NO. COA05-244 DISTRICT FIFTEEN-A
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA )
)
V. ) From Alamance
)
JIMMY LAWRENCE SHUE )
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DEFENDANT-APPELLANT’S BRIEF
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QUESTIONS PRESENTED
I. SHOULD THE TRIAL COURT HAVE ENTERED JUDGMENT
AND SENTENCED MR. SHUE FOR TAKING INDECENT
LIBERTIES WITH N.H. AND ASSAULT ON P.H. AFTER MR.
SHUE PARTIALLY WON HIS APPEAL?
II. SHOULD THE TRIAL COURT HAVE DISMISSED THE CHARGE
OF ASSAULTING THE CHILD P.H.?
STATEMENT OF THE CASE
The Defendant, Jimmy Lawrence Shue, was arrested for assault on a
child under twelve years of age, second degree kidnapping, indecent liberties
with a child and first degree kidnapping on or about March 25, 2002. Mr.
Shue was indicted on the charges of taking indecent liberties with the child,
N.H., and first degree kidnapping of N.H. on April 1, 2002. He was also
indicted on April 22, 2002, on the charges of assault on P.H., a child under
2
twelve years of age, second degree kidnapping of P.H. and taking indecent
liberties with P.H.
Furthermore, Mr. Shue was indicted on the following charges:
Assault on B.F., a child under the age of twelve years, second
degree kidnapping of B.F. and indecent liberties with B.F.; and
First degree statutory sex offense with T.M., indecent liberties
with T.M., second degree kidnapping of T.M. and assault on
T.M., a child under twelve years of age.
All matters were joined for trial without objection and Mr. Shue was
tried on said charges before a jury at the October 7 through October 15,
2002, Criminal Sessions of the Superior Court of Alamance County, the
Honorable J.B. Allen, Jr. presiding. The jury acquitted Mr. Shue of all
charges involving the minors B.F. and T.M. Mr. Shue was, however, found
guilty of the charges of taking indecent liberties with N.H. and second
degree kidnapping of N.H. He also was found guilty of assault of P.H., a
child under twelve years of age, and taking indecent liberties with the child
P.H.
Mr. Shue was sentenced on October 15, 2002 for second degree
kidnapping of N.H. to a presumptive active term of imprisonment of 25
months minimum, 39 months maximum in the North Carolina Department
of Correction; the trial court continued prayer for judgment as to the guilty
verdict for taking indecent liberties with N.H. Mr. Shue also was sentenced
3
on October 15, 2002 for taking indecent liberties with P.H. to a presumptive
active term of imprisonment of 16 months minimum, 20 months maximum
in the North Carolina Department of Correction to begin at the expiration of
his term of imprisonment for second degree kidnapping of N.H. The trial
court continued prayer for judgment as to the guilty verdict for assault on
P.H., a child under twelve years of age.
Mr. Shue gave Notice of Appeal on October 15, 2002. On February
17, 2004, this Court reversed Mr. Shue’s conviction for taking indecent
liberties with P.H., and affirmed his conviction of Second Degree
Kidnapping of N.H. in State v. Shue, 163 N.C.App. 58, 592 S.E.2d 233
(2002). The Supreme Court denied the State’s request for a writ of
certiorari. State v. Shue, 358 N.C. 380, 597 S.E.2d 773 (2004).
On or about May 21, 2004, the State subsequently moved the trial
court to pray judgment on the guilty verdicts for taking indecent liberties
with N.H. and assault on a P.H., a child under twelve years of age. Prayer
for judgment had been continued in these matters by the trial court on
October 15, 2002.
Mr. Shue was resentenced during the June 7, 2004, Criminal Session
of the Superior Court of Alamance County, the Honorable J.B. Allen, Jr.,
presiding. The trial court, over Mr. Shue’s objections, entered judgment as
4
to the guilty verdicts for taking indecent liberties with N.H. and assault on
P.H., a child under twelve years of age. Mr. Shue was sentenced for taking
indecent liberties with N.H. to a presumptive term of imprisonment of 16
months minimum, 20 months maximum in the North Carolina Department
of Correction to run at the expiration of the sentence for second degree
kidnapping of N.H. Mr. Shue also was sentenced for assault on P.H., a child
under twelve years of age, to a 60-day active sentence to run concurrent with
his active sentence for taking indecent liberties with N.H. Mr. Shue entered
notice of appeal in open court on June 7, 2004.
