An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1497


Filed: 21 October 2003


v .                                 Nash County
                                    Nos. 00CRS052378-80

    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.


    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.

    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.
    Judges McGEE and CALABRIA concur.
    Report per Rule 30(e).

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