STATE OF NORTH CAROLINA
v
.
DANIEL GRAYSON ROGERS,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Diane Martin Pomper, for the State.
Michael E. Casterline, for defendant-appellant.
HUDSON, Judge.
On 9 October 2001, defendant was indicted on charges of first
degree kidnapping and first degree rape. He pled guilty to both
charges. The charges were consolidated for sentencing. The trial
court determined that defendant was at a prior record level II and
also found three aggravating factors and two mitigating factors,
and concluded that the factors in aggravation outweighed factors in
mitigation. The trial court then sentenced defendant in the
aggravated range to a minimum term of 320 months and a maximum term
of 393 months incarceration. Defendant appeals. For the reasons
explained below, we remand for resentencing.
The summary of evidence forming the factual basis for the plea
included, in part, the following. On 19 August 2000, defendant and
co-defendant, Sammy Sechrist, drove to the Wal-Mart store inKernersville in Sechrist's pick-up truck. They went inside the
store and spoke with the victim, Jennifer Davis, who was working as
a cashier at the time. As Davis left work, she met defendant and
Sechrist in the Wal-Mart parking lot. After some conversation
about buying cigarettes, Davis drove in her own car to a nearby gas
station, and defendant and Sechrist followed in Sechrist's truck.
After they bought cigarettes, the three were outside of the gas
station when defendant took Davis' keys from her and gave them to
Sechrist. Sechrist refused to return the keys, at which point
defendant picked up Davis and put her on his lap in the passenger
seat of Sechrist's truck. Sechrist then began to drive, telling
Davis that they were going to take her “four-wheeling.” Sechrist
drove the truck to a wooded area approximately one mile off of the
paved road. They got out of the truck, and defendant began to
force himself on Davis. Sechrist then held Davis down while
defendant struck her in the face and forcibly raped her.
Afterwards, Sechrist drove Davis back to her car.
At the guilty plea and sentencing hearing, the defendant
stipulated to the State's summary of the evidence, and presented no
evidence, although defense counsel argued for a mitigated sentence.
The court found three aggravating factors (that defendant induced
others or occupied a position of leadership in committing the
offense, that defendant joined with more than one other person in
the commission of the offense, and that defendant took advantage of
a position of trust or confidence to commit the offense) and two
mitigating factors (that defendant voluntarily acknowledgedwrongdoing in connection with the offense, and that defendant
accepted responsibility for his conduct).
Defendant argues that there is insufficient evidence in the
record to support the finding of the three aggravating factors
found by the trial court. We agree with respect to two of the
factors.
Under the Structured Sentencing Act, the trial court must
consider evidence of aggravating and mitigating factors and may
then impose a sentence in its discretion. N.C. Gen. Stat. §
15A-1340.16(a) (2001). The State bears the burden of proving
aggravating factors by a preponderance of the evidence. Id. A
trial court's weighing of mitigating and aggravating factors will
not be disturbed on appeal absent a showing that there was an abuse
of discretion. See State v. Wampler, 145 N.C. App. 127, 133, 549
S.E.2d 563, 568 (2001); see also, State v. Daniels, 319 N.C. 452,
454, 355 S.E.2d 136, 137 (1987).
An aggravating factor should be found by the trial court only
if the defendant behaved in a manner that increases his culpability
for the offense. State v. Bates, 76 N.C. App. 676, 678, 334 S.E.2d
73, 74 (1985). The trial court's finding of an aggravating factor
must be supported by “sufficient evidence to allow a reasonable
judge to find its existence by a preponderance of the evidence.”
State v. Hayes, 102 N.C. App. 777, 781, 404 S.E.2d 12, 15 (1991).
“When a convicted felon is given a sentence in excess of the
presumptive range, he may appeal as a matter of right, and the only
question before the appellate court on such an appeal is whetherthe sentence is supported by evidence introduced at trial and the
sentencing hearing.” State v. Weary, 124 N.C. App. 754, 759, 479
S.E.2d 28, 32 (1996).
The trial court found the following aggravating factors: (1)
that defendant induced others to participate in the commission of
the offense and occupied a position of leadership or dominance of
other participants in the commission of the offense; (2) that
defendant joined with more than one other person in committing the
offense; and (3) that defendant took advantage of a position of
trust or confidence to commit the offense. We address each of
these findings separately below.
A. Defendant induced others or had a leadership role in the
commission of this offense.
In State v. Lattimore, this Court held that the focus of this
aggravating factor “is not on the role of the 'participants' in the
crime, but on the role of the defendant in inducing others to
participate or in assuming a position of leadership.” State v.
Lattimore, 310 N.C. 295, 299, 311 S.E.2d 876, 879 (1984); see also,
State v. SanMiguel, 74 N.C. App. 276, 278, 328 S.E.2d 326, 328
(1985).
