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					No. COA03-736                                   JUDICIAL DISTRICT 15B


                     NORTH CAROLINA COURT OF APPEALS

           ******************************************



STATE OF NORTH CAROLINA                          From Orange
                                        Nos. 01 CRS 50125-50129; 01
                v.                     CRS 50131, 32, 34, 35; 01 CRS
                                           50164, 68, 70, 72, 74;
DWAYNE RUSSELL EDWARDS,                    01 CRS 50177, 50179-82

                 Defendant.


         **********************************************

           DEFENDANT-APPELLANT DWAYNE EDWARDS‟ BRIEF

         **********************************************
                        -2-

                                      INDEX

TABLE OF CASES AND AUTHORITIES ................. iv

QUESTIONS PRESENTED ............................. 1

STATEMENT OF THE CASE ........................... 2

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW ... 3

STATEMENT OF THE FACTS .......................... 3

ARGUMENT ....................................... 11

I.   THE TRIAL COURT ERRED BY DENYING
     DEFENDANT‟S MOTIONS TO SUPPRESS ALL
     EVIDENCE SEIZED FROM DEFENDANT‟S CAR ON
     THE GROUND THAT THE SEARCH OF HIS CAR
     VIOLATED HIS RIGHTS UNDER THE 4TH
     AMENDMENT TO THE UNITED STATES
     CONSTITUTION AND ARTICLE 1, SECTIONS 19
     AND 20 OF THE NORTH CAROLINA
     CONSTITUTION .............................. 11

A.   The trial court‟s conclusion of law that
     defendant was detained and under arrest
     for displaying an expired Illinois
     registration plate is not supported by
     the findings of fact nor by competent
     evidence .................................. 12

B.   The trial court‟s conclusion of law that
     the officers were permitted to search
     Mr. Edwards and his car as a search
     incident to arrest is not supported by
     the findings nor competent evidence ....... 15

C.   The conclusions of law that the
     circumstances justified an investigatory
     stop and search of Mr. Edwards‟ person
     and car are not supported by findings of
     fact nor by competent evidence ............ 16

1.   The officers did not have sufficient
     reasonable suspicion to search Mr.
     Edwards‟ car on the ground that his
     registration sticker was expired .......... 17
                                 -3-

2.    The officers did not have reasonable
      suspicion to search Mr. Edwards‟ car to
      look for evidence of another crime ........ 17

D.    The trial court‟s conclusion of law that
      the seizure of the handgun and other
      items in Mr. Edwards‟ car was lawful is
      not supported by the findings of fact
      nor by competent evidence ................. 18

II.   THE TRIAL COURT ERRED BY DENYING
      DEFENDANT‟S MOTION TO SUPPRESS ALL
      EVIDENCE SEIZED AS A RESULT OF THE
      UNLAWFUL SEARCH AND SEIZURE OF DEFENDANT
      AND HIS CAR ON THE GROUND THAT THE
      SEIZURE OF THIS EVIDENCE VIOLATED
      DEFENDANT‟S RIGHTS UNDER THE FOURTH
      AMENDMENT TO THE UNITED STATES
      CONSTITUTION AND ARTICLE 1, SECTIONS 19
      AND 20 OF THE NORTH CAROLINA
      CONSTITUTION .............................. 19

A.    The search warrants obtained by the
      Carrboro and Chapel Hill Police
      Departments relied on the evidence
      seized from Mr. Edwards‟ car to
      establish probable cause .................. 21

B.    The trial court‟s conclusion of law that
      the seizure of the handgun was lawful
      and that this seizure permitted the
      search for and seizure of the other
      evidence is not supported by the
      findings of fact nor by competent
      evidence .................................. 22

C.    The trial court committed prejudicial
      error by failing to suppress the
      evidence seized pursuant to the search
      warrants .................................. 23

III. THE TRIAL COURT‟S JUDGMENT IN 01 CRS
     50174 ERRONEOUSLY PROVIDES THAT THE
     SENTENCE IS TO RUN AT THE EXPIRATION OF
     01 CRS 50172 ON THE GROUND THAT THE
     WRITTEN JUDGMENT IS INCONSISTENT WITH
     THE JUDGMENT ENTERED IN OPEN COURT ........ 24
                                 -4-

IV.   THE TRIAL COURT‟S JUDGMENT IN 01 CRS
      50135 ERRONEOUSLY PROVIDES THAT THE
      SENTENCE IS TO RUN AT THE EXPIRATION OF
      01 CRS 50134 ON THE GROUND THAT THE
      WRITTEN JUDGMENT IS INCONSISTENT WITH
      THE JUDGMENT IMPOSED IN OPEN COURT ........ 25

V.    THE TRIAL COURT ERRED BY DENYING
      DEFENDANT‟S MOTION TO DISMISS THE
      INDICTMENTS CHARGING DEFENDANT WITH
      FIRST-DEGREE RAPE AND FIRST-DEGREE
      SEXUAL OFFENSE ON THE GROUND THE
      INDICTMENTS FAILED TO CONTAIN AN
      ALLEGATION OF EVERY FACT WHICH IS
      LEGALLY ESSENTIAL TO THE PUNISHMENT TO
      BE INFLICTED IN VIOLATION OF DEFENDANT‟S
      STATE AND FEDERAL CONSTITUTIONAL RIGHTS ... 26

CONCLUSION ..................................... 29

CERTIFICATE OF SERVICE ......................... 30
                        -5-

          TABLE OF CASES AND AUTHORITIES


FEDERAL CONSTITUTIONAL AUTHORITIES


U.S. Const. amend. IV .......................... 12


STATE CONSTITUTIONAL AUTHORITIES

N.C. Const. Art. I, § 19 ....................... 12

N.C. Const. Art. I, § 20 ....................... 12

UNITED STATES SUPREME COURT CASES

Apprendi v. New Jersey,
     530 U.S. 466 (2000) .................... 28-29

Berkemer v. McCarty, 468 U.S. 420 (1984) ....... 13

Jones v. United States,
     526 U.S. 227 (1999) .................... 28-29

Murray v. United States,
     487 U.S. 533 (1988) ................... 12, 20

UNITED STATES COURT OF APPEALS CASES

Park v. Shifflet, 250 F.3d. 843
     (4th Cir. 2001) ........................... 13

United States v. Perate, 719 F.2d 706
     (4th Cir. 1983) ........................... 14

NORTH CAROLINA SUPREME COURT CASES

State v. Hughes, 353 N.C. 200,
     539 S.E.2d 625 (2000) ..................... 16

State v. Watkins, 337 N.C. 437,
     446 S.E.2d 67 (1994) ...................... 16
                                -6-

NORTH CAROLINA COURT OF APPEALS CASES

State v. Harper, ___ N.C. App. ____,
     582 S.E.2d 62 (2003) ...................... 12

