An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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
NORTH CAROLINA COURT OF APPEALS
Filed: 16 August 2005
STATE OF NORTH CAROLINA
No. 02 CRS 5685,02 CRS 5687-88
02 CRS 54018
CHAUMON MARTE WEBB
Appeal by defendant from judgment dated 24 July 2003 by Judge
Cy A. Grant in Pitt County Superior Court. Heard in the Court of
Appeals 3 November 2004.
Attorney General Roy Cooper, by Assistant Attorney General
John G. Barnwell, for the State.
Jarvis John Edgerton, IV for defendant-appellant.
Chaumon Marte Webb (defendant) appeals a judgment dated 24
July 2003, entered consistent with his convictions by jury verdicts
for attempted murder, assault with a deadly weapon with intent to
kill, robbery with a dangerous weapon, and possession of a handgun
by a convicted felon.
The State's evidence tended to show that co-defendant Michael
McCotter robbed a Kash & Karry convenience store in Grifton, North
Carolina, at 9:00 p.m. on 13 March 2002. Wearing a ski mask,
McCotter brandished a black or dark-colored revolver at the store
clerk and demanded all the money. When the clerk had difficulty
opening the cash register, McCotter fired the gun. McCotter tookthe money from the register and fled, running outside toward the
back of the store. During his escape, McCotter shot out the
driver's side window of a Pitt County Sheriff's Department vehicle,
driven by Detective Johnny Craft as he pulled into the store's back
driveway. McCotter shot Detective Craft's vehicle a second time in
Detective Craft took a written statement from defendant on 1
April 2002, in which he gave the following account of the Kash &
I know [McCotter] got out of the vehicle and
said he'll be back. True, I about knew what
he were going to do. So I told him, and I
quote, I don't know anything if you get caught
for something, unquote. So when I heard
shooting, I left because I didn't want
anything to do with it. True, I drove, . . .
. He kept saying he was seeking or looking
for crack and I -- I was like he get the
money. However he did. That's his business.
He called me later that night and I went and
got him. I didn't want to leave anybody out
regardless what they did.
Police recovered a .32-caliber bullet from the inside of the
Kash & Karry, and a second .32-caliber bullet from Craft's vehicle.
Police later found a box of .32-caliber bullets underneath the bed
in defendant's apartment.
At trial, the State introduced evidence of a similar robbery
committed by McCotter on the night of 10 March 2002. McCotter used
a nine-millimeter handgun to rob James Daniel Manning, a clerk at
SAK's Convenient Mart (SAK's) on State Highway 102 near Ayden,
North Carolina, located five miles from Grifton, North Carolina
(the location of the robbery at issue). Wearing a ski mask ortoboggan, McCotter entered SAK's, held the gun to Manning's head,
and demanded money. When Manning ducked behind the counter,
McCotter fired a single shot that missed Manning's head by inches.
McCotter exited SAK's with $959.00 from the cash drawer and a
.32-caliber pistol belonging to the store's owner.
On 12 April 2002, defendant dictated the following statement
regarding the SAK's robbery to Major John W. Burrus of the Greene
County Sheriff's Department:
[Defendant] and Michael McCotter went to a
store outside of Ayden on a highway going
towards Washington. He ([defendant]) dropped
off McCotter at a house no one lived in just
down from the store. McCotter went in with a
silver 9 MM handgun and ski mask to rob the
store. [Defendant] . . . waited at the
driveway of the house, and McCotter returned
running a few minutes later with approximately
$350. That McCotter gave him ([defendant])
Defendant also stated that McCotter had an old black revolver[,]
which he had given to Calvert Hart, but McCotter did not tell
defendant about the shooting in the store. The statement was
signed by defendant, as witnessed by Major Burrus and a deputy
Further, the State introduced evidence of two additional armed
robberies of convenience stores which occurred in the area during
the same time period. The first robbery took place at 8:45 p.m. on
25 February 2002, at the 264 Country Mart in Walstonburg, North
Carolina. The second robbery occurred the following week at
approximately 9:00 p.m. at the Creek Side Convenient Mart (Creek
Side) in Pitt County. Defendant dictated statements to MajorBurrus regarding these two robberies, claiming that on each
occasion he drove McCotter to a location near the store and waited
while McCotter robbed the store using a black ski mask and a silver
nine-millimeter handgun. Defendant further stated that McCotter
gave him $150.00 after the 264 Country Mart robbery and $50.00
after the Creek Side robbery.
