Appeal by defendant from judgments entered 29 November 2001 by
Judge Beverly T. Beal in Gaston County Superior Court. Heard in
the Court of Appeals 15 March 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Robert C. Montgomery, for the State.
Leslie C. Rawls for defendant.
TIMMONS-GOODSON, Judge.
Damon Demond Stafford (“defendant”) appeals his convictions of
two counts of first-degree murder, two counts of robbery with a
dangerous weapon, and felony breaking or entering. For the reasons
that follow, we conclude that there was no error at trial, but
vacate the trial court's order amending defendant's sentence, and
remand for resentencing.
The evidence presented at trial tends to show the following:
On 13 August 1999, Donald James Hunt (“Mr. Hunt”), his wife Janie
Pearl Hunt (“Mrs. Hunt”), and their adult son Donald James Hunt,
Jr. (“D.J.”), were asleep in their home in Gastonia, North
Carolina. Mr. and Mrs. Hunt were sleeping in the bedroom and D.J.
was sleeping in the living room. The three were awakened by
intruders who announced themselves as the police, and ordered Mr.
and Mrs. Hunt out of bed and into the living room. One of the
intruders asked D.J. if he drove a black Explorer. D.J. answered
in the affirmative and the intruder struck him on the back of the
head with a gun. All three victims were instructed at gunpoint to
lie on the floor. One of the intruders removed jewelry that D.J.
was wearing and took money from D.J.'s pocket. The intruders
repeatedly asked D.J. questions such as “Where is the money?” and
“Where is the stuff?” to which D.J. replied that he had no drugs
and no money other than that which was in his pocket.
The intruders began searching the house and demanded more
money. D.J. told them that money could be found upstairs. One of
the intruders took Mrs. Hunt with him to the upstairs bedroom where
he searched for money. After failing to locate any money, theintruder returned Mrs. Hunt to the living room and the three
intruders began threatening to kill the victims. A struggle ensued
between D.J., Mr. Hunt and the intruders. The altercation between
Mr. Hunt and intruder Devan Lashawn Bynum (“Bynum”) progressed into
a nearby bedroom. D.J. testified that at that point, defendant
walked to the door of the bedroom and began firing a gun into the
room. D.J. then saw defendant take a briefcase belonging to the
family and run out of the rear door, followed by the third
intruder. Mr. Hunt and Bynum died as a result of the gunshot
wounds.
At trial, defendant was convicted of two counts of first-
degree murder in the deaths of Mr. Hunt and Bynum, two counts of
robbery with a dangerous weapon, and breaking or entering. On 29
November 2001, defendant was sentenced to life imprisonment without
parole for each count of first-degree murder, seventy-five months
to ninety-nine months for each count of robbery with a dangerous
weapon, and ten to twelve months for felony breaking or entering.
The trial court ordered these sentences to be served consecutively.
Defendant entered a notice of appeal to this Court on 29
November 2001. Eight months later, on 15 July 2002, the trial
court reconvened for a “resentencing hearing” at which time the
trial court entered “corrected judgment” and commitment worksheets,
amending defendant's sentence to a term of seventy-seven months to
102 months for each count of robbery with a dangerous weapon.
Defendant appeals these convictions and amended sentences.
[1] As an initial matter, we note that defendant's brief
contains arguments supporting only five of the original nine
assignments of error on appeal. The four omitted assignments of
error are deemed abandoned pursuant to N.C.R. App. P. 28(b)(6)
(2004). We therefore limit our review to those assignments of
error addressed in defendant's brief.
The remaining issues presented on appeal are whether the trial
court erred by (I) amending defendant's sentences on the charges of
robbery with a dangerous weapon after defendant's notice of appeal;
(II) submitting both counts of robbery with a dangerous weapon to
the jury; (III) denying defendant's motions to dismiss and motion
to set aside the verdict; and (IV) proceeding to trial on short-
form murder indictments.
