STATE OF NORTH CAROLINA
v
.
GREGORY LAVON LOVE
Attorney General Roy Cooper, by Assistant Attorney General
Gaines M. Weaver, for the State.
Isabel Scott Day, Public Defender, by Assistant Public
Defender Julie Ramseur Lewis, for the defendant-appellant.
WYNN, Judge.
Following a jury trial, defendant, Gregory Lavon Love, appeals
his conviction for communicating threats during a domestic
disturbance with his wife, LaQuita Love. After the alleged
incident, Ms. Love made a statement to police incriminating her
husband. At trial, however, Ms. Love testified that she could not
remember any facts tending to incriminate Mr. Love. During direct
examination, Ms. Love did recall: (1) making the statement to
police; (2) while the events of the night and incident were still
fresh in her mind; and that (3) the statement was read back to her.
Moreover, a police officer testified that Ms. Love was given an
opportunity to edit the statement, and that Ms. Love did not edit
the statement. Accordingly, the trial court allowed the statement
to be read into evidence pursuant to North Carolina's hearsayexception for recorded recollections codified at N.C. Gen. Stat. §
8C-1, Rule 803(5) (2002).
On appeal, Mr. Love assigns error to: (1) the admission of Ms.
Love's recorded recollection because it was not signed by Ms. Love;
(2) the trial court's denial of Mr. Love's motion to dismiss; and
(3) the trial court's decision to sentence Mr. Love to a twenty-
four month period of supervised probation, where N.C. Gen. Stat.
15A-1343.2(d) only authorizes an eighteen month probationary period
without specific findings of fact by the trial court. After
carefully reviewing the record, we hold that Mr. Love received a
trial free from error during the substantive phase. However,
because the trial court violated its statutory mandate during the
sentencing phase, we vacate in part and remand for resentencing.
The State's evidence tended to show that Police Officers Larry
J. Angle, Jr. and David L. Phillips responded to a domestic
disturbance at the defendants residence in the early morning of 15
August 2000. Upon arriving at the scene, Officer Angle noticed a
female, later identified as Ms. Love, shaking and crying. Ms. Love
explained to the officers that her husband, who had left the scene,
had repeatedly threatened to punch her. As Ms. Love was giving her
initial statement, Mr. Love drove his vehicle over the grass and
onto the driveway of the residence. Upon seeing the vehicle, Ms.
Love began to cry. Officer Angle approached Mr. Love and asked him
for identification. Mr. Love refused. Officer Angle explained to
Mr. Love that he needed to speak with him regarding the events of
the night. Mr. Love refused, and attempted to walk into hisresidence. Officer Angle placed Mr. Love under arrest for
communicating threats to Ms. Love.
After calming Ms. Love, Officer Phillips used his laptop
computer to record the following statement by Ms. Love:
I am LaQuita Love. I understand Officer D.L.
Phillips is taking this statement from me, and
everything that I have told him is true to the
best of my knowledge.
On 8-15-2000 at about 3:00 a.m., I was asleep
in bed when my mother called me on the phone
and woke me up. After I spoke with my mother,
I was trying to go back to sleep when my
husband, Gregory Lavon Love, walked into the
room and jerked the covers off of me and said
[] we need[ed] to talk.
We talked for a few minutes and left the room.
I started to fall back to sleep when my
husband came back into the room, turned on the
lights, jerked the covers off of me and said,
“stand up.” When I stood up out of the bed,
he threw the pillows on the floor and began to
put his clothes on. He began yelling at me
and cursing very loudly.
As he was getting dressed he would stand very
close to me and act like he was going to hit
me with his fist, and then would stop right
before he would hit me. He did this numerous
times and each time I would flinch because I
didn't know if he was really going to hit me.
When he saw that I was scared he said, “You
see, you don't want me to hit you.” After
this went on for several minutes, he said to
me, “I'm getting ready to leave and I'll be
back. And when I get back, if I see you
sitting or lying down, I'm going to knock the
hell out of you.”
He drove away from the house, and as soon as
he did I called the police and ran next door
to my neighbor's house. I stayed at my
neighbor's house until the police officers
arrived.
Officer D.L. Phillips read this statement backto me and everything is accurate.
Based on this evidence, the State indicted Mr. Love for
communicating threats in violation of N.C. Gen. Stat. § 14-277.1.
At trial, the State called Ms. Love to testify. Although Ms. Love
could recall calling the police, being upset, and running to her
neighbor's house, she stated that she could not recall any events
tending to incriminate Mr. Love. Accordingly, the following
colloquy transpired between the State and Ms. Love:
Q. Do you recall one of the officers talking to you and
reading back what you had said to him?
A. Yes, I do.
Q. And when you gave that statement to the police officers
that night, everything was fresh in your mind, wasn't it?
A. Yes, it was.
Q. And you told them what happened at the house that night;
right?
