NO



NO. COA06-640 DISTRICT EIGHT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA )

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V. ) From Wayne

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JAMES LENAIR ALBRITTAIN )

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DEFENDANT-APPELLANT’S BRIEF

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QUESTION PRESENTED

DID THE TRIAL COURT ERR BY FAILING TO DISMISS THE CHARGE OF SECOND DEGREE KIDNAPPING OF EVELYN SMITH FOR INSUFFICIENT EVIDENCE?

STATEMENT OF THE CASE

The Defendant, James Lenair Albrittain, was charged with first degree burglary, three counts of common law robbery, and two counts of robbery with a dangerous weapon on February 17, 2005. Mr. Albrittain was further charged on February 18, 2005 with robbery with a dangerous weapon, and on February 22, 2005 with felonious breaking and entering, common law robbery and second degree kidnapping. Mr. Albrittain was indicted on June 6, 2005 for first degree burglary, four counts of common law robbery, three counts of robbery with a dangerous weapon, felonious breaking and entering, second degree kidnapping and breaking and entering a motor vehicle. Each indictment also alleged the aggravating factor that Mr. Albrittain targeted elderly victims.

Mr. Albrittain pled not guilty to all charges and was tried before a jury during the October 17 through 21, 2005 Criminal Sessions of Superior Court for Wayne County, the Honorable Henry V. Barnette, Jr., Judge presiding. The trial court granted Mr. Albrittain’s motions to dismiss the charges of breaking and entering a motor vehicle [05 CRS 51833] and one count of common law robbery [05 CRS 51691] at the close of the State’s evidence. The jury found Mr. Albrittain guilty of the following: felonious breaking and entering and common law robbery in 05 CRS 51688; robbery with a dangerous weapon in 05 CRS 51689; robbery with a dangerous weapon in 05 CRS 51690; larceny from the person in 05 CRS 51694; robbery with a dangerous weapon in 05 CRS 51709; and breaking or entering, common law robbery and second degree kidnapping in 05 CRS 51832.

Mr. Albrittain stipulated through counsel to the existence of the aggravating factor that he targeted elderly women in all cases except 05 CRS 51709 [one count of robbery with a dangerous weapon]. Mr. Albrittain was sentenced as a Prior Record Level I Offender to the following active terms of imprisonment: An aggravated sentence of 72 months minimum, 96 months maximum for robbery with a dangerous weapon in 05 CRS 51690; an aggravated, consecutive sentence of 72 months minimum, 96 months maximum for robbery with a dangerous weapon in 05 CRS 51689; a presumptive sentence of 64 months minimum, 86 months maximum for robbery with a dangerous weapon in 05 CRS 51709 to run at the expiration of the previous sentence; an aggravated sentence of 16 months minimum, 20 months maximum for common law robbery in Count II of 05 CRS 51688 to run at the expiration of the previous sentence; an aggravated sentence of 8 months minimum, 10 months maximum for felonious breaking and entering in Count I of 05 CRS 51688 to run at the expiration of the previous sentence; a consolidated, aggravated sentence of 31 months minimum, 47 months maximum for second degree kidnapping, felonious breaking and entering and common law robbery in 05 CRS 51832 to run at the expiration of the previous sentence; and an aggravated sentence of 8 months minimum, 10 months maximum for larceny from the person in 05 CRS 51694.

Mr. Albrittain gave notice of appeal of these Judgments in open court to the North Carolina Court of Appeals on October 21, 2005.

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

This is an appeal from the final judgment of the superior court pursuant to N.C.G.S. § 7A-27(b).

STATEMENT OF THE FACTS

The State tried Mr. Albrittain for crimes allegedly committed against Mary Brill, Emily Jean Brown, Lois Williams, Sara Haggins, Doris Davis and Evelyn Smith. The State also presented evidence of other crimes allegedly committed against Velma Holt and Frances Edwards pursuant to N.C.G.S. § 8C-1, Rule 404(b). Mr. Albrittain presented no evidence.

