{ "id": 4220938, "name": "STATE OF NORTH CAROLINA v. ANACIN WILLIAM PHILLIPS", "name_abbreviation": "State v. Phillips", "decision_date": "2013-05-21", "docket_number": "No. COA12-852", "first_page": "416", "last_page": "427", "citations": [ { "type": "official", "cite": "227 N.C. App. 416" } ], "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": "623 S.E.2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634713 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/623/0600-01" ] }, { "cite": "623 S.E.2d 11", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634569, 12634570 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/623/0011-01", "/se2d/623/0011-02" ] }, { "cite": "699 S.E.2d 911", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "pin_cites": [ { "page": "917" } ], "opinion_index": 0 }, { "cite": "364 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152635 ], "year": 2010, "opinion_index": 0, "case_paths": [ "/nc/364/0394-01" ] }, { "cite": "591 S.E.2d 505", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2004, "pin_cites": [ { "page": "513", "parenthetical": "citation omitted" }, { "page": "513" } ], "opinion_index": 0 }, { "cite": "358 N.C. 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2985064 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "101-02" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0092-01" ] }, { "cite": "735 S.E.2d 602", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "604", "parenthetical": "citing 2011 N.C. Sess. Law 145 \u00a7 32.6" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 1453", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2011, "pin_cites": [ { "page": "(c)(1)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-33", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(c)(l)" }, { "page": "(c)(l)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-32", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2011, "opinion_index": 0 }, { "cite": "175 N.C. App. 250", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8351769 ], "weight": 3, "year": 2006, "pin_cites": [ { "page": "259" }, { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/nc-app/175/0250-01" ] }, { "cite": "681 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "804", "parenthetical": "citing N.C. Gen. Stat. \u00a7 15A-1446(d)(18) " } ], "opinion_index": 0 }, { "cite": "198 N.C. App. 631", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4168838 ], "year": 2009, "pin_cites": [ { "page": "633", "parenthetical": "citing N.C. Gen. Stat. \u00a7 15A-1446(d)(18) " } ], "opinion_index": 0, "case_paths": [ "/nc-app/198/0631-01" ] }, { "cite": "594 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2004, "pin_cites": [ { "page": "415", "parenthetical": "citations and quotations omitted" }, { "page": "415" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 615", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8920112 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "620", "parenthetical": "citations and quotations omitted" }, { "page": "620" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0615-01" ] }, { "cite": "688 S.E.2d 766", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "parenthetical": "finding no plain error in the trial court's failure to intervene ex mero motu upon prosecutor's reference to the prosecuting witness as a \"victim\"" } ], "opinion_index": 0 }, { "cite": "202 N.C. App. 564", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4174127 ], "year": 2010, "pin_cites": [ { "parenthetical": "finding no plain error in the trial court's failure to intervene ex mero motu upon prosecutor's reference to the prosecuting witness as a \"victim\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/202/0564-01" ] }, { "cite": "434 S.E.2d 657", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1993, "pin_cites": [ { "page": "659" }, { "page": "663" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 58", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520068 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/112/0058-01" ] }, { "cite": "516 S.E.2d 195", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "133 N.C. App. 573", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11220679 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc-app/133/0573-01" ] }, { "cite": "524 S.E.2d 828", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "136 