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2. Evidence--prior crimes or bad acts_victim's lack of willingness to testify_shooting at
mother's house
Testimony by a kidnapping and assault victim that he did not want to testify at
defendant's trial and only did so after being jailed as a material witness, and that after he testified
at a codefendant's trial “they shot my momma's house up,” but that defendant had not threatened
him, did not constitute evidence of a prior bad act by defendant in violation of N.C.G.S. § 8C-1,
Rule 404(b). Even presuming error, defendant was not prejudiced given the other evidence
presented in the case.
3. Sentencing--aggravated sentences--special verdict
The trial court did not err in a kidnapping and assault with a deadly weapon inflicting
serious injury case by aggravating defendant's sentences, because: (1) at the time of defendant's
trial, the applicable statute was the unamended version of N.C.G.S. § 15A-1340.16 (2004) which
required the trial court to find aggravating factors not admitted by defendant by a preponderance
of the evidence and to make written findings; (2) North Carolina law permits the submission of
aggravating factors to a jury using a special verdict; and (3) the trial court complied with the
limitations for a special verdict set forth in State v. Blackwell, 361 N.C. 41 (2006).
4. Sentencing--aggravating factors--position of leadership or dominance of other
participants
The trial court did not err in a kidnapping and assault with a deadly weapon inflicting
serious injury case by concluding there was sufficient evidence to support submission of the
aggravating factor that defendant occupied a position of leadership or dominance of other
participants in the commission of the offenses, because: (1) a reasonable inference of defendant's
guilt may be drawn from the circumstances; and (2) the victim testified that defendant wasdriving the vehicle that the victim was forced into, that defendant drove while another person
beat the victim, and that defendant told the other person that they should not let the victim go and
that they should kill him.
5. Sentencing--aggravating factors--offenses committed with use of deadly weapon--
acting in concert
The trial court did not commit plain error in a kidnapping and assault with a deadly
weapon inflicting serious injury case by concluding there was sufficient evidence to support
submission of the aggravating factor that the offenses were committed with the use of a deadly
weapon even though defendant himself had no weapon, because: (1) our courts have upheld the
application of the theory of acting in concert to the finding of aggravating factors; and (2)
defendant's coparticipant committed the offenses with the use of a deadly weapon.
Appeal by defendant from judgments entered 4 February 2005
by Judge Robert H. Hobgood in the Superior Court in Durham
County. Heard in the Court of Appeals 22 August 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Sandra Wallace-Smith, for the State.
Glover & Petersen, P.A., by Ann B. Petersen, for defendant-
appellant.
HUDSON, Judge.
In August 2003, the grand jury in Durham County indicted
defendant for kidnapping and assault with a deadly weapon
inflicting serious injury. On 3 February 2005, the trial jury
found defendant guilty of both offenses. On 4 February 2005,
after hearing evidence on aggravating factors, the jury found twoaggravating factors, and the court sentenced defendant within the
aggravated range to two consecutive terms of 42 to 60 months
imprisonment. Defendant appeals. We conclude that there was no
error.
The evidence tends to show that defendant, co-defendant
Robert Johnson, and Robert Harris, all residents of Durham, had
known each other for years. According to Harris, he and Robert
Johnson had a disagreement over money owed for drugs in April
2003. On 20 April 2003, defendant was driving his car when
Harris approached. While they were speaking, Robert Johnson
pulled up, got out of his vehicle, and forced Harris into
defendant's car at gunpoint. Robert Johnson beat Harris while
defendant drove. Harris testified that he offered to give Robert
Johnson money, if that was what he wanted, but that defendant
told Robert Johnson not to let Harris go because he would tell.
Harris also testified that defendant asked Robert Johnson what he
was going to do and told him, “you better kill him.” Eventually,
when defendant stopped the car, Robert forced Harris out of the
car and shot him in the leg, partially severing his genitals and
causing permanent injury.
[1] Defendant first argues that the trial court deprived him
of his constitutional rights under the confrontation clause when
it allowed the out-of-court statements of Ms. Felicia Turraininto evidence. At trial, Walter Harris testified that he had
signed a notarized statement that defendant did not participate
in the incident when Harris was kidnapped and shot. The State
asked why Harris had signed this statement, and Harris stated
that Felicia Turrain kept coming to the nursing school where he
was taking classes and asking, “would I help [defendant] out, you
know, to get out of this trouble, because really basically like
he couldn't afford to take another charge like this.” The court
overruled defendant's objection but instructed the jury not to
consider the portion of the testimony that “'he couldn't afford
to take another charge like this.'” It is well-established that
our appellate courts will only review constitutional questions
raised and passed upon at trial. N.C. R. App. P. 10(b)(1)
(2004); State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539
(1982). Here, defendant lodged a general objection but did not
object on constitutional grounds. Where a defendant fails to
properly object at trial, he may argue plain error on appeal.
N.C. R. App. P. 10(c)(4) (2004). However, defendant has not
asserted plain error and thus has waived plain error review.
State v. Dennison, 359 N.C. 312, 312, 608 S.E.2d 756, 757 (2005).
