State v Bigelow, (04-800) 04/05/2005

Appeal by defendant from judgment entered 11 December 2003 by Judge W. Osmond Smith, III, in Caswell County Superior Court. Heard in the Court of Appeals 4 April 2005.

Attorney General Roy Cooper, by Assistant Attorney General Brandon L. Truman, for the State.

Jon W. Myers for defendant-appellant.

ELMORE, Judge.

    On 14 January 2003, the Caswell County grand jury indicted defendant on a charge of first degree burglary. Under the terms of a plea arrangement, the State agreed to dismiss a charge of first degree murder pending against defendant. Defendant's counsel informed the trial court in open court prior to entry of defendant's plea that the State had agreed to the deal in exchange for defendant's testimony in a first degree murder case.
    On 13 November 2003, defendant pled guilty to first degree burglary pursuant to North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162 (1970). Defendant moved for a change of venue so that Judge Orlando Hudson, who had heard his testimony at the firstdegree murder trial, could sentence him. Following the trial court's denial of his motion, he stipulated to the State's presentation of the factual basis for his plea . The trial court accepted the plea, but deferred sentencing at defendant's request until a later date in December of 2003.
    At defendant's sentencing hearing on 11 December 2003, the trial court again denied defendant's request that Judge Hudson sentence him. Three witnesses then testified during the hearing, and the evidence tended to show the following: James Henderson (Henderson) saw defendant leave the residence of Marcus Sellars (Sellars) with his brother and Otis Hightower (Hightower) on 4 January 2003. Terry Richmond, Jr. (Richmond) testified he saw Lenny Benoit (Benoit) enter the home of James Edgar Williamson (Williamson) that same evening after 8:00 p.m. Shortly after hearing a gunshot, Richmond saw two people run out of the home and heard the victim call out a girlfriend's name. He entered the home and discovered that Benoit had been shot. Williamson stated that about $300.00 in cash and less than a pound of marijuana were taken from his home during the burglary on 4 January 2003. Henderson stated defendant returned to Sellar's residence that same evening with his brother and Hightower, and he saw Hightower dividing marijuana with them.
    The trial court received defendant's statement to officers and his testimony at Hightower's trial into evidence. At Hightower's trial, defendant said he went to Sellars's residence at noon on 4 January 2003. Defendant's brother arrived around 4:30 p.m. Atabout 5:30 p.m., Hightower arrived with a gun in his hand and announced that he needed to commit a robbery. Hightower asked defendant and his brother if they wanted to help him. Upon learning that Williamson was the intended victim, defendant indicated he knew Williamson and was not interested. Sellars, who was defendant's cousin, told Hightower that defendant and his brother needed to go with Hightower to the store to get some beer and blunts. Before they left, defendant was given a .38 caliber revolver and a black ski mask. His brother was given a .25 caliber automatic and a knee-high stocking. In his statement, defendant said he and his brother kept asking Hightower while they were riding in Hightower's car to tell them whom they were going to rob.
    As they were returning from the store, Hightower informed defendant and his brother that they were going to rob Williamson. Hightower refused their requests to let them out of the car and told them that they would need to jump out of the moving vehicle. Hightower parked two houses away from Williamson's home and threatened to shoot defendant and his brother if they acted timid once they entered Williamson's home.
     Defendant and his brother got out of the car, pulled on their masks, and followed Hightower. They were behind Hightower on the porch when he kicked in the front door, and they followed him inside the home. As Hightower held a gun to a woman's head, he told defendant and his brother to go and find the marijuana. During his search, defendant saw a girl in another room and told her to sit down and not to say anything. In response toHightower's threats and demands, the woman eventually retrieved a bag of marijuana and gave it to Hightower. Hightower then went into the kitchen, and defendant and his brother followed. While they were in the kitchen, Benoit entered the room through an outside door and recognized defendant and his brother. After Benoit said the names of defendant and his brother, Hightower fatally shot him. Defendant and his brother ran out of the home and waited for Hightower in his car. The three men returned to Sellars's residence, and Hightower divided the marijuana with defendant, his brother and Sellars.
