Appeal by defendant from judgment entered 9 October 2002 by
Judge Larry G. Ford in Rowan County Superior Court. Heard in the
Court of Appeals 15 October 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Jeffrey R. Edwards, for the State.
Bruce T. Cunningham, Jr., for defendant appellant.
McCULLOUGH, Judge.
Defendant Melissa Yvette Snow was tried before a jury at the
8 October 2002 Criminal Session of Rowan County Superior Court
after being charged with discharging a weapon into occupied
property. The State's evidence presented tends to show the
following: Defendant and Jeffrey Neal (“Mr. Neal”) are the
biological parents of their daughter Summer, who was 13 months old
at the time of the incident. They were having domestic problems
and were living apart in April 2001. Summer was generally being
cared for by defendant.
On the night of 24 April 2001, defendant's son Devin, not
fathered by Mr. Neal, had a baseball game. Defendant left Summer
with Mr. Neal to go to her son's baseball game which lasted from6:00 p.m. to 7:30 p.m. Defendant and Devin returned to Mr. Neal's
trailer home at approximately 8:15 p.m. or 8:30 p.m. Devin
immediately went over to Mr. Neal's neighbor's home, Lisa Roderick
(“Lisa”), to play video games. Defendant stayed at Mr. Neal's home
and talked with him and another woman who was visiting him.
Between 9:00 or 9:30 p.m., defendant went to get Devin, and
stayed to talk with Lisa for about 45 minutes to an hour while
drinking beer. She then returned to Mr. Neal's home and saw him
taking money from the women that had been visiting him. She
recognized this as a drug sale from her own drug related
experiences with Mr. Neal. Defendant became upset because she
thought he would have changed since Summer was born. She said, “You
haven't changed and I reckon you never will. I think it's time for
us to go.” She left again, leaving Devin and Summer, and returned
to Lisa's very upset. Defendant stayed at Lisa's for about 30
minutes.
Defendant returned to Mr. Neal's home at around midnight on 25
April 2001. She first woke Devin. She then went into the bedroom
where Mr. Neal and Summer were sleeping and became irate, stating
she was taking Summer. Mr. Neal said that he would not let
defendant take Summer because she had been drinking. The argument
then began to escalate, and defendant grabbed a 9-mm semiautomatic
handgun off the headboard of the bed. Defendant pointed the gun at
Mr. Neal and told him she was going to kill him, but then walked
out of the home. After defendant left the home, Mr. Neal took Summer and went
to the kitchen window. He testified that he saw defendant standing
on the front steps with the gun in her hand, that she then fumbled
the gun, pointed it towards the trailer home, and fired two shots
into the home. Defendant testified that before she shot the
pistol, she saw Mr. Neal and Summer in the kitchen window. One of
the bullets passed through the front door and two bedroom walls.
The other bullet went through three walls. When defendant was
arrested, she did not tell the police that the shooting was an
accident or that Mr. Neal had assaulted her.
Defendant put on evidence that when she was leaving the house
with Summer, Mr. Neal was screaming that “[she] wasn't ever going
to see her baby ever again.” She testified that Mr. Neal first
drew the gun and pointed it at her, and when he was putting it
down, she grabbed it from him and threw the gun out the front door.
She testified that she too was doing a lot of screaming when
leaving the house. She testified that when in the yard she picked
up the gun, but never pointed it at the house or intended to shoot
the house. The gun fired twice while in her hands.
Defendant was convicted by a jury of discharging a weapon into
occupied property, and sentenced to 24-36 months in the North
Carolina Department of Corrections. This was a mitigated sentence,
as the trial court determined the factors in mitigation outweighed
the factor in aggravation.
On appeal, two issues frame her seven assignments of error,
both of which pertain to her sentencing. The first is that thetrial court erred in finding as an aggravating factor that a 9-mm
semiautomatic handgun is a weapon which would normally be hazardous
to the lives of more than one person pursuant to N.C. Gen. Stat. §
15A-1340.16(d)(8) (2001); and second, that a jury should have
decided the factual issue of whether defendant was on probation
when she committed the offense, because this moved her from a Level
II offender, eligible for probation, to a Level III offender,
carrying a minimum sentence of 20 months' incarceration. For the
reasons set out in this opinion, we conclude there to be no error
on both issues.
