Summary
holding no error where the instruction given to the jury was "virtually identical" to the pattern instruction and thus gave the substance of the requested instruction
Summary of this case from State v. WaltersOpinion
No. COA03-439
Filed 4 May 2004
1. Criminal Law — instructions — admissions
There was no error in a robbery prosecution in the trial court's instruction that there was evidence tending to show that defendant had admitted one or more facts relating to the crime charged and that the jurors should consider all of the circumstances under which any admissions were made. Although defendant contended that this was tantamount to telling the jury that he had committed the robbery, the instruction was virtually identical to the Pattern Jury Instruction requested by the State, it was supported by the testimony, and it made no mention of any particular element of the offense or that defendant had admitted the robbery.
2. Appeal and Error — nonstatutory aggravating factors — no objection needed
An assignment of error to the finding of nonstatutory aggravating factors was considered even though defendant did not object at trial. The court should know that a defendant does not want the court to find an aggravating factor and an objection is not necessary to preserve the question for review.
3. Sentencing — nonstatutory aggravating factors — vulnerable victim — estimation of age and strength by court — findings insufficient
There was insufficient evidence in a sentencing hearing for robbery for the court to find the nonstatutory aggravating factor that the crime was committed against a victim who was smaller, older, and weaker, and that defendant took not only money but the vehicle which provided the victim's income. When estimating a victim's age and the relative size and strength of individuals, the court must make relevant findings unless there is evidence in the record to allow meaningful appellate review. Here there was not.
4. Sentencing — nonstatutory aggravating factors — course of conduct — other convictions also used for prior record level
The trial court did not err when sentencing defendant for robbery by finding the non-statutory aggravating factor that the crime was part of a course of conduct involving violence, including at least two previous robberies. Defendant's previous convictions involved violence by their nature, and there is no authority precluding the use of prior convictions to aggravate the sentence when those convictions were also used to determine defendant's prior record level.
5. Sentencing — nonstatutory aggravating factors — testimony of another crime — not reasonably related to crime for which sentence imposed
The nonstatutory aggravating factor that defendant had testified that he had sold counterfeit controlled substances to the Victim was not reasonably related to robbery, the crime for which defendant was being sentenced.
Judge LEVINSON concurring in part and dissenting in part.
Appeal by defendant from judgment entered 25 September 2002 by Judge Forrest Donald Bridges in Cleveland County Superior Court. Heard in the Court of Appeals 28 January 2004.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Charles J. Murray, for the State. The Teeter Law Firm, by Kelly Scott Lee, for defendant-appellant.
Shawn Lamont Borders ("defendant") appeals a judgment sentencing him in the aggravated range to 146 to 185 months imprisonment for robbery with a dangerous weapon. Specifically, defendant takes issue with (I) a jury instruction, and (II) the trial court's finding of three non-statutory aggravating factors. For the reasons stated herein, we conclude there was no error as to the jury instruction, but that defendant's case must be remanded for a new sentencing hearing due to the trial court committing error by finding certain aggravating factors.
On 16 July 2001, defendant was indicted for committing a robbery with a dangerous weapon. Defendant's trial began on 23 September 2002, during which the following evidence was offered.
The State's evidence tended to show that defendant called for a taxicab at approximately 1:30 a.m. on the morning of 21 June 2001. When the taxicab arrived, defendant got in the back seat of the vehicle and subsequently held a knife with a five-inch blade to the neck of the driver, Gerald Wyatt ("Wyatt"). Defendant then proceeded to threaten and physically assault Wyatt, before taking approximately seventy-six dollars in cash from under the driver's seat, pushing Wyatt out of the taxicab, and driving off. Wyatt immediately located a police officer and told the officer that he was robbed by defendant, a man he recognized as someone he had given several taxicab rides to over the last year. Wyatt's taxicab was found approximately two days later.
Defendant was arrested on 30 June 2001. Detective Tracy Curry ("Detective Curry") testified that, following defendant's arrest, defendant stated he had actually
asked [Wyatt] for the forty dollars that he owed him. [Wyatt] told him that [he] did not have the money, but [defendant] had seen [Wyatt] try to hide money under the seat.
And that he got out of the cab, took the money from under the seat, told [Wyatt] that he should not lie to him again and left the area.
