State v. Smallwood

434 S.E.2d 615, 112 N.C. App. 76, 1993 N.C. App. LEXIS 1021
CourtCourt of Appeals of North Carolina
DecidedSeptember 21, 1993
DocketNo. 916SC1242
StatusPublished
Cited by2 cases

This text of 434 S.E.2d 615 (State v. Smallwood) 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. Smallwood, 434 S.E.2d 615, 112 N.C. App. 76, 1993 N.C. App. LEXIS 1021 (N.C. Ct. App. 1993).

Opinion

JOHNSON, Judge.

Defendant, Willie Kimball Smallwood, was indicted by the Bertie County Grand Jury on six counts of trafficking in cocaine in violation of North Carolina General Statutes § 90-95(h)(3)(a)(l) (Cum. Supp. 1992). Defendant pled guilty to four of the trafficking counts and no contest to the other two counts. In the judgment entered 1 June 1990, defendant received the maximum sentence of fifteen (15) years each on five trafficking counts and four and one-half (4 V2) years on the last count for these Class G felonies. Defendant gave notice of appeal in open court to our Court; the case was remanded for resentencing.

A resentencing hearing was held on 9 September 1991 and from judgment of active sentences in excess of the presumptive term, defendant gave oral and written notice of appeal to this Court.

Evidence presented by the State tended to show that an undercover drug operation conducted by the State Bureau of Investigation (SBI) revealed that drugs were being sold out of a yellow house behind a car wash in Windsor, North Carolina. The testimony of Donald Cowan, Deputy Sheriff of Bertie County, indicated that several cocaine buys were made from this house by undercover law enforcement personnel, and at least two of those buys came directly from defendant. The remaining buys were made from three other individuals, Annetta Pugh and her children George and Angie Pugh, who also resided at the house. Further investigation revealed that it was defendant who supplied those individuals with the drugs to sell.

Special Agent Dwight Ransome of the SBI testified that defendant was one of the largest crack cocaine dealers in Bertie County and that Annetta, George and Angie Pugh (who were subsequently prosecuted and convicted) were selling the crack cocaine for defendant.

[79]*79The State introduced further evidence which showed defendant had a prior conviction of resisting arrest for which defendant received a six month suspended sentence and two years unsupervised probation. Defendant objected to this evidence, contending he was never convicted on the resisting arrest charge. Further, defendant noted the testimony of Deputy Cowan, who was in district court the day defendant was convicted. Deputy Cowan testified it was his “understanding” that notice of appeal was given. However, the official court record, to which defendant stipulated, demonstrated that no appeal was taken from the district court conviction.

Defendant further testified that although present when the undercover agents made the buys, defendant did not actually deliver or sell the cocaine to the officers. Thirteen letters on behalf of defendant’s good character were introduced at the resentencing hearing.

By defendant’s first assignment of error, defendant contends that the trial court committed reversible error by finding as an aggravating factor that defendant induced others to participate in the commission of the offense. This contention fails.

North Carolina General Statutes § 15A-1340.4(a)(l)(a)-(p) (Cum. Supp. 1992) sets out factors the trial court may find as aggravating. In particular, § 15A-1340.4(a)(1)(a) provides as a factor that “[t]he defendant induced others to participate in the commission of the offense[.] . . .” Defendant argues that the court improperly found this factor in aggravation, and the State offered no evidence in support of this factor. The basis for defendant’s argument is that the legislature, by using the word “the” in front of “offense”, only intended this factor to apply to instant offenses and not prior or subsequent offenses. Defendant argues that he did not induce anyone to commit the offenses for which he was convicted. On the contrary, we find the record contains more than sufficient evidence to support this finding in aggravation.

In determining whether to impose a prison term in excess of the presumptive sentence for a Class G felony of trafficking in cocaine, “the sentencing judge must consider the statutory aggravating and mitigating factors set out in N.C.G.S. Sec. 15A-1340.4(a), and may consider other aggravating and mitigating factors if reasonably related to the purposes of sentencing.” State v. Lloyd, 89 N.C. App. 630, 634, 366 S.E.2d 912, 915, disc. review denied, 322 N.C. 483, 370 S.E.2d 231 (1988); State v. Melton, 307 [80]*80N.C. 370, 373, 298 S.E.2d 673, 676 (1983). After each factor in aggravation or mitigation has been proven by a preponderance of the evidence, the judge, in his sound discretion, must find that the aggravating factors outweigh the mitigating factors before he can impose a term greater than the presumptive one. Lloyd, 89 N.C. App. 630, 366 S.E.2d 912.

Our Cburt has previously interpreted this particular aggravating factor by first defining the word “induce.” In State v. SanMiguel, 74 N.C. App. 276, 281, 328 S.E.2d 326, 330 (1985), our Court referred to Black’s Law Dictionary .which defined “induce” as “[t]o bring on or about, to affect, cause, to influence to an act or course of conduct, lead by persuasion or reasoning, incite by motives, prevail on.”

The evidence shows that defendant “induced” the involvement of Annetta, George and Angie Pugh in the sale and distribution of cocaine. Defendant supplied the house with cocaine from the purchases he made in New York. Undercover agents purchased cocaine directly from Annetta, George and Angie Pugh, and statements made by these individuals to the agents indicated that they were selling the cocaine for defendant. A typical sale involved an agent conversing with one of the three members of the household while defendant weighed and bagged the cocaine for sale. Annetta Pugh told one of the agents that defendant was the one who set the price for the crack cocaine. Clearly, defendant meant to “bring on or about” and “influence” the results of the crack cocaine sales. Accordingly, defendant’s contention that he did not induce anyone to commit these trafficking offenses is unfounded.

By defendant’s second assignment of error, defendant contends the trial court committed reversible error in finding as a statutory aggravating factor that defendant was convicted of a criminal offense punishable by more than sixty days confinement. We disagree.

Defendant asserts he was never convicted of the resisting arrest charge because the case was appealed. Evidence of this was presented through defendant’s testimony that he had not been convicted of anything, and through Deputy Cowan’s testimony that on the day defendant was convicted it was his “understanding” that notice of appeal was given. However, the State presented evidence from the official court record that no appeal was taken.

[81]*81In support of his argument, defendant relies on State v. Potts, 65 N.C. App. 101, 308 S.E.2d 754 (1983), disc. review denied, 311 N.C. 406, 319 S.E.2d 278 (1984), which requires the trial court to find aggravating and mitigating factors proved by “uncontradicted and manifestly credible evidence.” Our Supreme Court gave guidance in the determination of credibility of evidence in State v. Jones, 309 N.C. 214,

Related

State v. Walker
605 S.E.2d 647 (Court of Appeals of North Carolina, 2004)
State v. Monserrate
479 S.E.2d 494 (Court of Appeals of North Carolina, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
434 S.E.2d 615, 112 N.C. App. 76, 1993 N.C. App. LEXIS 1021, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-smallwood-ncctapp-1993.