[2] In his first assignment of error, defendant argues, and
the State concedes, that the trial court erred by amending
defendant's sentences on the two charges of robbery with a
dangerous weapon after the trial court entered a final judgment,
and after defendant filed a notice of appeal.
The law is well established in this State that
the [trial] court has inherent power to amend
judgments by correcting clerical errors or
supplying defects so as to make the record
speak the truth. The correction of such errors
is not limited to the term of court, but may
be done at any time upon motion, or the court
may on its own motion make the correction when
such defect appears. But this power to
correct clerical errors and supply defects or
omissions must be distinguished from the power
of the court to modify or vacate an existing
judgment. And the power to correct clerical
errors after the lapse of the term must be
exercised with great caution and may not be
extended to the correction of judicial errors,
so as to make the judgment different from what
was actually rendered.
Shaver v. Shaver, 248 N.C. 113, 118, 102 S.E.2d 791, 795 (1958)
(citations omitted).
In the case
sub judice, after hearing penalty phase evidence,
the trial court entered findings of aggravating factors for both
counts of robbery with a dangerous weapon. Accordingly, the trial
court had the statutory authority to “impose a sentence that is
permitted by the aggravated range described in G.S. 15A-
1340.17(c)(4).” N.C. Gen. Stat. § 15A-1340.16(b) (2003). Given
that robbery with a dangerous weapon is a class D felony,
see N.C.
Gen. Stat. § 14-87 (2003), and that defendant was a prior record
level II offender, the authorized aggravated sentence was seventy-
seven to ninety-five months. N.C. Gen. Stat. § 15A-1340.17(c)(4)
(2003).
However, the judgment imposed by the trial court sentenced
defendant to a term of seventy-five to ninety-nine months for each
count of robbery with a dangerous weapon. This sentence falls
within the presumptive range of sixty-one to seventy-seven months.
Id.
On 15 July 2002, the trial court convened for a resentencing
hearing, at which time the judge stated the following:
In case 99 CRS 29086, the Court found the
Defendant had been convicted of robbery with a
dangerous weapon of Donald James Hunt, a Class
D felony, prior record level II. The Court
indicated that . . . aggravating factors were
found. The Court did not make any findings in
mitigation. At that point the Court sentenced
the Defendant to a sentence of not less than
75 nor more than 99 months. That sentence is
not from the aggravated range. That sentence
is from the presumptive range.
. . . .
So the problem in 99 CRS 29086 is that
the Defendant was sentenced in the
inappropriate range. Then the Court sentenced
the Defendant in regard to robbery with a
dangerous weapon of Donald James Hunt, Jr., aClass D felony, prior record level II. The
Court indicated that the same aggravating
factors that had previously been found in 99
CRS 29087 were also found as to this charge.
The Court made no findings in mitigation and
did not intend to find and did not find that
there were any mitigating factors, and the
Court then imposed another sentence of 75
months minimum, 99 months maximum, which also
was not in the aggravated range but was in the
presumptive range which was not the correct
sentencing procedure.
The judge proceeded to increase the sentence for each count of
robbery with a dangerous weapon to a term of seventy-seven months
to 102 months.
The State has conceded that the trial court was acting under
a misapprehension. The State has not argued that the original
sentence was error. Thus, we conclude that the purpose of the
resentencing was to alter the original sentence from that which was
rendered on 29 November 2001. Accordingly, we vacate the trial
court's judgments entered on 15 July 2002, and remand this case for
the trial court to reinstate the judgments entered on 29 November
2001.
[3] Defendant next assigns error to the trial court for
submitting both counts of robbery with a dangerous weapon to the
jury where both indictments reference a taking of the same
property, but name different victims. Defendant argues that he was
unlawfully convicted of both counts of robbery with a dangerous
weapon in violation of the laws against Double Jeopardy and in the
face of insufficient evidence. We disagree.
As an initial matter, we note, and defendant concedes, that
defense counsel did not object to the submission of both counts of
robbery with a dangerous weapon to the jury at trial on
constitutional grounds. Defendant may not raise the constitutionalissue of Double Jeopardy for the first time on appeal.