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW
This is an appeal from the final judgment of the superior court
pursuant to N.C.G.S. § 7A-27(b).1
STATEMENT OF THE FACTS
The recitation of facts essential to understanding Mr. Shue’s case was
previously presented in the parties’ briefs and this Court’s opinion in State v.
Shue, 163 N.C.App. 58, 592 S.E.2d 233 (2002). Except to specific facts
1
Since the trial court had previously continued prayer for judgment, Mr.
Shue could not appeal the guilty verdicts as to taking indecent liberties with
N.H. and assault on P.H., a child under twelve years of age until judgment
was entered. State v. Jones, 151 N.C.App. 317, 326, 566 S.E.2d 112, 118,
appeal dismissed, rev. denied, 356 N.C. 687, 578 S.E.2d 320 (2002).
5
necessary to develop the arguments below, Mr. Shue incorporates by
reference herein said facts as previously presented to this Court.
Facts Relating to Taking Indecent Liberties With N.H.
The five-year-old N.H. testified that he did not know what happened
with Mr. Shue in the bathroom at Ham’s restaurant in Burlington, North
Carolina, (v.I. tp. 60), and did not know what telling the truth is, (v.I. tp. 71),
but in any event said that Mr. Shue touched N.H.’s penis with both hands.
V.I. Tp. 63. N.H. said that a “man came in and tried to help him tinkle.”
V.I. Tp. 84. The man did not hurt N.H. or tickle his “private spot.” V.I Tp.
78.
N.H.’s eight-year old brother P.H. and nine-year-old K.R. were asked
to check on N.H. V.II Tp. 22; V.II Tp. 38. P.H testified that he saw Mr.
Shue in the bathroom stall with N.H. even though the door was shut. V.I.
Tp. 94. K.R. saw two set of feet in the bathroom stall. N.H. was doing his
usual “crazy talking” while in the stall. V.II Tpp. 22-3. P.H. gave two
different descriptions of the shirt worn by Mr. Shue. V.II Tp. 14. K.R.
described the clothes worn by Mr. Shue differently than did P.H. V.II Tp.
34. K.R. recalled Mr. Shue telling N.H. to “be quiet.” V.II Tp. 24. When
questioned why he had not previously mentioning anything about Mr. Shue
telling N.H. to be quiet, K.R. indicated that he just remembered this
6
statement the day before he gave his testimony. V.II Tp. 31. P.H. and K.R.
returned from the bathroom and said that a man was in the stall with N.H.
V.II Tp. 47.
P.H. told his mother, L.H., that the man in the stall with N.H. was the
same one that followed him all night. V.II Tp. 53. N.H. later told his
mother that a man helped him “go tinkle”, (v.II tp. 53), that he did not ask
for help as he had already urinated and that the man touched his “boy parts.”
N.H. however told Burlington Police Officer Robin Harlucowicz that the
man had “helped him.” V.II Tp. 304.
Facts Relating to the Assault of P.H.
Eight-year-old P.H. testified that the Ham’s bathroom stall door lock
was broken and he asked for help. V.I Tp. 87. A man, ostensibly Mr. Shue,
came in the stall and helped him lock the door. V.I. Tp. 90. The man
reached out his hand and P.H. pulled away before he got close. The man
looked scared and walked out of the bathroom after P.H. pulled his arm
away. Although P.H. was not hurt, (v.I tp. 93), he said he felt scared when
Mr. Shue tried to touch his arm. V.I. Tp. 102. P.H. had previously told
Harlucowicz that Mr. Shue had in fact grabbed his arm. V.II Tp. 278.
7
ARGUMENT
I. THE TRIAL COURT SHOULD NOT HAVE ENTERED
JUDGMENT AND SENTENCED MR. SHUE FOR
TAKING INDECENT LIBERTIES WITH N.H. AND
ASSAULT ON P.H. AFTER MR. SHUE WAS
PARTIALLY SUCCESSFUL IN HIS APPEAL
Assignment of Error No. 3, Rp. 38.
