification of [defendant] suffices to carry the case to the jury. The fact that she failed to identify him from photographs and the fact that there were discrepancies and contradictions in her testimony at the preliminary hearing, if such there were, goes to the weight rather than the competency of the testimony and is thus a matter to be considered by the jury.\nId. at 452, 186 S.E.2d at 396.\nPursuant to Bass, we hold that the identification of the defendant by the victim, immediately prior to the beginning of the trial, without law enforcement involvement or suggestion, is not impermissibly suggestive. The victim\u2019s in-court identification is competent evidence. The fact that the victim had refused to attempt a pretrial identification \u201cgoes to the weight rather than the competency of the testimony and is thus a matter to be considered by the jury.\u201d Id. We find no error.\nIV. Record Level Findings\nDefendant contends that the trial court erred in sentencing because nothing was offered to support the prior record level finding. We disagree.\nPrior convictions may be proved, by several methods, including a stipulation of the parties. N.C. Gen. Stat. \u00a7 15A-1340.14(f)(1) (2007). Here, defendant\u2019s prior record level was properly proven by stipulation. Included in the record on appeal is form AOC-CR-600 entitled \u201cPrior Record Level For Felony Sentencing.\u201d In Section I, defendant was found to have accumulated eleven points for prior felony and misdemeanor convictions and was classified as a prior record level IV offender. Section IV lists the defendant\u2019s prior convictions. Section III is entitled \u201cStipulation\u201d and states:\nThe prosecutor and defense counsel, or the defendant if not represented by counsel, stipulate to the accuracy of the information set out in Sections I. and IV. of this form, including the classification and points assigned to any out-of-state convictions, and agree with the defendant\u2019s prior record level or prior conviction level as set out in Section II.\nBoth the prosecutor and defense counsel signed this stipulation.\nIt has been established \u201c[t]he State does not satisfy its burden of proving defendant\u2019s prior record level merely by submitting a prior record level worksheet to the trial court.\u201d State v. Jeffery, 167 N.C. App. 575, 579, 605 S.E.2d 672, 675 (2004). However, in Jeffery, and the cases on which Jeffery relies, the prior record level worksheet that was submitted to the trial court did not include the stipulation that is now found in Section III. The prior record level worksheet was modified in 2003 to include the stipulation section. A signed stipulation is adequate to establish a prior record level so long as \u201cits terms . . . [are] definite and certain in order to afford a basis for judicial decision . . . .\u201d State v. Alexander, 359 N.C. 824, 828, 616 S.E.2d 914, 917 (2005).\nSufficient evidence in the record shows defendant stipulated to his prior record level pursuant to N.C. Gen. Stat. \u00a7 15A-1340.14(f)(1). Both the prosecutor and defense counsel signed this stipulation. The trial court did not err by determining defendant\u2019s prior record level was a level IV. This assignment of error is overruled.\nDefendant has failed to bring forth any arguments regarding his remaining assignments of error, and therefore has abandoned these assignments of error pursuant to N.C.R. App. P. 28(b)(6) (2007).\nNo error.\nJudges TYSON and McCULLOUGH concur.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General E. Burke Haywood, for the State.", "John T. Hall, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. SAQUAN DEVEL HUSSEY\nNo. COA08-620\n(Filed 16 December 2008)\n1. Robbery\u2014 dangerous weapon \u2014 alleged fatal variance between indictment and evidence\nThe trial court did not err by failing to dismiss the charge of robbery with a dangerous weapon even though defendant contends there was a fatal variance between the indictment and the evidence offered because: (1) although the indictment alleged the victim was robbed with the threatened use of a revolver whereas the evidence and jury instructions described the weapon as a pistol, gun, or firearm, the distinctions between each are not so great as to make the indictment unclear as to the nature of the crime charged; and (2) regardless of whether the indictment said firearm or revolver, defendant was on notice that the State would present evidence that he threatened the victim with a handheld weapon.\n2. Robbery\u2014 dangerous weapon \u2014 sufficiency of evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of robbery with a dangerous weapon based on alleged insufficient evidence because: (1) the eighty-two-y\u00e9ar-old victim provided evidence that defendant aimed a pistol at his head, demanded money, and then took money from him; and (2) although no evidence was presented showing defendant verbally threatened the life of the victim or actually used the weapon to strike the victim, viewing the evidence in the light most favorable to the State revealed.that a jury could reasonably infer that aiming a gun at someone and demanding money was sufficient evidence to show both that defendant threatened the use of a firearm and that the victim\u2019s life was endangered and threatened.\n3. Firearms and Other Weapons\u2014 possession of firearm by felon \u2014 sufficiency of evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of possession of a firearm by a felon because: (1) the State was required to provide substantial evidence that defendant had a prior felony conviction and a firearm in his possession; and (2) a certified copy of defendant\u2019s prior felony conviction was admitted into evidence, and the victim testified that defendant had a gun in his hand in the restroom.\n4. Identification of Defendants\u2014 in-court identification \u2014 refusal to identify before trial\nThe trial court did not err in a robbery with a dangerous weapon and possession of a firearm by a felon case by refusing to strike the victim\u2019s testimony regarding his in-court identification of defendant as his assailant even though the victim did not identify his assailant prior to trial because: (1) defendant\u2019s only argument that his in-court identification was impermissibly suggestive was that the victim saw defendant sitting across from him in the courtroom, and this evidence alone was insufficient to show that such a confrontation tainted the in-court identification; (2) identification of defendant by the victim immediately prior to the beginning of the trial, without law enforcement involvement or suggestion, is not impermissibly suggestive; and (3) the fact that the victim had refused to attempt a pretrial identification goes to the weight rather than the competency of the testimony and is thus a matter to be considered by the jury.\n5. Sentencing\u2014 prior record level \u2014 stipulation\nThe trial court did not err in a robbery with a dangerous weapon and possession of a firearm by a felon case by its sentencing even though defendant contends that nothing was offered to support the prior record level finding because: (1) prior convictions may be proved by several methods under N.C.G.S. \u00a7 15A-1340.14(f)(1) including a stipulation by the parties; and (2) sufficient evidence in the record showed defendant\u2019s prior record level was properly proven by stipulation.\nAppeal by defendant from judgment entered 16 January 2008 by Judge Quentin T. Sumner in Nash County Superior Court. Heard in the Court of Appeals 9 October 2008.\nAttorney General Roy Cooper, by Special Deputy Attorney General E. Burke Haywood, for the State.\nJohn T. Hall, for defendant-appellant." }, "file_name": "0516-01", "first_page_order": 548, "last_page_order": 556 }