Appeal by defendant from judgments entered 2 August 2001 by
Judge Benjamin G. Alford in New Hanover County Superior Court.
Heard in the Court of Appeals 16 October 2002.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Ralf F. Haskell, for the State.
William D. Spence for defendant-appellant.
HUNTER, Judge.
Jonathan D. Brown (“defendant”) appeals from convictions of
second degree murder and robbery with a dangerous weapon and
respective sentences. For the reasons stated herein, we conclude
defendant is entitled to a new sentencing hearing.
The facts are briefly summarized as follows: The evidence
tended to show that on 3 April 1999 at approximately 1:15 a.m., a
highway patrol trooper, Richard L. Jones (“Trooper Jones”), stopped
a Chevrolet Lumina after observing the vehicle traveling east in
the westbound lane in the middle of the intersection of Old
Maplehurst and Curtis Roads in Onslow County, North Carolina. At
the time of the stop, defendant was driving the Lumina while Tiria
Grady (“Grady”) was sitting in the passenger's seat. As TrooperJones approached the Lumina, he noticed that it had an expired
thirty-day license tag and a mattress in the back seat. Trooper
Jones asked defendant for his driver's license and registration but
defendant produced neither. When Trooper Jones asked defendant to
step out of the car, defendant put the car in drive and drove off.
A high-speed chase ensued and ended when defendant drove into a
concrete road marker post and a chain link fence. Thereafter,
defendant and Grady were placed under arrest and taken to the
Onslow County Jail.
It was later determined that the Lumina that had been driven
by defendant was owned by Joseph Tyrone Williams (“Williams”).
Further, while searching Grady at the jail, a jail matron found a
few of Williams' credit cards and Williams' driver's license. On
5 April 1999, Williams' body was discovered in the back seat of the
Lumina. Williams' body had been stuffed inside a mattress along
with a piece of carpet and a mattress cover. Dr. Karen Chancellor
(“Dr. Chancellor”), the pathologist who performed an autopsy on
Williams' body, testified that in her opinion Williams died as a
result of a gunshot wound to his head.
On 5 April 1999, SBI Agent Pat Daly (“Agent Daly”) conducted
a crime scene search of Grady's residence. Agent Daly cut a piece
of the carpet located in the upstairs bedroom that tested positive
for blood. Agent Daly also found a pair of boots with suspected
blood on them and a smear pattern of suspected blood leading
towards the back door. Additionally, a .32 caliber Smith and
Wesson revolver and a box of bullets (seventeen live rounds and twospent shell casings) were found in the microwave oven in the
kitchen. Tire impressions were also discovered on the lawn leading
up to the back door of the apartment.
Testing at the State Bureau of Investigation (“SBI”) Lab in
Raleigh revealed the following: (1) the bullet recovered from
Williams' head was fired from the .32 caliber Smith and Wesson
revolver found in the microwave in the kitchen of Grady's
apartment; (2) a comparison of the carpet fibers from the carpet in
Grady's upstairs bedroom and the carpet found in the mattress with
Williams' body revealed that the fibers were consistent; (3) the
DNA banding pattern obtained from the boots and carpet in Grady's
apartment matched the DNA profile obtained from the victim; (4) the
predominant profile obtained from the cutting from defendant's
jeans was a match to the DNA profile of the victim.
On 2 April 1999, between 11:30 a.m. and 12:00 p.m., Wilhemina
Hill (“Hill”) went to Grady's apartment to pick up her
grandchildren. Both Grady and defendant were at the apartment when
Hill arrived. While Hill was at the apartment, defendant took a
small handgun out of his pants and laid it on the television stand
in the living room. Hill testified that the gun she saw defendant
remove from his pants looked similar to State's Exhibit 12, the gun
that was used to shoot Williams. When Hill left Grady's apartment
around 3:00 p.m., defendant was still there.
