State v. Eure

301 S.E.2d 452 (1983)

STATE of North Carolina v. Wayne EURE.

No. 828SC1018.

Court of Appeals of North Carolina.

April 5, 1983.

*455 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Sarah C. Young, Raleigh, for the State.

John P. Edwards, Jr., Mount Olive, for defendant-appellant.

ARNOLD, Judge.

I. In-court identification The defendant first argues that the in-court identification of him by Dantzler should have been suppressed. He contends that because Dantzler said that Durham was the shorter of the two men who came into the store on the night of the crime, when Durham is actually taller than the defendant, his testimony is unreliable. We disagree.

First, we note that the three showings of photographs to Dantzler were proper. The trial judge conducted an extensive voir dire hearing on the defendant's motion to suppress and concluded that the photographic identification procedure was not so unnecessarily suggestive and conducive to irreparably mistake identity as to violate the defendant's right to due process of law.

Second, he also concluded that based on clear and convincing evidence, the in-court identification was of independent origin of any taint in the photographic showing. Because we find competent evidence to support both of his conclusions, they are conclusive on appeal. State v. Thompson, 303 N.C. 169, 172-73, 277 S.E.2d 431, 433-34 (1981).

As for any discrepancies in Dantzler's testimony about the relative heights of the defendant and Durham, those inconsistencies go to the weight rather than the competency of his testimony and are thus a matter for the jury. State v. Satterfield, 300 N.C. 621, 630, 268 S.E.2d 510, 517 (1980).

II. Motions to dismiss

The defendant next argues that his motions to dismiss should have been granted. In passing on a motion to dismiss, it is the court's duty to ascertain if there is substantial evidence of each essential element of the offense charged. State v. Hutchins, 303 N.C. 321, 344, 279 S.E.2d 788, 803 (1981). "Substantial evidence" is defined as that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion. State v. Fletcher, 301 N.C. 709, 712, 272 S.E.2d 859, 860-61 (1981).

The evidence must be interpreted in the light most favorable to the State, drawing all reasonable inferences in the State's favor. State v. Porter, 303 N.C. 680, 685, 281 S.E.2d 377, 381 (1981). Applying these standards to the facts before us, we hold that the motions to dismiss were properly denied.

Common law robbery is the felonious taking of money or goods of any value from the person of another, or in his presence, against his will by violence or putting him in fear. State v. Rogers, 273 N.C. 208, 211, 159 S.E.2d 525, 527 (1968). It is not necessary to prove both violence and putting him in fearproof of either is sufficient. State v. Moore, 279 N.C. 455, 458, 183 S.E.2d 546, 547 (1971) (emphasis in original).

Before a defendant can be found guilty of an attempt to commit a crime, two things must be shown. First, the intent to commit the substantive offense, and second, an overt act done for that purpose which goes beyond mere preparation but falls short of the completed offense. State v. Smith, 300 N.C. 71, 79, 265 S.E.2d 164, 169-70 (1980).

There is substantial evidence here of each essential element of attempted common law robbery. The testimony of Dantzler and Durham shows the defendant's intent to *456 take money from Dantzler by violence. Both of those witnesses also testified that the defendant jumped over the counter and struggled with Dantzler, which is an overt act toward the commission of robbery.

III. Sentence

Finally, the defendant attacks his sentence as excessive. G.S. 14-87.1 provides that attempted common law robbery is punishable as a Class H felony. The presumptive sentence for a Class H felony under G.S. 15A-1340.4(f)(6) is three years. But the trial judge gave a ten-year sentence, the maximum under G.S. 14-1.1, based on certain aggravating factors.

The trial judge made the following comments as an aggravating factor:

16. Additional written findings of factors in aggravation. That the Court has considered each of the aggravating and mitigating factors specifically listed in the statutes and in addition, has considered the aggravating and mitigating factors that are reasonable [sic] related to the purposes of sentencing. Therefore, the Court finds by a preponderence [sic] of the evidence that the victim Herbert Dantzler, age 54, who appears to be frail and aged beyond his years, has suffered severe personal injury by the defendant, Wayne Eure, age 28, a person who appears to be strong and in excellent physical condition, and who brutally, unmercifully and without cause, beat Dantzler with his fist. That as a result, Dantzler suffered broken bones and injury to his eye for which he was hospitalized for a week. That because of these injuries he has not been able to return to his employment and from which he may never recover. That at the time of the beating and attempted robbery of the business cash register, Dantzler was threatened by the defendant. That the foregoing constitutes an aggravating factor in that it relates to punishment commensurate with the injury of the offense caused, taking into account factors that may diminish or increase the defendant's culpability. That in addition, it provides a general detearent [sic] and criminal behavior, there having been a rash of robberies, break-ins, and the like in this particular area having become a problem to the community in general.

The fact that the defendant has no record of criminal convictions was found to be the one mitigating factor.

The propriety of this sentence is determined by application of G.S. 15A-1340.1 to -1340.7, the Fair Sentencing Act. G.S. 15A-1340.4(a) requires a trial judge who imposes a sentence other than the presumptive term to consider "any aggravating and mitigating factors that he finds are proved by the preponderance of the evidence, and that are reasonably related to the purposes of sentencing." To impose a sentence greater than the presumptive term, the trial judge must find that the factors in aggravation outweigh those in mitigation. G.S. 15A-1340.4(b).

The defendant argues that the factor in aggravation stated by the trial judge was primarily a reiteration of one of the necessary elements of attempted common law robbery, i.e., the attempt to take money or valuable goods by violence. This is expressly proscribed by G.S. 15A-1340.4(a)(1). He also contends that part of the aggravating factor was based on the trial judge's personal observation and not supported by evidence introduced at the trial or sentencing hearing.

We find that the trial judge incorrectly found as an aggravating factor that the defendant "brutally, unmercifully and without cause, beat Dantzler with his fist." This factor is erroneous because the same evidence necessary to support it was also necessary to prove the violence element of attempted common law robbery.

It was also error to find as an aggravating factor that "at the time of the beating and attempted robbery of the business cash register, Dantzler was threatened by the defendant." This factor incorrectly considers the same evidence necessary to prove the element of attempted common law robbery that the defendant was put in fear.

*457 Although most of what the trial judge found as aggravating was correct, we must remand for resentencing even if only one factor was incorrectly considered. Our Supreme Court recently addressed this problem.

In State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983), the Court held that in every case in which it is found that the judge erred in a finding or findings in aggravation and imposed a sentence beyond the presumptive term, the case must be remanded for a new sentencing hearing. Ahearn rejected the holding of a number of Court of Appeals cases that required the defendant to show prejudice from any improper consideration of factors.

A court on appeal cannot know what relative weight a trial judge gave to the proper and improper factors. Because the weight of each factor contributes to the severity of the sentence, the sentencing judge is in the best position to reevaluate the severity of the sentence in light of the adjustment.

As Ahearn stated, "Certainly there will be many cases where, on remand, the trial judge will properly reach the same result absent the erroneous finding. We repeat that the weight to be given any factor is within the sound discretion of the sentencing judge." 307 N.C. at ___, 300 S.E.2d at 697. See also, State v. Davis, 58 N.C.App. 330, 333-34, 293 S.E.2d 658, 661 (1982).

We note with approval the learned trial judge's quotation from the statute in the aggravating factor. But in light of Ahearn, we are forced to remand this case for resentencing under this relatively new sentencing procedure.

No error in the trial. Remanded for resentencing.

BECTON and PHILLIPS, JJ., concur.