Appeal by defendant from judgment entered 25 September 2002 by
Judge Forrest Donald Bridges in Cleveland County Superior Court.
Heard in the Court of Appeals 28 January 2004.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Charles J. Murray, for the State.
The Teeter Law Firm, by Kelly Scott Lee, for defendant-
appellant.
HUNTER, Judge.
Shawn Lamont Borders (“defendant”) appeals a judgment
sentencing him in the aggravated range to 146 to 185 months
imprisonment for robbery with a dangerous weapon. Specifically,
defendant takes issue with (I) a jury instruction, and (II) the
trial court's finding of three non-statutory aggravating factors.
For the reasons stated herein, we conclude there was no error as to
the jury instruction, but that defendant's case must be remanded
for a new sentencing hearing due to the trial court committing
error by finding certain aggravating factors.
On 16 July 2001, defendant was indicted for committing a
robbery with a dangerous weapon. Defendant's trial began on 23
September 2002, during which the following evidence was offered.
The State's evidence tended to show that defendant called for
a taxicab at approximately 1:30 a.m. on the morning of 21 June
2001. When the taxicab arrived, defendant got in the back seat of
the vehicle and subsequently held a knife with a five-inch blade to
the neck of the driver, Gerald Wyatt (“Wyatt”). Defendant then
proceeded to threaten and physically assault Wyatt, before taking
approximately seventy-six dollars in cash from under the driver'sseat, pushing Wyatt out of the taxicab, and driving off. Wyatt
immediately located a police officer and told the officer that he
was robbed by defendant, a man he recognized as someone he had
given several taxicab rides to over the last year. Wyatt's taxicab
was found approximately two days later.
Defendant was arrested on 30 June 2001. Detective Tracy Curry
(“Detective Curry”) testified that, following defendant's arrest,
defendant stated he had actually
asked [Wyatt] for the forty dollars that he
owed him. [Wyatt] told him that [he] did not
have the money, but [defendant] had seen
[Wyatt] try to hide money under the seat.
And that he got out of the cab, took the
money from under the seat, told [Wyatt] that
he should not lie to him again and left the
area.
Defendant's evidence tended to show that Wyatt paged defendant
on the morning in question, indicating to defendant that Wyatt
wanted to arrange a drug deal. Wyatt subsequently picked defendant
up in his taxicab and requested two rocks of crack cocaine for
forty dollars, which defendant provided. As Wyatt smoked the crack
cocaine, he realized that it was counterfeit and demanded his money
back. Defendant refused and exited the taxicab. In order to seek
“revenge” on defendant, Wyatt later told the police that defendant
had robbed him. Defendant's earlier cross-examination of Wyatt had
revealed that Wyatt did have a number of prior drug arrests, but no
drug convictions. Additional facts relevant to this appeal will be
provided as necessary in analyzing defendant's assigned errors.
I.
[1] By his first assignment of error, defendant argues the
trial court erred by giving a jury instruction that implied he had
committed the crime for which he was accused. Specifically, at the
charge conference, the State proposed that Jury Instruction Number
104.60 be submitted to the jury, to which defendant objected on the
grounds that he had not admitted to one or more of the elements of
the crime charged. The trial court noted defendant's objection and
gave the charge to the jury as follows:
There is evidence in this case that tends
to show that the Defendant has at one time or
another admitted one or more facts relating to
the crime charged in this case. Now if you
find, that the Defendant has made any such
a[n] admission, then you should consider all
the circumstances under which it was made in
determining whether it was a truthful
admission and the weight which you will give
to it.
Defendant contends that by giving the instruction, the trial court
basically told the jury that he had committed robbery with a
dangerous weapon. We disagree.
“A trial court is not required to give a requested instruction
in the exact language of the request, but where the request is
correct in law and supported by the evidence in the case, the court
must give the instruction in substance.”
State v. Summey, 109 N.C.
App. 518, 526, 428 S.E.2d 245, 249 (1993). Here, the instruction
given to the jury was “virtually identical” to Jury Instruction
Number 104.60.
Id. (citing
State v. Green, 305 N.C. 463, 290
S.E.2d 625 (1982)).