The indictment in 02 CRS 52625 consisted of two counts:
Count I-Indecent liberties with N.H; and
Count II-First degree kidnapping of N.H.
Rp. 9. The trial court dismissed the charge of first degree kidnapping of
N.H. and permitted the charge of second degree kidnapping to be considered
by the jury. V.II Tp. 349. The jury returned verdicts of guilty to taking
indecent liberties with N.H. and second degree kidnapping of N.H. Rp. 13.
The trial court sentenced Mr. Shue to an active term of imprisonment of 25
months minimum and a maximum of 39 months as to Count II, the second
degree kidnapping charge. The trial court continued prayer for judgment as
to Count I, the indecent liberties with a minor charge, since it found the
conduct to be part of the second degree kidnapping conviction. V.III Tp.
584. The State did not object to the trial court continuing prayer for
judgment as to the charge of taking indecent liberties with N.H.
The indictment in 02 CRS 52626 consisted of three counts:
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Count I-Assault on a child under twelve years of age [P.H.];
Count II-Second degree kidnapping of P.H.; and
Count III-Indecent liberties with P.H.
Rp. 10. The trial court dismissed the charge of second degree kidnapping of
P.H. and submitted the charges of assault of a child under twelve years of
age and taking indecent liberties with P.H. to the jury. V.III Tp. 349. The
jury returned guilty verdicts as to assault on the child P.H. and taking
indecent liberties with P.H. Rp. 14. The trial court sentenced Mr. Shue on
Count II, taking indecent liberties with P.H., to an active term of
imprisonment of 16 months minimum, 20 months maximum, to begin at the
expiration of the sentence for second degree kidnapping of N.H. V.III Tpp.
854-5. The trial court considered the assault on a child [P.H.] to be similar
or part of the indecent liberties charge and continued prayer for judgment as
to Count I. V.III Tp. 585. Again, the State did not object to the trial court
continuing prayer for judgment as to the assault count of the indictment.
Only after this Court reversed Mr. Shue’s conviction for taking
indecent liberties with P.H. in State v. Shue, 163 N.C.App. 58, 64, 592
S.E.2d 233, 237 (2004), and the Supreme Court denied the State’s request
for a writ of certiorari in State v. Shue, 358 N.C. 380, 597 S.E.2d 773 (2004),
did the State move the trial court to enter judgment as to taking indecent
9
liberties with N.H and assault on a P.H., a child under twelve years of age.
Rpp. 17-18. Mr. Shue respectfully contends that the trial court’s entry of
judgment in these matters violates his right to Due Process and the statutory
mandates of N.C.G.S. §§ 15A-1335 and 15A-1416(b)(1).
A. Entry of Judgment for Taking Indecent Liberties with N.H.
After Mr. Shue’s Partially Successful Appeal of Taking Indecent
Liberties with P.H. Violates Due Process.
Mr. Shue’s original sentence was 25 months minimum, 39 months
maximum for second degree kidnapping of N.H. He received a consecutive
sentence of 16 months minimum, 20 months maximum for taking indecent
liberties with P.H. Although this Court vacated Mr. Shue’s conviction for
taking indecent liberties with P.H., this Court upheld his conviction and
sentence for second degree kidnapping of N.H. Shue, 163 N.C.App. at 64,
592 S.E.2d at 237. The State then moved for entry of judgment as to the
charge of taking indecent liberties with N.H. citing as grounds that this
Court reversed Mr. Shue’s conviction for taking indecent liberties with P.H.
Rp. 17.
At the hearing on the State’s motion for entry of judgment, the State
indicated:
MR. BOONE: …We’re simply asking the Court to impose a
judgment in the indecent liberties with a child case that the Court
previously continued prayer for judgment on. We’re asking the Court
to impose a 16 to 20 month active sentence to run at the expiration of
10
the kidnapping charge, in essence, giving Mr. Shue the exact same
sentence that he had received upon the initial entry of judgment back
at the original trial…We’re asking that N.H., the judgment in the
indecent liberties case be imposed so that the sentence that was
imposed before is the same sentence he received then.
