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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. MELVIN EARL HAGANS
Filed: 4 April 2006
1. Firearms and Other Weapons_possession by felon_prior conviction for
misdemeanor breaking and entering
A motion for appropriate relief filed with the Court of Appeals was granted and an
indictment for possession of a firearm by a felon was dismissed where the underlying conviction
was for misdemeanor rather than felonious breaking and entering.
2. Evidence_prior robbery_plan or scheme_probative value outweighing prejudice
Evidence of a prior robbery in which defendant participated was properly admitted in a
prosecution for assault with a deadly weapon and other firearms charges arising from a robbery
where the similarities between the robberies indicated a plan, scheme, system, or design.
Furthermore, the similarities between the robberies, which occurred within a week of each other,
were sufficient to support a finding that the probative value of the evidence was not substantially
outweighed by the danger of unfair prejudice.
3. Criminal Law_deadlocked jury_supplemental instructions
The trial court did not abuse its discretion by denying a mistrial where a jury deadlocked
on one of seven charges and the court instructed the jurors to consider each of the seven charges
separately. The court's supplemental instruction did not threaten to require unreasonably long
deliberations and was not a dynamite charge.
4. Evidence_hearsay_explanation of subsequent conduct_not plain error
The trial court did not commit plain error by admitting uncorroborated hearsay statements
from defendant's codefendants where the statements were admissible for the nonhearsay purpose
of explaining subsequent conduct, were admissible as statements of a coconspirator in
furtherance of the conspiracy, or did not rise to the level of prejudicial error.
5. Firearms and Other Weapons_firing at occupied vehicle_sufficiency of evidence
There was sufficient evidence that shots were fired at an occupied vehicle and liability for
firing the shots and possessing the firearm are imputed to the defendant because the State
proceeded under acting in concert. There was sufficient evidence of assault with a deadly
weapon and related charges to go to the jury.
6. Sentencing_presumptive range_no comment on mitigating factors_no Blakely issue
The trial court did not abuse its discretion by sentencing defendant within the
presumptive range for convictions for assault with a deadly weapon and firing a firearm into an
occupied vehicle. The fact that the court imposed presumptive sentences without comment does
not mean that mitigating factors were not considered, and Blakely does not apply because
aggravating factors were neither presented nor found.
Appeal by defendant from judgments entered 17 December 2004 by
Judge Cy A. Grant in Pitt County Superior Court. Heard in the
Court of Appeals 15 March 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Philip A. Lehman, for the State.
Bruce T. Cunningham, Jr., for defendant-appellant.
Melvin Earl Hagans (defendant) appeals from judgments
entered after a jury found him to be guilty of: (1) possession of
a firearm by a felon; (2) assault with a deadly weapon; (3)
discharge of a firearm into an occupied vehicle; and (4) three
counts of attempted discharge of a firearm into an occupied
vehicle. We find no error in part, vacate in part, and remand for
A. State's Evidence
William Parker (Parker) was assaulted and robbed at gunpoint
upon arriving home on the evening of 20 June 2004. His assailants
were two black males dressed in dark clothing and toboggan masks
with the areas over the eyes cut out. One of the masks bore an NFL
team logo. One robber held a gun to Parker, demanded his
briefcase, which Parker did not have, took his wallet, and removed
items from the rear of his vehicle. The other robber removed items
from the passenger side of Parker's vehicle. One gunman forced Parker to lay face down in the grass, placed
the gun to the back of Parker's head, and threatened his accomplice
would kill Parker if he moved. The two robbers ran away. Although
Parker lost sight of the men, he heard them running and heard their
voices. Parker stood and observed the men enter a Cadillac and
Parker entered his vehicle, chased after the two men, and
called 911. Parker soon caught up to the Cadillac. He observed a
muzzle flash from inside the Cadillac and heard a gunshot. The
Cadillac made a right turn. Parker followed and attempted to
obtain the license plate number for the 911 dispatcher. The chase
continued for several minutes during which an arm and pistol
emerged from the rear passenger window four times. Seven shots
were fired toward Parker's car.
The Cadillac eventually eluded Parker, but was stopped by
Greenville Police Officer Robert Brewington (Officer Brewington)
shortly thereafter. After arriving home and inspecting his
vehicle, Parker observed a small hole below the front grill of his
vehicle, which appeared to be a bullet hole.
