An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA 03-3

NORTH CAROLINA COURT OF APPEALS

Filed: 6 April 2004

STATE OF NORTH CAROLINA

v .                         Henderson County
                            Nos. 01 CRS 53116
HARLAN PONDER, JASON HARLAN            01 CRS 53118
PONDER, and SONYA CASE HARRIS            01 CRS 53119

    Appeal by defendants from judgments entered 24 May 2002 by Judge Loto G. Caviness in the Superior Court in Henderson County. Heard in the Court of Appeals 16 October 2003.

    Attorney General Roy Cooper, by Assistant Attorney Generals Amy C. Kunstling and Kathleen U. Baldwin, for the State.

    James L. Goldsmith, Jr., for defendant-appellants Harlan Ponder and Jason Harlan Ponder.

    Marjorie S. Canaday, for defendant-appellant Sonya Case Harris.

    HUDSON, Judge.

    On 8 October 2001, the Henderson County Grand Jury indicted defendants Sonya Harris, Harlan Ponder and Jason Ponder for second- degree murder. They were tried together at the 13 May 2002 Criminal Session of superior court in Henderson County, and the jury convicted all three. The court sentenced defendant Harris to 276 to 341 months imprisonment, defendant Harlan Ponder to 313 to 385 months imprisonment, and defendant Jason Ponder to 196 to 245 months imprisonment. Defendants appeal. For the reasons discussed below, we find no error in either of the Ponders' cases; as to Harris only, we remand for resentencing.    The State's evidence at trial tended to show that in July 2001, forty-four-year-old David Boyd, the victim, was homeless in Henderson, North Carolina. On 22 July 2001, Boyd was at “the pit,” an area near railroad tracks in Henderson where homeless people gathered to drink alcohol. Boyd was with Sandra Seay, who was mentally ill and physically disabled, as well as homeless. Boyd and Seay were good friends and had been romantically involved. Although Boyd sometimes called Seay bad names and got angry with her, he never hit her and did not hit her on that day.
    The three defendants were also drinking at the pit on 22 July 2001, and Harris had also taken some drugs. Harris also had a silver-bladed knife in her possession. At that time, the defendants had known Boyd for only three or four days.
    Robert Banks was also at the pit drinking that day. He testified that Harris was drunk or high that day and had just about passed out. Harris was lying in the sun with Jason Ponder sitting beside her. Boyd thought Harris should not be in the sun, so he moved her to a shadier area. Shortly thereafter, Harris started screaming at Boyd that she was going to kill him, and tried to kick Boyd in the face. Boyd attempted to block her kicks, which caused Harris to trip and fall. At that point, Harlan Ponder (Harlan) and Jason Ponder (Jason) went over and started hitting Boyd. A blow by Jason knocked Boyd out, and Boyd fell to the ground hitting his head.
    Banks testified further that, when Boyd regained consciousness, all three defendants started beating him again. Banks urged Boyd to defend himself, but Boyd said that he had been in Vietnam and was never going to fight again. Jason finally knocked Boyd out again.
    Boyd managed to get up and walk toward the nearby Fresh Market building. Jason followed and knocked him down again, and all three defendants stomped and kicked Boyd near his ribs. The Ponders then dragged Boyd to a nearby field, while Harris grabbed Seay by the hair, beat her on the back, and held a knife to her threatening to cut her throat. Then all three defendants left, and Seay helped Boyd walk across the railroad trestle to an abandoned building where homeless people slept. Seay and Boyd were moving slowly and Boyd was bleeding a lot.
    Later that night, Seay was unable to detect Boyd's pulse and called 9-1-1. The police responded at about 1:00 a.m. on the morning of 23 July 2001 and discovered that Boyd was dead. Boyd's injuries made it apparent that he had been severely beaten, and Seay told the police that defendants had beaten him.
    Dr. Donald Jason, a forensic pathologist, performed the autopsy of Boyd's body. He observed bruises on the front and back of the head, and on the left side of the head. These resulted from blunt force injuries that caused bleeding inside Boyd's skull. Although Dr. Jason could not tell which of the head injuries caused Boyd's death, he explained that injuries of this type would initially cause Boyd to lose consciousness, regain consciousness for a while, then lose consciousness again and ultimately die.