A. The Brill Incident.

On or about February 1, 2005, Mary Brill was bringing her groceries into her apartment in Mount Olive. Tpp. 284-5. As she turned to go back out the door there was a man standing at the open door. The man held a knife and demanded her pocketbook. Tp. 285. The man swung the knife at Brill, grabbed the pocketbook off of her arm and left. Tp. 286. Brill’s assailant left in “an old rugged-looking car.” Tp. 287. Brill’s pocketbook was not recovered. Tp. 290. With the exception that the assailant was male, Brill could provide no further description. Tp. 292.

Major Ralph Schroeder of the Mount Olive Police Department investigated the Brill robbery. Tpp. 311-2. Brill could not provide Schroeder with a detailed description of her assailant. Tp. 321. Brill described the assailant’s vehicle as a dark blue boxy style older model car with chrome all over it. Tpp. 323-4. There was no mention of any dents or scratches to the vehicle. Tp. 324. Schroeder learned during the investigation that Mr. Albrittain lived in Mount Olive. Tpp. 315-6.

B. The Brown Incident.

Emily Jean Brown was 84 years old at the time of the trial and lived alone. Tp. 252. On February 2, 2005, she had been shopping at among other places, the Dollar General store. Tp. 253. After Brown arrived home, she carried a space heater from the trunk of her car into her house. Tp. 254. She noticed a car parked near her house that she thought at the time belonged to the yard man. Tp. 264. Before she could lock her door, a black man was coming inside. Tp. 254; Tp. 255. She could not identify this man. Tp. 256. As Brown backed up to get her purse and give him money, the man grabbed the purse and knocked Brown to the floor. Her head, right arm and hand were injured. Tp. 255; Tp. 262. Brown was told not to call anybody. The man took Brown’s purse with him. Tp. 255. She subsequently called 9-1-1. Tp. 255. None of Brown’s belongings were recovered. Tp. 266.

Doris Shaw is a neighbor of Emily Brown. Tp. 245. On February 2, 2005, Shaw noticed a car parked at Brown’s residence, but that Brown was not a home. Brown eventually pulled into her driveway. Tp. 246. A few minutes later, Shaw noticed that the trunk to Brown’s car was open and the other car was gone. Shaw became concerned and telephoned Brown’s home. A paramedic answer Brown’s telephone. Shaw went to Brown’s home and observed that Brown was bleeding from her head. Tp. 247. Shaw could not provide a description of the vehicle she had seen except that it was medium-sized. Tp. 248.

Delbert Edwards, the Communications Supervisor for the Wayne County Office of Emergency Services, is responsible for the operation of the 9-1-1 Center. Tp. 196. On February 2, 2005 at 6:23 p.m. a call was received at the 9-1-1 Center from the E.J. Brown residence in Goldsboro. Tp. 206.

C. The Williams Incident.

Lois Williams was 82 years old at the time of the trial. Tp. 377. She lived in a retirement home in Goldsboro. Tp. 377. On or about February 3, 2005, Williams had gone to the bank and ate lunch at the K&W cafeteria. After lunch, she purchased some groceries and drove home. As she was unloading the groceries, a man put a knife to her throat and demanded her pocketbook. The man cut the strap on the pocketbook, took it, then ran the blunt end of the knife around her throat and ran away. Tpp. 378-9. The robber left in an older two-tone color car. Tp. 379. Williams’ married name was “Lois Jordan.” She kept in her purse a receipt for a BB&T safety deposit box in this name for sentimental reasons. Tp. 380. Williams identified Mr. Albrittain as her assailant. Tp. 382.

Delbert Edwards testified that on February 3, 2005 at 12:44 p.m., a call was made to the 9-1-1 Center from the L.D. Williams residence in Goldsboro. Tp. 205.

