State v Beacher, (02-1710) 12/02/2003

Appeal by defendant from judgments entered 15 February 2001 by Judge Frank Brown in the Superior Court in Hertford County. Heard in the Court of Appeals 8 October 2003.

Attorney General Roy Cooper, by Assistant Attorney General Jason T. Campbell, for the State.

Everett & Hite, L.L.P., by Stephen D. Kiess, for defendant- appellant.

    HUDSON, Judge.

    The grand jury indicted defendant on charges of first-degree burglary, first-degree kidnapping, two counts of assault with intent to inflict serious injury, armed robbery and attempted armed robbery. The jury convicted him of armed robbery, conspiracy to commit armed robbery, first-degree burglary, two counts each of attempted armed robbery and assault with a deadly weapon inflicting serious injury. The court sentenced defendant to three consecutive terms of 77 to 102 months imprisonment and an additional concurrent term of 29 to 44 months. Defendant appeals, and we find no error.
    The State's evidence tended to show that early on the morning of 7 July 2000, five men robbed the residents of 102 Main Street,in Winton, North Carolina. Two sisters, who had worked in the house as prostitutes, planned the robbery and recruited defendant and his accomplices to carry it out. Defendant was in a relationship with one of the sisters, which led to his involvement in the robbery scheme. Believing that the residents of the house would surrender their money and belongings without a fight, the sisters drew a detailed map of the house marking the suspected location of valuables and where the residents slept, and they described the preferred method of entering the house. The sisters planned to be present during the robbery, spending the night as “guests” of two of the men. When some of the would-be robbers balked at following through on the plan, one of the sisters persuaded them by providing apparent firepower, consisting of inoperable and unloaded guns.
    Four co-defendants testified against defendant Beacher. After making their way into the house, three of the five robbers entered the second-floor room of Francisco Aguilar and Artemio Cardoso. During the attempted robbery, firearms were discharged, injuring Mr. Aguilar and Mr. Cardoso. Nevertheless, Mr. Aguilar managed to restrain one of the robbers, Robby Leary, until police arrived. Once in police custody, Leary explained the robbery scheme and eventually identified defendant as one of the participants. Police found $1770.00 in Leary's pockets.

    In his first assignment of error, defendant alleges a fatal variance between the defendant's indictment for armed robbery andthe evidence used to convict him of the armed robbery. Defendant contends that while he was indicted for stealing “$1,770 in US currency,” the evidence presented only involved a wallet, without mention of a specific amount of money. Defendant made and renewed a motion to dismiss the armed robbery charge on the basis of the alleged variance. The trial court denied the motions. We find no error.
    “In ruling on a motion to dismiss, the trial court need determine only whether there is substantial evidence of each essential element of the crime and that the defendant is the perpetrator. The trial court must examine the evidence in the light most favorable to the State, granting the State every reasonable inference to be drawn from the evidence.” State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1998) (internal citation omitted). “'Substantial evidence' is relevant evidence that a reasonable mind might accept as sufficient to support a conclusion.” State v. Allen, 346 N.C. 731, 739, 488 S.E.2d 188, 192 (1997). Further, before a variance between the indictment and the evidence will be of consequence, “the defendant must show a fatal variance between the offense charged and the proof as to 'the gist of the offense.'” State v. Pickens, 346 N.C. 628, 646, 488 S.E.2d 162, 172 (1997).     We find no variance at all between the indictment and proof offered as evidence, much less a fatal variance.
    Here, one of the co-defendants testified that Leary took a wallet from one of the victims and put it in his pocket. Thereafter, Leary never left the crime scene, being restrained by two of the victims until the police arrived. Police testimony revealed that when searching Leary, officers discovered $1770 in his front pocket. Further, the Winton chief of police testified that the money and wallet taken from Leary and introduced into evidence “belonged to Cesar Lemos,” one of the victims. While the chief's statement may have been hearsay, the defense failed to object to it. “When hearsay is admitted without objection, it may be considered and given any evidentiary value which it may possess.” State v. Laws, 16 N.C. App. 169, 170, 191 S.E.2d 401, 402 (1972). In the light most favorable to the State, the jury could reasonably infer from this evidence that the $1770 discovered in Leary's pocket was stolen from the victim's wallet. This evidence was sufficient to withstand defendant's motion to dismiss, and, rather than being at variance, is consistent with the indictment. See State v. Jones, 357 N.C. 409, 584 S.E.2d 751 (2003) (finding no variance where the indictment charged that defendant robbed Mr. Hunt and evidence included Mrs. Hunt's report that the robbers took a briefcase containing “their” personal papers, allowing the jury to infer that the briefcase belonged to Mr. Hunt).
    Building on the previous assignment of error, defendant next alleges error and plain error in the trial court's instructions to the jury on the charge of armed robbery. Defendant contends that he was entitled to a jury instruction directing the jury to consider only whether the evidence showed him to be guilty ofstealing $1770, rather than evidence of stealing the wallet. Because defendant did not object to the instructions when given, we review this assignment of error under the plain error standard. N.C.R. App. P. 10(c)(4) (1999).
    Our Supreme Court has recently re-emphasized that
        the plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a “fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,” or “where [the error] is grave error which amounts to a denial of a fundamental right of the accused,” or the error has “'resulted in a miscarriage of justice or in the denial to appellant of a fair trial'” or where the error is such as to “seriously affect the fairness, integrity or public reputation of judicial proceedings” or where it can be fairly said “the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.”

