STATE v. SAPP,

STATE OF NORTH CAROLINA

v. Mecklenburg County
No. 02 CRS-238989
SHELTON LAMAR SAPP 03 CRS-2597-2603
03 CRS-2605-2609

Appeal by defendant from judgment entered 28 July 2006 by
Judge Albert Diaz in Mecklenburg County Superior Court. Heard in
the Court of Appeals 6 March 2008.

Attorney General Roy Cooper, by Special Deputy Attorney
General Norma S. Harrell, for the State.

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

STEELMAN, Judge.

Defendant’s acts of withdrawal and moving a female victim from
the couch to the floor established that there was a separate
penetration supporting a second rape charge. When defendant raped
one of the victims twice during the course of a home invasion and
robbery, a third rape by his co-defendant was a natural or probable
consequence of the robbery and the trial court properly submitted
the third rape to the jury under an acting in concert theory.
Evidence that young children were confined to a bedroom while
defendants terrorized the family during the course of a robbery was
sufficient to withstand defendant’s motion to dismiss second-degree
kidnapping charges on the elements of confinement and restraint and
to warrant a jury instruction on both theories. The trial courtproperly found that defendant’s conviction in Virginia was for a
crime substantially similar to a North Carolina Class A1
misdemeanor.

I. Factual and Procedural Background

In the early morning hours of 18 August 2002, two men entered
a residence in Charlotte in search of money and drugs belonging to
Damien Bell (hereinafter “Bell”). The apartment belonged to Bell’s
girlfriend, L.B., whose 48-year-old mother and 12-year-old brother
were staying with the couple and L.B.’s three young children (ages
6, 3, and 5 months). The intruders, Shelton L. Sapp (defendant)
and Tracy Hicks (hereinafter “Hicks”), armed with a shotgun and a
knife respectively, entered through a bedroom window, where they
found L.B.’s mother and 12-year-old brother asleep. They forced
these two persons through the hall into the second bedroom, where
Bell, L.B., and the younger children slept.
The intruders used duct tape to bind Bell and demanded cash
and illegal drugs that they suspected were located in the
residence. As the intruders searched for the cash and drugs, they
forcibly separated Bell and L.B. from the rest of the family.
L.B.’s mother, her 12-year-old brother, and the three young
children remained in the bedroom throughout the incidents
hereinafter described, while the intruders verbally and physically
terrorized Bell and L.B.
Both intruders forced L.B. to engage in sexual intercourse:
first, defendant in the living room, and later, Hicks in the
apartment’s lone bathroom. Defendant testified that he had sexwith L.B. in order to induce Bell to reveal the location of the
money and drugs. Hicks did not testify. Defendant took L.B. into
the living room, where he twice penetrated her vaginally: first on
the couch then again on the floor, while Bell and Hicks watched.
Defendant then sent L.B. to the bathroom with instructions to “wash
really good.” After she bathed, and was in the process of drying
herself, Hicks came into the bathroom and had intercourse with her.
Eventually, Bell told the men where to find the money and
drugs. Defendant retrieved the money and drugs from their hiding
place in a bedroom closet, then made a phone call. Before leaving,
defendant killed Bell with a single shot to the head.
On 13 January 2003, defendant was indicted for murder, first
degree burglary, first degree rape (3 counts), first degree
kidnapping (2 counts), and second degree kidnapping (5 counts).
Defendant was tried capitally on the murder charge. The offenses
were consolidated for trial before a jury at the 26 June 2006
criminal term of Mecklenburg County Superior Court. Defendant’s
motion to dismiss the charges at the close of the State’s evidence
was denied. Defendant then testified and admitted to raping L.B.
and shooting Bell. Defendant testified that he only raped L.B.
once and did not plan any crime other than the robbery. On cross-
examination, the State questioned defendant concerning his
statement to police investigators that “My only plan was to go in,
boom, boom.” Defendant’s motion to dismiss all charges at the
close of all evidence was denied. On 21 July 2006, the jury returned a verdict of guilty on all
charges. On 28 July 2006, the jury recommended life imprisonment
rather than death on the murder charge. The trial court
accordingly sentenced defendant to life imprisonment for the murder
charge, and consecutive active sentences totaling a minimum of
1,369 months and a maximum of 1,764 months imprisonment for the
other offenses. Defendant appeals.