V.IV Tpp. 4-5. At one point during the hearing, the trial court queried:
THE COURT: What was the sentence in the one that was reversed?
MR. BOONE: 16 to 20.
THE COURT: 16 to 20. So if the Court chose to follow your
recommendation he would not get any more than what he got when he
was originally sentenced.
MR. BOONE: No, sir.
V.IV Tp. 24. The trial court then made the following judgment:
The Court—after hearing argument from the State and the defendant,
the Court—on the PJC of N.H., the Court enters a judgment of 16
months minimum, 20 months maximum and this sentence to run at the
expiration of the kidnapping charge.
V.IV Tpp. 34-5. The trial court therefore sentenced Mr. Shue for taking
indecent liberties with N.H although this Court had left undisturbed his
original conviction under this indictment. Consequently, Mr. Shue has been
sentenced to an additional 16 to 20 months for his conduct involving N.H.
only after his successful appeal of the P.H. matter. This violates the Due
Process Clause of the Fourteenth Amendment to the United States
Constitution.
11
On resentencing, a trial judge cannot impose a term of years greater
than the term of years imposed by the original sentence. State v. Hemby,
333 N.C. 331, 335, 426 S.E.2d 77, 78 (1993). Here, the original sentence
imposed on Mr. Shue for his conduct with N.H. was enhanced by 16 to 20
months as a result of his successful appeal of the P.H. matter. The
imposition of a penalty upon a defendant for having successfully pursued a
statutory right of appeal is a violation of due process of law. North Carolina
v. Pearce, 395 U.S. 711, 712, 89 S.Ct. 2072, 2080 (1969). After this Court
vacated Mr. Shue’s conviction for taking indecent liberties with P.H., the
State could not exact any further penalty against Mr. Shue for any conduct
involving P.H. beyond at most a misdemeanor assault on a child sentence.
Although the aggregate sentence for Mr. Shue’s conduct with the two boys
remained unchanged, he received an additional penalty regarding his
conduct with N.H., i.e., conduct alleged in the same indictment for which
Mr. Shue already is being punished. The State did not offer any reason or
justification for sentencing Mr. Shue to an additional 16 to 20 months for his
conduct with N.H. beyond the naked power to impose an additional
sentence. Id. 395 U.S. at 726, 89 S.Ct. at 2081. Mr. Shue therefore is
entitled to have vacated his 16 to 20 month sentence for taking indecent
liberties with N.H.
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B. The Trial Court’s Entry of Judgment and Sentencing Mr. Shue
to an Additional 16 to 20 Months for Taking Indecent Liberties
with N.H. Violates the Mandate of N.C.G.S. § 15A-1335.
Although Mr. Shue’s aggregate sentence for his conduct with both N.H.
and P.H. remained unchanged after the trial court entered judgments on the
matters in which prayer for judgment had been previously continued, Mr.
Shue’s sentence for conduct involving N.H. was improperly increased by 16
to 20 months. North Carolina General Statute Section 15A-1335,
Resentencing after appellate review, mandates:
When a conviction or sentence imposed in superior court has been set
aside on direct review or collateral attack, the court may not impose a
new sentence for the same offense, or for a different offense based on the
same conduct, which is more severe than the prior sentence less the
portion of the prior sentence previously served.
(Emphasis added). This statute embodies generally the holding of the
United States Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 89
S.Ct. 2072 as discussed in Section IA of this brief. N.C.G.S. § 15A-1335,
Criminal Code Commission Commentary.
Mr. Shue was found guilty by a jury of second degree kidnapping and
taking indecent liberties with N.H. These offenses arose from the same
conduct and were included in the same indictment; to wit: Mr. Shue
supposedly closed the bathroom stall door and touched N.H’s penis. The
trial court originally continued prayer for judgment as to the taking indecent
13
liberties of N.H. because it found the offenses arose out of the same conduct.
See V.III Tpp. 584-5. The State did not object to the PJCs or the trial court’s
findings.