N.C. App. 510", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240774 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc-app/136/0510-01" ] }, { "cite": "739 S.E.2d 548", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "opinion_index": 0 }, { "cite": "718 S.E.2d 687", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "opinion_index": 0 }, { "cite": "445 S.E.2d 18", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "holding no error in trial court's reference to the prosecuting witness as the victim" } ], "opinion_index": 0 }, { "cite": "336 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2536933 ], "year": 1994, "pin_cites": [ { "parenthetical": "holding no error in trial court's reference to the prosecuting witness as the victim" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0559-01" ] }, { "cite": "360 N.C. 110", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3788006 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/360/0110-01" ] }, { "cite": "380 S.E.2d 94", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2486845 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0489-01" ] } ], "analysis": { "cardinality": 1008, "char_count": 27821, "ocr_confidence": 0.71, "pagerank": { "raw": 1.354810653804275e-07, "percentile": 0.6343043551959979 }, "sha256": "0c9cc892e0b99f3b219124541351eecddec83d0ce4419cd40335b5d5ab483343", "simhash": "1:5f28c26f3e7c1db4", "word_count": 4646 }, "last_updated": "2023-07-14T17:48:13.495142+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and ERVIN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ANACIN WILLIAM PHILLIPS" ], "opinions": [ { "text": "BRYANT, Judge.\nWhere the trial court\u2019s use of the term \u201cvictim\u201d during the jury instructions did not prejudice defendant by improperly expressing an opinion before the jury, we find no error. Where the trial court erred by concluding that defendant\u2019s prior conviction in violation of a Ohio revised code section prohibiting \u201cIntentional shooting, cutting, or stabbing,\u201d was substantially similar to the North Carolina offense \u201cFelonious assault with deadly weapon with intent to Mil or inflicting serious injury \u201d and as a result attributing to defendant a prior record level IV for felony sentencing purposes, we reverse and remand. Where the record shows that defendant was afforded notice and an opportunity to be heard on the imposition of court costs, we find no error.\nOn 20 July 2009, defendant was indicted on charges of assault with a deadly weapon with intent to Mil inflicting serious injury and Mdnapping. Defendant was also indicted as both a violent habitual felon and habitual felon. A trial commenced during the 26 September 2011 session of Craven County Superior Court, the Honorable Arnold Jones, Judge presiding.\nThe State\u2019s evidence tended to show that in May 2009 defendant, sixty-four years old at the time of trial, and Diane, fifty-one years old, had been dating for almost a year. Diane spent as many as five nights a week with defendant at his residence located at 1031 Queen Street in New Bern. Emagene Broy and Albert Brown also lived at the residence.\nOn the evening of 6 May 2009, at approximately 8:00 p.m., Diane entered defendant\u2019s residence and then his bedroom. Diane testified that defendant usually returned home around 9:00 p.m., but on this night, he did not come home until close to midnight. When he entered the bedroom, Diane smelled a strong odor of alcohol and believed that defendant was impaired. Defendant sat near the foot of the bed and used a knife to cut a piece of cheese. Diane described the knife as a \u201chunting knife\u201d having a black handle and a three to four inch blade. Defendant was muttering to himself. Diane testified that she said, \u201clet me go to sleep. I don\u2019t want to hear that drunk BS.\u201d\nQ. ... [W]hat did he say back to you at that time?\nA. He [] said \u201cshut the hell up.\u201d\nHe was calling me a b**ch and he got up and walked towards me with the knife in his hand____\nDiane testified that defendant sat down next to her, pinned her with his elbow, and proceeded to \u201cbeat me in my face. Just beat me and beat me. I was bleeding and bleeding, and he kept just beating me.