State v. Kincaid, 147 N.C. App. 94,
     555 S.E.2d 224 (2001) ................. 16, 17

State v. Logner, 148 N.C. App. 135,
     557 S.E.2d 191 (2001) ..................... 14

State v. McArn, ___ N.C. App. ___,
     582 S.E.2d 371 (2003) ..................... 16

State v. McHone, ___ N.C. App. ____,
     580 S.E.2d 80, 83 (2003) .................. 12

State v. McLean, 120 N.C. App. 838,
     463 S.E.2d 826 (1995) ..................... 20

State v. Morocco, 99 N.C. App. 421,
     393 S.E.2d 545 (1990) ..................... 17

State v. O’Hanlon, 153 N.C. App. 546,
     570 S.E.2d 751 (2002) ..................... 29

State v. Wallace, 111 N.C. App. 581,
     433 S.E.2d 238, 243, rev. denied by
     335 N.C. 242, 439 S.E.2d 161 (1993) ....... 12

STATUTORY AUTHORITIES

N.C.G.S. § 14-27.2 (2001) ...................... 27

N.C.G.S. § 14-27.4(2001) ....................... 28

N.C.G.S. § 15-144.1 (2001) ..................... 28

N.C.G.S. § 15-144.2 (2001) ..................... 28

N.C.G.S. § 15A-974 (2001) ...................... 12

N.C.G.S. § 15A-1444(a) (2001) ................... 3
No. COA03-736                                    JUDICIAL DISTRICT 15B


                     NORTH CAROLINA COURT OF APPEALS

              ******************************************



STATE OF NORTH CAROLINA                          From Orange
                                        Nos. 01 CRS 50125-50129; 01
                v.                     CRS 50131, 32, 34, 35; 01 CRS
                                           50164, 68, 70, 72, 74;
DWAYNE RUSSELL EDWARDS,                    01 CRS 50177, 50179-82

                 Defendant.


            **********************************************

                           QUESTIONS PRESENTED

            **********************************************

       I.      WHETHER THE TRIAL COURT ERRED BY DENYING
               DEFENDANT‟S MOTIONS TO SUPPRESS ALL EVIDENCE
               SEIZED FROM DEFENDANT‟S CAR ON THE GROUND
               THAT THE SEARCH OF HIS CAR VIOLATED HIS
               RIGHTS UNDER THE 4TH AMENDMENT TO THE UNITED
               STATES CONSTITUTION AND ARTICLE 1, SECTIONS
               19 AND 20 OF THE NORTH CAROLINA CONSTITUTION?

       II.     WHETHER THE TRIAL COURT ERRED BY DENYING
               DEFENDANT‟S MOTION TO SUPPRESS ALL EVIDENCE
               SEIZED AS A RESULT OF THE UNLAWFUL SEARCH AND
               SEIZURE OF DEFENDANT AND HIS CAR ON THE
               GROUND THAT THE SEIZURE OF THIS EVIDENCE
               VIOLATED DEFENDANT‟S RIGHTS UNDER THE FOURTH
               AMENDMENT TO THE UNITED STATES CONSTITUTION
               AND ARTICLE 1, SECTIONS 19 AND 20 OF THE
               NORTH CAROLINA CONSTITUTION?

       III. WHETHER THE TRIAL COURT‟S JUDGMENT IN 01 CRS
            50174 ERRONEOUSLY PROVIDES THAT THE SENTENCE
            IS TO RUN AT THE EXPIRATION OF 01 CRS 50172
            ON THE GROUND THAT THE WRITTEN JUDGMENT IS
            INCONSISTENT WITH THE JUDGMENT ENTERED IN
            OPEN COURT?
                                          -2-

       IV.     WHETHER THE TRIAL COURT‟S JUDGMENT IN 01 CRS
               50135 ERRONEOUSLY PROVIDES THAT THE SENTENCE
               IS TO RUN AT THE EXPIRATION OF 01 CRS 50134
               ON THE GROUND THAT THE WRITTEN JUDGMENT IS
               INCONSISTENT WITH THE JUDGMENT IMPOSED IN
               OPEN COURT?

       V.      WHETHER THE TRIAL COURT ERRED BY DENYING
               DEFENDANT‟S MOTION TO DISMISS THE
               INDICTMENTS CHARGING DEFENDANT WITH
               FIRST-DEGREE RAPE AND FIRST-DEGREE
               SEXUAL OFFENSE ON THE GROUND THE
               INDICTMENTS FAILED TO CONTAIN AN
               ALLEGATION OF EVERY FACT WHICH IS
               LEGALLY ESSENTIAL TO THE PUNISHMENT TO
               BE INFLICTED IN VIOLATION OF DEFENDANT‟S
               STATE AND FEDERAL CONSTITUTIONAL RIGHTS?


                        STATEMENT OF THE CASE

    Defendant, Dwayne Russell Edwards, was charged with three

counts of first-degree rape, four counts of first-degree sexual

offense, one count of attempted first-degree sexual offense,

three counts of second-degree sexual offense, three counts of

robbery with a dangerous weapon, three counts of first-degree

kidnapping, one count of second-degree kidnapping, two counts of

first-degree burglary, one count of felonious breaking and

entering, one count of felonious larceny, and one count of common

law robbery. (R. pp. 41-61).    Defendant entered pleas of not

guilty and was tried before a jury at the 28 May 2002 Criminal

Session of Superior Court, Orange County, the Honorable John R.

Jolly, Superior Court judge presiding.     (R. p. 5). On 6 June

2002, the jury returned verdicts finding Mr. Edwards guilty of

all charges.    (R. pp. 226-244).   The trial court entered judgment
                                  -3-

on 6 June 2002, sentencing defendant to a lengthy term of

imprisonment.   Defendant gave notice of appeal to the Court of

Appeals in open court.    (R. pp. 283-84; McDiarmid T. Vol. 2, pp.

531-32).

           STATEMENT OF GROUNDS FOR APPELLATE REVIEW

    Defendant-Appellant entered a plea of not guilty, a jury

returned a verdict of guilty, and the trial court entered a final

judgment in the matter.    Defendant is entitled to appeal as a

matter of right.   N.C.G.S. § 15A-1444(a) (2001).

                        STATEMENT OF THE FACTS

    Motion to Suppress:

    At approximately 4:03 a.m. on 9 January 2001, Officer Seth

Everett of the Carrboro Police Department received an alert that

a rape had occurred in Chapel Hill.     Upon hearing the description

of the assailant, Officer Everett decided to look for a car that

he knew belonged to defendant, Dwayne Edwards.      (R. pp. 134-39;

Jacot T. pp. 138-51).

    Dwayne Edwards was a suspect in rapes that occurred in

Carrboro on 23 December and 26 December 2000.      Neither victim

could give a good, physical description of her assailant.