II. Denial of Defendant’s Motions to Dismiss

In his first three arguments, defendant contends that the
trial court erred in denying his motions to dismiss two of the rape
charges and three of the second degree kidnapping charges.

A. Standard of Review

When considering a criminal defendant’s motion
to dismiss, the trial court must view all of
the evidence presented in the light most
favorable to the State, and the State is
entitled to all reasonable inferences which
may be drawn from the evidence. The trial
court correctly denies a motion to dismiss if
there is substantial evidence of every element
of the offense charged, or any lesser offense,
and of defendant being the perpetrator of the
crime.

State v. Murray, 154 N.C. App. 631, 634, 572 S.E.2d 845, 847
(2002) (internal quotations and citations omitted).
“Whether the evidence presented is substantial is a question
of law for the court.” Id. at 734, 572 S.E.2d at 847 (citation
omitted). “Evidence is substantial if it is relevant and adequate
to convince a reasonable mind to accept a conclusion.” Id.
(quoting State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255(2002), cert. denied, 537 U.S. 1006, 154 L. Ed. 2d 404 (2002)).
This Court reviews such questions of law de novo.

B. The Rape Charges
1. The Living Room Rapes

In his first argument, defendant contends that he committed
only one rape on L.B. because he did not “finish” having sex with
her on the couch, but merely switched positions by moving to the
floor. We disagree.
Defendant relies on State v. Small, 31 N.C. App. 556, 559, 230
S.E.2d 425, 427 (1976), for the premise that an act “of rape is
terminated by a single act or fact.” This reliance is misplaced.
In State v. Key, this Court upheld separate convictions for rape
where defendant did not move the victim from one location to
another but forced her to change positions before re-entering her.
State v. Key, 180 N.C. App. 286, 289, 636 S.E.2d 816, 820 (2006)
(affirming two rape convictions where defendant penetrated victim
vaginally from the front, withdrew, turned her on her side, and
re-penetrated the victim vaginally from the rear), disc. review
denied, 361 N.C. 433, __ S.E.2d __ (2007). “Each act of forcible
vaginal intercourse constitutes a separate rape. Generally rape is
not a continuous offense, but each act of intercourse constitutes
a distinct and separate offense.” Key, 180 N.C. App. at 288, 636
S.E.2d at 819 (2006) (quoting State v. Owen, 133 N.C. App. 543,
551-52, 516 S.E.2d 159, 165 (1999)).
Viewed in the light most favorable to the State, the evidence
showed that the defendant and Hicks broke into the victim’s home inthe middle of the night and terrorized her and her family. After
beating her boyfriend in an attempt to find money and drugs,
defendant, armed with a shotgun, took L.B. to the living room with
the stated purpose of having sex. L.B. testified that defendant
penetrated her twice, first on the couch in the living room, then
on the floor after Hicks dragged Bell, with his mouth taped and
hands bound, into the room to watch.
The victim’s testimony included the following:
Q. What happened to you on that couch, [Ms.
B.]?

A. Well, I had sex with the tall guy — the
tall guy with the shotgun.

Q. When you say sex, what do you mean?

A. Intercourse.

Q. Okay. And, you mean he put his penis in
your vagina?

A. Yes, sir.

Q. [Ms. B.], did you give that man permission
or did you want to have sexual intercourse
with him there on your couch?

A. No, sir.

Q. Why did you do it?

A. I was afraid.

. . .

Q. And, did the man, the tall man with the
shotgun, did he finish having sexual
intercourse with you, there on the couch?

A. No, sir.

. . .
Q. . . . What happened . . . once the shorter
man brought [Bell] into the living room where
you and the tall man with the shotgun were?

A. Well, we got on the floor; me and the tall
guy got on the floor. He got on top of me and
we had sex, again.

. . .

Q. . . . did you give that man permission for
— did you want to have sexual intercourse
with him at that time?

A. No, sir.
Although L.B. did not specifically articulate that the defendant
withdrew, her testimony that he did not “finish” on the couch but
that the two “had sex, again” on the floor was substantial evidence
from which the jury could infer that the defendant withdrew before
re-penetrating the victim on the floor. Robinson, 355 N.C. at 336,
561 S.E.2d at 255-56.
Defendant acknowledged that he was not sure how many times he
raped the victim. On direct examination, defendant testified:
Q. Did you have sex with her, in the living
room?

