Appeal by defendant from judgment entered 4 April 2002 by
Judge William Z. Wood, Jr., in Forsyth County Superior Court.
Heard in the Court of Appeals 18 November 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Lisa C. Glover, for the State.
BELSER & PARKE, P.A., by David G. Belser, for defendant-
appellant.
TIMMONS-GOODSON, Judge.
Ronda Teneille Singletary (“defendant”) appeals her
convictions of robbery with a dangerous weapon and aggravatedassault on a handicapped person. For the reasons stated herein, we
hold that defendant received a trial free of prejudicial error.
The pertinent facts of the instant appeal are as follows:
Deloris Sampedro (“Sampedro”) is a sixty-five year old woman who
weighs approximately 105 pounds and is hearing impaired. At
approximately 6 p.m. on 14 June 2001, Sampedro left her work at the
Forsyth County Public Library. While Sampedro was stopped at a
stop sign on her way home, Sampedro's vehicle was struck from
behind by another vehicle. Sampedro exited her vehicle to talk to
the driver of the other vehicle, whom she later identified as
defendant. Defendant's cousin, Celeste Hines (“Hines”), sat in
the front passenger seat of defendant's vehicle.
Defendant apologized for the accident and suggested that she
and Sampedro move their vehicles to a side road, so as not to block
traffic. After the two moved their vehicles, defendant suggested
that she and Sampedro exchange their names, addresses, telephone
numbers, and insurance information. Defendant then returned to her
vehicle and began to write something down on an envelope while
Sampedro turned to her vehicle and assessed its damage. Sampedro
then attempted to retrieve defendant's contact information, but
defendant handed the envelope to Hines and instead asked Sampedro
for her contact information. After Sampedro provided defendant
with her information, defendant suggested that Sampedro return to
her vehicle to ensure it started. Sampedro returned to her vehicle
and started it, but then remembered that she never received
defendant's contact information. The last thing Sampedroremembered before waking up in Forsyth Memorial Hospital's
emergency room was checking her side mirror to ensure it was safe
to get out of her vehicle and retrieve defendant's contact
information.
Dr. C.J. Lepak (“Dr. Lepak”) treated Sampedro at Forsyth
Memorial Hospital's emergency room. Dr. Lepak testified that when
Sampedro arrived, she had “blood coming down the right side of her
face and into her right ear,” and several abrasions and scratches
on her body. Dr. Lepak later discovered that Sampedro had a broken
clavicle and a “closed head injury.” Dr. Lepak testified that
Sampedro's head injury was consistent with someone beating
Sampedro's head with a baseball bat, crowbar, baton, or a similar
instrument. Dr. Lepak also testified that although Sampedro's
abrasions and broken clavicle may have been caused by a fall, her
head injuries were inconsistent with a fall. At the close of the
State's evidence, defendant moved to dismiss the charges against
her.
On direct examination, defendant testified that she
intentionally ran into Sampedro's vehicle on the night of the
accident, and that Hines “snatched [Sampedro's] pocketbook and I
sped off.” Defendant also testified that after she drove away, she
looked in her rearview mirror and saw Sampedro lying on the ground.
Defendant testified that she did not call for an ambulance.
Instead, she drove to Wal-Mart and used Sampedro's credit cards for
a “shopping spree.”
During her direct examination, defendant admitted to her priorconvictions for possession of cocaine, common law robbery,
financial credit card fraud, and injury to personal property.
Defendant testified that these convictions were the extent of her
criminal record. However, on cross-examination, defendant admitted
to a series of other convictions, including attempted common law
robbery, financial card theft, multiple counts of misdemeanor
larceny, and possession with the intent to make, sell, or deliver
cocaine. Defendant was also questioned on cross-examination about
the facts of her previous robbery convictions. At the end of these
questions, defendant objected. The trial court sustained
defendant's objection. However, defendant did not move to strike
the relevant testimony.
At the close of defendant's evidence, defendant renewed her
motion to dismiss the charges against her. The trial court again
denied the motion. On 4 April 2002, the jury convicted defendant
of robbery with a dangerous weapon and aggravated assault on a
handicapped person. At defendant's sentencing hearing, the trial
court found as aggravating factors that defendant occupied a
position of leadership or dominance in committing the offenses and
that the victim was elderly. The trial court also found as a
mitigating factor that defendant voluntarily acknowledged
wrongdoing in connection with the offenses at an early stage of the
criminal process. Defendant appeals.
