State v. Moses

Decision Date03 December 2002
Docket NumberNo. COA02-26.,COA02-26.
Citation572 S.E.2d 223,154 NC App. 332
PartiesSTATE of North Carolina v. Mario MOSES.
CourtNorth Carolina Court of Appeals

Attorney General Roy Cooper, by Special Deputy Attorney General W. Richard Moore, for the State.

Russell J. Hollers, III, Carrboro, for defendant-appellant.

THOMAS, Judge.

Defendant, Mario Moses, appeals from judgments entered on his convictions of felonious operation of a motor vehicle to elude arrest, robbery with a dangerous weapon, and assault with a deadly weapon inflicting serious injury.

He contends the trial court erred by (1) entering judgment on assault with a deadly weapon inflicting serious injury, (2) allowing the State to amend Count I of the indictment and subsequently entering judgment on felonious operation of a motor vehicle to elude arrest, (3) denying his motion to dismiss the charge of robbery with a dangerous weapon, and (4) sentencing him in the aggravated range on all three convictions.

The State's evidence tends to show the following: On 17 February 2001, Mateo Jimenez was sitting in his Ford Tempo automobile outside a store in Winston-Salem. He was waiting for family members to finish shopping. Defendant and Shea Rousseau approached and attempted to speak with him but Jimenez did not understand English. Defendant and Rousseau left but shortly thereafter returned. Defendant opened the driver's side door of the Tempo and pulled Jimenez from his seat while Rousseau hit Jimenez in the back of the head with a glass bottle. Jiminez fell to the ground and defendant proceeded to kick him in the face several times. Jimenez suffered serious injuries to his teeth and mouth which required sutures. Defendant and Rousseau then stole Jimenez's car, with defendant driving.

Winston-Salem Police Department officers Mike Carico, who is fluent in Spanish, and Brad Underwood were dispatched to the scene. Jimenez gave a statement consistent with the facts set forth above. The officers, however, did not find a glass bottle.

Officer Michael McDonald of the Winston-Salem Police Department received a dispatch regarding the robbery. He spotted the vehicle, got behind it and activated his lights and siren. Defendant failed to stop however, until crashing on an exit ramp. Upon his being arrested, defendant told the officer that a Mexican had jumped Rousseau.

Defendant's evidence, meanwhile, tends to show that Jimenez had allowed defendant and Rousseau to borrow his car in exchange for crack cocaine. Defendant testified he was waiting in Jimenez's car when Jimenez struck Rousseau and accused him of providing poor quality cocaine. Rousseau fought back and gained control. Defendant and Rousseau then quickly drove away.

The jury returned verdicts of guilty on each charge. Following a sentencing hearing, the trial court found two statutory aggravating factors and three statutory mitigating factors. The trial court then determined the aggravating factors outweighed the mitigating ones. Defendant was sentenced in the aggravated range to three consecutive terms of imprisonment totaling a minimum of 114 months and a maximum of 156 months.

Defendant first contends the trial court erred in entering judgment on Count III of the indictment, assault with a deadly weapon inflicting serious injury, because the indictment fails to name the deadly weapon. He moves for arrest of judgment and asks for a remand for re-sentencing on the lesser-included offense of assault inflicting serious injury. We agree. A valid bill of indictment is essential to the jurisdiction of the Superior Court to try an accused for a felony and have the jury determine his guilt or innocence, "and to give authority to the court to render a valid judgment." State v. Ray, 274 N.C. 556, 562, 164 S.E.2d 457, 461 (1968); see also State v. Midyette, 45 N.C.App. 87, 262 S.E.2d 353 (1980)

; State v. Johnson, 77 N.C.App. 583, 335 S.E.2d 770 (1985). A defendant may not be lawfully convicted of an offense which is not charged in an indictment; if a defendant is found guilty of an offense for which he has not been charged, judgment thereon is properly arrested. See State v. Rush, 19 N.C.App. 109, 110, 197 S.E.2d 891, 891-92 (1973).

N.C. Gen.Stat. § 15A-924(a)(5) (2001) states:

(a) A criminal pleading must contain:
...
(5) A plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant's commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation. (emphasis added)

"An indictment is sufficient in form for all intents and purposes if it expresses the charge in a plain, intelligible and explicit manner." State v. Coker, 312 N.C. 432, 435, 323 S.E.2d 343, 346 (1984) (citing N.C. Gen. Stat. § 15-153 (2001)). An indictment is constitutionally sufficient if it identifies the offense with enough certainty 1) to enable the accused to prepare his defense, 2) to protect him from being twice put in jeopardy for the same offense, and 3) to enable the court to know what judgment to announce in the event of conviction. Id. at 434-35, 323 S.E.2d at 346; see also State v. Baynard, 79 N.C.App. 559, 562, 339 S.E.2d 810, 812 (1986)

.

The requirements for an indictment charging a crime in which one of the elements is the use of a deadly weapon are (1) to "`name the weapon and (2) either to state expressly that the weapon used was a `deadly weapon' or to allege such facts as would necessarily demonstrate the deadly character of the weapon.'" State v. Brinson, 337 N.C. 764, 768, 448 S.E.2d 822, 824 (1994) (quoting State v. Palmer, 293 N.C. 633, 639-40, 239 S.E.2d 406, 411 (1977) (emphasis in original)); accord State v. Hinson, 85 N.C.App. 558, 563, 355 S.E.2d 232, 235 (1987)

.