Upon stopping the Cadillac, Officer Brewington observed a
black male wearing dark clothing exit the passenger side rear door
and flee. Officer Brewington testified defendant, the driver of
the vehicle, asked him what was going on and stated he had been
stopped by two black males and ordered to drive. A stocking hat
with a hole cut out was discovered in the right front passenger
floor board of the Cadillac. James Ham (Ham) testified for the State. Ham was
apprehended the following morning around 6:00 a.m. with a bandaged
right hand. Ham testified he had known defendant for four to five
years and previously shared a mobile home with him. About two
weeks prior to the Parker robbery, Ham and defendant met with
Lionel Grandy (Grandy). The three associated during the two
weeks prior to the robbery. During that time, Ham and Grandy
purchased a .38 revolver pistol.
On 20 June 2004, Ham borrowed his aunt's Cadillac. Defendant
and Grandy went with Ham to visit Ham's parents' and grandparents'
home in Aurora. After leaving the house, Grandy indicated he might
have a lick for them or a get-on move to get some money.
Grandy claimed he previously worked with Parker, who would carry a
briefcase containing money to his home. The men drove by Parker's
Barbecue in Greenville, where Grandy identified Parker's vehicle.
Grandy then drove to Parker's neighborhood and dropped off Ham
and defendant. Ham wore a Carolina Panthers toboggan hat with eye
holes cut out and carried the .38 revolver. When Parker arrived,
Ham and defendant approached Parker's vehicle. Ham pointed his gun
at Parker and demanded his briefcase. Ham took Parker's wallet and
a gray plastic container from the back of the vehicle. Defendant
went through Parker's vehicle and removed two black bags.
Defendant and Ham returned to the Cadillac. Shortly after Grandy
drove away, he stopped the vehicle and asked defendant to drive
because defendant was the only one of the three men with a driver's
license. Grandy was worried Parker would call the police. Grandyexited the vehicle and sat in the rear driver's side seat.
Defendant moved over into the driver's seat.
When Parker's vehicle approached the Cadillac, Grandy and Ham
grabbed the gun. The gun fired, shooting Ham in the right hand.
Ham placed his hand outside the window and later bent over in the
backseat, holding his hand. Grandy leaned over Ham and fired the
gun out the rear passenger window toward Parker's vehicle. After
eluding Parker, defendant stopped the car. Grandy fled carrying
the gun. The Cadillac proceeded down the road and was stopped at
an intersection by Officer Brewington. Ham jumped from the vehicle
and fled. Ham was arrested and transported to the hospital the
following morning. After discharge from the hospital, Ham was
taken to the Greenville Police Department, where he voluntarily
gave a statement.
Over defendant's objection, Ham testified to a prior robbery
on 13 June 2004 involving defendant and Grandy pursuant to Rule
404(b). Ham testified he drove his aunt's Cadillac to a Pizza Hut
in Zebulon around 2:00 a.m. on 13 June 2004. Defendant and Grandy
exited the vehicle to rob the Pizza Hut. Ham waited in the front
passenger's seat. Grandy carried the same .38 revolver that was
later used in the Parker robbery. The men returned to the car
carrying a clear plastic bag containing money. The men divided the
money and Ham received $99.00. Defendant drove the Cadillac from
B. Defendant's Evidence
Defendant testified that on 20 June 2004 he drove the Cadillac
to Aurora with Ham and Grandy as passengers. As they were leaving
Aurora, Grandy received a call, cursed, and said he was coming to
get [his] things girl. Ham drove the men to a residence defendant
believed to be Grandy's girlfriend's house. Defendant waited in
the car until Ham and Grandy returned with two bags and a gray
container. Grandy drove off with Parker chasing them. Ham
replied, I got him and reached onto the floor. Ham shot himself
in the hand as he came back up.
