State v. Miller ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-162
Filed: 2 February 2016
Macon County, Nos. 13 CRS 461, 51065, 51102-05
STATE OF NORTH CAROLINA,
v.
RONALD ANTHONY MILLER, Defendant.
Appeal by defendant from judgments entered 23 July 2014 by Judge Mark E.
Powell in Macon County Superior Court. Heard in the Court of Appeals 8 September
2015.
Attorney General Roy Cooper, by Assistant Attorney General Lora C. Cubbage,
for the State.
The Phillips Black Project, by John R. Mills, for defendant-appellant.
GEER, Judge.
Defendant Ronald Anthony Miller appeals from judgments entered on
convictions of multiple offenses. On appeal, however, defendant challenges only his
convictions of attempted larceny and attempted common law robbery. Defendant
argues that sentencing him for both convictions violates the constitutional
prohibition on double jeopardy because the attempted larceny conviction was a lesser-
included offense of the attempted robbery charge. Since defendant did not raise this
constitutional issue at trial, he failed to preserve this issue for appeal. Even if the
double jeopardy issue were properly before us, we would find no error because
defendant committed each charged offense against a different victim.
STATE V. MILLER
Opinion of the Court
Facts
Defendant was indicted on charges arising out of three separate incidents all
occurring in the early morning hours of 25 July 2013. He was acquitted of the charges
related to one incident, but convicted of charges arising out of the two other incidents.
On appeal, defendant challenges only the convictions related to one of the two
incidents. With respect to that incident, the State’s evidence tended to show the
following facts.
Defendant entered the residence of George and Shirley Hardy during the early
morning of 25 July 2013 while they were sleeping. The Hardys’ 15-year-old
granddaughter, Katie, and a friend were visiting from Florida and were also sleeping
inside. Katie woke up when defendant entered her room, turned on the lights, and
asked her where the car keys were. Katie noticed that defendant had a box cutter
knife in his hand and became “[r]eally scared.” She told defendant that the keys were
upstairs, and he followed her up the stairs with the box cutter pointed in her
direction. By entering the room where her grandmother was sleeping and making
noise while looking for the keys, Katie intended to wake her grandmother, which she
succeeded in doing. Defendant then instructed Katie to head downstairs and go
inside a vacant room. When Katie got downstairs, she refused to enter the vacant
room. Soon afterward, her grandfather, who also was awakened by the noise,
“stormed downstairs,” and defendant left the house.
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Opinion of the Court
Defendant was later apprehended. As a result of the incident at the Hardys’
home and two other incidents the same night, defendant was indicted for first degree
burglary with a deadly weapon enhancement, false imprisonment, possession of
burglary tools, injury to real property, attempted felony larceny, attempted common
law robbery, second degree kidnapping, a second count of first degree burglary,
breaking and entering a motor vehicle, misdemeanor larceny, assault on a female,
and assault by strangulation. He was also indicted for attaining habitual felon
status.
With respect to the indictments pertinent to this appeal, the indictment for
attempted felony larceny stated that defendant “attempt[ed] to steal, take, and carry
away a set of keys, the personal property of another, George Hardy.” In the
indictment for attempted common law robbery, the State alleged that defendant
“attempt[ed] to steal, take, and carry away . . . a set of keys . . . from the person and
presence of Katie Hardy by means of an assault upon her consisting of putting her in
fear of bodily harm by threat of violence.”
Defendant’s indictment for possession of burglary tools was dismissed by the
trial court. Defendant was later convicted by a jury of all remaining offenses except
for second degree kidnapping, the second count of first degree burglary, breaking and
entering a motor vehicle, misdemeanor larceny, and assault by strangulation. On 23
July 2014, the trial court sentenced defendant to a presumptive-range term of 157 to
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STATE V. MILLER
Opinion of the Court
201 months for first degree burglary, assault on a female, false imprisonment, and
injury to real property, a presumptive-range term of 29 to 47 months for attempted
larceny, and a presumptive-range term of 73 to 100 months for attempted common
law robbery, with each term to be served consecutively. Defendant timely appealed
to this Court.