Andrew Hassell (“Hassell”), a friend and cousin of Williams,
testified that Williams left his apartment around 2:30 p.m. on 2
April 1999 and told him that he expected to return later thatafternoon. At approximately 3:30 or 4:00 p.m., Hassell observed
Williams' car parked in front of Grady's apartment while riding to
his brother's house. Hassell stopped and went to Grady's
apartment; however, before Hassell reached Grady's door, Grady came
out of her apartment and approached Hassell. Hassell asked Grady
if she had seen Williams and then left. Approximately one and a
half to two hours later, Hassell again rode past Grady's apartment
and noticed that Williams' car had been moved over two parking
spaces. Hassell also observed defendant sitting on a crate outside
of Grady's apartment. As Hassell approached Grady's apartment,
Grady met him outside and Hassell again inquired about Williams and
then left. Hassell did not see Williams either time that he
stopped by Grady's apartment.
A jury found defendant guilty of robbery with a dangerous
weapon and second degree murder. Judgments were entered upon the
verdicts and defendant was sentenced to the following consecutive
sentences: 237-294 months imprisonment for the second degree
murder conviction and 95-123 months imprisonment for the robbery
with a dangerous weapon conviction. Defendant appeals.
I.
Defendant initially contends the trial court erred in granting
the State's motion
in limine to prevent defendant from cross-
examining several of the State's witnesses about the murder of
Carlos McCoy (“McCoy”). McCoy, a former boyfriend of Grady and
father of Grady's children, was murdered on 21 January 1998. At
the time of defendant's trial, there was an ongoing investigationof the McCoy murder. Both McCoy and Williams died as a result of
close-range gunshot wounds and both had been romantically involved
with Grady. Defendant argues the trial court's refusal to allow
him to cross-examine the State's witnesses about the McCoy murder
denied him the basic right to present evidence to defend himself
against the State's serious accusations. Defendant asserts that
the McCoy murder was relevant to the instant case because the
connection between Grady and a second dead boyfriend would clearly
raise an inference that Grady murdered Williams and that defendant
was not the guilty party. Therefore, defendant argues that he
should have been permitted to cross-examine the State's witnesses
about the McCoy murder under N.C. Gen. Stat. § 8C-1, Rule 404(b)
because this evidence would tend to prove the identity of the
perpetrator of the murder of Williams to be Grady and not
defendant.
Pursuant to N.C. Gen. Stat. § 8C-1, Rule 404(b), evidence of
other crimes, wrongs, or acts may be admissible to prove the
identity of the perpetrator. Our Supreme Court has concluded that
Rule 404(b) permits a defendant to “introduce evidence of very
similar crimes of another, when such evidence tends to show that
the other person committed the crime for which the defendant is on
trial.”
State v. Cotton, 318 N.C. 663, 666, 351 S.E.2d 277, 279
(1987). The following test has been provided for determining
whether such evidence is admissible: “[A]dmission of the evidence
must do more than create mere conjecture of another's guilt in
order to be relevant. Such evidence must (1) point directly to theguilt of some specific person, and (2) be inconsistent with the
defendant's guilt.”
State v. McNeill, 326 N.C. 712, 721, 392
S.E.2d 78, 83 (1990). In the instant case, the evidence tending to
show that Grady had been romantically involved with both McCoy and
Williams and that both men died over a year apart in East
Wilmington from gunshot wounds does not point directly to the guilt
of Grady nor is this evidence inconsistent with defendant's guilt.
At most, this evidence raises a mere conjecture that Grady may have
been involved in both murders. Therefore, the trial court properly
granted the State's motion
in limine to prevent defendant from
cross-examining the State's witnesses about the McCoy murder.
II.
Defendant next assigns error to the trial court's denial of
his motion to suppress all evidence obtained as a result of the
traffic stop. Defendant argues that Trooper Jones did not have
sufficient grounds to justify stopping defendant and therefore, the
fruits of the stop were inadmissible.
“[O]ur courts have established that police officers may be
warranted in making investigatory stops and detaining the occupants
of motor vehicles when the facts would justify an 'articulable and
reasonable suspicion' that the occupants of that vehicle may be
engaged in or connected with some form of criminal activity.”
State v. Covington, 138 N.C. App. 688, 691, 532 S.E.2d 221, 223,
cert. denied, 352 N.C. 678, 545 S.E.2d 432 (2000). In the instant
case, Trooper Jones testified during the
voir dire hearing that the
reason he stopped defendant was because he had observed defendanttraveling east in the westbound lane, which is a violation of N.C.