The issues on appeal are whether the trial court erred (1) by
allowing the State to cross-examine defendant regarding her priorconvictions; (2) by denying defendant's motion to dismiss the
robbery with a
dangerous weapon charge; (3) by denying defendant's
motion to dismiss the charge of aggravated assault on a handicapped
person; and (4) in finding as an aggravating factor that defendant
occupied a position of leadership in the commission of the
offenses.
[1] Defendant first assigns error to the trial court
permitting questions regarding her prior convictions. Defendant
argues that the State's cross-examination of defendant was beyond
the scope allowed under Rule 609(a). We disagree.
In
State v. Warren, 327 N.C. 364, 395 S.E.2d 116 (1990), we
stated:
Generally, much latitude is given counsel on
cross-examination to test matters related by a
witness on direct examination.
The scope of
cross-examination is subject to two
limitations: (1) the discretion of the trial
court; and (2) the questions offered must be
asked in good faith.
Furthermore, the
questions of the State on cross-examination
are deemed proper unless the record discloses
that the questions were asked in bad faith.
327 N.C. at 373, 395 S.E.2d at 121-22 (citations omitted).
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)
. Therefore, since it is in the
discretion of the trial judge to determine the limits of legitimate
cross-examination, his rulings thereon are not prejudicial error
absent a showing that the verdict was improperly influenced by the
ruling.
Id. at 381-82, 289 S.E.2d at 363.
Under Rule 609(a) of the North Carolina Rules of Evidence, the
credibility of a witness can be attacked by evidence that the
witness was convicted of a felony. N.C. Gen. Stat. § 8C-1, Rule
609(a) (2003). However, during the guilt-innocence phase of a
criminal trial,
the use of prior felony convictions on cross-
examination has been limited to the name, date, place, and
punishment of the crime, unless the information is introduced to
correct inaccuracies or misleading omissions in defendant's direct
testimony.
State v. Lynch, 334 N.C. 402, 410, 412, 432 S.E.2d 349,
353, 354 (1993). Thus, where a defendant “opens the door” by
misstating his criminal record or the facts of crimes or actions,
or where a defendant uses his criminal record to create inferences
in his favor, the State is allowed to cross-examine the defendant
about the details of those prior crimes or actions.
Id. at 412,
432 S.E.2d at 354.
Defendant asserts that the trial court committed plain error
by allowing the State to cross-examine defendant
as follows:
STATE: . . . you used a gun the first time you
robbed somebody, didn't you?
DEFENDANT: No.
STATE: You didn't confess to the police you
used a gun the first time?
DEFENDANT:
No.
STATE: You didn't tell the police you used a
.22 gun the first time you robbed somebody?
DEFENDANT:
No.
STATE: So they would be incorrect, is that
right?
DEFENDANT:
Must have to be because I never
told anyone that.
STATE: But you're telling us the truth, right?
DEFENDANT:
I'm saying that if they're saying
that I said something I didn't, of course I'm
telling the truth.
STATE: Ms. Singletary, back when you made your
first robbery isn't it interesting that you
also tried to limit your involvement in that
crime as well, didn't you?
DEFENDANT:
No.
STATE: Like you're doing right now, telling me
you didn't have a gun the first time?
DEFENDANT:
No, that's not true because from
the first time that they had spoke to me about
this crime I have told the truth. I never
even went around it. I told them the truth
since day one.
STATE: So if the detective back in your first
robbery said that Singletary tried at first to
limit her culpability by saying she was along
for the ride and did not participate in the
crimes, he wouldn't be telling the truth,
would he?
DEFENDANT:
Huh-uh.
DEFENSE COUNSEL: Objection, Your Honor.
THE COURT: Sustained.
Under plain error, this Court reviews the entire record and
determines whether the alleged error is so fundamental and
prejudicial that justice could not have been done.
State v.
Haselden, 357 N.C. 1, 13, 577 S.E.2d 594, 602,
cert. denied, 124 S.
Ct. 475 (2003);
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375,
378 (1983). To prevail on plain error, defendant must not only
convince this Court that there was error, she must also convince usthat absent the error, the jury probably would have reached a
different result.
Haselden, 357 N.C. at 13, 577 S.E.2d at 602
(citations omitted).
We conclude that defendant has failed to
meet this burden.
The evidence presented at trial was overwhelmingly in favor of the
State. Defendant testified that she intentionally ran into
Sampedro's vehicle for the purpose of stealing her pocketbook.