    Officers came to defendant's home on 13 January 2003 and brought him and his brother in for questioning. Defendant described his first statement to S.B.I. Detective Danny Mayes and Investigator Mike New as “nine pages of lies.” When the officers challenged the veracity of his statement, defendant gave the statement about the events of 4 January 2003 which was admitted into evidence at his sentencing hearing.
    Defendant and the State stipulated to several mitigating and aggravating factors, and defendant stipulated to his prior record level. Defendant also requested that the trial court find as mitigating factors that: (1) he was a passive participant or played a minor role; (2) he acted under strong provocation; (3) he committed the offense under duress; (4) he accepted responsibility for his criminal conduct; and (5) he was suffering from a mental or physical condition which significantly reduced his culpability. The trial court declined to find those additional mitigatingfactors and specifically held that defendant's actions did not “reach[] the level of accepting responsibility for the defendant's criminal conduct under the facts that [it had] heard evidence of.” After finding that the aggravating factors outweighed the mitigating factors, the trial court imposed a sentence of 84 to 110 months imprisonment. From the trial court's judgment, defendant appeals.
    In his first argument, defendant contends the trial court erred by denying his motion to change venue or schedule his sentencing hearing before Judge Hudson. Defendant argues that he did more “than simply provide cooperation or a mere voluntary statement,” but that he “was the key to [Hightower's] prosecution.” He claims only Judge Hudson “was in a position to fully determine [defendant's] role in the facts leading to the killing, the relationships between the parties, the truthfulness and forthcoming in his testimony, and the appropriate punishment.” Defendant's argument is not persuasive.
     A change in venue is for the purpose of obtaining a fair and impartial trial. See N.C. Gen. Stat. § 15A-957 (2003). Given that defendant pled guilty to the charge of first degree burglary, this statute is inapplicable. While a superior court “ has the inherent authority to order a change of venue in the interests of justice[,]” such a motion “is addressed to the sound discretion of the trial judge and will not be disturbed on appeal in the absence of a showing of an abuse of discretion.” State v. Barfield, 298 N.C. 306, 320, 259 S.E.2d 510, 524 (1979), overruled in part onother grounds by State v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986).
    Although the Judge Smith did not preside at Hightower's trial and therefore did not have firsthand knowledge of defendant's testimony in that case, he conducted an extensive sentencing hearing. Three witnesses testified, and Judge Smith received additional evidence in the form of a transcript of defendant's testimony at Hightower's trial, defendant's written statement, photographs, eyewitness written statements, and stipulations of fact between counsel. This evidence was “sufficient to enable the sentencing judge to exercise his sentencing authority with intelligence.” State v. Sampson, 34 N.C. App. 305, 307, 237 S.E.2d 883, 885 (1977), disc. review denied, 294 N.C. 185, 241 S.E.2d 520 (1978). Accordingly, the trial court did not abuse its discretion by denying defendant's motions and by conducting the sentencing hearing.
    In his three remaining arguments, defendant contends the trial court committed plain error and abused its discretion by denying his request to find three statutory mitigating factors. Although the State argues that defendant waived these arguments by not objecting to the trial court's failure to find those mitigating factors, “when a defendant argues for sentencing in the mitigated range, no further objection is required to preserve the issue on appeal when the trial judge sentences [him] in the aggravated range.” State v. Byrd, ___ N.C. App. ___, ___, 596 S.E.2d 860, 863 (2004). A trial court is required to find a statutory mitigatingfactor when evidence in support of the factor is “substantial, uncontradicted and manifestly credible.” State v. Hughes, 136 N.C. App. 92, 100, 524 S.E.2d 63, 68 (1999), disc. review denied, 351 N.C. 644, 543 S.E.2d 878 (2000). At a sentencing hearing, however, “the offender bears the burden of proving by a preponderance of the evidence that a mitigating factor exists.” N.C. Gen. Stat. § 15A- 1340.16(a) (2003).