Risk of Death to More than One Person
Before addressing the merits of defendant's assignments of
error concerning the trial court's finding of an aggravating factor
in the sentencing of defendant, we note here that defendant was
given a mid-range mitigated sentence. Therefore, because this
sentence is below the presumptive range for defendant's prior
record or conviction level and class of offense, there is no direct
right of appeal on this issue. N.C. Gen. Stat. § 15A-1444(a1)
(2001); see State v. Brown, 146 N.C. App. 590, 593, 553 S.E.2d 428,
430 (2001), appeal dismissed, disc. review denied, 356 N.C. 306,
570 S.E.2d 734 (2002) (Defendant sentenced within the presumptive
range is not entitled as a matter of right to appeal his
sentence.). However, as the Court did in Brown, we will review
this issue as if it had properly been petitioned for and accepted
by writ of certiorari. Pursuant to N.C. Gen. Stat. § 15A-1340.16(d)(8), an
aggravating factor will be imposed if the “defendant knowingly
created a great risk of death to more than one person by means of
a weapon or device which would normally be hazardous to the lives
of more than one person.” The sentencing judge must “focus on two
considerations: (1) [whether] a great risk of death [was] knowingly
created, and (2) whether the weapon in its normal use is hazardous
to the lives of more than one person.” State v. Carver, 319 N.C.
665, 667, 356 S.E.2d 349, 351 (1987). Thus, determining this
aggravating factor in sentencing is a two-prong consideration for
the trial court.
The weapon in its normal use
Defendant argues that a 9-mm semiautomatic gun is not
per se
a normally hazardous weapon under N.C. Gen. Stat. § 15A-
1340.16(d)(8). She argues that in determining whether a weapon is
normally hazardous to more than one person, the trial court should
have considered the context in which the shots were fired.
Specifically, defendant argues that the court should have been
presented evidence as to the timing of the two shots fired by
defendant.
We believe defendant has incorrectly framed her argument,
arguing, pursuant to the first prong of the test laid out in
Carver, that the court must consider the context of how a weapon
was used before it can be deemed normally hazardous. We do not
read “normally” in the statute to require the trial court to
consider the specific use of the weapon in the underlying offensebefore deeming it to be hazardous. In fact, our Supreme Court has
already found a 9-mm semiautomatic handgun to be hazardous in its
normal use.
In
State v. Bruton, our Supreme Court affirmed the trial
court's finding that when defendant used a 9-mm semiautomatic
handgun intentionally firing at two people, that the “defendant
knowingly created a great risk of death to more than one person by
means of a weapon which would normally be hazardous to the lives of
more than one person.”
State v. Bruton, 344 N.C. 381, 393, 474
S.E.2d. 336, 345 (1996). The Court in
Bruton disposed of the first
prong of
Carver conclusively stating, “a semiautomatic pistol is
normally used to fire several bullets in rapid succession and in
its normal use is hazardous to the lives of more than one person.”
Id.;
see also State v. Rose, 327 N.C. 599, 605, 398 S.E.2d 314, 317
(1990)
;
see generally State v. Antoine, 117 N.C. App. 549, 451
S.E.2d 368,
disc. review denied, 340 N.C. 115, 456 S.E.2d 320
(1995). We hold, as our Supreme Court did in
Bruton and
Carver,
that a semiautomatic pistol is
per se hazardous to the lives of
more than one person, and without more meets the first prong of
Carver.
Knowingly Creating a Risk of Death
Though defendant framed her argument pursuant to the first
prong of
Carver, the issue actually alleged in her brief seemingly
goes to the second prong
: whether defendant
knowingly created a
risk of death. This issue is not technically before us pursuant toNorth Carolina Rules of Appellate Procedure, Rule 28(a), but we
here dispose of it in short order.
Evidence of record suggested the following. On the night of
24 April 2001, defendant returned to Mr. Neal's trailer home around
midnight, and demanded she be able to take Summer. When Mr. Neal
did not allow defendant to take their daughter, defendant grabbed
his gun from his headboard, unsheathed it, and pointed it him
threatening to kill him. Summer was in the room at the time.
Defendant then walked outside the home and pointed the gun at the
home. Before firing into the dwelling, she knew both Summer and
Mr. Neal were inside, and testified that she saw them together in
the kitchen window before firing. She then fired, with both rounds
hitting and going into the home.
We believe a jury finding the above is sufficient to establish
defendant knowingly created a risk of death to two people who were
in close proximity inside the dwelling. In
State v. Evans, 120 N.C.
App. 752, 758-59, 463 S.E.2d 830, 834 (1995),
disc. review denied,
343 N.C. 310, 471 S.E.2d 78 (1996), this Court held that
indiscriminately firing a .38 caliber or a 9-mm handgun into a
house occupied by five people knowingly created a risk of death to
more than one person.
We therefore conclude there was no error in the trial court's
finding of the aggravating factor of knowingly creating a risk of
death to more than one person, and overrule all assignments of
error on that issue.