\u201d Diane testified that before he released her, defendant used his knife to cut her clothes and rip them away from her body. When defendant moved to the far side of the bed, Diane jumped and ran to the bedroom door and out into the living room.\nIn the living room, Emagene Broy and Albert Brown were laying on separate couches watching television. Diane ran into the room without any clothes on; defendant followed her holding a knife. Diane begged defendant to \u201cplease stop. . . . [P]lease just let me get my clothes and go.\u201d Defendant told Broy and Brown that no one was to move or call the police. Brown noticed that Diane was bleeding from her hands. As Broy started to get up to retrieve a towel, defendant, while holding a knife and standing over Brown who was on the couch, said, \u201cdon\u2019t get the b-i-t-c (sic) nothing. She doesn\u2019t need nothing on. . . . I\u2019m going to ldll the b-i-t-c-h.\u201d \u201cI\u2019m going to Mil you.\u201d\nDiane ran from the house, but defendant caught her and pulled her back onto the front porch. There, defendant stabbed Diane in the chest. Diane ran off of the porch and through a nearby field until she collapsed. Brown called law enforcement officers, and a police officer found Diane lying naked in a pool of blood near a service drive to Craven Terrace apartments near Miller Street at 4:40 a.m.\nDiane was admitted to the emergency department at Craven Regional Medical Center at 5:04 a.m. on 7 May 2009. Her blood pressure was \u201c73 over 47.\u201d An emergency room nurse who treated Diane testified that based on her blood pressure, Diane was \u201ccrashing\u201d and \u201c[had] a tendency to die at that particular time.\u201d An x-ray revealed that Diane suffered from a collapsed lung. A chest tube was inserted and approximately 510 milliliters of blood returned through the tube prompting hospital staff to give Diane approximately \u201c320 cc\u2019s of blood\u201d by transfusion. Once stabilized, Diane was transferred to the trauma unit at Pitt Memorial Hospital. At Pitt Memorial Hospital, Diane presented with multiple lacerations to her face, hand, and left chest, and a collapsed lung. She was treated and released four days later.\nDefendant did not present any evidence.\nThe jury returned a guilty verdict on the charge of assault with a deadly weapon with intent to kill inflicting serious injury and not guilty on the charge of kidnapping. The State dismissed the charge of attaining habitual felon status, and the trial court dismissed the charge of attaining violent habitual felon status. Defendant was sentenced to a term of 133 to 169 months and ordered to pay court costs of $9,094.50. Defendant appeals.\nOn appeal, defendant raises the following issues: whether the trial court erred in (I) expressing an opinion about the evidence in front of the jury; (II) calculating defendant\u2019s prior record level; and (III) imposing court costs.\n/\nDefendant argues that the trial court violated N.C. Gen. Stat. \u00a7 15A-1232 by expressing an opinion as to an issue of fact while instructing the jury. Specifically, defendant contends that the trial court committed error by referring to Diane as \u201cthe victim\u201d when instructing the jury on the charge of assault with a deadly weapon with intent to kill inflicting serious injury. We disagree.\nStandard of Review\nWe note that defendant failed to raise an objection to the jury instructions before the trial court but on appeal argues that the issue is preserved as a matter of law. Defendant cites State v. Young, 324 N.C. 489, 380 S.E.2d 94 (1989), and State v. Duke, 360 N.C. 110, 623 S.E.2d 11 (2005), for the proposition that this issue is properly preserved. However, both Young and Duke involve the trial court\u2019s comment regarding a defendant\u2019s confession, not a reference to the prosecuting witness as a victim. Further, defendant argues that our Supreme Court\u2019s opinion in State v. McCarroll, 336 N.C. 559, 445 S.E.2d 18 (1994) (holding no error in trial court\u2019s reference to the prosecuting witness as the victim), was reviewed for plain error only \u201cbecause of concession by the defendant-appellant in that case.\u201d We disagree.