IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA15-162

                                Filed: 2 February 2016

Macon County, Nos. 13 CRS 461, 51065, 51102-05

STATE OF NORTH CAROLINA,

              v.

RONALD ANTHONY MILLER, Defendant.


        Appeal by defendant from judgments entered 23 July 2014 by Judge Mark E.

Powell in Macon County Superior Court. Heard in the Court of Appeals 8 September

2015.


        Attorney General Roy Cooper, by Assistant Attorney General Lora C. Cubbage,
        for the State.

        The Phillips Black Project, by John R. Mills, for defendant-appellant.


        GEER, Judge.


        Defendant Ronald Anthony Miller appeals from judgments entered on

convictions of multiple offenses. On appeal, however, defendant challenges only his

convictions of attempted larceny and attempted common law robbery. Defendant

argues that sentencing him for both convictions violates the constitutional

prohibition on double jeopardy because the attempted larceny conviction was a lesser-

included offense of the attempted robbery charge. Since defendant did not raise this

constitutional issue at trial, he failed to preserve this issue for appeal. Even if the

double jeopardy issue were properly before us, we would find no error because

defendant committed each charged offense against a different victim.
                                   STATE V. MILLER

                                   Opinion of the Court



                                         Facts

        Defendant was indicted on charges arising out of three separate incidents all

occurring in the early morning hours of 25 July 2013. He was acquitted of the charges

related to one incident, but convicted of charges arising out of the two other incidents.

On appeal, defendant challenges only the convictions related to one of the two

incidents. With respect to that incident, the State’s evidence tended to show the

following facts.

        Defendant entered the residence of George and Shirley Hardy during the early

morning of 25 July 2013 while they were sleeping.             The Hardys’ 15-year-old

granddaughter, Katie, and a friend were visiting from Florida and were also sleeping

inside. Katie woke up when defendant entered her room, turned on the lights, and

asked her where the car keys were. Katie noticed that defendant had a box cutter

knife in his hand and became “[r]eally scared.” She told defendant that the keys were

upstairs, and he followed her up the stairs with the box cutter pointed in her

direction. By entering the room where her grandmother was sleeping and making

noise while looking for the keys, Katie intended to wake her grandmother, which she

succeeded in doing. Defendant then instructed Katie to head downstairs and go

inside a vacant room. When Katie got downstairs, she refused to enter the vacant

room.    Soon afterward, her grandfather, who also was awakened by the noise,

“stormed downstairs,” and defendant left the house.



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                                   Opinion of the Court



      Defendant was later apprehended. As a result of the incident at the Hardys’

home and two other incidents the same night, defendant was indicted for first degree

burglary with a deadly weapon enhancement, false imprisonment, possession of

burglary tools, injury to real property, attempted felony larceny, attempted common

law robbery, second degree kidnapping, a second count of first degree burglary,

breaking and entering a motor vehicle, misdemeanor larceny, assault on a female,

and assault by strangulation. He was also indicted for attaining habitual felon

status.

      With respect to the indictments pertinent to this appeal, the indictment for

attempted felony larceny stated that defendant “attempt[ed] to steal, take, and carry

away a set of keys, the personal property of another, George Hardy.”              In the

indictment for attempted common law robbery, the State alleged that defendant

“attempt[ed] to steal, take, and carry away . . . a set of keys . . . from the person and

presence of Katie Hardy by means of an assault upon her consisting of putting her in

fear of bodily harm by threat of violence.”

      Defendant’s indictment for possession of burglary tools was dismissed by the

trial court. Defendant was later convicted by a jury of all remaining offenses except

for second degree kidnapping, the second count of first degree burglary, breaking and

entering a motor vehicle, misdemeanor larceny, and assault by strangulation. On 23

July 2014, the trial court sentenced defendant to a presumptive-range term of 157 to



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                                   Opinion of the Court



201 months for first degree burglary, assault on a female, false imprisonment, and

injury to real property, a presumptive-range term of 29 to 47 months for attempted

larceny, and a presumptive-range term of 73 to 100 months for attempted common

law robbery, with each term to be served consecutively. Defendant timely appealed

to this Court.