However, one of the victims knew Dwayne Edwards and believed that

her assailant smelled like Dwayne Edwards.       (Jacot T. pp. 138-51,

211-25).

    A few minutes later Officer Everett and another officer,
                                 -4-

Michael Mikels, spotted Mr. Edwards‟ car.     (Jacot T. pp. 151-52).

Both had been part of a surveillance team that had been watching

Mr. Edwards, and both knew that his registration sticker had

expired.   (Jacot T. pp. 144, 214-15).     Officer Everett pulled out

behind Mr. Edwards and turned on his blue lights.     Mr. Edwards

stopped, and he got out of his car.     The officers pulled their

weapons and informed Mr. Edwards that he had been stopped because

of the expired registration plate.     Shortly thereafter, Mr.

Edwards produced a new sticker, and the officers confirmed that

his registration was not expired.      (R. pp. 134-139; 151-68; 218-

236).

    Officer Everett told Officer Mikels that he thought Mr.

Edwards had put something under the seat.     Officer Mikels

approached the car and looked inside the car.     He saw money on

the front seat and cream covered gloves on the floor-board.

Officer Mikels then looked under the front seat of the car and

saw a handgun.   After spotting the handgun, Officer Mikels told

Mr. Edwards that he was under arrest for carrying a concealed

weapon.    (R. pp. 134-139; Jacot T. pp. 151-68, 218-36).

    Prior to trial Mr. Edwards moved to suppress the evidence

seized as a result of the search of the car.     The trial court

denied the motions to suppress, concluding that the initial

search had been lawful.   (R. pp. 134-39).

    Trial:
                                  -5-

    Defendant was charged with various offenses arising out of

or related to the rapes occurring in Chapel Hill and Carrboro on

23 December and 26 December 2000 and 9 January 2001.

    On 23 December 2000, Amanda Richardson returned to her

Carrboro town home, went up the stairs, and went to her bedroom.

 As she walked into her room, an African-American man jumped out

of her bathroom and put his hand over her mouth.    He was wearing

cream colored gloves and a dark toboggan.    Ms. Richardson thought

that he had a flashlight in his hand, but she did not know

whether it was a weapon or just a flashlight.     (Diggs-Graham T.

Vol. 2, pp. 230-33).

    The man told Ms. Richardson to “such his d---.”      Ms.

Richardson complied.    After a few minutes, the man made Ms.

Richardson get up.     He took her to the bathroom, shut the door,

turned the lights off, and told her to continue “sucking his

d---.”   Ms. Richardson performed oral sex on the man for about 15

to 20 minutes.    During this time, the man ripped off Ms.

Richardson‟s shirt and ripped her bra.    (Diggs-Graham T. Vol. 2,

pp. 234-38).

    The man told Ms. Richardson to take off her pants, and he

fondled her vaginal area.    She begged him not to rape her and

told him that if he was going to rape her, to please use

“something.”     After begging the man not to rape her, the man

moved around, sat down between the toilet and the sink and told
                                 -6-

Ms. Richardson to continue “sucking his d---.”    The man

ejaculated in Ms. Richardson‟s mouth.   He subsequently told her

to get in the shower, turned the water on, and left.      (Diggs-

Graham T. pp. 238-40).

       Ms. Richardson indicated that a number of items were missing

from her apartment, including a server‟s wallet containing around

$40 and a Christmas package belonging to her roommate, Helli

Farr. (Diggs-Graham T. Vol. 2, pp. 249, 263).    The Christmas

package consisted of a cellular phone that was a gift for Ms.

Farr‟s mother.    (Diggs-Graham T. Vol. 2, pp. 365-69).     The

cellular phone was found when police executed a search warrant at

Mr. Edwards‟ business address.   (Diggs-Graham T. Vol. 4, pp. 636-

40).

       In her initial statement, Ms. Richardson described the

suspect as a black male wearing cream colored gloves, medium

build, about 5'9" - 5'11" in height.    (Diggs-Graham T. Vol. 2, p.

256).    In subsequent interviews, she stated that the man smelled

like baby powder and that the scent seemed to be on his skin as

opposed to his clothing.   (Diggs-Graham T. Vol. 2, p. 266).      She

could not identify Mr. Edwards as being the perpetrator, but she

did recognize him from Davis Library on the UNC-Chapel Hill

campus.    Ms. Richardson testified that she didn‟t get a close

look at the man‟s face and that she didn‟t think she would be

able to recognize the man that raped her.   (Diggs-Graham T. Vol.
                                  -7-

2, pp. 268-69).

    On 26 December 2000, Nicole Edwards was sleeping at her

Carrboro apartment.   She woke up, got out of bed, and encountered

a man in her apartment.    The man grabbed her and put a gun to her

head.   The man took Ms. Edwards to the bathroom, pulled down his

pants, pushed her to her knees, and forced her to perform oral

sex on him.    The man then forced Ms. Edwards to stand, bent her

over at the waist, and vaginally penetrated her.     He then forced

her back down on her knees and had Ms. Edwards perform oral sex

on him.   Afterwards, the man put Ms. Edwards in the shower,

turned the water on, and left.    (Diggs-Graham T. Vol. 2, pp. 386-

409).

    Ms. Edwards was not able to give a good, physical

description of the perpetrator.     However, she stated that the

suspect smelled clean, stating that she had smelled a similar

scent while hugging Dwayne Edwards, a former co-worker.     (Diggs-

Graham T. Vol. 2, p. 408).

    On 9 January 2001, Jessica Lee was asleep in her bedroom at

a Chapel Hill apartment.   She awoke and saw a tall, large-framed

black male holding a gun to the head of her boyfriend, Jessie

Lepow. The man told Jessie to get in the closet.     When Jessie did

so, the man shut the closet door and told Ms. Lee to take her

clothes off.   The man pulled his pants down, put the gun to Ms.

Lee‟s head, and told her that “you know how this goes.”     The man
                                 -8-

forced Ms. Lee to her knees and forced Ms. Lee to perform oral

sex with him.    He then took Ms. Lee over to the bed and had

vaginal intercourse with her. The man flipped her over on her

stomach and unsuccessfully attempted to have anal intercourse.

When this didn‟t work, the man turned Ms. Lee back over and

engaged in vaginal intercourse with her.    After this, the man had

Ms. Lee perform oral sex upon whim.    (Diggs-Graham T. Vol. 3, pp.

703-708).

    After the sexual intercourse was complete, the man asked for

money and Ms. Lee gave him two or three dollars.    She also told

the man that she and a roommate kept money in a box in her

roommate‟s closet.    This box would have contained over one-

hundred dollars.    The man went to the roommate‟s room, rustled

through boxes in her closet, and took money from the box.