\nOn many occasions, our Court has applied plain error review to the issue defendant raises. See e.g., State v. Carter, _ N.C. App. _, 718 S.E.2d 687 (2011), rev\u2019d on other grounds, _ N.C. __, 739 S.E.2d 548 (2013); State v. Cabe, 136 N.C. App. 510, 524 S.E.2d 828 (2000); State v. Anthony, 133 N.C. App. 573, 516 S.E.2d 195 (1999); and State v. Richardson, 112 N.C. App. 58, 434 S.E.2d 657 (1993). See also, State v. Jackson, 202 N.C. App. 564, 688 S.E.2d 766 (2010) (finding no plain error in the trial court\u2019s failure to intervene ex mero motu upon prosecutor\u2019s reference to the prosecuting witness as a \u201cvictim\u201d). We are unable to find and defendant fails to point us to any cases in which this Court has reviewed this precise issue regarding the trial court\u2019s reference to the prosecuting witness as \u201cthe victim\u201d for anything other than plain error where defendant failed to object and properly preserve the issue for review. Therefore, where our courts have repeatedly stated that the use of the word \u201cvictim\u201d injury instructions is not an expression of opinion, we will not allow defendant, after failing to object at trial, to bring forth this objection on appeal, couched as a statutory violation, and thereby obtain review as if the issue was preserved. Therefore, we review this issue for plain error.\nAnalysis\nPursuant to our General Statutes, section 15A-1232, \u201c[i]n instructing the jury, the judge shall not express an opinion as to whether or not a fact has been proved and shall not be required to state, summarize or recapitulate the evidence, or to explain the application of the law to the evidence.\u201d N.C. Gen. Stat. \u00a7 15A-1232 (2011).\nWhether a trial court\u2019s comment constitutes an improper expression of opinion is determined by its probable meaning to the jury, not by the judge\u2019s motive. Furthermore, a totality of the circumstances test is utilized under which defendant has the burden of showing prejudice. Unless it is apparent that such infraction of the rules might reasonably have had a prejudicial effect on the result of the trial, the error will be considered harmless.\nState v. Mucci, 163 N.C. App. 615, 620, 594 S.E.2d 411, 415 (2004) (citations and quotations omitted).\nDefendant cites Richardson, 112 N.C. App. 58, 434 S.E.2d 657, where the defendant was charged with first degree sexual offense, first degree rape, taking indecent liberties with a minor, and crime against nature. Id. at 60, 434 S.E.2d at 659. In instructing the jury, the trial court referred to the prosecuting witnesses as \u201cvictims\u201d only in discussing the rape and sexual offense charges but not in respect to the charges of taking indecent liberties with a minor and crime against nature Id. at 67, 434 S.E.2d at 663. The jury returned guilty verdicts only on the charges of taking indecent liberties with a minor and crime against nature. The defendant argued on appeal that the trial court erred by referring to the prosecuting witnesses as \u201cvictims\u201d during the jury charge. In overruling the defendant\u2019s argument, the Richardson Court noted that the jury found the defendant not guilty of those offenses for which the trial court referred to prosecuting witnesses as victims; therefore, the defendant could not establish prejudice.\nIn contrast to Richardson, defendant points to the trial court\u2019s use of the term \u201cvictim\u201d repeatedly in the assault instruction - a crime for which he was convicted - and \u201cperson\u201d in the kidnapping instruction \u2014 a charge of which he. was acquitted. Defendant asserts that the trial court \u201ceffectively intimated judicial opinion [that he] was guilty of assault if not kidnapping.\u201d However, use of the term \u201cvictim\u201d standing alone is not enough to warrant a new trial. Defendant has the burden of showing prejudice based on a totality of the circumstances. Mucci, 163 N.C. App. at 620, 594 S.E.2d at 415.\nAt trial, the State presented evidence that defendant was intoxicated when he returned to his residence. Defendant\u2019s girlfriend, Diane testified that in response to her statement \u201clet me go to sleep. I don\u2019t want to hear that drunk BS[,]\u201d defendant beat her about her face with the handle of a knife and then cut away all of the clothes from her body. Diane ran to a living room where Emagene Broy and Albert Brown were watching television. Broy and Brown testified that Diane ran into the room without clothes on, pleading for help and asking that someone call the police. Defendant came into the living room carrying a knife. Diane had no weapon, and she was bleeding from her hands. Defendant refused to let Brown or Broy get a towel for Diane or call the police. Instead, while standing over Brown holding a knife, defendant said, \u201cdon\u2019t get the b-i-t-c (sic) nothing. She doesn\u2019t need nothing on. . . . I\u2019m going to kill the b-i-t-c-h.