After this Court upheld Mr. Shue’s conviction for second degree
kidnapping of N.H., the State argued to the trial court to enter judgment for
taking indecent liberties with N.H. and impose an active sentence of 16 to 20
months to replace the identical sentence that had been imposed and reversed
by this Court for Mr. Shue’s taking indecent liberties with P.H. The State
argued to the trial court that aggregate sentence would be unchanged. V.IV
Tpp. 4-5; V.IV Tp. 24. The trial court then followed the State’s
recommendation and sentenced Mr. Shue for taking indecent liberties with
N.H. to an additional 16 to 20 months in prison to run consecutive to Mr.
Shue’s sentence for second degree kidnapping that this Court had previously
upheld. V.IV Tpp. 34-5; Rpp. 21-22.
This Court rejected the same argument by the State in State v. Nixon,
119 N.C.App. 571, 573, 459 S.E.2d 49, 51 (1995). Resentencing a
defendant to a term of imprisonment greater than the term attributable to the
original indictment, i.e., the indictment involving the conduct with N.H., is
not permissible. Id. 119 N.C.App. at 574, 459 S.E.2d at 51. When multiple
sentences are involved, N.C.G.S. § 15A-1335 bars the trial court from
14
imposing an increased sentence for any of the convictions, even if the total
term of imprisonment does not exceed that of the original sentence. State v.
Oliver, 155 N.C.App. 209, 211, 573 S.E.2d 257, 258 (2002)(citing State v.
Nixon). Aside from the requirements of N.C.G.S. § 15A-1416(b) as
discussed in Section IC of this Brief, there was no statutory impediment for
the trial court to impose concurrent terms of imprisonment on Mr. Shue for
second degree kidnapping and indecent liberties of N.H. during
resentencing. See N.C.G.S. §§ 14-39, 14-202.1. The trial court, however,
impermissibly increased his sentence for offenses arising out of the same
conduct involving N.H. Mr. Shue’s 16 to 20 month sentence for taking
indecent liberties with N.H. therefore should be vacated.
C. The Trial Court Erred by Entering Judgments for Taking
Indecent Liberties with N.H. and Assault on the Child P.H. since
the State Failed to Allege Sufficient Grounds for Imposition of
Sentence.
Following this Court’s previous decision in Mr. Shue’s case, the State
moved for entry of judgment in the talking indecent liberties with N.H. and
assault on P.H. matters. The grounds cited by the State in its motion was
that this Court reversed Mr. Shue’s conviction for indecent liberties with
P.H. and that the North Carolina Supreme Court denied the State’s request
for a writ of certiorari. Rp. 17. During the hearing for entry of judgment,
the State essentially reiterated the same argument. The trial court
15
subsequently entered judgment against Mr. Shue for taking indecent liberties
with N.H. and assault on the child P.H.
Although the State’s motion for entry of judgment cites no statutory
authority to base its pleading, it would appear that this motion would
constitute a motion by the State for appropriate relief. North Carolina
General Statute Section 15A-1416, Motion by the State for appropriate
relief, provides in pertinent part:
(b) At any time after verdict the State may make a motion for
appropriate relief for:
(1) The imposition of sentence when prayer for judgment has
been continued and grounds for the imposition of sentence are
asserted.
(2) The initiation of any proceeding authorized under Article
82, Probation; Article 83, Imprisonment; and Article 84, Fines,
with regard to modification of sentences. The procedural
provisions of those Articles are controlling.
(Emphasis added). The grounds asserted by the State in its motion, i.e., they
lost part of the appeal in Mr. Shue’s case, simply are not grounds that justify
the entry of judgment and imposition of a new sentence on him and violate
Mr. Shue’s right to Due Process.
