State v. Floyd
| Decision Date | 16 December 2014 |
| Docket Number | No. COA14–533.,COA14–533. |
| Citation | 766 S.E.2d 361,238 N.C.App. 110 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina, v. Corey Deon FLOYD. |
Attorney Roy Cooper, by Assistant Attorney General Stuart M. Saunders, for the State.
Massengale & Ozer, Chapel Hill, by Marilyn G. Ozer, for Defendant.
Defendant Corey Deon Floyd appeals from judgments entered based upon his convictions for possession of a weapon of mass destruction, possession of a firearm by a convicted felon, and having attained habitual felon status. On appeal, Defendant argues that the trial court erred by denying his motions to dismiss the possession of a weapon by a convicted felon and habitual felon charges on the grounds that these charges were supported by Defendant's previous conviction for an offense that did not exist, effectively determining that Defendant had no right to insist that his trial counsel pose certain questions to a prosecution witness, and denying his request for dismissal based on the length of the delay between the commission of the offense and the date upon which he was formally charged with committing that offense. After careful consideration of Defendant's challenges to the trial court's judgments in light of the record and the applicable law, we conclude that the Defendant's convictions for possession of a firearm by a convicted felon and having attained the status of an habitual felon should be vacated and that Defendant is entitled to a new trial in the case in which he was convicted of possession of a weapon of mass destruction.
On 16 October 2008, the Kinston Police Department received a call from a confidential source indicating that Defendant was "hanging" in the area of Adkin and Macon streets in Kinston while carrying a sawed-off shotgun in his pants. Detective Robbie Braswell and his shift commander, Carey Barnes, set out in a patrol car to locate Defendant. Commander Barnes had had frequent face-to-face contact with Defendant in the past and knew what he looked like.
As Detective Braswell and Commander Barnes approached Adkin Street from the south, Commander Barnes spotted an individual wearing a black hoodie and jeans who fit Defendant's description. When the individual turned around, Commander Barnes recognized him as Defendant. As the officers drove past the point at which Defendant was located, parked, and started walking toward him, Defendant began "inching his way off." At that point, Commander Barnes yelled out, "Corey Floyd, you'd better stop." Although Defendant initially turned toward Commander Barnes, he then took off running.
As the officers pursued Defendant on foot, Defendant jumped a brick wall. At that point, Detective Braswell, who was right behind Defendant, saw Defendant pull a shotgun out of the waistband of his pants and toss it over a high fence into a nearby yard. Upon making this observation, Detective Braswell stopped running and stood by the weapon. Upon his arrival, Commander Barnes secured the shotgun and removed a shotgun shell from the weapon.
On 8 November 2010, an arrest warrant was issued charging Defendant with possession of a weapon of mass destruction, resisting a public officer, and possession of a firearm by a convicted felon. On 31 January 2011, the Lenoir County grand jury returned bills of indictment purporting to charge Defendant with possession of a weapon of mass destruction, possession of a firearm by a convicted felon, and having attained habitual felon status. The charges against Defendant came on for trial before the trial court and a jury at the 28 October 2013 Session of the Lenoir County Superior Court. On 30 October 2013, the jury returned verdicts convicting Defendant of possession of a weapon of mass destruction and possession of a weapon by a convicted felon. On 31 October 2013, the jury returned a verdict convicting Defendant of having attained habitual felon status. At the conclusion of the ensuing sentencing hearing, the trial court entered judgments sentencing Defendant to a term of 151 to 191 months imprisonment based upon his convictions for possession of a weapon of mass destruction and having attained habitual felon status and to a concurrent term of 151 to 191 months imprisonment based upon his convictions for possession of a firearm by a convicted felon and having attained habitual felon status. Defendant noted an appeal to this Court from the trial court's judgments.
In his first challenge to the trial court's judgments, Defendant contends that the trial court erred by denying his motion to dismiss the possession of a firearm by a convicted felon charge for insufficiency of the evidence. More specifically, Defendant contends that the trial court should have dismissed the possession of a firearm by a convicted felon charge on the grounds that the prior felony conviction alleged in support of this charge was attempted assault with a deadly weapon and that attempted assault is not a recognized offense in North Carolina. Defendant's contention has merit.
" State v. Dawkins, 196 N.C.App. 719, 723, 675 S.E.2d 402, 405 (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980) ), disc. review denied, 363 N.C. 585, 682 S.E.2d 707 (2009). In deciding whether the dismissal motion should be allowed or denied, the evidence should be considered "in the light most favorable to the State and with the State being given the benefit of any inference that may be reasonably drawn from the evidence." State v. Allah, ––– N.C.App. ––––, ––––, 750 S.E.2d 903, 907 (2013) (). This Court reviews a trial court's decision to deny a motion to dismiss using a de novo standard of review. State v. McKinnon, 306 N.C. 288, 298, 293 S.E.2d 118, 125 (1982).1
The essential elements of the offense of possession of a firearm by a convicted felon are that (1) the defendant was previously convicted of a felony and (2) subsequently possessed a firearm. N.C. Gen.Stat. § 14–415.1(a) ; Dawkins, 196 N.C.App. at 725, 675 S.E.2d at 406. According to N.C. Gen.Stat. § 14–415.1(b), "[p]rior convictions which cause disentitlement ... include: (1) Felony convictions in North Carolina that occur before, on, or after December 1, 1995." Although the predicate felony alleged in the indictment by means of which Defendant was purportedly charged with the offense of possession of a firearm by a convicted felon and established during the course of the State's evidence was "Attempted Assault With a Deadly Weapon Inflicting Serious Injury" in violation of N.C. Gen.Stat. § 1432(a), with the offense in question having been "committed on February 16, 2005" and with Defendant having "pled guilty on December 5, 2005," and "sentenced to 25–30 months in the North Carolina Department of Corrections," this Court has previously held that attempted assault with a deadly weapon inflicting serious injury is not a recognized criminal offense in North Carolina. In State v. Currence, 14 N.C.App. 263, 188 S.E.2d 10, cert. denied, 281 N.C. 315, 188 S.E.2d 898–99 (1972), we explained the logic underlying this principle by noting that an assault consists of "an overt act or attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another." Id. at 265, 188 S.E.2d at 12 (quoting State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967) ). As a result, since the effect of an attempted assault verdict was to find the defendant guilty of an "attempt to attempt" and since "[o]ne cannot be indicted for an attempt to commit a crime where the crime attempted is in its very nature an attempt," id., we held that an attempted assault is simply not a recognized criminal offense in this jurisdiction.
This Court reaffirmed Currence in State v. Barksdale, 181 N.C.App. 302, 638 S.E.2d 579 (2007). In Barksdale, the trial court instructed the jury concerning the issue of the defendant's guilt of "attempted assault" and the jury convicted the defendant of two counts of attempted assault on a governmental official with a deadly weapon. Id. at 305, 638 S.E.2d at 581. Although the defendant's trial counsel did not object to the delivery of the attempted assault instruction, this Court held that the delivery of the attempted assault instruction constituted plain error, stating that "instructing a jury in such a way that the jury convicts the defendant of a nonexistent offense is an unmistakable example of a miscarriage of justice." Id. at 309, 638 S.E.2d at 583–84.
The decisions reflected in Currence and Barksdale to the effect that attempted assault is not a recognized criminal offense in North Carolina have not been overturned and are, for that reason, binding upon us in this case. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (). Although the State does not appear to dispute the validity of either Currence or Barksdale, it does contend that the offense of attempted assault has been recognized in other decisions and that we should treat these decisions as controlling. In support of this assertion, the State cites several decisions from this Court in which an attempted assault conviction was not overturned on...
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