Opinion
No. COA15–344.
01-19-2016
STATE of North Carolina v. Khari Dewayne McCLELLAND, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Nicholaos G. Vlahos, for the State. Center for Death Penalty Litigation, Inc., Vernetta R. Alston, for Defendant–Appellant.
Attorney General Roy Cooper, by Assistant Attorney General Nicholaos G. Vlahos, for the State.
Center for Death Penalty Litigation, Inc., Vernetta R. Alston, for Defendant–Appellant.
Opinion
Appeal by Defendant from judgment entered 26 September 2014 by Judge Christopher W. Bragg in Rowan County Superior Court. Heard in the Court of Appeals 7 October 2015. Rowan County, No. 14 CRS 53057.
HUNTER, JR., ROBERT N., Judge.
Khari McClelland (“Defendant”) appeals following a jury verdict convicting him of felony assault inflicting serious injury on an employee at a local detention facility, in which he received a sentence of 23 to 37 months imprisonment. Defendant contends the following: (1) the trial court violated N.C. Gen.Stat. § 8C–1, Rule 701 (“Rule 701”) by allowing detention officers to give lay testimony about what the slang term “riding” means; (2) the trial court erred by giving an acting in concert jury instruction; and (3) the trial court erred by instructing the jury on an aggravating factor under N.C. Gen.Stat. § 15A–1340.16(d)(2), which states “[t]he defendant joined with more than one other person in committing the offense and was not charged with committing a conspiracy.” For the following reasons we hold the Defendant's contentions are not errors and would not merit relief.
I. Facts and Procedural History
On 9 June 2014, a Rowan County grand jury indicted Defendant for felony assault inflicting serious injury on an employee at a local detention facility, in violation of N.C. Gen.Stat. § 14–37.4. On 25 August 2014, a grand jury returned a superseding indictment for the same offense and the State gave Defendant notice of aggravating factors it sought to prove. The case was called for trial 22 September 2014. The State's evidence tended to show the following.
N.C. Gen.Stat. § 14–34.7(b) enumerates a Class F felony for assault on a detention facility employee resulting in a “serious bodily injury,” and subsection 14–34.7(c) creates a Class I felony for a similar assault resulting in “physical injury.” N.C. Gen.Stat. §§ 14–34.7(b)–(c). As our Court held in State v. Crawford, 167 N.C.App. 777, 606 S.E.2d 375 (2005), the distinction between “serious bodily injury” and “serious injury” does not make an indictment fatally defective.
On 2 June 2014, Defendant lived in Pod 1 of the Rowan County Sheriff's Office Detention Center. Around 7:45 pm, Jamie Travis (“Officer Travis”), a correctional officer in the detention center, conducted routine cell searches with his training officer, Robert Hartsell (“Officer Hartsell”). While searching cells in Pod 1, the officers heard banging on a door connecting to the day room. They went to the door and saw an inmate, Quentin Mathis (“Mathis”), through a window in the door. Officer Hartsell opened the door and Mathis walked through, followed by inmate Darius Smotherson (“Smotherson”) and Defendant. Mathis cursed at Officer Hartsell while Defendant and Smotherson mumbled. Officer Hartsell allowed the men to use the restroom and then lined them up on the Pod wall to discuss their grievances. Once against the wall, Mathis became “verbally abusive,” and Officer Hartsell warned him that he would be placed on lockdown if he continued. As a precaution Officer Hartsell called for backup. Mathis continued cursing at Officer Hartsell, and Officer Travis ordered him to turn around to be handcuffed. Mathis refused to turn around despite repeated commands.
Prior to the assault, Officer Travis was employed by the North Carolina Department of Correction for ten years. He spent the first six years as a correctional officer, and the later four years as a correctional sergeant. The day of the assault, 2 June 2014, marked Officer Travis's fourth day of employment in the Rowan County Sheriff's Office Detention Center.
At the time of trial, Officer Hartsell had been employed as a correctional officer in the Rowan County Sheriff's Office Detention Center for approximately seventeen years.
Defendant told Mathis, “I'm riding with you,” and became boisterous, distracting Officer Travis. Then, Smotherson said he would “ride” with Mathis and Defendant. The officers became concerned when they heard the men say they would “ride” with one another.
