Heard in the Court of Appeals November 3, 2014
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Paul M. Green, for Defendant.
BELL, Judge. Chief Judge MCGEE and Judge Robert C. HUNTER concur.
Appeal by defendant from judgments entered 20
September 2013 by Judge James U. Downs in Buncombe County Superior Court, Buncombe County. No. 10 CRS 55849, 55852-53.
Defendant Joseph Ortiz appeals from a judgment sentencing him to life imprisonment for his conviction of first degree sexual offense and a consolidated judgment sentencing him to a consecutive term of 146 to 185 months imprisonment for convictions of robbery with a dangerous weapon, felony breaking and entering, assault with a deadly weapon, and attaining habitual felon status. On appeal, Defendant raises three issues. First, Defendant contends that the trial court erred in allowing the State to proceed on an aggravating factor that was not alleged in the indictment. Second, Defendant contends that, should this Court determine that the State was not required to include the aggravating factor in the indictment, the trial court erred in denying Defendant's motion to dismiss the aggravating factor for insufficient evidence. Third, Defendant argues that the trial court erred in entering judgment and imposing sentence for both Defendant's conviction of robbery with a dangerous weapon and the lesser-included offense of assault with a deadly weapon. In that we find error and remand Defendant's first degree sexual offense judgment for resentencing, we will not address Defendant's second argument.
I. Factual Background
A. State's Evidence
In July 2009, Stacey moved from Indianapolis, where she was getting her PhD in clinical psychology, to a downtown apartment in Asheville, North Carolina. Defendant was a neighbor of Stacey's, and had made Stacey uncomfortable when they encountered each other in the common areas of the apartment complex. For example, when Stacey returned from being out of town over the Thanksgiving holiday, Defendant asked her where her car had been for the number of days Stacey had been gone. Stacey thought it odd that Defendant would have paid attention to her car and had noted how long it had not been parked in the parking area.
On Friday, 21 May 2010, Stacey came home from work and took a nap prior to meeting friends for dinner. She woke up around 6:00 p.m. and went to the bathroom. While in the bathroom, Stacey heard a loud pounding at her door. When she opened the door, Defendant, wearing a ski mask and
brandishing a knife, forced himself into the apartment, at which point ...