State v. Borders

594 S.E.2d 813, 164 N.C. App. 120, 2004 N.C. App. LEXIS 740
CourtCourt of Appeals of North Carolina
DecidedMay 4, 2004
DocketCOA03-439
StatusPublished
Cited by6 cases

This text of 594 S.E.2d 813 (State v. Borders) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Borders, 594 S.E.2d 813, 164 N.C. App. 120, 2004 N.C. App. LEXIS 740 (N.C. Ct. App. 2004).

Opinions

HUNTER, Judge.

Shawn Lamont Borders (“defendant”) appeals a judgment sentencing him in the aggravated range to 146 to 185 months imprisonment for robbery with a dangerous weapon. Specifically, defendant takes issue with (I) a jury instruction, and (II) the trial court’s finding of three non-statutory aggravating factors. For the reasons stated herein, we conclude there was no error as to the jury instruction, but that defendant’s case must be remanded for a new sentenc[122]*122ing hearing due to the trial court committing error by finding certain aggravating factors.

On 16 July 2001, defendant was indicted for committing a robbery with a dangerous weapon. Defendant’s trial began on 23 September 2002, during which the following evidence was offered.

The State’s evidence tended to show that defendant called for a taxicab at approximately 1:30 a.m. on the morning of 21 June 2001. When the taxicab arrived, defendant got in the back seat of the vehicle and subsequently held a knife with a five-inch blade to the neck of the driver, Gerald Wyatt (“Wyatt”). Defendant then proceeded to threaten and physically assault Wyatt, before taking approximately seventy-six dollars in cash from under the driver’s seat, pushing Wyatt out of the taxicab, and driving off. Wyatt immediately located a police officer and told the officer that he was robbed by defendant, a man he recognized as someone he had given several taxicab rides to over the last year. Wyatt’s taxicab was found approximately two days later.

Defendant was arrested on 30 June 2001. Detective Tracy Curry (“Detective Curry”) testified that, following defendant’s arrest, defendant stated he had actually

asked [Wyatt] for the forty dollars that he owed him. [Wyatt] told him that [he] did not have the money, but [defendant] had seen [Wyatt] try to hide money under the seat.
And that he got out of the cab, took the money from under the seat, told [Wyatt] that he should not lie to him again and left the area.

Defendant’s evidence tended to show that Wyatt paged defendant on the morning in question, indicating to defendant that Wyatt wanted to arrange a drug deal. Wyatt subsequently picked defendant up in his taxicab and requested two rocks of crack cocaine for forty dollars, which defendant provided. As Wyatt smoked the crack cocaine, he realized that it was counterfeit and demanded his money back. Defendant refused and exited the taxicab. In order to seek “revenge” on defendant, Wyatt later told the police that defendant had robbed him. Defendant’s earlier cross-examination of Wyatt had revealed that Wyatt did have a number of prior drug arrests, but no drug convictions. Additional facts relevant to this appeal will be provided as necessary in analyzing defendant’s assigned errors.

[123]*123I.

By his first assignment of error, defendant argues the trial court erred by giving a jury instruction that implied he had committed the crime for which he was accused. Specifically, at the charge conference, the State proposed that Jury Instruction Number 104.60 be submitted to the jury, to which defendant objected on the grounds that he had not admitted to one or more of the elements of the crime charged. The trial court noted defendant’s objection and gave the charge to the jury as follows:

There is evidence in this case that tends to show that the Defendant has at one time or another admitted one or more facts relating to the crime charged in this case. Now if you find, that the Defendant has made any such a[n] admission, then you should consider all the circumstances under which it was made in determining whether it was a truthful admission and the weight which you will give to it.

Defendant contends that by giving the instruction, the trial court basically told the jury that he had committed robbery with a dangerous weapon. We disagree.

“A trial court is not required to give a requested instruction in the exact language of the request, but where the request is correct in law and supported by the evidence in the case, the court must give the instruction in substance.” State v. Summey, 109 N.C. App. 518, 526, 428 S.E.2d 245, 249 (1993). Here, the instruction given to the jury was “virtually identical” to Jury Instruction Number 104.60. Id. (citing State v. Green, 305 N.C. 463, 290 S.E.2d 625 (1982)). See also 1 N.C.P.I.—Crim. 104.60 (1970). The instruction made no specific mention of any particular element of the offense charged or that defendant had admitted robbing Wyatt with a dangerous weapon— only that the evidence tended to show an admission by defendant of “one or more facts relating to the crime charged[.]” Specifically, those “facts” included (1) testimony from Detective Curry that defendant told him that although Wyatt had tried to hide money from defendant, defendant “took the money from under the seat, . . . and left the area[,]” and (2) testimony from defendant that he had “snatched” money away from Wyatt, then “got out of the cab and left.” Their testimony provided the evidence needed to support some of the elements of robbery with a dangerous weapon, i.e., an unlawful taking of another’s personal property. See N.C. Gen. Stat. § 14-87(a) (2003). Thus, the requested instruction was correctly [124]*124stated in substance and supported by the evidence, resulting in no error by the trial court.

II.

Defendant also assigns error to the trial court’s finding that there was evidence to support three non-statutory aggravating factors, which were used to sentence defendant in the aggravated range. Initially, we note that the State argues defendant did not object to the non-statutory aggravating factors at trial and therefore, should be denied the opportunity to assign error to them on appeal. However, our Supreme Court has held that preserving this question for appellate review by objecting is unnecessary because it is clear that a defendant does “not want the court to find [an] aggravating factor and the court kn[ows] or should . . . know[] it.” See State v. Canady, 330 N.C. 398, 402, 410 S.E.2d 875, 878 (1991). We therefore address defendant’s assigned error.

“The State has the burden of proving the existence of a nonstatu-tory aggravating factor by a preponderance of the evidence. The State must also show that it is reasonably related to the purposes of sentencing.” State v. Hargrove, 104 N.C. App. 194, 200, 408 S.E.2d 757, 761 (1991). The decision to depart from the presumptive range and sentence a defendant in the aggravated range is in the discretion of the court. N.C. Gen. Stat. § 15A-1340.16(a) (2003). In the instant case, defendant takes issue with the following three non-statutory aggravating factors found by the trial court.

A.

Defendant contends there was no evidence offered to support, as a factor in aggravation, that the “crime was committed against a victim who was smaller, older and weaker, taking not only money but also a vehicle that provided the victim’s means of income.” In State v. Ackerman, 144 N.C. App. 452, 461-62, 551 S.E.2d 139

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State v. Borders
594 S.E.2d 813 (Court of Appeals of North Carolina, 2004)

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Bluebook (online)
594 S.E.2d 813, 164 N.C. App. 120, 2004 N.C. App. LEXIS 740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-borders-ncctapp-2004.