An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1718



Filed: 18 November 2003

State of North Carolina    

v .                         Pitt County
                            No. 01 CRS 65727

    Appeal by defendant from judgment entered 26 July 2002 by Judge Clifton W. Everett, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 15 October 2003.

    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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