Defendant testified he thought the man pursuing them was
Grandy's girlfriend's boyfriend and he never knew it was Parker
behind them. He testified that Ham continued to shoot out the right
rear passenger window with his left hand as they continued to flee
from the vehicle pursuing them. After the men evaded Parker,
Grandy drove the car into a cul-de-sac, exited the vehicle, and
fled. Defendant slid over into the driver's seat and attempted to
drive Ham to the hospital. After being stopped at the
intersection, Ham told defendant that he and Grandy had robbed a
man. Ham exited the vehicle and fled. Defendant denied having any
knowledge about the robbery of the Pizza Hut in Zebulon on 13 June
Defendant was convicted of: (1) possession of a firearm by a
felon; (2) assault with a deadly weapon; (3) discharge of a firearm
into an occupied vehicle; and (4) three counts of attempted
discharge of a firearm into an occupied vehicle. The jury failedto reach a unanimous decision on the armed robbery charge and the
court declared a mistrial for that offense.
At the sentencing hearing, defendant offered the following
mitigating factors: (1) assistance in the apprehension of another
felon; (2) acknowledgment of wrongdoing; (3) being a person of good
character and reputation in the community; (4) honorable discharge
from the United States Army; (5) support of his family; (6) a
support system in the community; and (7) positive employment
history. The State offered no evidence or proffer in response.
Defendant was sentenced to consecutive prison terms all within the
presumptive ranges of: (1) forty-six to sixty-five months for
discharging a weapon into an occupied vehicle; (2) sixteen to
twenty months for the consolidated charges of possession of a
firearm by a felon and assault with a deadly weapon; and (3) forty-
six to sixty-five months for three consolidated counts of attempted
discharge of a weapon into an occupied vehicle. Defendant appeals.
Defendant contends the trial court erred by: (1) allowing the
admission of uncorroborated evidence of a different, earlier armed
robbery under Rule 404(b); (2) accepting jury verdicts in six of
seven charges and declaring a mistrial in the remaining count when
all counts were joined and consolidated for trial; (3) admitting
uncorroborated hearsay statements by a third co-defendant who was
not on trial or available to testify and subject to cross-
examination by the defense; (4) admitting Ham's written statement
containing uncorroborated hearsay statements by a third co-defendant; (5) denying his motion to dismiss at the close of the
State's evidence and renewed motion to dismiss at the close of all
evidence for insufficiency of the evidence; and (6) failing to make
findings of fact in support of its sentences and judgments where he
presented uncontradicted evidence in support of several statutory
mitigating factors and failing to consider those mitigating factors
prior to sentencing him and entering judgment.
III. Motion for Appropriate Relief
 Defendant filed a motion for appropriate relief with this
Court on 28 February 2006 seeking to vacate his possession of a
firearm by a felon conviction. He argues the prior conviction upon
which the possession of a firearm conviction rests is a misdemeanor
rather than a felony. N.C. Gen. Stat. § 15A-1411 (2005) provides,
Relief from errors committed in the trial division, or other
post-trial relief, may be sought by a motion for appropriate
A prior felony conviction for breaking and entering is listed
on defendant's indictment for possession of a firearm by a felon.
The indictment alleges the breaking and entering offense is a Class
H felony. Defendant was convicted of this offense on 30 November
1992 in Wake County and was sentenced to two years imprisonment,
suspended upon probation.
Defendant filed the transcript of plea and judgment from the
breaking and entering offense listed in the indictment with this
Court. These documents reveal defendant pled guilty to and was
convicted of misdemeanor, rather than felony, breaking and enteringon 30 November 1992. The indictment for the offense of possession
of a firearm by a felon offense is fatally defective and dismissed.
No other felony to support the possession of a firearm by a
convicted felon was alleged. Defendant's motion for appropriate
relief is granted. Defendant's conviction for possession of a
firearm by a felon is vacated.
IV. Rule 404(b)
 Defendant asserts evidence of the prior Pizza Hut robbery
on 13 June 2004 should have been excluded and argues: (1) this
evidence was not corroborated; (2) this evidence did not concern a
prior offense for which he had been convicted; and (3) the crime
remained under investigation at the time of his trial.
A. Standard of Review
The standard of review for this Court assessing evidentiary
rulings is abuse of discretion. State v. Boston, 165 N.C. App.
214, 218, 598 S.E.2d 163, 166 (2004) (citing State v. Meekins, 326
N.C. 689, 696, 392 S.E.2d 346, 350 (1990)). A trial court may be
reversed for an abuse of discretion only upon a showing that its
ruling was so arbitrary that it could not have been the result of
a reasoned decision. State v. Hayes, 314 N.C. 460, 471, 334
S.E.2d 741, 747 (1985) (citing State v. Wilson, 313 N.C. 516, 538,
330 S.E.2d 450, 465 (1985)).
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005) provides:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,plan, knowledge, identity, or absence of
mistake, entrapment or accident.