Over defense counsel's objection, Officer Travis testified he heard the term “riding” “lots [of times] before in the prison system.” Officer Travis defined “riding” to mean the men were “going to stick together and share the same fate in whatever happens.” Over defense counsel's objection, Officer Hartsell testified he “heard [the] term several times [on several different occasions] in the past ... while working at the detention facility.” Based on his experience, Officer Hartsell defined “riding” as “the two parties that have stated they are going to ride along are going to suffer any penalties or follow any actions that the initial person has decided they want to adhere to.”
When the men said they would “ride,” Officer Travis ordered Defendant to turn around to be handcuffed, and Defendant responded, “f––– you.” Officer Travis pulled out his pepper spray and sprayed Defendant in one eye. Defendant punched Officer Travis and tackled him to the floor. Mathis and Smotherson “charg[ed] towards” them, and the “glob” of men got on top of Officer Travis, throwing a barrage of punches. Officer Hartsell intervened and sprayed Mathis and Smotherson with pepper spray. He pushed Smotherson away and wrestled with Mathis until backup arrived. The incident lasted thirty to forty seconds.
Officer Travis sustained a subdural hematoma, concussion, broken nose, neck injury, chipped tooth, temporary injury to his vision and hearing, and lacerations from the assault. Afterwards, he suffered from chronic headaches and neck pain, preventing him from working in his full capacity for several weeks. Officer Travis underwent brain scans, nose surgery, and other medical treatment for his injuries. The State's expert witness, neurologist Dr. Cheryl D. Bushnell, testified Officer Travis suffered “a traumatic brain injury and a subdural hematoma as a result of [the] assault.”
Detective Billy Basinger, an investigator from the Rowan County Sheriff's Office, testified he interviewed Officer Travis in the hospital, took pictures of the injuries, and watched the jail's surveillance video of the assault. Based on this information, Detective Basinger obtained arrest warrants for Defendant, Mathis, and Smotherson. Detective Basinger was present when Defendant was served with the arrest warrant, and he heard Defendant brag to other inmates about Officer Travis's injuries. At trial, the State introduced the surveillance video and photographs into evidence and published them for the jury. The State rested its case in chief.
Defendant elected to testify in his own defense stating that neither. he, nor Smotherson, said they were going to “ride.” His understanding of the term “ride” is as follows: Generally, “riding” means “you're going somewhere,” but Defendant had not heard it used in jail before because “you can't go anywhere in the jail....” When Officers Travis and Hartsell talked to Mathis against the wall, they did not “explain the reason behind telling [Mathis] to submit to the handcuffs.” Defendant told the officers “if you're locking him down for banging on the doors, then you have to lock all the inmates down that's [sic] in the day room too.” Smotherson agreed, stating “you're locking them down, you gotta [sic] lock all of us down, too.” Then, Officer Travis punched Defendant in the face with “the handcuff around [the front part of] his hand,” and pepper sprayed Defendant. The pepper spray did not distort Defendant's vision and he looked back at Officer Travis, who was standing with his hands “braced.” Thinking Officer Travis was going to deal another blow, Defendant “swung on him.” Officer Travis fell on top of Defendant, and Defendant pushed himself away so he could assume a prone position on the floor, “because [he] knew that was the position that [he] needed to be in, as if not posing a threat.”
On cross-examination, the State read a written statement Defendant authored for an administrative jail hearing concerning the assault. Defendant wrote, “So me letting my ego get the best of me, I swung on [Officer Travis]. [Officer Travis] also tried to swing on me first ... All of this could have been resolved if the two officers wouldn't have tried to lock us down for nothing.” Acknowledging the written statement, Defendant testified, “I never had anything to do with the other inmates and their actions; that didn't have anything to do with me.”
The defense rested its case and the court held the charge conference. The State requested an acting in concert instruction under North Carolina Pattern Jury Instruction Crim. 202.10. Defense counsel objected and submitted a special written instruction. The court denied Defendant's requested instruction and instructed the jury using N.C.P.I.—Crim. 202.10. The jury unanimously found Defendant guilty of assault inflicting a serious injury on an employee at a local detention facility.