Gen. Stat. § 20-146 (2001). Therefore, Trooper Jones was justified
in stopping defendant, requesting defendant's driver's license and
registration, and ordering defendant to exit the vehicle.
See
State v. McClendon, 350 N.C. 630, 517 S.E.2d 128 (1999) (concluding
officer justified in stopping defendant's vehicle based upon
defendant's exceeding posted speed limit in violation of N.C. Gen.
Stat. § 20-141 and following too closely in violation of N.C. Gen.
Stat. § 20-152);
State v. Young, 148 N.C. App. 462, 559 S.E.2d
814,
appeal dismissed and disc. review denied, 355 N.C. 500, 564
S.E.2d 233 (2002) (holding officer was justified in stopping
defendant based upon his driving the wrong way on a one-way street
in violation of N.C. Gen. Stat. § 20-165.1). Accordingly, the
trial court was proper in denying defendant's motion to suppress
the evidence obtained as a result of Trooper Jones' stop.
III.
Defendant next contends the trial court erred in allowing SBI
lab agent, Brenda Bissette (“Agent Bissette”), to give her opinion
as to the results of the DNA testing on defendant's jeans. Agent
Bissette testified that the results revealed the following:
The DNA profile obtained from the cutting from
the jeans of Jonathan Brown is indicative of
originating from more than one donor. The
predominant DNA profile present in the mixture
is a match to the DNA profile of the victim.
And additionally weak bands were also present
in this mixture.
Agent Bissette further testified that the additional minor profile
found was consistent with defendant's profile. Agent Bissetteexplained that when testing an item of clothing, it is not unusual
to “find weaker profiles, not complete profiles, but additional
bands that could be and are consistent with those of the person
that is reported to have worn the item of clothing.” Defendant
asserts that since Agent Bissette found that the DNA testing of the
swatch taken from defendant's jeans originated from more than one
donor, the evidence tended to mislead the jury, its probative value
was outweighed by its prejudicial effect, and the “mixture”
evidence was scientifically unreliable. We disagree.
Our Supreme Court has held that “evidence of DNA profile
testing is generally admissible . . . ,” but noted that the
admissibility of DNA test results remains subject to attack based
on irrelevance, prejudice to the defendant, or unreliability.
State v. Pennington, 327 N.C. 89, 101, 393 S.E.2d 847, 854 (1990).
See also,
State v. McKenzie, 122 N.C. App. 37, 468 S.E.2d 817
(1996). The
Pennington Court focused on the following indices of
reliability in determining that the DNA profile testing results had
been properly admitted: “[T]he expert's use of established
techniques, the expert's professional background in the field, the
use of visual aids before the jury so that the jury is not asked
'to sacrifice its independence by accepting [the] scientific
hypotheses on faith,' and independent research conducted by the
expert.”
Pennington, 327 N.C. at 98, 393 S.E.2d at 853 (quoting
State v. Bullard, 312 N.C. 129, 150-51, 322 S.E.2d 370, 382
(1984)). Evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence.” N.C. Gen. Stat. § 8C-1, Rule 401 (2001).
Further, the admissibility of expert testimony is specifically
governed by Rule 702 which states, in pertinent part, “[i]f
scientific, technical or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form
of an opinion.” N.C. Gen. Stat. § 8C-1, Rule 702(a) (2001).
In the instant case, Agent Bissette explained in great detail
the process of DNA profile testing. Agent Bissette also described
the DNA profile testing's established scientific reliability; her
professional background in DNA analysis, including having qualified
as an expert in DNA analysis in at least forty cases; the
statistical mechanism employed; the statistical significance of the
matches found; and the basis of her opinion. Further, Agent
Bissette utilized visual aids to assist the jury. With regard to
the mixture of DNA found on the swatch from defendant's jeans,
Agent Bissette testified that a statistical value can be assigned
to the predominant profile and that this comports with the
generally accepted scientific standards of DNA profiling.
According to Agent Bissette, the predominant DNA profile that was
in the mixture on defendant's jeans was
sixty point six billion times more likely to
be observed if it came from Joseph Williamsthan if it came from another unrelated
individual in the North Carolina Caucasian
population.