State v.
Scott, 99 N.C. App. 113, 116-17, 392 S.E.2d 621, 623 (1990),
appeal
dismissed and rev. granted by 327 N.C. 486, 397 S.E.2d 234 (1990),
aff'd in part and rev'd in part by 331 N.C. 39, 413 S.E.2d 787
(1992). Because defendant failed to raise the Double Jeopardy
issue at trial, we decline to review the issue on appeal. We
discuss
infra the question of whether the trial court erred by
denying defendant's motions to dismiss the charges of robbery with
a dangerous weapon due to insufficient evidence.
[4] Defendant argues that the trial court erred by denying his
motions to dismiss all charges and motion to set aside the verdict.
We disagree.
In ruling on a motion to dismiss based on insufficiency of
evidence, the trial court must determine whether there is
substantial evidence of each element of the offense charged.
See
State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387 (1984).
“Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
State v.
Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). When
reviewing the evidence, the trial court must consider even
incompetent evidence in the light most favorable to the
prosecution, granting the State the benefit of every reasonable
inference.
State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587
(1984). Any contradictions or discrepancies in the evidence should
be resolved by the jury.
Id. “The standard of review of a trial
court's denial of a motion to set aside a verdict for lack of
substantial evidence is the same as reviewing its denial of a
motion to dismiss.”
State v. Duncan, 136 N.C. App. 515, 520, 524S.E.2d 808, 811 (2000) (citing
State v. Young, 120 N.C. App. 456,
462 S.E.2d 683 (1995)).
In the case
sub judice, defendant was convicted of five
crimes. Upon review, we analyze the sufficiency of the evidence as
to each offense.
Defendant was convicted of first-degree murder in the death of
Devan Lashawn Bynum. First-degree murder is defined by statute as
a “willful, deliberate, and premeditated killing, or which shall be
committed in the perpetration or attempted perpetration of any
arson, rape or a sex offense, robbery, kidnapping, burglary, or
other felony committed or attempted with the use of a deadly
weapon.” N.C. Gen. Stat. § 14-17 (2003).
At trial, D.J. testified that the intruders became frustrated
when they could not find money in the house, and threatened to kill
Mr. Hunt, Mrs. Hunt and D.J. Mr. Hunt, who was lying on the floor,
jumped up, grabbed Bynum, and wrestled him into the bedroom. At
trial, D.J. described the sequence of events as follows:
A: Stafford was beside me holding my father;
but when my father jumped up and grabbed
Bynum, Stafford went in the room after
him.
Q: Okay. . . . What happened after Stafford
went in the other room?
A: I could see him standing right there in
the doorway, and then I heard like maybe
five or six shots.
Q: Okay. Did you see who was doing the
shooting?
A: He was right there in the doorway, yes.
Q: Who was shooting?
A: Stafford.
D.J. testified that he did not see Bynum in the house after the
shooting. D.J. then testified that when he saw defendant and the
third intruder run out of the house, he retrieved his brother's
handgun from a cabinet and ran out of the front door where he
observed the three men running side-by-side down the street. He
testified that Bynum was between the other two men.
The Hunts' neighbor, Kathryn Wilson (“Wilson”), testified that
after the shooting, she observed three men running down the street.
All three were carrying guns, and one was carrying a briefcase.
Wilson testified that one of the men was running with a limp.
Bynum's girlfriend, Shamona Brice (“Brice”), testified that at
or around 3:00 p.m. on 13 August 1999, she was at her home when her
brother came in the house and had clothes in his hand that she
recognized as the clothes that Bynum was wearing that day.
Thomas Olofsson (“Olofsson”) and Teresa Nolan (“Nolan”) were
neighbors of defendant's girlfriend at the time. Each testified
that mid-afternoon on 13 August 1999, defendant drove a car onto
their property with two passengers in the car. Olofsson testified
that the passenger in the front seat was “lethargic.” Olofsson and
Nolan testified that defendant asked Nolan to call 9-1-1 as
Olofsson helped to pull the front-seat passenger out of the car.
