STATE OF NORTH CAROLINA
v
.
Pitt County
No. 99 CRS 64973
DANNY RAY CARMON
Attorney General Roy Cooper, by Assistant Attorney General,
Diane A. Reeves, for the State.
Jonathan E. Jones, for defendant-appellant.
EAGLES, Chief Judge.
Danny Ray Carmon (“defendant”) appeals from judgment entered
on a jury verdict finding him guilty of first degree burglary.
After careful consideration of the briefs and record, we find no
error.
At trial, the State's evidence tended to show that on the
evening of 7 September 1999, Thomas Coghill (“Coghill”), a 76 year
old man, placed his pants which contained approximately $220.00 on
a kitchen chair in his home. Coghill went to bed between 10:00
p.m. and 10:30 p.m. and the next morning, he could not locate his
pants or his money. On the evening of 10 September 1999, Coghill
again placed his pants which contained approximately $7.00 on a
chair in the kitchen. At approximately 11:30 p.m., Coghill heardthe storm door, which leads from the garage to the kitchen, open.
Coghill got up and went outside but did not hear anything. Coghill
observed that a tire on his truck had been punctured and that his
cellular phone from his truck was missing.
Coghill told Charlie Lee Ward (“Ward”), one of his employees,
about the burglaries. On 11 September 1999, Ward brought Dexter
Cannon (“Cannon”) to see Coghill. Cannon told Coghill that
defendant was the person who had broken into Coghill's home on 7
and 10 September 1999. On 12 September 1999, Cannon told Coghill
that defendant was planning another attempt for that night. Later
that day, Coghill learned that defendant would have a knife.
Coghill and Jimmy Galloway (“Galloway”) waited in Coghill's home on
the evening of 12 September 1999. Coghill and Galloway sat in the
office which was located next to the kitchen. At approximately
10:00 p.m., Coghill heard defendant open the kitchen door and then
open the office door. Defendant fled when he saw Galloway fire his
shotgun.
Defendant was charged with three counts of first degree
burglary for 7, 10, and 12 September 1999. The matter came to
trial at the 28 August 2000 Criminal Session of Pitt County
Superior Court before Judge W. Russell Duke, Jr. The jury returned
a verdict of guilty for first degree burglary in 99 CRS 64973, the
12 September 1999 incident, and verdicts of not guilty for the
remaining two first degree burglary charges. Defendant was
sentenced in the aggravated range to a minimum term of imprisonment
of 146 months to a maximum term of 185 months. Defendant appeals. On appeal, defendant contends that the trial court erred by
alleging an aggravating factor on its own accord and using the
aggravating factor as a basis for sentencing defendant in the
aggravated range. After careful consideration, we discern no
error.
Defendant contends that the trial court swore Coghill in and
questioned him about his physical abilities without any request
from the State. Defendant argues that the trial court made no
inquiry as to whether Coghill was targeted due to his age or
condition and that no evidence was presented at trial to show that
Coghill was chosen due to his age or physical condition. Defendant
contends that the State did not meet their burden of establishing
the existence of the aggravating factor by a preponderance of the
evidence. Defendant further argues that the trial court made no
findings of fact that Coghill was targeted because of his age or
physical infirmity. Defendant also argues that he was denied the
opportunity to offer rebuttal evidence. We are not persuaded.
“'When a defendant assigns error to the sentence imposed by
the trial court, our standard of review is “whether [the] sentence
is supported by evidence introduced at the trial and sentencing
hearing.”'” State v. Choppy, 141 N.C. App. 32, 42, 539 S.E.2d 44,
51 (2000), appeal dismissed and disc. review denied, 353 N.C. 384,
547 S.E.2d 817 (2001) (citations omitted).
We begin by noting that at a sentencing hearing, the trial
court may call a witness on its own initiative. State v. Rollins,
131 N.C. App. 601, 608, 508 S.E.2d 554, 558 (1998); G.S. §15A-1334(b). G.S. § 15A-1334(b) “remains in effect notwithstanding
enactment of the [Structured Sentencing Act].” Rollins, 131 N.C.
App. at 608, 508 S.E.2d at 558.
Next, this Court has previously held “that in sentencing
proceedings under the [Structured Sentencing Act], the trial court
may properly find non-statutory aggravating factors not
specifically requested by the State whether the circumstances
supporting such factors are presented at trial, if the defendant
pleads not guilty, or at the sentencing hearing.” Id. at 607, 508
S.E.2d at 558.
First, at sentencing under the FSA, the
trial court was obligated to “consider all
circumstances that are both transactionally
related to the offense and reasonably related
to the purposes of sentencing . . . .” This
requirement was held to be mandatory under the
FSA regardless of whether the factors were
expressly listed under G.S. § 15A-1340.4(a)(1)
and "regardless of whether the State
specifically request[ed] a finding in this
regard.”