Discussion
Defendant’s only contention on appeal is that his consecutive sentences for
attempted larceny and attempted common law robbery violate the prohibition on
double jeopardy because both convictions arise out of the same conduct. In response,
the State argues that defendant failed to raise any objection before the trial court
based on double jeopardy, and, therefore, this Court should not review this issue.
Generally, “ ‘[c]onstitutional questions not raised and passed on by the trial
court will not ordinarily be considered on appeal.’ ” State v. Davis, 364 N.C. 297, 301,
698 S.E.2d 65, 67 (2010) (quoting State v. Tirado, 358 N.C. 551, 571, 599 S.E.2d 515,
529 (2004)). “Furthermore, our appellate rules require a party to make ‘a timely
request, objection, or motion [at trial], stating the specific grounds for the [desired]
ruling’ in order to preserve an issue for appellate review.” State v. Mulder, ___ N.C.
App. ___, ___, 755 S.E.2d 98, 101 (2014) (quoting N.C.R. App. P. 10(a)(1)).
Even though defendant concedes that he did not raise this double jeopardy
issue below, he asks this Court to arrest judgment on one of his convictions. He claims
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STATE V. MILLER
Opinion of the Court
that this double jeopardy violation amounts to a “fatal defect in the . . . judgment
which appears on the face of the record,” and, therefore, he may raise the double
jeopardy issue for the first time on appeal. State v. Wilson, 128 N.C. App. 688, 691,
497 S.E.2d 416, 419 (1998). We do not agree.
This Court has examined this exact double jeopardy issue in Mulder and we
find it controlling here. In Mulder, the defendant argued, like the defendant here,
that his convictions for a lesser-included offense and a greater offense violated the
constitutional prohibitions on double jeopardy. ___ N.C. App. at ___, 755 S.E.2d at
100. Also, like defendant here, the defendant in Mulder failed to preserve this issue
before the trial court and requested this Court to arrest the judgment on the basis of
a “fatal defect on the face of the record” pursuant to this Court’s opinion in Wilson.
___ N.C. App. at ___, 755 S.E.2d at 101. However, this Court explicitly rejected this
argument, holding that “[a] double jeopardy problem is distinct from a ‘fatal flaw
which appears on the face of the record.’ ” Id. at ___, 755 S.E.2d at 101. This Court
concluded that by failing to raise the double jeopardy issue below, he had waived the
issue on appeal. Id. at ___, 755 S.E.2d at 101.
In the alternative, defendant requests, like the defendant in Mulder, that we
invoke Rule 2 of the Rules of Appellate Procedure, so as to suspend the Rules of
Appellate Procedure and review this double jeopardy issue. “Appellate Rule 2
specifically gives ‘either court of the appellate division’ the discretion to ‘suspend or
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STATE V. MILLER
Opinion of the Court
vary the requirements or provisions of any of [the] rules’ in order ‘[t]o prevent
manifest injustice to a party, or to expedite decision in the public interest.’ ” State v.
Hart, 361 N.C. 309, 315, 644 S.E.2d 201, 204-05 (2007) (quoting N.C.R. App. P. 2).
“The decision to review an unpreserved argument relating to double jeopardy is
entirely discretionary.” Mulder, ___ N.C. App. at ___, 755 S.E.2d at 101. Despite our
discretionary authority to invoke Rule 2, our Supreme Court has directed we do so
“cautiously.” Hart, 361 N.C. at 315, 644 S.E.2d at 205. Given that we find no
“manifest injustice” to defendant or any fact that implicates the “public interest,” we
decline to invoke Rule 2 in this case.
