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No. 14-251 EIGHTEENTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
******************************
STATE OF NORTH CAROLINA ))
v. ) From Guilford) 12 CRS 77582-85
DELUNTA ALANDUS HULL ) 13 CRS 24290)
and ))
SHARRELLE LYNNE DAVIS ) 12 CRS 77220-24
********************************DEFENDANT/APPELLANT SHARRELLE LYNNE DAVIS’ BRIEF
********************************
TABLE OF CONTENTS
Table of Authorities..................................................................................................ii
Questions Presented...................................................................................................1
Statement of the Case................................................................................................2
Statement of Grounds for Appellate Review.............................................................3
Statement of the Facts...............................................................................................3
Argument...................................................................................................................7
I. The trial court erred by submitting the lesser offense of larceny from the person of Gabrielle Stuart to the Jury when there was insufficient evidence that property was taken from her person..............................................................................7
II. In the alternative, if this court finds there was sufficient evidence to support the conviction for larceny from the person, the trial court plainly erred when it instructed the jury that property taken from the presence of Ms. Stuart was sufficient to show that it was taken “from the person.”.......10
III. The trial Court abused its discretion when it failed to find the statutory mitigating factor that Ms. Davis was a passive participant and played a minor role in the commission of the offense...................................................14
IV. The trial court erred when it failed to consider the mitigating evidence that Ms. Davis was a passive participant in the offenses and played a minor role in them..................17
Conclusion...............................................................................................................20
Certificate of Compliance with Rule 28..................................................................21
Certificate of Service...............................................................................................22
i
TABLE OF AUTHORITIESCases
In re Alexander, 158 N.C. App. 522, 582 S.E.2d 466 (2003).................................16
State v. Bacon, __ N.C.App. __, 745 S.E.2d 905 (2013)........................................14
State v. Barnes, 121 N.C.App. 503, 466 S.E.2d 294, aff’d, 345 N.C. 146, 478 S.E.2d 188 (1996)..................................................................................................7
State v. Barnes, 334 N.C. 67, 430 S.E.2d 914 (1993)...............................................6
State v. Barnes, 345 N.C. 146, 478 S.E.2d 188 (1996).....................................11, 12
State v. Boston, 165 N.C.App. 890, 600 S.E.2d 863 (2004).....................................7
State v. Buckom, 328 N.C. 313, 401 S.E.2d 362 (1991)..........................................10
State v. Carver, ___ N.C.App. ___, 725 S.E.2d 902 (2012).....................................6
State v. Chavis, 141 N.C.App. 553, 540 S.E.2d 404 (2000)...................................18
State v. Crandall, 83 N.C.App. 37, 348 S.E.2d 826 (1986), disc. review denied, 319 N.C. 106, 353 S.E.2d 115 (1987)..................................................................14
State v. Crisp, 126 N.C. App. 30, 483 S.E.2d 462, rev. denied, 346 N.C. 284, 487 S.E.2d 559 (1997)................................................................................................14
State v. Fritsch, 351 N.C. 373, 526 S.E.2d 451 cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000)...................................................................................................6
State v. Goforth, 170 N.C. App. 584, 614 S.E.2d 313 (2005)...................................9
State v. Graham, 61 N.C. App. 271, 300 S.E.2d 716, modified on other grounds and aff'd, 309 N.C. 587, 308 S.E.2d 311 (1983)..................................................14
State v. Hagans, 177 N.C. App. 17, 628 S.E.2d 776 (2006)...................................13