See also 1 N.C.P.I.--Crim. 104.60 (1970). The
instruction made no specific mention of any particular element of
the offense charged or that defendant had admitted robbing Wyatt
with a dangerous weapon -- only that the evidence tended to show anadmission by defendant of “
one or more facts relating to the crime
charged[.]” Specifically, those “facts” included (1) testimony
from Detective Curry that defendant told him that although Wyatt
had tried to hide money from defendant, defendant “took the money
from under the seat, . . . and left the area[,]” and (2) testimony
from defendant that he had “snatched” money away from Wyatt, then
“got out of the cab and left.” Their testimony provided the
evidence needed to support some of the elements of robbery with a
dangerous weapon, i.e., an unlawful taking of another's personal
property.
See N.C. Gen. Stat. § 14-87(a) (2003). Thus, the
requested instruction was correctly stated in substance and
supported by the evidence, resulting in no error by the trial
court.
II.
[2] Defendant also assigns error to the trial court's finding
that there was evidence to support three non-statutory aggravating
factors, which were used to sentence defendant in the aggravated
range. Initially, we note that the State argues defendant did not
object to the non-statutory aggravating factors at trial and
therefore, should be denied the opportunity to assign error to them
on appeal. However, our Supreme Court has held that preserving
this question for appellate review by objecting is unnecessary
because it is clear that a defendant does “not want the court to
find [an] aggravating factor and the court kn[ows] or should . . .
know[] it.”
See State v. Canady, 330 N.C. 398, 402, 410 S.E.2d
875, 878 (1991). We therefore address defendant's assigned error. “The State has the burden of proving the existence of a
nonstatutory aggravating factor by a preponderance of the evidence.
The State must also show that it is reasonably related to the
purposes of sentencing.”
State v. Hargrove, 104 N.C. App. 194,
200, 408 S.E.2d 757, 761 (1991). The decision to depart from the
presumptive range and sentence a defendant in the aggravated range
is in the discretion of the court. N.C. Gen. Stat. § 15A-
1340.16(a) (2003). In the instant case, defendant takes issue with
the following three non-statutory aggravating factors found by the
trial court.
A.
[3] Defendant contends there was no evidence offered to
support, as a factor in aggravation, that the “crime was committed
against a victim who was smaller, older and weaker, taking not only
money but also a vehicle that provided the victim's means of
income.” In
State v. Ackerman, 144 N.C. App. 452, 461-62, 551
S.E.2d 139, 145 (2001), this Court held that the trier of fact can
estimate a defendant's age when necessary for establishing an
element of the offense charged after having ample opportunity to
view that defendant
and when presented with the benefit of other
circumstantial or direct evidence. We conclude such a
determination may be made by a trial court as well. However, when
estimating the respective ages of individuals, and by analogy the
comparative strengths and sizes of individuals, the trial court
must make relevant findings of fact, unless there is direct or
circumstantial evidence in the record that allows for a meaningful
view to be conducted by an appellate court. Here, the transcript provides no findings of fact that allow
this Court to review how the trial court found this non-statutory
aggravating factor. Further, there was no direct or circumstantial
evidence offered at trial comparing the physical characteristics of
defendant and Wyatt. The only evidence that remotely inferred the
respective strengths of the two men came from the following
testimony of Wyatt: (1) defendant “got out of the car . . . , got
me by the pants in the front, pulled me from the car and shook me
down[;]” and (2) defendant “took his hands and he pushed me in the
chest and I fell in the street.” However, Wyatt's testimony alone
is insufficient to allow this Court to definitively conclude the
trial court acted properly by finding this non-statutory
aggravating factor.
B.
[4] Next, defendant contends there was no evidence offered
that the “crime was part of a course of conduct by the defendant
involving violence against other persons, including at least 2
previous robberies.” Our Supreme Court has previously held that
evidence establishing a pattern or course of violent conduct by a
defendant is an acceptable non-statutory aggravating factor.
See
State v. Avery, 315 N.C. 1, 337 S.E.2d 786 (1985). Here, defendant
was convicted of robbery with a dangerous weapon based on evidence
that tended to show he physically assaulted and took money from
Wyatt. The trial court was aware that defendant had previously
been convicted of numerous offenses, which included assaulting a
government employee, resisting public officers, and twice
committing common law robbery. By the very nature of thoseconvictions, violence was either threatened or occurred. Thus,
while defendant's course of violent conduct could have been shown
through other acts that did not result in convictions,
see Avery,
the convictions themselves merely evidenced they were predicated on
violence.
As an aside, Our Legislature has clearly provided that
convictions used to support an habitual felon indictment cannot be
used to determine a defendant's prior record level.
See N.C. Gen.
Stat. § 14-7.6 (2003);
State v. Lee, 150 N.C. App. 701, 564 S.E.2d
597,
disc. review denied, 356 N.C. 171, 568 S.E.2d 856 (2002).
