STATE OF NORTH CAROLINA
v
.
Robeson County
Nos. 02CRS11158-59
DEWEY GRACEAON SPRINKLE 02CRS11161
Attorney General Roy Cooper, by Assistant Attorney General
Jane Rankin Thompson, for the State.
Mercedes O. Chut for defendant.
McCULLOUGH, Judge.
On 29 December 2006, our Supreme Court entered an order
allowing the Attorney General's Petition for Discretionary Review
for the limited purpose of (1) vacating the portion of our opinion
ordering remand to the trial court for resentencing, and (2)
remanding this case to us for reconsideration in light of State v.
Timothy Earl Blackwell, ___ N.C. ___, ___ S.E.2d ___ (15 December
2006) (No. 490PA04-2). On 31 January 2007, we filed an order
stating that we will reconsider this case as directed by the order
of our Supreme Court without additional briefs or oral arguments.
Therefore, except as herein modified, the opinion we filed on 20
September 2005 remains in full force and effect.
Pursuant to a case which has subsequently
been withdrawn, our Supreme Court has treatederrors under Blakely as structural errors that
are reversible per se. State v. Allen, 359
N.C. 425, 449, 615 S.E.2d 256, 272 (2005),
withdrawn, 360 N.C. 569, 635 S.E.2d 899
(2006). However, in a recent case, Washington
v. Recuenco, ___ U.S. ___, 126 S. Ct. 2546,
165 L. Ed. 2d 466 (2006), the United States
Supreme Court held that “[f]ailure to submit a
sentencing factor to the jury . . . is not
structural error.” Id. at 2553, 165 L. Ed. 2d
at 477. Thereafter, our Supreme Court has held
in State v. Blackwell, ___ N.C. ___, [638]
S.E.2d [452] (2006), that according to
Recuenco, the failure to submit a sentencing
factor to the jury is subject to harmless
error review. Id. at ___, [638] S.E.2d at
[456].
State v. McQueen, ___ N.C. App. ___, ___ S.E.2d ___, ___ (16
January 2007) (No. COA06-203).
In the instant case, the trial court found defendant guilty of
two counts of taking indecent liberties with a child in 1999 and
one count of taking indecent liberties with a child in 2001. Then,
the trial court found, as an aggravating factor, that defendant
took advantage of a position of trust or confidence to commit the
offense. We determine the trial court's failure to submit this
sentencing factor to the jury was harmless error. During trial, the
State presented evidence that defendant molested his granddaughter
for many years starting when she was about five years old. Based
on the date of the offenses stated in the judgments, defendant's
granddaughter would have been nine years old and twelve years old
on the particular dates of the offenses. Further, testimony
provided during defendant's sentencing illustrated that the victim
loved and trusted defendant. Accordingly, it was harmless error for
the trial court to not submit this sentencing factor to the jury. No prejudicial error.
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).
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