Appeal by defendant from judgments entered 2 March 2006 by
Judge Jesse B. Caldwell III in Mecklenburg County Superior Court.
Heard in the Court of Appeals 6 June 2007.
Attorney General Roy Cooper, by Assistant Attorney General K.
D. Sturgis, for the State.
Office of the Public Defender, by Assistant Public Defender
Julie Ramseur Lewis, for defendant-appellant.
Defendant Devozeo Person appeals from convictions for the
following offenses: robbery with a dangerous weapon; second degree
kidnapping; first degree rape as the principal; first degree rape
by acting in concert with someone else; first degree sexual offense
by fellatio; first degree sexual offense by anal intercourse; and
first degree sexual offense by digital penetration. On appeal,
defendant argues, and we agree, that the evidence at trial was
insufficient to sustain the convictions for first degree rape and
first degree sexual offense by anal intercourse. In addition, with
respect to the conviction for first degree rape by acting in
concert with someone else, defendant is entitled to a new trial
since the jury instructions on that count were fatally flawed.
Regarding the remaining convictions, however, we hold that
defendant's trial was free of prejudicial error.
At trial, the State's evidence tended to show the following
facts. At about 2:00 a.m. on 7 December 2002, "Carla," a married
mother of four children, finished work at a Kentucky Fried Chickenrestaurant.
(See footnote 1)
When she arrived home, she realized she had left a
shirt at the restaurant that she needed to wear the next day. She
drove back to work, retrieved the shirt, and returned to her
Upon arriving home the second time, Carla parked her car and
was about to get out when she noticed a man standing next to her
car door. Immediately, she locked the door and put the keys back
into the ignition. The man, Nicholas Johnson, pointed a gun at her
and threatened to shoot if she did not open the door. After Carla
complied, defendant approached and took her keys and cell phone.
The men then went through her purse and stole the money inside,
about $300.00, as well as a necklace and bracelet Carla was
The men opened the trunk of the car and ordered her to get
inside. When she refused and pleaded with them to take everything,
including the car, she was grabbed by her hair and forced into the
trunk. The men drove around for approximately two hours, making a
few brief stops, while Carla remained locked in the trunk. At one
point, she succeeded in opening the trunk and tried to signal to
another car, but the men stopped the car, threatened to shoot her
if she tried to escape, and shut her back inside the trunk.
Eventually, defendant and Johnson stopped the car at an
abandoned house. The men opened the trunk and took Carla behind
the house. Johnson ordered her to sit on the steps and pull downher pants, but she refused. Johnson pointed the gun at her and
threatened that she would never see her children again if she did
not obey. When she still refused, Johnson himself pulled down her
pants and underwear, inserted his fingers into her vagina, and
remarked to defendant that he thought Carla was having her period.
While still pointing the gun at Carla, Johnson first engaged in
sexual intercourse followed by anal intercourse and then forced
Carla to perform fellatio on him.
After Johnson finished, defendant inserted his penis in
Carla's vagina and, after a while, told her to turn around.
According to Carla's in-court testimony, which was related through
an interpreter, defendant "tried" to put his penis in her rectum,
but he "didn't last very long."
Before leaving on foot, the two men threatened Carla that if
she went to the police, they would kill her and her children. When
the men were gone, Carla went back to her car, found her keys, and
drove away. She spotted police officers at a gas station and told
them about the attack. The officers recognized Carla as a woman
who had been reported as missing by her husband when she did not
return home from work at the expected time.
Carla was taken to a hospital where a nurse and a doctor
administered a sexual assault examination. Vaginal, anal, and oral
swabs were taken from Carla. Sperm was found on the vaginal and
anal swabs. Through subsequent testing, authorities learned that
sperm on the vaginal and anal swabs matched defendant's DNA
profile. The probability that the source of the sperm was a memberof the African-American population, other than defendant, was
approximately 1 in 3.05 quadrillion.
After defendant was arrested in June 2005, he gave a statement
to the police. Defendant told detectives that, with Nicholas
Johnson holding the gun, the two men robbed the victim, put her in
the trunk of the car, and drove her to an abandoned house. He
admitted to watching as Johnson forced the victim to engage in
fellatio and intercourse. Defendant admitted that he too had
intercourse with the victim against her will, stating that he
joined in because he was intoxicated.
In July 2005, defendant was indicted on the following charges:
one count of robbery with a dangerous weapon; one count of first
degree kidnapping; two counts of first degree rape; and three
counts of first degree sexual offense based on acts of fellatio,
anal intercourse, and digital penetration. Following a jury trial
in February and March 2006 in Mecklenburg County Superior Court,
defendant was convicted of one count of robbery with a dangerous
weapon, one count of second degree kidnapping, first degree rape by
acting in concert with another person, first degree rape as the
principal, first degree sexual offense by fellatio, first degree
sexual offense by anal intercourse, and first degree sexual offense
by digital penetration.
The trial court sentenced defendant to a presumptive range
term of 288 to 355 months for first degree rape as a principal,
followed by consecutive presumptive range terms of 77 to 102 months
for robbery with a dangerous weapon, 29 to 44 months for seconddegree kidnapping, and 230 to 285 months for first degree rape by
acting in concert. In addition, the court imposed a presumptive
range sentence of 288 to 355 months for first degree sexual offense
by anal intercourse to run consecutive to the sentence for first
degree rape by acting in concert. Finally, the court imposed two
presumptive range sentences of 230 to 285 months for first degree
sexual offense by fellatio and for first degree sexual offense by
digital penetration, with the sentences running concurrently with
each other, but consecutive to the sentence for first degree sexual
offense by anal intercourse. The trial court also ordered
defendant to pay $2,300.52 in restitution to the victim, noting
that defendant and Nicholas Johnson were to be held jointly and
severally liable for rendering payment. Defendant gave timely
notice of appeal to this Court.