The second phase of trial began to determine aggravating factors alleged by the State. The State alleged the following N.C. Gen.Stat. § 15A–1340.16(d) aggravating factors: (1) Defendant induced others to participate in the commission of the offense or occupied a position of leadership or dominance of other participants in the commission of the offense, section 15A–1340.16(d)(1); (2) Defendant joined with more than one person in committing the offense and was not charged with committing a conspiracy, section 15A–1340.16(d)(2); (3) the offense was committed to disrupt or hinder the lawful exercise of a governmental function or the enforcement of law, section 15A–1340.16(d)(5); (4) the offense was committed against or proximately caused serious injury to a present or former employee of the Division of Adult Correction, or jailer, while engaged in the performance of that person's official duties or because of the exercise of that person's official duties, section 15A–1340.16(d)(6); and (5) Defendant, during the ten-year period prior to the commission of the offense has been found by a court to be in willful violation of the conditions of probation imposed pursuant to a suspended sentence, section 15A–1340.16(d)(12a).
The State called Officer Travis who testified to the following. One hour before the assault, Mathis was on the upper tier of his housing pod. He called to Officer Travis, “CO [correctional officer], we will see what you're made of tonight.” Officer Travis said nothing, and walked away. Next, the State called Marlene Mills, assistant clerk of court in the Rowan County Clerk's Office. Through Ms. Mills, the State introduced a copy of a suspended sentence form, which was certified by the State seal as a true and accurate copy. The form listed “Khari Dewayne McClelland” as the defendant, a black male with a 22 June 1990 birthday. The form listed identical information matching Defendant's name, race, gender, and birthday. Further, the form listed Iredell County case number 11 CR 55343, in which Defendant was convicted on 7 November 2011 of misdemeanor breaking and entering, and received a forty-five day suspended sentence for twelve months of supervised probation. Defendant's probation was revoked in Iredell County on 24 July 2012. The State rested and Defendant did not offer any evidence regarding the aggravating factors.
The court began the charge conference and defense counsel objected to the court instructing the jury on the aggravating factors. The court overruled defense counsel's objection and delivered N.C.P.I.—Crim. 204.05, the model instruction for bifurcated trials with aggravating factors at issue. The court recited the model instruction as follows:
Having found the defendant guilty of felony assault inflicting serious injury of an employee at a detention facility, do you find from the evidence beyond a reasonable doubt the existence of the following aggravating factors?
One, the defendant joined with more than one person in committing the offense and was not charged with committing a conspiracy. Two, the defendant has, during the 10–year period prior to the commission of the offense for which the defendant is being sentenced, been found by a court of this state to be in willful violation of the conditions of probation imposed pursuant to a suspended sentence, or been found by the post-release supervision and parole commission to be in willful violation of a condition of parole or post-release supervision imposed pursuant to release from incarceration.
You are instructed that the same evidence cannot be used as a basis for finding more than one aggravating factor. If you find from the evidence beyond a reasonable doubt, [that Defendant achieved one or both of the aggravating factors] ... you will write, “yes,” in the space after the[ ] aggravating factors.
After the jury charge, defense counsel renewed its objection and the court overruled it. The parties stipulated that Defendant was a prior record level II for sentencing purposes of the Class F felony. Defendant testified about mitigating factors before the court. He spoke about his eight children, family ties, community involvement, job history, and education. Then, he authenticated the written statement he authored for the administrative jail hearing, in which he accepted responsibility for punching Officer Travis.
The parties stipulated to the record level by signing a prior record level worksheet. The worksheet lists information about Defendant's 7 November 2011 Iredell County conviction that is identical to Marlene Mills's testimony.
The jury returned a unanimous verdict finding the two aggravating factors. Defense counsel moved to dismiss the aggravating factors for lack of sufficient evidence, and the court denied the motion. The court found the following mitigating factors: Defendant voluntarily acknowledged his wrongdoing in connection with the offense to a law enforcement officer at an early stage of the criminal process; Defendant supports his family; Defendant has a support system in the community; and Defendant has a positive employment history. The court found the aggravating factors were proven beyond a reasonable doubt, and outweighed the mitigating factors. The court imposed a sentence in the aggravated range, of 23 to 37 months imprisonment. Defendant timely entered his notice of appeal.