However, we have found no statutory authority or case law
precluding prior convictions (punishable by more than 60 days'
confinement,
see State v. Harper, 96 N.C. App. 36, 43, 384 S.E.2d
297, 301 (1989)) used to determine a defendant's prior record level
from also being used to aggravate that defendant's sentence. While
we note this distinction in the instant case because defendant's
two prior robbery convictions mentioned in this non-statutory
aggravating factor were also used to determine his prior record
level, we further note that if the Legislature intended to prohibit
this occurrence it could have done so by enacting legislation
similar to that regarding habitual felon indictments.
C.
[5] Defendant finally contends that the trial court erred in
finding as a non-statutory aggravating factor that, “[d]efendant
testified that, on the alleged date, he sold counterfeit controlled
substances to the victim. By necessity, either this testimony is
false or defendant has committed another felony with which he hasnot been charged.” We fail to see how this aggravating factor was
reasonably related to the purposes of sentencing.
N.C. Gen. Stat. § 15A-1340.12 (2003) provides:
The primary purposes of sentencing a
person convicted of a crime are to impose a
punishment commensurate with the injury the
offense has caused, taking into account
factors that may diminish or increase the
offender's culpability; to protect the public
by restraining offenders; to assist the
offender toward rehabilitation and restoration
to the community as a lawful citizen; and to
provide a general deterrent to criminal
behavior.
Our case law clearly suggests that in order for an aggravating
factor to be reasonably related to the purposes of sentencing it
must be reasonably related to the crime for which defendant was
convicted.
See State v. Ledford, 315 N.C. 599, 625, 340 S.E.2d
309, 325 (1986) (holding that “the trial judge . . . erred by
finding two aggravating circumstances -- that the victim was very
old and that the offense was especially heinous, atrocious, and
cruel -- which [we]re, under the facts of th[at] case, totally
unrelated to the crime of felonious larceny”);
State v. Skinner,
162 N.C. App. 434, 438-39, 590 S.E.2d 876, 881 (2004) (holding that
there was insufficient evidence to support that the victim's age
was a factor in aggravation because it had no bearing on her
vulnerability to larceny). Here, whether defendant committed
another felony or perjury, neither of those crimes were reasonably
related to his conviction for robbery with a dangerous weapon.
Accordingly, non-statutory aggravating factors “A” and “C”
found by the trial court were not supported by a preponderance of
the evidence. Therefore, we must vacate defendant's aggravatedsentence of robbery with a dangerous weapon and remand for a new
sentencing hearing.
Remand for resentencing.
Judge McCULLOUGH concurs.
Judge LEVINSON concurs in part and dissents in part in a
separate opinion.
LEVINSON, Judge concurring in part and dissenting in part.
I concur in the majority opinion, except with regard to its
holding that it was not error for the trial court to find the
nonstatutory aggravating factor that this offense was part of a
course of conduct involving violence against other persons. I
therefore respectfully dissent on this issue.
“The State has the burden of proving the existence of a
nonstatutory aggravating factor by a preponderance of the
evidence.”
State v. Hargrove, 104 N.C. App. 194, 200, 408 S.E.2d
757, 761 (1991). In the instant case, defendant's sentence was
based in part upon the nonstatutory aggravating factor that
defendant's commission of robbery with a dangerous weapon “was part
of a course of conduct by the defendant involving violence against
other persons, including at least 2 previous robberies.” The court
based this finding on the defendant's criminal record, which
included prior convictions for,
e.g., common law robbery and
assault. However, no evidence was adduced at trial or during
sentencing concerning the facts or circumstances of these prior
convictions. Thus, the trial court found the existence of this
aggravating factor based solely on the bare fact of defendant's
prior record. I believe this was error for several reasons. First, the legislature has already established a mechanism for
consideration of a criminal defendant's prior record in determining
the appropriate sentence. Chapter 14 of the North Carolina General
Statute assigns criminal offenses to a specific “class”
corresponding to the seriousness of the offense. Under N.C.G.S. §
15A-1340.14 (2003), a trial judge sentencing a defendant for a
felony offense must first determine the defendant's “level” by
assigning a certain number of “points” for each prior conviction,
depending on the class of the prior offense. Thus, the presumptive
sentence for a criminal defendant is a function of both his current
offense and his prior record. I would conclude that, in the
absence of factual information about the defendant's prior
convictions, consideration of his criminal history is generally
accomplished by means of this statutory sentencing grid. In the
instant case, the trial court's finding is tantamount to a
nonstatutory aggravating factor that “defendant has a prior
criminal history.”