                                      Discussion

      Defendant’s only contention on appeal is that his consecutive sentences for

attempted larceny and attempted common law robbery violate the prohibition on

double jeopardy because both convictions arise out of the same conduct. In response,

the State argues that defendant failed to raise any objection before the trial court

based on double jeopardy, and, therefore, this Court should not review this issue.

      Generally, “ ‘[c]onstitutional questions not raised and passed on by the trial

court will not ordinarily be considered on appeal.’ ” State v. Davis, 364 N.C. 297, 301,

698 S.E.2d 65, 67 (2010) (quoting State v. Tirado, 358 N.C. 551, 571, 599 S.E.2d 515,

529 (2004)). “Furthermore, our appellate rules require a party to make ‘a timely

request, objection, or motion [at trial], stating the specific grounds for the [desired]

ruling’ in order to preserve an issue for appellate review.” State v. Mulder, ___ N.C.

App. ___, ___, 755 S.E.2d 98, 101 (2014) (quoting N.C.R. App. P. 10(a)(1)).

      Even though defendant concedes that he did not raise this double jeopardy

issue below, he asks this Court to arrest judgment on one of his convictions. He claims



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                                   STATE V. MILLER

                                   Opinion of the Court



that this double jeopardy violation amounts to a “fatal defect in the . . . judgment

which appears on the face of the record,” and, therefore, he may raise the double

jeopardy issue for the first time on appeal. State v. Wilson, 128 N.C. App. 688, 691,

497 S.E.2d 416, 419 (1998). We do not agree.

      This Court has examined this exact double jeopardy issue in Mulder and we

find it controlling here. In Mulder, the defendant argued, like the defendant here,

that his convictions for a lesser-included offense and a greater offense violated the

constitutional prohibitions on double jeopardy. ___ N.C. App. at ___, 755 S.E.2d at

100. Also, like defendant here, the defendant in Mulder failed to preserve this issue

before the trial court and requested this Court to arrest the judgment on the basis of

a “fatal defect on the face of the record” pursuant to this Court’s opinion in Wilson.

___ N.C. App. at ___, 755 S.E.2d at 101. However, this Court explicitly rejected this

argument, holding that “[a] double jeopardy problem is distinct from a ‘fatal flaw

which appears on the face of the record.’ ” Id. at ___, 755 S.E.2d at 101. This Court

concluded that by failing to raise the double jeopardy issue below, he had waived the

issue on appeal. Id. at ___, 755 S.E.2d at 101.

      In the alternative, defendant requests, like the defendant in Mulder, that we

invoke Rule 2 of the Rules of Appellate Procedure, so as to suspend the Rules of

Appellate Procedure and review this double jeopardy issue.           “Appellate Rule 2

specifically gives ‘either court of the appellate division’ the discretion to ‘suspend or



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                                    STATE V. MILLER

                                   Opinion of the Court



vary the requirements or provisions of any of [the] rules’ in order ‘[t]o prevent

manifest injustice to a party, or to expedite decision in the public interest.’ ” State v.

Hart, 361 N.C. 309, 315, 644 S.E.2d 201, 204-05 (2007) (quoting N.C.R. App. P. 2).

“The decision to review an unpreserved argument relating to double jeopardy is

entirely discretionary.” Mulder, ___ N.C. App. at ___, 755 S.E.2d at 101. Despite our

discretionary authority to invoke Rule 2, our Supreme Court has directed we do so

“cautiously.” Hart, 361 N.C. at 315, 644 S.E.2d at 205. Given that we find no

“manifest injustice” to defendant or any fact that implicates the “public interest,” we

decline to invoke Rule 2 in this case.