State v. Walters, 357 N.C. 68, 84-5, ___ S.E.2d ___ (2003) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)). As discussed above, we believe the evidence regarding the theft of the wallet and $1770 in cash was sufficiently clear to ensure that neither the jury nor defendant were confused about the charges, and we do not find this an exceptional case resulting in a miscarriage of justice, and thus demanding reversal because of the instructions.
    In his third assignment of error, defendant contends that the State failed to prove defendant's prior convictions by competent evidence, and thus that the trial court erred by sentencing defendant at prior record level II. Prior convictions may beproved by stipulation of the parties, an original or copy of court records, a copy of records maintained by the Division of Motor Vehicles, the Division of Criminal Information or the Administrative Office of the Courts, or by any other method the trial court finds reliable. N.C. Gen. Stat. § 15A-1340.14(f) (1999). While these requirements are not stringent, “the law requires more than the State's unverified assertion that a defendant was convicted of the prior crimes listed on a prior record level worksheet.” State v. Goodman, 149 N.C. App. 57, 72, 560 S.E.3d 196, 205 (2002), reversed on other grounds, in part, review improvidently allowed by, in part, 357 N.C. 43, 577 S.E.2d 619, 2003 (2003).
    Here, the court found three prior record points based on the prosecutor's unverified assertions and a prior level worksheet, placing defendant at prior record level II. This Court has upheld sentences based on submission of prior level worksheets where the defendant failed to object at the time of their offer and where the defendant through his counsel's colloquy was found to have admitted the contents of the worksheet. See State v. Eubanks, 151 N.C. App. 499, 504-05, 565 S.E.2d 738, 742 (2002). Here, however, defendant's counsel engaged in no similar colloquy with the court that might be construed as an admission on the question of the worksheet or defendant's proper prior record level. Thus, the worksheet, under these circumstances, did not satisfy the proof requirements.    However, in his brief to this Court, defendant concedes that he was convicted of prior offenses justifying an assessment of two prior record points and resulting in his classification as a Class II offender, the same prior record level found by the trial court. The trial court's error in finding that defendant had three, rather than two prior record points, was therefore harmless. See State v. Smith, 139 N.C. App. 209, 219-20, 533 S.E.2d 518, 524, appeal dismissed, 353 N.C. 277, 546 S.E.2d 391 (2000).
    Defendant next contends that the trial court erred in failing to make findings of fact about certain mitigating factors presented by defendant. “When the court does exercise its discretion to deviate from the presumptive range, the court must make written findings of aggravation and mitigation, and weigh the aggravating and mitigating factors to determine the defendant's sentence.” State v. Bright, 135 N.C. App. 381, 382, 520 S.E.2d 138, 139(1999); N.C. Gen. Stat. § 15A-1340.16(c) (1999). Here, because the court sentenced defendant in the presumptive range, no such findings were required.
    Similarly, in his final assignment of error, defendant argues the trial court erred in imposing sentences within the aggravated range without making findings about the existence of any aggravating factors. As discussed above, the trial court is required to make findings of mitigating factors only when departing from the presumptive range in sentencing. Bright, 135 N.C. App. at 382, 520 S.E.2d at 139. Here, by a quirk of legislative drafting, defendant's sentences actually fall in both the presumptive andaggravated ranges, as these overlap in the sentencing grid. N.C. Gen. Stat. § 15A-1340.17 (1999). The implication of the court's failure to make findings about any aggravating factors indicates that it treated defendant's sentence as falling into the presumptive range, and thus no findings were required.
    No error.
    Judges TIMMONS-GOODSON and ELMORE concur.
    Report per Rule 30(e).

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