II. Standard of Review
“[W]hether a lay witness may testify as to an opinion is reviewed for abuse of discretion.” State v. Washington, 141 N.C.App. 354, 362, 540 S.E.2d 388, 395 (2000), disc. review denied, 353 N.C. 396, 547 S.E.2d 427 (2001). “A trial court abuses its discretion if its determination is manifestly unsupported by reason and is so arbitrary that it could not have been the result of a reasoned decision.” State v. Sharpless, 221 N.C.App. 132, 137–38, 725 S.E.2d 894, 898 (2012) (citations and quotation marks omitted). “In our review, we consider not whether we might disagree with the trial court, but whether the trial court's actions are fairly supported by the record.” Id. at 138, 725 S.E.2d at 899 (citation omitted). “ ‘Evidentiary errors are harmless unless a defendant proves that absent the error a different result would have been reached at trial.’ “ Id. (citing State v. Ferguson, 145 N.C.App. 302, 307, 549 S.E.2d 889, 893 (2001)).
“[Arguments] challenging the trial court's decisions regarding jury instructions are reviewed de novo by this Court.” State v. Osorio, 196 N.C.App. 458, 466, 675 S.E.2d 144, 149 (2009). “As to the issue of jury instructions, we note that choice of instructions is a matter within the trial court's discretion and will not be overturned absent a showing of abuse of discretion.” State v. Nicholson, 355 N.C. 1, 66, 558 S.E.2d 109, 152, cert. denied, 537 U.S. 845, 154 L.Ed.2d 71 (2002).
In reviewing alleged sentencing errors, our Court reviews “ ‘whether [the] sentence is supported by evidence introduced at the trial and sentencing hearing.’ “ State v. Deese, 127 N.C.App. 536, 540, 491 S.E.2d 682, 685 (1997) (quoting N.C. Gen.Stat. § 15A–1444(a1) (Cum.Supp.1996)). “Aggravating factors must be submitted to a jury, which must determine whether the State has proven the factors beyond a reasonable doubt.” State v. Borges, 183 N.C.App. 240, 244, 644 S.E.2d 250, 253, disc. review denied, 361 N.C. 570, 650 S.E.2d 816 (2007), cert. denied, 552 U.S. 1126 (2008).
III. Analysis
A. Rule 701 Lay Witness Testimony
Defendant contends Officers Travis's and Hartsell's lay testimony lack sufficient bases to define “riding.” Defendant contends the admission of this testimony manifestly prejudiced him at trial because the court denied his motion to dismiss, instructed the jury on acting in concert, and permitted the State's presentation of aggravating factors. We disagree.
Rule 701 of the North Carolina Rules of Evidence, allows a lay witness to testify in the form of opinions or inferences which are “(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.” N.C. Gen.Stat. § 8C–1, Rule 701 (2015). Commentary to Rule 701 provides the following: “Limitation (a) [requires] that lay opinion be based on firsthand knowledge or observation. Limitation (b) is phrased in terms of requiring testimony to be helpful in resolving issues.' “ Id.
Rule 701 of the North Carolina Rules of Evidence is “indistinguishable” from Rule 701 of the Federal Rules of Evidence. State v. Collins, 216 N.C.App. 249, 256, 716 S.E.2d 255, 260 (2011) (citations omitted). Therefore, we find persuasive authority in federal interpretation of Rule 701. Id.
Federal Rule 701 states the following:
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
Fed. R. Evd. 701 (2011). A key difference between Rule 701 lay testimony and Rule 702 expert testimony, is that “lay opinion testimony must be based on personal knowledge.” U.S. v. Johnson, 617 F.3d 286, 292 (4th Cir.2010) (emphasis in original) (citations and quotation marks omitted). A proper foundation for lay testimony must be “based on the perception of the witness,” whereas expert testimony must possess some specialized knowledge or skill or education....” Id. at 292–93 (citations and quotation marks omitted).