 Defendant first argues that the trial court erred in
denying his motion to dismiss the charges of first degree rape and
first degree sexual offense by anal intercourse because there was
insufficient evidence showing that defendant employed or displayed
a dangerous weapon during commission of these offenses. Both rape
and sexual offense crimes are elevated to the first degree when the
actor "[e]mploys or displays a dangerous or deadly weapon or an
article which the other person reasonably believes to be a
dangerous or deadly weapon." N.C. Gen. Stat. §§ 14-27.2(a)(2)(a),
-27.4(a)(2)(a) (2005). Defendant asserts that our prior decision in State v. Roberts
176 N.C. App. 159, 163-64, 625 S.E.2d 846, 850 (2006), is
controlling. In Roberts
, we held that when a defendant is charged
with first degree sexual offense as a principal and not on the
theory of acting in concert or aiding and abetting, "the evidence
must support a finding that defendant personally employed or
displayed a dangerous or deadly weapon in the commission of the
sexual offense." Id.
at 164, 625 S.E.2d at 850. See also State v.
, 345 N.C. 119, 123, 478 S.E.2d 507, 510 (1996) (noting that
"in the absence of an acting in concert instruction, the State must
prove that the defendant committed each element of the offense").
In this case, the indictments charging defendant with first
degree rape as a principal and first degree sexual offense by anal
intercourse alleged that defendant committed the acts while
"displaying a handgun, a dangerous and deadly weapon . . . ." When
the trial judge instructed the jury on each of those charges, he
instructed that the jury needed to find, as a requisite element of
the offense, that defendant employed or displayed a dangerous or
deadly weapon. The judge did not, with respect to those two
charges, provide any instruction that would have allowed the jury
to convict defendant for "acting in concert" with Nicholas Johnson.
 We agree with defendant that Roberts
is controlling under
these facts. Indeed, the State, in its brief, concedes that it is
unable to distinguish Roberts
. The State nevertheless argues that
defendant's argument is procedurally barred because his motion todismiss and assignment of error were "broadside" and, therefore,
insufficient under our appellate rules. We disagree.
At trial, defendant moved to dismiss all the charges at the
close of the State's evidence and at the close of all the evidence,
and thus he sufficiently preserved the denial of his motion for
appellate review under N.C.R. App. P. 10(b)(3). Although defendant
provided no specific reasoning to support the motion to dismiss, he
was not required to do so, since it was apparent from the context
that he was moving to dismiss all the charges based on the
insufficiency of the evidence. See
N.C.R. App. P. 10(b)(1) ("In
order to preserve a question for appellate review, a party must
have presented to the trial court a timely request, objection or
motion, stating the specific grounds for the ruling the party
desired the court to make if the specific grounds were not apparent
from the context
." (emphasis added)). See also State v. Mueller
184 N.C. App. 553, 559, 647 S.E.2d 440, 446 (2007) (rejecting
State's argument that defendant only preserved right to appeal
denial of motion to dismiss with respect to charges for which
defendant provided specific argument to trial court and holding
that defendant "did preserve his right to appeal all of the
convictions before us based upon an insufficiency of the evidence
to support each conviction").
Defendant then assigned error to "[t]he trial court's denial
of defendant's motions to dismiss the charges on the grounds that
the evidence was insufficient to prove each and every element of
the crimes charged beyond a reasonable doubt." This assignment oferror is adequate under N.C.R. App. P. 10(c)(1), which specifies
that "[e]ach assignment of error shall, so far as practicable, be
confined to a single issue of law; and shall state plainly,
concisely and without argumentation the legal basis upon which
error is assigned." Defendant's assignment of error is confined to
a single issue of law _ the appropriateness of the denial of
defendants' motions to dismiss at the close of the State's evidence
and the close of all the evidence _ and specifies the legal basis
for the assignment of error. We see no reasonable basis for
requiring criminal defendants to include anything more in an
assignment of error addressing the sufficiency of the evidence.
Indeed, the requirement sought by the State would amount to a
significant departure from prior appellate practice _ such a change
should be imposed only prospectively and only by our Supreme Court.
Since the issue is properly before this Court and the record
contains no evidence showing defendant's personal use or display of
a dangerous weapon, "[t]he evidence is insufficient to permit a
reasonable jury to convict defendant of [the] first degree"
offenses for which no acting in concert instruction was given.
, 176 N.C. App. at 164, 625 S.E.2d at 850. We, therefore,
vacate the judgments for first degree rape as a principal and first
degree sexual offense based on anal intercourse. Since, however,
the jury necessarily determined that defendant's conduct satisfied
the elements of second degree rape and second degree sexual offense
by anal intercourse, we remand to the trial court with instructionsto enter judgment for second degree rape and second degree sexual
offense. See id.
 In his next argument, defendant challenges the trial
court's instructions to the jury regarding the second charge of
first degree rape based on "acting in concert with someone else."
In the final mandate with respect to this "acting in concert"
charge, the trial court stated:
Now members of the jury, I charge you
therefore, that if you find, beyond a
reasonable doubt, that on or about the alleged
date, the Defendant acting either by himself
or acting with
[sic] together with someone
, members of the jury, engaged in vaginal
intercourse with the victim, and that he did
so by force or threat of force, and that this
was sufficient to overcome any resistance
which the victim might make, and that the
victim did not consent, and it was against her
will, and that the Defendant employed or
displayed a weapon, members of the jury, of a
dangerous or deadly weapon, then it would be
your duty to return a verdict of guilty of
first degree rape, members of the jury, by
acting in concert with someone else.