    In addition to the blunt force injuries to the head, Dr. Jasonobserved injuries to Boyd's face, fractures in his eleventh and twelfth ribs, damage to rib cartilage, bruises, scratches and scrapes all over his body including cuts in a “tic-tac-toe” pattern on his back, and defensive wounds on his left hand. All of these injuries were inflicted while Boyd was still alive.
    Dr. Jason also testified that Boyd's blood-alcohol concentration was .18 percent when he died, but explained that it would not be unusual for an alcoholic to still be able to walk around with that level. Dr. Jason also explained that Boyd's alcoholism could have caused Boyd's brain to shrink, which could have made it easier for him to develop a subdural hematoma after a head injury.
    Joy McConnell testified that while she was incarcerated in the Henderson County Jail with Harris, Harris told her that she had to get out of jail quickly because she had been questioned about a murder. Harris identified the victim as “this damn Yankee” and as “David.” Harris told McConnell that she had beaten Boyd, but did not think that she killed him, and explained that they were all drinking and that “that damn Yankee had it coming, what happened to him,” because he had been hitting “his old lady.”
    Alicia Smith testified that while she was incarcerated with Harris in Raleigh, Harris told her that she had beaten Boyd pretty badly and left him for dead. Harris told Smith that Boyd had been hitting his girlfriend, and that once she started beating Boyd she could not stop. Harris also told Smith that she was the one who inflicted the cuts on Boyd's back and that she cut Boyd's fingerand broke his nose. Harris told Smith that she could hear Boyd's ribs breaking as she kicked him, and that she also kicked him in the head.
    The defendants presented no evidence.
A. Defendant Harris
    Among the factors the trial court found in aggravation of Harris' second-degree murder conviction were that defendant induced others to participate in the commission of the crime and that she occupied a position of leadership in the commission of the crime. Harris argues that the trial court improperly relied upon the same evidence to prove both factors, and that these factors were not supported by a preponderance of the evidence. We agree.
    Under the Structured Sentencing Act, the trial court must consider evidence of aggravating and mitigating factors and may then impose a sentence in its discretion. N.C. Gen. Stat. § 15A-1340.16(a) (2001). The State bears the burden of proving aggravating factors by a preponderance of the evidence. Id. A trial court's weighing of mitigating and aggravating factors will not be disturbed on appeal absent a showing that there was an abuse of discretion. See State v. Wampler, 145 N.C. App. 127, 133, 549 S.E.2d 563, 568 (2001).
    The trial court should find an aggravating factor only if the defendant behaved in a manner that increases his culpability for the offense. State v. Bates, 76 N.C. App. 676, 678, 334 S.E.2d 73, 74 (1985). The trial court's finding of an aggravating factor “must be supported by sufficient evidence to allow a reasonablejudge to find its existence by a preponderance of the evidence.” State v. Hayes, 102 N.C. App. 777, 781, 404 S.E.2d 12, 15 (1991). Pursuant to G.S. . 15A-1340.16(d), “the same item of evidence shall not be used to prove more than one factor in aggravation.”
    Here, the only bit of evidence that the trial court could have relied upon to prove these two aggravating factors, and the only evidence the State argued at the sentencing hearing, was that Harris was the first person to hit Boyd. Indeed, in arguing to the court the State's attorney stated that Harris was “the one who got the beating started.”
    The State contends, however, that although the sentencing form indicates that the trial court found both factors, the transcript of the sentencing hearing indicates that the trial court found only that Harris had a leadership role in the commission of the offense:
    THE COURT: As to this, as to the Defendant Sonya Harris having been convicted -- having been convicted by virtue of the verdict of a jury of the crime of second degree murder, she is a Level 3 on a B-2 felony. The Court will find as aggravating factors -- aggravating factor 1, that she did appear to occupy a position of leadership as presented in the testimony, that aggravating factor 2, that she joined with more than one individual and proceeding on with this behavior and was not charged with conspiracy. And aggravating factor 10, that she was armed with a deadly weapon, a knife. Evidence and testimony offered to that effect at the time.