(Diggs-Graham T. Vol. 3, pp. 709-11).

    Ms. Lee described the suspect as a large, black man wearing

dark clothing.    She was shown a photo array that included Mr.

Edwards, but she was unable to say that he was the perpetrator.

She was able to say that she had seen Mr. Edwards in the past,

but that she didn‟t know whether it was the night of the rape or

some other time.    After being told that Mr. Edwards was a

suspect, Ms. Lee noted that Mr. Edwards had attempted to initiate

a relationship with her roommate and that he had brought a plate

pork chops to her roommate at some point in the recent past.
                                  -9-

(Diggs-Graham T. Vol. 3, pp. 726-30).

       Ms. Lee and Jessie Lepow acknowledged that they had

initially lied to police by stating that Jessie had been sleeping

on her couch rather than in her bed.       (Diggs-Graham T. Vol. 3,

pp. 713, 751).

       Brenda Bissette, a special agent with the State Bureau of

Investigation assigned to the Crime Laboratory in the DNA unit,

gave testimony with respect to her analysis of samples taken from

the victims and Mr. Edwards.    (McDiarmid T. Vol. 1, p. 204).      She

testified that DNA on swabs taken from Jessica Lee matched the

profile taken from Mr. Edwards.     (McDiarmid T. Vol. 1, pp. 226-

27).    The DNA profile taken from a sperm fraction found on Amanda

Richardson‟s pants also matched Dwayne Edwards.       (McDiarmid T.

Vol. 1, pp. 228-29).    Similarly, the DNA taken from a swab on the

wrist of Nicole Edwards matched the DNA profile of Dwayne

Edwards.    (McDiarmid T. Vol. 1, pp. 229-31).

       Following the trial, a jury found Mr. Edwards guilty of two

counts of first-degree rape, two counts of first-degree sexual

offense, one count of attempted first-degree sexual offense, two

counts of robbery with a firearm, two counts of second-degree

kidnapping, and one count of first-degree burglary with respect

to Jessica Lee and Jessie Lepow.        (R. pp. 226-34).   He was

convicted of felony breaking and entering, common law robbery,

and three counts of second-degree sexual offense with respect to
                                  -10-

Amanda Richardson.   (R. pp. 235-239).   Finally, he was convicted

of two counts of first-degree sexual offense, one count of first-

degree rape, one count of first-degree burglary, and one count of

robbery with a firearm with respect to Nicole Edwards.   (R. pp.

240-44).   The trial court entered judgment, sentencing Mr.

Edwards to consecutive, active terms of imprisonment as follows:

                  Victim - J. Lee/J. Lepow

01 CrS 50125      1st Deg. Rape                    336-413 months

01 CrS 50126      1st Deg. Rape                    336-413 months

01 CrS 50127      1st Deg. Sex Offense             336-413 months

01 CrS 50128      1st Deg. Sex Offense             336-413 months

01 CrS 50129      Att. 1st Deg. Sex Offense        93-121 months

01 CrS 50131-32   2 cts. Robbery with a Firearm    103-133 months

01 CrS 50134      2nd Deg. Kidnapping (Lepow)      34-50 months

01 CrS 50135      1st Deg. Burglary                103-133 months

                     Victim - Amanda Richardson

01 CrS 50164      Fel. B&E                         10-12 months

01 CrS 50168      2nd Deg. Sex Offense             116-149 months

01 CrS 50170      2nd Deg. Sex Offense             116-149 months
                                    -11-

01 CrS 50172        2nd Deg. Sex Offense              116-149 months

01 CrS 50174        C/L Robbery                       16-20 months

                       Victim - Nicole Edwards

01 CrS 50177        1st Deg. Burglary                 103-133 months

01 CrS 50179        1st Deg. Sexual Offense           336-413 months

01 CrS 50180        1st Deg. Sexual Offense           336-413 months

01 CrS 50180        1st Deg. Rape                     336-413 months

01 CrS 50182        Robbery with a Firearm            103-133 months



(R. pp. 245-280).

                              ARGUMENT

I.   THE TRIAL COURT ERRED BY DENYING DEFENDANT‟S MOTIONS TO
     SUPPRESS ALL EVIDENCE SEIZED FROM DEFENDANT‟S CAR ON
     THE GROUND THAT THE SEARCH OF HIS CAR VIOLATED HIS
     RIGHTS UNDER THE 4TH AMENDMENT TO THE UNITED STATES
     CONSTITUTION AND ARTICLE 1, SECTIONS 19 AND 20 OF THE
     NORTH CAROLINA CONSTITUTION.

     Assignments of Error Nos. 14, 15, 16, 17, 20
     Record, pp. 71-122, 134-39, 159; Jester T. (23 & 24 January
     2002), pp. 197-211; Jester T. (28 May 2002), pp. 13-17

     On 9 January 2001, Officer Mikels and Officer Everett of the

Carrboro Police Department stopped Mr. Edwards‟ car for

displaying an expired registration tag.       Officer Everett pulled

his weapon, handcuffed Mr. Edwards, and told Officer Mikels that

he thought Mr. Edwards had placed something under the seat of his
                                 -12-

car.    Officer Everett subsequently determined that Mr. Edwards

had properly renewed his registration.       Officer Mikels went to

Mr. Edwards car, looked under the seat, and saw a gun.      Mikels

then arrested Mr. Edwards for carrying a concealed weapon.       (R.

pp. 134-39; Jacot T. pp. 151-69, 218-236).       On the basis of items

seized in the passenger area of Mr. Edwards‟ car, officers from

the Carrboro and Chapel Hill Police Departments obtained search

warrants permitting them to search Mr. Edwards‟ home, to search

Mr. Edwards‟ business, to search Mr. Edwards‟ car, and to obtain

a body hairs and bodily fluids from Mr. Edwards.      The trial court

erred by failing to grant Mr. Edwards‟ motions to suppress all

the evidence that resulted from the unlawful search of his car.

       “The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated.”       U.S. Const. amend. IV; see

also N.C. Const. Art. I, §§ 19 & 20.      “[W]arrantless searches are

not allowed absent probable cause and exigent circumstances.”

State v. Harper, ___ N.C. App. ____, _____, 582 S.E.2d 62, 67

(2003).    “The exclusionary rule prohibits introduction into

evidence of tangible materials seized during an unlawful search.”

 State v. Wallace, 111 N.C. App. 581, 589, 433 S.E.2d 238, 243

(citing Murray v. United States, 487 U.S. 533 (1988)), rev.

denied by 335 N.C. 242, 439 S.E.2d 161 (1993); N.C.G.S. § 15A-974

(2001).    Review of a trial court‟s ruling with respect to a
                                  -13-

motion to suppress “is limited to whether the trial court‟s

findings are supported by competent evidence and whether those

findings support its ultimate conclusions.”      State v. McHone, ___

N.C. App. ____, ____, 580 S.E.2d 80, 83 (2003).