Under the FSA, moreover, the trial court
properly relied upon circumstances brought out
at trial in determining the presence of
aggravating factors, even though the State did
not present evidence of such circumstances at
the sentencing hearing. Finally, the trial
court was “not required to ignore the facts
and evidence of the case,” but rather was to
consider uncontradicted and credible evidence
of aggravating factors.
The foregoing general principles
enunciated in cases involving sentencing under
the FSA are equally applicable to sentencing
proceedings under the SSA.
Id. at 606, 508 S.E.2d at 557 (citations omitted). Here, the aggravating factor found by the trial court was a
statutory factor. G.S. § 15A-1340.16(d)(11) allows the trial court
to find as an aggravating factor that “[t]he victim was very young,
or very old, or mentally or physically infirm, or handicapped.”
G.S. § 15A-1340.16(d)(11). Here, the trial court found that “[t]he
victim was: d. physically infirm.”
“The court shall consider evidence of aggravating or
mitigating factors present in the offense that make an aggravated
or mitigated sentence appropriate, but the decision to depart from
the presumptive range is in the discretion of the court.” G.S. §
15A-1340.16(a). The State has the burden of proving the existence
of aggravating factors by a preponderance of the evidence. Id.;
State v. Easter, 101 N.C. App. 36, 41, 398 S.E.2d 619, 622 (1990).
However, we see no reason why the trial court should ignore or
disregard credible evidence which becomes apparent to it in the
course of the trial or is properly before it during a sentencing
hearing.
Defendant further contends that the evidence does not support
the existence of the aggravating factor. Defendant alleges that
the evidence is insufficient to show that defendant targeted
Coghill due to his age or physical condition. We are not
convinced.
At the sentencing hearing, the trial court found as an
aggravating factor that the 76 year old Coghill was “physically
infirm.” “The policy underlying this aggravating factor is to
deter wrongdoers from taking advantage of a victim because of hisage or mental or physical infirmity.” State v. Deese, 127 N.C.
App. 536, 540, 491 S.E.2d 682, 685 (1997).
A victim's age does not make a defendant more
blameworthy unless the victim's age causes the
victim to be more vulnerable than he or she
otherwise would be to the crime committed
against him or her, as where age impedes a
victim from fleeing, fending off attack,
recovering from its effects, or otherwise
avoiding being victimized.
State v. Hartman, 344 N.C. 445, 477, 476 S.E.2d 328, 346 (1996)
(quoting State v. Hines, 314 N.C. 522, 525, 335 S.E.2d 6, 8
(1985)), cert. denied, 520 U.S. 1201, 137 L. Ed. 2d 708 (1997)
(emphasis added). “Age should not be considered as an aggravating
factor in sentencing unless it makes the defendant more blameworthy
than he or she already is as a result of committing a violent crime
against another person.” Hines, 314 N.C. at 525, 335 S.E.2d at 8.
The rationale applied to age can properly be applied to
physical infirmity. Here, the evidence showed that defendant
worked for Coghill two years before the burglary, that defendant
lived three miles from Coghill, and that Coghill “had been knowing
[defendant] for years.” At the sentencing hearing, the trial court
stated that “[b]ecause it takes so long for you to get up here in
an infirm condition, I am going to have the bailiff take a Bible
back to you . . . .” The trial court then asked Coghill the
following questions:
THE COURT: You walk with a cane?
MR. COGHILL: Yes, sir.
THE COURT: You have to be assisted?
MR. COGHILL: Yes, sir. Well, I mean, yeah,
at times, yes.
THE COURT: Well, you've had to be assisted
in here every time I've seen
you?
MR. COGHILL: Yeah, yeah.
During the trial, Coghill testified that he has had hip
replacements, “trouble with [his] feet,” and that he “move[s] slow,
because of [his] operation.”
Coghill's physical condition made him more vulnerable to the
burglary. His physical condition made it more likely that he could
not prevent or resist the crime, flee, or chase defendant.
Coghill's physical condition “made him vulnerable and an inviting
target . . . .” Hartman, 344 N.C. at 478, 476 S.E.2d at 346.
Also, “[t]here is no requirement that the trial court set out
particularized findings in support of those factors which it finds
in aggravation. Each factor must be supported by a preponderance
of the evidence.” State v. West, 103 N.C. App. 1, 12, 404 S.E.2d
191, 199 (1991) (citations omitted). The trial court made written
findings of the aggravating factors that were present in the
offense. The aggravating factors were supported by a preponderance
of the evidence.
Further, counsel for defendant was asked twice if he had any
questions for Coghill at the sentencing hearing. Defendant's
counsel was asked after Coghill was sworn but before Coghill was
questioned and defendant's counsel was asked again if he had any
questions after the trial court finished examining Coghill. Onboth occasions, defendant's counsel stated that he did not have any
questions.
The trial court did not commit error in swearing in Coghill,
asking Coghill questions, and finding the aggravating factor of
physical infirmity on its own initiative based on the evidence
presented at trial and at the sentencing hearing. Accordingly, we
discern no error.
No error.
Judges HUDSON and BRYANT concur.
Report per Rule 30(e).
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