Even if we were to invoke Rule 2, we would hold that defendant has failed to
show a violation of the Double Jeopardy Clause because each offense at issue involved
a different victim. The indictment alleged that George Hardy was the victim of the
attempted larceny of his keys, while Katie was the victim of an attempted common
law robbery when defendant threatened her with the box cutter in order to get her to
retrieve the keys.
As a general rule, “it is well established that two or more criminal offenses may
grow out of the same course of action . . . .” State v. Fulcher, 294 N.C. 503, 523, 243
S.E.2d 338, 351 (1978). Furthermore, “even where evidence to support two or more
offenses overlaps, double jeopardy does not occur unless the evidence required to
support the two convictions is identical. If proof of an additional fact is required for
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STATE V. MILLER
Opinion of the Court
each conviction which is not required for the other, even though some of the same
acts must be proved in the trial of each, the offenses are not the same.” State v.
Murray, 310 N.C. 541, 548, 313 S.E.2d 523, 529 (1984). Thus, here, the existence of
two different victims requires an additional fact to be proven for each offense that is
not required to prove the other offense. Furthermore, the attempt to take property
from Katie was carried out “by means of an assault upon her consisting of putting her
in fear of bodily harm by threat of violence[,]” whereas this was not the case with
George Hardy. Likewise, the attempted larceny charge required proof that that the
keys belonged to George Hardy, while proof of ownership was unnecessary to prove
the attempted armed robbery committed against Katie.
Our courts have applied similar logic in other cases. See State v. Gibbs, 29
N.C. App. 647, 650, 225 S.E.2d 837, 839 (1976) (indicating double jeopardy clause was
not violated where defendant was indicted for two counts of armed robbery where he
took female employee’s purse and also corporation’s money); State v. Johnson, 23 N.C.
App. 52, 56, 208 S.E.2d 206, 209 (1974) (“Here defendants threatened the use of force
on separate victims and took property from each of them. . . . [E]ach separate victim
was deprived of property. The armed robbery of each person is a separate and distinct
offense, for which defendant[] may be prosecuted and punished.”). Furthermore, we
find this logic prevalent in other jurisdictions. See Clay v. State, 593 P.2d 509, 510
(Okla. Crim. App. 1979) (“[I]t is clear that offenses committed against different
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STATE V. MILLER
Opinion of the Court
individual victims are not the same for double jeopardy or dual punishment purposes,
even though they arise from the same episode or transaction.”), overruled in part on
other grounds, Davis v. State, 993 P.2d 124 (Okla. Crim. App. 1999); Gandy v. State,
159 So. 2d 71, 73 (Ala. Ct. App. 1963) (“The facts which appellant insists are
presented by the record show an entirely separate and distinct offense with respect
to each victim. The defense of double jeopardy was not available to the accused.”).
Although we know of no existing precedent that examines the issue of double
jeopardy under the exact factual situation resulting in the offenses charged here, we
can infer from prior case law that when two different victims are subject to the same
criminal actions resulting in charges of armed robbery and larceny, double jeopardy
is not implicated. In State v. Hurst, 82 N.C. App. 1, 20, 346 S.E.2d 8, 19 (1986), rev'd
on other grounds, 320 N.C. 589, 359 S.E.2d 776 (1987), this Court found that the
charged offenses of larceny and armed robbery were mutually exclusive, and
therefore in violation of double jeopardy, because the offender took “the same goods
from the same person at one time.” (Emphasis added.) Thus, because defendant
committed the first offense of attempted larceny upon entering the Hardys’ home with
the intent of taking and carrying away his keys and then committed the second
separate offense of attempted common law robbery upon threatening Katie with box
cutters in an attempt to take and carry away her grandfather’s keys, defendant could
properly be convicted of and sentenced for both offenses.
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STATE V. MILLER
Opinion of the Court
Because, however, defendant has not argued any basis for overturning his
convictions that was preserved for appellate review, we hold that defendant received
a trial free of prejudicial error.
NO ERROR.
Judges BRYANT and TYSON concur.
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