State v. Hucks, 323 N.C. 574, 374 S.E.2d 240 (1998)...........................................16
ii
State v. Knott, 164 N.C. App. 212, 595 S.E.2d 172 (2004).....................................17
State v. Lee, 88 N.C.App. 478, 363 S.E.2d 656 (1988).......................................8, 11
State v. Lopez, 363 N.C. 535, 681 S.E.2d 271 (2009).............................................18
State v. Mabry, __N.C.App. __, 720 S.E.2d 697 (2011).........................................14
State v. Monserrate, 125 N.C. App. 22, 479 S.E.2d 494 (1997).............................15
State v. Rose, 339 N.C. 172, 451 S.E.2d 211 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).......................................................................................7
State v. Smith, 300 N.C. 71, 265 S.E.2d 164 (1980).................................................7
State v. Spears, 314 N.C. 319, 333 S.E.2d 242 (1985)............................................14
State v. Wilson, 154 N.C. App. 686 573 S.E.2d 193 (2002).....................................7
Statutes
N.C. GEN. STAT. § 15A-1340.16.................................................................13, 17, 18
N.C. GEN. STAT. § 15A-1444....................................................................................3
N.C. GEN. STAT. § 7A-27..........................................................................................3
Other Authorities
N.C.P.J.I. 216.20.....................................................................................................11
iii
No. 14-251 EIGHTEENTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
******************************
STATE OF NORTH CAROLINA ))
v. ) From Guilford) 12 CRS 77582-85
DELUNTA ALANDUS HULL ) 13 CRS 24290)
and ))
SHARRELLE LYNNE DAVIS ) 12 CRS 77220-24
********************************DEFENDANT/APPELLANT SHARRELLE LYNNE DAVIS’ BRIEF
********************************
QUESTIONS PRESENTED
I. WHETHER THE TRIAL COURT ERRED BY SUBMITTING THE LESSER OFFENSE OF LARCENY FROM THE PERSON OF GABRIELLE STUART TO THE JURY WHEN THERE WAS INSUFFICIENT EVIDENCE THAT PROPERTY WAS TAKEN FROM HER PERSON?
II. IN THE ALTERNATIVE, IF THIS COURT FINDS THERE WAS
SUFFICIENT EVIDENCE TO SUPPORT THE CONVICTION FOR LARCENY FROM THE PERSON, WHETHER THE TRIAL COURT PLAINLY ERRED WHEN IT INSTRUCTED THE JURY THAT PROPERTY TAKEN FROM THE PRESENCE OF MS. STUART WAS SUFFICIENT TO SHOW THAT IT WAS TAKEN “FROM THE PERSON”?
III. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO FIND THE STATUTORY MITIGATING FACTOR THAT MS. DAVIS WAS A PASSIVE PARTICIPANT AND PLAYED A MINOR ROLE IN THE COMMISSION OF THE OFFENSE?
IV. WHETHER THE TRIAL COURT ERRED WHEN IT FAILED TO CONSIDER THE MITIGATING EVIDENCE THAT MS. DAVIS WAS A PASSIVE PARTICIPANT IN THE OFFENSES AND PLAYED A MINOR ROLE IN THEM?
STATEMENT OF THE CASE
This case come on to be jointly tried at the 22 July 2013 Criminal Session of
Guilford County Superior Court, the Honorable James M. Webb, judge presiding.
Indictments charged both Mr. Hull and Ms. Davis with robbery with a dangerous
weapon of Gabrielle Stuart, robbery with a dangerous weapon of Rashad Perry,
robbery with a dangerous weapon of David Williams, robbery with a dangerous
weapon of Brandon Hawkins and first degree burglary. R. pp 23-32. At the close
of State’s evidence, the court dismissed the charge of robbery with a dangerous
weapon of Gabrielle Stuart against Mr. Hull and Ms. Davis and instead submitted
the lesser included offense of larceny from the person. T. p 474.
After the jury found Ms. Davis and Mr. Hull guilty of the remaining
robberies, larceny from the person, and burglary, Ms. Davis pleaded guilty to
other, unrelated charges. T. p 585. The court determined Ms. Davis had no
previous convictions and was a prior record level one for sentencing purposes. R.
p 83-84. The trial court imposed a presumptive sentence of 57 to 81 months
imprisonment for the robbery of Brandon Hawkins, a concurrent sentence of 57 to
81 months imprisonment for the robbery of Rashad Perry, a consecutive sentence
2
of 57 to 81 months for the robbery of David Williams, a consecutive sentence of 6-
17 months for the larceny from the person of Gabrielle Stuart, and a concurrent
sentence of 57 to 81 months imprisonment for the burglary. R. pp 95-104.
Pursuant to the plea agreement on the unrelated charges, Ms. Davis received a
sentence of 64 to 89 months.