The distinction between a lay witness's “perception” and an expert witness's “specialized knowledge” is often at issue in drug conspiracy cases. In these cases, the government uses lay testimony from law enforcement officers to decipher enigmatic drug slang. Several Circuits have excluded lay testimony when the officer uses the totality of the investigation to form his or her opinion long after hearing the slang term. See Johnson, 617 F.3d at 292–93 (excluding agent's lay opinion about slang used in wiretapped phone calls because he formed his opinion using interviews after he intercepted the phone calls); U.S. v. Peoples, 250 F.3d 630, 641 (8th Cir.2001) (“When a law enforcement officer is not qualified as an expert by the court, her testimony is admissible as lay opinion only when the law enforcement officer is a participant in the conversation, has personal knowledge of the facts being related in the conversation, or observed the conversations as they occurred.”); see also U.S. v. Garcia, 413 F.3d 201, 216 (2d Cir.2005) (excluding agent's lay opinion because it was based “in whole or in part” on “his specialized training and experience” and not his personal perception of an in-person drug transaction). Other Circuits have allowed such testimony, focusing on the officer's personal experience in the investigation. See U.S. v. Rollins, 544 F.3d. 820, 832 (7th Cir.2008) (allowing agent's testimony founded upon “things he perceived from monitoring intercepted calls, observing during drug transactions of the[ ] conspirators, and talking with the cooperating conspirators ... as the investigation rolled into the trial preparation phase.”); see also United States v. Jayyousi, 657 F.3d 1085 (11th Cir.2011).
We look to persuasive authority in U.S. v. Johnson, 617 F.3d 286 (4th Cir.2010). In Johnson, an agent gave lay testimony about his interpretation of slang terms used during wiretapped phone calls between coconspirators. Id. at 293. When the defense objected, the government only “elicited testimony ... [of the agent's] credentials and training, not his observations from the surveillance employed in th[e] case.” Id. (emphasis in original). Further, the agent “admitted that he did not participate in the surveillance,” and “rather gleaned information from interviews with suspects ... after listening to the phone calls.” Id. (emphasis in original). Therefore, the Fourth Circuit held the agent's “post-hoc assessments cannot be credited as a substitute for the personal knowledge and perception required under Rule 701.” Id.
In the case sub judice, Officers Travis and Hartsell were present and participating in the conversation as Defendant told Mathis “I'm riding with you.” They formed their understanding of the term in real-time, drawing from personal experiences past, and feeling “concern” when they heard Defendant speak. Their testimony is not based on any specialized training or experience that disqualifies them as lay witnesses. Moreover, their testimony is not formed on post-hoc observations or investigations that some Circuits would find improper. Their testimony is properly admitted as lay testimony under current State case law as well. See State v. Bunch, 104 N.C.App. 106, 110, 408 S.E.2d 191, 194 (1991) (“As long as the lay witness has a basis of personal knowledge for his opinion, the evidence is admissible.”). Therefore, we hold the trial court did not abuse its discretion in allowing the officers' lay testimony.
Further, our Supreme Court has held lay testimony may support an acting in concert theory of guilt in criminal cases. State v. Bishop, 343 N.C. 518, 540–41, 472 S.E.2d 842, 853 (1996). In Bishop, the State offered two lay witnesses' testimony to establish a codefendant acted at the direction of the defendant. Id. at 540, 472 S.E.2d at 853. The witnesses worked with the defendant and codefendant, saw them interact, and heard their conversations. Id. The witnesses' testimony was rationally based on the witnesses' perception, and helped to clarify a fact at issue, the acting in concert theory of guilt. Id. Like the lay witnesses in Bishop, Officer Travis's and Hartsell's testimony satisfies Rule 701 and is proper evidence for the State's acting in concert theory.
Lastly, we note Defendant testified contrary to Officers Travis and Hartsell. Defendant claimed he, nor anyone else, used the term “riding” on the day of the assault. He was unfamiliar with the term as the officers described it, and defined it to convey one's intent to travel with another person. This conflicting testimony raises matters of credibility which is only a consideration for the court “when the only testimony justifying submission of the case to the jury is inherently incredible and in conflict with the ... State's own evidence.” State v. Wilson, 293 N.C. 47, 51, 235 S.E.2d 219, 221 (1977) (citations omitted). No such conflict exists in the officers' testimony here. Any issue concerning their credibility, or the weight to be given to their testimony, is a matter for the jury.
B. Acting In Concert Jury Instruction
Defendant contends the court's acting in concert instruction is not supported by sufficient evidence because Defendant punched Officer Travis separate from Mathis's and Smotherson's attack. We disagree.
Our Supreme Court defined the acting in concert doctrine as follows:
If 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 of the crime 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 or as a natural or probable consequence thereof.
State v. Barnes, 345 N.C. 184, 233, 481 S.E.2d 44, 71 (1997) (citations and quotation marks omitted).