It is one point six nine billion times
more likely to be observed if it came from
Joseph Williams than if it came from another
unrelated individual in the North Carolina
black population. And it is seven point zero
four billion times more likely to be observed
if it came from Joseph Williams than if it
came from another unrelated individual on the
North Carolina Lumby Indian population.
In the instant case, the DNA evidence was reliable, highly
probative of the identity of the victim's killer, and did not
unfairly prejudice defendant, confuse the issues, or mislead the
jury. Therefore, we conclude the trial court properly allowed
Agent Bissette to give her opinion as to the results of the DNA
testing on defendant's jeans.
IV.
Defendant next contends the trial court erred in denying his
motion to dismiss the charges of second degree murder and robbery
with a dangerous weapon based on the insufficiency of the evidence.
In ruling upon a motion to dismiss, the court must determine
whether the State has produced substantial evidence as to each
element of the offense, and that the defendant was the perpetrator.
State v. Brewington and State v. Norris, 80 N.C. App. 42, 53, 341
S.E.2d 82, 89 (1986). The evidence must be viewed in the light
most favorable to the State, giving the State the benefit of every
reasonable inference to be drawn therefrom.
State v. McCullers,
341 N.C. 19, 28-29, 460 S.E.2d 163, 168 (1995). “Substantial
evidence is such relevant evidence as a reasonable mind mightaccept as adequate to support a conclusion.”
State v. Franklin,
327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990).
“Second-degree murder is an unlawful killing with malice, but
without premeditation and deliberation.”
State v. Brewer, 328 N.C.
515, 522, 402 S.E.2d 380, 385 (1991). The essential elements of
second degree murder include: “1. defendant killed the victim; 2.
defendant acted intentionally and with malice; and 3. defendant's
act was a proximate cause of the victim's death.”
State v. Bostic,
121 N.C. App. 90, 98, 465 S.E.2d 20, 24 (1995). “[M]alice may be
inferred from the intentional use of a deadly weapon.”
State v.
Camacho, 337 N.C. 224, 233, 446 S.E.2d 8, 13 (1994).
We conclude that when viewing the evidence in the light most
favorable to the State, there is substantial evidence of each
element of second degree murder. Dr. Chancellor testified that the
end of the gun barrel was held less than an inch from Williams'
forehead when it was fired and that Williams died as a result of
the gunshot wound to his forehead. Further, the evidence places
defendant at the crime scene where Williams was killed during the
time frame of when the homicide occurred. Defendant was seen in
Grady's apartment with a gun, similar to the murder weapon, prior
to the time the homicide occurred. In addition, Williams' blood
was found on the jeans that defendant was wearing. Within several
hours of the murder, defendant and Grady were driving the victim's
car in another city with the mattress, which contained the victim's
body, in the rear seat. After being stopped for a minor traffic
violation by a highway patrol trooper, defendant and Grady fled anda high speed chase ensued. The victim's credit cards and driver's
license were found in the waistband of Grady's pants. Therefore,
there was substantial evidence that defendant, acting in concert
with Grady, was the perpetrator of the homicide. There is also an
inference that the killing was intentional and committed with
malice. Finally, there was evidence tending to show that the
victim died as a result of a gunshot wound to his forehead.
Therefore, there was substantial evidence of each essential element
of second degree murder. Accordingly, the trial court properly
denied defendant's motion to dismiss the charge of second degree
murder.
Now turning to the trial court's denial of defendant's motion
to dismiss the armed robbery charge. Defendant contends the trial
court erred in submitting the charge of robbery with a dangerous
weapon to the jury because the State presented insufficient
evidence to support this charge. Under N.C. Gen. Stat. § 14-87(a)
(2001), “[t]he 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,
disc. review denied, 352 N.C. 152,
544 S.E.2d 233 (2000). To be found guilty of robbery with a
dangerous weapon, the defendant's threatened use or use of a
dangerous weapon must precede or be concomitant with the taking, or
be so joined by time and circumstances with the taking as to bepart of one continuous transaction.
State v. Hope, 317 N.C. 302,
306, 345 S.E.2d 361, 364 (1986).
