STATE OF NORTH CAROLINA
v. Chatham Coun
ty
No. 96CRS565
KENNETH EUGENE ALSTON
Attorney General Roy Cooper, by Assistant Attorney General
Michael C. Warren, for the State.
Mary March Exum for defendant appellant.
McCULLOUGH, Judge.
Defendant was charged with robbery with a dangerous weapon.
The State's evidence showed that on 5 November 1995, defendant,
Elmond Burgess, and Kelly Wiley were riding around together when
defendant brought up the idea of robbing the Byrd's Food Store in
Siler City, North Carolina. The three then drove to the store to
conduct surveillance. Defendant provided military camouflage
clothing, which the three conspirators put on in preparation for
the robbery. Wiley, however, backed out of the enterprise because
he was concerned he would be recognized by employees of the store.
As a result, Derrick Headen was recruited to replace Wiley, and was
given the camouflage clothing originally given to Wiley. Defendant
obtained firearms to be used in the commission of the robbery. Around 8:00 p.m. on 5 November 1995, the three conspirators
robbed the Byrd's Food Store at gunpoint. Burgess acted as the
lead gunman and collected some $7,266.50 in cash from store
personnel. Headen stood at the store entrance and acted as the
armed lookout, and defendant acted as the driver of the getaway
car. After the robbery, the three divided the robbery proceeds,
and gave some of the money to defendant's relatives.
On or about 8 November 1995, at the request of Pittsboro
Police Chief Larry Hipp, defendant was taken into custody in Siler
City for questioning about other robberies that had occurred in
Pittsboro, North Carolina. During questioning, defendant told
Chief Hipp that he knew something about the Byrd's Food Store
robbery in Siler City. Chief Hipp then contacted Siler City Police
Detective Doug Stewart by telephone, whereupon defendant gave the
detective information about the robbery, including the sequence of
events leading up to and following the robbery. Defendant told
Detective Stewart the identities of those involved, and stated that
he provided the guns used in the robbery. At the conclusion of the
telephone interview, defendant said the reason he divulged this
information to Detective Stewart was that he never set foot on
Byrd's Food Store property. Therefore, defendant believed no
charges could be brought against him.
Defendant presented evidence through the testimony of
relatives that tended to refute his co-conspirator Burgess'
testimony. Colon Alston, defendant's grandfather, denied being
paid for the use of any guns, in direct conflict with Burgess'testimony. Further, defendant's mother and aunt testified that,
contrary to Burgess' testimony, no one left any masks or guns at
her house on the evening of 5 November 1995. Defendant's mother
also testified defendant never gave her any money on that evening.
At the conclusion of the trial, the jury found defendant
guilty of robbery with a firearm. After finding one aggravating
and one mitigating factor, the trial court found the aggravating
factor outweighed the mitigating factor, and sentenced defendant to
an aggravated term of 75-99 months' imprisonment. By order entered
28 September 2000, this Court allowed defendant's petition for writ
of certiorari to review the judgment of the trial court.
The sole issue before this Court is whether the trial court
erred in sentencing defendant to an aggravated term of
imprisonment. N.C. Gen. Stat. § 15A-1340.16(a) (1999) provides
that the State bears the burden of proving, by a preponderance of
the evidence, the existence of an aggravating factor. The defendant
bears a similar burden to prove the existence of a particular
mitigating factor. Id. The trial court need only consider a
mitigating or aggravating factor if the evidence in support of that
factor is uncontradicted, substantial, and manifestly credible.
State v. Daniel, 319 N.C. 308, 312, 354 S.E.2d 216, 218 (1987).
The trial court is given great latitude in making its decision
regarding the existence of a mitigating or aggravating factor.
State v. Barton, 335 N.C. 741, 750, 441 S.E.2d 306, 311 (1994).
It is well settled that the balance
struck in weighing the aggravating against the
mitigating factors is a matter within thesound discretion of the trial judge and will
not be disturbed unless it is “manifestly
unsupported by reason,” or “so arbitrary that
it could not have been the result of a
reasoned decision.”
State v. Howard, 99 N.C. App. 347, 348-49, 393 S.E.2d 139, 141
(1990) (quoting State v. Parker, 315 N.C. 249, 258-59, 337 S.E.2d
497, 503 (1985) (citations omitted)).
Defendant first contends the trial court erred in finding, as
a factor in aggravation, that he induced others to participate in
the commission of the offense under N.C. Gen. Stat. § 15A-
1340.16(d)(1) (1999). Defendant further asserts that such a
finding was not supported by the evidence. We disagree.
The testimony of defendant's co-conspirator Kelly Wiley was
corroborated by Detective Stewart's testimony regarding Wiley's
statement to him. Wiley testified that defendant introduced the
idea of robbing Byrd's Food Store while he, defendant, and Burgess
were all riding around on 5 November 1995, and that defendant
provided everyone involved with military camouflage for the
robbery. Co-conspirator Elmond Burgess testified that defendant
provided the camouflage clothing and guns used in the robbery, and
delegated duties for each participant. Defendant, in his statement
to Detective Stewart, admitted that he had the guns stashed. In
light of this “uncontradicted, substantial and manifestly credible”
evidence, the trial court did not err in finding that defendant
induced others to participate in the 5 November 1995 robbery of the
Siler City Byrd's Food Store.
Defendant also contends that the trial court erred in notfinding as a factor in mitigation that he voluntarily acknowledged
wrongdoing to a law enforcement officer under N.C. Gen. Stat.
§ 15A-1340.16(e)(11) (1999). Defendant asserts that there was
evidence to support such a finding. Again, we disagree.
To be entitled to a finding under N.C. Gen. Stat. § 15A-
1340.16(e)(11), there must be an affirmative acknowledgment, not
only of the fact, but also of wrongdoing. In State v. Smith, 321
N.C. 290, 362 S.E.2d 159 (1987), our Supreme Court held that a
defendant who moves to suppress a confession thereby repudiates
that confession and is not entitled to use evidence of that
confession to prove a mitigating factor under N.C. Gen. Stat.
§ 15A-1340.16(e)(11). See also State v. Cummings, 353 N.C. 281,
543 S.E.2d 849 (2001) (holding that the defendant could not use a
confession to prove a mitigating factor after he had repudiated
that confession).
In the present case, defendant made a statement to Detective
Stewart based upon his mistaken belief that he was not criminally
culpable because he never set foot on Byrd's Food Store property.
Defendant, however, subsequently repudiated that statement by
moving to suppress it. Accordingly, there was not “uncontradicted,
substantial and manifestly credible” evidence before the trial
court to support a mitigating factor under N.C. Gen. Stat. § 15A-
1340.16(e)(11). Thus, the trial court did not err in failing to
find that defendant voluntarily acknowledged wrongdoing to a law
enforcement officer at an early stage in the process.
Significantly, the trial court did find as a mitigating factor thatdefendant aided in the apprehension of another felon under N.C.
Gen. Stat. § 15A-1340.16(e)(7) (1999).
We further conclude that the trial court did not abuse its
discretion in determining that the subject aggravating factor
outweighed the mitigating factor, and in sentencing defendant to an
aggravated term of imprisonment. Having so concluded, we hold that
defendant received a fair trial, free from prejudicial error.
No error.
Chief Judge EAGLES and Judge TIMMONS-GOODSON concur.
Report per Rule 30(e).
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