A. Yeah. I did.

Q. Why did you do it?

A. I don’t know how many times. I done
thought about this right here, man.

(emphasis added). Defendant testified that his motive in “having
sex” with the victim was to apply pressure to Bell to reveal where
the money and drugs were hidden.
When viewed in the light most favorable to the State,
defendant’s testimony and the testimony of the victim constitutesubstantial evidence of two rapes: one on the couch and one on the
floor. The act of withdrawal and moving with the victim to the
floor was sufficient to sustain the second charge. Key, 180 N.C.
App. at 289, 636 S.E.2d at 820. Thus, the trial court did not err
in denying defendant’s motion to dismiss at the close of all the
evidence or in submitting both rape charges to the jury.
This argument is without merit.

B. Rape in the Bathroom

In his second argument, defendant contends that the court
erred in denying his motion to dismiss the rape charge resulting
from the acts of Hicks in the bathroom because the evidence did not
support a rape conviction on an acting in concert theory. We
disagree.
[I]f two persons join in a purpose to commit a
crime, each of them, if actually or
constructively present, is not only guilty as
a principal if the other commits that
particular crime, but he is also guilty of any
other crime committed by the other in
pursuance of the common purpose; that is, the
common plan to rob, or as a natural or
probable consequence thereof.

State v. Westbrook, 279 N.C. 18, 41-42, 181 S.E.2d 572, 586
(1971)(quoted with approval in State v. Barnes, 345 N.C. 184, 233,
481 S.E.2d 44, 71 (1997); State v. Erlewine, 328 N.C. 626, 637, 403
S.E.2d 280, 286 (1991)), sentence vacated on other grounds, 408
U.S. 939, 33 L. Ed. 2d 761 (1972). “A natural consequence is thus
one which is within the normal range of outcomes that may be
expected to occur if nothing unusual has intervened.” State v.
Bellamy, 172 N.C. App. 649, 669, 617 S.E.2d 81, 95 (2005)(quotingRoy v. United States, 652 A.2d 1098, 1105 (D.C. 1995)), disc.
review denied, appeal dismissed, 360 N.C. 290, 628 S.E.2d 384
(2006).
Defendant argues that, under Bellamy, the bathroom rape was
not a natural or probable consequence of the robbery. He contends
that, as the man with the gun, he was “in charge of the situation”
and it was unforeseeable that Hicks “would defy him by raping
[L.B.].” He further contends that once that he told L.B. to go
wash herself that the actions of Hicks were no longer a natural or
probable consequence of the robbery and that he cannot be convicted
under an acting in concert theory.
In Bellamy, two men planned a robbery of a restaurant where
one of the men was employed. Bellamy entered the office area of
the restaurant shortly after closing. He confronted the night
manager with a gun as she prepared the night deposit. After
securing the money, Bellamy instructed the manager to disrobe. He
demanded that she spread her labia, then used the barrel of the gun
to further separate her labia. The assault followed the robbery.
There was no evidence of any plan for a sexual assault, nor was
there evidence that the sexual assault was related in any way to
the robbery. The State argued that, as a party to the robbery,
Bellamy’s co-defendant was “liable as a principal under the theory
of acting in concert for Bellamy’s sexual assault on C.B.” The
issue before this Court was whether “a sexual assault is a natural
or probable consequence of a robbery with a dangerous weapon of afast food restaurant[.]” Bellamy, 172 N.C. App. at 668, 617 S.E.2d
at 94.
In reaching its conclusion that this unusual sexual assault
was not a natural or probable consequence of the completed robbery,
this Court stated:
Our Supreme Court has expressly rejected the
concept that for a defendant to be convicted
of a crime under an acting in concert theory,
he must possess the mens rea to commit that
particular crime. Barnes, 345 N.C. 184, 481
S.E.2d 44 (overruling State v. Blankenship,
337 N.C. 543, 447 S.E.2d 727 (1994) and State
v. Straing, 342 N.C. 623, 466 S.E.2d 278
(1996)). Based upon the holding in Barnes, it
would not be appropriate to adopt a standard
based upon the defendant’s subjective state of
mind or intent. Rather, the appropriate
standard for evaluating whether a crime was a
reasonable or probable consequence of a
defendant’s joint purpose should be an
objective one.

We decline to adopt a per se rule that any
sexual assault committed during the course of
a robbery is a natural or probable consequence
of a planned crime. Rather, this determination
must be made on a case by case basis, upon the
specific facts and circumstances presented.
See State v. Trackwell, 458 N.W.2d 181, 183-84
(Neb. 1990).