    A.   The trial court‟s conclusion of law that defendant was

         detained and under arrest for displaying an expired

         Illinois registration plate is not supported by the

         findings of fact nor by competent evidence.

    In conclusion of law number 3, the trial court found that

“[a]lthough not immediately told that he was under arrest, the

defendant was detained and under arrest.”     (R. p. 138, Conclusion

of Law No. 3).   This conclusion is not supported by either the

findings or competent evidence.

    The trial court found that Dwayne Edwards was a suspect in

two rapes that had been committed in Carrboro in December of 2000

and that he had been placed under surveillance by the Carrboro

Police Department.   During the surveillance, officers noted that

Mr. Edwards drove a Chevrolet Cavalier with expired Illinois

registration plates.   At 4:03 a.m. on 9 January 2001, Officer

Mikels and Officer Everett heard the alert with respect to the

rape of Jessica Lee in Chapel Hill.      The officers began looking

for Mr. Edwards‟ car, which was not in his parking lot.     A few

minutes later, both officers spotted Mr. Edwards‟ car.     Officer

Everett pulled out behind Mr. Edwards, turned on his blue lights,
                                  -14-

and stopped Mr. Edwards.     When Mr. Edwards got out of his car,

the officers placed him in handcuffs and took him to the curb.

Mr. Edwards had evidence that he had obtained a new, valid

registration sticker, and he showed it to the officers.     Officer

Mikels got in Mr. Edwards‟ car, looked under the front seat, and

saw a handgun.     At that time, Officer Mikels told Mr. Edwards

that he was under arrest for carrying a concealed weapon.     (R.

pp. 138-39; Jacot T. pp. 138-68, 218-36).

    “The test for determining whether an individual is in

custody or under arrest is whether, under the totality of the

circumstances, the „suspect‟s freedom of action is curtailed to a

degree associated with formal arrest.‟” Park v. Shifflet, 250

F.3d. 843, 850 (4th Cir. 2001) (quoting Berkemer v. McCarty, 468

U.S. 420, 440 (1984)).     The subjective intent of the arresting

officers is some evidence with respect to whether the action was

or was not an arrest, but the subjective intent of the officer is

not controlling.     United States v. Perate, 719 F.2d 706, 709 (4th

Cir. 1983); State v. Logner, 148 N.C. App. 135, 138, 557 S.E.2d

191, 194 (2001).

    The trial court‟s conclusion of law that Mr. Edwards was

under arrest for displaying an expired registration sticker is

neither supported by competent evidence nor the findings of fact.

 While the initial stop was justified based on the expired

registration sticker, Mr. Edwards was not arrested for that
                                  -15-

offense prior to the search of the car.    Upon being detained, Mr.

Edwards showed the officers a sticker that proved he had renewed

his registration, and the trial court found that the officers

determined that the registration had not expired.    Officer Mikels

acknowledged that he would not ordinarily place a person under

arrest for displaying an expired registration tag.    (Jacot, T. p.

237).    Moreover, Mikels testified that the initial act of placing

Mr. Edwards in handcuffs was not an arrest.    Mikels stated that

Mr. Edwards was “under investigative detention” at that point in

time.    (Jacot T. pp. 228-29).   The trial court found that Mr.

Edwards was charged with carrying a concealed weapon after

Officer Mikels found the handgun under the front seat of Mr.

Edwards‟ car.   (R. p. 138, Findings of Fact 45 and 46).   Given

the circumstances, the findings do not support the conclusion

that Mr. Edwards was under arrest for displaying an expired

registration sticker.   Mr. Edwards‟ freedom of action was not

curtailed to the degree associated with an arrest until Officer

Mikels searched his car, located the gun, and told him that he

was under arrest.

    B.     The trial court‟s conclusion of law that the officers
           were permitted to search Mr. Edwards and his car as a
           search incident to arrest is not supported by the
           findings nor competent evidence.

     In conclusions of law numbers 3 and 4, the trial court found
that Mr. Edwards had been placed under arrest for displaying an
expired registration tag and that the “officers were therefore
permitted to search the defendant and his vehicle.” (R. p. 138,
Conclusions of Law Nos. 3 and 4). As stated in the previous
                                -16-

section, Mr. Edwards was not placed under arrest until after the
search of his car and the seizure of the handgun. The trial
court found that Mr. Edwards was placed under arrest for carrying
a concealed weapon after Officer Mikels found the handgun.
Officer Mikels testified that Mr. Edwards was not under arrest
when he was handcuffed. He further testified that Mr. Edwards
was merely under investigative detention at that time and that he
would not ordinarily arrest a person for displaying an expired
registration sticker. (Jacot T. pp. 228-29, 237). For these
reasons, the trial court‟s conclusion of law that the officers
were permitted to search the car on the basis of a search
incident to arrest is not supported by the findings nor by the
competent evidence.

    C.   The conclusions of law that the circumstances justified
         an investigatory stop and search of Mr. Edwards‟ person
         and car are not supported by findings of fact nor by
         competent evidence.

    In conclusions of law numbers 5, 6, and 7, the trial court

found that the totality of the circumstances warranted the stop

of Mr. Edwards‟ car and permitted the officers to “check the

defendant and his immediate surroundings for evidence of crime.”

 (R. p. 138, Conclusions of Law Nos. 5, 6, and 7).   The trial

court erred by concluding that the officers had sufficient

reasonable suspicion to stop Mr. Edwards and search his car for

evidence that he committed a sexual assault.

    To justify an investigatory stop of a car and the detention

of its occupants, an “officer must have a reasonable suspicion of

criminal activity.”   State v. McArn, ___ N.C. App. ___, ___, 582

S.E.2d 371, 374 (2003).   “The reasonable suspicion must arise

from the officer‟s knowledge prior to the time of the stop.”

State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 630 (2000).

The stop must be based on specific and articulable facts and the
                                -17-

officer must have something more than an “unparticularized

suspicion or hunch.”   State v. Kincaid, 147 N.C. App. 94, 98, 555

S.E.2d 224, 298 (2001).   In making its determination, the court

should consider the totality of the circumstances.    State v.

Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994).

    1.   The officers did not have sufficient reasonable
         suspicion to search Mr. Edwards‟ car on the ground that
         his registration sticker was expired.

    Even assuming arguendo that Officer Everett properly stopped

Mr. Edwards for displaying an expired registration sticker, the

officers did not have sufficient reasonable suspicion to justify

a search of Mr. Edwards‟ car.   The scope of an investigatory stop

must be tailored to its underlying justification.    Kincaid, 147

N.C. App. at 99, 555 S.E.2d at 298; State v. Morocco, 99 N.C.

