1. Appeal and Error_failure to dismiss criminal charge_no motion at trial
Defendant's contention that a charge of conspiracy to sell a controlled substance should
have been dismissed was not reviewed on appeal because he did not move to dismiss at trial,
although he did move to dismiss other charges.
2. Sentencing_aggravating factors_acquittals of related offenses_facts proven
The trial court properly considered the aggravating factor of involving a person under 16
when sentencing defendant for conspiracy to sell a controlled substance even though defendant
was acquitted of contributing to the delinquency of a minor and of using a minor to commit a
controlled substance offense. The court may consider any aggravating factors reasonably related
to the purposes of sentencing which it finds proven by a preponderance of the evidence. The
minor's age in this case was stipulated and it cannot be inferred from the acquittals that the jury
found insufficient evidence to conclude that the co-conspirator was a minor.
Assistant Attorney General Martin T. McCracken, for the State
Robert W. Ewing, for the Defendant
WYNN, Judge.
From his conviction for Conspiracy to Sell a Controlled
Substance, Defendant, John Boyd, argues on appeal that the trial
court erred by failing to grant his motion to dismiss, and
considering as an aggravating sentencing factor that he involved a
person under 16 years of age in the commission of a crime. We find
no error in Defendant's trial.
At trial, the State's evidence tended to show that on 25
October 2001, while conducting undercover drug buys, Charlotte
Police Officers Eric Duft and Susan O'Donohue stopped two juvenilesin the Colony Acres Drive neighborhood and asked for some “hard” or
“rock”--slang terms for the drug crack cocaine. In response,
Quintine Hampton, one of the youths, pointed across the street and
yelled for “J.B.” to come over to the car. Responding to Hampton,
Defendant approached the officers' car. Officer Duft reiterated
his desire to find some “hard,” but before discussing the drug
request, Defendant asked the officers whether they were police.
Officer Duft denied being a police officer and assured Defendant he
“just wanted to get hooked up.” Apparently satisfied, Defendant
told Officer Duft to pull his car over and wait while he went down
the street to get “it.”
The officers then observed Hampton and Defendant cross Colony
Acres Drive before losing sight of them. After two or three
minutes, Hampton returned alone and handed Officer Duft a clear
plastic bag containing a rock of crack cocaine. Officer Duft paid
Hampton with a marked twenty dollar bill. Thereafter, Defendant
and Hampton were arrested separately.
After estimating that he had conducted approximately 200-300
similar undercover drug buy stings, Officer Duft testified that “it
is common for more than one person to be involved in the [drug]
transaction” and sometimes, “they will use a younger person to sell
them [because] [t]here is less consequences for a juvenile than
there is for an adult.” The arresting officer testified that, when
Defendant was apprehended, “He stated to me; and I, quote, 'I did
not sell shit. All I did was get a piece of the rock.'” At the
close of the State's evidence, defense counsel did not “care to beheard” on the conspiracy charge, but did move to dismiss all
remaining charges; the motions were denied.
In his defense, Defendant denied the statement attributed to
him by the arresting officer. Rather, Defendant testified that he
was walking towards Hampton to warn him that Officers Duft and
O'Donohue were police officers. When Defendant “couldn't catch
[Hampton's ] bicycle” he turned around to go home. Defendant
maintained “I don't have nothing to do with it.”
Ultimately, the jury convicted Defendant of Conspiracy to Sell
a Controlled Substance but acquitted him of the remaining charges
of Sale of a Controlled Substance, Contributing to the Delinquency
of a Minor
(See footnote 1)
, and Employing and Using a Minor to Commit a Controlled
Substance Offense.
(See footnote 2)
The trial judge found one aggravating factor
(that Defendant involved a person under the age of 16 in the
commission of the offense) outweighed mitigating factors (that
Defendant had a support system in the community and was gainfully
employed) and sentenced Defendant in the aggravated range of 18 to
22 months imprisonment. Defendant appealed.
[1] Defendant first argues the trial court erred by denying
his motion to dismiss the charge of Conspiracy to Sell a Controlled
Substance. For procedural reasons, we disagree. N. C. R. App. P. 10(b)(3) provides that “a defendant in a
criminal case may not assign as error the insufficiency of the
evidence to prove the crime charged unless he moves to dismiss the
action . . ..” The rules further provide that by presenting
evidence after the close of the State's case, a defendant waives
any previous motion to dismiss, and in order to preserve an
insufficiency of the evidence argument for appeal, defendant must
renew his motion to dismiss at the close of all evidence.