The Court also determined that Mr. Hull was a prior record level I. He
received a presumptive sentence of 51 to 74 months imprisonment for the robbery
of Brandon Hawkins, a concurrent sentence of 51 to 74 months imprisonment for
the robbery of Rashad Perry, a consecutive sentence of 51 to 74 months for the
robbery of David Williams, a consecutive sentence of 5 to 15 months for the
larceny from the person of Gabrielle Stuart, and a concurrent sentence of 51 to 74
months imprisonment for burglary. R. pp 85-94.
Both Mr. Hull and Ms. Davis appealed. R. pp 105-106, T. pp 604, 606.
STATEMENT OF GROUNDS FOR APPELLATE REVIEW
This Court has jurisdiction over this appeal by virtue of N.C. GEN. STAT. §
7A-27(b) and N.C. GEN. STAT. § 15A-1444(a).
STATEMENT OF THE FACTS
On 8 May 2012, Rashad Perry, Brandon Hawkins, David Williams,
Gabrielle Stuart, Braielyn Peoples and Emory Matthews gathered at Mr. Hawkins’
3
apartment to study and interact. T. 54. While others were studying and playing
games, Mr. Perry and Mr. Hawkins stepped outside to talk. They sat on the steps
and moved to accommodate the people coming and going. A man came down the
steps from behind Mr. Perry, pulled a black handgun and told them to give up their
stuff. T. pp 55-56. Mr. Perry stated that the man was initially alone. He handed
his keys, cell phone and ID over to the man with the gun. Mr. Hawkins had his
phone taken by the same man. According to Mr. Perry, after these items were
taken, two other individuals approached and stood on the bottom steps. T. pp 57-
58. However, Mr. Hawkins stated that that three people initially approached and
stopped next to them. One of the males had a gun and took their property. T. p
283.
After the robber had taken their belongings, he asked Mr. Perry and Mr.
Hawkins where they lived. T. p 59. Before Mr. Hawkins could answer, the robber
directed them up the steps towards the third floor. When asked if he stayed here,
Mr. Hawkins replied he stayed on the first floor. He proceeded to his apartment
and they followed him inside. T. p 60.
Once inside, Mr. Perry stated that Ms. Davis pulled him aside to the kitchen
while the two males went through the apartment. T. p 61. Ms. Peoples was seated
at a table studying when she saw Mr. Perry, Mr. Hawkins and three unknown
people enter the apartment. She saw the gun and felt that the people were
4
suspicious. T. pp 113-15. The man with the gun came over to the table and took
two laptops and a cell phone off the table. T. p 116. The female stood near the
wall. Mr. Matthews and Ms. Stuart were playing Dance Central when the
unknown individuals came in. T. p 177, 214. Mr. Matthews and Mr. Hawkins
testified that they saw the female grab Mr. Matthews’ phone and Ms. Stuart’s
laptop off the table. T. p 177, 289. Mr. Matthews called to Ms. Stuart that her
laptop was taken. T. p 203. Ms. Stuart did not realize anything unusual had
occurred until she was bumped out of the game. By then, her laptop had already
been taken and was in an unknown male’s possession. T. pp 214-15. The men
then began struggling with Mr. Williams over his laptop. T. p117, 217. He was
using it when one of the males approached and tried to take it. He only let it go
when he was threatened with a gun by the other male. T. p 320. After obtaining
Mr. Williams’ laptop, the man grabbed another phone and all three left. T. p 119,
292.
During the investigation, Mr. Perry, Mr. Hawkins, Ms. Stuart, Ms. Peoples
and Mr. Hawkins were shown photographic lineups including pictures of Mr. Hull
and Ms. Davis. T. p 69, 117, 221-222, 292-93. During the trial, Mr. Perry
identified Ms. Davis and Mr. Hull as two of the individuals present during the
robbery. He stated the gunman was not present in court. T. p 59. Ms. Peoples
identified Ms. Davis in court. She also identified Mr. Hull as the man with the
5
gun. T. p 118. Mr. Matthews identified Mr. Hull and Ms. Davis as being present
during the robbery. T. p 179. Ms. Stuart identified Mr. Hull as the man with the
gun and stated that Ms. Davis resembled the female. T. pp 218, 236. Mr. Hawkins
identified Ms. Davis as the female he saw the night of the robbery and identified
Mr. Hull as the male without the gun. T. p 287.