Our Supreme Court recently stated:
This rule is a clear general rule of inclusion
of relevant evidence of other crimes, wrongs
or acts by a defendant, subject to but one
exception requiring its exclusion if its only
probative value is to show that the defendant
has the propensity or disposition to commit an
offense of the nature of the crime charged.
The list of permissible purposes for admission
of other crimes evidence is not exclusive, and
such evidence is admissible as long as it is
relevant to any fact or issue other than the
defendant's propensity to commit the crime.
State v. White, 340 N.C. 264, 284, 457 S.E.2d 841, 852-53 (internal
quotation and citation omitted), cert. denied, 516 U.S. 994, 133 L.
Ed. 2d 436 (1995). Upon a finding that evidence is admissible
under Rule 404(b), the evidence may still be excluded if the trial
court finds its probative value is substantially outweighed by the
danger of undue prejudice to the defendant. N.C. Gen. Stat. § 8C-
1, Rule 403 (2005).
In State v. Davis, the defendant was convicted of armed
robbery of a pawnshop. 340 N.C. 1, 14, 455 S.E.2d 627, 633-34,
cert. denied, 516 U.S. 846, 133 L. Ed. 2d 83 (1995). Our Supreme
Court upheld the admission of evidence that the same perpetrators
had robbed a restaurant one week earlier under Rule 404(b). Id.
This evidence of a prior robbery was sufficiently similar to the
crime charged to show the disputed element of intent. Id. at 14,
455 S.E.2d at 633.
In State v. Suggs, this Court upheld admission of evidence of
a prior robbery by the defendant even though he had been chargedbut not convicted of the crime. 86 N.C. App. 588, 592, 359 S.E.2d
24, 27, cert. denied, 321 N.C. 299, 362 S.E.2d 786 (1987). We
noted [s]ince the scope of Rule 404(b) includes 'wrongs or acts,'
the Rule does not on its face require such extrinsic acts result in
criminal liability . . . we conclude conviction of other crimes is
not a prerequisite to their admissibility under Rule 404(b). Id.
at 591-92, 359 S.E.2d at 26-27.
Here, as in Davis, evidence was admitted that defendant
participated in an armed robbery a week prior to participating in
the armed robbery at bar. 340 N.C. at 14, 455 S.E.2d at 633. The
evidence tended to show: (1) the same three men participated in
the earlier robbery; (2) the men wore dark clothing and covered
their faces; (3) the same .38 revolver was used; (4) the same
Cadillac was used; and (5) one man stayed behind in the car while
the other two men robbed the store. Evidence of defendant's
involvement in the Zebulon Pizza Hut robbery is sufficiently
similar to be admitted for the purpose of showing defendant had a
plan, scheme, system or design involving robbery. Id. Since
conviction of other crimes is not a prerequisite to their
admissibility under Rule 404(b), defendant not being charged with
or convicted of the prior robbery is irrelevant to whether the Rule
404(b) evidence was properly admitted. Suggs, 86 N.C. App. at 592,
359 S.E.2d at 27.
B. Rule 403 - Unfair Prejudice
Defendant also contends the trial court abused its discretion
by failing to exclude the evidence. He argues the probative valueof this evidence was substantially outweighed by the unfair
prejudice of having to defend against uncharged conduct in the
middle of a jury trial. 'The ultimate test for determining
whether such evidence is admissible is whether the incidents are
sufficiently similar and not so remote in time as to be more
probative than prejudicial under the balancing test of N.C.G.S. §
8C-1, Rule 403.' Davis, 340 N.C. at 14-15, 455 S.E.2d at 634
(quoting State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119
(1988)). The similarities between the robbery of the Pizza Hut and
that of Parker, together with the one week time period between the
two robberies, are sufficient to support a finding that the
probative value of the evidence is not substantially outweighed by
the danger of unfair prejudice. Defendant failed to show this
evidence only shows propensity or disposition to commit the
crimes or that the trial court abused its discretion in admitting
the evidence of the prior robbery under Rule 404(b). These
assignments of error are overruled.