Accordingly, defendant's constitutional argument is not properly
before us, and we overrule this assignment of error. [2] In his next argument, defendant contends that the trial
court erred in admitting prejudicial evidence of other crimes.
We disagree. N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003) provides
that while “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person or that he acted in
conformity therewith.” Id. However, such evidence may be
admissible for other purposes such as to prove motive,
opportunity, intent, and knowledge. Id. Here, the State
elicited testimony from Mr. Harris that he had not wanted to
testify at defendant's trial and only did so after being arrested
and jailed as a material witness. Harris testified that after he
had testified at the earlier trial of a co-defendant in this
case, “[t]hey shot my momma's house up. . . When I say they, I'm
not saying no names.” The State subsequently asked if Harris had
avoided coming to court in the present case “[b]ecause of the
threats from Xavier Johnson; is that right?” Harris responded
ambiguously at first, but then stated “as far as, you know, the
arguments that we may have had, as far as coming up to the trial,
[defendant] ain't threatened me. I mean him personally, no,
being threatened, not him, you know.” We fail to see how such
testimony constitutes evidence of a prior bad act by defendant.
Furthermore, even presuming error, we are not persuaded that sucherror would have prejudiced defendant, given the other evidence
presented in this case. We overrule this assignment of error.
[3] Defendant next argues that the trial court erred in
aggravating defendant's sentences because it lacked authority to
sentence defendant within the aggravated range. We disagree. We
first note that defendant did not object to imposition of the
aggravated sentence at trial, and the State contends that
defendant thus failed to preserve this issue for our review.
N.C. R. App. P. 10(b)(1). However, this Court has held that “an
error at sentencing is not considered an error at trial for the
purpose of Rule 10(b)(1) because this rule is directed to matters
which occur at trial and upon which the trial court must be given
an opportunity to rule in order to preserve the question for
appeal.” State v. Harris, 175 N.C. App.360, 362-63 , 623 S.E.2d
588, 590 (2006) (internal citations and quotation marks omitted).
Accordingly, as in Harris, “despite defendant's failure to
object to the sentence, the issue is properly before this Court.”
Id.
In 2004, the United States Supreme Court decided Blakely v.
Washington. 542 U.S. 296, 159 L. Ed. 2d 403 (2004). The Court
held that a defendant's constitutional right to trial by jury
requires that jurors find, beyond a reasonable doubt, facts which
increase the penalty for a crime “beyond the prescribed statutorymaximum,” defining “statutory maximum” as the maximum sentence
allowed by a jury's verdict or from a defendant's admissions,
without additional judge-made findings of fact. Id. at 303-04,
159 L. Ed. 2d at 413-14. In State v. Allen, 359 N.C. 425, 615
S.E.2d 256 (2005), withdrawn by 360 N.C. 569, 635 S.E.2d 899
(2006), the North Carolina Supreme Court reviewed the effect of
Blakely on the North Carolina structured sentencing act (“the
Act”). The Court concluded that N.C. Gen. Stat. § 15A-1340.16
(2004), the portion of the Act which required trial judges to
consider evidence of aggravating factors not found by a jury or
admitted by the defendant, and which permitted imposition of an
aggravated sentence upon judicial findings of such aggravating
factors by a preponderance of the evidence, violated the Sixth
Amendment as interpreted in Blakely. 359 N.C. at 438-39, 615
S.E.2d at 265. The Court held that all of its holdings in Allen
applied to cases in which “the defendants had not been indicted
as of the certification date of this opinion and to cases that
are now pending on direct review or are not yet final.” Id. at
427, 615 S.E.2d at 258. Here, defendant was indicted on 11
August 2003, judgment was entered 4 February 2005, and defendant
filed notice of appeal on 5 February 2005. Allen was filed on 1
July 2005; thus, defendant's case was pending on direct review
when Allen was certified. Although Allen was later withdrawn onother grounds (for its determination that Blakely errors were
structural and not subject to harmless error analysis), Allen was
controlling precedent at the time defendant was sentenced.
The General Assembly had not amended the Act at the time of
defendant's trial. When the legislature did amend N.C. Gen.
Stat. § 15A-1340.16 on 30 June 2005, it stated that:
This act is effective when it becomes law.
Prosecution for offenses committed before the
effective date of this act are not abated or
affected by this act, and the statutes that
would be applicable but for this act remain
applicable to those prosecutions.
2005 N.C. Sess. Laws 145. Thus, at the time of defendant's
trial, the applicable statute was the unamended version of N.C.
Gen. Stat. § 15A-1340.16(2004), which required the trial court to
find aggravating factors not admitted by defendant by a
preponderance of the evidence and to make written findings. Id.
Aware of the problems presented by Blakely, the trial court here
presented the aggravating factors to the jury and the jury found
these factors beyond a reasonable doubt. The trial court wrote
by hand on the judgment form, “found by the jury beyond a
reasonable doubt,” below the findings of aggravating factors.
Defendant does not assert that the trial court violated his
rights under Blakely, but that the trial court acted without
authority when it fashioned its own remedy to comply with Blakelybefore our legislature had amended the structured sentencing act.