The indictment here sets forth three crimes that defendant allegedly committed. Count III of the indictment, assault with a deadly weapon inflicting serious injury, charges as follows:

The jurors for the State upon their oath present that on or about the date of offense shown and in Forsyth County the defendant named above unlawfully, willfully and feloniously did assault Mateo Mendez Jimenez with a deadly weapon. The assault resulted in the infliction of a serious injury, knocking out his teeth.

This count clearly does not name the deadly weapon allegedly used by defendant in his assault on Jimenez and therefore violates the requirements set forth in Brinson, Palmer and Hinson.

Nonetheless, the State argues defendant received sufficient notice of the identity of the alleged deadly weapon, a bottle, from Count II of the indictment, which charged defendant with robbery with a dangerous weapon. Count II reads, in pertinent part:

The defendant committed [the robbery] by means of an assault with a dangerous weapon, a bottle, whereby the life of Mateo Mendez Jimenez, was threatened and endangered.

Defendant contends the reference to a bottle in Count II of the indictment is not sufficient to sustain the assault with a deadly weapon inflicting serious injury charge in Count III. We agree.

"[I]t is settled law that each count of an indictment containing several counts should be complete in itself." State v. Hackney, 12 N.C.App. 558, 559, 183 S.E.2d 785, 786 (1971); accord State v. Jones, 275 N.C. 432, 168 S.E.2d 380 (1969)

; State v. McKoy, 265 N.C. 380, 144 S.E.2d 46 (1965); State v. Sutton, 14 N.C.App. 422, 424, 188 S.E.2d 596, 597 (1972). It is also settled that allegations in one count may be incorporated by reference in another count. N.C. Gen.Stat. § 15A-924(a)(2) (2001); see also State v. Russell, 282 N.C. 240, 192 S.E.2d 294 (1972) (in a two-count indictment for forgery of a check and uttering a forged check, the first count charging forgery and setting forth the contents of the check with exactitude, reference to the check in the uttering count as "same as above" is sufficient to identify the offense charged).

This Court applied these principles in Hackney and Sutton, both forgery and uttering cases. In Hackney, the defendant was charged in separate counts with (1) forgery and (2) uttering a forged check drawn on Central Carolina Bank & Trust Company in the amount of $37.00. The full text of the check allegedly forged and uttered was set forth in the uttering count of the indictment. However, in the forgery count, a copy of the check was not set forth and facts pertaining to it were not alleged. Additionally, the forgery count failed to incorporate by reference the uttering count or the check set forth therein. The Court vacated the judgment, which was entered on the defendant's guilty plea to both counts, and remanded for re-sentencing only on the uttering charge. Hackney, 12 N.C.App. at 559-60, 183 S.E.2d at 786.

In Sutton, the defendant was charged in separate bills of indictment with two offenses of (1) forging the endorsement of a money order and (2) uttering the forged money order. In each case the first count in the bill of indictment (forgery) particularly described the money order involved in that case. In the second count of each indictment (uttering a forged money order), the money order was only referred to as "a certain false, forged and counterfeited money order." No further description of the particular counterfeited money order which the defendant was charged with having uttered was contained in the second count of either bill. There was no incorporation by reference between the two counts in each indictment. The Court held that the uttering count of each indictment was insufficient to charge the offense and arrested judgment on those verdicts. Sutton, 14 N.C.App. at 424-26, 188 S.E.2d at 597-98.

Here, Count II of the indictment identifies the bottle. However, Count III, the operative count, simply charges defendant with assaulting Jimenez with a deadly weapon. There is no mention of the bottle in Count III and no incorporation by...

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  • State v. Marshall
    • United States
    • North Carolina Court of Appeals
    • February 19, 2008
    ...the jury determine his guilt or innocence, `and to give authority to the court to render a valid judgment.'" State v. Moses, 154 N.C.App. 332, 334, 572 S.E.2d 223, 226 (2002) (quoting State v. Ray, 274 N.C. 556, 562, 164 S.E.2d 457, 461 (1968)). As this Court recently "North Carolina law ha......
  • State v. Murrell
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    ...nature of the weapon." Instead, the indictment at issue in this case resembles the indictment at issue in State v. Moses , 154 N.C.App. 332, 335, 572 S.E.2d 223, 226 (2002), in which the count of the indictment returned for the purpose of charging defendant with assault with a deadly weapon......
  • State v. Silas
    • United States
    • North Carolina Court of Appeals
    • March 1, 2005
    ...and the evidence supports such a charge, we remand for entry of judgment on misdemeanor breaking and entering. See State v. Moses, 154 N.C.App. 332, 572 S.E.2d 223 (2002). Finally, defendant contends the State did not present sufficient evidence of his prior record during sentencing. The tr......
  • State v. Richardson
    • United States
    • North Carolina Court of Appeals
    • August 6, 2013
    ...the jury determine his guilt or innocence, ‘and to give authority to the court to render a valid judgment.’ “ State v. Moses, 154 N.C.App. 332, 334, 572 S.E.2d 223, 226 (2002) (quoting State v. Ray, 274 N.C. 556, 562, 164 S.E.2d 457, 461 (1968)). For that reason, a defendant is “not require......
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