D. The Haggins Incident.

Sarah Haggins was 88 years old at the time of this trial. She resided alone in an apartment complex in Goldsboro. Tp. 154. Beginning around 11:00 a.m. on February 4, 2005, (tp. 179), Haggins went to the Post Office and shopped at the It’s A Buck store and the Dollar General store. Tp. 155. Haggins drove home around 12:30 p.m., (tp. 155), and was unloading packages from her car’s trunk. She heard a car whose motor made noises “like tin cans or something rolling on the street.” Haggins looked up to see a car parking in the complex. Tp. 156. She had seen this car “many times” before at her complex. Tp. 173. Haggins had also seen this car parked at the Dollar General store “plenty of times” before the robbery, (tp. 174), and had seen Mr. Albrittain driving the car. Tp. 175. It was an “older model, faded car” with four doors that looked to be blue. Tpp. 157-8. Haggins also described the car as a “50’s” model whose color was a faded red; it was not black. Tp. 176. Mr. Albrittain, (tp. 155), grabbed Haggins by her right shoulder as she was getting her packages. Tpp. 158-9. Mr. Albrittain had a “big knife” in his right hand which he shoved at Haggins’ stomach. Mr. Albrittain was “making a funny noise and acting like a vicious animal.” Tp. 159. She jumped back and was not cut. Tp. 159. Haggins’ handbag was under her jacket; Mr. Albrittain apparently kept bumping Haggins’ head until he was able to get hold of a strap on the handbag. He took the handbag after cutting the strap with his knife. Tp. 160. Haggins went to her home, activated the home alarm and contacted the police. Tpp. 160-1. She identified a Wachovia Visa card that was in her handbag, (tpp. 180-1), which was used fifteen minutes after the robbery. Tp. 178.

Delbert Edwards identified a report of a panic alarm from the Haggins residence being received on February 4, 2005 at 12:47 p.m. Tp. 201.

Randall West, a fraud investigator for Wachovia Bank determined that Haggins’ debit card had been used at an ATM on February 4, 2005. Tpp. 212-6. Twenty dollars ($20) was obtained for her checking account. Tp. 216. Four hundred dollars ($400) also was obtained using Haggins’ card at a different ATM that day. Tp. 217. An unsuccessful attempt was made to obtain an additional five hundred dollars ($500) from the second ATM. Tp. 217.

Shshauna Smith is an ATM coordinator with the State Employee’s Credit Union [SECU]. Tp. 270. The SECU ATMs employ video cameras to record usage at each ATM. Tpp. 271-2. Smith provided to law enforcement the February 2005 videotapes for a particular ATM. Tpp. 273-6.

E. The Davis Incident.

Doris Davis was 87 years old at the time of the trial. Tpp. 183-4. She lived alone in Eureka. Tpp. 183-4. Davis was getting ready to enter the library in Fremont on February 4, 2005, between 10:15 and 10:30 a.m. She had gone to no other place that day. Tp. 184. As Davis was walking up the library steps, somebody pushed by her and looked in the front door of the building containing the library. Tpp. 184-5. As Davis attempted to enter the library, a black male grabbed the purse off of her left arm. Tp. 185. The man did not say anything to Davis. The robber left the scene in a 10 or 12 year old four-door car which was “two-toned blue.” Tpp. 186-7. She did not notice that the car was making any type of noise. Tp. 195. Davis identified her cell phone which was contained in her purse by the phone number which was taped to its back. Tp. 188; Tp. 190; Tp. 193.

F. The Smith Incident.

Evelyn Smith was 81 years old at the time of the trial. Tpp. 221-2. On February 16, 2005 at approximately 11:00 a.m., she had returned to her house and pulled in to the garage. Mr. Albrittain got out of an older–model dark blue car and asked Smith for directions. Tpp. 223. She noticed that the car “made a racket.” Tp. 224. After talking with Mr. Albrittain, Smith brought groceries from her car into the house. As she turned to lock the door, Mr. Albrittain was standing in her home. She repeatedly asked him to leave. Tp. 225. Mr. Albrittain responded that he was not leaving until he got money. Tpp. 225-6. She was told to sit down and not to move until he left. Tp. 226. Mr. Albrittain eventually took an unknown amount of cash from Smith’s purse, a carton of GCP Ultralite 100 cigarettes from her groceries and then left. Tpp. 226-7. Mr. Albrittain did not display a weapon or threaten Smith. Tp. 234. He did not take her credit cards. Tp. 235. She identified a photograph of the automobile that Mr. Albrittain was driving, (tp. 229), and two packs of cigarettes that were her brand. Tp. 230.