At the close of the State's case, the trial judge in the
instant case asked defense counsel whether he cared to make “any
motions for the defendant?” Defense counsel responded:
Yes, Your Honor. I think, taking the evidence
in the light most favorable to the state,
their strongest case seems to be for
conspiracy. And so, I don't care to be heard
on that . . . I'll ask you to dismiss the
sale, at the close of evidence.
At the close of all evidence, Defense counsel renewed prior motions
to dismiss: “We would rest and renew our motions to dismiss; and,
re-adopt our arguments, special as they relate to the sale,
conspiracy, contributing to the delinquency of a minor; and, the
engaging a minor in drug trafficking.” By that statement, defense
counsel renewed his argument that he “didn't care to be heard” on
the conspiracy charge because “their strongest evidence seems to be
for conspiracy.” Defense counsel did not avail himself of his
opportunity to move to dismiss the conspiracy charge at the close
of the State's evidence, and thus, he could not renew a nonexistent
motion at the close of all evidence. Accordingly, we are precluded
from reviewing the merits of Defendant's argument. See State v.
Stocks, 319 N.C. 437, 439, 355 S.E.2d 492, 492 (1987) (holding that“a defendant who fails to make a motion to dismiss at the close of
all the evidence may not attack on appeal the sufficiency of the
evidence at trial.”). We note, however, that even if this issue
had been properly preserved for appeal, the evidence in the record
sustains the trial court's denial of Defendant's motion to dismiss
this charge.
[2] Defendant next argues that because Hampton's age was an
element of the crimes for which he was acquitted, Contributing to
the Delinquency of a Minor and Employing and Using a Minor to
Commit a Controlled Substance Offense, the trial court erred by
considering the sentencing aggravating factor that he “involved a
person under 16 in the commission of a crime.” We disagree.
In North Carolina, a trial court may consider any aggravating
factors it finds proved by the preponderance of the evidence that
are reasonably related to the purposes of sentencing. N.C.G.S. §
15A-1340l.4(a). N.C.G.S § 15A-1340.16(d)(13) allows a court to
aggravate a defendant's sentence from the presumptive range when
“defendant involve[s] a person under the age of 16 in the commission
of the crime.”
In State v. Marley, 321 N.C. 415, 424, 364 S.E.2d 133, 138
(1987), our Supreme Court stated that “once a defendant has been
acquitted of a crime he has been set free or judicially discharged
from an accusation; released from...a charge or suspicion of guilt.”
Therefore, our Supreme Court held “to allow the trial court to use
at sentencing an essential element of a greater offense as an
aggravating factor, when the presumption of innocence was not, at
trial, overcome as to this element, is fundamentally inconsistentwith the presumption of innocence itself.” In Marley, the defendant
had been tried for first degree murder upon the theory of
premeditation and deliberation. The jury found the defendant guilty
of second degree murder. Thus, one can infer from the jury's
verdict in Marley that the jury determined there was insufficient
evidence of premeditation and deliberation.
In this case, it cannot be inferred from the jury's acquittal
of Defendant on the contributing to the delinquency of a juvenile
and employing and intentionally using a minor to commit a controlled
substance offense charges that it found there was insufficient
evidence to conclude beyond a reasonable doubt that Hampton was a
minor. Indeed, the parties in this case stipulated Hampton was
thirteen years old. Unlike Marley, where the difference between
first degree murder and second degree murder was the jury “decided
that there [was] not sufficient evidence to conclude beyond a
reasonable doubt that defendant premeditated and deliberated the
killing,” Marley, 321 N.C. at 424, 364 S.E.2d at 138, in this case,
we are unable to explain rationale behind the jury's verdict. Thus,
by convicting Defendant of conspiracy to sell a controlled
substance, the jury concluded that Johnny Boyd and Quintinie Hampton
were conspirators. Therefore, we uphold the trial court's
consideration as an aggravating sentencing factor that Defendant
involved a person under the age of 16 in the commission of a crime.
No error.
Judges TIMMONS-GOODSON and ELMORE concur.
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