The State must prove two elements for an acting in concert theory: (1) the defendant was present at the scene of the crime; and (2) the defendant acted together with another person who committed the necessary acts to constitute the crime, pursuant to a common plan or purpose. State v. Jackson, 215 N.C.App. 339, 345, 716 S.E.2d 61, 66 (2011) (citation omitted). Uncontroverted evidence in the record satisfies the first requirement, since Defendant was present at the scene of the assault.
As to the second requirement, a common plan or purpose may “be shown by circumstances accompanying the unlawful act and conduct of the defendant subsequent thereto.” State v. Westbrook, 279 N.C. 18, 42, 181 S.E.2d 572, 586 (1971), death penalty vacated sub nom, Westbrook v. North Carolina, 408 U.S. 939 (1972). “The communication or intent to aid, if needed, does not have to be shown by express words of the defendant but may be inferred from his actions and from his relation to the actual perpetrators.” State v. Sanders, 288 N.C. 285, 290–91, 218 S.E.2d 352, 357 (1975), cert. denied, 423 U.S. 1091, 96 S.Ct. 886, 47 L.Ed.2d 102 (1976) (citation omitted).
It is not contested that Defendant verbally came to Mathis's aid before punching Officer Travis. The State's evidence suggests Defendant told Mathis “I'm riding with you.” Immediately thereafter, Smotherson affirmed his intent to “ride” with Defendant and Mathis. Defendant and Officer Travis exchanged blows and fell to the floor, prompting Mathis and Smotherson to rush over and add punches of their own. Based on the State's evidence, Defendant's words and actions, it can be inferred that Defendant acted in concert with Mathis and Smotherson. Therefore, the trial court did not abuse its discretion by instructing the jury on an acting in concert theory.
C. Aggravating Factors
Defendant contends “the same evidence was presented to prove both [his] guilt under the acting in concert theory and an aggravating factor [under N.C. Gen.Stat. § 15A–1340.16(d)(2)....” In light of our Supreme Court's holding in State v. Facyson, 367 N.C. 454, 758 S.E.2d 359 (2014), we disagree.
The State bears the burden of proving an aggravating factor exists beyond a reasonable doubt, and Defendant bears the burden of proving a mitigating factor exists by a preponderance of the evidence. N.C. Gen.Stat. § 15A–1340.16(a). If a jury finds one or more aggravating factors exist and the trial court determines the aggravating factors outweigh the mitigating factors, the trial court may impose a sentence in the statutorily-prescribed aggravated range. Facyson, 367 N.C. at 457, 758 S.E.2d at 362 (citing N.C. Gen.Stat. § 15A–1340.16(b)). Section 15A–1304.16(d) limits the evidence used to prove an aggravating factor, stating, “[e]vidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation, and the same item of evidence shall not be used to prove more than one factor in aggravation.”
Reviewing prior case law, the Facyson Court held “when an aggravating factor is established by evidence that is in addition to the evidence necessary to prove an element of the underlying offense, the aggravating factor may properly be considered under section 15A–1340.16(d).” Id. at 459, 758 S.E.2d at 363 (citation omitted). The Court noted acting in concert is “when two or more persons act together in pursuance of a common plan or purpose....” Id. at 460, 758 S.E.2d at 363 (emphasis in original) (citations omitted). The Court compared this to the section 15A–1340.16(d)(2) aggravating factor, which requires proof “the defendant joined with at least two other individuals in the commission of a crime.” Id. (emphasis in original) (citation omitted). “Thus, by definition ... section 15A–1340.16(d)(2) requires evidence that the defendant joined with at least two other individuals to commit the offense, [and acting in concert] only requires proof that the defendant joined with at least one other person.” Id.
In light of Facyson, the State's evidence conforms to N.C. Gen.Stat. § 15A–1304.16(d). Therefore, the trial court had statutory authority to impose an aggravated range sentence under N.C. Gen.Stat. § 15A–1304.16(b), because the jury found two aggravating factors beyond a reasonable doubt, and the court found the aggravating factors outweighed the mitigating factors. We hold Defendant's sentence is supported by the evidence.
IV. Conclusion
For the foregoing reasons we hold there is
NO ERROR.
Judges GEER and DILLON concur.
Report per Rule 30(e).