App. 421, 427-28, 393 S.E.2d 545, 549 (1990).   The investigation

of the crime of displaying an expired registration sticker did

not require a search of the interior of the car.

    2.   The officers did not have reasonable suspicion to
         search Mr. Edwards‟ car to look for evidence of another
         crime.

    The trial court found that (1) Mr. Edwards was a suspect in

two Carrboro rapes, (2) a rape occurred in Chapel Hill on 9

January 2001, (3) shortly after the Chapel Hill rape, Mr. Edwards

was driving his car towards his apartment complex and away from

Chapel Hill, and (4) the perpetrator of the Chapel Hill assault

was a tall, black male.   (R. pp. 134-39).   There are no findings
                                -18-

to suggest that the victim of the Chapel Hill rape could identify

Mr. Edwards or that the perpetrator had been driving a car

similar to his Chevy Cavalier. The evidence at the suppression

hearing and at trial was that Jessica Lee could not identify Mr.

Edwards as the perpetrator when she was shown a photo array that

included Mr. Edwards and that the perpetrator had left the scene

on foot.

    The fact that Officer Mikels saw cash on Mr. Edwards‟ front

seat and gloves and a toboggan on his floorboard did not provide

sufficient, objective facts to justify a search of the car.       The

fact that Mr. Edwards had a toboggan and gloves on a cold, snowy,

January night is not evidence of criminal activity.    Even if

having cash on the front seat is not usual, it is not sufficient

to justify a warrantless search of the car.

    Neither the trial court‟s findings nor the competent

evidence submitted at trial supported the conclusion that the

search of the car was justified as an investigatory search.       The

facts known to the officers at the time of the stop were not

sufficient to allow an objective person to conclude that Mr.

Edwards was engaged in criminal activity.     Rather, the facts

known to the officers supported a mere suspicion or hunch that

Mr. Edwards had been involved in the Chapel Hill sexual assault.

    D.     The trial court‟s conclusion of law that the seizure of
           the handgun and other items in Mr. Edwards‟ car was
           lawful is not supported by the findings of fact nor by
           competent evidence.
                                 -19-


      The trial court concluded that the seizure of the handgun

under the front seat of Mr. Edwards‟ car and the search and

seizure of the other evidence was permitted as a search incident

to arrest and as a search pursuant to an investigatory stop.      (R.

p. 138, Conclusion of Law No. 8).       For the reasons stated in the

preceding sections, Mr. Edwards asserts that he was not arrested

at the time of the search and that the officers did not have

sufficient reasonable suspicion to search his car for evidence of

sexual assault or any other crime.      The search of Mr. Edwards‟

car violated his rights under the 4th Amendment to the United

States Constitution and Article I, Sections 19 and 20 of the

North Constitution.    For this reason, the trial court erred by

failing to grant Mr. Edwards‟ motion to suppress the handgun, the

cash located on the front seat, the toboggan, and the gloves

seized from his car.    On this basis, Mr. Edwards prays that this

Court grant him a new trial.

II.   THE TRIAL COURT ERRED BY DENYING DEFENDANT‟S MOTION TO
      SUPPRESS ALL EVIDENCE SEIZED AS A RESULT OF THE
      UNLAWFUL SEARCH AND SEIZURE OF DEFENDANT AND HIS CAR ON
      THE GROUND THAT THE SEIZURE OF THIS EVIDENCE VIOLATED
      DEFENDANT‟S RIGHTS UNDER THE FOURTH AMENDMENT TO THE
      UNITED STATES CONSTITUTION AND ARTICLE 1, SECTIONS 19
      AND 20 OF THE NORTH CAROLINA CONSTITUTION.

      Assignments of Error Nos. 14, 15, 16, 17, 20
      Record, pp. 71-122, 134-39, 159; Jester T. (23 & 24 January
      2002), pp. 197-211; Jester T. (28 May 2002), pp. 13-17

      Officers of the Carrboro Police Department conducted a

warrantless search of Mr. Edwards‟ car.      On the basis of items
                                -20-

found in Mr. Edwards‟ car, officers of the Carrboro and Chapel

Hill Police Departments sought and obtained search warrants

permitting the search of Mr. Edwards‟ car, his residence, his

place of business, and his body.       The State conducted

serological and DNA testing of Mr. Edwards hair and bodily fluids

and some of these test results were introduced at trial.      Prior

to trial, Mr. Edwards filed motions asking the trial court to

suppress evidence that resulted from the illegal search and

seizure of his car, including evidence seized pursuant to search

warrants that were based on the initial, warrantless search of

Mr. Edwards‟ car.   (R. pp. 71-122).      The trial court erred by

denying Mr. Edwards‟ motions to suppress.

    In reviewing a magistrate‟s decision to issue a search

warrant, a reviewing court determines whether the magistrate had

a substantial basis for concluding that probable cause existed

under the totality of the circumstances.       State v. McLean, 120

N.C. App. 838, 841, 463 S.E.2d 826, 829 (1995).

    In addition to excluding evidence seized during an unlawful

search, the exclusionary rule prohibits the introduction of

tangible and testimonial evidence that is acquired as a direct or

indirect result of the unlawful search.       Murray v. United States,

487 U.S. 533, 536-37 (1988).   Evidence seized pursuant to a

search warrant should be excluded if information obtained during

an unlawful search is presented to a magistrate and affects the
                                  -21-

magistrate‟s decision to issue the search warrant.     See Murray,

487 U.S. at 542.    In the present case, the evidence seized

pursuant to the illegal search of Mr. Edwards‟ car was presented

to magistrates and affected their decisions to issue search

warrants that resulted in the seizure of the evidence challenged

by the defendant.

    A.     The search warrants obtained by the Carrboro and Chapel
           Hill Police Departments relied on the evidence seized
           from Mr. Edwards‟ car to establish probable cause.

    On 9 January 2001, John Moore of the Chapel Hill Police

Department sought two search warrants relating to this case.    In

the first search warrant application, Investigator Moore

indicated that he intended to seize head and pubic hairs, blood,

and saliva from Mr. Edwards‟ body and photographs of Mr. Edwards‟

body.    (R. p. 86).   In the second search warrant application, he

stated that he intended to search Mr. Edwards‟ car in an attempt

to seize items reported stolen from the scene of the Chapel Hill

rape.    (R. p. 91).   In both, Mr. Moore alleged that Mr. Edwards‟

car had been stopped, that Mr. Edwards‟ had been arrested for

carrying a concealed weapon by Carrboro police, and that Carrboro

police had seized a toboggan, tan gloves, and U.S. currency.    He

further alleged that the currency had been found in the front

passenger area as if somebody had thrown the money in the car.

(R. pp. 88, 93).