\u201d Diane attempted to talk to defendant but again, \u201cHe said, I\u2019m going to kill you.\u201d Diane ran for the front door, onto the front porch, and down the steps. Defendant caught Diane at the base of the steps, pulled her back toward the house, and then stabbed her in the chest before Diane could run away. Diane was found lying outdoors, naked, in a pool of blood. As a result of the beating and stabbing by defendant, Diane suffered lacerations to her face and hand, and suffered a puncture wound in her left chest which caused a collapsed lung. Because of the severity of her medical condition - Diane was \u201ccrashing\u201d and \u201c[had] a tendency to die at that particular time,\u201d Diane was transferred to Pitt Memorial Hospital where they offered \u201ca higher level of care.\u201d There, she received treatment and was released four days later.\nConsidering the fact that our courts have on many occasions stated that the use of the term \u201cvictim\u201d in jury instructions is not an expression of opinion, and considering the horrifying facts of the assault in the instant case, we can discern no prejudicial error as a result of the trial court\u2019s use of the word \u201cvictim\u201d to identify the State\u2019s prosecuting witness during its jury instructions. See id. Accordingly, we overrule defendant\u2019s argument.\nII\nDefendant argues that the trial court erred in calculating his prior record level and sentencing him as a having obtained a prior record level of IV for felony sentencing purposes. Defendant contends that the trial court erred in concluding that his prior conviction in Ohio for violating Ohio Revised Code \u00a7 2901.23 (1969), \u201cIntentional shooting, cutting, or stabbing,\u201d was substantially similar to the North Carolina crime of assault with a deadly weapon with intent to kill. Defendant further contends that because of this conclusion, the trial court erroneously assigned him four prior record level points causing him to be sentenced as having obtained a level IV prior record level rather than a level III. We agree.\nInitially, we note the State\u2019s argument that defendant failed to raise this issue before the trial court and thus, may not raise it on appeal. However, \u201c[i]t is not necessary that an objection be lodged at the sentencing hearing in order for a claim that the record evidence does not support the trial court\u2019s determination of a defendant\u2019s prior record level to be preserved for appellate review.\u201d State v. Bohler, 198 N.C. App. 631, 633, 681 S.E.2d 801, 804 (2009) (citing N.C. Gen. Stat. \u00a7 15A-1446(d)(18) ) (citations omitted). \u201cThe determination of an offender\u2019s prior record level is a conclusion of law that is subject to de novo review on appeal.\u201d Id.\nPursuantto North Carolina General Statutes, section 15A-1340.14(a), \u201c[t]he prior record level of a felony offender is determined by calculating the sum of the points assigned to each of the offender\u2019s prior convictions ....\u201d N.C. Gen. Stat. \u00a7 15A-1340.14(a) (2011).\nExcept as otherwise provided in this subsection, a conviction occurring in a jurisdiction other than North Carolina is classified as a Class I felony if the jurisdiction in which the offense occurred classifies the offense as a felony, or is classified as a Class 3 misdemeanor if the jurisdiction in which the offense occurred classifies the offense as a misdemeanor. If the offender proves by the preponderance of the evidence that an offense classified as a felony in the other jurisdiction is substantially similar to an offense that is a misdemeanor in North Carolina, the conviction is treated as that class of misdemeanor for assigning prior record level points. If the State proves by the preponderance of the evidence that an offense classified as either a misdemeanor or a felony in the other jurisdiction is substantially similar to an offense in North Carolina that is classified as a Class I felony or higher, the conviction is treated as that class of felony for assigning prior record level points.