Olofsson testified that he did not notice any injuries on the
front-seat passenger, but that there was blood on the seat of the
car. Olofsson and Nolan testified that the front-seat passenger
was wearing only boxer shorts, which he took off when he got out of
the car. Nolan testified that someone then said, “Get back in the
car. You have been shot.” Nolan, who at this time was calling for
an ambulance, testified that “after we called 9-1-1 and got them onthe phone [defendant] was like never mind, we'll take him to the
hospital.”
Reed Moore (“Moore”) was a security officer at Carolinas
Medical Center in Charlotte, North Carolina. Moore testified that
on 13 August 1999 at around 3:30 p.m., he was posted in the
emergency room when the following events occurred:
A: [T]wo gentlemen came into the emergency
room. They was [sic] driving a vehicle
and pulled up to the front door. They
offloaded another individual _ one had
his feet, and one had his head _ and
brought him to the emergency room door.
I said, “Do you need help?” He had been
shot. We carried him to the emergency
room and placed him on a bed in the
emergency room, and they took out and
left out the door.
Q: Did they say anything prior to leaving
out of the door?
A: No, they didn't.
Q: Okay. And what happened after that?
A: They got in their car and left.
. . . .
Q: Could you describe the three gentlemen
that came in?
A: Okay. Two of the gentlemen _ they was
[sic] dressed casually, but the third
person that was _ that had been shot
didn't have any clothes on.
Dr. James Michael Sullivan (“Dr. Sullivan”), the pathologist
who performed the autopsy on Bynum, testified that Bynum suffered
two gunshot wounds, and that one of those gunshot wounds was a
fatal injury. Dr. Sullivan pronounced Bynum dead at 3:36 p.m.
We conclude that this is sufficient evidence of a killing
committed in the perpetration of a robbery to constitute first-
degree murder. Defendant provided no evidence to refute thisaccount of Bynum's death. Therefore, viewing this evidence in the
light most favorable to the State, we hold that the trial court
properly denied defendant's motion to dismiss the first-degree
murder charge in the death of Bynum and the motion to set aside the
verdict.
Defendant was also convicted of first-degree murder for the
death of Mr. Hunt. Again we highlight D.J.'s testimony about the
shooting of his father during the course of the armed robbery,
recounted
supra. Mrs. Hunt testified that after defendant and the
two other intruders left the house, she went into the bedroom where
Mr. Hunt was lying on the floor. She stated that “[h]e was
bleeding and rolling, and he told me to put a pillow under his leg.
He couldn't feel his leg.” Dr. Peter Whittenberg (“Dr.
Whittenberg”), the pathologist who performed the autopsy on Mr.
Hunt, later testified that Mr. Hunt suffered four gunshot wounds,
and “[t]he cause of death on Mr. Hunt was blood loss or
hemorrhaging due to a gunshot wound to the abdomen.”
Once again, we conclude that this is sufficient evidence of a
killing committed in the perpetration of a robbery to constitute
first-degree murder. Defendant provided no evidence to refute this
account of Mr. Hunt's death. Therefore, viewing this evidence in
the light most favorable to the State, we hold that the trial court
properly denied defendant's motion to dismiss the first-degree
murder charge in the death of Mr. Hunt and the motion to set aside
the verdict.
Defendant was also convicted of robbery with a dangerous
weapon of Mr. Hunt. A person is deemed to have committed robbery
with a dangerous weapon when that person, having in possession or with the use or
threatened use of any firearms or other
dangerous weapon, implement or means, whereby
the life of a person is endangered or
threatened, unlawfully takes or attempts to
take personal property from another or from
any place of business, residence or banking
institution . . . .
N.C. Gen. Stat. § 14-87 (2003).
At trial, D.J. testified that defendant and two others held
him, Mr. Hunt and Mrs. Hunt at gunpoint as they searched the house.