During trial, the State dismissed the conspiracy charges against both Ms.
Davis and Mr. Hull. T. p 368. Both the defendants moved to dismiss the
remaining charges at the close of the State’s evidence. The trial court denied this
motion except as to the robbery of Ms. Stuart where it determined it would be
appropriate to submit the lesser included offense of larceny from the person. T. pp
466, 474. Neither defendant offered any evidence. T. p 467. Both renewed their
motions to dismiss at the close of all evidence. T. pp 474-75. The jury found both
Mr. Hull and Ms. Davis guilty of all offenses. R. pp 71-80.
After the jury verdicts were announced, Ms. Davis entered an Alford plea to
other, unrelated robbery and burglary charges. T. p 585. After the plea was
accepted, Ms. Davis’ attorney made a sentencing argument stating that Ms. Davis
maintained her innocence to the charges she entered the Alford plea to and that her
family was present in the court room and supported her. T. p 595-96. The trial
court first sentenced Mr. Hull then sentenced Ms. Davis without making reference
to any mitigating evidence or suggesting why Ms. Davis was sentenced differently
6
from Mr. Hull. T. p 601-604. From the judgments entered following the jury
verdicts, Mr. Hull and Ms. Davis appealed. T. p 606.
ARGUMENT
I. THE TRIAL COURT ERRED BY SUBMITTING THE LESSER OFFENSE OF LARCENY FROM THE PERSON OF GABRIELLE STUART TO THE JURY WHEN THERE WAS INSUFFICIENT EVIDENCE THAT PROPERTY WAS TAKEN FROM HER PERSON.
Standard of Review
“This Court reviews de novo a trial court’s ruling on a motion to dismiss.”
State v. Carver, ___ N.C. App. ___, ___, 725 S.E.2d 902, 904 (2012).
Argument
At the close of State’s evidence and all evidence, Ms. Davis moved to
dismiss all charges for insufficient evidence. The trial court denied the motion to
dismiss with regard to all charges except the robbery of Ms. Stuart. The court
dismissed that charge and instead submitted the lesser offense of larceny from the
person. T. p 474. The motion to dismiss was renewed at the close of all evidence
and denied. T. p 475. The evidence was insufficient to show that the taking of
Ms. Stuart’s laptop was from her person.
“‘Upon defendant’s motion for dismissal, the question for the Court is
whether there is substantial evidence (1) of each essential element of the offense
charged, or of a lesser offense included therein, and (2) of defendant’s being the
perpetrator of such offense. If so, the motion is properly denied.’” State v. Fritsch,
7
351 N.C. 373, 378, 526 S.E.2d 451, 455, cert. denied, 531 U.S. 890, 148 L. Ed. 2d
150 (2000) (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)).
“Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265
S.E.2d 164, 169 (1980). “In making its determination, the trial court must consider
all evidence admitted, whether competent or incompetent, in the light most
favorable to the State, giving the State the benefit of every reasonable inference
and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192,
451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818
(1995).
The essential elements of larceny are: (1) taking the property of another; (2)
carrying it away; (3) without the owner’s consent; and (4) with the intent to
deprive the owner of the property permanently. State v. Wilson, 154 N.C. App.
686, 690, 573 S.E.2d 193, 196 (2002). For the larceny to be from the person, “it is
not necessary that the stolen property be attached to the victim’s person in order
for the theft to constitute larceny from the person as long as the property was
within the victim’s protection and presence at the time of the taking.” Id. at 691,
573 S.E.2d at 196 (quoting State v. Barnes, 121 N.C.App. 503, 505, 466 S.E.2d
294, 296, aff’d, 345 N.C. 146, 478 S.E.2d 188 (1996)). The distance from the
property is relevant to presence while the awareness of the victim at the time of the
8
taking is relevant to protection and control. State v. Boston, 165 N.C.App. 890,
893, 600 S.E.2d 863, 865 (2004).