In the instant case, when the evidence is viewed in the light
most favorable to the State, there is substantial evidence of the
essential elements of robbery with a dangerous weapon. From the
evidence, a reasonable inference could be drawn that defendant,
acting in concert with Grady, took the victim's automobile and
credit cards by the use of a firearm, whereby the victim's life was
threatened or endangered. Additionally, it could reasonably be
inferred from the evidence that the use of the firearm was so
joined in time and circumstances with the taking as to be part of
one continuous transaction. Therefore, defendant's motion to
dismiss the armed robbery charge was properly denied.
V.
Defendant additionally assigns error to the trial court's
refusal to instruct the jury on common law robbery. Our Supreme
Court has held that
where the uncontroverted evidence is positive
and unequivocal as to each and every element
of armed robbery, and there is no evidence
supporting defendant's guilt of a lesser
included offense, the trial court does not err
by failing to instruct the jury on the lesser
included offense of common law robbery.
State v. Cummings, 346 N.C. 291, 325, 488 S.E.2d 550, 570 (1997).
The distinction between the offenses of robbery with a dangerous
weapon and common law robbery is that “the former is accomplished
by the use or threatened use of a dangerous weapon whereby the lifeof a person is endangered or threatened.”
State v. Peacock, 313
N.C. 554, 562, 330 S.E.2d 190, 195 (1985).
Defendant in the instant case specifically contends that the
State failed to present positive and unequivocal evidence that the
victim's property was taken by the use or threatened use of a
dangerous weapon. Our Supreme Court has stated:
To be found guilty of robbery with a dangerous
weapon, the defendant's threatened use or use
of a dangerous weapon must precede or be
concomitant with the taking, or be so joined
by time and circumstances with the taking as
to be part of one continuous transaction.
Where a continuous transaction occurs, the
temporal order of the threat or use of a
dangerous weapon and the taking is immaterial.
State v. Olson, 330 N.C. 557, 566, 411 S.E.2d 592, 597 (1992)
(citations omitted). In the case
sub judice, the uncontroverted
evidence is positive and unequivocal as to defendant's use of a
dangerous weapon and the taking being part of one continuous
transaction. Several hours after Williams had been shot in the
head, defendant was driving Williams' car with Williams' body in
the back seat. Moreover, while searching Grady at the jail, a jail
matron found a few of Williams' credit cards and driver's license.
Therefore, the trial court did not err in failing to instruct the
jury on common law robbery.
VI.
Defendant next argues that the trial court erred in refusing
to instruct the jury on misdemeanor larceny. In support of this
contention, defendant asserts that the jury could have found thatdefendant's property had either been taken prior to the use of a
firearm or long after the use of a firearm.
Our Supreme Court has held that misdemeanor larceny is a
lesser included offense of armed robbery.
State v. White, 322 N.C.
506, 369 S.E.2d 813 (1988).
The test in every case involving the propriety
of an instruction on a lesser grade of an
offense is not whether the jury could convict
defendant of the lesser crime, but whether the
State's evidence is positive as to each
element of the crime charged and whether there
is any conflicting evidence relating to any of
these elements.
State v. Leroux, 326 N.C. 368, 378, 390 S.E.2d 314, 322 (1990). In
this case, the uncontroverted evidence shows that “defendant's use
of the gun was so joined by time and circumstances to the taking as
to make the use of the gun and the taking parts of one continuous
transaction.”
Olson, 330 N.C. at 567, 411 S.E.2d at 597.
Therefore, we conclude the trial court properly denied defendant's
request to instruct on misdemeanor larceny.
VII.
Defendant also claims the trial court erred in refusing to
instruct the jury on the lesser included offense of involuntary
manslaughter. Defendant argues that the jury could have found that
the killing was the result of either a culpably negligent act or an
unlawful act not constituting a felony or naturally dangerous to
another.
“Involuntary manslaughter is the unintentional killing of a
human being without . . . malice (1) by some unlawful act not
amounting to a felony or naturally dangerous to human life, or (2)by an act or omission constituting culpable negligence.”
State v.
Wrenn, 279 N.C. 676, 687, 185 S.E.2d 129, 136 (1971) (emphasis
omitted). As discussed more specifically in Section IV above, the
State's evidence tends to show an intentional killing. No evidence
was presented from which the jury could have reasonably inferred
that there was an accidental or other unintentional discharge of
the weapon, or that there was an unlawful act not amounting to a
felony or naturally dangerous to human life. Accordingly, the
trial court did not err in failing to instruct the jury on
involuntary manslaughter.
