State v. Isom

• Decision Date: 06 December 1983
• Docket Number: No. 8319SC82,8319SC82
• Citation: 309 S.E.2d 283,65 N.C.App. 223
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Tyrone ISOM.

Page 283

309 S.E.2d 283

65 N.C.App. 223

STATE of North Carolina v. Tyrone ISOM.

No. 8319SC82.

Court of Appeals of North Carolina.

Dec. 6, 1983.

Atty. Gen., Edmisten by Special Deputy Atty. Gen., Isham B. Hudson, Jr., Raleigh, for the State.

Nancy C. Northcott, Concord, for defendant-appellant.

BRASWELL, Judge.

Elton Allison, about sixty-eight years old, blind and somewhat hard of hearing, was asleep on his couch in his home at 3:00 a.m. on the night of 7 July 1982. A blow from a stick across his head awakened Mr. Allison, and a man's voice said, "I'm going to kill you." During an altercation with the man, Mr. Allison's jaw and shoulder were hit, and his mouth bled. The glass window over the couch was broken. Dresser drawers were ransacked. A wallet with $20 was taken by the intruder. A neighbor who had been watching television heard yells from Mr. Allison, went and investigated, saw the defendant whom he knew inside the house, and called the police. Tyrone Isom, the defendant, was convicted of first-degree burglary and robbery with a dangerous weapon of Mr. Allison. From the imposition of two, forty-year consecutive sentences of imprisonment, the defendant appeals.

The evidence reveals that the object with which Mr. Allison had been assaulted was a sawed-off pool cue which Allison used for a walking stick. The pool cue was broken in the altercation. The wallet and money were recovered from the person of the defendant upon his arrest a short while later on the same night.

Mr. Isom testified that as he was walking home that night he passed Mr. Allison's house; that Mr. Allison was in the door and called to him; that Mr. Allison was angry because someone had told Allison that Isom had broken into Allison's house before and had taken all his liquor and beer; that Allison hit him on the arm; and that he took the stick from Allison, hit him in the jaw, hit him three or four times, broke the stick, and walked out. The defendant during cross-examination by the State acknowledged that the fight occurred because "a blind man called you across the street while you were just simply quietly walking down the road and started assaulting you."

At the sentencing hearing, Mr. Isom testified again. For a first time he said that between 8:00 p.m. and 2:30 a.m. on the night in question he "had a pint and a half of vodka, two marijuana cigarettes, nine beers and three or four hits of speed"; that he knew everything he was doing because he "can handle it" and doesn't "let it get him crazy"; and that "I drink it in a sensible way, you know."

In his brief the defendant argues error: (1) by a variance between the name of the victim in the bills of indictment and the evidence; (2) by the reception of hearsay evidence about the back door of the house; and (3) by the sentences being unduly harsh and not supported by the evidence. Upon a careful review of the specific questions as raised, we find no merit and reject these assignments of error. To the assignment of error that the sentences imposed were based upon improper findings of aggravating factors, we reverse as to some factors as specifically mentioned below, and award a new sentencing hearing.

On the issue of variance between the indictment and the evidence, we find that the defendant did not raise the question in the trial division. For a first time he would have this court find that the indictments "are fatally defective in that they identify the victim incorrectly." We disagree. Each indictment names the victim as "Eldred Allison." At trial, the victim said his name was "Elton Allison." However, his wallet identification indicated his name was "Elred." At trial, the defendant referred to the victim as "Elred Allison." We hold that the names "Eldred," "Elred," and "Elton" are sufficiently similar to fall within the doctrine of idem sonans. The variance is wholly immaterial. See State v. Williams, 269 N.C. 376, 152 S.E.2d 478 (1967), "Mateleane" for "Madeleine." See also, State v. Higgs, 270 N.C. 111, 153 S.E.2d 781 (1967), "Beauford Merrill" for "Burford Murril"; State v. Vincent, 222 N.C. 543, 23 S.E.2d 832 (1943), "Vincent" for "Vinson"; and State v. Gibson, 221 N.C. 252, 20 S.E.2d 51 (1942), "Robinson" for "Rolison."