\nN.C.G.S. \u00a7 15A-1340.14(e). While the statute provides that either the State or the defendant may prove that an offense for which the defendant was convicted in a foreign jurisdiction is substantially similar to a North Carolina offense, the statute does not give guidance as to how a trial court is to make such a determination. See id.; see also, State v. Hanton, 175 N.C. App. 250, 623 S.E.2d 600 (2006). \u201cIn light of such an ambiguity in a criminal statute, the rule of lenity requires us to interpret the statute in favor of defendant.\u201d Hanton, 175 N.C. App. at 259, 623 S.E.2d at 606 (citation omitted).\nHere, the trial court found that defendant had two prior convictions: \u201cShoot with Intent to Kill;\u201d and \u201cRape.\u201d Both convictions occurred in Ohio. The trial court determined that the Ohio offense \u201cShoot with Intent to Kill\u201d was substantially similar to that of the North Carolina offense assault with a deadly weapon with intent to kill, a class E felony. This class E felony under North Carolina law accounted for four of defendant\u2019s ten prior record level points. With ten prior record level points, defendant was sentenced as having obtained prior record level IV for felony sentencing purposes.\nIn making its determination that defendant\u2019s Ohio conviction of \u201cShoot with Intent to Kill\u201d was substantially similar to the North Carolina offense assault with a deadly weapon with intent to kill, the trial court stated the following:\nI have [] reviewed the Ohio code, the definitions contained in that code, felonies. I have compared that to North Carolina statutes, and I do find that by a preponderance of the evidence the State has met their burden that the Ohio crime is substantially similar to our North Carolina Crime Class E classification of assault offered by the State, and therefore I will find prior sentencing points should be calculated as relates to these - this assault with a deadly weapon with intent to kill inflicting serious injury charge as ... a prior E conviction.\nIn pertinent part, the record indicates that defendant was convicted of an offense in violation of Ohio R.C. \u00a7 2901.23. The State presented copies of section 2901.23 that the trial court accepted as being in effect at the time of defendant\u2019s offense on 24 December 1968. Pursuant to Ohio R.C. \u00a7 2901.23, entitled \u201cIntentional shooting, cutting, or stabbing,\u201d \u201c[n]o person shall maliciously shoot, stab, or shoot at another person with intent to kill, wound, or maim such person.\u201d\nPursuant to North Carolina General Statutes, section 14-32, entitled \u201cFelonious assault with deadly weapon with intent to kill or inflicting serious injury; punishments[,]\u201d\n(a) Any person who assaults another person with a deadly weapon with intent to kill and inflicts serious injury shall be punished as a Class C felon.\n(b) Any person who assaults another person with a deadly weapon and inflicts serious injury shall be punished as a Class E felon.\n(c)Any person who assaults another person with a deadly weapon with intent to kill shall be punished as a Class E felon.\nN.C. Gen. Stat. \u00a7 14-32 (2011).\nDefendant contends that because an offense in violation of Ohio R.C. \u00a7 2901.23 did not require an intent to kill or the infliction of an injury, while an offense in violation of N.C. Gen. Stat. \u00a7 14-32 requires either an intent to kill or infliction of serious injury, or both, R.C. \u00a7 2901.23 is not substantially similar to N.C.G.S. \u00a7 14-32. Considering the ambiguity within R.C. \u00a7 2901.23 and in accordance with the rule of lenity, we hold that R.C. \u00a7 2901.23 is not substantially similar to N.C.G.S. \u00a7 14-32. See Hanton, 175 N.C. App. at 259, 623 S.E.2d at 606.\nDefendant further contends that, when viewed in the light most favorable to him, R.C. \u00a7 2901.23 is substantially similar to the North Carolina offense set out under N.C. Gen. Stat. \u00a7 14-33(c)(l), \u201cMisdemeanor assaults, batteries, and affrays, simple and aggravated; punishments.\u201d Pursuant to N.C.G.S. \u00a7 14-33(c)(l), \u201cany person who commits any assault, assault and battery, or affray is guilty of a Class A1 misdemeanor if, in the course of the assault, assault and battery, or affray, he or she: (1) Inflicts serious injury upon another person or uses a deadly weapon ....