Here, the evidence showed that defendant initiated the
abduction when he took Davis' keys from her and gave them to
Sechrist. Then, when Sechrist refused to return the keys to Davis,
defendant forced Davis into the truck. Although Sechrist drove the
truck and helped to restrain Davis, it was defendant who initiated
and completed the sexual assault. Taking these facts as true, we
believe this evidence does support the court's finding thatdefendant assumed a leadership role in these events. Thus, the
trial court did not err in finding this aggravating factor.
B. Defendant joined with more than one other person in the
commission of this offense.
The trial court found as a second 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). The plain language of this
factor clearly requires the participation of more than one person
in addition to the defendant. While there is sufficient evidence
that defendant was joined by Sechrist in committing the offense,
there is no evidence that defendant acted with more than one other
person. Thus, the record does not support this factor.
C. Defendant took advantage of a position of trust or confidence
to commit the offense.
In State v. Daniel, our Supreme Court considered the “trust or
confidence” factor in the context of the relationship between a
mother and her newborn child. State v. Daniel, 319 N.C. 308, 354
S.E.2d 216 (1987). The Supreme Court held that a finding of this
aggravating factor did not require that the victim consciously
regard the defendant as one in whom she placed her trust or
confidence, but instead that “such a finding depends . . . upon the
existence of a relationship between the defendant and victim
generally conducive to reliance of one upon the other.” Id. at
311, 354 S.E.2d at 218.
Our courts have upheld a finding of the “trust or confidence”
factor in very limited factual circumstances. See, e.g., State v.Farlow, 336 N.C. 534, 444 S.E.2d 913 (1994) (factor properly found
where nine-year-old victim spent great deal of time in adult
defendant's home and essentially lived with defendant while mother,
a long-distance truck driver, was away); State v. Arnold, 329 N.C.
128, 404 S.E.2d 822 (1991) (factor properly found in husband-wife
relationship); State v. Potts, 65 N.C. App. 101, 308 S.E.2d 754
(1983), disc. review denied, 311 N.C. 406, 319 S.E.2d 278 (1984)
(factor properly found where defendant shot best friend who thought
of defendant as a brother); State v. Baucom, 66 N.C. App. 298, 311
S.E.2d 73 (1984) (factor properly found where adult defendant
sexually assaulted his ten-year-old brother); State v. Stanley, 74
N.C. App. 178, 327 S.E.2d 902, disc. review denied, 314 N.C. 546,
335 S.E.2d 318 (1985) (factor properly found where defendant raped
nineteen-year-old mentally retarded female who lived with
defendant's family and who testified that she trusted and obeyed
defendant as an authority figure). But see State v. Erlewine, 328
N.C. 626, 403 S.E.2d 280 (factor not properly found where defendant
shared an especially close relationship with his drug dealer, the
murder victim); State v. Carroll, 85 N.C. App. 696, 355 S.E.2d 844,
disc. review denied, 320 N.C. 514, 358 S.E.2d 523 (1987) (factor
not properly found where defendant and victim had met only one and
a half days before the murder and had decided to take a trip
together in defendant's car).
By contrast, this Court has held that this aggravating factor
was not properly found where defendant and victim had been
acquainted for approximately one month before the murder and where victim had once asked defendant to join her and her sister for
breakfast at victim's apartment. State v. Midyette, 87 N.C. App.
199, 360 S.E.2d 507 (1987), affirmed per curiam, 322 N.C. 108, 366
S.E.2d 440 (1988). The Court concluded that such evidence showed
only that the defendant and the victim were acquaintances, and that
no relationship existed through which the defendant occupied a
position of trust or confidence. Id. at 203, 360 S.E.2d at 509.
Here, the record shows that Davis and defendant had an
“informal introduction” prior to the date of the offense. Their
only previous contact was several apparently casual encounters at
the Wal-Mart store where Davis worked. There is no evidence in the
record that defendant and Davis had ever spoken to one another or
met one another outside of the store, other than on the date of the
offense.
This evidence shows, at most, that defendant and Davis were
merely acquaintances. We do not believe that this evidence
demonstrates “the existence of a relationship between the defendant
and victim generally conducive to reliance of one upon the other.”
Daniel, 319 N.C. at 311, 354 S.E.2d at 218.
The trial court's error in finding these aggravating factors
entitles defendant to a new sentencing hearing. State v. Moses,
___ N.C. App. ___, ___, 572 S.E.2d 223, 229 (2002) (“When the trial
judge errs in finding an aggravating factor and imposes a sentence
in excess of the presumptive term, the case must be remanded for a
new sentencing hearing”).
Remanded for resentencing. Judges MARTIN and STEELMAN concur.
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