In State v. Lee, 88 N.C.App. 478, 363 S.E.2d 656 (1988), this Court
addressed whether the taking of a purse from an unattended shopping cart
constituted larceny from the person. The owner of the purse had stepped “four or
five” steps away from the cart and was engaged in a conversation with an
accomplice when the defendant took the bag. Only upon returning to the cart did
the victim notice that her purse was missing. Id. at 479, 363 S.E.2d at 656. This
Court vacated the conviction for larceny from the person and remanded for
resentencing on misdemeanor larceny since the evidence did not show a taking
from the person. Id. at 479, 363 S.E.2d at 657.
This case is indistinguishable from the circumstances in Lee. In this case,
Ms. Stuart testified that she was at the apartment doing laundry, working on
homework, and playing Dance Central. T. pp 212-13. She was dancing for the
game when some people she did not know entered the apartment. She did not
realize what was going on until she was “bumped out of the game.” By this time,
someone had already taken her laptop. T. p 214. Her laptop had been about three
feet away on the card table while she was playing the game. T. p 215. Only after
Mr. Matthews told her that the laptop was taken did Ms. Stuart register what had
happened. T. p 177. Like the victim in Lee, Ms. Stuart was nearby when her
9
property was taken but was engaged in another activity and unaware of the taking
until after it had occurred. For these reasons, the State failed to present sufficient
evidence that the taking was “from a person.”
Because the taking was not from the person, the trial court erred by
submitting the lesser offense of larceny from the person of Ms. Stuart.
Accordingly, this Court should vacate the conviction for larceny from the person.
II. IN THE ALTERNATIVE, IF THIS COURT FINDS THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE CONVICTION FOR LARCENY FROM THE PERSON, THE TRIAL COURT PLAINLY ERRED WHEN IT INSTRUCTED THE JURY THAT PROPERTY TAKEN FROM THE PRESENCE OF MS. STUART WAS SUFFICIENT TO SHOW THAT IT WAS TAKEN “FROM THE PERSON.”
Standard of Review
Because defendant failed to object to the jury instructions at trial, the
standard of review is plain error. Under the plain error standard, “defendant must
show that the instructions were erroneous and that absent the erroneous
instructions, a jury probably would have returned a different verdict.” State v.
Goforth, 170 N.C. App. 584, 587, 614 S.E.2d 313, 315 (2005).
Argument
The trial court improperly defined the phrase “from the person” when
instructing the jury on larceny from the person. The instruction provided,
“Property is stolen from the person if it was under the protection of the person at
the time. Property may be under the protection of the person although not actually
10
attached to her, for that which is taken in her presence is, in law, taken from her
person.” R. p 63; T. p 531. The trial court relied on Pattern Jury Instruction
216.20 for this definition. The pattern instruction in turn relied on State v.
Buckom, 328 N.C. 313, 317, 401 S.E.2d 362, 364 (1991). Since Buckom was
decided, the North Carolina Supreme Court has refined the definition of “from the
person” and the instruction given failed to accurately reflect the current law on
larceny from the person.
The Buckom holding expanded the definition of “from the person” to fit
other takings that are tantamount to “from the person.” The Buckom court
approved of the particular instructions given during that trial which stated “[a]ny
property taken from the cash register when the cash register was being operated by
[the clerk] would be property taken from the person.” Id. at 316, 401 S.E.2d at
364.. The present case’s instruction is derived from dicta in the Buckom decision.
Id. at 317-18, 401 S.E.2d at 364-65. The erroneous portion of the trial court’s
instruction, “For that which is taken in his presence is in law taken from his
person,” is a quote from Coke’s Institutes, published in the middle of the 17th
century. See Id. at 318, 401 S.E.2d at 365.
After Buckom, the North Carolina Supreme Court, decided State v. Barnes,
345 N.C. 146, 478 S.E.2d 188 (1996), a case in which the defendant stole a
moneybag from a mall kiosk while the clerk was several feet away. The clerk
11
returned to the kiosk and confronted the thief. While the clerk was verifying that
nothing was taken, the thief walked away. Id. at 147, 478 S.E.2d at 189. The
Barnes court stated that the issue of whether this was a felony or misdemeanor
larceny turned “on whether the bank bag was in the immediate presence of and
under the protection and control of [the clerk] at the time of the taking.” Id. at
150, 478 S.E.2d at 190 (emphasis added).