(Emphasis added.) Defendant contends that the trial court erred in
this instruction by referring to guilt both as a principal and by
acting in concert. Defendant's trial counsel did not object to
this instruction and, therefore, defendant asks that we review for
plain error. See
N.C.R. App. P. 10(c)(4) ("In criminal cases, a
question which was not preserved by objection noted at trial . . .
may be made the basis of an assignment of error where the judicial
action questioned is specifically and distinctly contended to
amount to plain error."). In support of his argument that the challenged jury
instruction constitutes plain error, defendant relies upon State v.
, 145 N.C. App. 483, 487, 549 S.E.2d 908, 911 (2001). In
, as in this case, the defendant sexually assaulted his
victims with the participation of an accomplice. The Graham
defendant was tried on multiple charges based both on his own
individual conduct and on the theory of "acting in concert" with
the accomplice. When instructing the jurors on the offenses based
only on "acting in concert," the trial court directed the jury: "So
I charge that if you find from the evidence beyond a reasonable
doubt that on or about June 13th, 1997, the defendant acting either
or acting together with [the accomplice] committed these
offenses, then you would find him guilty." Id.
at 486, 549 S.E.2d
at 911. We held that the trial court erred in giving this
The State contends the foregoing
instruction was proper because it was taken
from the pattern jury instruction for acting
in concert. However, defendant correctly
asserts that the cited instruction allowed the
jury to convict him twice for the same crime.
To be precise, the jury instruction allowed
the jury to convict defendant based on the
theory of acting in concert regardless of
whether the jury believed that defendant had
acted together with [the accomplice] as [the
accomplice] committed the offense, or believed
that defendant committed the offense acting
alone. Since defendant was separately
convicted for all of the same offenses based
on his own actions, the cited jury
instructions allowed defendant to be convicted
twice for the same offense, and thus violated
his rights under the Fifth and Fourteenth
Amendments to the United States Constitution
and under Article I, § 19, of the North
Carolina Constitution to be free from doublejeopardy. Thus, use of the pattern
instructions without appropriate amendment
under the circumstances of this particular
case rendered the charge confusing.
at 487, 549 S.E.2d at 911 (internal citations omitted).
Since, like here, the defendant in Graham
did not object to
the instruction at trial, the Court was required to determine
whether the error constituted plain error. The Court held:
"[W]here the trial court instructed the jury in a manner such that
the jury was allowed to convict defendant twice for the same
offense, fundamental error occurred
. Defendant is therefore
entitled to a new trial with corrected jury instructions for the
crimes with which he was charged on the basis of acting in concert
with [the accomplice]." Id.
The holding in Graham
is directly applicable to this case.
Defendant was tried on two counts of first degree rape, one for his
own conduct and one for acting in concert with Nicholas Johnson.
The jury instruction in this case is virtually indistinguishable
from the instruction in Graham
and effectively "allowed the jury to
convict [defendant] twice for the same crime." Id.
State and the dissent seek to distinguish Graham
on the grounds
that the jury instruction _ even if erroneous _ was not
sufficiently prejudicial to have a probable impact on the jury's
's holding that such an error was "fundamental" is
controlling and renders immaterial any consideration whether the
jury's verdict was affected.
We are barred by controlling Supreme Court authority from
adopting the dissent's suggestion that, for purposes of plain erroranalysis, "[m]erely labeling an error as 'fundamental' does not
relieve this Court of the obligation to review the error for
harmlessness." In State v. Bishop
, 346 N.C. 365, 385, 488 S.E.2d
769, 779 (1997), with now Chief Justice Parker writing for the
Court, the Supreme Court specifically held: To successfully
establish plain error, defendant must demonstrate "(i) that a
different result probably would have been reached but for the error
or (ii) that the error was so fundamental as to result in a
miscarriage of justice or denial of a fair trial."
This holding arose out of prior decisions by the Supreme Court
also indicating that plain error may be established by either
two methods, including showing
that a different result would
probably have been reached or
that the error was sufficiently
fundamental. See, e.g.
, State v. Black
, 308 N.C. 736, 740-41, 303
S.E.2d 804, 806-07 (1983) (accord). Indeed, the Supreme Court has
since repeated this bifurcated standard in State v. Jones
, 358 N.C.
330, 346, 595 S.E.2d 124, 135 ("Under the plain error standard of
review, defendant has the burden of showing: '(i) that a different
result probably would have been reached but for the error or (ii)
that the error was so fundamental as to result in a miscarriage of
justice or denial of a fair trial.'" (quoting Bishop
, 346 N.C. at
385, 488 S.E.2d at 779)), cert. denied
, 534 U.S. 1023, 160 L. Ed.
2d 500, 125 S. Ct. 659 (2004). See also State v. Anderson
N.C. 136, 142, 558 S.E.2d 87, 92 (2002) (accord); State v. Braxton,
352 N.C. 158, 197, 531 S.E.2d 428, 451 (2000) (accord), cert.
, 531 U.S. 1130, 148 L. Ed. 2d 797, 121 S. Ct. 890 (2001).
The dissent never addresses the standard set out in Bishop
, and other cases. We are bound by
that articulation until the Supreme Court holds otherwise. Under
those opinions, an error that is so fundamental as to result in a
miscarriage of justice constitutes plain error. Graham
specifically held that the type of jury instruction used in this
case constitutes just such a fundamental error. We are bound by
Accordingly, consistent with Graham
, we hold that
defendant is entitled to a new trial on the charge of first degree
rape by acting in concert with someone else.
