State of North Carolina
v
.
Pitt County
No. 01 CRS 65727
DEWAN MAXWELL,
Defendant.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Bertha L. Fields, for the State.
Jeffrey Evan Noecker, for defendant-appellant.
MARTIN, Judge.
Defendant was indicted upon charges of robbery with a
dangerous weapon and second degree kidnapping and entered pleas of
not guilty. The State's evidence at trial tended to show that on
the evening of 17 December 2001, Louie Tyndall went out of his
house to get a package from his truck, which was parked in his
driveway, when he was approached by two masked men, one tall and
one short. The taller man put a gun to Mr. Tyndall's head and the
shorter man demanded Mr. Tyndall's wallet and money, but Mr.
Tyndall did not have any money or a wallet on him. The tall man
then directed Mr. Tyndall to go inside his house. Once inside, the
short man told Mr. Tyndall to show them his safe. Mr. Tyndall told
the men that he did not have a safe. The men then realized thatMr. Tyndall's wife was in the house. They hesitated briefly, and
then fled.
Officer Ben Quick of the Ayden Police Department was alerted
to the robbery by a 911 call from Mr. Tyndall's wife. As he
approached the scene, he encountered two subjects that fit the
robbers' description. Officer Quick identified the taller man as
the defendant, Dewan Maxwell, and the shorter man as Juan Hall.
Later, defendant gave a written statement to the police admitting
his involvement in the attempted robbery, but stating that it was
Mr. Hall's idea to perpetrate the crime.
Juan Hall testified that defendant talked to him about robbing
a local restaurant owner that night. Hall testified that he was
high on cocaine and marijuana, needed money, and thus, he agreed to
participate in the robbery with the defendant. When they were
unable to find the restaurant owner, the defendant and Mr. Hall
decided to walk to Mr. Hall's sister's house on Juanita Street. En
route, the pair saw Mr. Tyndall, and Mr. Hall testified that the
defendant suddenly ran up on him. Mr. Hall followed and that was
when the attempted robbery took place.
The kidnapping charge was dismissed at the close of the
State's evidence. Defendant offered evidence, testifying in his
own behalf. Defendant denied involvement in the incident and
denied having made a statement to the officers. He testified that
he has a twin brother, Dwayne, who looks like him except for having
long hair. The jury returned a verdict of guilty of attempted
robbery with a dangerous weapon. Defendant appeals from thejudgment entered upon the verdict, which imposed an active sentence
in the aggravated range.
__________________
The record on appeal sets forth eight assignments of error,
only one of which is brought forward in defendant's brief. The
remaining assignments of error are deemed abandoned. N.C. R. App.
P. 28(a). By two arguments in support of his sixth assignment of
error, defendant contends the trial court erred when it found as an
aggravating factor that defendant induced others to participate in
the commission of the offense, and that the trial court improperly
considered defendant's choice to exercise his right to a jury trial
in determining his sentence. After careful consideration of his
arguments, we conclude they are without merit.
Defendant first argues that the trial court erred when it
found as an aggravating factor that he induced others to
participate in the commission of the offense. See N.C. Gen. Stat.
§ 15A-1340.16(d)(1) (2001). Principally, defendant contends the
State presented insufficient evidence to support an aggravated
sentence. A defendant who receives an aggravated sentence is
“entitled to appeal as a matter of right the issue of whether his
or her sentence is supported by [the] evidence . . . .” N.C. Gen.
Stat. § 15A-1444(a1)(2001). “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). The trial court
is given great latitude when determining whether there is
sufficient evidence to support an aggravating factor. State v.Barton, 335 N.C. 741, 750, 441 S.E.2d 306, 311 (1994). Once an
aggravating factor is found, this Court must consider the evidence
in the light most favorable to the State, and the State is entitled
to every reasonable inference to be drawn therefrom. See State v.
Syriani, 333 N.C. 350, 392, 428 S.E.2d 118, 141, cert. denied, 510
U.S. 948 (1993).
To support a finding of the statutory aggravating factor
contained in G.S. § 15A-1340.16(d)(1), that a defendant induced
others to participate in the commission of the offense, the State
is required to show that “the participants would not have engaged
in the activity but for the inducement by the defendant.” State v.
Wilson, 338 N.C. 244, 256, 449 S.E.2d 391, 398 (1994). Juan Hall
testified that it was the defendant's idea to commit a robbery on
the night in question and that Hall agreed to go along. He
testified that defendant brought a gun for use during the robbery,
that defendant initiated the attempted robbery of Mr. Tyndall, and
that defendant placed the gun to Mr. Tyndall's head during the
attempted robbery. Defendant made a statement that he was indeed
involved in the robbery, that he was the one with the gun, but that
it was Juan who initiated the attempted robbery of Mr. Tyndall.
