State v. Dammons
| Decision Date | 05 August 2003 |
| Docket Number | No. COA02-625.,COA02-625. |
| Citation | 583 S.E.2d 606,159 NC App. 284 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Michael DAMMONS. |
Attorney General Roy Cooper, by Assistant Attorney General William P. Hart, for the State.
Bruce T. Cunningham, Jr., Southern Pines, for defendant appellant.
Michael Dammons ("defendant") appeals from the judgments of the trial court entered upon jury verdicts finding defendant guilty of financial identity fraud, failure to appear, and of being an habitual felon. For the reasons stated herein, we find no error by the trial court.
The State's evidence at trial tended to show the following: On 22 June 2000, Douglas Ray Brownie ("Brownie"), a bail bondsman, posted a $20,000.00 secured bond for defendant in connection with criminal charges against defendant. Upon posting the bond, Brownie and defendant signed a pretrial release order in the presence of a magistrate. The pretrial release order informed defendant that he was "ordered to appear before the court on all subsequent continued dates" and that if defendant failed to appear, he could be "imprisoned for as many as three years and fined as much as $3,000." Brownie read the document to defendant, who promised to be in court. Defendant also appeared in court on 5 July 2000 on charges of felonious assault, at which time he was released pursuant to an unsecured bond. The unsecured bond, signed by defendant and Lee County magistrate Sandra Jordan ("Magistrate Jordan"), recited that defendant was "ORDERED to appear before the Court as provided above and at all subsequent continued dates." The unsecured bond, like the secured bond, notified defendant that "if you fail to appear, you will be arrested and may be imprisoned for as many as three years and fined as much as $3,000.00."
The charges against defendant were set for trial on 22 January 2001. Defendant, however, failed to appear in court for trial of his case. Prior to his court date, defendant informed his girlfriend, Joyce McNeill ("McNeill") that he might not go to court. McNeill testified that defendant removed his possessions from her residence on or about 22 January 2001, and that she had no contact with him until two months later, when defendant telephoned her to "let [her] know that he was okay."
On 14 June 2001, Sanford police officer Marshall McNeill ("Officer McNeill") responded to a report of a suspicious vehicle. In responding to the report, Officer McNeill encountered defendant, who produced a false identification card and social security card, both of which identified defendant as "William Artis Smith" ("Smith"). Although a second responding officer raised doubts as to whether defendant was in fact Smith, Officer McNeill allowed defendant to leave because he "didn't have any other information at that time other than [defendant] was who he said he was." Before leaving, Officer McNeill issued to defendant a citation in Smith's name. After further investigation, Officer McNeill discovered defendant's true identity and issued an alert that same day. Later that afternoon, Officer McNeill discovered defendant in an abandoned mobile home, where he had hidden in an effort to elude pursuing police officers. Officer McNeill arrested defendant, who continued to assert that he was Smith. Upon searching defendant pursuant to his arrest, police officers found a credit card, birth certificate, and a ticket from a pawn shop, all of which bore the name William Artis Smith. Although several police officers and a magistrate who knew defendant positively identified him as Michael Dammons, defendant continued to assert that he was Smith.
William Artis Smith testified on behalf of the State. Smith stated that he had been acquainted with defendant for ten years, and that he had lost his wallet during the spring of the previous year. The wallet contained Smith's birth certificate and other identification. Smith denied giving defendant permission to use his identity or his identification documents. Smith further denied receiving a citation from Officer McNeill or acquiring a pawn ticket.
Defendant testified and admitted that he possessed an identification card with his photograph and Smith's name. Defendant stated that Smith gave him the birth certificate, social security card and school records in order for defendant to obtain identification for employment purposes. Defendant admitted that he knew he was due in court on 22 January 2001 to stand trial for charges of driving while impaired, assault with a deadly weapon inflicting serious injury, driving while license revoked, and careless and reckless driving, but instead traveled to Texas. Defendant stated that he returned to North Carolina in May with the intent of "turning himself in," but confirmed that when arrested, he continued to deny his true identity.
Upon consideration of the evidence, the jury found defendant guilty of financial identity fraud and failure to appear on a felony. The jury further found defendant guilty of being an habitual felon. The trial court thereafter sentenced defendant to two consecutive terms of ninety-five to 123 months' imprisonment. From his convictions and resulting sentence, defendant appeals.
Defendant brings forth eight assignments of error on appeal, arguing that the trial court erred by (1) denying defendant's motion to dismiss the charge of failure to appear; (2) denying defendant's motion to dismiss the charge of financial identity fraud; (3) failing to instruct the jury on a lesser included offense; (4) failing to instruct the jury concerning consent; (5) denying defendant's request to inform the jury about potential punishment; (6) denying defendant's motion to dismiss the habitual felon indictment; (7) sentencing defendant as an habitual felon; and (8) failing to make findings with regard to aggravating or mitigating factors. For the reasons stated herein, we conclude that the trial court committed no error with regard to defendant's asserted assignments of error on appeal.