At trial, defendant acknowledged giving Detective Craft the
statement concerning the Kash & Karry robbery; however, defendant
denied any involvement in the SAK's robbery and further denied
giving statements to police regarding the robberies at SAK, 264
Country Mart, and Creek Side.
Defendant was found guilty of robbery with a dangerous weapon,
attempted murder, possession of a handgun by a convicted felon, and
assault with a deadly weapon with intent to kill. The trial court
consolidated the charges and entered judgment, sentencing defendant
in the aggravated range to a minimum of 392 months and a maximum of
480 months imprisonment. Defendant gave notice of appeal in open
The issues on appeal are whether: (I) the trial court erred in
failing to dismiss the charge of possession of a handgun by a
convicted felon; (II) defendant's sentence in the aggravated range
deprived him of the right to a jury trial pursuant to Blakely v.
I Sufficiency of the Evidence
N.C. Gen. Stat. § 14-415.1 states: It shall be unlawful forany person who has been convicted of a felony to purchase, own,
possess, or have in his custody, care, or control any handgun or
other firearm with a barrel length of less than 18 inches or an
overall length of less than 26 inches, or any weapon of mass death
and destruction as defined in G.S. 14-288.8(c). N.C.G.S. § 14-
In ruling on a motion to dismiss, the trial court must
interpret the evidence in the light most favorable to the State,
drawing all reasonable inferences in the State's favor. State v.
, 303 N.C. 75, 87, 277 S.E.2d 376, 384 (1981). To withstand a
motion to dismiss for insufficiency of the evidence, the State must
present substantial evidence of each of the essential elements of
the crime charged. State v. Workman
, 309 N.C. 594, 598, 308 S.E.2d
264, 267 (1983). Substantial evidence means more than a scintilla.
State v. Thomas
, 65 N.C. App. 539, 541, 309 S.E.2d 564, 566 (1983).
The jury must resolve conflicts and contradictions within the
testimony. State v. Thompson
, 37 N.C. App. 628, 636, 246 S.E.2d
827, 833 (1978).
Defendant moved to dismiss all the charges at the close of the
State's evidence and at the close of all the evidence. At trial,
defendant stipulated he had been convicted of a felony prior to
commission of the offenses for which he was being tried.
Defendant's contention, on appeal, is that there is insufficient
evidence to show he actually possessed a handgun during thecommission of the robbery.
(See footnote 1)
Further, defendant argues there exists
no evidence of his constructive possession of the handgun. We
The North Carolina Supreme Court has recently reaffirmed the
doctrine of acting in concert:
[I]f '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, (citation
omitted), cert. denied
, 537 U.S. 1005, 154 L. Ed. 2d 403 (2002).
Defendant conceded at trial that he drove McCotter to the Kash
& Karry store and dropped him off 80 to 100 feet from the store.
Defendant initially waited for McCotter but drove away after
hearing gun fire. When stopped by a police officer, defendant gave
the officer a false driver's license. The officer told defendant
that his vehicle matched the description of a vehicle suspected in
connection with a robbery and shooting. Early the next morning,
notwithstanding having learned of the possible shooting, defendant
picked up McCotter and drove him to Greene County.
Despite the above evidence, defendant contends the evidence is
insufficient to connect him to a common plan or scheme to commitarmed robbery or the shootings. We find defendant's argument to be
without merit. To hold the trial court erred in failing to grant
defendant's motion to dismiss, this Court would have to find
defendant's presence at the Kash & Karry store at the time of the
armed robbery and shootings was coincidental, and defendant was
ignorant of McCotter's illicit intentions. The facts are to the
We find defendant acted in concert with McCotter to commit the
offense of armed robbery. Therefore, possession of the gun is
imputed to defendant through his acting in concert to commit armed
robbery. Moreover, we find defendant's reliance on State v.