    On 9 January 2001, Investigator John Lau of the Carrboro
                                -22-

Police Department applied for search warrants for Mr. Edwards‟

home and business.   (R. pp. 94-111, 117-120).     He sought to seize

firearms or other weapons, clothing, and items that may have been

taken from the scenes of the Carrboro crimes, including a

cellular phone.   (R. pp. 96, 102, 108, and 119).     In his

affidavits, he alleged that Mr. Edwards‟ had been stopped shortly

after the rape, that evidence of the rape was in plain view, that

officers had found a handgun with night sights matching the

description given by one of the victims, and that officers had

seized gloves and a toboggan fitting descriptions given by the

victims in the Carrboro assaults.      (R. pp. 98, 104, 110, 121).

    In all the affidavits, the officer applying for the search

warrant established probable cause by pointing to the evidence

seized during the warrantless search of Mr. Edwards‟ car.

    B.   The trial court‟s conclusion of law that the seizure of
         the handgun was lawful and that this seizure permitted
         the search for and seizure of the other evidence is not
         supported by the findings of fact nor by competent
         evidence.

    The trial court concluded that the search of Mr. Edwards‟

car was proper, that the seizure of the handgun was lawful, and

that Mr. Edwards‟ arrest permitted the search for and seizure of

the other evidence the State sought to introduce.      (R. p. 138,

Conclusion of Law No. 8).   This conclusion is not supported by

the findings of fact nor by competent evidence.

    In support of this assignment, Mr. Edwards incorporates by
                                 -23-

reference all the argument set forth in Section I of this brief

with respect to whether the search of the car was lawful.   Mr.

Edwards further contends that the seizure of the items from his

person, his car, his residence, and his business resulted from

this initial, unlawful search.

    The officers submitted search warrant applications to

magistrates.   To establish probable cause, the officers informed

the magistrates that the items seized from Mr. Edwards‟ car

matched the description of items used by the perpetrator in each

of the three rapes.   Without this information, the search warrant

applications did not contain sufficient, objective facts to

establish probable cause.   For this reason and the reasons stated

in Section I of this brief, the trial court‟s findings of fact

are insufficient to support its conclusion of law.

    C.   The trial court committed prejudicial error by failing
         to suppress the evidence seized pursuant to the search
         warrants.

    The trial court denied Mr. Edwards‟ motion to suppress and

subsequently overruled his objections and continuing objections

to the evidence seized at his residence and business and to the

DNA evidence that was produced based on the hair and bodily fluid

samples taken from his person.    The trial court granted Mr.

Edwards a continuing objection with respect to this evidence.

(R. p. 159).   Defendant objected to and the trial court overruled

objections to SBI lab reports showing that Mr. Edwards‟ DNA was
                                  -24-

present on swabs taken from the victims.    (McDiarmid T. Vol. 1,

pp. 226-27, 230-32, 233-236; McDiarmid T. Vol. 2, 268, 274).

Defendant also objected to and the trial court overruled

objections to the admission of a cellular phone and to testimony

showing that a cellular phone belonging to Helli Farr had been

found at Mr. Edwards‟ business.     (Diggs-Graham T. Vol. 2, pp.

365-69, 379-80; Diggs-Graham T. Vol. 3, pp. 502-03, 515-17, 521,

534-35; Diggs-Graham, T. Vol. 3, pp. 636-39; 662-64, 696-97;

McDiarmid T. Vol. 1, p. 185).

     The victims in this case were not able to identify Mr.
Edwards as the man who had raped them. The cellular phone found
at Mr. Edwards‟ business and the DNA evidence linked Mr. Edwards
to the crimes at issue. Accordingly, the trial court committed
prejudicial error by denying Mr. Edwards‟ motions to suppress.
Mr. Edwards prays this Court grant him a new trial.

III. THE TRIAL COURT‟S JUDGMENT IN 01 CRS 50174 ERRONEOUSLY
     PROVIDES THAT THE SENTENCE IS TO RUN AT THE EXPIRATION
     OF 01 CRS 50172 ON THE GROUND THAT THE WRITTEN JUDGMENT
     IS INCONSISTENT WITH THE JUDGMENT ENTERED IN OPEN
     COURT.

    Assignment of Error No. 28
    Record pp. 269-70; McDiarmid T. Vol. 2, pp. 528-29

    The judgment sentencing defendant to a term of imprisonment

of 16-20 months for common law robbery in 01 CrS 50174 provides

that it is to run at the expiration of the sentence imposed in 01

CrS 50172.   This sentence is inconsistent with the judgment

imposed in open court.

    In open court the trial court initially indicated that it

was consolidating the breaking and entering conviction in 01 CrS
                                  -25-

50164 and the common law robbery conviction in 01 CrS 50174.

(McDiarmid T. Vol. 2, p. 525).     The court subsequently determined

that these offenses had to have separate sentences, but that they

could be consolidated.   (McDiarmid T. Vol. 2, p. 528, lines 1-9).

 The trial court then imposed judgment in 01 CrS 50164 and

several other cases.   When the trial court imposed judgment in 01

CrS 50174, the trial court did not provide that the sentence was

to run consecutively with the sentence imposed in the one before

it, 01 CrS 50172.   (McDiarmid T. Vol. 2, p. 529, lines 15-20).

      Mr. Edwards prays this Court remand this case to the trial

court for entry of judgment in 01 CrS 50174 consistent with the

judgment entered in open court.     In the alternative, Mr. Edwards

prays this Court remand the case to the trial court to determine

whether the trial court intended to impose a consecutive sentence

with respect to 01 CrS 50174.

IV.   THE TRIAL COURT‟S JUDGMENT IN 01 CRS 50135 ERRONEOUSLY
      PROVIDES THAT THE SENTENCE IS TO RUN AT THE EXPIRATION
      OF 01 CRS 50134 ON THE GROUND THAT THE WRITTEN JUDGMENT
      IS INCONSISTENT WITH THE JUDGMENT IMPOSED IN OPEN
      COURT.

      Assignment of Error No. 29
      Record, pp. 259-60; McDiarmid T. Vol. 2, pp. 525-27

      The judgment sentencing Mr. Edwards to a term of

imprisonment of 103-133 months‟ for first degree burglary in 01

CrS 50135 states that it shall run at the expiration of the

sentence imposed in 01 CrS 50134.        (R. pp. 259-60).   This

judgment is not consistent with the judgment imposed in open
                                  -26-

court.

    The trial court initially consolidated 01 CrS 50134 and

50135 for judgment.   (McDiarmid T. Vol. 2, pp. 525, lines 4-9).

Shortly thereafter, the prosecutor noted that second-degree

kidnapping is a Class E sentence and suggested that, while the

sentences for both the burglary and the kidnapping could be

consolidated, the kidnapping should be given its own sentence.