Defendant's evidence tended to show that Wyatt paged defendant on the morning in question, indicating to defendant that Wyatt wanted to arrange a drug deal. Wyatt subsequently picked defendant up in his taxicab and requested two rocks of crack cocaine for forty dollars, which defendant provided. As Wyatt smoked the crack cocaine, he realized that it was counterfeit and demanded his money back. Defendant refused and exited the taxicab. In order to seek "revenge" on defendant, Wyatt later told the police that defendant had robbed him. Defendant's earlier cross-examination of Wyatt had revealed that Wyatt did have a number of prior drug arrests, but no drug convictions. Additional facts relevant to this appeal will be provided as necessary in analyzing defendant's assigned errors.
I.
By his first assignment of error, defendant argues the trial court erred by giving a jury instruction that implied he had committed the crime for which he was accused. Specifically, at the charge conference, the State proposed that Jury Instruction Number 104.60 be submitted to the jury, to which defendant objected on the grounds that he had not admitted to one or more of the elements of the crime charged. The trial court noted defendant's objection and gave the charge to the jury as follows:
There is evidence in this case that tends to show that the Defendant has at one time or another admitted one or more facts relating to the crime charged in this case. Now if you find, that the Defendant has made any such a[n] admission, then you should consider all the circumstances under which it was made in determining whether it was a truthful admission and the weight which you will give to it.
Defendant contends that by giving the instruction, the trial court basically told the jury that he had committed robbery with a dangerous weapon. We disagree.
"A trial court is not required to give a requested instruction in the exact language of the request, but where the request is correct in law and supported by the evidence in the case, the court must give the instruction in substance." State v. Summey, 109 N.C. App. 518, 526, 428 S.E.2d 245, 249 (1993). Here, the instruction given to the jury was "virtually identical" to Jury Instruction Number 104.60. Id. (citing State v. Green, 305 N.C. 463, 290 S.E.2d 625 (1982)). See also 1 N.C.P.I. — Crim. 104.60 (1970). The instruction made no specific mention of any particular element of the offense charged or that defendant had admitted robbing Wyatt with a dangerous weapon — only that the evidence tended to show an admission by defendant of " one or more facts relating to the crime charged[.]" Specifically, those "facts" included (1) testimony from Detective Curry that defendant told him that although Wyatt had tried to hide money from defendant, defendant "took the money from under the seat, . . . and left the area[,]" and (2) testimony from defendant that he had "snatched" money away from Wyatt, then "got out of the cab and left." Their testimony provided the evidence needed to support some of the elements of robbery with a dangerous weapon, i.e., an unlawful taking of another's personal property. See N.C. Gen. Stat. § 14-87(a) (2003). Thus, the requested instruction was correctly stated in substance and supported by the evidence, resulting in no error by the trial court.
II.
Defendant also assigns error to the trial court's finding that there was evidence to support three non-statutory aggravating factors, which were used to sentence defendant in the aggravated range. Initially, we note that the State argues defendant did not object to the non-statutory aggravating factors at trial and therefore, should be denied the opportunity to assign error to them on appeal. However, our Supreme Court has held that preserving this question for appellate review by objecting is unnecessary because it is clear that a defendant does "not want the court to find [an] aggravating factor and the court kn[ows] or should . . . know it." See State v. Canady, 330 N.C. 398, 402, 410 S.E.2d 875, 878 (1991). We therefore address defendant's assigned error.
"The State has the burden of proving the existence of a nonstatutory aggravating factor by a preponderance of the evidence. The State must also show that it is reasonably related to the purposes of sentencing." State v. Hargrove, 104 N.C. App. 194, 200, 408 S.E.2d 757, 761 (1991). The decision to depart from the presumptive range and sentence a defendant in the aggravated range is in the discretion of the court. N.C. Gen. Stat. § 15A-1340.16(a) (2003). In the instant case, defendant takes issue with the following three non-statutory aggravating factors found by the trial court.
A.
Defendant contends there was no evidence offered to support, as a factor in aggravation, that the "crime was committed against a victim who was smaller, older and weaker, taking not only money but also a vehicle that provided the victim's means of income." In State v. Ackerman, 144 N.C. App. 452, 461-62, 551 S.E.2d 139, 145 (2001), this Court held that the trier of fact can estimate a defendant's age when necessary for establishing an element of the offense charged after having ample opportunity to view that defendant and when presented with the benefit of other circumstantial or direct evidence. We conclude such a determination may be made by a trial court as well. However, when estimating the respective ages of individuals, and by analogy the comparative strengths and sizes of individuals, the trial court must make relevant findings of fact, unless there is direct or circumstantial evidence in the record that allows for a meaningful view to be conducted by an appellate court.