While the evidence is not uncontroverted, it is within the trial
court's discretion to determine that one witness' version of events
is more credible than the version of events given by another
witness. See 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). We therefore conclude that there was sufficient evidenceto establish a reasonable inference, when viewed in a light most
favorable to the State, that Juan Hall would not have engaged in
the commission of the attempted robbery of Mr. Tyndall but for the
inducement of the defendant to do so.
Defendant argues in the alternative that the statutory phrase
“induced others to participate” was intended to limit the finding
of this aggravating factor only to situations where more than one
other person was involved in the crime with the defendant. See
N.C. Gen. Stat. § 15A-1340.16(d)(1)(2001)(emphasis added). When
construing the meaning of a statute, courts must “ascertain the
legislative intent to assure that the purpose and intent of the
legislation are carried out.” Fowler v. Valencourt, 334 N.C. 345,
348, 435 S.E.2d 530, 532 (1993). The first step in the process
requires that courts look to the language of the statute to
determine if its meaning is plain and clear. Id. It is clear that
the statutory meaning of G.S. § 15A-1340.16(d)(1) does not require
that more than one other person be involved in the offense. See
State v. Lattimore, 310 N.C. 295, 299, 311 S.E.2d 876, 879 (1984)
(holding that the involvement of only one other person in the
commission of an offense with the defendant was sufficient to
sustain aggravation of a sentence on the grounds that “defendant
induced others to participate” in the offense).
We reject defendant's argument that the decision of this Court
in State v. Moses, 154 N.C. App. 332, 340, 572 S.E.2d. 223, 229
(2002) requires a showing, to support a finding of the aggravating
factor contained in G.S. § 15A-1340.16(d)(1), that more than oneother person be involved with a defendant in the commission of the
crime. We interpret the opinion in Moses to apply only to the
aggravating factor contained in N.C. Gen. Stat. § 15A-1340.16(d)(2)
(2001) that “defendant joined with more than one other person in
committing the offense and was not charged with committing a
conspiracy.” Had the legislature intended to require the
participation of more than one other person for aggravation of a
sentence pursuant to G.S. § 15A-1340.16(d)(1), then the legislature
would have used the same “more than one other person” language it
used in § 15A-1340.16(d)(2).
Next, defendant argues the trial court violated N.C. Gen.
Stat. § 15A-1340.16(d) (2001), which states that the trial court
“shall not consider as an aggravating factor the fact that the
defendant exercised the right to a jury trial,” as evidenced by the
following statement made by the trial court after sentencing:
Well, Mr. Maxwell, your stream has run out
here today. Your good fortune up here in
Criminal Court. The Court is aware that you
have already been up here a couple of times
for other offenses. Jury found you not guilty
then. This time you overplayed your hand.
The State argues that the defendant's assignment of error should be
dismissed because the defendant did not adequately preserve the
issue for review by objecting to the statement at trial. See N.C.
R. App. P. 10(b)(1). However, arguments raising the issue of
whether a sentencing determination “was unauthorized at the time
imposed, exceeded the maximum authorized by law, was illegally
imposed, or is otherwise invalid as a matter of law” may be the
subject of appellate review “even though no objection, exception ormotion has been made in the trial division.” N.C. Gen. Stat. §
15A-1446(d)(18)(2003).
A defendant is entitled to a new sentencing hearing if it can
be reasonably inferred that the sentence was based, even in part,
on the defendant's insistence on a jury trial. State v. Peterson,
154 N.C. App. 515, 517, 571 S.E.2d 883, 885 (2002). In Peterson,
this Court vacated a sentence where the trial court made the
following comments:
[Defendant] tried to be a con artist with the
jury . . . [he] rolled the dice in a high
stakes game with the jury, and its very
apparent that [he] lost that gamble . . . .
any rational person would never have rolled
the dice and asked for a jury trial with such
overwhelming evidence.
Id. at 518, 571 S.E.2d at 885. These comments are distinguishable
from the comments made in the instant case. In this case, the
trial court's comments reasonably refer to the defendant's prior
appearances in criminal court and his probabilities of receiving a
guilty verdict as his appearances accumulate. In contrast, the
comments made in the Peterson case directly refer to the
defendant's decision to proceed with a jury trial in the face of
overwhelming evidence, which is reversible error. Since the
comments in this case do not reasonably implicate the defendant's
decision to exercise his right to a jury trial when determining the
sentence, they do not violate N.C. Gen. Stat. § 15A-1340.16(d)
(2001).
No error.
Judges STEELMAN and LEVINSON concur. Report per Rule 30(e).
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