STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 99 CRS 51306
TERRENCE LABRON OGLESBY
Attorney General Roy Cooper, by Assistant Attorney General
Elizabeth J. Weese, for the State.
J. Clark Fischer for defendant-appellant.
WYNN, Judge.
Defendant Terrence Labron Oglesby presents two issues on
appeal from his conviction of robbery of an American Legion Post
with a dangerous weapon: (1) Did the trial court err by allowing
the State to present unrelated evidence of misconduct by the
defendant?, and (2) did the trial court err by aggravating
defendant's sentence based on a finding that defendant joined with
others in committing the robbery when allegedly acting in concert
was a basis for his robbery conviction? We answer both issues, no,
and thereby uphold defendant's conviction and sentence of
imprisonment for a minimum term of 129 months and a maximum term of
164 months. Defendant first argues on appeal that the trial court erred in
allowing the State's witness Clyde Sanders to testify about a prior
incident in which defendant had brandished a gun at him. Sanders,
who identified defendant as one of the robbers of the American
Legion Post, testified that he had known defendant for five years
before the robbery. He stated that hard feelings had developed
between them when they competed for the affections of Sander's
girlfriend, Tonya Huntley. Sanders described his conflict with
defendant regarding Huntley, as follows:
[SANDERS]: [Defendant] was fighting with me
and whatnot, he used to try to, you know
squash the beef . . . . You know, chill,
whatnot.
[PROSECUTOR]: When you squash the beef, what
do you mean by that?
[SANDERS]: Let's start over and be friends.
[PROSECUTOR]: Okay. And were you willing to
do that?
[SANDERS]: No, ma'am.
[PROSECUTOR]: Why was that?
[SANDERS]: Just because of the simple fact he
done pull out a gun on me, whatnot.
[DEFENSE COUNSEL]: Objection.
THE COURT: Just a minute. Objection
overruled.
[PROSECUTOR]: You can continue.
[SANDERS]: He done pulled out a gun on me,
maybe once or twice. I mean, I done shot at
him, but he never knew, and I taught him how
to steal cars.
[DEFENSE COUNSEL]: Objection, Your Honor.
THE COURT: Members of the jury, disregard the
last answer of the witness. Do not consider
it in your deliberations.
Although the trial court did strike Sanders' response that included
a reference to stealing cars, defendant's assignment of error
concerns Sanders' initial claim that defendant “pulled out a gun on
[him]” which was allowed into evidence over his objection.
Evidence is relevant if it has "'any logical tendency, however
slight, to prove a fact in issue,'" State v. Bell, 311 N.C. 131,
144, 316 S.E.2d 611, 618 (1984) (quoting 1 Brandis on North
Carolina Evidence § 77 (1982)). Although relevant evidence is
generally admissible under N.C.R. Evid. 402, it “may be excluded if
its probative value is substantially outweighed by the danger of
unfair prejudice[.]” N.C. Gen. Stat. § 8C-1, Rule 403 (2001). A
trial court's decision to admit evidence under Rule 403 will not be
grounds for relief on appeal unless it is "manifestly unsupported
by reason or is so arbitrary it could not have been the result of
a reasoned decision." State v. Syriani, 333 N.C. 350, 379, 428
S.E.2d 118, 133 (1993), cert. denied, 510 U.S. 948, 126 L. Ed.2d
341 (1994). Moreover, to show prejudice arising from an
evidentiary ruling under Rule 403, “defendant must persuade this
Court that had the trial court not admitted the [evidence], a
different outcome likely would have been reached.” State v. Mann,
355 N.C. 294, 306, 560 S.E.2d 776, 784 (2002) (citing N.C. Gen.
Stat. § 15A-1443(a) (1999)).
In this case, while Sanders' testimony recounting his personal
familiarity with defendant did tend to support the accuracy of hiseyewitness identification, his claim that defendant had once pulled
a gun on him added little in this regard. Having already testified
that he and defendant had lived in the same apartment complex where
they vied for Huntley's affections, Sanders had established more
than ample basis to demonstrate his ability to recognize defendant
by sight. Given the obvious risk of prejudice arising from
evidence associating defendant with improper gunplay, we believe
this portion of Sanders' testimony should have been stricken.
Nonetheless, this error does not require a new trial for defendant
because Sanders' brief remark was insignificant in the context of
the State's proffer and was so peripheral to its case as to create
no possibility of prejudice under N.C. Gen. Stat. § 15A-1443(a).
In light of compelling evidence presented by other witnesses of
defendant's identity as the gunman in the robbery, “defendant has
failed to show that this evidence so inflamed the jury as to affect
the outcome of the trial.” State v. Bell, 311 N.C. 131, 144, 316
S.E.2d 611, 618 (1984).
Defendant next argues the trial court erred in finding as an
aggravating factor that "defendant joined with more than one other
person in committing the offense and was not charged with
committing a conspiracy." N.C. Gen. Stat. § 15A-1340.16(d)(2)
(2001). Defendant argues that this factor to enhance his sentence
was improper because the State also relied on the theory of acting
in concert to establish his guilt for the offense. Defendant
contends that the evidence of concerted action was thus used both
to convict him of the crime and to aggravate his sentence inviolation of N.C. Gen. Stat. § 15A-1340.16(e) (2001).
Under N.C. Gen. Stat. § 15A-1340.16(e), “[e]vidence necessary
to prove an element of the offense shall not be used to prove any
factor in aggravation.” As we have previously stated, "It is error
for an aggravating factor to be based on circumstances which are
part of the essence of a crime." State v. Hughes, 136 N.C. App.
92, 99, 524 S.E.2d 63, 67 (1999), disc. review denied, 351 N.C.
644, 543 S.E.2d 878 (2000). However, our Supreme Court has
recognized that many of the aggravating factors in N.C. Gen. Stat.
§ 15A-1340.16(d) contemplate at least some duplication of proof
between the aggravating factor and the offense itself without
violating the proscription in N.C. Gen. Stat. § 15A-1340.16(e).
See State v. Cinema Blue of Charlotte, Inc., 98 N.C. App. 628, 634,
392 S.E.2d 136, 139-40, appeal dismissed and disc. review denied,
327 N.C. 142, 394 S.E.2d 181 (1990), cert. denied, 498 U.S. 1083,
112 L. Ed.2d 1042 (1991); see also State v. Bruton, 344 N.C. 381,
393-94, 474 S.E.2d 336, 345 (1996).
We find no error here. “The elements of robbery with a
dangerous weapon are (1) the unlawful taking or attempted taking of
personal property from another; (2) the possession, use or
threatened use of firearms or other dangerous weapon, implement or
means; and (3) danger or threat to the life of the victim.” State
v. Jarrett, 137 N.C. App. 256, 262, 527 S.E.2d 693, 697 (2000)
review denied, 352 N.C. 152, 544 S.E.2d 233 (2000). Obviously, the
act of “join[ing] with more than one other person in committing the
offense” is not an element of robbery with a dangerous weapon. Moreover, the State's evidence tended to show that defendant
brandished the gun while an associate collected the money. These
facts reflect that defendant and a single accomplice performed all
the essential elements of the offense. By contrast, the
aggravating factor found by the trial court required a showing that
defendant joined with “more than one other person” to commit the
crime. N.C. Gen. Stat. § 15A-1340.16(d)(2) (emphasis added).
Thus, the evidence that defendant “joined with more than one other
person” was not “necessary to prove an element of the offense” in
this case, even under the theory of concerted action. This
assignment of error is without merit.
No prejudicial error.
Judges MCGEE and CAMPBELL concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***