Appeal by defendant from judgment entered 11 June 2003 by
Judge Zoro J. Guice in Mitchell County Superior Court. Heard in
the Court of Appeals 25 October 2005.
Attorney General Roy Cooper, by Assistant Attorney General N.
Morgan Whitney, Jr., for the State.
WATSON and HUNT, P.A., by Charlie A. Hunt, Jr., for defendant-
On 10 February 2003, Cu Van Nguyen (defendant) was indicted
on charges of robbery with a dangerous weapon and conspiracy to
commit robbery with a dangerous weapon. The case was tried at the
9 June 2003 Criminal Session of Mitchell County Superior Court.
The evidence presented at trial tended to show the following:
On 18 December 2002, defendant and two co-defendants drove to
Spruce Pine, North Carolina. The three men went to a Wal-Mart,
where they purchased duct tape and toboggans. They cut eye holes
in the toboggans to use them as masks, and then drove to Lee Nail
Shop. All three men went into the nail shop, and defendant pointed
a gun at the head of Hung Thanh Nguyen, the owner of the shop. Themen taped the shop owner's arms and legs, and put tape around his
eyes. They took jewelry and a watch from the shop owner, as well
as cash, two cellular phones, and other items. The cash and items
were valued at $4,250.00. After the robbery, the three men drove
away and threw the masks and the gun out of their vehicle.
On 4 March 2003, Officer John Hicks (Officer Hicks) of the
North Carolina Department of Corrections was supervising an inmate
road crew in Mitchell County. Officer Hicks was walking when he
noticed a toboggan on the ground, and then a gun on the ground near
the toboggan. Officer Hicks inspected the gun and found there was
no ammunition in it. After securing the weapon, Officer Hicks
found two more toboggans with eye holes cut out of them.
The gun found by Officer Hicks was identified at trial as
being a Daisy Power Line Air Strike 240. It was described as being
weathered and inoperable. Spruce Pine Police Department Detective
Van Williams (Detective Williams) testified that he contacted the
Daisy Company and purchased a new Daisy pistol like the one found
by Officer Hicks. Detective Williams' purpose was to get a weapon
that would actually have working parts on it but also in terms and
specifications about what kind of ammunition it shot, how far and
velocity[.] Detective Williams also purchased ammunition for the
gun. The new gun was admitted into evidence to illustrate the
mechanics of the old gun. Detective Williams testified that the
Daisy Air Strike 240 would fire a six millimeter pellet a distance
of ninety-nine yards at 213 feet per second.
Defendant was convicted of robbery with a dangerous weapon andconspiracy to commit robbery with a dangerous weapon. As
aggravating factors, the trial court found that defendant committed
the offenses while on pretrial release on another charge and
involved a person under the age of sixteen years in the commission
of the crimes. As a mitigating factor, the trial court found that
defendant voluntarily acknowledged wrongdoing in connection with
the offenses at an early stage in the criminal process. After
concluding that the aggravating factors outweighed the mitigating
factor, the trial court sentenced defendant to a term of eighty to
105 months imprisonment for the robbery conviction and thirty-one
to forty-seven months imprisonment for the conspiracy conviction.
Defendant argues that the trial court erred by admitting
testimony regarding the new Daisy Air Strike 240, which was not the
weapon used in the commission of the robbery. Defendant asserts
that testimony regarding the new air gun may have actually confused
the jury in determining whether the robbery was committed with the
use of a dangerous weapon. Defendant contends that the admission
of the new air gun also allowed the jury to transfer its
conclusions regarding the new air gun to the inoperable air gun
found on the side of the road.
After careful review of the record, briefs, and contentions of
the parties, we find no abuse of discretion. This Court has
As a general rule, relevant evidence may be
excluded if its probative value issubstantially outweighed by the danger of
unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of
undue delay, waste of time, or needless
presentation of cumulative evidence. The
exclusion of evidence under this rule is
within the trial court's sound
discretion . . . . Abuse of discretion results
where the court's ruling is manifestly
unsupported by reason or is so arbitrary that
it could not have been the result of a
State v. Reaves
, 132 N.C. App. 615, 618-19, 513 S.E.2d 562, 564-65
(citations omitted), disc. review denied
, 350 N.C. 846, 539 S.E.2d
4 (1999). Here, the actual weapon used in the robbery was rusty
and inoperable due to its being exposed to the elements for almost
three months. Thus, the appearance and capabilities of the new
Daisy Air Strike 240 were relevant to the question of what
condition the actual weapon may have been in when it was used to
commit the robbery, and whether it could be considered a dangerous
weapon. Furthermore, when eliciting testimony regarding the
weapon, the State made clear that the pistol shown to the witness
was not the one used during the commission of the crime, but was
being exhibited solely to illustrate the mechanics of how the
weapon worked. Thus, we overrule this argument, and we hold that
defendant received a trial free of prejudicial error. However,
because we conclude that the trial erred by sentencing defendant in
the aggravated range, we remand the case for resentencing.
In State v. Allen
, 359 N.C. 425, 615 S.E.2d 256 (2005), our
Supreme Court recently examined this state's structured sentencing
scheme in light of the United State Supreme Court's decisions in
Apprendi v. New Jersey
, 530 U.S 466, 147 L. Ed. 2d 435 (2000) andBlakely v. Washington
, 542 U.S. 296, 159 L. Ed. 2d 403 (2004). In
, after reviewing the pertinent case law, the Court concluded
that, when [a]pplied to North Carolina's structured sentencing
scheme, the rule of Apprendi
is: Other than the fact
of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed presumptive range must be submitted to
the jury and proved beyond a reasonable doubt. 359 N.C. at 437,
615 S.E.2d at 264-65 (citing Blakely
, 542 U.S. at ___, 159 L. Ed.
2d at 413-14; Apprendi
, 530 U.S. at 490, 147 L. Ed. 2d at 455; N.C.
Gen. Stat. §§ 15A-1340.13, 15A-1340.14, 15A-1340.16, 15A-1340.17).
The Court further noted that, under Blakely
, the judge may still
sentence a defendant in the aggravated range based upon the
defendant's admission to an aggravating factor enumerated in
N.C.G.S. § 15A-1340.16(d). 359 N.C. at 439, 615 S.E.2d at 265.
As discussed above, in the instant case, following defendant's
convictions for robbery with a dangerous weapon and conspiracy to
commit robbery with a dangerous weapon, the trial court found as
aggravating factors that defendant committed the offenses while on
pretrial release on another charge and involved a person under the
age of sixteen years in the commission of the crimes. Although
defendant admitted through counsel that he committed the offenses
while on pretrial release on another charge, with respect to the
second aggravating factor, defendant asserted that his co-
conspirator was more responsible for the minor child's involvement
in the offenses. After hearing argument from both parties, the
trial court unilaterally found the presence of the secondaggravating factor, failing to submit it to the jury for proof
beyond a reasonable doubt. In light of our Supreme Court's
decision in Allen
, we conclude that the trial court committed
reversible error. Accordingly, we remand this case for
No error at trial; remanded for resentencing.
Judges CALABRIA and LEVINSON concur.
Report per Rule 30(e).
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