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2. Burglary and Unlawful Breaking or Entering--first-degree burglary--failure to
instruct on lesser-included offense--misdemeanor breaking or entering
The trial court did not err by denying defendant's request for a jury instruction on the crime of misdemeanor breaking or entering as a lesser-included offense of first-degree burglary, because: (1) as defendant concedes, the State presented sufficient evidence to convict defendant of first-degree burglary; and (2) defendant's testimony alone is not sufficient to require an instruction of the lesser-included offense when there was no before-the-fact evidence to support defendant's statement that he did not intend to use the bat on the two victims unless his life was threatened.
3. Evidence_-prior crimes or bad acts--cross-examination
The trial court did not abuse its discretion in a first-degree burglary, assault with a deadly weapon inflicting serious injury, and assault inflicting serious injury case by allowing the State to cross-examine defendant regarding facts of a prior crime beyond the time and place of conviction and the punishment imposed, or by preventing defendant from cross-examining one of the victims regarding a sentence imposed from a prior conviction, because: (1) even if the State's cross-examination of defendant was impermissible, defendant failed to show that the cross-examination prejudiced him as a result; and (2) defendant failed to prove that his inability to question the victim about the court's prohibition against further contact with a gang prejudiced the result of defendant's trial.
4. Sentencing--aggravating factors--joined with more than one other person in
committing offense and not charged with conspiracy
The trial court did not err in a first-degree burglary, assault with a deadly weapon inflicting serious injury, and assault inflicting serious injury case by using the N.C.G.S. § 15A- 1340.16(d)(2) aggravating factor that defendant joined with more than one other person in committing the offenses and was not charged with committing a conspiracy, because the trial court could have found by the preponderance of the evidence that defendant joined with his father and either defendant's friend or his friend's drug dealer, or both, in the commission of these crimes.
5. Sentencing_-nonstatutory aggravating factors--defendant's lifestyle--defendant's
Although defendant contends the trial court's comments to defendant during the sentencing process for first-degree burglary, assault with a deadly weapon inflicting serious injury, and assault inflicting serious injury regarding defendant's lifestyle and his character suggested that the trial court used these factors in addition to the statutory aggravating factor under N.C.G.S. § 15A-1340.16(d)(2) to further increase his sentence, defendant was properly sentenced within the aggravated range because there was a preponderance of evidence in therecord that defendant acted with more than one person in the commission of these crimes.
Judge ELMORE concurring in part and dissenting in part.
Attorney General Roy Cooper, by Assistant Attorney General
Elizabeth J. Weese, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Benjamin Dowling-Sendor, for defendant appellant.
Robert Thomas Little (defendant) appeals his convictions of first-degree burglary and assault with a deadly weapon inflicting serious injury against Brian Lada (Lada), and assault inflicting serious injury against Christopher Lee (Lee). For the reasons stated herein, we find no error.
The State's evidence at trial tended to show the following: Lada and Lee lived together in a two-bedroom apartment with Michael Powell (Powell). Lada slept in one bedroom, while Lee and Powell shared the second bedroom. Lada, Lee, and Powell worked at a nearby Wal-Mart store with a deaf woman, Karen Smith (Karen). Karen provided Lee with Ecstacy pills to sell. When Lee decided to stop selling the drugs, he returned the pills to Karen. Karen testified at trial that Lee did not return all the pills she had given him to sell, nor did he provide her with money to pay for the missing pills. Three days later, Lee and Lada began receiving death threats from an unidentified male.
At approximately 3:30 a.m. on 5 January 2002, defendant andhis father appeared at the door of the apartment shared by Lada, Lee and Powell. Defendant and Lada began to strike one another. Lada testified that defendant's father appeared and struck Lada on the head with a baseball bat, cracking the bat in two pieces.
After Lada was struck in the head, he went to Lee and Powell's bedroom for assistance. Defendant entered Lee and Powell's bedroom and struck Lee several times with the bat, telling Lee that he wanted his money.
Lada left the apartment to seek help from his neighbor, Misty Fuller (Misty) and her roommate, Sean Peters (Peters). Lada, Misty and Peters all returned to Lada's apartment. Both Misty and Peters were threatened by defendant before defendant and his father left the apartment.
Defendant testified at trial that he was concerned for Karen's safety, because her drug supplier had threatened to kill her if she did not obtain the missing money and/or drugs from Lee. Defendant further testified that on the morning of the altercation, he asked his father to go with him to get some money owed [to him]. Defendant removed a bat from his house and placed it in the trunk of the car he and his father drove to the apartment. Upon arriving at the apartment, defendant concealed the bat in his pants. Defendant testified that he intended to use the bat only if his life was threatened. Defendant further testified that after knocking on the apartment door, Lada invited them inside and they conversed for a few minutes before the fight began. Defendant testified that he intended to assault Lada and Lee.
