Appeal by defendant from judgments entered 12 August 2002 by
Judge Quentin T. Sumner in Nash County Superior Court. Heard in
the Court of Appeals 11 September 2003.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Amy Pickle, for the State.
Ligon and Hinton, by Lemuel W. Hinton, for defendant-
appellant.
HUNTER, Judge.
Detrius Antwon Davis (“defendant”) appeals from judgments and
sentences entered based on his plea of guilty to second degree
murder, first degree kidnapping, and robbery with a dangerous
weapon. For the reasons stated herein, we affirm.
On 11 December 2000, defendant was indicted for murder, first
degree kidnapping, and robbery with a dangerous weapon. During a
plea hearing on 12 August 2002, defendant pled guilty to second
degree murder, as well as to the kidnapping and robbery charges.
The presiding judge found that defendant was competent to stand
trial, was satisfied with his attorney, and had entered into the
plea freely, voluntarily, and understandingly. Defendant waivedformal presentation of evidence and stipulated to the State's
factual basis for the plea, which was as follows.
On 27 August 2000, defendant and then fifteen-year-old Joseph
Lyons, Jr. (“Lyons”) rode a bicycle to the City Lake area. Each
stated that the other approached Karen Williams (“Williams”) while
she was sleeping in her car. When she awoke and started the car,
she was shot through the car window. Defendant and Lyons both
stated that the other then drove Williams' car to Tar River where
she was subsequently shot three more times.
At approximately 1:00 p.m. later that day, Williams' body was
found by fishermen in the Tar River. Thereafter, Williams' car was
spotted by a detective and, upon approach by the detective,
defendant and Lyons fled from the car. In statements made to the
police, both defendant and Lyons stated that they had left Tar
River in Williams' car and went to clean up at Lyons' house. A
consensual search of Lyons' house followed, during which Williams'
purse, personal letters, and CDs were found in a trash cart. Paper
towels and men's boxers covered in Williams' blood were also found
in the house.
After the court's acceptance of the factual basis for the
plea, defendant offered evidence that suggested he was “slightly
mentally retarded.” The State then presented evidence to support
as an aggravating factor that defendant involved Lyons, a person
under the age of sixteen, in the commission of the crimes. The
court found the aggravating factor, but found no mitigating
factors. Thus, defendant received an aggravated sentence of 200 to249 months for second degree murder, 110 to 141 months for first
degree kidnapping, and 85 to 111 months for robbery with a
dangerous weapon.
On 16 August 2002, the trial court reconsidered defendant's
sentences at his request. Defendant presented additional evidence
from which the court found mitigating factors regarding his mental
state. However, upon finding that the same aggravating factor
previously found by the court outweighed the newly found mitigating
factors, defendant's sentences were affirmed. Defendant appeals.
I.
By his first assignment of error, defendant argues the trial
court should have dismissed the murder indictment against him
because the short form indictment used was constitutionally
defective. Our Supreme Court has addressed this constitutionality
issue on numerous occasions and consistently held that short form
indictments, like the one used in the present case, comply with
both the North Carolina and United States Constitutions.
See State
v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000),
cert. denied, 531
U.S. 1130, 148 L. Ed. 2d 797 (2001). Therefore, defendant's first
assignment of error is without merit.
II.
By defendant's second assignment of error, he argues the trial
court erred in finding as an aggravating factor that he involved a
person under the age of sixteen in the commission of each of the
crimes for which he was convicted and sentenced. We disagree. The State bears the burden of proving by a preponderance of
the evidence that aggravating factors exist. N.C. Gen. Stat. §
15A-1340.16(a) (2001). However, if the State fails to present such
evidence at sentencing, the trial court may rely on “the
circumstances surrounding the offense, including factual
allegations contained in the indictment or other criminal
process[.]”
State v. Flowe, 107 N.C. App. 468, 472, 420 S.E.2d
475, 478 (1992). The trial court has wide latitude to weigh the
credibility of any evidence regarding aggravating factors.
State
v. Smarr, 146 N.C. App. 44, 53, 551 S.E.2d 881, 887 (2001),
disc.
review denied, 355 N.C. 291, 561 S.E.2d 500 (2002). Once the court
finds the existence of evidence supporting aggravating factors, it
may depart from the presumptive range of sentences and that
departure will not be disturbed absent an abuse of the court's
discretion. N.C. Gen. Stat. § 15A-1340.16(b);
State v. Kemp, 153
N.C. App. 231, 240, 569 S.E.2d 717, 722,
disc. review denied, 356
N.C. 441, 573 S.E.2d 158 (2002).
In the instant case, the court found that pursuant to Section
15A-1340.16(d)(13), “defendant
involved a person under the age of
16 in the commission of the crime.” N.C. Gen. Stat. § 15A-
1340.16(d)(13) (emphasis added). Defendant does not dispute that
Lyons was fifteen when the crimes were committed; rather, defendant
contends that the Legislature intended that the evidence establish
more than mere participation in the commission of the crimes to
sufficiently establish that a defendant involved an underage
person. While our case law does suggest that a defendant mustactually “draw” a person under the age of sixteen into the
commission of a crime for purposes of Section 15A-1340.16(d),
see
State v. Smarr, 146 N.C. App. at 53, 551 S.E.2d at 887, the
evidence here does not require a determination of Legislative
intent at this time.
The factual basis for defendant's plea included claims made by
defendant and Lyons that implicated the other as the person who
committed the crimes. Yet, the court was within its discretion to
conclude that Lyons' claim was more credible and that defendant did
involve Lyons in the crimes. That conclusion was partly supported
by the trial court's consideration of the factual allegations
contained in Lyons' statement to the court and summarized by the
prosecuting attorney as follows:
In Joseph Lyons' statement he states that
“Detrius asked me if I wanted to go to City
Lake and I said it don't matter.” If you
accept Joseph Lyons' statement, Detrius was
the one who suggested they even be at that
location where the murder occurred. . . .
[“]Detrius asked me to ride him on my
handlebars around City Lake.” Again, Detrius
directing the juvenile what to do, the
juvenile at this point becoming involved in
this crime, aiding and abetting him in what's
about to happen. “We rode the bike in the
dark area of the park where we could not be
seen.”
Then he goes on to describe how Detrius
approached the vehicle, shot the woman, and
Joseph Lyons' statement says that Joseph then
followed him down where he shot her again,
where he killed her. “I rode my bike to the
boat ramp . . . and I waited for Detrius to
get over there with the white girl.” And then
even afterwards, after this shooting has
occurred, according to the Joseph Lyons'
statement, “Detrius told me to meet him at hishouse and I told him no. Detrius told me to
meet him at my house and I said okay.”
While defendant did take issue with the persuasiveness of Lyons'
statements summarized by the prosecuting attorney, he did not
object to the content of those statements. Thus, he impliedly
consented to the summarization of those statements thereby making
them properly before the trial court for consideration.
See State
v. Mullican, 329 N.C. 683, 685, 406 S.E.2d 854, 855 (1991).
Accordingly, the court did not abuse its discretion in finding as
an aggravating factor that defendant involved Lyons in the
commission of the crimes.
Affirmed.
Judges McGEE and CALABRIA concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***