 Defendant further contends that the trial court erred in
its instructions by failing to instruct the jury regarding
"attempt" in connection with the charge of first degree sexual
offense by anal intercourse. Specifically, defendant argues that
an instruction on attempted first degree sexual offense was
required because there was conflicting evidence on the crucial
element of anal penetration, and, as a result, the jury could have
found him guilty of the attempted offense although acquitting him
of the completed offense. Defendant acknowledges that his trial
counsel failed to request such an instruction, but argues on appeal
that the trial court committed plain error. Our review of this
question is, therefore, limited to a plain error analysis. See
N.C.R. App. P. 10(c)(4).
"A trial court must submit a lesser included offense
instruction if the evidence would permit a jury rationally to finddefendant guilty of the lesser offense and acquit him of the
greater." State v. Johnson
, 317 N.C. 417, 436, 347 S.E.2d 7, 18
(1986), superseded by statute on other grounds as stated by State
, 335 N.C. 567, 440 S.E.2d 797, cert. denied
, 513 U.S. 898,
130 L. Ed. 2d 174, 115 S. Ct. 253 (1994). If the State, as in this
case, seeks to convict a defendant of only the greater offense of
first degree sexual offense, "the trial court needs to present an
instruction on the lesser included offense [of attempted first
degree sexual offense] only when the 'defendant presents evidence
thereof or when the State's evidence is conflicting.'" State v.
, 124 N.C. App. 296, 307, 477 S.E.2d 462, 467 (1996) (quoting
State v. Ward
, 118 N.C. App. 389, 398, 455 S.E.2d 666, 671 (1995));
see also Johnson
, 317 N.C. at 436, 347 S.E.2d at 18 ("Instructions
pertaining to attempted first degree rape as a lesser included
offense of first degree rape are warranted when the evidence
pertaining to the crucial element of penetration conflicts or when,
from the evidence presented, the jury may draw conflicting
Defendant relies principally on the victim's direct-
examination testimony to argue that an attempt instruction was
warranted. As reflected in the transcript, her testimony regarding
the anal intercourse offense was brief and somewhat ambiguous:
Q And you say he stuck his penis in
your private. Do you mean vagina when you say
Q And then what happened?
A He lasted a short time, and then he
told me to turn around. He tried to put his
penis into my rectum, but he didn't try. He
didn't last very long.
Q And then what happened?
A They left me there . . . .
(Emphasis added.) Based on this testimony, defendant argues the
jury would likely have acquitted him of the greater offense
requiring completion of the act of anal intercourse and convicted
him of only attempted anal intercourse had the jury been given an
"attempt" instruction. The victim's testimony does not, however,
necessarily mean that the State's evidence of penetration was
In State v. Williams
, 314 N.C. 337, 351, 333 S.E.2d 708, 718
(1985) (emphasis omitted), the defendant argued that his statement
to police that he merely "struggled to penetrate without an
erection" cast doubt on whether the act ever occurred. The Supreme
Court observed, however, that "[t]he simple fact that a person
struggles to accomplish some feat, taken by itself, implies neither
success nor failure. The fact that defendant 'struggled to
penetrate' is far from equivocal and in no way negates a completed
at 352, 333 S.E.2d at 718. The Court concluded that the
victim's unequivocal testimony that the defendant completed the
act, in conjunction with the fact that the defendant's testimony
did not actually deny penetration, "compelled the instruction given
by the trial court," which did not include an attempt instruction.
Defendant argues, however, that the evidence here was similar
to that in Johnson
, in which the Supreme Court held the "evidence
create[d] a conflict as to whether penetration occurred," and,
thus, the trial court "committed reversible error by failing to
instruct the jury on the lesser included offense of attempted first
degree rape." 317 N.C. at 436, 347 S.E.2d at 18. In Johnson
although the victim testified on direct examination that the
defendant had penetrated her vagina, she admitted on cross-
examination to giving a statement to the police that "the man
'tried to push it in but couldn't.'" Id.
A doctor further
testified that when he examined the victim, he found her to have an
unusually narrow vagina and that the victim had told him that she
had "'felt pressure but not penetration.'" Id.
We believe this case is controlled by Williams
. Carla's testimony paralleled that of the defendant in
, with her testimony indicating only that defendant
struggled in engaging in anal intercourse; she never specifically
excluded penetration. In addition to this testimony, the State
presented DNA evidence that defendant's sperm was found on the anal
swab collected from Carla following the attack _ unequivocal
evidence of penetration equivalent to the victim's testimony in
(See footnote 2)
Given the DNA evidence in combination with Carla'stestimony, we hold that Williams
establishes that the trial court
did not err in failing to instruct the jury regarding "attempt."
See also State v. Rhinehart
, 322 N.C. 53, 58-60, 366 S.E.2d 429,
432-33 (1988) (trial court did not err in refusing to give attempt
instruction because victim's statements that defendant "tried to
suck" victim's penis provided no basis "from which the jury could
reasonably have found that defendant committed merely the lesser
included offense of attempted first-degree sexual offense,"
especially when victim's "emotional statements in the minutes
following the incident that defendant had 'tried to suck' his penis
pale in significance" to other strong evidence of completed act).
 In a separate assignment of error, defendant also argues
that he was denied effective assistance of counsel insofar as his
trial counsel failed to request that the jury be instructed on the
offense of attempted first degree sexual offense. To establish a
claim of ineffective assistance of counsel, a defendant must show
(1) his counsel's performance was deficient, and (2) his defense
was prejudiced by counsel's deficient performance. State v.
, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985). Our
conclusion that the trial court was not required to provide an
instruction on the attempted crime _ even if it had been requested
to do so _ necessarily establishes that defendant was not denied
effective assistance of counsel.
 Defendant next argues that the trial court "erred or
committed plain error" when, during sentencing, it improperlyconsidered the fact that he refused a plea offer and chose instead
to exercise his right to a jury trial. The parties dispute whether
defendant preserved this argument for appellate review. Although
our appellate rules generally require a party to "present to the
trial court a timely request, objection or motion," N.C.R. App. P.
10(b)(1), in order to preserve an issue for appeal, the Supreme
Court has held that this rule "does not have any application" when
a defendant seeks to challenge the finding of an aggravating factor
at his sentencing, even though he did not overtly object when the
finding was made. State v. Canady
, 330 N.C. 398, 401, 410 S.E.2d
875, 878 (1991). This Court has subsequently relied on Canady
the proposition that "an error at sentencing is not considered an
error at trial for the purpose of . . . Rule 10(b)(1) of the North
Carolina Rules of Appellate Procedure." State v. Hargett
, 157 N.C.
App. 90, 92, 577 S.E.2d 703, 705 (2003). Accord State v. McQueen
181 N.C. App. 417, 420-21, 639 S.E.2d 131, 133, appeal dismissed
and disc. review denied
, 361 N.C. 365, 646 S.E.2d 535 (2007); State
, 171 N.C. App. 697, 703, 615 S.E.2d 417, 422 (2005).
Accordingly, defendant's contentions regarding sentencing are
properly before the Court.
Even though "[a] sentence within the statutory limit will be
presumed regular and valid[,] . . . such a presumption is not
conclusive." State v. Boone
, 293 N.C. 702, 712, 239 S.E.2d 459,
465 (1977). "If the record discloses that the court considered
irrelevant and improper matter in determining the severity of the
sentence, the presumption of regularity is overcome, and thesentence is in violation of defendant's rights." Id.
Court has further stated: "Where it can reasonably be inferred from
the language of the trial judge that the sentence was imposed at
least in part because defendant did not agree to a plea offer by
the state and insisted on a trial by jury, defendant's
constitutional right to trial by jury has been abridged, and a new
sentencing hearing must result." State v. Cannon
, 326 N.C. 37, 39,
387 S.E.2d 450, 451 (1990).
Here, defendant relies on references of the trial judge to the
fact that defendant rejected an offer by the State to grant
concessions on charges or sentencing if defendant would testify
against Johnson. Defendant's argument, however, fails to take into
account the context in which the trial judge made his remarks,
including the fact that the trial judge was responding to
statements made by defendant.
Before imposition of sentence, defendant accepted the judge's
invitation to address the court personally and stated:
Concerning the prior convictions of my life, I
was young and misguided, without a father in
the home. Played a big influence in my
Me and my mother and three kids, and I
was just led by the wrong crowd.
I was young when I had responsibility in
crime, and I deeply regret it. That's in the
past. I can't dwell on the past. I just want
to go forward.
But prior to this situation, on the
situation with the victim, sorry that it
happened to her, and wish I wouldn't have been
involved in the way I was involved in it.
I just hurt my [sic] so bad, that I feel
like I was robbed out of a decent life.
Forgive me, Your Honor.
. . . .
. . . I apologize for taking up your
time, the time of the jurors and everybody's
time. What's done, I can't go back to the
. . . .
I just wish that, you know, I had another
opportunity to prove myself that I was a
honorable law abiding, caring, loving man
[and] citizen, but you know, there's hope.
Look hopful [sic] to the bright future; that's
all. . . .
. . . .
I wish that I would have been perceived
as a man of who I am in my heart rather than a
piece of paper.
I hate being judged by paper, cause I
know who I am. I'm not a criminal, definitely
not a rapist.
Immediately following defendant's statement, the trial judge
THE COURT: Thank you, sir. My
recollection is from [sic].
My pretrial conference [sic] that the
Defendant was afforded an opportunity, even as
late as last week if I'm not mistaken, to
testify against Nicholas Johnson, and receive
in [sic] concession on the charges and/or
sentences, is that correct?
[PROSECUTOR]: That's correct, Your Honor,
THE COURT: He chose to reject that offer,
which was made even as late as last week.
The crimes for which this Defendant had
been convicted are violent, and are serious.
I think I'll reserve further comment.
The evidence is all of record in this case.
Stand up please, Mr. Person.
Following these remarks, the trial court went on to pronounce the
Given this context, we do not believe that it can be
reasonably inferred that the judge improperly considered
defendant's election to go to trial in sentencing defendant. Our
review of the above remarks indicates that the judge was commenting
instead on defendant's lack of credibility when claiming he wanted
"another opportunity to prove" himself as an "honorable law
abiding, caring, loving man [and] citizen" and that he had been
misled by "the wrong crowd." The judge's remarks point out that
defendant was given precisely the opportunity he supposedly desired
when the State offered to agree to certain concessions in exchange
for his testimony against Nicholas Johnson. The trial judge could
reasonably determine _ as his comments indicate he did _ that the
sincerity of defendant's statements was in serious doubt given his
refusal to testify against someone who was part of "the wrong
In short, based on the record, we hold that defendant was not
more seriously punished as a result of his exercise of his
constitutional right to trial by jury. See State v. Gantt
N.C. App. 265, 272, 588 S.E.2d 893, 898 (2003) ("Although we
disapprove of the trial court's reference to defendant's failure to
enter a plea agreement, 'we cannot, under the facts of this case,
say that defendant was prejudiced or that defendant was moreseverely punished because he exercised his constitutional right to
trial by jury.'" (quoting State v. Bright
, 301 N.C. 243, 262, 271
S.E.2d 368, 380 (1980))), disc. review denied
, 358 N.C. 157, 593
S.E.2d 83 (2004). This assignment of error is overruled.