In her next issue on appeal, defendant contends she was denied
by the trial court a jury determination of her probation status at
the time of the offense. Because the trial judge found her to be
on probation at the time of the offense and thus increased her from
a level II offender to a level III offender, defendant went from
being eligible for probation to being sentenced to a mandatory
minimum term of 20 months. Defendant argues this violates the
Fourteenth Amendment due process principles that underlie the
United States Supreme Court opinion in
Apprendi v. New Jersey, 530
U.S. 466, 147 L. Ed. 2d 435 (2000). Thus, she contends it was plain
error by the trial court not to give the determination of probation
status to the jury.
Justice Stevens' clear holding in
Apprendi states: “Other
than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.”
Apprendi, 530 U.S. at
490, 147 L. Ed. 2d at 455. Therefore, to
implicate the due process issues in
Apprendi, the trial judge must
actually increase the penalty beyond the prescribed statutory
maximum, and do so on a basis other than a prior conviction already
proven beyond a reasonable doubt. We hold that the due process
concerns raised in
Apprendi are not at issue in this case.
Due process and
Apprendi are implicated when the trial judge,
in the use of his discretion, sentences a defendant beyond the
statutory maximum range based on factors not alleged in theindictment or given to a jury to establish as fact. This Court has
adopted
Apprendi as follows: “[T]he rule set forth in
Apprendi is
not violated unless the trial court, following its discretionary
consideration of factors relating to both the offense and the
offender, imposes a penalty that
exceeds the maximum the defendant
could receive, by statute, for the particular underlying offense.”
State v. Guice, 141 N.C. App. 177, 191, 541 S.E.2d 474, 483 (2000)
(emphasis added) [Guice I]. Defendant was sentenced in the
mitigated range of 24-36 months for a Class E felony; the maximum
range of a Class E felony is 74-98 months.
See N.C. Gen. Stat.
§ 15A-1340.17 (2001). Therefore, despite the finding that defendant
was on probation at the time of the offense, she was sentenced
within the statutorily prescribed range, and this sentence was
based upon a jury's finding of guilt beyond a reasonable doubt on
all the elements of the crime charged.
Additionally, defendant argues her sentence was unfair because
the trial court's finding of defendant on probation at the time of
the offense bumped her into the range of Prior Record Level III.
The mandatory minimum sentence that she will be forced to serve due
to this determination is 20 months when she would otherwise have
been eligible for probation. We do not believe this is a
discretionary finding of an aggravating factor, as was the concern
in
Apprendi and
Guice, and see no due process implications.
Whether or not someone is on probation is a status for which the
trial court has no discretion in finding. Aggravating factors, when found, can extend a sentence beyond
the statutory maximum for the underlying crime, and in that regard
act much like an additional element to a new crime.
See Apprendi,
530 U.S. at 483 n.10, 147 L. Ed. 2d 450 n.10. Whether or not
someone is on probation at the time of the offense is a fact wholly
unrelated to the elements of the underlying offense, and dissimilar
to an aggravating factor in that regard. When a trial court finds
as fact that a defendant was or was not on probation, such a
finding alone will never actually exceed the statutory sentencing
framework, but potentially move the defendant within the framework
into a new range. While it can be argued the effect is the same,
the process lacks trial court discretion and for that reason does
not implicate due process concerns.
Finding a defendant on probation, based on
prior convictions,
the trial court is working within the statutory framework,
observing, without discretion, facts in existence at the time of
the offense. T
his Court has clearly assessed N.C. Gen. Stat.
§ 15A-1340.14(b)(7) (2001) concerning a defendant's prior record
level for calculating felony sentencing:
We believe the language of subsection (b)(7)
is clear and unambiguous that if a defendant
commits an offense while on probation, a point
is assessed regardless of the type of
conviction for which the probation was
imposed. The trial court did not err by
assessing defendant a prior record point for
committing the offense while on probation.
State v. Leopard, 126 N.C. App. 82, 85, 483 S.E.2d 469, 471 (1997).
In this case the testimony of the probation officer and documentsprovided to the court clearly showed as fact defendant was on
probation at the time of the offense. The fact that defendant's
prior record of offenses, for which guilt has been established, now
pushes her into a sentencing range requiring mandatory
incarceration does not by that fact alone implicate due process
concerns. The trial court is merely following the calculus of
North Carolina sentencing laws as is required.
Finally, defendant argues that the court was required to find
that she knew she was on probation at the time of the offense.
N.C. Gen. Stat. § 15A-1340.14(b)(7) requires the trial court add a
record point “[i]f the offense was committed while the offender was
on supervised or unsupervised probation[.]” The clear language of
the statute requires no knowledge by the offender that he or she is
on probation and we hold there to be none.
We hold there to be no error by the trial court on all issues
raised by defendant, and conclude defendant received a fair trial.
No error.
Judge TYSON concurs.
Judge BRYANT concurs in the result.
Report Per Rule 30(e).
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