, 136 N.C. App. 218, 523 S.E.2d 428 (1999), to be
misguided, as that case dealt with the theory of constructive
possession as applied to drug offenses. State v. Walker
dealt squarely with the theory of constructive possession as
applied to handgun offenses. In Walker
, the defendant's presence
at the scene of a burglary and robbery was sufficient to establish
that he acted in concert with his co-defendants and possession of
a gun used by one of the co-defendants was therefore properly
imputed to the defendant. State v. Walker
, 154 N.C. App. 645, 650,
572 S.E.2d 866, 870 (2002). This assignment of error is overruled.
II Motion For Appropriate Relief
In defendant's subsequent motion for appropriate relief,
defendant argues the trial court's imposition of a sentence in the
aggravated range (defendant committed the offense while on pre-
trial release on another charge) was done in violation of Blakelyv. Washington, 542 U.S. ___, 159 L. Ed. 2d 403 (2004). The State,
in its response to defendant's motion for appropriate relief,
addresses inter alia a clerical error appearing on the judgment
a. Clerical Error
In State v. Jarman, 140 N.C. App. 198, 535 S.E.2d 875 (2000),
this Court stated:
Clerical error has been defined recently as:
An error resulting from a minor mistake or
inadvertence, esp. in writing or copying
something on the record, and not from judicial
reasoning or determination. Although this
definition has not been adopted by our courts,
and we do not adopt it now, the concept of
judicial reasoning or determination as a
component of a judicial action has been
implicitly recognized in numerous appellate
decisions. In reviewing criminal convictions,
our courts have found harmless clerical errors
to include the inadvertent checking of a box
finding an aggravating factor on a judgment
Jarman, 140 N.C. App. at 202, 535 S.E.2d at 878 (citations
In State v. Sellers, 155 N.C. App. 51, 574 S.E.2d 101 (2002),
this Court recognized that a finding by the trial court in open
court as reflected in the transcript is dispositive when there is
a discrepancy between the court's announced finding and the written
judgment form. The Sellers Court held:
The transcript reveals the trial court stated,
[t]he Court finds that the factors, factors
in aggravation outweigh the factors in
mitigation, and that an aggravated sentence is
justified in the judgments to be entered.
The form, however, leaves unchecked this
important finding. From the transcript and
the aggravated sentence imposed, it is clearthat the court intended to have this box
checked. Clerical errors are properly
addressed with correction upon remand because
of the importance that the records 'speak the
Sellers, 155 N.C. App. at 59, 574 S.E.2d at 106-07 (citations
In the instant case, the trial court found in open court the
aggravating factor set forth in N.C. Gen. Stat. § 15A-
1340.16(d)(12) (defendant committed the offense while on pre-trial
release on another charge). However, the aggravating factor
checked on the judgment form was N.C. Gen. Stat. § 15A-
1340.16(d)(1) (defendant induced others to participate in the
commission of the offense).
In keeping with this Court's precedents, this matter should be
corrected upon remand to the trial court.
b. Application of Blakely v. Washington
The U.S. Supreme Court recently held that the statutory
maximum for any offense is the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant. Blakely v. Washington, 542
U.S. ___, ___, 159 L. Ed. 2d 403, 413 (2004). The Court further
explained that the relevant 'statutory maximum' is not the maximum
sentence a judge may impose after finding additional facts, but the
maximum he may impose without any additional findings. Blakely,
542 U.S. at ___, 159 L. Ed. 2d at 413-14. Thus, any additional
findings that may be used to increase a defendant's sentence, but
not found by the jury, are otherwise made in violation ofdefendant's Sixth Amendment Right to trial by jury. Blakely, 542