 Finally, we turn to defendant's argument that the trial
court committed error in ordering restitution to the victim in the
amount of $2,300.52. Even though defendant did not voice an
objection to restitution at sentencing, this assignment of error is
fully reviewable on appeal. See State v. Shelton
, 167 N.C. App.
225, 233, 605 S.E.2d 228, 233 (2004) ("While defendant did not
specifically object to the trial court's entry of an award of
restitution, this issue is deemed preserved for appellate review
under N.C. Gen. Stat. § 15A-1446(d)(18).").
N.C. Gen. Stat. § 15A-1340.36 (2005) provides in relevant
(a) In determining the amount of
restitution to be made, the court shall take
into consideration the resources of the
defendant including all real and personal
property owned by the defendant and the income
derived from the property, the defendant's
ability to earn, the defendant's obligation to
support dependents, and any other matters that
pertain to the defendant's ability to make
restitution, but the court is not required to
make findings of fact or conclusions of law on
these matters. The amount of restitution must
be limited to that supported by the record,
and the court may order partial restitution
when it appears that the damage or loss caused
by the offense is greater than that which the
defendant is able to pay. If the court orders
partial restitution, the court shall state on
the record the reasons for such an order.
Defendant contends that the trial court violated this statute by
failing to consider any of the factors relating to defendant's
ability to pay the restitution amount.
During the hearing on sentencing, the prosecutor requested
restitution in the amount of $2,300.52 in order to compensate the
victim for her medical expenses related to the attack and presented
the court with a copy of the victim's medical bills. After setting
out the terms of imprisonment, the trial court then stated that it
was "imposing a civil judgment or lien against the Defendant in the
amount of $2,300.52 in favor of [the victim] by reason of
restitution." The court later indicated that liability for the
restitution was joint and several with Nicholas Johnson. On the
judgment for first degree rape, 05 CRS 227174, and only that
judgment, the court indicated that restitution was awarded in the
amount of $2,300.52 and a civil lien imposed with joint and several
liability with the co-defendant. The court also recommended
payment of restitution as a condition of post-release supervision,
if applicable, or from work release earnings, if applicable.
Because defendant was convicted of a B1 felony, the victim had
"the right to receive restitution as ordered by the court . . . ."
N.C. Gen. Stat. § 15A-834(b) (2005). Under N.C. Gen. Stat. § 15A-
1340.34 (2005), the court was, therefore, required to order "that
the defendant make restitution to the victim . . . for any injuries
or damages arising directly and proximately out of the offense
committed by the defendant." The court's order of restitution toreimburse the victim for her medical expenses resulting from the
rape complied with this statute.
While the court was also required by N.C. Gen. Stat. § 15A-
1340.36(a) to consider various factors regarding defendant's
ability to pay in determining the precise amount of the
restitution, the statute also specifically provides that "the court
is not required to make findings of fact or conclusions of law on
these matters." Defendant, however, cites to State v. Mucci
N.C. App. 615, 626, 594 S.E.2d 411, 419 (2004), in which this Court
held: "Although the statute expressly does not require the trial
court to make findings of fact or conclusions of law on the
factors, the record in this case reveals that the trial court did
not consider any of the factors related to defendant's ability to
pay the full amount of restitution and thus this case must be
remanded for a new sentencing hearing."
A key factor in Mucci
, however, as with the cases upon which
it relied, was the large amount of restitution and the fact that
common sense dictated that the defendant could not pay the amount
ordered. In Mucci
, the court conditioned probation on the
defendant's paying "full restitution of over $26,000.00 in addition
to performing twenty-five hours per week of community service for
the entire probationary period [of 36 months], for a total of 3,600
hours, while remaining gainfully employed and paying $4,000.00 in
fines plus $500.00 in costs . . . ." Id.
at 627, 594 S.E.2d at
relied upon State v. Smith
, 90 N.C. App. 161, 368
S.E.2d 33 (1988), aff'd per curiam
, 323 N.C. 703, 374 S.E.2d 866,cert. denied
, 490 U.S. 1100, 104 L. Ed. 2d 1007, 109 S. Ct. 2453
(1989), and State v. Hayes
, 113 N.C. App. 172, 437 S.E.2d 717
. In Smith
, the trial court conditioned the defendant's
probation on payment of $500,000.00, with the result that the
defendant would have to pay a minimum of $62,500.00 per year (if
her probation were extended). 90 N.C. App. at 168, 368 S.E.2d at
38. This Court observed: "Common sense dictates that only a person
of substantial means could comply with such a requirement." Id.
Likewise, in Hayes
, when the trial court ordered restitution in the
amount of $208,899.00, payable over a five-year probationary
period, this Court concluded: "As in Smith
, common sense dictates
that this defendant will be unable to pay this amount." 113 N.C.
App. at 175, 437 S.E.2d at 719.
, this Court distinguished our Supreme Court's
decision in State v. Hunter
, 315 N.C. 371, 338 S.E.2d 99 (1986),
"in which the Court upheld a restitution order under similar
circumstances" to those of Smith
, 90 N.C. App. at 168, 368
S.E.2d at 38. The Court pointed out that "[i]n Hunter
the amount of restitution was only $919.25." Id.
