State v. Carpenter

• Decision Date: 31 December 2002
• Docket Number: No. COA01-1600.,COA01-1600.
• Citation: 573 S.E.2d 668,155 NC App. 35
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Vincent Todd CARPENTER, Defendant.

573 S.E.2d 668

155 NC App. 35

STATE of North Carolina v. Vincent Todd CARPENTER, Defendant.

No. COA01-1600.

Court of Appeals of North Carolina.

December 31, 2002.

Attorney General Roy Cooper, by Assistant Attorney General, John P. Scherer, II, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender, Aaron Edward Carlos, for defendant-appellant.

EAGLES, Chief Judge.

Vincent Todd Carpenter ("defendant") appeals from judgment entered on jury verdicts finding him guilty of assault inflicting serious injury, assault on a female, and habitual felon. After careful consideration of the briefs and record, we discern no error in part, reverse in part, vacate in part and remand for resentencing.

At trial, the State's evidence tended to show that defendant called the American Fiber and Finishing plant several times to speak with Melissa Alexander ("Alexander") on 5 August 1999. Alexander testified that she did not want to speak with defendant. Calvin Gainey ("Gainey"), a shift manager, answered one telephone call from defendant and at Alexander's request, would not put Alexander on the phone. Gainey testified that defendant told him that "he was coming down to that plant and he was going to whip her God damn ass and anybody that got in the way." At approximately 1:45 p.m., Alexander saw defendant at the plant. Alexander began to run but defendant caught her and pushed her to the ground. Defendant kicked Alexander and struck her in the head and stomach. Gainey testified that he received a radio call that "some guy was downstairs beating on [Alexander]." Gainey and his manager, Shane Phillips ("Phillips"), ran to the scene. They saw Alexander lying on the ground and defendant near her. Phillips told defendant that he should leave. Defendant took a step toward Gainey and struck him in the cheek with his fist. Gainey and Phillips then grabbed hold of defendant. Defendant then attempted to grab Gainey and Gainey struck defendant twice in the head. Defendant then "claw[ed]" Gainey's face and grabbed Gainey's bottom lip, and "ripped [his] bottom lip open." Defendant stuck his fingers in Gainey's mouth and "ripped [Gainey's] soft tissue out from under [Gainey's] tongue" while Gainey bit defendant. Phillips pulled defendant away and defendant pulled his hand out of Gainey's mouth which broke Gainey's jaw. Gainey and Phillips were holding onto defendant as the three men fell to the floor. Soon after, the police arrived.

Defendant was charged with assault on a female, assault inflicting serious injury, two counts of habitual misdemeanor assault and being an habitual felon. At trial, the jury returned guilty verdicts of assault on a female and assault inflicting serious injury. Defendant stipulated to the five misdemeanors listed in the two habitual misdemeanor assault indictments. The trial court then reimpaneled the jury for the habitual felon phase of the trial. After the jury returned a guilty verdict of being an habitual felon, the trial court pronounced that she "raised the level of the two misdemeanor assaults to class H felony, habitual misdemeanor assault convictions." The trial court entered judgment and sentenced defendant to a minimum term of imprisonment of 133 months to a maximum term of 169 months. Defendant appeals.

On appeal, defendant contends that the trial court erred when: (1) the trial court engaged in ex parte communication with and dismissed jurors; (2) the trial court denied his request to represent himself; (3) his assault on a female conviction was not vacated because the statute is unconstitutional; (4) his assault inflicting serious injury conviction was not vacated for insufficiency of the evidence; (5) his assault convictions were not vacated because the jury instructions were erroneous; (6) his habitual misdemeanor assault conviction was not vacated because the statute is unconstitutional; (7) his habitual felon conviction was not vacated because habitual misdemeanor assault is not a substantive offense; (8) his habitual felon conviction was not vacated because the trial court erred by failing to dismiss the indictment because of incompetent prior convictions; (9) his habitual felon conviction was not vacated because the "principal indictments" are insufficient to support his sentence as an habitual felon; (10) his habitual felon conviction was not vacated because the trial court had not found defendant guilty of a felony before the habitual felon proceeding; and (11) his sentence was not vacated because the trial court sentenced defendant at the incorrect prior record level. After careful consideration we discern no error in part, reverse in part, vacate in part, and remand for resentencing.