U.S. at ___, 159 L. Ed. 2d at 414-15. The only exception to this
would be if the defendant has stipulated to those facts which have
increased his sentence, or waived his right to a jury. Blakely,
542 U.S. at ___, 159 L. Ed. 2d at 417-18.
In State v. Allen, 166 N.C. App. 139, 601 S.E.2d 299 (2004),
aff'd in part and modified in part, 2005 N.C. LEXIS 695 (N.C., July
1, 2005), our Court accepted the principles announced in Blakely as
applicable to North Carolina's sentencing scheme concerning a trial
court's ability to enhance a defendant's sentence by finding
aggravating factors. See N.C.G.S. § 15A-1340.16 (2003). In Allen
our Court held, pursuant to Blakely, that the defendant was denied
his Sixth Amendment right to a jury trial when the trial court
unilaterally found an aggravating factor. Allen, 166 N.C. App. at
150, 601 S.E.2d at 306. More recently, in State v. Harris, 166
N.C. App. 386, 602 S.E.2d 697 (2004), appeal docketed, No. 548A04
(N.C. Oct. 21, 2004), our Court held:
[P]ursuant to Allen and Blakely, should the
court at any new trial use a factor in
aggravation to impose a sentence beyond the
presumptive term for which defendant has been
found guilty, the fact must be found by the
following: beyond a reasonable doubt by the
jury, stipulated to by defendant, or defendant
shall have waived his right to a jury such
that judicial fact finding would be
Harris, 166 N.C. App. at 394-95, 602 S.E.2d at 702 (emphasis
c. Effectiveness of Stipulation
It is well settled that a waiver of the constitutional rightto a jury trial must be knowing and voluntary in order to be valid.
State v. Harbison
, 315 N.C. 175, 180, 337 S.E.2d 504, 507 (1985).
To establish voluntariness, the record must demonstrate that
defendant is fully aware of the direct consequences of his
stipulation. Brady v. United States
, 397 U.S. 742, 755, 25 L. Ed.
2d 747, 760 (1970). Failure to establish defendant knowingly and
voluntarily relinquished his constitutional rights constitutes
prejudicial error. See Id.
At the sentencing hearing, the following transpired:
THE COURT: What says the State?
[PROSECUTOR]: Your Honor, first of all, I
would like to allege one aggravation factor.
THE COURT: All right.
[PROSECUTOR]: That being the Defendant was
out on bond -- pretrial release at the time of
these offenses, Your Honor. . . .
If you want me to hand these file[s] up,
Judge. The Defendant may stipulate he was out
[DEFENSE COUNSEL]: He was.
THE COURT: All right.
. . .
The Court finds that the Defendant has one
aggravating factor. That is, he was on
pretrial release at the time of the commission
of these offenses. The Court finds no factors
in mitigation. The Court finds that the
factor in the aggravation outweighs no factor
The State contends that the admission by counsel or defendant
of the fact that he was on pre-trial release at the time of the
offenses at issue constitutes a knowing and voluntary waiver of hisSixth Amendment right to a jury trial. However, the record is void
of any evidence that defendant, his counsel, or the trial court was
aware of the fact that a stipulation would be tantamount to a
waiver of the right to a jury trial, especially in light of the
fact that Blakely
was decided subsequent to judgment being entered
in the instant case. We hold there is no factual basis upon which
to find a knowing and voluntary waiver of the right to a jury
trial. Accordingly, defendant's motion for appropriate relief is
granted and this matter is remanded for resentencing as mandated by
, and Harris
No error in trial; remanded for resentencing.
Judges McGEE and THORNBURG concur.
Report per Rule 30(e).
Judge THORNBURG concurred in this opinion prior to 31 December
Defendant has failed to present any argument regarding
whether the trial court erred in failing to dismiss the remaining
charges of attempted murder, assault with a deadly weapon with
intent to kill, and robbery with a dangerous weapon. Accordingly,
these issues are deemed abandoned. See
N.C.R. P. 28(a) (2005).
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