Defendant also testified that, with the help of Hines, she stole
Sampedro's pocketbook and used Sampedro's credit cards. Defendant
admitted that she used Sampedro's credit cards at various locations
that evening and the following day because she knew that Sampedro
would soon cancel the cards. Defendant further testified that
while fleeing the scene, she saw Sampedro on the ground. Dr. Lepak
testified that Sampedro suffered from head injuries consistent with
trauma directed at the head by the use of a baseball bat, crowbar,
baton, or similar instrument. Dr. Lepak opined that Sampedro's
head injuries were not the result of a fall, but the result of
someone hitting her with a foreign instrument. We conclude that
the foregoing evidence would allow a reasonable jury to convict
defendant of robbery with a dangerous weapon and aggravated assault
on a handicapped person. Defendant has failed to convince this
Court that, absent the cross-examination by the State, the jury
would have reached a different result. Therefore
, defendant's
first assignment of error is overruled.
[2] Defendant next assigns error to the trial court's denial
of defendant's motions to dismiss the charges against her. In
ruling on a motion to dismiss made at the close of evidence, the
trial court must determine whether the State has produced
substantial evidence of each essential element of the offense
charged.
State v. Roddey, 110 N.C. App. 810, 812, 431 S.E.2d 245,
247 (1993). Whether the State's evidence is substantial is a
question of law for the trial court.
State v. Lowe, 154 N.C. App.
607, 609, 572 S.E.2d 850, 853 (2002).
Substantial evidence is the
amount of “relevant evidence necessary to persuade a rational juror
to accept a conclusion.”
State v. Kemmerlin, 356 N.C. 446, 473,
573 S.E.2d 870, 889 (2002).
The motion to dismiss must be denied
if the evidence, viewed in the light most favorable to the State,
would allow a jury to reasonably infer that the defendant is
guilty.
State v. Williams, 154 N.C. App. 176, 178, 571 S.E.2d 619,
620-21 (2002).
The essential elements of robbery with a dangerous weapon are
(1) the possession, use or threatened use of a dangerous weapon;
(2) threatening or endangering the life of a person; (3) while
taking or attempting to take personal property; (4) from another or
from a residence or any other place where there is a person in
attendance, at any time, day or night; (5) or aiding or abetting
others in the commission of such a crime. N.C. Gen. Stat. §
14-87(a) (2003).
Defendant argues that the State failed to produce sufficient
evidence that defendant used a dangerous weapon in the robbery, and
that therefore the charge of robbery with a dangerous weapon should
have been dismissed. We disagree. In the case
sub judice, Sampedro testified that the last thing
she remembered before waking up in Forsyth Memorial Hospital's
emergency room was getting out of her vehicle to speak with
defendant. Although no weapon was produced at trial, Dr. Lepak
testified that Sampedro received head injuries consistent with the
use of a foreign instrument against the back of Sampedro's head.
Dr. Lepak further testified that, although Sampedro's other
injuries were consistent with a fall, in his opinion her head
injuries occurred before she fell to the curb. Viewing the
evidence in the light most favorable to the State, we conclude that
there was substantial evidence that defendant used a dangerous
weapon to rob Sampedro. Therefore, we hold that the trial court
did not err in denying defendant's motion to dismiss the charge of
robbery with a dangerous weapon.
[3] Defendant also argues that the State failed to present
sufficient evidence that defendant knew of Sampedro's handicap, and
that therefore the charge of aggravated assault on a handicapped
person should have been dismissed. We disagree.
North Carolina General Statute . 14-32.1(e) (2003) provides:
A person commits an aggravated assault or
assault and battery upon a handicapped person
if, in the course of the assault or assault
and battery, that person:
(1) Uses a deadly weapon or other
means of force likely to inflict
serious injury or serious damage to
a handicapped person; or
(2) Inflicts serious injury or
serious damage to a handicapped
person; or
(3) Intends to kill a handicapped
person.
Although this statute does not specifically require that defendant
know his victim is handicapped, defendant urges this Court to adopt
such a requirement based on the pattern jury instructions. The
pattern jury instructions for N.C. Gen. Stat. § 14-32.1(e) require
the jury to find that defendant knew or had reasonable grounds to
know the victim was a handicapped person. N.C.P.I. - Crim. 208.50A
(2002). However, because there is no North Carolina case law
previously applying this statute, this is a matter of first
impression for this Court. As discussed herein, we conclude that
in order to convict an individual under N.C. Gen. Stat. § 14-
32.1(e), the jury must find that defendant knew or had reasonable
grounds to know the victim was a handicapped person.
“Statutes should be construed to ensure that the purpose of
the legislature is accomplished.”