V. Failure to Grant a Mistrial
 Defendant contends the trial court abused its discretion
by accepting verdicts in six of seven charges joined and
consolidated for trial particularly due to the trial court's
additional charge to the jury to consider each charge separately
after the jury deadlocked.
The standard of review for denial of a mistrial is whether the
trial court abused its discretion. State v. Upchurch, 332 N.C.
439, 453, 421 S.E.2d 577, 585 (1992) (quotation omitted). As notedabove, defendant must show the trial court's ruling was so
arbitrary that it could not have been the result of a reasoned
decision to warrant a new trial. Id.
N.C. Gen. Stat. § 15A-1063(2) (2005) provides, Upon motion of
a party or upon his own motion, a judge may declare a mistrial if:
. . . (2) It appears there is no reasonable probability of the
jury's agreement upon a verdict. N.C. Gen. Stat. § 15A-1235(c)
(2005) states that if, during the course of jury deliberations:
it appears to the trial judge that the jury
has been unable to agree, the judge may
require the jury to continue its deliberations
and may also give or repeat the instructions
which are provided in subsections (a) and (b).
[However,] [t]he judge may not require or
threaten to require the jury to deliberate for
an unreasonable length of time or for
In addition, [i]f it appears that there is no reasonable
possibility of agreement, the judge may declare a mistrial and
discharge the jury. N.C. Gen. Stat. § 15A-1235(d) (2005).
Defendant contends the trial court abused its discretion by
giving a supplemental instruction after the jury deadlocked on one
of the charges. Defendant argues the court forced a verdict and
cites State v. Alston, 294 N.C. 577, 243 S.E.2d 354 (1978). Alston
reviewed a charge given to the jury, before deliberation, which
(1) the court's mention of the inconvenience
and expense of empaneling another jury to try
the case[;] (2) the court's statement that an
agreement would ease the tension within the
jury but that disagreement would be the first
step towards deadlock[;] (3) the court's
admonition that the jury should not put up
with any juror who wanted to discuss one pointendlessly[;] and (4) an intimation by the
court that any juror who found himself in the
minority should question the correctness of
294 N.C. at 592, 243 S.E.2d 364. The situation here does not
involve such a dynamite charge. A supplemental instruction was
provided after the jury informed the court they were deadlocked on
one count. Id. at 593, 243 S.E.2d at 365.
After the jury had deliberated for approximately one full day
without reaching a verdict, the trial court gave the following
Members of the jury, as you know the defendant
has been charged with seven separate crimes,
and these seven charges have been consolidated
into one trial for the convenience of parties
and witnesses, but as jurors, you are to give
separate and independent consideration to each
charge as though each charge was being tried
separately. Now members of the jury, I want
you to return to the jury room to resume your
deliberations with a view toward reaching a
verdict. Thank you.
The trial judge did not threaten to require the jury to deliberate
for an unreasonable length of time or for unreasonable intervals.
N.C. Gen. Stat. § 15A-1235(c). Defendant has cited no authority
that a jury instruction to consider each charge separately was
error. Defendant has failed to show the trial court abused its
discretion by providing a supplemental instruction and allowing the
jury to deliberate further after one day. This assignment of error
VI. Uncorroborated Hearsay Statements by Co-Defendant
 In consolidated assignments of error, defendant contends
the trial court committed plain error by admitting uncorroboratedhearsay statements of defendant's co-defendants. Defendant argues
the trial result would have been different had Ham not been
permitted to testify to Grandy's statements. Grandy was not called
as a witness and was not shown to be unavailable. Defendant also
argues Ham should not have been allowed to read to the jury the
written statement he had given to the police.
The standard of review for this Court assessing evidentiary
rulings is abuse of discretion. Boston, 165 N.C. App. at 218, 598
S.E.2d at 166 (citing State v. Meekins, 326 N.C. 689, 696, 392
S.E.2d 346, 350 (1990)). Defendant failed to object to the
testimony at trial and asserts plain error. To award a new trial
for plain error, a defendant must show a fundamental error,
something so basic, so prejudicial, so lacking in its elements that
justice cannot have been done . . . . State v. Black, 308 N.C.
