STATE OF NORTH CAROLINA
v. Pasquotank County
No. 00 CRS 2445
MARCUS CONELL ALSTON,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Mary Penny Thompson, for the State.
James R. Gilreath, Jr., for defendant-appellant.
HUDSON, Judge.
Defendant Marcus Conell Alston was charged with first degree
rape. Defendant tendered a plea of guilty and stipulated, through
counsel, to the following narration of the evidence by the State:
On 20 April 2000, between 11:00 and 11:30 a.m., defendant
approached a female victim
(See footnote 1)
at her residence in Elizabeth City,
North Carolina on three separate occasions. Initially, the victim
encountered defendant on her enclosed back porch, when he asked if
he could mow the victim's lawn. When the victim responded
negatively, defendant left, only to return a second time to ask forthe names of the victim's neighbors so that he could cut their
grass. Defendant returned a third time ostensibly to leave his
telephone number so that the victim could call him if she ever
needed someone to cut her grass. The victim asked defendant to
leave. She thereafter left home to go to a 2:00 p.m. appointment.
When the victim returned to her residence at about 3:45 p.m.,
she began to work outside in her backyard. After working in the
backyard for awhile, the victim decided to go inside through the
back porch, where defendant was again standing. The victim loudly
demanded that defendant leave, whereupon defendant grabbed the
victim and a struggle ensued. Defendant wrestled the victim to the
floor, and brandishing a box cutter, defendant threatened to kill
the victim if she did not remain quiet. Defendant then dragged the
victim into the kitchen of the residence, where he placed duct tape
over the victim's mouth and taped her hands together. After taking
$2.00 from the victim's purse, defendant made several attempts to
digitally penetrate her. Defendant subsequently raped the victim.
Defendant spoke briefly to the victim, before binding her legs with
duct tape and leaving the scene.
During the sentencing hearing, the State submitted a victim
impact statement and a statement of medical expenses less insurance
reimbursement. Defendant, through counsel, argued that the court
should find as mitigating factors that he had accepted
responsibility for his conduct, that he made payments to help raise
his son, and that he had a difficult childhood. The State argued
for several aggravating factors including severe injury, homeinvasion, and premeditation and deliberation. After hearing the
arguments of counsel, the trial court found as an aggravating
factor that defendant “acted with sleuth, premeditation and
deliberation, lying in wait for an opportunity to commit the
offense.” The court found no mitigating factors and sentenced
defendant to an aggravated term of 420-513 months imprisonment.
Defendant appeals.
By his sole assignment of error on appeal, defendant argues
that the trial court erred in finding as an aggravating factor that
he “acted with stealth, premeditation and deliberation, lying and
waiting for the opportunity to commit the offense.” Defendant
argues that the State did not present competent evidence to support
such a finding. We disagree.
“The State bears the burden of proving by a preponderance of
the evidence that an aggravating factor exists.” N.C. Gen. Stat.
§ 15A-1340.16(a) (1999). A stipulation by defense counsel that the
prosecutor may state the evidence during entry of a guilty plea
allows the statement to be used as evidence to support the finding
of an aggravating factor. State v. Mullican, 95 N.C. App. 27, 381
S.E.2d 847 (1989), aff'd, 329 N.C. 683, 406 S.E.2d 854 (1991).
The use of the nonstatutory factor found by the court in the
instant case was specifically adopted for rape cases in State v.
Ruff, 127 N.C. App. 575, 579-81, 492 S.E.2d 374, 376-77 (1997),
rev'd on other grounds, 349 N.C. 213, 505 S.E.2d 579 (1998). See
also State v. Hammond, 118 N.C. App. 257, 263, 454 S.E.2d 709, 713
(1995) (finding in a rape case that there was sufficient evidenceof premeditation where defendant waited for his victim near her
office with scissors and electrical cord). Our Supreme Court has
defined the terms “premeditation” and “deliberation” as follows:
Premeditation means that the act was thought
out beforehand for some length of time,
however short, but no particular amount of
time is necessary for the mental process of
premeditation. Deliberation means an intent
to kill, carried out in a cool state of blood,
in furtherance of a fixed design for revenge
or to accomplish an unlawful purpose and not
under the influence of a violent passion,
suddenly aroused by lawful or just cause or
legal provocation. The phrase “cool state of
blood” means that the defendant's anger or
emotion must not have been such as to overcome
the defendant's reason.
State v. Elliott, 344 N.C. 242, 267, 475 S.E.2d 202, 212 (1996),
cert. denied, 520 U.S. 1106, 137 L. Ed. 2d 312 (1997) (internal
quotation marks and citations omitted). Premeditation and
deliberation are rarely established by direct evidence, and are
most often proved by circumstantial evidence. State v. Leazer, 353
N.C. 234, 238, 539 S.E.2d 922, 925 (2000).
The facts, as narrated by the State and with the consent of
the defendant, tend to show that defendant approached the victim
three times between 11:00 and 11:30 a.m., under the guise of
soliciting work. The first conversation took place on the victim's
enclosed back porch. On each occasion, the victim declined
defendant's offer to perform yard work for her or her neighbors.
After defendant's third visit, the victim asked him to leave. The
victim left the residence to go to a 2:00 p.m. appointment,
returning around 3:45 p.m. At some time subsequent, defendant
returned to the victim's home, where the victim encountered him fora second time on her enclosed back porch. Defendant then subdued
the victim with the use of a box cutter that he brought with him.
Defendant wrestled the victim to the back porch floor and dragged
her into the kitchen, where he taped her mouth and hands with duct
tape that he brought with him. After taking $2.00 from the
victim's purse, defendant asked her who was in the house and what
time someone would be home. When the victim held up five fingers
(to indicate that someone would be arriving home at 5:00 p.m.),
defendant pulled her dress up and attempted to digitally penetrate
her. Defendant then raised the victim's knees to her chest and
raped her. He spoke briefly with her after the rape and then bound
her legs with duct tape and left. Defense counsel did not object
to the State's recitation of the facts.
Defendant argues that the trial court improperly relied on
unsworn statements made by the prosecutor about feces on the
property that may have been left by defendant to find the existence
of the subject aggravating factor. It is well settled that the
trial court, which sits as finder of fact, is presumed to disregard
incompetent evidence in making its decision. State v. Allen, 322
N.C. 176, 185, 367 S.E.2d 626, 631 (1988). We conclude that even
without consideration of the prosecutor's statements about the
presence of human feces in the victim's yard, the trial court had
before it sufficient circumstantial evidence to support the
inference that defendant “acted with sleuth, premeditation and
deliberation, lying in wait for an opportunity to commit the
offense.” Specifically, the time between defendant's initialcontact with the victim on the morning of 20 April 2000 and his
later assault and robbery, along with the fact that he brought a
box cutter and duct tape to accomplish his crimes, tends to show
that defendant had contemplated his actions. Moreover, defendant's
actions in asking the victim who was in the house and what time
someone would be home, as well as his taking the time to briefly
speak with his victim before leaving the scene, tend to show that
defendant was in a cool state of mind. Accordingly, this
assignment of error is overruled.
Having so concluded, the judgment and commitment of the trial
court is affirmed.
Affirmed.
Judges GREENE and TYSON concur.
Report per Rule 30(e).
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