STATE OF NORTH CAROLINA
v
.
Nash County
No. 98 CRS 5348
COREY NICHOLAS DUGGINS
Attorney General Roy Cooper, by Assistant Attorney General J.
Douglas Hill, for the State.
Jeffrey Evan Noecker for defendant appellant.
WYNN, Judge.
Corey Nicholas Duggins, Defendant, appeals from judgment of
the trial court based on his conviction of robbery with a dangerous
weapon. Defendant contends the trial court erred by (I) denying
his motion to dismiss; (II) omitting the name of the victim in its
instructions to the jury; and (III) sentencing him at a prior
record level III. We hold the trial court erred in sentencing
Defendant where the State presented insufficient evidence of
Defendant's prior convictions and remand this case for a new
sentencing hearing. We otherwise find no prejudicial error.
At Defendant's trial, witnesses on behalf of the Statetestified that on the evening of 1 April 1998, Defendant fatally
shot Vernon Tabron, then removed approximately fifty dollars from
Tabron's pockets. Defendant denied killing Tabron, stating he was
elsewhere at the time Tabron was shot. Defendant testified he
committed a separate robbery earlier that evening, for which he was
currently imprisoned. Upon conclusion of presentation of the
evidence, the jury found Defendant guilty of robbery with a
dangerous weapon.
Neither the State nor Defendant presented evidence at the
sentencing hearing. A prior record level worksheet, signed by the
trial court, is included in the record on appeal. The worksheet
calculates Defendant's prior record level as level III, based on
Defendant's alleged prior convictions for misdemeanor larceny and
common law robbery. The trial court sentenced Defendant to a term
of 103 months' minimum imprisonment, and a maximum term of 133
months. Defendant appealed.
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Defendant contends the trial court erred by (I) denying his
motion to dismiss; (II) omitting the name of the victim in its
instructions to the jury; and (III) sentencing him at a prior
record level of three. We agree that the trial court erred in
sentencing Defendant where there was insufficient evidence of
Defendant's prior convictions as a matter of law. We otherwise
find no error by the trial court.
Defendant argues the trial court erred in denying his motion
to dismiss the charge of armed robbery, in that there was a fatalvariance between the indictment and the evidence presented at
trial. Defendant based his motion to dismiss solely on the basis
of insufficiency of the evidence, however, and not on fatal
variance. This assignment of error was therefore not properly
preserved. See N.C.R. App. P. 10(b)(1) (2003) (requiring a party
to present the trial court with a timely request, objection or
motion, stating the specific grounds for the ruling sought if the
specific grounds are not apparent in order to preserve a question
for appellate review); State v. Eason, 328 N.C. 409, 420, 402
S.E.2d 809, 814 (1991) (stating that “[t]his Court will not
consider arguments based upon matters not presented to or
adjudicated by the trial tribunal”).
Even if the error were properly preserved, we would hold this
argument to be without merit. The indictment at issue charges
Defendant with “Robbery with a Dangerous Weapon” and states in
pertinent part as follows:
The jurors for the State upon their oath
present that on or about the date of [the]
offense shown and in the county named above
the defendant named above unlawfully,
willfully and feloniously did attempt to
steal, take, and carry away another's personal
property, an unknown amount of United States
Currency from the presence, and person of
Vernon Tabron. The defendant committed this
act having in his possession and with the use
and threatened use of a dangerous weapon, a
firearm, to wit: a handgun, whereby the life
of Vernon Tabron was endangered and
threatened.
Defendant contends the indictment charges him only with “attempted
armed robbery.” The essential elements of robbery with a dangerous
weapon are: “(1) an unlawful taking or an attempt to take personalproperty from the person or in the presence of another, (2) by use
or threatened use of a firearm or other dangerous weapon, (3)
whereby the life of a person is endangered or threatened.” State
v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1998) (emphasis
added); see also N.C. Gen. Stat. § 14-87(a) (2003). Because the
definition of robbery with a dangerous weapon includes an attempt
to take personal property, the bill of indictment properly charged
Defendant with robbery with a dangerous weapon. See State v.