      Even if we were to invoke Rule 2, we would hold that defendant has failed to

show a violation of the Double Jeopardy Clause because each offense at issue involved

a different victim. The indictment alleged that George Hardy was the victim of the

attempted larceny of his keys, while Katie was the victim of an attempted common

law robbery when defendant threatened her with the box cutter in order to get her to

retrieve the keys.

      As a general rule, “it is well established that two or more criminal offenses may

grow out of the same course of action . . . .” State v. Fulcher, 294 N.C. 503, 523, 243
S.E.2d 338, 351 (1978). Furthermore, “even where evidence to support two or more

offenses overlaps, double jeopardy does not occur unless the evidence required to

support the two convictions is identical. If proof of an additional fact is required for



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                                   STATE V. MILLER

                                  Opinion of the Court



each conviction which is not required for the other, even though some of the same

acts must be proved in the trial of each, the offenses are not the same.” State v.

Murray, 310 N.C. 541, 548, 313 S.E.2d 523, 529 (1984). Thus, here, the existence of

two different victims requires an additional fact to be proven for each offense that is

not required to prove the other offense. Furthermore, the attempt to take property

from Katie was carried out “by means of an assault upon her consisting of putting her

in fear of bodily harm by threat of violence[,]” whereas this was not the case with

George Hardy. Likewise, the attempted larceny charge required proof that that the

keys belonged to George Hardy, while proof of ownership was unnecessary to prove

the attempted armed robbery committed against Katie.

      Our courts have applied similar logic in other cases. See State v. Gibbs, 29
N.C. App. 647, 650, 225 S.E.2d 837, 839 (1976) (indicating double jeopardy clause was

not violated where defendant was indicted for two counts of armed robbery where he

took female employee’s purse and also corporation’s money); State v. Johnson, 23 N.C.

App. 52, 56, 208 S.E.2d 206, 209 (1974) (“Here defendants threatened the use of force

on separate victims and took property from each of them. . . . [E]ach separate victim

was deprived of property. The armed robbery of each person is a separate and distinct

offense, for which defendant[] may be prosecuted and punished.”). Furthermore, we

find this logic prevalent in other jurisdictions. See Clay v. State, 593 P.2d 509, 510

(Okla. Crim. App. 1979) (“[I]t is clear that offenses committed against different



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                                   STATE V. MILLER

                                   Opinion of the Court



individual victims are not the same for double jeopardy or dual punishment purposes,

even though they arise from the same episode or transaction.”), overruled in part on

other grounds, Davis v. State, 993 P.2d 124 (Okla. Crim. App. 1999); Gandy v. State,

159 So. 2d 71, 73 (Ala. Ct. App. 1963) (“The facts which appellant insists are

presented by the record show an entirely separate and distinct offense with respect

to each victim. The defense of double jeopardy was not available to the accused.”).

      Although we know of no existing precedent that examines the issue of double

jeopardy under the exact factual situation resulting in the offenses charged here, we

can infer from prior case law that when two different victims are subject to the same

criminal actions resulting in charges of armed robbery and larceny, double jeopardy

is not implicated. In State v. Hurst, 82 N.C. App. 1, 20, 346 S.E.2d 8, 19 (1986), rev'd

on other grounds, 320 N.C. 589, 359 S.E.2d 776 (1987), this Court found that the

charged offenses of larceny and armed robbery were mutually exclusive, and

therefore in violation of double jeopardy, because the offender took “the same goods

from the same person at one time.” (Emphasis added.) Thus, because defendant

committed the first offense of attempted larceny upon entering the Hardys’ home with

the intent of taking and carrying away his keys and then committed the second

separate offense of attempted common law robbery upon threatening Katie with box

cutters in an attempt to take and carry away her grandfather’s keys, defendant could

properly be convicted of and sentenced for both offenses.



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                                     STATE V. MILLER

                                     Opinion of the Court



       Because, however, defendant has not argued any basis for overturning his

convictions that was preserved for appellate review, we hold that defendant received

a trial free of prejudicial error.

       NO ERROR.

       Judges BRYANT and TYSON concur.




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