Detective Sergeant Richard Farfour of the Wayne County Sheriff’s Department investigated the Smith incident. Tp. 236. When Mr. Albrittain was arrested, he was in possession of two packs of GPC Ultralite 100 cigarettes. Tpp. 237-8. A partial carton of the same brand of cigarettes was recovered from Mr. Albrittain’s vehicle. Tp. 240.

G. Rule 404(b) Evidence.

Velma Elizabeth Holt was 75 years old at the time of the trial and lived in the Johnston County part of Princeton. Tp. 295. On January 10, 2005, Holt had driven to Goldsboro to eat at a K & W cafeteria. Tp. 295. Upon returning home, Holt saw Mr. Albrittain coming down the street toward her house. Tpp. 296-7. As Holt started to enter her home, Mr. Albrittain approached her asking for directions. Tpp. 297-8. Holt asked Mr. Albrittain to leave three or four times. Tpp. 298-9. Mr. Albrittain snatched Holt’s purse and ran away. It was not recovered. Tp. 299. No weapon was displayed. Tp. 302.

Frances Belle Edwards was 84 years old at the time of trial. Tp. 133. On February 3rd of 2005, she had been shopping at a General Dollar store in Warsaw, North Carolina. Tp. 134; Tp. 141. Ms. Edwards subsequently drove to her house in Warsaw. While Edwards was on her porch, Mr. Albrittain came up to her and asked for directions to Kenansville. Tp. 133; Tp. 135; Tp. 139. Mr. Albrittain jumped onto the porch and said “I don’t want to know the way to Kenansville…I want your pocketbook.” 136. Edwards did struggled to keep her pocketbook, (tp. 154), but Mr. Albrittain “snatched it off” her. Tp. 135. No weapon was observed by Ms. Edwards. Tp. 152. Mr. Albrittain left the scene in an older model four-door car with a “gray bottom and a black top” and a “square boot” or trunk. Tpp. 136-7; Tp.153. This car was not there when Edwards arrived at her home. Tp. 150. Edwards identified her pocketbook, (tp. 142), and a Mobile Gasoline card that was in her purse when it was taken. Tp. 140. Her pocketbook was returned several months later by the police. Tpp. 145-6.

H. Other Law Enforcement Testimony.

Investigator Michael Hortsmann of the Goldsboro Police Department had viewed ATM videotapes and observed a suspect vehicle. Tpp. 416-7. Based on the pattern of the robberies, Hortsmann conducted surveillance at the Dollar General store and Food Lion in Goldsboro. Tp. 399. While conducting surveillance on February 17, 2005, Hortsmann observed an older woman driving out of the parking lot. A blue car appeared to be following the woman’s vehicle. Tp. 420. Hortsmann followed the blue car and noticed that its engine was making a “metallic, clanging noise.” Tp. 421. Hortsmann activated his blue light and siren, but the blue car did not stop. Tp. 424. The blue car continued to drive at about 20 miles per hours as the police followed. The vehicle stopped near Wheels of Goldsboro, where Mr. Albrittain got out and ran. Tp. 425. Mr. Albrittain was arrested after a foot chase. Tp. 426. Mr. Albrittain consented to a search of his home. Hortsmann seized, among other things, a cellular telephone which he determined belonged to Doris Davis. Tp. 428.

Identification Technician Jeffrey Benjamin Clifford of the Goldsboro Police Department was called to the Wheels of Goldsboro parking lot on February 17, 2005 to process a crime scene. Tpp. 329-30. He observed a gray or dark-colored blue four-door Chrysler Imperial sedan. The car was an older model, had damage to the left-front bumper and faded paint on the hood. Tp. 331; Tp. 333. A knife was on the car’s front passenger floor board. Tp. 331; Tp. 335. A carton of Ultralite cigarettes was observed. Tp. 362. Among other items recovered from the car were a BB&T safe deposit receipt belonging to a Lois Jordan, (tpp. 339-40), a paper with what appeared to have Holt’s license plate number written on it, (tpp. 342-4), a pawn receipt and power bill in the name of Mr. Albrittain, (tp. 345), a Wachovia Visa debit card belonging to Haggins, (tp. 346), and a Mobil Exxon gas card belonging to Francis Edwards. Tp. 347. A cellular telephone previously identified as belonging to Davis was recovered from Mr. Albrittain’s home. Tp. 354.