However, the North Carolina Supreme Court recently addressed this
issue, where “the trial court allegedly lacked a procedural
mechanism by which to submit the challenged aggravating factor to
the jury,” and concluded that North Carolina law “permits the
submission of aggravating factors to a jury using a special
verdict.” State v. Blackwell, 361 N.C. 41, 46, ___ S.E.2d ___,
___ (2006).
A special verdict is a common law procedural
device by which the jury may answer specific
questions posed by the trial judge that are
separate and distinct from the general
verdict. Despite the fact that the General
Statutes do not specifically authorize the
use of special verdicts in criminal trials,
it is well-settled under our common law that
special verdicts are permissible in criminal
cases. Special verdicts, however, are
subject to certain limitations. After the
United States Supreme Court decision in
United States v. Gaudin, a special verdict in
a criminal case must not be a true special
verdict -- one by which the jury only makes
findings on the factual components of the
essential elements alone -- as this practice
violates a criminal defendant's Sixth
Amendment right to a jury trial. Thus, trial
courts using special verdicts in criminal
cases must require juries to apply law to the
facts they find, in some cases straddl[ing]
the line between facts and law as a
mini-verdict of sorts. Furthermore, requests
for criminal special verdicts must require
the jury to arrive at its decision using a
beyond a reasonable doubt standard, since a
lesser standard such as preponderance of the
evidence would violate a defendant's right toa jury trial. Aside from these limitations,
however, we are aware of no limits on our
trial courts' broad discretion to utilize
special verdicts in criminal cases when
appropriate. It is difficult to imagine a
more appropriate set of circumstances for the
use of a special verdict than those existing
in the instant case, in which a special
verdict in compliance with the above
limitations would have safeguarded
defendant's right to a jury trial under
Blakely . . . . [P]rior to the Blakely Act,
special verdicts were the appropriate
procedural mechanism under state law to
submit aggravating factors to a jury.
Id. Here, we conclude that the trial court complied with the
limitations for a special verdict set forth in Blackwell, and
thus we overrule this assignment of error.
[4] Defendant also contends that there was insufficient
evidence to support submission of the aggravating factors to the
jury. We disagree. The jury was instructed and found that the
defendant occupied a position of leadership or dominance of other
participants in the commission of the offenses of assault with a
deadly weapon causing serious injury and second-degree
kidnapping. Defendant objected to the submission of this
aggravating factor. In determining whether there was sufficient
evidence to present to the jury, we review the evidence in the
light most favorable to the State. State v. Thomas, 296 N.C.
236, 245, 250 S.E.2d 204, 208 (1978). The State is entitled to
every reasonable inference to be drawn from the evidence and tohave all contradictions in the evidence resolved in its favor.
State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998).
The
ultimate question is “whether a reasonable inference of the
defendant's guilt may be drawn from the circumstances.” Id. If
the evidence supports a reasonable inference of defendant's
guilt, “it is for the jury to decide whether the facts, taken
singly or in combination, satisfy them beyond a reasonable doubt
that the defendant is actually guilty.” Thomas, 296 N.C. at 244,
250 S.E.2d at 209. Here, Mr. Harris testified that defendant was
driving the vehicle that Harris was forced into, that defendant
drove while Robert Johnson beat Harris, and that defendant told
Robert Johnson that they should not let Harris go and that they
should kill him.
Viewing the evidence in the light most
favorable to the State, we conclude that there was sufficient
evidence to support the instruction on occupying a position of
leadership or dominance.
[5] Defendant also asserts that there was insufficient
evidence to support the aggravating factor submitted and found by
the jury that the offenses were committed with the use of a
deadly weapon. As defendant did not object to this charge at
trial, we review this claim for plain error. State v. Odom, 307
N.C. 655, 660, 300 S.E.2d 375, 379 (1983). It is undisputed that
the offenses committed by Robert Johnson were committed with theuse of a deadly weapon. It is also undisputed that defendant had
no weapon. Defendant asserts that the trial court may not submit
an aggravating factor based on a theory of acting in concert,
citing State v. Oliver, 309 N.C. 326, 365, 307 S.E.2d 304, 329
(1983). However, Oliver does not stand for this proposition and
defendant has not cited any other law in support of this
argument. Indeed, our Courts have upheld the application of the
theory of acting in concert to the finding of aggravating
factors. See State v. Barnes, 333 N.C. 666, 686, 430 S.E.2d 223,
234 (1993); State v. Collier, 72 N.C. App. 508, 512, 325 S.E.2d
256, 258 (1985). Where two or more persons join in a plan to
commit a crime, each of them, if actually or constructively
present, is guilty as a principal if the other commits that
particular crime. State v. Barnes, 345 N.C. 184, 233, 481 S.E.2d
44, 71 (1997). We conclude that the court did not commit plain
error in submitting the aggravating factor that the offenses were
committed with the use of a deadly weapon based on a theory of
acting in concert. We overrule this assignment of error.
No error.
Judges WYNN and TYSON concur.
The judges participated and submitted this opinion for
filing prior to 1 January 2007.
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