Appellate counsel for Mr. Shue has researched this issue and can find
no case law in North Carolina that deals with the issue of what constitutes
sufficient grounds for entry of judgment pursuant to N.C.G.S. § 15A-
16
1416(b)(1). This issue therefore appears to be one of first impression in this
Court.2
A reading of N.C.G.S. § 15A-1416(b) in its entirety shows that the
legislature intended that “grounds” for entry of judgment require some
additional criminal act by a defendant or some failure to perform an act
required by the court. For example, Article 82 of Chapter 15A of the North
Carolina General Statutes authorizes a court to alter or revoke probation
where the probationer violates a term of probation such as committing a
criminal offense or failure to pay child support. N.C.G.S. §§ 15A-1344(a),
15A-1343(b)(1), 15A-1343(b)(4). By further example, Article 84 of Chapter
15A of the North Carolina General Statutes provides that a defendant can be
imprisoned for nonpayment of a fine. N.C.G.S. § 15A-1362(c). It is
therefore clear that there must be sufficient grounds alleged beyond the
State’s “naked power to impose” a judgment and sentence in order to enter
judgment where prayer for judgment has been continued. See North
Carolina v. Pearce, 395 U.S. at 726, 89 S.Ct. at 2081 (Due Process violation
to impose greater sentence after appeal without sufficient reason).
2
The case of State v. Lea, 156 N.C.App. 178, 576 S.E.2d 131 (2003) is not
dispositive on the issue of sufficiency of grounds to pray judgment. This
case only dealt with the issues of unreasonable delay in seeking entry of
judgment and appellant’s consent to such delay.
17
Mr. Shue objected to entry of judgment because the State had not
shown any sufficient reason to pray judgment. The State did not object
during the original sentencing hearing to:
The trial court’s conclusion that the taking indecent liberties with
N.H. charge was part of the kidnapping of N.H.;
The assault on the child P.H. was part of the charge of taking
indecent liberties with P.H.;
The trial court continuing prayer for judgment on the either of the
charges.
Not until this Court reversed Mr. Shue’s conviction and sentence for taking
indecent liberties with P.H. did the State seek to have judgments entered and
punishment rendered. The State never alleged any grounds for imposition of
judgment other than Mr. Shue’s partially successful appeal to this Court
which reduced his aggregate sentence for the offenses involving N.H. and
P.H.
Mr. Shue did nothing to warrant imposition of judgment. V.IV Tp. 8.
As Mr. Shue’s trial counsel put it:
MR. CHAMPION: Your Honor, at this time he’s serving his
sentence. The sentence that the Court felt would warrant consecutive
time on was reversed. And to now come back and try to pray
judgment on that just sounds like it’s, well, we didn’t get what we
wanted so now we’re coming back. And he hasn’t done anything to
violate the Court’s prayer for judgment continued. And it’s one of
those things that if you get a prayer for judgment continued usually
there’s not judgment prayed on unless he’s done something in some
way to violate the terms of the prayer for judgment.
18
V.IV Tp. 10. This is precisely why N.C.G.S. § 15A-1416(b) requires that
grounds be alleged for imposition of sentence. Otherwise, the State would
be free to seek entry of judgment and imposition of sentence for no reason
whatsoever or, even worse, for an improper purpose. See North Carolina v.
Pearce, 395 U.S. at 725-6, 89 S.Ct. at 2080-1 (increasing sentence after
appeal for retaliatory reasons or for no reason violates Due Process). The
judgments and sentences for taking indecent liberties with N.H. and assault
on P.H. therefore should be vacated.
II. THE TRIAL COURT SHOULD HAVE DISMISSED THE
CHARGE OF ASSAULTING THE CHILD P.H.
Assignments of Error Nos. 1 and 2, Rp. 38.
Mr. Shue moved for dismissal of the charge of assaulting the child P.H.
due to insufficient evidence. The trial court denied these motions. V.II Tpp.
346-50; V.III Tpp. 506-7; V.III Tpp. 574-5. Mr. Shue also moved the court
pursuant to N.C.G.S. § 15A-1414(b)(1)c and (b)(2) to set aside the verdict.
The trial court denied Mr. Shue’s motion for appropriate relief. V.III Tp.
585. This constituted reversible error.
When considering a motion to dismiss for insufficient evidence, the trial
court must determine whether there is substantial evidence of each element
of the offense and that the defendant committed the offense. State v. Irwin,
19
304 N.C. 93, 97, 282 S.E.2d 439, 443 (1981). Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.” State v. Smith, 150 N.C.App. 138, 140, 564 S.E.2d 237, 239
(2002). All evidence is to be considered in the light most favorable to the
State and all reasonable inferences are to be drawn therefrom. Irwin, 304
N.C. at 98, 282 S.E.2d at 443. Only where there is a reasonable inference of
a defendant’s guilt from the evidence, the jury must determine whether that
evidence “convinces them beyond a reasonable doubt of defendant’s guilt.”
