STATE OF NORTH CAROLINA
v.
MARYLAND FOWLER
Attorney General Roy Cooper, by Assistant Attorney General
Margaret A. Force, for the State
Lynne Rupp for defendant-appellant.
MARTIN, Judge.
Defendant was indicted on charges of taking indecent liberties
with a child, attempted first degree sexual offense, and first
degree statutory rape. He was convicted of attempted first degree
rape, attempted first degree sexual offense, and taking indecent
liberties with a minor. He appeals from judgments imposing
consecutive sentences of imprisonment, each within the presumptive
range.
The State presented evidence at trial which tended to show the
following: The victim, T, is the fourteen year old daughter of the
defendant. T testified that when she was twelve, defendant
attempted to have anal intercourse with her. Defendant stopped
when T told him it hurt. T further testified that when she was
twelve, defendant also tried to have vaginal intercourse with her.
Again, T told defendant it hurt and he stopped. Defendant admittedthat he had sexual contact with T to Detective William R. Smith of
the Zebulon Police Department and Kenisha Moore, an investigative
social worker with Wake County Human Services.
Defendant first argues the trial court committed plain error
and constitutional error when it told the jury during the trial
that defendant was in the custody of the Wake County Sheriff's
Department. Defendant contends that the judge informing the jury
that he was incarcerated violated his right to a fair trial and due
process. Defendant cites Illinois v. Allen, 397 U.S. 337, 25 L.
Ed. 2d. 353, reh'g denied, 398 U.S. 915, 26 L. Ed. 2d 80 (1970),
which recognized that “the sight of shackles and gags might have a
significant effect on the jury's feelings about the defendant.”
Id. at 344, 25 L. Ed. 2d. at 359. Likewise, defendant contends
that “when a jury has been informed by the judge that the defendant
is being held in custody, there is a danger the jury will be
improperly negatively influenced.” We are not persuaded.
Initially, we note that to the extent that defendant argues
constitutional error, defendant's failure to object at trial and
properly preserve the constitutional issue for appeal requires us
to review this potential constitutional error under the plain error
standard of review. State v. Lemons, 352 N.C. 87, 530 S.E.2d 542
(2000), cert. denied, 531 U.S. 1091, 148 L. Ed. 2d 698 (2001). “A
plain error is one 'so fundamental as to amount to a miscarriage of
justice or which probably resulted in the jury reaching a
different verdict than it otherwise would have reached.'” State v.
Carroll, 356 N.C. 526, 539, 573 S.E.2d 899, 908 (2002) (quotingState v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987),
cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988)).
There is no plain error here. First, the evidence of
defendant's guilt was overwhelming. Defendant's daughter testified
as to the sexual acts committed by defendant upon her, and
defendant admitted to police that he engaged in sexual conduct with
her. Second, the statements by the trial court do not create the
same prejudice to the defendant as that raised when a defendant
appears in court in shackles or prison garb. See Allen, 397 U.S.
at 344, 25 L. Ed. 2d. at 359; Estelle v. Williams, 425 U.S. 501,
504-05, 48 L. Ed. 2d 126, 131 (1976) (compelling defendant to wear
prison clothes serves as “constant reminder of the accused's
condition” which may impair the presumption of innocence). In the
case sub judice, the trial court was simply explaining to the jury
the cause for the delay in the proceedings, and there was no
“constant reminder” of the defendant's detention. Furthermore, the
trial court instructed the jury that the defendant was presumed to
be innocent. Accordingly, the assignment of error is overruled.
We next consider whether the trial court abused its discretion
by failing to find mitigating factors in sentencing defendant.
Defendant cites several mitigating factors, including that he had
a good job history, that the victim initiated and consented to the
sexual contact, that he told his daughter to cooperate with the
investigating officers, and that he immediately accepted
responsibility for his actions. Defendant additionally argues that
the trial court erred by imposing sentences from the aggravatedrange of punishment without finding the existence of any
aggravating factors. While defendant acknowledges that the
sentences imposed by the trial court can be found both in the
aggravated and presumptive ranges, he contends that “criminal laws
must be strictly construed and any ambiguities resolved in favor of
the defendant.” State v. Gentry, 135 N.C. App. 107, 111, 519
S.E.2d 68, 71 (1999).
After careful review of the record, briefs, and contentions of
the parties, we find no error. A judgment sentencing a defendant
to a term of imprisonment for the commission of a felony must
contain both a minimum term of imprisonment and a maximum term of
imprisonment. N.C. Gen. Stat. § 15A-1340.13(c) (2001). Unless
otherwise indicated, “[t]he maximum term of imprisonment applicable
to each minimum term of imprisonment is . . . as specified in G.S.
15A-1340.17.” Id. The trial court is to determine the applicable
maximum term of imprisonment by utilizing the chart found in G.S.
15A-1340.17(e). “[W]here the trial court imposes sentences within
the presumptive range for all offenses of which defendant was
convicted, he is not obligated to make findings regarding
aggravating and mitigating factors.” State v. Rich, 132 N.C. App.
440, 452-53, 512 S.E.2d 441, 450 (1999), affirmed, 351 N.C. 386,
527 S.E.2d 299 (2000).
Here, defendant, with a prior record level of II, was
sentenced to a minimum term of 189 months and a maximum term of 236
months for each Class B2 felony. The charts contained in 15A-
1340.17(c) and (e) show the trial court, as required by thestatutes, sentenced defendant within the presumptive range of
sentences for Class B2 felonies with prior record level II. This
Court has stated that “the legislature intended the trial court to
take into account factors in aggravation and mitigation only when
deviating from the presumptive range in sentencing.” State v.
Caldwell, 125 N.C. App. 161, 162, 479 S.E.2d 282, 283 (1997).
(citing G.S. 15A-1340.13(e)). “Therefore, a trial court is not
required to justify a decision to sentence a defendant within the
presumptive range by making findings of aggravation and
mitigation.” State v. Campbell, 133 N.C. App. 531, 542, 515 S.E.2d
732, 739, disc. review denied, 351 N.C. 111, 540 S.E.2d 370 (1999).
Accordingly, because the trial court sentenced defendant within the
presumptive range, we conclude there was no abuse of discretion and
no error.
No error.
Judges McCULLOUGH and CALABRIA concur.
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