We believe this case falls within the scope of Hunter
, 315 N.C. at 376, 338 S.E.2d at 103 (upholding restitution
award of $919.25 when trial judge "knew defendant's age, her
relationship to the victim, that she resided with her mother, that
she was indigent for legal purposes, and that the victim's family
had insurance of an uncertain amount," even though court did not
expressly refer to defendant's ability to pay). The restitution isonly $2,300.52, and the record contains no expressed mandatory time
limitation for its payment. In contrast to Mucci
, this relatively modest amount of restitution and the terms
of its payment are not such as to lead to a "common sense"
conclusion that the trial court did not consider defendant's
ability to pay. Indeed, defendant did not suggest below that he
lacked the ability to pay this amount. See State v. Riley
N.C. App. 346, 349, 605 S.E.2d 212, 215 (2004) ("Because [the
defendant] failed to present evidence showing that she would not be
able to make the required restitution payments, we find no
error."). Defendant has cited no decision in which a North
Carolina appellate court has reversed such a moderate award of
restitution for failure to consider the defendant's ability to pay.
Under the circumstances presented to us, we decline to do so in
In summary, we remand to the trial court for entry of judgment
on second degree rape (as a principal) and second degree sexual
offense based on anal intercourse. The trial court must conduct a
new sentencing hearing with respect to those two offenses. As for
the charge of first degree rape by acting in concert with someone
else, we hold that defendant is entitled to a new trial. We find
no error regarding defendant's remaining convictions and sentences.
Remanded in part; new trial in part; no error in part.
Judge CALABRIA concurs. Judge JACKSON concurs in part, concurs in the result only in
part and dissents in part in a separate agreement.
JACKSON, Judge, concurring in part, concurring in result only
in part and dissenting in part.
I concur with sections I, III, and IV of the majority's
opinion, and concur only in the result of section V. However, for
the reasons stated below, I must respectfully dissent from Part II
of the majority's opinion which concludes that defendant is
entitled to a new trial on the charge of first degree rape by
acting in concert with someone else. I would hold no plain error.
Although I agree that the majority's reliance on State v.
Graham, 145 N.C. App. 483, 487, 549 S.E.2d 908, 911 (2001), is
appropriate inasmuch as it holds that the pattern jury instruction
on acting in concert leaves open the possibility that defendant is
being convicted twice for the same conduct, I disagree with the
majority's contention that because Graham labeled this error
fundamental, whether or not the error is harmless is immaterial.
The North Carolina Supreme Court adopted the plain error rule
in State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983),
the plain error rule . . . is always to be
applied cautiously and only in the exceptional
case where, after reviewing the entire record,
it can be said the claimed error is a
fundamental error, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done, or where [the
error] is grave error which amounts to adenial of a fundamental right of the accused,
or the error has 'resulted in a miscarriage
of justice or in the denial to appellant of a
fair trial' or where the error is such as to
seriously affect the fairness, integrity or
public reputation of judicial proceedings or
where it can be fairly said the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.
Id. (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th
Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)
(footnotes omitted) (emphasis in original)). Odom continued, In
deciding whether a defect in the jury instruction constitutes
'plain error,' the appellate court must examine the entire record
and determine if the instructional error had a probable impact on
the jury's finding of guilt. Odom, 307 N.C. at 661, 300 S.E.2d at
378-79 (citing United States v. Jackson, 569 F.2d 1003 (7th Cir.),
cert. denied, 437 U.S. 907, 57 L. Ed. 2d 1137 (1978)). That is,
[b]efore deciding that an error by the trial court amounts to
'plain error,' the appellate court must be convinced that absent
the error the jury probably would have reached a different
verdict. State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83
(1986) (citing Odom, 307 N.C. at 661, 300 S.E.2d at 378-79).
Merely labeling an error as fundamental does not relieve
this Court of the obligation to review the error for harmlessness.
The United States Supreme Court has applied harmless error analysis
to a myraid of constitutional errors affecting fundamental
rights. See Arizona v. Fulminante, 499 U.S. 279, 306, 113 L. Ed.
2d 302, 329 (1991). In Fulminante, the Supreme Court listed the
following exemplary cases: Clemons v. Mississippi, 494 U.S. 738, 752-754
(1990) (unconstitutionally overbroad jury
instructions at the sentencing stage of a
capital case); Satterwhite v. Texas, 486 U.S.
249 (1988) (admission of evidence at the
sentencing stage of a capital case in
violation of the Sixth Amendment Counsel
Clause); Carella v. California, 491 U.S. 263,
266 (1989) (jury instruction containing an
erroneous conclusive presumption); Pope v.
Illinois, 481 U.S. 497, 501-504 (1987) (jury
instruction misstating an element of the
offense); Rose v. Clark, 478 U.S. 570 (1986)
(jury instruction containing an erroneous
rebuttable presumption); Crane v. Kentucky,
476 U.S. 683, 691 (1986) (erroneous exclusion
of defendant's testimony regarding the
circumstances of his confession); Delaware v.
Van Arsdall, 475 U.S. 673 (1986) (restriction
on a defendant's right to cross-examine a
witness for bias in violation of the Sixth
Amendment Confrontation Clause); Rushen v.
Spain, 464 U.S. 114, 117-118, and n. 2 (1983)
(denial of a defendant's right to be present
at trial); United States v. Hasting, 461 U.S.