Cherry, 29 N.C. App. 599, 601, 225 S.E.2d 119, 121 (1976)
(concluding there was no fatal variance between an indictment
charging the defendant with armed robbery and evidence tending to
show an attempted armed robbery because “'an attempt to rob another
of personal property, made with the use of a dangerous weapon,
whereby the life of a person is endangered or threatened, is,
itself, a completed crime and is punishable to the same extent as
if the property had been taken as intended'”) (quoting State v.
Price, 280 N.C. 154, 157, 184 S.E.2d 866, 869 (1971)); State v.
Kinsey, 17 N.C. App. 57, 59, 193 S.E.2d 430, 431 (1972) (concluding
there was no fatal variance between an indictment charging the
defendant with armed robbery and evidence showing a mere attempt,
because where “'all of the elements [of armed robbery] are present,
the offense is complete whether the taking is successful or amounts
only to an attempt to take personalty from the victim'”) (quoting
State v. Parker, 262 N.C. 679, 682, 138 S.E.2d 496, 499 (1964)),
cert. denied, 282 N.C. 674, 194 S.E.2d 153 (1973).
Defendant next argues the trial court committed plain error byomitting the name of the victim from its instructions on robbery
with a dangerous weapon. The trial court utilized the pattern jury
instructions, which did not include the name of the victim, Vernon
Tabron. Although Defendant concedes that error does not generally
arise from “a trial court's use of essentially verbatim jury
instructions,” he nevertheless argues the omission of the victim's
name was fatally defective because (1) the jury acquitted Defendant
of the murder of Vernon Tabron and (2) Defendant testified he
committed a second, separate robbery earlier that evening.
Defendant contends there is a logical inconsistency in the jury's
verdict finding him guilty of robbery with a dangerous weapon but
not murder. According to Defendant, this inconsistency arises from
the jury's confusion between the two robberies allegedly committed
by Defendant on the same day. By omitting the name of the victim
in its instructions on robbery with a dangerous weapon, Defendant
argues the trial court allowed the jury to mistakenly convict him
of robbery with a dangerous weapon based on evidence of the second
earlier robbery for which Defendant was not charged. We are not
persuaded.
First, Defendant concedes he did not object to the jury
instruction and is therefore limited to arguing plain error only.
“Under the plain error rule, defendant must convince this Court not
only that there was error, but that absent the error, the jury
probably would have reached a different result.” State v. Jordan,
333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993). Second, Defendant
testified that he pled guilty to common law robbery of a personnamed “Amp” and was currently serving a sentence of thirteen to
sixteen months' imprisonment. Finally, although the trial court
did not name the victim of the robbery in its instructions, it
specifically instructed the jury concerning the second earlier
robbery as follows:
Evidence has been received tending to
show that the defendant, Corey Nicholas
Duggins, committed the offense of common law
robbery of a person named, Amp, on or about
April 1st, 1998.
This evidence was received solely for the
purpose of showing that there existed in the
mind of the defendant a plan, scheme, system
or design involving the crimes charged in the
case.
If you believe this evidence you may
consider it, but only for the limited purpose
for which it was received.
Contrary to Defendant's argument, both Defendant and the trial
court distinguished between the two robberies. From the evidence
and the instructions, the jury understood that (1) Defendant had
pled guilty to common law robbery of a person named “Amp” and was
imprisoned pursuant to that plea; and (2) the evidence concerning
the common law robbery of “Amp” was relevant only for the purpose
of showing a plan or scheme. Under these circumstances, it is
unlikely the jury confused the two robberies and convicted
Defendant of robbery with a dangerous weapon based on evidence of
the common law robbery to which he pled guilty. We hold the trial
court did not commit plain error by omitting the name of the victim
in its instructions to the jury, and we overrule this assignment of
error.
Finally, Defendant argues there was insufficient evidence asa matter of law to allow the trial court to determine his prior
record level, and that the trial court thereby erred in sentencing
him at a prior record level III. Defendant contends he is entitled
to a new sentencing hearing. We agree.
Section 15A-1340.14(f) of the North Carolina General Statutes
requires a prior conviction to be proven by one of the following
methods: (1) stipulation of the parties; (2) an original or copy of
the court record of the prior conviction; (3) a copy of records
maintained by the Division of Criminal Information, the Division of
Motor Vehicles, or of the Administrative Office of the Courts; or
(4) any other method found by the court to be reliable. See N.C.