(See footnote 1)
Secondly, the State failed to present any evidence to support
this aggravating factor. In this regard, it is useful to consider
a
statutory aggravating factor that may be considered by the jury
in the sentencing phase of a capital case: (11) The murder for which the defendant stands
convicted was part of a course of conduct in
which the defendant engaged and which included
the commission by the defendant of other
crimes of violence against another person or
persons.
N.C.G.S. § 15A-2000(e)(11) (2003). Because the language of this
aggravating factor essentially parallels that found by the trial
court, cases interpreting G.S. § 15A-2000(e)(11) are instructive.
In
State v. Cummings, 346 N.C. 291, 328-29, 488 S.E.2d 550, 572
(1997) the North Carolina Supreme Court held:
Submission of course of conduct requires that
“there is evidence that the victim's murder
and the other violent crimes were part of a
pattern of intentional acts establishing that
in defendant's mind, there existed a plan,
scheme or design involving the murder of the
victim and the other crimes of violence.” . .
. In determining whether the evidence tends to
show that another crime and the crime for
which defendant is being sentenced were part
of a course of conduct, the trial court must
consider a number of factors, including the
temporal proximity of the events to one
another, a recurrent
modus operandi, and
motivation by the same reasons.
(quoting
State v. Walls, 342 N.C. 1, 69, 463 S.E.2d 738, 775
(1995)) (further citations omitted). Thus, the Court required a
factual connection among the crimes alleged to constitute a “course
of conduct.” The North Carolina Supreme Court has consistently
adhered to the requirements articulated in
Cummings. For example,
in
State v. Hoffman, 349 N.C. 167, 188, 505 S.E.2d 80, 93 (1998),
the Court approved submission of the aggravating factor, noting
that:
The robbery and murder in this case occurred
[in] November 1995. The two bank robberies .
. . occurred [in September and October 1995].
This span of time was not so great as to
prevent the crimes from being considered partof the same course of conduct. There was also
a similar
modus operandi employed in the
crimes. All occurred in small towns around
Charlotte, North Carolina. All occurred in
daylight hours while the businesses were open.
The same sawed-off shotgun, green bag, ski
mask, and white Nissan were used in all the
crimes. Finally, all the crimes shared the
same motive, pecuniary gain.
(citing
Cummings, 346 N.C. at 328-29, 488 S.E.2d at 572). However,
in
State v. Berry, 356 N.C. 490, 573 S.E.2d 132 (2002), the Court
found plain error where the trial court gave an instruction that
“allowed the jury to find the aggravating circumstance without also
finding that the murder of Fetter was part of a course of conduct
that included the earlier murder of Maves. The mere fact that one
murder followed the other does not establish a course of conduct.”
Id. at 523, 573 S.E.2d at 153.
(See footnote 2)
State v. Avery, 315 N.C. 1, 337 S.E.2d 786 (1985), relied upon
by the majority opinion, neither contradicts these holdings nor
supports the proposition that the present defendant's bare criminal
record can support the trial court's finding that the subject
offense “was part of a course of conduct by the defendant involving
violence against other persons, including at least 2 previous
robberies.” First, in
Avery, 315 N.C. at 35, 337 S.E.2d at 805,
the trial court based its finding that the defendant had “engaged
in a pattern or course of violent conduct” on “evidence that priorto [the] date [of the subject offenses] defendant had hit several
members of his family during attacks of rage, shot a gun while
angry at one of his neighbors, hit his boss at another company
where he once worked, and was involved in two fist fights.”
Id. at
35, 337 S.E.2d at 806. Thus, the trial court based its finding on
this
factual information about the defendant's actions, and not
upon his criminal record. Indeed, the opinion does not even state
whether these actions were the subject of criminal prosecution.
Secondly, the issue before the Court was whether two aggravators
were duplicative of each other. The Court in
Avery did not address
the issue of what evidence is required in order for a series of
actions to constitute a “course of conduct.” In sum,
Avery,
decided in 1985 under the repealed Fair Sentencing Act, neither
contradicts current Supreme Court jurisprudence nor supports the
trial court's finding of this aggravator in the instant case.
In the present case no evidence was presented regarding the
factors cited in
Cummings or any other factual connection between
the subject offense and defendant's prior criminal behavior.
This
was error and, accordingly, I dissent from this part of the
majority opinion.
Footnote: 1