\u201d N.C. Gen. Stat. \u00a7 1453(c)(1) (2011). We agree.\nBecause we hold that in, when viewed the light most favorable to defendant, R.C. \u00a7 2901.23 is substantially similar to N.C. Gen. Stat. \u00a7 14-33(c)(l), an A1 misdemeanor with a prior felony record level value of one point, defendant\u2019s prior record level points for felony sentencing would be reduced from ten to seven points. See N.C. Gen. Stat. \u00a7 15A-1340.14(b)(5) (2011) (\u201cFor each prior misdemeanor conviction as defined in this subsection, 1 point. For purposes of this subsection, misdemeanor is defined as any Class A1... nontraffic misdemeanor offense . . . .\u201d). A prior felony record level totaling seven points corresponds to a level HI for felony sentencing. See N.C.G.S. \u00a7 15A-1340.14(c)(3) (\u201cThe prior record levels for felony sentencing are ... (3) Level III - At least 6, but not more than 9 points.). Therefore, in sum, we hold that the trial court erred in concluding that Ohio R.C. \u00a7 2901.23 (\u201cIntentional shooting, cutting, or stabbing\u201d), as codified at the time of defendant\u2019s offense, was substantially similar to N.C.G.S. \u00a7 14-32 (\u201cFelonious assault with deadly weapon with intent to kill or inflicting serious injury; punishments\u201d), and assigning defendant the corresponding four prior record level points, and sentencing defendant as having obtained a prior record level IV. Accordingly, we reverse defendant\u2019s sentence and remand for sentencing proceedings in accordance with this opinion.\nIll\nLastly, defendant argues that the trial court erred in failing to provide notice and an opportunity to be heard before imposing upon defendant court costs of $9,094.50. We disagree.\nPursuant to North Carolina General Statutes, section 7A-304, \u201c[i]n every criminal case in the superior or district court, wherein the defendant is convicted, or enters a plea of guilty or nolo contendere, or when costs are assessed against the prosecuting witness, the [] costs shall be assessed and collected.\u201d N.C. Gen. Stat. \u00a7 7A-304 (2011). \u201c[A] defendant who receives an active sentence is [] required to be assessed court costs unless the trial court specifically makes a written finding of just cause to waive these costs.\u201d State v. Patterson, _ N.C. App. _, _, 735 S.E.2d 602, 604 (2012) (citing 2011 N.C. Sess. Law 145 \u00a7 32.6).\nIn State v. Webb, 358 N.C. 92, 591 S.E.2d 505 (2004), our Supreme Court in discussing the constitutionality of a fee for appointed counsel imposed upon indigent defendants, stated the following:\n[a] convicted defendant is entitled to notice and an opportunity to be heard before a valid judgment for costs can be entered. Costs are imposed only at sentencing, so any convicted [] defendant is given notice of the appointment fee at the sentencing hearing and is also given an opportunity to be heard and object to the imposition of this cost.\nId. at 101-02, 591 S.E.2d at 513 (citation omitted).\nHere, the trial court gave the following order,\n[The Court:] [Defendant], I\u2019m going to sentence you to a minimum term of 133 months, maximum of 169 months in the North Carolina Department of Corrections.\nGive you credit for any time that you have served relating to this sentence ....\nOrder that he pay the superior court cost.\nWhile defendant challenges whether he was provided notice and an opportunity to be heard as to the imposition of court costs in the amount of $9,094.50, the judgment and commitment entered 29 September 2011 also reflects the imposition of attorney fees in the amount of $9,529.38 and miscellaneous fees of $60.00 for a total of $18,683.88. Defendant does not challenge the imposition of these fees. We note that following the trial court\u2019s order imposing court costs, defendant participated in a discussion with the trial court regarding attorney fees and the number of hours his attorney had worked on his case.\nTHE COURT: Lawyer spent about 120 hours on the case. Now, I\u2019m not holding him to that exact amount. This case is over two years old, almost - it\u2019s two-and-a-half years old. Do you want to be heard as to that amount of time, [defendant], or you think that sounds about right? You\u2019ve been working your lawyer a while I guess.\nDEFENDANT: Yes, your Honor. I think little bit more than the hours.