ARGUMENT

THE TRIAL COURT ERRED BY FAILING TO DISMISS THE CHARGE OF SECOND DEGREE KIDNAPPING OF EVELYN SMITH FOR INSUFFICIENT EVIDENCE.

Assignments of Error Nos. 3 and 4, Rp. 71.

Evelyn Smith testified that, after she put down her groceries on the kitchen table, Mr. Albrittain was standing in her house. She repeatedly asked him to leave. Tp. 225. Mr. Albrittain responded, “I’m not leaving until I get what I want,” which was money. Tpp. 225-6. Smith further testified:

I asked him to turn off the tea kettle. It was making a lot of noise, and he did. And then I walked toward the family room to see if I could get out of my house, but the doors were locked. So I couldn’t get out, and I walked back towards the kitchen, and he--- he didn’t actually push me, but he backed me up into the family room, pointed to a chair, told me to sit down and not to move until he left. And I sat down.

Tp. 226. Mr. Albrittain asked for Smith’s purse, to which she responded that it might still be in the car. Mr. Albrittain took the keys, went out of the house and returned stating that there was no purse in the car. Tp. 226. She told him the purse might be in the dining room on one of the chairs. Smith had remained seated where she was told. Tp. 227. Mr. Albrittain returned with Smith’s purse, removed the cash from the purse, took a carton of cigarettes from the groceries and left. Tp. 227.

Mr. Albrittain moved the trial court to dismiss the kidnapping charge for insufficient evidence. The trial court denied this motion. Tpp. 475-98. Mr. Albrittain was subsequently convicted of common law robbery and second degree kidnapping of Smith. He also was convicted of felonious breaking and or entering. Rp. 35. These charges were consolidated and Mr. Albrittain was sentenced on the most serious charge, i.e., second degree kidnapping, to an aggravated term of imprisonment of 31 months minimum, 47 months maximum. Rp. 60. Mr. Albrittain respectfully contends that, under the circumstances of this case, the trial court should have allowed his motion to dismiss the kidnapping charge.

A. Standard of Review.

Upon a motion to dismiss, the trial court must determine whether there is substantial evidence to establish each element of the offense charged and to identify the defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651-2 (1982). The trial court’s function is to determine whether the evidence will permit a reasonable inference that the defendant is guilty of the crimes charged. State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61 (1991). All of the evidence must be considered in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). While the trial court's findings of fact are conclusive on appeal if supported by competent evidence, the trial court's conclusions of law are reviewed de novo. See State v. Hyatt, 355 N.C. 642, 653, 566 S.E.2d 61, 69 (2002)(admissibility of defendant’s statements).

B. Legal Analysis.

North Carolina General Statute Section 14-39 provides, in pertinent part:

(a) Any person who shall unlawfully confine, restrain, or remove from one place to another, any other person 16 years of age or over without the consent of such person…shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of:

(2) Facilitating the commission of any felony or facilitating flight of any person following the commission of a felony.

The “restraint” or “removal from one place to another” specified in N.C.G.S. § 14-39 requires a removal or restraint that is separate and apart from that which is an inherent, inevitable part of the commission of another felony. State v. Irwin, 304 N.C. 93, 103, 282 S.E.2d 439, 446 (1981). To permit separate and additional punishment where there has been only a technical asportation, inherent in the other offense perpetrated, would violate a defendant's constitutional protection against double jeopardy. Id.

On the other hand, if the asportation is a separate act independent of the originally committed criminal act, a trial court must consider additional factors such as whether the asportation facilitated the defendant's ability to commit a felony offense, or whether the asportation exposed the victim to a greater degree of danger than that which is inherent in the concurrently committed felony offense. State v. Ripley, 360 N.C. 333, 340, 626 S.E.2d 289, 293-4 (2006).

1. Mr. Albrittain’s Restraint or Removal of Ms. Smith During the Common Law Robbery was a Technical Asportation.

Mr. Albrittain entered Ms. Smith’s home and demanded money. Ms. Smith tried to sneak out of the house, but could not find an open door. As she returned to the area where Mr. Albrittain was present, she was “backed up” but not pushed to the family room where she was told to sit down. Ms. Smith was asked about the location of her purse as she sat. Mr. Albrittain eventually found the purse, took the money from it, took the carton of cigarettes from the groceries and left the house. Aside from being told to sit down and not move, Ms. Smith was not ordered to any other place.