D.J. testified that after defendant shot Mr. Hunt, defendant
entered the bedroom where Mr. Hunt was lying wounded on the floor,
“grabbed the briefcase and ran from the bedroom back through the
living room back out the back door.” He stated that the briefcase
contained documents belonging to each of the family members,
including “[c]ar titles, insurance papers, [and] important stuff
that the family just kept in the briefcase.” Defendant provided no
evidence to refute this account of how the briefcase containing the
family's personal property was taken from the house. Therefore,
viewing this evidence in the light most favorable to the State, we
hold that the trial court properly denied defendant's motion to
dismiss this charge and motion to set aside the verdict.
Defendant was also convicted of robbery with a dangerous
weapon of D.J. At trial, D.J. first testified that another
intruder took the money from his pocket, then he testified that he
couldn't remember if defendant or the other intruder was the person
who took the money from his pocket. Defendant provided no evidence
to clarify how D.J.'s money was taken. The State also provided
additional evidence on this charge in that, in addition to the
money taken from D.J.'s pocket, D.J. also saw defendant remove the
briefcase containing his family's personal documents from thehouse. Therefore, viewing this evidence in the light most
favorable to the State, we hold that the trial court properly
denied defendant's motion to dismiss the charge of robbery with a
dangerous weapon of D.J. as the discrepancy in D.J.'s testimony is
a matter properly left for the jury as the finders of fact. We
also hold that the trial court properly denied the motion to set
aside the verdict.
Defendant's final conviction was for felony breaking or
entering. This charge is appropriate where a person “breaks or
enters any building with intent to commit any felony or larceny
therein.” N.C. Gen. Stat. § 14-54 (2003).
Evidence of a breaking when available is
relevant, but the absence of such evidence is
not a fatal defect of proof to support a
conviction of breaking and entering under G.S.
14-54 where there is proof of entry. Nor is
proof of entry where there is proof of
breaking necessary to support a conviction on
a charge of breaking and entering under the
statute.
Blakeney v. State, 2 N.C. App. 312, 317, 163 S.E.2d 69, 72 (1968)
(citations omitted).
At trial, Mrs. Hunt testified as follows: “I was asleep; and
a noise woke me up; and looking from the bed toward the kitchen and
a guy was coming toward me with a gun saying 'Police. Police.'”
When asked to elaborate on the noise, Mrs. Hunt said “[j]ust a loud
noise like thunder or something _ a loud noise. It just woke me
up.” D.J. testified that he heard “a loud noise like an explosion.
. . . It came from the back, but I couldn't see because the kitchen
door was shut. . . . I heard someone say, 'Police. Police. Get
down.'” He said that at that time a man with a gun walked into the
room. Two of the investigating officers testified that when they
arrived at the house, “the back door was broken, it wouldn't closeanymore,” and “the molding around the back door was laying in the
floor in front of the back door.” Immediately upon entering the
house, defendant and the other intruders threatened the victims and
demanded money and drugs.
Defendant did not provide any evidence to refute this account
of how he came to be present inside the Hunts' house. Therefore,
viewing this evidence in the light most favorable to the State, we
hold that the trial court properly denied defendant's motion to
dismiss and motion to set aside the verdict on this charge.
[5] Defendant's last assignment of error states that the trial
court erred by proceeding to trial on short-form murder indictments
in violation of defendant's constitutional rights. We disagree.
Our Supreme Court has consistently held that short-form murder
indictments are constitutionally sound.
State v. Hunt, 357 N.C.
257, 278, 582 S.E.2d 593, 607,
cert. denied,
539 U.S. 985,
petition
denied, 539 U.S. 985 (2003);
see also State v. Wallace, 351 N.C.
481, 504, 528 S.E.2d 326, 341 (upholding short-form indictment for
murder),
cert. denied, 531 U.S 1018 (2000),
reh'g denied, 531 U.S.
1120 (2001). Accordingly, we decline to address this assignment of
error as it is without merit.
No error in trial, vacate and remand for resentencing.
Judges LEVINSON and THORNBURG concur.
*** Converted from WordPerfect ***