736, 740, 303 S.E.2d 804, 806 (1983) (citations omitted).
Out of court statements are admissible to explain the
subsequent conduct of the person to whom the statement was made.
State v. Coffey, 326 N.C. 268, 282, 389 S.E.2d 48, 56 (1990)
(citing State v. White, 298 N.C. 430, 437, 259 S.E.2d 281, 286
(1979)); State v. Earhart, 134 N.C. App. 130, 136, 516 S.E.2d 883,
887 (1999) (citations omitted). Statements made during the course
of and in furtherance of the conspiracy are also admissible as an
exception to the hearsay rule. State v. Williams, 345 N.C. 137,
141, 478 S.E.2d 782, 784 (1996) (citing N.C. Gen. Stat. § 8C-1,
Rule 801(d)(E) (2005)). The State must prove a conspiracy
independent of the declarations sought to be admitted in order toadmit hearsay statements of a co-conspirator. State v. Nichols,
321 N.C. 616, 630, 365 S.E.2d 561, 570 (1988). Admission of
hearsay testimony is not always prejudicial. The defendant carries
the burden to show a reasonable possibility of a different result
would have occurred at trial without the hearsay evidence. State
v. Hickey, 317 N.C. 457, 473, 346 S.E.2d 646, 657 (1986).
Defendant argues Ham should not have been allowed to testify
to Grandy's statements that Grandy: (1) had a lick for Ham and
defendant; (2) knew Parker carried a suitcase full of money; (3)
went to see if Parker's vehicle was parked at the restaurant; (4)
could not rob Parker without being recognized; (5) demanded to know
whether Ham and defendant knocked Parker out and kept saying Parker
was following them; (6) had the idea to ditch the Cadillac; and (7)
declared he had robbed the Pizza Hut on 13 June 2004.
The statements Grandy made about a lick and about Parker
having a briefcase were admissible for the non-hearsay purpose of
explaining the subsequent conduct of Ham and defendant. See State
v. Gainey, 355 N.C. 73, 87, 558 S.E.2d 463, 473 (2002)
([O]ut-of-court statements that are offered for purposes other
than to prove the truth of the matter asserted are not considered
hearsay . . . statements are not hearsay if they are made to
explain the subsequent conduct of the person to whom the statement
was directed. (citations omitted)). The rest of the statements,
with the exception of the statement regarding the Pizza Hut
robbery, were admissible as statements of a co-conspirator in the
course of and in furtherance of the conspiracy. See Coffey, 326N.C. at 282, 389 S.E.2d at 56; N.C. Gen. Stat. § 8C-1, Rule
Ham's testimony that Grandy declared he had robbed the Pizza
Hut on 13 June 2004 was not made during the course of and in
furtherance of the conspiracy to rob Parker and does not explain
the subsequent conduct of Ham and defendant. Admission of this
statement does not rise to the level of plain or prejudicial error
defendant must demonstrate after his failure to object or to
warrant a new trial. Defendant failed to show a reasonable
possibility of a different result at trial without admission of
this hearsay evidence to warrant a new trial. Hickey, 317 N.C. at
473, 346 S.E.2d at 657. Other overwhelming evidence of defendant's
guilt was admitted to sustain the verdicts and judgments. This
assignment of error is overruled.
VII. Sufficiency of the Evidence
 Defendant contends the State presented insufficient
evidence to support his convictions and the trial court erred by
denying his motion to dismiss at the close of the State's evidence
and renewed motion to dismiss at the close of all the evidence.
A. Standard of Review
When ruling on a motion to dismiss, the trial court must
decide whether there is substantial evidence (1) of each essential
element of the offense charged, or of a lesser offense included
therein, and (2) of defendant's being the perpetrator of such
offense. If so, the motion is properly denied. State v. Fritsch,
351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (citing State v.Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)). Evidence is
viewed in the light most favorable to the State, giving the State
the benefit of all reasonable inferences. Id. at 378-79, 526
S.E.2d 455 (citing State v. Benson, 331 N.C. 537, 544, 417 S.E.2d
756, 761 (1992)). The test for sufficiency of the evidence is the
same whether the evidence is direct or circumstantial or both.
Id. at 379, 526 S.E.2d at 455 (citing State v. Bullard, 312 N.C.
129, 322 S.E.2d 370(1989)).
