An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.

NO. COA03-1502


Filed: 18 October 2005


v .                         Mitchell County
                            Nos.    03 CRS 169
                                03 CRS 50064

    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- appellant.


    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 appeals.

    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 stated:
        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 reasoned decision.”

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 Allen, after reviewing the pertinent case law, the Court concluded that, when “[a]pplied to North Carolina's structured sentencing scheme, the rule of Apprendi and Blakely 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 resentencing.
    No error at trial; remanded for resentencing.
    Judges CALABRIA and LEVINSON concur.
    Report per Rule 30(e).

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