Bellamy, 172 N.C. App. at 668-69, 617 S.E.2d at 95. The Court held
that this “bizarre sexual offense” was not a natural and probable
consequence of the robbery. Id. at 670-71, 617 S.E.2d at 96.
Citing to the case of People v. Nguyen, 21 Cal. App. 4th 518,
532-33, 26 Cal. Rptr. 2d 323, 332 (Cal. App. 3 Dist. 1993), this
Court analyzed the foreseeability of a sexual assault occurring in
the context of a commercial setting, as opposed to a residential
setting. Bellamy, 172 N.C. App. at 669-70, 617 S.E.2d at 95-96. Weheld that it was less likely that a sexual assault in the course of
a robbery of a business would be a natural and probable consequence
than in the context of a residential robbery. Id. at 670, 617
S.E.2d at 96.
Viewed in the light most favorable to the State, the evidence
at trial showed that Hicks and defendant invaded the victims’
residence with the intent to commit robbery with a dangerous
weapon. Defendant’s rapes of L.B. in front of Bell were for the
admitted purpose of coercing Bell to give up his money and drugs,
and, as such, they were part of the robbery. Once defendant had
engaged in this conduct in front of Hicks it was clearly
foreseeable that Hicks would become aroused and want to have sex
with L.B. Having set in motion the rape of L.B. as an integral
part of the robbery, defendant cannot now complain that Hicks’ rape
of L.B. was not a natural and probable consequence of the home
invasion and robbery.
Unlike in Bellamy, where the sexual assault took place after
the robbery was completed, the rape by Hicks was conducted during
the course of the robbery. As noted in Nguyen, “[d]uring
hostage-type robberies in isolated locations, sexual abuse of
victims is all too common. . . . rapes in the course of a
residential robbery occur with depressing frequency.” Nguyen, 21
Cal. App. 4th at 532-33, 26 Cal. Rptr. 2d at 332 (internal
quotations and citations omitted).
Taken in the light most favorable to the State, the evidence
in this case supports the trial court’s submission of the bathroomrape by Hicks to the jury under an acting in concert theory. We
hold that, on these facts, Hicks’ rape of L.B. was a natural and
probable consequence of the intended robbery of Bell and the court
did not err in submitting this rape charge to the jury.
This argument is without merit.

C. Second Degree Kidnapping: The Children

In his third argument, defendant contends that the court erred
in denying his motion to dismiss the three second degree kidnapping
charges involving L.B.’s young children, stating that, because the
children were “neither restrained nor confined,” the evidence was
insufficient to submit these charges to the jury. We disagree.
Since 1975, the crime of kidnapping has been governed by
statute. N.C.G.S. § 14-39 (2007) (defining kidnapping of a
juvenile as the confinement, restraint or removal of the child,
without the consent of the parent, for the purpose of, among other
things, facilitating the commission of a felony).
In State v. Shue, this Court observed that:
“If the victim is shown to be under sixteen,
the state has the burden of showing that he or
she was unlawfully confined, restrained, or
removed from one place to another without the
consent of a parent or legal guardian.” State
v. Hunter, 299 N.C. 29, 40, 261 S.E.2d 189,
196 (1980).

“Confinement” in the context of the offense
“connotes some form of imprisonment within a
given area, such as a room, a house or a
vehicle.” State v. Fulcher, 294 N.C. 503,
523, 243 S.E.2d 338, 351 (1978). Whereas
“’restrain,’ while broad enough to include a
restriction upon freedom of movement by
confinement, connotes also such a restriction,
by force, threat or fraud, without
confinement.” Id.
State v. Shue, 163 N.C. App. 58, 63, 592 S.E.2d 233, 237 (2004).
Moreover, we believe that “The terms ‘restrain,’ ‘confine’ or
‘remove’ are related in that they all encompass an act which
asserts control over the victim.” State v. Dominie, 134 N.C. App.
445, 451, 518 S.E.2d 32, 35 (1999) (J. Walker, concurring).
Viewed in the light most favorable to the State, the evidence
at trial showed that defendant, wielding a shotgun, acted in
concert with Hicks to isolate L.B.’s mother, L.B.’s 12-year-old
brother, and L.B.’s three young children in a single bedroom while
terrorizing the remaining occupants of the apartment in the course
of a robbery. There was evidence that defendant controlled the
behavior of the persons in the bedroom by forcing both women to
remove their clothes and refusing to allow L.B.’s mother to use the
bathroom when she asked to do so, telling her to “pee on the
floor.” There was also evidence that the intruders terrorized
those in the bedroom, responding to L.B.’s 12-year-old brother by
hurling racial slurs and telling him to “shut up.” We thus hold
that there was substantial evidence from which the factfinder could
infer that the defendant exercised impermissible restraint over the
young children and confined them within the meaning of the statute.
Fulcher, 294 N.C. at 523, 243 S.E.2d at 351; Shue, 163 N.C. App. at
63, 592 S.E.2d at 237.
This argument is without merit.