Circumstantial evidence may withstand a motion
to dismiss and support a conviction even when
the evidence does not rule out every
hypothesis of innocence. If the evidence
presented is circumstantial, the court must
consider whether a reasonable inference of
defendant's guilt may be drawn from the
circumstances. Once the court decides that a
reasonable inference of defendant's guilt may
be drawn from the circumstances, then it is
for the jury to decide whether the facts,
taken singly or in combination, satisfy [it]
beyond a reasonable doubt that the defendant
is actually guilty.
Id. (citation and internal quotations omitted).
Defendant cites no authority to support his argument the State
failed to present sufficient evidence to sustain a conviction.
Defendant argues the evidence fails to show he fired the gun or
that the gun was fired toward Parker's vehicle. Defendant also
argues no evidence shows he actually or constructively possessed
the firearm. We disagree.
B. Acting in Concert
The trial court instructed the jury on acting in concert as
follows: If two or more persons join in a common
purpose to commit a crime, each of them, if
actually or constructively present, is not
only guilty of that crime if the other person
commits the crime but is also guilty of any
other crime committed by the other in
pursuance of the common purpose to commit the
original crime or as a natural and probable
In State v. Mann, our Supreme Court stated:
If 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.
355. N.C. 294, 306, 560 S.E.2d 776, 784 (citations and quotations
omitted), cert. denied, 537 U.S. 1005, 154 L. Ed. 2d 403 (2002).
If a person is close enough to be able to render assistance if
needed and to encourage the actual perpetration of the crime, then
that person is constructively present during the commission of the
Here, the evidence tended to show defendant accompanied Ham to
Parker's house where they robbed Parker at gunpoint. Further,
defendant was present in the car during the pursuit while shots
were fired at Parker's vehicle and throughout the conspiracy.
Evidence presented supports a jury finding defendant acted in
concert with Ham and Grandy in robbing Parker and in discharging
and attempting to discharge a firearm into Parker's vehicle.
C. Discharge of a Firearm Into an Occupied Vehicle
Testimony from Parker, Ham, and defendant presented
uncontradicted evidence that shots were fired from the robbers'vehicle at Parker's vehicle. Parker testified he saw the gun and
heard shots fired toward him. Ham testified he grabbed for the gun
to prevent Grandy from shooting Parker. Defendant testified
several shots were fired from the Cadillac and he believed Ham was
firing at Parker's vehicle. Parker found what appeared to be a
bullet hole in the front of his vehicle and testified the hole was
not there the day before. Viewed in the light most favorable to
the State, this evidence is sufficient for the jury to conclude
that shots were fired by the robbers at Parker's vehicle. This
assignment of error is overruled.
VIII. Presumptive Sentencing
 Defendant contends the trial court erred by failing to
make findings of fact to support its judgments. He argues
uncontradicted evidence supports several statutory mitigating
factors, and the trial court failed to consider those mitigating
factors prior to entering judgment. We disagree.
Defendant filed a petition for writ of certiorari seeking
review of this issue with this Court on 28 February 2006. See N.C.
Gen. Stat. § 15A-1441(a1) (2005) (A defendant who has been found
guilty . . . [of] a felony, is entitled to appeal as a matter of
right the issue of whether his or her sentence is supported by
evidence introduced at the trial and sentencing hearing only if the
minimum sentence of imprisonment does not fall within the
presumptive range for the defendant's prior record or conviction
level and class of offense. Otherwise, the defendant is not
entitled to appeal this issue as a matter of right but may petitionthe appellate division for review of this issue by writ of
The standard of review for application of mitigating factors
is an abuse of discretion. State v. Butler, 341 N.C. 686, 694-95,
462 S.E.2d 485, 489-90 (1995). The court shall consider evidence
of aggravating or mitigating factors present in the offense that
make an aggravated or mitigated sentence as appropriate, but the
decision to depart from the presumptive range is in the discretion
of the court. N.C. Gen. Stat. § 15A-1340.16(a) (2005). The
court shall make findings of the aggravating and mitigating factors
present in the offense only if, in its discretion, it departs from
the presumptive range of sentences specified in G.S.
15A-1340.17(c)(2). N.C. Gen. Stat. § 15A-1340.16(c) (2005).