VIII.
Defendant argues the trial court erred in instructing the jury
on the doctrine of acting in concert. Defendant asserts that the
State failed to present evidence showing that defendant joined in
a purpose to commit murder or robbery with a firearm or that
defendant was actually or constructively present when the crimes
were committed.
A trial court must instruct the jury on acting in concert when
the State presents evidence tending to show that the defendant was
present at the scene of the crime and “acted together with another
who did acts necessary to constitute the crime pursuant to a common
plan or purpose to commit the crime.”
State v. Robinson, 83 N.C.
App. 146, 148, 349 S.E.2d 317, 319 (1986).
We conclude the State's evidence was sufficient for the trial
court to instruct the jury on acting in concert. A jury could have
reasonably inferred from the evidence that defendant was present atthe time the crimes were committed and that he acted together with
Grady pursuant to a common plan or purpose in the commission of the
murder and armed robbery. When defendant was pulled over by
Trooper Jones, he was driving the victim's car with the victim's
body in the back seat and Grady sitting in the passenger's seat.
Additionally, earlier in the day, defendant was seen with a gun at
Grady's apartment, where the murder occurred. Thus, the evidence
was sufficient to allow the jury to reasonably infer that defendant
was present at the crime scene during the time the offenses were
committed and that defendant acted together with Grady pursuant to
a common plan or purpose in the commission of the murder and armed
robbery. Therefore, the trial court did not err in instructing the
jury on the doctrine of acting in concert.
IX.
Defendant next contends the trial court erred in instructing
the jury on the doctrine of recent possession in connection with
the charge of robbery with a dangerous weapon. We disagree.
The doctrine of recent possession permits an inference that
the person in possession of recently stolen property is the thief.
State v. Joyner, 301 N.C. 18, 28, 269 S.E.2d 125, 132 (1980). In
order for such an inference to arise, the State must show beyond a
reasonable doubt:
(1) the property described in the indictment
was stolen; (2) the stolen goods were found in
defendant's custody and subject to his control
and disposition to the exclusion of others
though not necessarily found in defendant's
hands or on his person so long as he had the
power and intent to control the goods; and (3)
the possession was recently after the larceny,mere possession of stolen property being
insufficient to raise a presumption of guilt.
State v. Maines, 301 N.C. 669, 674, 273 S.E.2d 289, 293 (1981)
(citations omitted). “The 'exclusive' possession required to
support an inference or presumption of guilt need not be a sole
possession but may be joint.”
Id. at 675, 273 S.E.2d at 294. For
the presumption to arise, “the possession in defendant must be to
the exclusion of all persons not party to the crime.”
Id.
Defendant claims the State failed to offer evidence that Williams'
property was stolen, or that it was in defendant's possession.
The evidence in the case
sub judice showed that shortly after
Williams was shot, his car was moved to the back of Grady's
apartment so that his body could be placed in the back seat. In
addition, several hours later, defendant was found driving
Williams' car in another town. Moreover, Grady, who was with
defendant in the car, had possession of Williams' driver's license
and credit cards. Therefore, the State's evidence gives rise to a
reasonable inference that the stolen property was in exclusive
possession of defendant and Grady, a party to the crime.
Accordingly, the trial court did not err in giving the instruction
on the doctrine of recent possession.
X.
Defendant finally contends that 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.” “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) (2001). Defendant cites
State v.
Noffsinger, 137 N.C. App. 418, 528 S.E.2d 605 (2000), to support
his argument. The State concedes that no evidence was presented
tending to show that defendant joined with a person other than
Grady in committing the homicide and armed robbery. The State was
also unable to distinguish the facts in this case on the sentencing
issue with
Noffsinger. Thus, we conclude that 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. Accordingly, defendant
is entitled to a new sentencing hearing.
For the reasons stated herein, we find no error in defendant's
trial. However, we conclude that the trial court erred in
sentencing by finding as an aggravating factor that defendant
joined with more than one other person in committing the offense.
Therefore, we remand for a new sentencing hearing.
No error in trial; remanded for new sentencing hearing.
Judges WYNN and TIMMONS-GOODSON concur.
Report per Rule 30(e).
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