Id.
North Carolina General Statute Section 14-33(c)(3) provides:
[A]ny person who commits any assault, assault and battery, or affray
is guilty of a Class A1 misdemeanor if, in the course of the assault,
assault and battery, or affray, he or she…[a]ssaults a child under the
age of 12 years[.]
“Assault” has been defined by this Court as “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 sufficient to put a
reasonable person in fear of immediate bodily harm.” State v. Davis, 68
N.C.App. 238, 244, 314 S.E.2d 828, 832 (1984). “The two elements of the
crime of attempt are (1) there must be the intent to commit a specific crime
and (2) an overt act which in the ordinary and likely course of events would
20
result in the commission of the crime.” State v. Brayboy, 105 N.C.App. 370,
374-5, 413 S.E.2d 590, 593 (1992).
The State’s evidence as to the assault of P.H. tended to show that Mr.
Shue entered a stall occupied by P.H. and after fixing the lock at P.H.’s
request, Mr. Shue reached out to grab the child’s arm. P.H. jerked his arm
away and Mr. Shue exited the stall. Shue, 163 N.C.App. at 61, 592 S.E.2d at
236. Mr. Shue was described by P.H. as looking scared after P.H. pulled his
arm away. V.I Tp. 92. This evidence at most was “sufficient only to raise a
suspicion or conjecture as to…the commission of the offense.” Shue, 163
N.C.App. at 62, 592 S.E.2d at 236. In fact, the trial court observed:
THE COURT: Well, if this case [indecent liberties and assault of
P.H.] was being tried alone and with the evidence, I don’t think it
would be enough [to go to the jury], but with the other evidence and
not as much the other evidence on the other two boys, but on that
same date, there is evidence that N.H. was in there. And there’s
evidence for the jury to believe that there was an indecent liberties
with that child [P.H.] and that was in the same, basically the same
time.
V.II Tpp. 348-9 (Emphasis added). This Court has previously held that
evidence regarding N.H. could not go to Mr. Shue’s criminal intent
regarding conduct with P.H. Shue, 163 N.C.App. at 62, 592 S.E.2d at 236.
The State offered no permissible indicia of Mr. Shue’s intent to assault the
child P.H. Id. The trial court therefore erred in denying Mr. Shue’s motions
21
to dismiss and motion to set aside the verdict for the charge of assault of the
child P.H. Id; N.C.G.S. § 15A-1414(b)(1)c.
CONCLUSION
For the reasons set forth herein, Mr. Shue is entitled to have vacated
the judgments entered for taking indecent liberties with N.H., the assault on
the child P.H. and the active sentences thereon.
Respectfully submitted, this the _____ day of April, 2005.
______________________________
Brian Michael Aus
PO Box 1345
Durham, NC 27702
(919) 688-3704
brianaus@earthlink.net
NCBN 12845
ATTORNEY FOR DEFENDANT-APPELLANT
22
CERTIFICATE OF COMPLIANCE WITH N.C.R.App.P. 28(j)(2)
Undersigned counsel hereby certifies that this brief is in compliance
with N.C.R.App.P. 28(j)(2) in that it is printed in 14 point Times New
Roman font and contains no more than 8750 words in the body of the brief,
footnotes and citations included, as calculated by the word-processing
software used to prepare the brief, Microsoft Word.
_______________________________
Brian Michael Aus
CERTIFICATE OF FILING AND SERVICE
Undersigned counsel hereby certifies that he filed the original of the
foregoing brief by mailing it this day to the Clerk of the Court of Appeals,
and that he has served the foregoing brief upon all parties to the appeal by
mailing a copy thereof by United States Mail, first class postage affixed
thereto to counsel for the State of North Carolina:
Amy C. Kunstling
Assistant Attorney General
9001 Mail Service Center
Raleigh, NC 27699-9001.
This the ______ day of April, 2005.
_____________________________
Brian Michael Aus