Converted WP file 050254-2

Appeal by defendant from judgments dated 15 July 2004 by Judge Zoro J. Guice, Jr., in Superior Court, Macon County. Heard by this Court on 14 November 2005, and opinion filed 21 March 2006, finding sentencing error and remanding for resentencing. Remanded to this Court by order of the North Carolina Supreme Court for reconsideration in light of State v. Blackwell, 361 N.C. 41, 638 S.E.2d 452 (2006).

Attorney General Roy Cooper, by Assistant Attorney General Jay L. Osborne, for the State.

Melrose, Seago & Lay, P.A., by Nathan J. Earwood, for Defendant-Appellant.

McGEE, Judge.

    This case is before us on remand from the North Carolina Supreme Court to re-examine Defendant's sentencing in light of State v. Blackwell, 361 N.C. 41, 638 S.E.2d 452 (2006), cert. denied, ___ U.S. ___, 167 L. Ed. 2d 1114 (2007). During Defendant's sentencing hearing, the trial court found two aggravating factors in violation of Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, reh'g denied, 542 U.S. 961, 159 L. Ed. 2d851 (2004). We must now determine whether the trial court's Blakely error was harmless beyond a reasonable doubt.
    In the present case, the State's evidence tended to show that Defendant's grandmother, Genevieve Smith (Smith), was found in her home, badly beaten, on 27 December 2003. Smith suffered life- threatening injuries, including a punctured lung, a liver laceration, and a ruptured airway. The ruptured airway resulted in permanent damage to Smith's voice, requiring that she stop singing in her choir. Smith required treatment in several hospitals and medical care facilities for five months following the beating. Smith testified she believed Defendant was responsible for her beating and for stealing her car. Smith's son testified that as a result of the beating, Smith could no longer sing in her choir, required a cane to walk, and was almost always frightened.
    Additional witnesses testified to seeing Defendant in Smith's car the day after Smith's beating. An acquaintance of Defendant testified that Defendant admitted to the acquaintance that Defendant thought he had killed his grandmother. Several of the State's witnesses testified that some time after the night of the robbery, Defendant had confessed to them that he had killed or injured a family member.
    At trial, Defendant testified that he went to Smith's house with an acquaintance named "Chris" to steal Smith's car. Defendant stated that he and Chris were high on methamphetamine at the time and that Defendant needed a car to leave North Carolina because of a probation violation. Defendant admitted that he broke intoSmith's home, stole her car and some money, but denied beating her. Defendant testified that after he and Chris broke into Smith's house, Defendant grabbed Smith's car keys and $7.00, but that Chris was responsible for Smith's injuries. Defendant testified that he left the house while Chris was still inside.
    Defendant was convicted by a jury of (1) first-degree burglary; (2) assault inflicting serious bodily injury; (3) first- degree kidnapping; (4) injuring wires and/or other fixtures; (5) robbery with a dangerous weapon; (6) felony larceny; (7) felony possession of stolen goods; and (8) felonious breaking and entering. At the sentencing hearing, the State argued that the trial court should find the following aggravating factors: (1) that Defendant induced others to participate in the offense; (2) that the victim was very old; (3) that the victim suffered serious injury that was permanent and debilitating; and (4) that the offense was especially heinous, atrocious, or cruel. In response, Defendant requested that the trial court take into account that Defendant had lived on his own since he was fourteen years old, and that he had had a hard life. The trial court found two aggravating factors and sentenced Defendant in the aggravated range. The trial court found: (1) that the victim was very old; and (2) that the victim suffered serious injury that was permanent and debilitating.
    In Blakely, the United States Supreme Court held that "'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.'" Blakely, 542 U.S. at 301, 159 L. Ed. 2d at 412(quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455 (2000)). In Washington v. Recuenco, 548 U.S. ___, ___, 165 L. Ed. 2d 466, 477 (2006), the Court held that failure to submit a sentencing factor to the jury was not structural error, and was subject to harmless error review. In Blackwell, our Supreme Court applied harmless error review to a Blakely error, according to Neder v. United States, 527 U.S. 1, 9, 144 L. Ed. 2d 35, 47 (1999). The Court stated that Neder requires that we "determine from the record whether the evidence against [a] defendant [is] so 'overwhelming' and 'uncontroverted' that any rational fact-finder would have found the disputed aggravating factor beyond a reasonable doubt." Blackwell, 361 N.C. at 49, 638 S.E.2d at 458 (quoting Neder v. United States, 527 U.S. 1, 9, 144 L. Ed. 2d 35, 47 (1999)). To "avoid a conclusion that evidence of an aggravating factor is 'uncontroverted[,]' . . . [a] defendant must 'bring forth facts contesting the omitted element,' and must have 'raised evidence sufficient to support a contrary finding[.]'" Id. at 50, 638 S.E.2d at 458 (quoting Neder, 527 U.S. at 9, 19, 144 L. Ed. 2d at 49, 53).
    The evidence presented at trial with respect to Smith's age and the injuries she sustained was overwhelming and uncontroverted. The evidence showed that Smith was eighty-three years old at the time of the beating. The doctor who treated Smith testified extensively to the serious injuries Smith sustained in the attack. Further testimony established that Smith permanently lost the use of her normal voice and had trouble speaking, which the trial courtnoted was evident during Smith's in-court testimony. As to the aggravators found by the trial court, "the record contains [no] evidence that could rationally lead to a contrary finding[.]" Neder, 527 U.S. at 19, 144 L. Ed. 2d at 53. Defendant's defense focused on his allegation that Chris was responsible for Smith's beating, and Defendant's denial of responsibility for the beating. Defendant did not deny breaking into Smith's house, or stealing her car. Nor did Defendant deny the extent of Smith's injuries, or her age at the time of the beating. Based on these considerations, we conclude that the evidence against Defendant "was so 'overwhelming' and 'uncontroverted' that any rational fact-finder would have found the disputed aggravating factor beyond a reasonable doubt." Blackwell, 361 N.C. at 49, 638 S.E.2d at 458 (quoting Neder, 527 U.S. at 9, 144 L. Ed. 2d at 47). Defendant is not entitled to a new sentencing hearing.
    No prejudicial error.
    Chief Judge MARTIN and ELMORE concur.
    Report per Rule 30(e).

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