The Barnes court examined the facts in Buckom and found that the taking
“clearly constituted an invasion of the victim’s person or immediate presence.” Id.
It also considered the facts in State v. Lee, 88 N.C. App. 478, 363 S.E.2d 656
(1988). In Lee, the victim was four or five steps away, looking in another
direction, when the thief took her purse from her grocery cart. The Barnes count
found that the taking “did not constitute an invasion of the victim’s person or
immediate presence.” Id. Then the Barnes court examined the facts before it and
found that Mr. Barnes’s “actions did not constitute an invasion of the victim’s
person or immediate presence.” Id.
The Barnes court refined and clarified the Buckom court’s expansive
definition of “from the person.” The Barnes court was clear in its holding, “for
larceny to be ‘from the person,’ the property stolen must be in the immediate
presence of and under the protection or control of the victim at the time the
property is taken.” State v. Barnes, 345 N.C. 146, 149, 478 S.E.2d 188, 190
12
(1996)(emphasis in original). The trial court’s instruction that “Property may be
under the protection of the person although not actually attached to her, for that
which is taken in her presence is, in law, taken from her person” clearly does not
reflect Barnes’ holding that, for larceny to be from the person, both immediate
presence and protection or control are required for a conviction.
Despite the Barnes court’s clear, precise standard, the trial court in the
present case gave the jury an antiquated definition of “from the person.” Instead of
accurately stating that Ms. Stuart’s “immediate presence” must have been invaded
and that the property had to be under her protection or control, the trial court
instructed the jury that mere presence was sufficient for the larceny to be from the
person. This instruction required the jury to decide the case against Ms. Davis
since there was no question that the laptop was taken from the same apartment
where Ms. Stuart was. This is not the law, as the Barnes court made clear.
Given the testimony that clearly showed Ms. Stuart’s immediate presence
was not invaded and that the laptop was not under her protection or control, it was
manifestly unfair to have the jury improperly instructed on the definition of “from
the person.” If the jury had been properly instructed that it was required to find
both that the laptop was taken from Ms. Stuart’s immediate presence and that the
laptop had to be under her protection or control, the jury probably would have
rendered a different verdict. As argued above, Ms. Stuart was across the room
13
playing a game at the time of the taking. T. pp 214-15. She was unaware of what
had occurred until someone else informed her that her property was taken. T. p
177. This testimony shows that had the jury been properly instructed, they
probably would have found Ms. Davis not guilty of larceny from the person of Ms.
Stuart. The trial court plainly erred in its instruction on larceny from the person.
III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO FIND THE STATUTORY MITIGATING FACTOR THAT MS. DAVIS WAS A PASSIVE PARTICIPANT AND PLAYED A MINOR ROLE IN THE COMMISSION OF THE OFFENSE.
Standard of Review
The standard of review for application of mitigating factors is an abuse of
discretion. State v. Hagans, 177 N.C. App. 17, 31, 628 S.E.2d 776, 785 (2006).
Argument
The trial court abused its discretion by failing to find the statutory mitigating
factor that Ms. Davis was “a passive participant or played a minor role in the
commission of the offense” prior to imposing judgment when the State’s evidence
established these mitigating factors. See N.C. GEN. STAT. § 15A-1340.16(e)(2).
A sentencing judge must find a statutory mitigating sentence factor if it is
supported by a preponderance of the evidence. State v. Crisp, 126 N.C. App. 30,
41, 483 S.E.2d 462, 469, rev. denied, 346 N.C. 284, 487 S.E.2d 559 (1997). Where
the State’s own evidence clearly establishes a statutory mitigating factor, the
failure to so find is error. State v. Graham, 61 N.C. App. 271, 300 S.E.2d 716,
14
modified on other grounds and aff’d, 309 N.C. 587, 308 S.E.2d 311 (1983). “An
appellate court may reverse a trial court for failing to find a mitigating factor only
when the evidence offered in support of that factor ‘is both uncontradicted and
manifestly credible.’ ” State v. Bacon, __ N.C.App. __, __, 745 S.E.2d 905, 909
(2013)(quoting State v. Mabry, __N.C.App. __, __, 720 S.E.2d 697, 702 (2011).
