State v. Weiss
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA12-1566 NORTH CAROLINA COURT OF APPEALS Filed: 3 September 2013 STATE OF NORTH CAROLINA v. Catawba County No. 11 CRS 8038 ANTHONY PARKS WEISS Appeal by Defendant from judgment entered 26 September 2012 by Judge Timothy S. Kincaid in Catawba County Superior Court. Heard in the Court of Appeals 19 August 2013. Attorney General Roy Cooper, by Assistant Attorney General Joseph E. Elder, for the State. Kevin P. Bradley for Defendant. DILLON, Judge. Anthony Parks Weiss (Defendant) appeals from a judgment entered based upon a jury verdict finding him guilty of robbery with a dangerous weapon. within the presumptive imprisonment. The trial court sentenced Defendant range to a term of 73 to 97 months We hold that Defendant received a fair trial, free from prejudicial error. -2Defendant first argues that he received ineffective assistance of trial counsel because counsel did not move to dismiss the charge of robbery with a dangerous weapon. Defendant contends that the State did not present sufficient evidence to prove that he was the perpetrator of the robbery. We disagree. To counsel, prevail a performance on a defendant was claim must deficient of first and ineffective assistance show his counsel s counsel s deficient then performance prejudiced his defense. be established by showing that that that of Deficient performance may counsel s representation below an objective standard of reasonableness. fell State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (citations and quotation marks omitted), cert. denied, 549 U.S. 867, 166 L. Ed. 2d 116 (2006). To show that he was prejudiced by trial counsel s failure to move for dismissal at the close of all evidence, [a] defendant must show that he would dismissal had the motion been made. have been entitled to a State v. Mitchell, ___ N.C. App. ___, ___, 735 S.E.2d 438, 442 (2012). When ruling on a motion to dismiss for insufficient evidence, the trial court must consider the evidence in the light most favorable to the State, drawing all reasonable inferences in the State s favor. Any contradictions or conflicts in the -3evidence are resolved in favor of the State, and evidence unfavorable to the State is not considered. The trial court must decide only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id. (quoting State v. Miller, 363 N.C. 96, 98-99, 678 S.E.2d 592, 594 (2009)). The victim of the robbery, Kassie Warrick, testified as follows regarding her identification of the man who robbed her: [Prosecutor:] Ms. Warrick, do you remember being asked by the officers or an officer that evening to come outside and see if you could identify who was in your house? [Warrick:] Yes, sir. that. I definitely remember [Prosecutor:] And when you were asked to do that, what did you do, ma am? [Warrick:] I went outside and they had [Defendant] in the back of one cruiser and Billy in the back of another cruiser. And both of them [were] pretty much dressed alike. And they asked me to identify and I identified [Defendant]. [Prosecutor:] You identified in this courtroom -- the defendant [Warrick:] Yes, sir. [Prosecutor:] -- as the person that was in your house? -4[Warrick:] Yes, sir. I think [Defendant] has maybe put on a little bit more weight. . . . . [Prosecutor:] So the person you identified to the officers as having been in the house and robbed you is sitting in this courtroom today; is that correct? [Warrick:] I feel like yes. Yes. [Prosecutor:] And is that the defendant? [Warrick:] Yes, sir. . . . We hold that this testimony constitutes both a confirmation that Defendant was the person Warrick had previously identified as the man who robbed her and an in-court identification of Defendant as the robber. This testimony alone is sufficient evidence that Defendant was the perpetrator of the offense, and thus, a motion insufficient to dismiss evidence on arguing this basis the State would have had presented been denied. Accordingly, Defendant was not prejudiced by his trial counsel s failure to move for the dismissal of the charge against him on this ground, ineffective. so counsel s performance cannot be considered This argument is overruled. Defendant also argues that the trial court failed to exercise its discretion when sentencing him in the presumptive range even though it found a statutory mitigating factor. -5Generally, [w]hen a sentence is within the statutory limit it will be presumed regular and valid unless the record discloses that the court considered irrelevant and determining the severity of the sentence. improper matter in State v. Davis, 167 N.C. App. 770, 775, 607 S.E.2d 5, 9 (2005) (quoting State v. Johnson, 320 N.C. 746, 753, 360 S.E.2d 676, 681 (1987)). However, [w]hen a trial court fails to exercise its discretion in the erroneous belief that it has no discretion as to the question presented, there is error. State v. McAvoy, 331 N.C. 583, 591, 417 S.E.2d 489, 494 (1992). Here, the trial court acknowledged at sentencing that a mitigating factor existed in that [t]he defendant does have a support system in the community and pretrial credit. Stat. ยง 15A-1340.16(e)(18) conclude[d] as a matter (2011). of law presumptive range is appropriate. Nonetheless, [that] N.C. Gen. the sentencing court in the Defendant contends the fact that the court stated it concluded as a matter of law that a presumptive-range sentence was appropriate shows that the court failed to exercise its discretion in sentencing Defendant. We disagree. The mere use of the phrase as a matter of law does not compel a conclusion that the trial court failed to exercise its -6discretion, and there is nothing in the court s statements that suggests the court believed it could not exercise its discretion in sentencing Defendant. Examining the totality of the court s statements made at sentencing, we think it is clear that the trial court considered Defendant s mitigating factor, but in its discretion concluded that a presumptive-range sentence was appropriate as opposed to a sentence in the mitigated range. Moreover, the fact that the court found a presumptive-range sentence was appropriate suggests that the court was making a discretionary conclusion and not Accordingly, we overrule this argument. NO ERROR. Judges GEER and ERVIN concur. Report per Rule 30(e). one compelled by law.
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