The robbery began the moment Mr. Albrittain entered the Smith home and concluded when he left after taking the money and cigarettes. See Ripley, 360 N.C. at 340, 626 S.E.2d at 294 (Armed robbery began the moment a firearm was drawn). Clearly, the “backing up” into the family room where Ms. Smith was ordered to sit down was an inherent part of the common law robbery. See Ripley, 360 N.C. at 334, 341, 626 S.E.2d at 289, 294 (Movement of victim from outside of door into motel lobby a “technical asportation”); State v. Ross, 133 N.C.App. 310, 314, 515 S.E.2d 252, 255 (1999)(Victim being ordered into bedroom was “inherent” part of the robbery). Under these circumstances, the trial court should have granted Mr. Albrittain’s motion to dismiss the charge of second degree kidnapping since the State failed to present substantial evidence of the crime of second degree kidnapping. Ripley, 360 N.C. at 341, 626 S.E.2d at 294; Earnhardt, 307 N.C. at 65-66, 296 S.E.2d at 651-2. To permit Mr. Albrittain to be sentenced to additional punishment beyond that permissible for common law robbery violates his constitutional protection against double jeopardy. Irwin, 304 N.C. at 103, 282 S.E.2d at 446. Mr. Albrittain’s conviction for second degree kidnapping should therefore be vacated.

2. Mr. Albrittain’s Restraint or Removal of Ms. Smith did not Expose Her to any Greater Danger than the Common Law Robbery.

In the event that this Court determines that Ms. Smith’s restraint or removal was not a “technical asportation,” Mr. Albrittain contends that his kidnapping conviction should be vacated since the asportation did not expose Ms. Smith to any degree of danger than the common law robbery.

Where the asportation is a separate act independent of the originally committed criminal act, the trial court must consider whether the asportation exposed the victim to a greater degree of danger than that which is inherent in the concurrently committed felony offense. Ripley, 360 N.C. at 340, 626 S.E.2d 293-4. Mr. Albrittain’s ordering Ms. Smith to sit in the family room while he stole her money and cigarettes was a restraint which did not expose her to “greater danger than that inherent in the [common law] robbery itself.” State v. Beatty, 347 N.C. 555, 559, 495 S.E.2d 367, 369-70 (1998); Ross, 133 N.C.App. at 315, 515 S.E.2d at 255. The trial court erred by denying Mr. Albrittain’s motion to dismiss the second degree kidnapping charge. Id. Mr. Albrittain therefore is entitled to have his second degree kidnapping conviction vacated.

CONCLUSION

For the reasons set forth herein, Mr. Albrittain is entitled to have his conviction for second degree kidnapping vacated and to be resentenced accordingly.

Respectfully submitted, this the _____ day of July, 2006.

______________________________

Brian Michael Aus

PO Box 1345

Durham, NC 27702

(919) 688-3704

ATTORNEY FOR DEFENDANT-APPELLANT

CERTIFICATE OF COMPLIANCE WITH N.C.R.App.P. 28(j)(2)

Undersigned counsel hereby certifies that this brief is in compliance with N.C.R.App.P. 28(j)(2) in that it is printed in 14 point Times New Roman font and contains no more than 8750 words in the body of the brief, footnotes and citations included, as calculated by the word-processing software used to prepare the brief, Microsoft Word.

_______________________________

Brian Michael Aus

CERTIFICATE OF FILING AND SERVICE

Undersigned counsel hereby certifies that he filed the original of the foregoing brief by mailing it this day to the Clerk of the Court of Appeals, and that he has served the foregoing brief upon all parties to the appeal by mailing a copy thereof by United States Mail, first class postage affixed thereto to counsel for the State of North Carolina:

James Wellons

Assistant Attorney General

PO Box 629

Raleigh, NC 27602-0629.

This the ______ day of July, 2006.

_____________________________

Brian Michael Aus

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