The North Carolina Supreme Court has held that even in the absence of a specific
request by a defendant, “the sentencing judge has a duty to find a statutory
mitigating factor when the evidence in support of a factor is uncontradicted,
substantial and manifestly credible.” Bacon, __ N.C.App. at __, 745 S.E.2d at 909
(quoting State v. Spears, 314 N.C. 319, 321, 333 S.E.2d 242, 244 (1985)).
This Court has explained a passive participant is “one who has an inactive
part in the commission of an offense.” State v. Crandall, 83 N.C.App. 37, 40, 348
S.E.2d 826, 829 (1986), disc. review denied, 319 N.C. 106, 353 S.E.2d 115 (1987).
A minor role is “one in which the individual performs a comparatively unimportant
function in the commission of an offense.” Id. In State v. Monserrate, 125 N.C.
App. 22, 33, 479 S.E.2d 494, 502 (1997), this Court addressed these mitigating
factors in the context of a burglary and kidnapping. After finding that the
defendant had known of the burglary since a week before it occurred, stayed with
the victims of the kidnapping and did not release them, and that she stated she
needed the money, the Court concluded that the evidence was insufficient to
15
support a finding that the defendant was a passive participant or played a minor
role. Id.
In this case, the State’s evidence showed that Ms. Davis was both a passive
participant and played a minor role in these crimes. Mr. Perry and Mr. Hawkins
testified that when they were on the steps a male held a gun on them and asked for
their belongings. T. pp 58, 286. The female stood there and did not say anything.
T. p 59, 286. Further, Mr. Perry, Ms. Stuart, and Ms. Peoples all stated that Ms.
Davis did not take any of the items inside the apartment. See T. pp 94, 154, 242.
Mr. Perry stated that, after entering the apartment, Ms. Davis remained in the
kitchen with him while the two men took various items from the apartment. T. p
95.
Mr. Hawkins testified at trial that Ms. Davis took a phone and a laptop after
they entered the apartment but previously had stated that the female had only stood
in the kitchen. T. p 309-310. Mr. Williams also testified that Ms. Davis went with
Mr. Perry into the kitchen and remained there with him. T. p 320. Mr. Matthews
testified that Ms. Davis came in and took a cell phone and a laptop off the table
where Ms. Peoples was sitting, and then went into the kitchen with Mr. Perry. T.
pp 177-78. However, Ms. Peoples stated that Ms. Davis did not take anything off
the table she was sitting at. T. p 242.
16
No one testified that Ms. Davis had a gun at any point or threatened them in
any way. There was no evidence regarding the planning of the crimes or
suggestion that Ms. Davis had any prior knowledge of the robberies. Based on the
State’s evidence, it is clear that Ms. Davis was a passive participant in these crimes
and that she only played a minor role in them.
The trial court was compelled by the State’s own evidence to find both
“passive participation” and “minor role.” The imposition of a greater sentence for
Ms. Davis than of her co-defendant, who may have been the gunman, without
finding these mitigating factors, shows that the failure to consider this evidence
was prejudicial and necessitates a new sentencing hearing.
IV. THE TRIAL COURT ERRED WHEN IT FAILED TO CONSIDER THE MITIGATING EVIDENCE THAT MS. DAVIS WAS A PASSIVE PARTICIPANT IN THE OFFENSES AND PLAYED A MINOR ROLE IN THEM.
Standard of Review
Failure to comply with a statutory mandate is prejudicial error per se, State
v. Hucks, 323 N.C. 574, 576, 374 S.E.2d 240, 242 (1998), and is reversible error.
In re Alexander, 158 N.C. App. 522, 582 S.E.2d 466 (2003).
Argument
The trial court erred when it failed to consider evidence that Ms. Davis was
“a passive participant or played a minor role in the commission of the offense”
prior to imposing judgment when the State’s evidence established these mitigating
17
factors. See N.C. GEN. STAT. § 15A-1340.16(e)(2). Under Structured Sentencing,
“The court shall consider evidence of aggravating or mitigating factors present in
the offense that make an aggravated or mitigated sentence as appropriate, but the
decision to depart from the presumptive range is in the discretion of the court.”