    Defendant argues the trial court should have found that he played a passive or minor role in the commission of the first degree burglary. See N.C. Gen. Stat. § 15A-1340.16(e)(2) (2003). His argument is not persuasive. “A passive participant can be defined as one who has an inactive part in the commission of an offense. A minor role can be defined as one in which the individual performs a comparatively unimportant function in the commission of an offense.” State v. Crandall, 83 N.C. App. 37, 40, 348 S.E.2d 826, 829 (1986) (citations omitted), disc. review denied, 319 N.C. 106, 353 S.E.2d 115 (1987). Based upon the record before this Court, it appears defendant followed as Hightower forced his way into the residence. Defendant was wearing a mask and possessed a .38 caliber revolver which he had been given earlier. While he was searching the home for marijuana to steal, he directed a girl in another room to sit down and not say anything. Defendant fled with his brother to Hightower's car after the shooting and waited for Hightower. He also accepted a portion of the stolen marijuana from Hightower upon their return to Sellars's residence. From the evidence presented to the trialcourt, defendant failed to meet his burden of proving by a preponderance of the evidence that he played a minor or passive role in the first degree burglary. The trial court having properly denied defendant's request to find this mitigating factor, this assignment of error is overruled .
    Defendant next argues the trial court should have found that he accepted responsibility for his criminal conduct. See N.C. Gen. Stat. § 15A-1340.16(e)(15). He claims his written confession to police officers, his testimony against a co-defendant, and his Alford plea to the charge of first degree burglary support a finding of this mitigating factor. We disagree.
    The trial court did find two mitigating factors on the basis of defendant's confession and subsequent testimony against Hightower, that: (1) defendant testified truthfully on the State's behalf in another prosecution of a felony (N.C. Gen. Stat. § 15A- 1340.16(e)(7)); and (2) defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer prior to arrest (N.C. Gen. Stat. § 15A-1340.16(e)(11)). Because “th e same evidence may not support more than one mitigating factor,” only defendant's plea as to the charge of first degree burglary could have properly been considered by the trial court in support of his claim that he accepted responsibility for his criminal conduct. State v. Mixion, 110 N.C. App. 138, 153, 429 S.E.2d 363, 372, disc. review denied, 334 N.C. 437, 433 S.E.2d 183 (1993).
     The trial court acknowledged in open court that defendant, whoentered an Alford plea to the charge, was not contesting the charge, but it found defendant's action did not “reach[] the level of accepting responsibility for the defendant's criminal conduct under the facts that I've heard evidence of.” Defendant's plea to the charge of first degree burglary, which was part of a plea arrangement that resulted in a charge of first degree murder against him being dismissed, does not lead to the sole inference that defendant accepted that he was answerable for the result of his criminal conduct. The trial court therefore did not err in declining to find as a mitigating factor that defendant had accepted responsibility for his criminal conduct.
    In his final argument, defendant claims the trial court erred by denying his request to find as a mitigating factor that he committed the offense under duress, coercion, threat, or compulsion that was insufficient to constitute a defense but significantly reduced his culpability. He argues he committed the offenses because of threats by Hightower. His argument is not persuasive.
     A defendant bears the burden of proving mitigating factors by a preponderance of the evidence, and the trial court in its discretion determines whether the defendant's evidence is substantial or manifestly credible. State v. Watkins, 89 N.C. App. 599, 606, 366 S.E.2d 876, 880 (1988). T his mitigating factor was based upon defendant's testimony that he took part in the offenses only out of fear due to Hightower's threats. He attempts to show that he was not a willing perpetrator of these offenses, but was instead a victim. His testimony, however, was contradicted byother evidence tending to show that: (1) he only opposed robbing Williamson because he knew him; (2) he and his brother both wore masks and had firearms, yet they followed Hightower from the car to Williamson's home; (3) he searched for drugs to steal while out of Hightower's presence in the house; (4) he fled to Hightower's car after the shooting and awaited his return; (5) he accepted a share of the stolen marijuana afterwards; and (6) he initially lied to officers about his knowledge of the offenses. This conflicting evidence clearly raised issues of defendant's credibility, and the trial court did not err in declining to find this mitigating factor. See Hughes, 136 N.C. App. at 102, 524 S.E.2d at 69. This assignment of error is overruled. Defendant received a fair trial, free from prejudicial error.
    No error.
    Judges BRYANT and GEER concur.
    Report per Rule 30(e).

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