By his first assignment of error, defendant contends that the trial court erred in failing to dismiss the charge of failure to appear. Defendant sets forth several arguments in support of this assignment of error. First, defendant asserts that there was no evidence that a judge or magistrate ordered him to appear in court on 22 January 2001, and that he therefore cannot be prosecuted for failure to appear. We disagree. The secured release order, signed by defendant in the presence of the magistrate and read to him by Brownie, clearly and plainly ordered defendant to appear in court for the charges against him. Further, Magistrate Jordan, whose name appears on the unsecured release order, testified that she processed defendant on his felonious assault charge. The unsecured release order signed by defendant also ordered defendant to appear in court for the charges against him. We reject defendant's argument that, because Magistrate Jordan's signature on the unsecured release order was generated by a computer, rather than handwritten, there is no evidence that he was "ordered" to appear on the charges against him.
Defendant further argues that dismissal of the charge was proper because he had no actual knowledge that failure to appear was a criminal act. This argument has no merit. The pretrial order signed by defendant specifically informed defendant that if he failed to appear in court he could be fined and imprisoned. Brownie also informed defendant that he could be imprisoned for failure to appear. The evidence tended to show that defendant knew that he was required to be in court on 22 January 2001, but deliberately fled the jurisdiction of the court. Because defendant had actual knowledge of his duty to appear in court, he cannot claim ignorance of the law as an excuse. See Lambert v. California, 355 U.S. 225, 229-30, 78 S.Ct. 240, 243-44, 2 L.Ed.2d 228, 232 (1957) ().
In a related argument, defendant asserts that failure to appear is not a substantive crime. We do not agree. Section 15A-543 of the North Carolina General Statutes provides that "any person released pursuant to this Article who willfully fails to appear before any court or judicial official as required is subject to the criminal penalties set out in this section." N.C. Gen.Stat. § 15A-543(a) (2001). Where "[t]he violator was released in connection with a felony charge against him," violation of section 15A-543 is a felony offense. See id; see also State v. Messer, 145 N.C.App. 43, 47, 550 S.E.2d 802, 805 (), affirmed per curiam, 354 N.C. 567, 556 S.E.2d 293 (2001).
Further, defendant contends that his prosecution for failure to appear violated his due process rights, in that he could have been punished for his failure to appear under section 5A-12(a) of the North Carolina General Statutes. Section 5A-12(a) provides that, where a person willfully violates a court order, he may be punished for criminal contempt of court and sentenced to thirty days of imprisonment. See N.C. Gen.Stat. § 5A-12(a) (2001); see also N.C. Gen.Stat. § 5A-11 (2001) (defining criminal contempt). However, "[a] single act or transaction may violate different statutes." State v. Freeman, 59 N.C.App. 84, 87, 295 S.E.2d 619, 621 (1982), reversed on other grounds, 308 N.C. 502, 302 S.E.2d 779 (1983). Here, there was evidence from which a jury could find that defendant violated either section 5A-12(a) or section 15A-543. As such, it was within the prosecutor's discretion to decide under which statute the State wished to proceed against defendant. See State v. Cates, 154...
To continue reading
Request your trial
-
Johnson v. City of Fayetteville
...that a person (1) willfully, (2) disobeyed a lawful order or direction of (3) a law enforcement officer. See State v. Dammons, 159 N.C.App. 284, 294, 583 S.E.2d 606, 612 (2003) (“The elements of obstruction or delay of an officer are as follows: 1) that the victim was a public officer; 2) t......
-
State v. Poke, No. COA05-1003 (N.C. App. 8/1/2006), COA05-1003
...139 N.C. App. 544, 533 S.E.2d 865, appeal dismissed and disc. review denied, 353 N.C. 279, 546 S.E.2d 394 (2000), and State v. Dammons, 159 N.C. App. 284, 583 S.E.2d 606, disc. review denied, 357 N.C. 579, 589 S.E.2d 133 (2003), cert. denied, 541 U.S. 951, 158 L. Ed. 2d 382, 124 S. Ct. 1691......
-
In re J.M.
...and(5) the [juvenile] acted willfully and unlawfully, that is intentionally and without justification or excuse.State v. Dammons, 159 N.C. App. 284, 294, 583 S.E.2d 606, 612 (citing N.C. Gen. Stat. § 14-223), disc. review denied, 357 N.C. 579, 589 S.E.2d 133 (2003), cert. denied, 541 U.S. 9......
-
State v. Sinclair, COA08-103.
...5) that the defendant acted willfully and unlawfully, that is intentionally and without justification or excuse. State v. Dammons, 159 N.C.App. 284, 294, 583 S.E.2d 606, 612, (citing N.C. Gen.Stat. § 14-223 (2001); 2 N.C.P.I. — Crim. 230.30 (1999)), disc. review denied, 357 N.C. 579, 589 S.......