(McDiarmid T. Vol. 2, pp. 526).     The court noted that 01 CrS

50134 and 50135 had been consolidated and imposed a sentence of

34-50 months‟ with respect to the kidnapping and 103-133 months‟

with respect to the burglary.    The trial court did not provide

that either judgment was to run at the expiration of another

sentence.   The clerk asked whether “they are at the expiration?”

 The trial court responded that “[t]hey are to run consecutively,

yes, at the expiration of the one immediately before.”

(McDiarmid T. Vol. 2, p. 527).

    Mr. Edwards contends that the trial court intended to

consolidate the sentences in 01 CrS 50134 and 50135 and make

those sentences run consecutively to the prior judgment.     Mr.

Edwards prays this Court remand this case for entry of judgment

consistent with the transcript.     In the alternative, Mr. Edwards

prays this Court remand this case to the trial court to determine

whether the sentence imposed in 01 CrS 50135 should run

consecutively or concurrently with the sentence imposed in 01 CrS
                                 -27-

50134.

V.   THE TRIAL COURT ERRED BY DENYING DEFENDANT‟S MOTION TO
     DISMISS THE INDICTMENTS CHARGING DEFENDANT WITH FIRST-
     DEGREE RAPE AND FIRST-DEGREE SEXUAL OFFENSE ON THE
     GROUND THE INDICTMENTS FAILED TO CONTAIN AN ALLEGATION
     OF EVERY FACT WHICH IS LEGALLY ESSENTIAL TO THE
     PUNISHMENT TO BE INFLICTED IN VIOLATION OF DEFENDANT‟S
     STATE AND FEDERAL CONSTITUTIONAL RIGHTS.

     Assignment of Error No. 12
     R. pp. 123-30, Jester T.(28 May 2002) pp. 18-21; McDiarmid

     T., Vol. 2, p. 278

     Prior to trial and prior to the entry of judgment, Mr.

Edwards moved to dismiss the indictments on the ground that the

indictments did not include essential elements of the offenses of

first-degree rape or first-degree sexual offense.    (R. pp. 123-

30, Jester T.(28 May 2002) pp. 18-21; McDiarmid T., Vol. 2, p.

278).    The trial court denied Mr. Edwards‟ motions and entered

judgment on the first-degree rape and sexual offense convictions.

 (Jester T.(28 May 2002) pp. 18-21; McDiarmid T., Vol. 2, p.

278).    The trial court committed prejudicial error by denying Mr.

Edwards‟ motions and by entering judgment on these indictments.

     The elements of first-degree rape are that the accused

engaged in vaginal intercourse with the victim, that the accused

used or threatened to use force sufficient to overcome any

resistance the victim might make, that the victim did not

consent, and that the defendant employed or displayed an object

that the victim reasonably believed to be a deadly weapon.

N.C.G.S. § 14-27.2 (2001).   The elements of first-degree sexual
                                    -28-

offense are that the accused engaged in a sexual act with the

victim, that the accused used or threatened to use force

sufficient to overcome any resistance the victim might make, that

the victim did not consent, and that the defendant employed or

displayed an object that the victim reasonably believed to be a

deadly weapon.    N.C.G.S. § 14-27.4 (2001).

       In the present case, the indictments alleging that Mr.

Edwards committed first-degree rape, alleged that Mr. Edwards

“willfully and feloniously did ravish and carnally know [the

victim] by force and against the victim‟s will.”       R. pp. 43, 44,

60).    The first-degree sexual offense indictments alleged that

Mr. Edwards “willfully and feloniously did engage in a sex

offense with [the victim] by force and against the victim‟s

will.”    R. pp. 45, 46, 58, 59).     The indictments did not allege

that Mr. Edwards employed or displayed a deadly weapon or an

article which the victim believed to be a deadly weapon.

       Defendant acknowledges that the short-form indictments used

in this case comply with Sections 15-144.1 and 15-144.2 of the

General Statutes of North Carolina.        N.C.G.S. §§ 15-144.1 & 15-

144.2 (2001).    The Due Process Clause of the 5th Amendment and

the guarantees to a jury trial set forth in the 6th Amendment to

the United States Constitution require that “any fact (other than

prior conviction) that increases the maximum penalty for a crime

must be charged in an indictment, submitted to a jury, and proven
                                 -29-

beyond a reasonable doubt.”    Jones v. United States, 526 U.S.

227, 243, fn. 6 (1999); see Apprendi v. New Jersey, 530 U.S. 466

(2000).   Mr. Edwards acknowledges that the constitutionality of

the short-form indictments has been upheld since the U.S. Supreme

Court issued its rulings in Jones and Apprendi.       State v.

O’Hanlon, 153 N.C. App. 546, 550-551, 570 S.E.2d 751, 755 (2002).

 Mr. Edwards urges this Court to reconsider its prior holdings.

                              CONCLUSION

    For the reasons set forth in this brief, Dwayne Edwards

prays this Court vacate the convictions for first-degree rape and

first-degree sexual offense and remand these cases for judgment

for entry of second-degree rape and second-degree sexual offense

judgments.   As additional and further relief, Mr. Edwards prays

this Court grant him a new trial.       In the alternative, Mr.

Edwards prays this Court remand 01 CRS 50135 and 01 CRS 50174 for

entry of judgment consistent with the transcript or, in the

alternative, for a determination with respect to whether the

trial court intended to run the sentence in these judgments

consecutively to the sentence imposed in prior judgments.

    This the 18th day of August, 2003.

                     _________________________________________
                     Duncan B. McCormick
                     Attorney for Defendant Edwards
                     PO Box 1629
                     Lillington, NC 27546
                     Telephone: (910) 893-5191
                     Facsimile: (910) 893-4803
                     State Bar No. 22195
           -30-

E-mail: dmccormi@infionline.net
                                 -31-

                     CERTIFICATE OF SERVICE

    I certify that a copy of Defendant-Appellant‟s Brief has

been served upon Roy Cooper, Attorney General, or one of his duly

appointed assistants, by depositing a copy in the United States

Mail, postage prepaid, first class mail, and properly addressed

as follows:

    Served On:

    Tina A. Krasner
    Assistant Attorney General
    1505 Mail Service Center
    Raleigh, NC 27699-1505

    Pursuant to Rule 26(a)(1) of the North Carolina Rules of

Appellate Procedure, I further certify that I have this day filed

the original of the foregoing Defendant-Appellant‟s Brief with

the Office of the Clerk of the North Carolina Court of Appeals by

depositing a copy in the United States Mail, postage prepaid,

first class mail, addressed as follows:

    Hon. John H. Connell, Clerk
    North Carolina Court of Appeals
    Post Office Box 2779
    Raleigh, NC 27602

    This the 18th day of August, 2003.

                    _________________________________________
                    Duncan B. McCormick
                    Attorney for Defendant

				
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