II. Jury Instructions on Second Degree Kidnapping Charges

In his fourth argument, defendant alleges prejudicial error in
that the jury was instructed on a theory of restraint without
sufficient evidence to support that theory. We disagree.
The judge instructed the jury as to each child:
First, that the defendant, either acting alone
or together with another, unlawfully confined
[the child] within a given area or restrained
him, that is restricted his freedom of
movement.

Second, that [the child] had not reached his
16^th birthday and his parent or guardian did
not consent to this confinement or restraint.
Consent obtained or induced by fraud or fear
is not consent.

Third, that the defendant, either acting alone
or together with another, confined or
restrained [the child] for the purpose of
committing the offenses of robbery with a
dangerous weapon [sic].

And fourth, that this confinement or restraint
was a separate, complete act, independent of
and apart from the commission of the offense
of robbery with a dangerous weapon.

Defendant challenges only the element of restraint in each
paragraph, contending that: (1) Fulcher defined restraint as a
constriction on one’s freedom of movement by force, threat or fraud
without confinement; (2) there was no evidence that defendant kept
the children in the bedroom by force, threat or fraud; (3) the
trial court should have refrained from charging the jury on the
restraint theory; and (4) its failure to do so was prejudicial
error because it prevented the jury from considering “whether
staying with your grandmother in your bedroom, standing alone,
constitutes kidnapping.” The language in Fulcher includes confinement within the
meaning of restraint. Fulcher, 294 N.C. at 523, 243 S.E.2d at 351
(“The term ‘restrain,’ while broad enough to include a restriction
upon freedom of movement by confinement, connotes also such a
restriction, by force, threat or fraud, without a confinement.”).
We have already determined that there was substantial evidence from
which the jury could infer that the defendant exercised
impermissible control over the inhabitants of the bedroom,
sufficient to withstand a motion to dismiss the second-degree
kidnapping charges related to L.B.’s young children. We hold that
the instruction on restraint was supported by substantial evidence
that defendant, wielding a shotgun, terrorized the occupants of the
apartment and exercised control over the persons in the bedroom by
use of threats.
This argument is without merit.

III. Felony Sentencing Level

In his fifth argument, defendant contends that the State
failed to meet its burden of proving that defendant’s prior
conviction in Virginia was substantially similar to a Class A1 or
Class 1 misdemeanor in North Carolina. We disagree.
At trial, the State introduced the petition, indictment, and
judgment from the Commonwealth of Virginia against defendant for
inflicting bodily injury on an employee of a juvenile detention
center. After discussing with counsel for the State and defendant
whether the offense was similar to the North Carolina crimes of
assault inflicting serious injury or assault on a governmentofficial, the court concluded that the offense was “at least a
Class 1 misdemeanor[,]” revised the Sentencing Worksheet to reflect
one point instead of two, and found the defendant to be a Prior
Record Level II offender. Defendant contends that, because the
Virginia indictment did not allege that the victim was discharging
or attempting to discharge any official duty, the State failed to
prove that the assault was anything more than a simple assault, a
Class 2 misdemeanor, and consequently he should have been found to
be a Level I offender with no prior sentencing points.
N.C. Gen. Stat. § 15A-1340.14(e) governs the classification of
prior convictions from other jurisdictions. The relevant portion
of the statute reads:
If the State proves by the preponderance of
the evidence that an offense classified as a
misdemeanor in the other jurisdiction is
substantially similar to an offense classified
as a Class A1 or Class 1 misdemeanor in North
Carolina, the conviction is treated as a Class
A1 or Class 1 misdemeanor for assigning prior
record level points.