As to the alleged use of hearsay testimony, this challenge comes from what one police officer said to another. During the testimony of police officer R.E. Cauthen, he related that Officer H.W. Black also came to the scene. They talked. Cauthen was then asked, "Now, what description did you give to Officer Black here?" With the objection being overruled, the witness answered, "Advised that we were looking for a black male with light colored pants on and a darker shirt." No motion to strike was made. Thereafter, the witness was asked, and answered without any objection, as to what description Jeffrey Roberson had given him of the clothing Mr. Isom was wearing. We also note that when Mr. Isom testified he readily admitted that he had been inside Allison's house. We hold that the first question to Officer Cauthen was not hearsay. The answer called for facts within the personal knowledge of Cauthen and concerned a transaction in which he personally engaged. Here, Officer Cauthen was the declarant. The answer was also admissible to corroborate Roberson's description which was received without objection. Evidence of similar import was received from others. There has been no showing of a reasonable possibility that had the alleged error in question not been committed, a different result would have been reached at trial. G.S. 15A-1443(a). There was no prejudice in the admission of the challenged proper and relevant evidence.

The defendant also argues that the relevance of some of the State's evidence was outweighed by its prejudicial effect. Under this assignment he protests his cross-examination by the State as to his awareness of the blindness and hearing problem of the victim. Also, he contends that the cross-examination concerning his prior criminal record was improper. We have carefully examined each of these assignments, find nothing new or novel involved, and hold that the appellant has failed to show any error in the admission of any of this evidence.

Of similar vein is the defendant's contention that evidence was received from State's witness Jeffrey Roberson that was not within his personal knowledge. Roberson, from all the evidence, heard and saw defendant inside Allison's house, called the police, and talked to the officers at the scene. Roberson said, "As the police was talking to me, they was questioning me about the door. Did I know which--how he might have got in and I told them where the back door was." The defendant's objection to this statement was overruled. Thereafter, Roberson testified without objection that he observed the back door, that the piece around the latch was broken out and the bottom hinge was broken off, and that it was "just hanging there." Later, Officer Cauthen, without objection, described the rear door and said that "[a]round the latching device was broken off like it had been forced open. The wood [on the facing of the door] was broken and also one of the hinges was broken on the door." Previously, the victim had stated that he had checked his back door before lying down for the evening and that it was closed. Under these circumstances Roberson's telling the officers "where the back door was" was not error, or if error, was not prejudicial. The State merely presented to the jury evidence from which it could find factually a means for proof of the elements of breaking and entering within the charge of burglary. In context, the answer of Roberson was relevant and does not constitute prejudicial error.

The next issue asks whether the imposition of consecutive forty-year sentences was unduly harsh and unsupported by the evidence. From a thorough reading of the record, we answer no. The terms of imprisonment were within the range permitted by law. First-degree burglary, a Class C felony, carries a maximum penalty of life imprisonment or a term of fifty years. G.S. 14-52; G.S. 14-1.1. Having found that the aggravating factors exceed the mitigating factors [there were no mitigating factors], the trial judge was within his discretion to enhance the term of imprisonment to 40 years. State v. Melton, 307 N.C. 370, 380, 298 S.E.2d 673, 680 (1983). On the offense of robbery with a dangerous weapon, a Class D felony, the maximum term of imprisonment is forty years. G.S. 14-87(a); G.S. 14-1.1. As explained in the Institute of Government publication by S. Clarke & E. Rubinsky, North Carolina's Fair Sentencing Act: Explanation, Text, and Felony Classification Table, at 7 (rev. 1981), "[t]he act continues existing law by giving the sentencing judge full discretion to: ... (2) impose ... consecutive terms for multiple offenses." Thus, a statutory permissible sentence of less than life imprisonment of forty years plus forty years is not an abuse of discretion. The defendant's further challenge by brief that the evidence does not support the sentence amounts to a broadside exception. This sweeping exception to the entry of judgment raises only the question of whether there is error or fatal defect upon the face of the record proper. State v. Talbert, 285 N.C. 221, 203 S.E.2d 835 (1974). Upon a review of the record we find no error or fatal defect upon its face.

We turn now to the question of the validity of the findings of aggravating factors in sentencing. Pursuant to State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983), the judge listed separately for each offense the aggravating factors which he found, and then stated "[t]hat no factors in mitigation were proven by the preponderance of the evidence and there is no believable evidence to support any mitigating factors." For each offense the judge found as aggravating factors that:

1. The victim was elderly and blind.

2. The defendant has a prior conviction or convictions...