At trial, defendant testified to a series of past crimes,including a misdemeanor larceny charge. Defendant further testified that he did not break into Lee and Lada's apartment because he [knew] the severity of what a breaking and entering like that is. On cross-examination, the State asked defendant what he meant by his statement. Defendant admitted to being charged with breaking and entering on a previous occasion, but pled guilty to misdemeanor larceny. The State then questioned defendant over defense counsel's objection about the facts of the misdemeanor larceny case.
Defendant's counsel attempted to cross-examine Lada about the punishment Lada received for a prior misdemeanor assault charge. Judge Hill allowed counsel to question Lada about the punishment generally, but did not allow counsel to question Lada regarding the judgment which prevented Lada from future association with any past, current or future member of the Shadow Device Crypt Gang. Defendant objected.
The jury found defendant guilty of first-degree burglary, assault with a deadly weapon inflicting serious injury, and assault inflicting serious injury. Judge Hill found as an aggravated factor that defendant joined with his father in committing the offense and was not charged with committing a conspiracy. At the sentencing hearing, defense counsel said I don't think I can argue with [the State] offering [this] aggravating factor . . . . Although I don't like it, there's not a whole lot I can say about that. The trial court did not find any mitigating factors and sentenced defendant within the aggravated range. Defendant appeals his conviction and his sentence.
[W]here the only evidence of the defendant's
intent to commit a felony in the building or
dwelling was the fact that the defendant
broke and entered a building or dwelling
containing personal property, the appellatecourts of this State have consistently and
correctly held that the trial judge must
submit the lesser included offense of
misdemeanor breaking and entering to the jury
as a possible verdict. . . . However, where
there is some additional evidence of the
defendant's intent to commit the felony named
in the indictment in the building or
dwelling, such as evidence that the felony
was committed . . . or evidence that the
felony was attempted, . . . or . . . evidence
that the felony was planned, and there is no
evidence that the defendant broke and entered
for some other reason, then the trial court
does not err by failing to submit the lesser
included offense of misdemeanor breaking and
entering to the jury as a possible verdict.
Patton, 80 N.C. App. at 305-6, 341 S.E.2d at 746-47, quoting State v. Thomas and State v. Christmas and State v. King, 52 N.C. App. at 196-97, 278 S.E.2d at 542-43.
In State v. Singletary, the defendant was convicted of first-degree burglary when he broke into his wife's apartment and shot her lover. 344 N.C. 95, 472 S.E.2d 895 (1996). The defendant testified that he brought his gun to her apartment at 1:00 a.m. for protection because if someone was in the apartment, [he] wasn't going to get hurt. Singletary, 344 N.C. at 103, 472 S.E.2d at 900. Our Supreme Court held that an after-the-fact assertion by the defendant that his intention to commit a felony was formed after he broke and entered is not enough to warrant an instruction on the lesser-included offense of misdemeanor breaking or entering unless there is some 'before the fact evidence to which defendant's statements afterwards could lend credence.' Id. at 104, 472 S.E.2d at 900, quoting State v. Gibbs, 335 N.C. 1, 53-54, 436 S.E.2d 321, 351 (1993).
In the case sub judice, defendant testified that he plannedto assault Lee and Lada if they did not give him money and that he planned to use the baseball bat if the altercation threatened his life. Defendant testified that he placed the bat in the trunk of the car with the intent to bring it into the apartment, that he concealed the bat from view, and that the bat was broken during the assault. We conclude that there was no before-the- fact evidence to support defendant's statement that he did not intend to use the bat on Lee or Lada. This argument is without merit.
 Defendant's second and third arguments assert that the trial court improperly ruled on evidentiary issues regarding cross-examinations of defendant and Lada. Defendant contends that the trial court should not have allowed the State to cross- examine him regarding facts of a prior crime beyond the time and place of conviction and the punishment imposed. Defendant further contends that the trial court erred by preventing defendant from cross-examining Lada regarding a sentence imposed from a prior conviction.
Whether cross-examination is unfair is generally a matter in the sole discretion of the trial judge, and his ruling thereon will not be disturbed absent a showing of gross abuse of discretion. State v. Ruof, 296 N.C. 623, 633, 252 S.E.2d 720, 726 (1979). The trial judge sees and hears the witnesses, knows the background of the case, and is in a favorable position to control the proper bounds of cross-examination. State v. Edwards, 305 N.C. 378 , 381, 289 S.E.2d 360, 362-63 (1982) . Since it is in the discretion of the trial judge to determine the limitof legitimate cross-examination, his rulings thereon are not prejudicial error absent a showing that the verdict was improperly influenced by the ruling. State v. Britt, 291 N.C. 528, 231 S.E.2d 644 (1977); Edwards, 305 N.C. at 381-82, 289 S.E.2d at 362-63.
Rule 609(a) of the North Carolina Rules of Evidence states that the credibility of a witness can be attacked by evidence that the witness was convicted of a felony. Case law has limited the use of prior felony convictions to the name of the crime and the time, place and punishment for impeachment purposes during the guilt-innocence phase of a criminal trial, unless the information is introduced to correct inaccuracies or misleading omissions in defendant's testimony . . . . State v. Lynch, 334 N.C. 402, 410, 412, 432 S.E.2d 349, 353, 354 (1993).