N.C. GEN. STAT. § 15A–1340.16(a) (emphasis added). This Court has explained,
“When a trial court imposes sentences within the presumptive range for all
offenses of which defendant was convicted, [it] is not obligated to make findings
regarding aggravating and mitigating factors. Nevertheless, [u]nder the Structured
Sentencing Act, the trial court must consider evidence of aggravating and
mitigating factors offered by the parties, even if a presumptive sentence is
ultimately imposed.” State v. Knott, 164 N.C. App. 212, 217, 595 S.E.2d 172, 176
(2004)(internal quotations and citations omitted).
The court erred in failing to consider the evidence that Ms. Davis was a
passive participant in these crimes and that she planned a minor role in the
offenses. After hearing from Ms. Davis’ counsel as to sentencing, the trial court
made no indication that it considered any mitigating evidence before imposing a
harsher sentence on Ms. Davis than on Mr. Hull. See T. p 601-603. This error
requires a new sentencing hearing.
It is acknowledged that this Court has suggested that trial courts are not
required to consider mitigating evidence when a presumptive range sentence is
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imposed. See State v. Chavis, 141 N.C.App. 553, 540 S.E.2d 404 (2000)( trial
court is required to take “into account factors in aggravation and mitigation only
when deviating from the presumptive range in sentencing). However, the plain
language of N.C. GEN. STAT. § 15A-1340.16(a) contradicts this. The error in this
case is not in the failure to make written findings but the failure to consider
evidence in mitigation. As the North Carolina Supreme Court has explained,
“[T]the range of sentences that the trial court may impose becomes known only
after a series of findings and calculations.” State v. Lopez, 363 N.C. 535, 539, 681
S.E.2d 271, 274 (2009). The jury determines if any aggravating factors exist, and
the court determines whether any mitigating factors also exist. Id. After weighing
these factors, the court then decides whether to impose an aggravated,
presumptive, or mitigated sentence. Id. Both the statute and cases following
Chavis mandate that a court consider mitigating evidence before imposing a
sentence, even if that sentence is ultimately from the presumptive range.
Accordingly, the trial court was required to consider mitigating evidence presented
during the State’s case and the failure to do so constitutes reversible error.
CONCLUSION
Wherefore, upon the forgoing argument and authorities Ms. Davis requests
that her conviction for larceny from the person be vacated, or that in the alternative
a new trial is ordered for this offense, and that her sentences be vacated.
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Respectfully submitted, this the 3rd day of April, 2014.
By: Electronically SubmittedAmanda S. ZimmerN.C.Bar No. [email protected] North Bennett StreetSouthern Pines NC 28387910 693-3999910 695-0983 (fax)Attorney for Defendant/Appellant Sharrelle Davis
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CERTIFICATE OF COMPLIANCE WITH RULE 28
I hereby certify that this brief was prepared using Fourteen Point,
proportional typeface (specifically Microsoft Word 2003, Times New Roman, 14
point). This brief complies with the word limitation of N.C.R. App. P. 28(j)(2)(A)
(2) because this brief does not exceed 8,750 words (specifically 4,766 words),
excluding the parts of the brief exempted by N.C.R. App. P. 28(j)(2)(A)(2).
By: Electronically SubmittedAmanda S. Zimmer
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CERTIFICATE OF SERVICE
I certify that I have, this day, filed the foregoing brief electronically as
allowed in Rule 26(a)(2) of the N.C. Rules of Appellate Procedure. I further
certify that I have this day served a copy of the foregoing brief upon all parties to
the appeal, by electronic mail as allowed under Rule 26(c), as follows:
Ms. Anne BrownSpecial Deputy Attorney [email protected]
Mr. Richard BradfordAssistant Attorney [email protected]
Ms. Charlesena WalkerAssistant Appellate [email protected]
This the 3rd day of April, 2014.
Electronically SubmittedAmanda S. ZimmerAttorney for Defendant/Appellant
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