State v. Thompson, 157 N.C. App.
638, 644, 580 S.E.2d 9, 13,
stay denied,
disc. review denied, 357
N.C. 469, 587 S.E.2d 72 (2003). In 1981, a study was presented to
the Legislative Program of the Governor's Crime Commission in
support of the enactment of N.C. Gen. Stat. § 14-32.1(e). The
study recommended that the General Assembly enact legislation to
require that judges consider the physical condition of the victim
prior to passing sentences for felony convictions. “Very often one
who is elderly or who is physically or mentally infirm is the prey
of the criminal . . . some offenders may even 'lie in wait' for one
whose frailties are obvious.” An Agenda in Pursuit of Justice, p.
17. Thus, we believe that the knowledge requirement is in keeping
with the purpose and intent of the legislature in enacting N.C.Gen. Stat. § 14-32.1(e).
We derive further guidance on the issue from examination of
N.C. Gen. Stat. § 14-34.2 (2003), which defines the charge of
assault with a firearm on a law enforcement officer. Our courts
have determined that a charge of assault with a firearm on a law
enforcement officer requires that the State prove that the
defendant knew or should have known that the victim was an officer
performing his official duties.
See State v. Page, 346 N.C. 689,
699, 488 S.E.2d 225, 232 (1997),
cert. denied, 522 U.S. 1056
(1998);
State v. Avery, 315 N.C. 1, 31, 337 S.E.2d 786, 803 (1985)
.
The knowledge requirement has been imposed although the underlying
statute is silent on the question of knowledge. N.C. Gen. Stat. §
14-34.2. Therefore, we likewise interpret N.C. Gen. Stat. § 14-
32.1(e), assaults on a handicapped person, to require the State to
prove that the defendant knew or should have known that the victim
was handicapped.
In the case
sub judice, Sampedro testified that she suffers
from “profound sensory neural hearing loss,” which requires her to
wear a hearing aid. Sampedro showed the jury the hearing aid she
wore on the evening in question. The hearing aid was an external
piece Sampedro wore over her ear. Sampedro further testified that
she wore the hearing aid on the evening of the accident, and that
she had several conversations with defendant and repeatedly walked
to and from defendant's car. We conclude that the foregoing
evidence is sufficient to allow a reasonable juror to find that
defendant knew or should have known of Sampedro's handicap. Therefore, we hold the trial court did not err in denying
defendant's motion to dismiss the charge of aggravated assault
against a handicapped person.
[4] Defendant last assigns error to the trial court finding as
an aggravating factor that defendant occupied a position of
leadership in the commission of the offenses. We note initially
that this issue is not properly before this Court. Because
defendant did not object to this alleged error at the sentencing
hearing, she has waived her right to appellate review of the
alleged error. N.C.R. App. P. 10(b)(1) (2004). Nevertheless,
pursuant to Rule 2 of the North Carolina Rules of Appellate
Procedure, we have elected to examine defendant's argument, and we
conclude that it is without merit.
Under Structured Sentencing, the trial court may find as an
aggravating factor that defendant
occupied a position of leadership
in the commission of the offense charged
. N.C. Gen. Stat. §
15A-1340.16(d)(1) (2003). However, 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) (2003).
Furthermore, “[t]he trial court's finding of an aggravating factor
must be supported by '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 (1999)
,
disc. review denied, 351 N.C. 644, 543 S.E.2d 878 (2000)(quoting
State v. Hayes, 102 N.C. App. 777, 781, 404 S.E.2d 12, 15 (1991)).
In the case
sub judice, the State presented evidence thatdefendant was the driver of the vehicle that collided with
Sampedro's vehicle, that defendant intended the collision, and that
defendant was the only person to speak with Sampedro after the
collision. The State also presented evidence that, in an attempt
to facilitate the robbery,
defendant suggested Sampedro return to
her vehicle to ensure it started. Finally, the State presented
evidence that defendant was driving when she and Hines fled the
scene. Although defendant testified that it was Hines who stole
Sampedro's pocketbook, the State's evidence tended to show that
Hines' only participation in the actual robbery and assault was the
taking of an envelope from defendant before defendant requested
Sampedro's contact information. We conclude that the evidence
before the trial court at the sentencing hearing was sufficient to
allow the trial court to find by a preponderance of the evidence
that defendant occupied a position of leadership in the commission
of the offenses. Therefore, defendant's last assignment of error
is overruled.
No error.
Judges WYNN and MCCULLOUGH concur.
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