Based on this portion of the transcript, the State contends that the trial court did not find that Harris induced others to commit the offense, and argues that an indication on the sentencing form that this aggravating factor had been found by the trial court is a mere clerical error.
    In State v. Morston, 336 N.C. 381, 445 S.E.2d 1 (1994), ourSupreme Court, faced with a very similar issue involving two other aggravating factors held that, while the error may have been clerical, “we believe that the better course is to err on the side of caution and resolve in the defendant's favor the discrepancy between the trial court's statement in open court, as revealed by the transcript, and the sentencing form.” Id. at 410, 445 S.E.2d at 17. Based upon Morston, therefore, we remand to the trial court for re-sentencing of defendant Harris.
    Defendant Harris next argues that the trial court erred in finding as an aggravating factor that she joined with more than one other person to commit the offense but was not charged with conspiracy. We disagree.
    Pursuant to G.S. . 15A-1340.16(d), “[e]vidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation.” Defendant contends that the evidence necessary to prove this aggravating factor was also used to prove an element of the offense for which she was charged. Our Supreme Court has stated that the statutory factors in G.S. § 15A-1340.4(a)(1) “contemplate a duplication in proof without violating the proscription that 'evidence necessary to prove an element of the offense may not be used to prove any factor in aggravation.'” State v. Bruton, 344 N.C. 381, 394, 474 S.E.2d 336, 345 (1996) (citing State v. Thompson, 309 N.C. 421, 422 n.1, 307 S.E.2d 156, 158 n.1 (1983)). Second degree murder is the unlawful killing of another human being, with malice, but without premeditation and deliberation. State v. Coble, 351 N.C. 448, 449,527 S.E.2d 45, 46 (2000). The fact that Harris joined with more than one other person to commit the offense is not an element of second degree murder; rather such evidence was used to prove defendant's guilt under a theory of acting in concert. We overrule this assignment of error.
    Harris next argues that the trial court erred by finding the aggravating factor that she was armed with a deadly weapon at the time of the offense because the evidence of the deadly weapon was necessary to infer malice -- an element of second-degree murder.
    In State v. Blackwelder, 309 N.C. 410, 306 S.E.2d 783 (1983), our Supreme Court held that “[w]hen the facts justify the giving of the instruction of the inference of malice arising as a matter of law from the use of a deadly weapon and it is in fact given, or when it could have been given had defendant not entered a plea of guilty, evidence of the use of a deadly weapon is deemed necessary to prove the element of malice for purposes of precluding its use as an aggravating factor at sentencing.” Id. at 417, 306 S.E.2d at 788. Here, the trial court did not instruct the jury on the “inference of malice,” therefore the presumption in Blackwelder does not apply. We also note that there was sufficient evidence of malice apart from the use of the deadly weapon. Boyd was brutally beaten over and over again by the three defendants, knocked unconscious, pursued and attacked again after he tried to get away, and ultimately died as a result of blows to his head. The deadly weapon in this case was not the cause of Boyd's death, nor was it the basis of malice as it was in Blackwelder. Thus, we overrulethis assignment of error.
    Harris next argues that the trial court committed plain error by admitting into evidence the three knives that were found in her possession when she was arrested four days after the incident. We disagree.
    As defendant did not object at trial to the admission of the knives, we review this assignment of error for plain error.
    [T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a “fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,” or “where [the error] is grave error which amounts to a denial of a fundamental right of the accused,” or the error has “'resulted in a miscarriage of justice or in the denial to appellant of a fair trial'” or where the error is such as to “seriously affect the fairness, integrity or public reputation of judicial proceedings” or where it can be fairly said “the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.”
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)). Although plain error review has usually been applied to instructions to the jury, our courts have held that it can also apply to the admission of evidence. State v. Black, 308 N.C. 736, 741, 303 S.E.2d 804, 807 (1983). However, after reviewing the entire record, we are not persuaded that this is the exceptional case where the admission of the knives, even if error, is so fundamental that justice could not have been done. Accordingly, this assignment of error is overruled.    Finally, Harris argues that the trial court erred by denying her motion to dismiss the charges based upon insufficiency of the evidence. For the following reasons, we overrule this assignment of error.