Here, the transcript provides no findings of fact that allow this Court to review how the trial court found this non-statutory aggravating factor. Further, there was no direct or circumstantial evidence offered at trial comparing the physical characteristics of defendant and Wyatt. The only evidence that remotely inferred the respective strengths of the two men came from the following testimony of Wyatt: (1) defendant "got out of the car . . ., got me by the pants in the front, pulled me from the car and shook me down[;]" and (2) defendant "took his hands and he pushed me in the chest and I fell in the street." However, Wyatt's testimony alone is insufficient to allow this Court to definitively conclude the trial court acted properly by finding this non-statutory aggravating factor.
B.
Next, defendant contends there was no evidence offered that the "crime was part of a course of conduct by the defendant involving violence against other persons, including at least 2 previous robberies." Our Supreme Court has previously held that evidence establishing a pattern or course of violent conduct by a defendant is an acceptable non-statutory aggravating factor. See State v. Avery, 315 N.C. 1, 337 S.E.2d 786 (1985). Here, defendant was convicted of robbery with a dangerous weapon based on evidence that tended to show he physically assaulted and took money from Wyatt. The trial court was aware that defendant had previously been convicted of numerous offenses, which included assaulting a government employee, resisting public officers, and twice committing common law robbery. By the very nature of those convictions, violence was either threatened or occurred. Thus, while defendant's course of violent conduct could have been shown through other acts that did not result in convictions, see Avery, the convictions themselves merely evidenced they were predicated on violence.
As an aside, Our Legislature has clearly provided that convictions used to support an habitual felon indictment cannot be used to determine a defendant's prior record level. See N.C. Gen. Stat. § 14-7.6 (2003); State v. Lee, 150 N.C. App. 701, 564 S.E.2d 597, disc. review denied, 356 N.C. 171, 568 S.E.2d 856 (2002). However, we have found no statutory authority or case law precluding prior convictions (punishable by more than 60 days' confinement, see State v. Harper, 96 N.C. App. 36, 43, 384 S.E.2d 297, 301 (1989)) used to determine a defendant's prior record level from also being used to aggravate that defendant's sentence. While we note this distinction in the instant case because defendant's two prior robbery convictions mentioned in this non-statutory aggravating factor were also used to determine his prior record level, we further note that if the Legislature intended to prohibit this occurrence it could have done so by enacting legislation similar to that regarding habitual felon indictments.
C.
Defendant finally contends that the trial court erred in finding as a non-statutory aggravating factor that, "[d]efendant testified that, on the alleged date, he sold counterfeit controlled substances to the victim. By necessity, either this testimony is false or defendant has committed another felony with which he has not been charged." We fail to see how this aggravating factor was reasonably related to the purposes of sentencing.
N.C. Gen. Stat. § 15A-1340.12 (2003) provides:
The primary purposes of sentencing a person convicted of a crime are to impose a punishment commensurate with the injury the offense has caused, taking into account factors that may diminish or increase the offender's culpability; to protect the public by restraining offenders; to assist the offender toward rehabilitation and restoration to the community as a lawful citizen; and to provide a general deterrent to criminal behavior.
Our case law clearly suggests that in order for an aggravating factor to be reasonably related to the purposes of sentencing it must be reasonably related to the crime for which defendant was convicted. See State v. Ledford, 315 N.C. 599, 625, 340 S.E.2d 309, 325 (1986) (holding that "the trial judge . . . erred by finding two aggravating circumstances — that the victim was very old and that the offense was especially heinous, atrocious, and cruel — which [we]re, under the facts of th[at] case, totally unrelated to the crime of felonious larceny"); State v. Skinner, ___ N.C. App. ___, ___, 590 S.E.2d 876, 881 (2004) (holding that there was insufficient evidence to support that the victim's age was a factor in aggravation because it had no bearing on her vulnerability to larceny). Here, whether defendant committed another felony or perjury, neither of those crimes were reasonably related to his conviction for robbery with a dangerous weapon.
Accordingly, non-statutory aggravating factors "A" and "C" found by the trial court were not supported by a preponderance of the evidence. Therefore, we must vacate defendant's aggravated sentence of robbery with a dangerous weapon and remand for a new sentencing hearing.
Remand for resentencing.
Judge McCULLOUGH concurs.
Judge LEVINSON concurs in part and dissents in part in a separate opinion.