A. Yes, I did.
At this point, the State approached Ms. Love with State's
Exhibit 1 -- a computer printout of Ms. Love's statement recorded
on a laptop computer by Officer Philips on 15 August 2000. The
defense vigorously objected, arguing that “there is no indication
. . . that this is [Ms. Love's statement]. There's no hand written
note, there's no signature . . . [and, consequently,] there's no
indication here that she [is] refreshing her memory from anything
that appears to be her statement.” After considering the arguments
of both parties, the trial court overruled the defendant's
objection and the colloquy continued:
Q. Ms. Love, have you taken a look at that statement?
A. Yes, I have.
Q. And does reading that statement that you gave to the
officer that night refresh your memory about what you
told the officers.
A. My memory is about the same, yes. I mean, --
Q. So you don't remember any better?
A. No, I don't.
Q. But that night when you were talking to the officers
about 20 or 30 minutes after this all happened, you
remembered everything; correct?
A. Yes.
Thereafter, the State called Officer Phillips. Officer
Phillips testified that he took a statement from Ms. Love, and the
State asked Officer Phillips to read that statement into evidence
pursuant to North Carolina's hearsay exception for “recorded
recollections.” Again, Mr. Love vigorously objected and argued
that the alleged statement of Ms. Love--an unsigned computer
printout--did not meet foundational reliability requirements of the
aforementioned hearsay exception. The trial court overruled the
defendant's objection.
At the close of the State's evidence, the defendant made a
motion to dismiss. The trial court denied the defendant's motion.
The defendant did not present any evidence. On 23 May 2001, the
jury returned a unanimous verdict finding Mr. Love guilty of
communicating threats. The trial court sentenced Mr. Love to
forty-five days in the Mecklenburg County Jail, suspended for two
years, and placed Mr. Love on supervised probation for twenty-four
months. From the judgment, Mr. Love appeals and makes threearguments through five assignments of error.
By his first argument, and first and second assignments of
error, Mr. Love argues the trial court erred by permitting Officer
Phillips to read Ms. Love's statement into evidence because the
State failed to lay a proper foundation for admission of the
document into evidence under N.C. Gen. Stat. § 8C-1, Rule 803(5).
After carefully reviewing the record, we disagree.
North Carolina's Rules of Evidence provide that: “Hearsay is
not admissible except as provided by statute or by these rules.”
N.C. Gen. Stat. § 8C-1, Rule 802. Under N.C. Gen. Stat. § 8C-1,
Rule 803(5) the following is not excluded by the hearsay rule:
Recorded Recollection. -- A memorandum or
record concerning a matter about which a
witness once had knowledge but now has
insufficient recollection to enable him to
testify fully and accurately, shown to have
been made or adopted by the witness when the
matter was fresh in his memory and to reflect
that knowledge correctly. If admitted, the
memorandum or record may be read into evidence
but may not itself be received as an exhibit
unless offered by an adverse party.
In order to admit “recorded recollection” pursuant to N.C.
Gen. Stat. § 8C-1, Rule 803(5), the party offering the recorded
recollection must show that the proffered document meets three
foundational requirements:
(1) The document must pertain to matters about
which the declarant once had knowledge; (2)
The declarant must now have an insufficient
recollection as to such matters; (3) The
document must be shown to have been made by
the declarant or, if made by one other than
the declarant, to have been examined [and
adopted] . . . when the matters were fresh in
[her] memory.
See e.g., State v. Robar, 157 Vt. 387, 390, 601 A.2d 1376, 1377-378
(1991).
At trial, the evidence presented established all the elements
necessary to lay a proper foundation for the admission of Ms.
Love's statement as recorded recollection pursuant to N.C. Gen.
Stat. § 8C-1, Rule 803(5).
(See footnote 1)
Ms. Love testified: (1) she remembered
making a statement describing the events of that night to an
officer, (2) she made the statement when the events of the night
were “fresh in her mind,” (3) she no longer had sufficient
recollection as to the matter; and (4) the statement was read back
to her. Moreover, Officer Phillips testified that Ms. Love was
given an opportunity to edit the statement, but that Ms. Love
declined to edit the statement--thereby adopting it.
(See footnote 2)
Accordingly,we hold the trial court did not abuse its discretion by admitting
Ms. Love's recorded recollection into evidence and, therefore, the
corresponding assignments of error are overruled.
By his second argument, and fourth assignment of error, Mr.
Love argues that the trial court erred in denying his motion to
dismiss. After carefully reviewing the record, we disagree.
“In ruling on a motion to dismiss for insufficient evidence,
the trial court must consider the evidence in the light most
favorable to the State, which is entitled to every reasonable
inference which can be drawn from that evidence.” State v. Dick,
126 N.C. App. 312, 317, 485 S.E.2d 88, 91 (1997). “[T]he question
for the Court is whether there is substantial evidence (1) of each
essential element of the offense charged . . . and (2) of
defendant's being the perpetrator of such offense.” State v.
Brayboy, 105 N.C. App. 370, 373-74, 413 S.E.2d 590, 592 (1992).
“Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” State v.
Williams, 133 N.C. App. 326, 328, 515 S.E.2d 80, 82 (1999)
(citation omitted).
In North Carolina, a defendant is guilty of communicating
threats under N.C. Gen. Stat. § 14-277.1 if, without legal
authority:
(1) [The defendant] willfully threatens to physically injure
the person . . .;
(2) The threat is communicated to the other person, orally,in writing, or by any other means;
(3) The threat is made in a manner and under circumstances
which would cause a reasonable person to believe that the
threat is likely to be carried out; and
(4) The person threatened believes that the threat will be
carried out.
On appeal, Mr. Love argues that the trial court should have
granted his motion to dismiss because the State did not produce
substantial evidence of the fourth element. This element requires
the person threatened to “subjectively believe” that the threat
will be carried out. Mr. Love contends Ms. Love did not have this
subjective belief, and, in support of this notion, Mr. Love points
to Ms. Love's trial testimony that on 15 August 2000: (1) she did
not recall Mr. Love threatening her; (2) she was not afraid of Mr.
Love; and (3) she was not hiding from Mr. Love when the officers
arrived. If this was the only evidence in the record of Ms. Love's
subjective beliefs, Mr. Love's argument would have merit.
Mr. Love, however, does not mention Ms. Love's recorded
recollection, read into evidence pursuant to N.C. Gen. Stat. § 8C-
1, Rule 803(b)(5), where Ms. Love stated:
As he was getting dressed he would stand very
close to me and act like he was going to hit
me with his fist, and then would stop right
before he would hit me. He did this numerous
times and each time I would flinch because I
didn't know if he was really going to hit me.
When he saw that I was scared he said, “You
see, you don't want me to hit you.” After
this went on for several minutes, he said to
me, “I'm getting ready to leave and I'll be
back. And when I get back, if I see you
sitting or lying down, I'm going to knock the
hell out of you.”
He drove away from the house, and as soon as
he did I called the police and ran next door
to my neighbor's house. I stayed at my
neighbor's house until the police officers
arrived.
This statement contains four pieces of substantial evidence
supporting the State's theory that Ms. Love subjectively believed
that Mr. Love intended to carry out his threats. Namely, Ms. Love
stated: (1) she flinched when Mr. Love swung his fists at her face;
(2) she described herself as scared; (3) she called the police; and
(4) she ran to her neighbor's house until the police arrived.
Moreover, when the police arrived at the scene Ms. Love was shaking
and crying. Even after the officers calmed Ms. Love, she instantly
starting crying again upon seeing Mr. Love's vehicle approach the
scene. In our opinion, this evidence is substantial and adequate
to allow a reasonable fact finder to conclude that Ms. Love
subjectively believed that Mr. Love was going to carry out his
threats. Accordingly, the trial court properly denied Mr. Love's
motion to dismiss, and, therefore, the corresponding assignments of
error are overruled.
By his third argument, and fifth assignment of error, Mr. Love
contends that trial court committed error by extending Mr. Love's
probationary period to twenty-four months without making the
required specific finding of facts that a longer period of
probation was necessary as required by statute. After carefully
reviewing the record, we agree.
Pursuant to North Carolina's procedure under the Structured
Sentencing Act and N.C. Gen. Stat. § 15A-1343.2(d), the GeneralAssembly has provided trial courts with the following mandate:
Lengths of Probation Terms Under Structured
Sentencing. -- Unless the court makes specific
findings that longer or shorter periods of
probation are necessary, the length of the
original period of probation for offenders
sentenced under Article 81B shall be as
follows:
(1) For misdemeanants sentenced to community
punishment, not less than six nor more than 18
months;
In the case sub judice, the trial court violated this
statutory mandate by sentencing Mr. Love to twenty-four months
supervised probation without making specific findings of fact that
a longer period of probation was necessary. The State argues,
however, that Mr. Love did not object to the trial court's
sentence, and, therefore, Mr. Love failed to preserve this issue
for appellate review pursuant to N.C. R. App. P. 10(b).
Our Supreme Court, as well as this Court, have consistently
held that: “When a trial court acts contrary to a statutory
mandate, the error ordinarily is not waived by the defendant's
failure to object at trial.” State v. Hucks, 323 N.C. 574, 579,
374 S.E.2d 240, 244 (1988); see also State v. Ashe, 314 N.C. 28,
331 S.E.2d 652 (1985); State v. Tucker, 91 N.C. App. 511, 372
S.E.2d 328 (1988). “Accordingly, we vacate this condition of
defendant's probation and remand this portion of defendant's case
for resentencing. The trial court must reduce defendant's
probation to the statutory period of [six to eighteen months] or
enter appropriate findings of fact that a longer period of
probation is necessary.” State v. Lambert, 146 N.C. App. 360, 366,553 S.E.2d 71, 76 (2001).
Affirmed in part, vacated in part, and remanded for
resentencing.
Judges BRYANT and GEER concur.
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