    When ruling on a motion to dismiss, the court must consider all the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences which can be drawn therefrom. State v. Rasor, 319 N.C. 577, 585, 356 S.E.2d 328, 333 (1987). The central question is whether there is substantial evidence of each element of the charged offense, and that the defendant was the perpetrator. State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). Whether the State has presented substantial evidence is a question of law for the court. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 649, 652 (1982). “If all the evidence, taken together and viewed in the light most favorable to the State, amounts to substantial evidence of each and every element of the offense and of defendant's being the perpetrator of such offense, a motion to dismiss is properly denied.” State v. Mercer, 317 N.C. 87, 98, 343 S.E.2d 885, 892 (1986) (citations omitted).
    As discussed above, second degree murder is the unlawful killing of another human being, with malice, but without premeditation and deliberation. Coble, 351 N.C. at 449, 527 S.E.2d at 46. A defendant may be convicted of second degree murder basedon the theory that he acted in concert with others to commit the offense. The doctrine of acting in concert is defined as follows:
    If two persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal if the other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose . . . or as a natural or probable consequence thereof.
State v. Mann, 355 N.C. 294, 306, 560 S.E.2d 776, 784, cert. denied, 537 U.S. 1005, 154 L. Ed. 2d 403 (2002).
    Here, the State presented evidence tending to show that Harris initiated the string of beatings, carried out by her and the other two defendants. Eyewitnesses saw her kick and hit Boyd, and others testified that while awaiting trial on these charges she told other inmates that she cut Boyd, broke his nose, and heard his ribs break when she kicked him. Based upon this evidence, a jury could find that Harris acted in concert to unlawfully kill another with malice, and therefore committed second degree murder.
B. Defendants Harlan Ponder and Jason Ponder
    The Ponder defendants first argue that the trial court erred by denying their motions to dismiss the charges based on insufficiency of the evidence. We disagree.
    The standard of review for this assignment of error is set out above. As to both of these defendants, sufficient evidence was introduced which showed that they, along with Harris, engaged in the brutal beating of Boyd. Witnesses testified that they actively participated by repeatedly hitting and kicking Boyd, even pursuing him and beating him again after he attempted to flee. They werealso seen dragging Boyd through a nearby field, where they left him bleeding badly. Boyd later died from blunt force injuries to his head. As with Harris, this evidence is sufficient for a jury to find that Harlan Ponder and Jason Ponder acted in concert to unlawfully kill another with malice, thus committing second degree murder. These assignments of error are overruled.
    By their second argument, Harlan and Jason Ponder contend that the trial court erred in finding certain aggravating factors at sentencing. Harlan argues the lack of evidence to support findings that he occupied a position of leadership and that he joined with more than one other person to commit the offense. Jason argues the evidence was insufficient to support the finding that he joined with more than one other person to commit the offense.
    In their briefs, both refer to Assignment of Error No. 4 as the basis of this argument. The record reveals that Assignment of Error No. 4 in both cases challenges “[t]he trial court's finding that aggravating factors outweighed mitigating factors in sentencing defendant.” This assignment of error relates only to the court's weighing of the factors, not to the threshold finding of the factors. Neither defendant assigns error to the sufficiency of the evidence to support finding the aggravating factors. Thus, these defendants' arguments are not properly before the Court for appellate review, and these assignments of error are overruled. See N.C. R. App. P. 10(a); State v. Diehl, 353 N.C. 433, 438, 545 S.E.2d 185, 188-89 (2001).

Conclusion
    For the reasons stated above, we find no error as to either Harlan Ponder or Jason Ponder. We also find no error in Sonya Harris' conviction, but we remand for resentencing in her case.
    01 CRS 053116 (Harlan Ponder) -- No error.
    01 CRS 053118 (Jason Harlan Ponder) -- No error.
    01 CRS 053119 (Sonya Case Harris) -- No error, remanded for resentencing.

    Judges MCGEE and CALABRIA concur.
    Report per Rule 30(e).

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