N.C. Gen. Stat. § 15A-1340.14(e) (2007).
The Virginia juvenile court petition charged that defendant:
did on or about 11/29/99, unlawfully and
feloniously, while confined in a secure
facility as defined in VA. Code Section 16.1-
228, knowingly and willfully inflict bodily
injury on [D.R.], an employee thereof, in
violation of Section 18.2-55 of the 1950 Code
of Virginia as amended.

Section 18.2-55 of the Code of Virginia, “Bodily injuries caused by
prisoners, state juvenile probationers and state and local adult
probationers or adult parolees[,]” states that: A. It shall be unlawful for a person confined
in a state, local or regional correctional
facility as defined in § 53.1-1; in a secure
facility or detention home as defined in §
16.1-228 or in any facility designed for the
secure detention of juveniles; or while in the
custody of an employee thereof to knowingly
and willfully inflict bodily injury on:

1. An employee thereof, . . .

Va. Code Ann. § 18.2-55 (2008).
Pursuant to defendant’s guilty plea in Virginia, the court
sentenced him to ten years imprisonment, with eight years and three
months suspended.
During trial of the instant case, defendant testified that:
A. . . . I was in a juvenile correctional
center . . . for like a couple of weeks and I
caught an assault on an officer; in an assault
on that officer.

[DEFENSE COUNSEL]. How did that happen?

A. One night, another inmate was in a block
that we was in [sic] and it was only one
officer working the unit [sic]. He came in to
break the fight up and he tried to prevent
both of us from fighting. In the process, he
got assaulted. He got hit in the face. He
pressed charges on me.

. . .

Q. . . . what happened as a result of that?

A. I got tried as an adult.

. . .

[DISTRICT ATTORNEY]. . . . [T]he guard was a
Mr. [D.R.]; wasn’t it?

A. Yeah.

. . .
Q. . . . And the charge you were convicted of
was called inflicting bodily injury; wasn’t
it?

A. I can’t remember the exact charge; but
some where around that [sic].

. . .

Q. . . . Inflict bodily injury, do you know
if that’s a felony?

A. I think so.

N.C. Gen. Stat. § 14-33(c) classifies the following conduct by
a defendant as a Class A1 misdemeanor:
. . . if, in the course of the assault,
assault and battery, or affray, he or she:

. . .

(4) Assaults an officer or employee of the
State or any political subdivision of the
State, when the officer or employee is
discharging or attempting to discharge his
official duties[.]

N.C. Gen. Stat. § 14-33(c) (2007). The Virginia statute does not
contain the precise wording found in N.C. Gen. Stat. § 14-33(c).
However, the requirement set forth in N.C. Gen. Stat. § 15A-
1340.14(e) is not that the statutory wording precisely match, but
rather that the offense be “substantially similar.” The Virginia
statute makes it a crime for persons confined in a correctional
facility to knowingly and willfully inflict bodily injury upon an
employee of that facility. Due to the nature of a correctional
facility, an assault on one of its employees would necessarily be
in the discharge of the employee’s duties. Any questions as to
whether this was the case were resolved by the defendant’s own
testimony that the assault occurred as the employee attempted tobreak up a fight between prisoners and prevent them from further
fighting. The trial court properly found defendant to be a Level
II offender for felony structured sentencing purposes.
This argument is without merit.

IV. Short Form Indictment

In his final argument, defendant challenges the
constitutionality of the short form murder indictment, contending
that the trial court lacked subject matter jurisdiction to enter a
judgment on first-degree murder because the short form indictment
alleged only second degree murder. We disagree.
Defendant acknowledges that our Supreme Court has on numerous
occasions upheld the constitutionality of the use of the short-form
murder indictment, e.g. State v. Hunt, 357 N.C. 257, 582 S.E.2d
593, cert. denied, 539 U.S. 985, 156 L. Ed. 2d 702 (2003)
(rejecting the argument that the United States Supreme Court’s
decision in Ring v. Arizona rendered North Carolina’s short-form
murder indictment unconstitutional), and seeks only to preserve
this issue in the event of further review. Engle v. Isaac, 456
U.S. 107, 71 L. Ed. 2d 783 (1982).
This argument is without merit.

V. Conclusion

Defendant’s brief addresses only six of nine original
assignments of error. Pursuant to N.C. R. App. P. 28(b)(6) (2007),
the remaining assignments of error are deemed to be abandoned.
For the reasons stated above, we find no error in the trial or
sentencing of defendant.
NO ERROR.
Judges McCULLOUGH and ARROWOOD concur.

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