499 (1983) (improper comment on defendant's
silence at trial, in violation of the Fifth
Amendment Self-Incrimination Clause); Hopper
v. Evans, 456 U.S. 605 (1982) (statute
improperly forbidding trial court's giving a
jury instruction on a lesser included offense
in a capital case in violation of the Due
Process Clause); Kentucky v. Whorton, 441 U.S.
786 (1979) (failure to instruct the jury on
the presumption of innocence); Moore v.
Illinois, 434 U.S. 220, 232 (1977) (admission
of identification evidence in violation of the
Sixth Amendment Confrontation Clause); Brown
v. United States, 411 U.S. 223, 231-232 (1973)
(admission of the out-of-court statement of a
nontestifying codefendant in violation of the
Sixth Amendment Confrontation Clause); Milton
v. Wainwright, 407 U.S. 371 (1972) (confession
obtained in violation of Massiah v. United
States, 377 U.S. 201 (1964)); Chambers v.
Maroney, 399 U.S. 42, 52-53 (1970) (admission
of evidence obtained in violation of the
Fourth Amendment); Coleman v. Alabama, 399
U.S. 1, 10-11 (1970) (denial of counsel at a
preliminary hearing in violation of the Sixth
Amendment Counsel Clause).
Id. at 306-07, 113 L. Ed. 2d at 329-30 (parallel citations
omitted). We need only look to this State's recent examination of
sentencing errors in violation of Blakely v. Washington, 542 U.S.
296, 159 L. Ed. 2d 403 (2004), to realize that harmless error may
be applied in this case. See State v. Blackwell, 361 N.C. 41, 638
S.E.2d 452 (2006), cert. denied, ___ U.S. ___, 167 L. Ed. 2d 1114
(2007) (holding the trial court's, rather than the jury's, finding
of an aggravating factor was harmless beyond a reasonable doubt).
North Carolina appellate courts have denied harmless error
review when the errors were deemed structural, i.e., resulting
from a defect affecting the framework within which the trial
proceeds, rather than simply an error in the trial process itself.
Fulminante, 499 U.S. at 310, 113 L. Ed. 2d at 331.
The majority contends correctly that we are bound by North
Carolina Supreme Court precedent establishing a bifurcated standard
for plain error analysis. However, this bifurcated standard does
not foreclose a determination of whether the error impacted the
jury's verdict in this case. As recently as 15 December 2006, our
Supreme Court stated the following:
We find plain error only in exceptional cases
where, 'after reviewing the entire record, it
can be said the claimed error is a
fundamental error, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done.' Thus, the
appellate court must study the whole record to
determine if the error had such an impact on
the guilt determination, therefore
constituting plain error. Accordingly, we
must determine whether the jury would probably
have reached a different verdict if [the
error] had not [occurred].
State v. Hammett, 361 N.C. 92, 98, 637 S.E.2d 518, 522 (2006)
(citations omitted) (emphasis added). Clearly, our precedents
mandate review of the entire record in our determination as to
whether there is a fundamental error that requires reversal for
Had Graham labeled the use of the unaltered pattern jury
instruction for acting in concert which exposed the defendant to
the possibility of being twice convicted for the same conduct a
structural error, I would agree that a harmless error analysis is
irrelevant; however, this fundamental error is not structural.
Therefore, I would apply harmless error analysis in this case.
Further, Graham held, In this case, . . . fundamental error
occurred. Graham, 145 N.C. App. at 487, 549 S.E.2d at 911
(emphasis added). I believe this holding was limited to the facts
of Graham. In Graham, the State argued only that using pattern
jury instructions to instruct the jury does not constitute plain
error. The State did not argue that any error was harmless;
therefore, this Court did not apply a harmless error analysis.
In the case sub judice, the court went to great lengths to
make clear that one charge was for defendant's own conduct, while
the other was for acting in concert with Johnson. Although the
evidence supported an acting in concert instruction with respect to
defendant's individual activity towards the victim, the trial judge
elected not to give the instruction for the charge alleging
defendant's own conduct. The court proposed that the verdict sheet
for first degree rape by acting in concert read guilty of firstdegree rape by acting in concert with someone else. After giving
general jury instructions, the court went through each jury sheet,
pointing out that there were two counts of first degree rape. The
second charge is file number 05-CRS-227172, it reads differently
from the one I just read to you. The court explained that the
first verdict sheet simply says guilty of first degree rape or not
guilty, while the second says, guilty of first degree rape by
acting in concert with someone else. The court pointed out that
each legal instruction I give you relates only to that particular
charge. The court prefaced its instructions on the second rape
charge _ alleging acting in concert _ I'm going to give you the
law, and it's a little different. The court then instructed the
jury on first degree rape and acting in concert.
Notwithstanding the court's erroneous instruction, as the
State correctly argues, there was overwhelming evidence of
defendant's guilt as to both charges. The victim testified that
defendant watched while Johnson raped her and that defendant also
raped her. Defendant gave a taped confession in which he admitted
that he watched Johnson rape and sexually assault the victim, then
took Johnson up on his invitation to rape her himself. Defendant
admitted that they both had intercourse with her against her will,
and that she was in the same position when Johnson raped her as
when he raped her. At trial, defendant testified that he
remembered seeing Johnson have sex with her from behind. He
testified that after Johnson had sex with her, he took [his]
turn. There was DNA evidence that defendant's semen was found onswabs taken from both the victim's vagina and anus, which defendant
testified was there probably cause I had sex with her.
Given the evidence in this case, I would hold the erroneous
jury instruction was harmless beyond a reasonable doubt and that
the trial court's use of the unmodified pattern jury instruction
did not constitute plain error.