\nTHE COURT: You think he spent more time than that. DEFENDANT: Yes, sir.\nTHE COURT: I will consider your time and I note for the record the defendant believes that may have actually spent more time than what he\u2019s telling me on the record.\nAnd I\u2019m going to award and order that those attorney fees be -- and cost of court be made a civil judgment against [defendant].\nConsidering statutory requirements that, absent a waiver, court costs be assessed when an active sentence is imposed, the trial court\u2019s order that court costs be assessed following the pronouncement that defendant would serve an active sentence satisfies the requirements that defendant be provided notice and an opportunity to be heard on the imposition of those costs. See N.C.G.S. \u00a7 7A-304; Webb, 358 N.C. at 101-02, 591 S.E.2d at 513. Accordingly, defendant\u2019s argument is overruled.\nNo error in part; reversed in part.\nJudges McGEE and ERVIN concur.\n. A pseudonym has been used to protect the identity of the victim.\n. Pursuant to North Carolina General Statutes, section 15A-1446(d)(18), \u201c[e]rrors based upon any of the following grounds, which are asserted to have occurred, may be the subject of appellate review even though no objection, exception or motion has been made in the trial division.... (18) The sentence imposed'was unauthorized at the time imposed, exceeded the maximum authorized by law, was illegally imposed, or is otherwise invalid as amatter of law.\u201d N.C. Gen. Stat. \u00a7 15A-1446(d)(18) (2011).\nIn State v. Mumford, 364 N.C. 394, 699 S.E.2d 911 (2010), our Supreme Court, in discussing the constitutionality of N.C.G.S. \u00a7 15A-1446(d)(18), concluded that \u201c[t]his provision does not conflict with any specific provision in our appellate rules and operates as a \u2018rule or law\u2019 under Rule lOfaYD____\"Id. at 403, 699 S.E.2d at 917.", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State.", "Kevin R Bradley for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ANACIN WILLIAM PHILLIPS\nNo. COA12-852\nFiled 21 May 2013\n1. Appeal and Error \u2014 preservation of issues \u2014 jury instructions \u2014 failure to object\nDefendant\u2019s argument that the trial court erred in its jury instructions by referring to the prosecuting witness as \u201cthe victim\u201d was reviewed for plain error where defendant failed to object and properly preserve the issue for review.\n2. Assault \u2014 jury instructions \u2014 reference to witness as victim\u2014 not expression of trial court\u2019s opinion\nThe trial court\u2019s use of the term \u201cvictim\u201d to refer to the prosecuting witness in the jury instructions for assault with a deadly weapon with intent to kill was not an expression of the trial court\u2019s opinion and defendant\u2019s argument to the contrary was overruled.\n3. Sentencing \u2014 prior record level \u2014 foreign conviction \u2014 not substantially similar to NC offense\nThe trial court erred in an assault with a deadly weapon with intent to kill case by calculating defendant\u2019s prior record level and sentencing him as having obtained a prior record level of IV for felony sentencing purposes. The trial court erroneously determined that the Ohio offense \u201cShoot with Intent to Kill\u201d was substantially similar to the North Carolina offense assault with a deadly weapon with intent to kill.\n4. Costs \u2014 notice and opportunity to be heard \u2014 statutory requirements met\nThe trial court did not err in an assault with a deadly weapon inflicting serious injury case by failing to provide defendant notice and an opportunity to be heard before imposing court costs upon him. Considering statutory requirements that, absent a waiver, court costs be assessed when an active sentence is imposed, the trial court\u2019s order that court costs be assessed following the pronouncement that defendant would serve an active sentence satisfied the requirements that defendant be provided notice and an opportunity to be heard on the imposition of those costs.\nAppeal by defendant from judgment entered 29 September 2011 by Judge Arnold O. Jones, II, in Craven County Superior Court. Heard in the Court of Appeals 13 November 2012.\nAttorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State.\nKevin R Bradley for defendant-appellant." }, "file_name": "0416-01", "first_page_order": 426, "last_page_order": 437 }