Gen. Stat. § 15A-1340.14(f) (2003). “The State bears the burden of
proving, by a preponderance of the evidence, that a prior
conviction exists and that the offender before the court is the
same person as the offender named in the prior conviction.” Id.
Originals or copies of court records maintained by the Division of
Criminal Information, the Division of Motor Vehicles, or of the
Administrative Office of the Courts constitute prima facie evidence
of a prior conviction. See id. “The prosecutor shall make all
feasible efforts to obtain and present to the court the offender's
full record.” Id.
In State v. Goodman, 149 N.C. App. 57, 560 S.E.2d 196 (2002),
reversed in part on other grounds, 357 N.C. 43, 577 S.E.2d 619
(2003), this Court held the State failed to prove the defendant's
prior record level by a preponderance of the evidence where it
submitted no evidence to prove that fact. Noting that “[t]herequirements of proving a prior conviction are not stringent[,]”
the Court concluded that “the law requires more than the State's
unverified assertion that a defendant was convicted of the prior
crimes listed on a prior record level worksheet.” Id. at 71-72,
560 S.E.2d at 205. Although “the trial court [could] accept any
method of proof which it deem[ed] reliable,” the trial court failed
to make findings regarding the reliability of the information used.
Id. at 71, 560 S.E.2d at 205. Without entering evidence of the
defendant's prior record level into the record, the State failed to
satisfy its burden. Id.; see also State v. Miller, 159 N.C. App.
608, 615, 583 S.E.2d 620, 624 (2003) (remanding for resentencing
where the State submitted a prior record worksheet but never
tendered to the trial court or offered into evidence the criminal
information printouts upon which it asserted the worksheet was
based, and where the defendant did not stipulate to the prior
record level as calculated on the worksheet), affirmed per curiam,
__ N.C. __, 591 S.E.2d 520 (2004); State v. Smith, 155 N.C. App.
500, 515, 573 S.E.2d 618, 628 (2002) (holding the trial court erred
where it sentenced the defendant based on a prior record level
worksheet submitted by the district attorney without further
documentation or stipulation by the defendant), disc. review
denied, 357 N.C. 255, 583 S.E.2d 287 (2003).
There is no evidence in the present record to indicate that
the State carried its burden of proving each prior conviction by a
preponderance of the evidence. Defendant was not required to
object at the sentencing hearing in order to assert theinsufficiency of the evidence as a matter of law to prove his prior
convictions by a preponderance of the evidence. See N.C. Gen.
Stat. § 15A-1446(d)(5) (2003) (providing that error based on
insufficiency of the evidence as a matter of law may be the subject
of appellate review without objection or motion below); State v.
Mack, 87 N.C. App. 24, 34, 359 S.E.2d 485, 491 (1987), disc. review
denied, 321 N.C. 477, 364 S.E.2d 663 (1988); State v. Thompson, 60
N.C. App. 679, 684, 300 S.E.2d 29, 32, modified and affirmed, 309
N.C. 421, 424-25, 307 S.E.2d 156, 159 (1983). The State submitted
no records of conviction, no records from the agencies listed in
section 15A-1340.14(f)(3), and there is no evidence of a
stipulation by the parties as to prior record level. At some
point, a prior record level worksheet was provided to the trial
judge, who signed the document, but the record does not indicate at
what point or by whom the worksheet was prepared. The trial court
made no findings regarding the reliability of the information
contained in the worksheet. The trial court sentenced Defendant
based upon the information provided by the unverified prior record
level worksheet. “An unsupported statement by the State that an
offender has a [certain number of points], . . . even if
uncontested, does not rise to the level sufficient to meet the
catchall provision found in N.C.G.S. § 15A-1340.14(f)(4).” State
v. Bartley, 156 N.C. App. 490, 502, 577 S.E.2d 319, 326 (2003). We
hold the State failed to prove Defendant's prior record level by a
preponderance of the evidence and remand for resentencing, at which
the State shall prove Defendant's prior convictions by apreponderance of the evidence using any method allowable under
section 15A-1340.14(f) or which the trial court deems reliable.
We find no error in Defendant's conviction of robbery with a
dangerous weapon; we remand Defendant's case for resentencing.
No error in part; remanded in part for resentencing.
Judges McGEE and TYSON concur.
Report per Rule 30(e).
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