Defendant presents arguments relating to 18 of the 36 assignments of error in the record on appeal. Any assignments of error not argued in defendant's brief are deemed abandoned. N.C.R.App. P. 28(b)(6).

First, defendant contends that the trial court's ex parte communication with and dismissal of jurors was inappropriate. Defendant requested full recordation of the proceedings pursuant to G.S. § 15A-1241(b). Defendant contends that the trial court held unrecorded bench conferences, deferred five jurors without noting any reasons in the record and swore in the remaining jury pool. Defendant argues that the trial court's actions violated his Sixth and Fourteenth Amendment rights under the United States Constitution and Article I, § 23 of the North Carolina Constitution. We do not agree.

On 20 March 2001, the trial court heard and ruled on defendant's motion to suppress a statement made by defendant. Defendant and his counsel were present for the hearing. After the trial court denied the motion, the trial court ruled on some other preliminary motions. Defendant and his counsel left the courtroom and the jury pool was brought in. The trial court then deferred five members of the jury pool. The clerk of court swore in the remaining members of the jury pool. The trial court then had the jury pool leave the courtroom. Defendant and his counsel came back to the courtroom for another preliminary motion. The jury pool reentered the courtroom, the trial court stated "we're ready to begin the [defendant's] trial" and jury selection commenced.

"The Confrontation Clause in Article I, Section 23 of North Carolina's Constitution `guarantees the right of ... defendant to be present at every stage of the trial.'" State v. Rannels, 333 N.C. 644, 652-53, 430 S.E.2d 254, 258-59 (1993) (emphasis in original) (quoting State v. Smith, 326 N.C. 792, 794, 392 S.E.2d 362, 363 (1990)). Rannels held that "defendant's trial had not begun when the complained of unrecorded bench conferences with prospective jurors took place. They occurred ... before any case had been called for trial." Id. at 654, 430 S.E.2d at 259.

Here, defendant's trial had not commenced when the court held unrecorded bench conferences and deferred five jurors. This occurred before the trial court began defendant's trial. "The jurors were not excused at a stage of the defendant's trial and the defendant did not have the right to be present at the conferences." State v. Cole, 331 N.C. 272, 275, 415 S.E.2d 716, 717 (1992). This assignment of error is overruled.

Defendant contends that he is entitled to a new trial because the trial court denied his request to represent himself. We do not agree.

Defendant failed to object at trial and now seeks plain error review of this assignment of error. Our Supreme Court "has elected to review unpreserved issues for plain error when they involve either (1) errors in the judge's instructions to the jury, or (2) rulings on the admissibility of evidence." State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). Defendant's assignment of error here does not involve jury instructions or the admissibility of evidence. Accordingly, this assignment of error is dismissed.

Next, defendant contends that his habitual misdemeanor assault conviction must be vacated because G.S. § 14-33(c)(2) violates defendant's constitutional right to equal protection of the laws. We are not persuaded.

G.S. § 14-33(c)(2) (2001) states that "any person who commits any assault ... is guilty of a Class A1 misdemeanor if, in the course of the assault ... he or she: (2) Assaults a female, he being a male person at least 18 years of age." Defendant concedes that he did not raise the constitutionality of the statute at trial but requests that this Court review his claim pursuant to Appellate Rule 2. It is well settled that this Court will not review constitutional questions that "[were] not raised or passed upon in the trial court." State v. Elam, 302 N.C. 157, 160-61, 273 S.E.2d 661, 664 (1981). We decline to review this issue pursuant to Rule 2. This assignment of error is dismissed.

Defendant next contends that his conviction for assault inflicting serious injury must be vacated for insufficiency of the evidence. Specifically, defendant argues that the State did not produce any evidence to show that defendant "volitionally or knowingly caused these injuries." We are not persuaded.

"When ruling on a motion to dismiss for insufficiency of the evidence, the trial court determines whether substantial evidence exists for each essential element of the offense charged, and whether defendant is the perpetrator of the offense." State v. Gay, 151 N.C.App. 530, 532, 566 S.E.2d 121, 123 (2002). "Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion." State v. Mann, 355 N.C. 294, 301, 560 S.E.2d 776, 781 (2002), cert. denied, ___ U.S. ___, 123 S.Ct. 495, 154 L.Ed.2d 403 (2002). "[T]he trial court is not to be concerned with the weight of the evidence. Ultimately, the question for the court is whether a reasonable inference of defendant's guilt may be drawn from the circumstances." State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998) (citation omitted). "In...