Here, the trial court sentenced defendant within the
presumptive range for each of his convictions. The fact the trial
court, without comment, imposed consecutive presumptive sentences
does not mean the trial court failed to consider the mitigating
Defendant's notion that the court is obligated to formally
find or act on proposed mitigating factors when a presumptive
sentence is entered has been repeatedly rejected. See State v.
Allah, 168 N.C. App. 190, 197, 607 S.E.2d 311, 316 (2005) ('Since
the court may, in its discretion, sentence defendant within the
presumptive range without making findings regarding proposed
mitigating factors,' this Court has found no error in the failure
to make such findings. (quoting State v. Ramirez, 156 N.C. App.249, 258-59, 576 S.E.2d 714, 721 (2003)); State v. Streeter, 146
N.C. App. 594, 597-98, 553 S.E.2d 240, 242 (2001), cert. denied,
356 N.C. 312, 571 S.E.2d 211 (2002), cert. denied, 537 U.S. 1217,
154 L. Ed. 2d 1071 (2003); State v. Chavis, 141 N.C. App. 553, 568,
540 S.E.2d 404, 415 (2000) (This Court has held the trial court is
required to take 'into account factors in aggravation and
mitigation only when deviating from the presumptive range in
sentencing.' (quoting State v. Caldwell, 125 N.C. App. 161, 162,
479 S.E.2d 282, 283 (1997)). The trial court did not abuse its
discretion by failing to make formal findings or act on the
proposed mitigating factors when sentences were imposed within the
presumptive range for each conviction.
Defendant also contends the United States Supreme Court's
decision in Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403
(2004) effectively nullifies the holding in Streeter. Blakely
dealt only with the question of whether a trial court may enhance
a defendant's sentence above the presumptive range by unilaterally
imposing aggravating factors. 542 U.S. at 301, 159 L. Ed. 2d at
___ ('Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt.' (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L.
Ed. 2d 435 (2000)). Because the State in this case did not present
or argue for and the trial court did not find any aggravating
factors, Blakely does not apply to the facts of this case. Theseassignments of error are overruled and defendant's petition is
Defendant's indictment for possession of a firearm by a felon
is fatally defective because it alleges he was convicted of felony
breaking and entering when he was in fact convicted of misdemeanor
breaking and entering. Defendant's possession of a firearm by a
felon conviction is vacated, and this case is remanded for
resentencing consistent with this opinion.
In all other respects, defendant received a fair trial free
from prejudicial errors he assigned and argued. The trial court
did not abuse its discretion in admitting the evidence of the prior
robbery under Rule 404(b). Davis
, 340 N.C. at 14-15, 455 S.E.2d at
633-34. Similarities between the robberies of the Pizza Hut and
Parker that occurred within one week of each other are sufficient
evidence to support a finding that the probative value of the
evidence of the Pizza Hut robbery was not substantially outweighed
by the danger of unfair prejudice.
The trial court did not abuse its discretion by providing a
supplemental instruction to the jury which did not threaten to
require the jury to deliberate for an unreasonable length of time
or for unreasonable intervals. N.C. Gen. Stat. § 15A-1235(c).
Ham's testimony of Grandy's statements was introduced for the
non-hearsay purpose of explaining the subsequent conduct of Ham and
defendant and as statements of a co-conspirator in the course of
and in furtherance of the conspiracy. The trial court did notabuse its discretion in admitting the testimony. Presuming
Grandy's hearsay statement claiming responsibility for the Pizza
Hut robbery was improperly admitted, in the absence of an objection
by defendant or showing a different result would have occurred at
trial, the admission of the statement does not warrant a new trial
under plain or prejudicial error review.
Viewed in the light most favorable to the State, the evidence
was sufficient for the jury to reasonably conclude shots were fired
at Parker's vehicle. Because the State proceeded under an acting
in concert theory, liability for firing the shots and possession of
the firearm are imputed to defendant, who was present in the
vehicle and acted in concert with his co-conspirators.
The trial court did not commit an abuse of discretion by
failing to sentence defendant in the mitigated range. All
sentences were imposed within the presumptive ranges for each
conviction. Defendant's petition for writ of certiorari
No Error in Part, Vacated in Part, and Remanded for
Judges MCCULLOUGH and LEVINSON concur.
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