For example, when the defendant opens the door by misstating his criminal record or the facts of the crimes or actions, or when he has used his criminal record to create an inference favorable to himself, the prosecutor is free to cross-examine him about details of those prior crimes or actions.
Defendant argues that the trial court erred when it allowed the State to cross-examine defendant regarding the facts of a misdemeanor larceny conviction. The State argues that defendant opened the door to the cross-examination in question. On direct examination, defendant stated that he did not force his way into Lada and Lee's apartment because [he knows] the severity of what a breaking and entering like that is. On cross-examination, the State questioned defendant regarding saidstatement and defendant admitted that he had been previously charged with breaking and entering, but pled guilty to misdemeanor larceny. Defendant then began to explain the facts of the previous charge.
Even if this line of questioning is impermissible, defendant must still prove that he was prejudiced as a result. See Edwards, 305 N.C. at 381-82, 289 S.E.2d at 362-63. Defendant testified to numerous convictions and the State produced a witness in addition to Lada and Lee who testified that defendant used the bat against Lee. Misty, Lada and Lee's neighbor, testified that she entered the apartment before defendant and his father left and was threatened by defendant with the bat. Thus, even if the State's cross-examination of defendant was impermissible, defendant has failed to evidence that the cross- examination prejudiced him as a result.
Defendant next argues that he should have been permitted to cross-examine Lada regarding a sentence Lada received from a prior assault conviction. The judgment of the court required Lada to have no contact with any past, current or future member of the Shadow Device Crypt Gang. The court allowed defense counsel to question defendant regarding the rest of his sentence, but prohibited any reference to the gang. Although we note that Lynch permits the cross-examination of a witness about the time, place and punishment of a prior crime, 334 N.C. at 410, 432 S.E.2d at 353, permissive cross-examination remains within the discretion of the trial judge and is not reversible unless defendant can show prejudice as a result. Edwards, 305 N.C. at 381-82, 289 S.E.2d at 362-63. Defendant has failed to prove that his inability to question Lada about the court's prohibition against further contact with the gang prejudiced the result of defendant's trial for the reasons stated above. We, therefore, conclude that defendant's second and third arguments also fail.
 Defendant's final argument on appeal is that the trial court used impermissible aggravating factors to sentence him. The trial court found that defendant joined with more than one other person in committing the offense and was not charged with committing a conspiracy, which is an aggravating factor under N.C. Gen. Stat. . 15A-1340.16(d)(2)(2003).
We note that this issue is not properly before the Court. Defendant did not object to the alleged error at the sentencing hearing. Therefore, he has waived his right to appellate review. N.C.R. App. P. 10(b)(1)(2004). In our discretion, however, we have examined defendant's argument and find that it is without merit.
Under Structured Sentencing, the trial court may find as an aggravating factor that defendant joined with more than one other person in committing the offense and was not charged with committing a conspiracy. N.C. Gen. Stat. § 15A-1340.16(d)(2). The plain language of this statute requires the participation of defendant and at least two others. Id.; State v. Rogers, 157 N.C. App. 127, 130, 577 S.E.2d 666, 669 (2003). The State bears the burden of proving by a preponderance of the evidence that the aggravating factor exists. N.C. Gen. Stat. § 15A-1340.16(a). The trial court's finding of an aggravating factor must be supportedby 'sufficient evidence to allow a reasonable judge to find its existence by a preponderance of the evidence.' State v. Hughes, 136 N.C. App. 92, 99, 524 S.E.2d 63, 67 (1993), quoting State v. Hayes, 102 N.C. App. 777, 781, 404 S.E.2d 12, 15 (1991). The weight given aggravating factors is within the sound discretion of the sentencing judge and should not be re-evaluated by the appellate courts. State v. Ahearn, 307 N.C. 584, 602, 300 S.E.2d 689, 701 (1983).
The trial court heard testimony that defendant sold drugs for Karen and that defendant had previously accompanied Karen to Lada and Lee's apartment to help Karen retrieve the same money defendant attempted to retrieve the night of the attack. Karen and defendant also testified to receiving death threats from Karen's dealer who threatened to kill them if they did not recover the money owed him by Lee. Karen testified that she saw defendant on the phone with her dealer just a few days before defendant attacked Lada and Lee. The trial court could have found by the preponderance of evidence that defendant joined with his father and either Karen or Karen's drug dealer, or both, in the commission of this crime.
 Defendant also argues that the trial judge's comments to defendant during the sentencing process regarding his lifestyle and his character suggest that the trial court used these factors, in addition to the statutory aggravating factor above, to further increase his sentence. We disagree. As there is a preponderance of evidence in the record that defendant acted with more than one person in the commission of these crimes, defendantwas properly sentenced within the aggravated range .
No error as to defendant's convictions. Vacate the judgment for assault inflicting serious bodily injury, and remand for correction of the clerical error contained therein.
Judge WYNN concurs.
Judge ELMORE concurs in part and dissents part.
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