State v. Jones

• Decision Date: 15 October 1991
• Docket Number: No. 9019SC1180,9019SC1180
• Citation: 104 N.C.App. 251,409 S.E.2d 322
• Parties: STATE of North Carolina v. Stephen Brian JONES.
• Court: North Carolina Court of Appeals

Page 322

409 S.E.2d 322

104 N.C.App. 251

STATE of North Carolina v. Stephen Brian JONES.

No. 9019SC1180.

Court of Appeals of North Carolina.

Oct. 15, 1991.

Atty. Gen. Lacy H. Thornburg, by Asst. Atty. Gen. Thomas B. Wood, Raleigh, for State.

William D. Arrowood, Concord, for defendant-appellant.

JOHNSON, Judge.

The evidence at trial tended to show that the victim, Rico Wallace, was visiting at the Smith home when the defendant came to the door and knocked. At the time, the house contained several adults and young children. Upon admittance to the house, the defendant went directly to a bedroom where he had earlier left his gun for safe-keeping. In the room at the time were Tawanda Ann Smith and a fourteen year old boy. Tawanda testified that the defendant put his gun to the boy's head and asked him "Who got my cocaine from off the corner?" Defendant then went into the living room where he questioned Rico as to the whereabouts of the cocaine that defendant said Rico had taken from him. When Rico denied knowledge of the cocaine the defendant went outside and questioned others who were in the yard. Rico followed defendant to the yard. Following further argument defendant pulled his gun and shot Rico in the foot. As Rico fled into the house, defendant shot several more times in his direction, the bullets hitting the glass in the door and several striking a wall in the interior of the house. Several people were in the house at the time and a two year old child was standing in the doorway when the shooting began.

Defendant testified that he had been robbed earlier at gunpoint by Rico and that when he and Rico were in the yard he saw Rico reach into his pocket and pull a gun, causing the defendant to shoot first in self-defense. The victim denied having a gun.

I.

Defendant first contends that the trial court erred in admitting evidence that the defendant placed a gun to the head of the fourteen year old boy when questioning him regarding the stolen cocaine. This evidence was offered by the State during the testimony of Tawanda Smith. The act testified to occurred when defendant entered the bedroom to retrieve his gun and just before he confronted the victim in the living room and then shortly thereafter in the front yard where the shooting took place. The trial judge heard the evidence on voir dire, found the evidence admissible to show motive or intent and so instructed the jury. There is no evidence in the transcript that the judge explicitly weighed the probativeness of the evidence against the prejudice to the defendant. Defendant admits that the testimony was admissible under Rule 404(b) of the North Carolina Rules of Evidence, G.S. § 8C-1, for the purpose of showing motive. He argues that it should have been excluded because its probative value is outweighed by its prejudicial effect. G.S. § 8C-1, Rule 403.

Rule 403 requires the exclusion of evidence, even though relevant, "if its probative value is substantially outweighed by the danger of unfair prejudice[.]" "Unfair prejudice" in the context of Rule 403 means "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, as an emotional one." Commentary, G.S. § 8C-1, Rule 403 (1988); State v. DeLeonardo, 315 N.C. 762, 340 S.E.2d 350 (1986). While evidence which is probative of the state's case will necessarily have a prejudicial effect on the defendant, the question is one of degree. State v. Mercer, 317 N.C. 87, 343 S.E.2d 885 (1986). We must decide whether the prejudicial effect of the testimony at issue is "undue" or substantially outweighs its probative value so as to require exclusion. Id. at 95, 343 S.E.2d at 889.

We find that this evidence was properly admitted. The defendant testified that he drew his gun and shot the victim in self-defense. The evidence in question was relevant and admissible to show that defendant in fact shot because he believed that the victim had stolen cocaine from him. The conduct at issue occurred within the few minutes just before the shots were fired and within the same continuous sequence of events when defendant questioned first the boy and then the victim about the stolen drugs. It therefore is probative of defendant's motive and intent. The prejudicial effect is not "undue" given the probative nature of the evidence, the fact that the defendant admitted the shooting, the testimony of the victim and another eyewitness. The judge did not abuse his discretion in admitting this evidence. This assignment of error is overruled.

II.

Following the jury verdict of guilty on both charges, the trial court made findings of aggravating and mitigating factors for purposes of sentencing. As to both charges, the court found the statutory mitigating factor that the defendant had no record of prior criminal convictions. As to each charge the court found one non-statutory aggravating factor. For both charges, the court found that the aggravating factor outweighed the mitigating factor and sentenced the defendant to a prison term greater than the presumptive.

Defendant contends that the trial court erred in finding in aggravation of the assault conviction, that the victim's physical injury caused great monetary damage to the victim. He relies upon State v. Bryant, 318 N.C. 632, 350 S.E.2d 358 (1986) and State v. Sowell, 318 N.C. 640, 350 S.E.2d 363 (1986). In both Bryant and Sowell the defendant was convicted of assault with a deadly weapon with intent to kill inflicting serious injury. In each case the trial judge found the statutory aggravating factor that the offense involved damage causing great monetary loss, G.S. § 15A-1340.4(a)(1) m. The Supreme Court held in each case that the statutory aggravating factor found in G.S. § 15A-1340.4(a)(1)m, referring to "damage causing great monetary loss," properly encompassed only monetary loss resulting from damage to property, not personal injury. Bryant, 318 N.C. at 635, 350 S.E.2d at 360; Sowell, 318 N.C. at 641, 350 S.E.2d at 364. But in dictum, the Bryant Court stated: "none of this discussion should be interpreted as a ruling by this Court that under no circumstances may the financial burden imposed upon the victim by his or her injury ever be considered a non-statutory aggravating factor. We merely hold that consideration of that factor is not statutorily mandated." 318 N.C. at 637, 350 S.E.2d at 361. Thus, there are circumstances under which the financial burden imposed upon the victim by his injury may be used as a non-statutory aggravating factor and neither Bryant nor Sowell prevents us from considering this issue.

Having decided that this factor may be considered in sentencing, we find that there are still two questions before us: (1) whether the evidence presented by the State is sufficient to support the non-statutory aggravating circumstance and (2) even assuming, arguendo, that this factor is sufficiently proved, whether under the facts of this case, the factor is proper as a matter of law. We find that under the facts of this case such a finding is in error.

Under the Fair Sentencing Act a trial judge may consider any non-statutory aggravating or mitigating factor which is proved by a preponderance of the evidence and which is reasonably related to the purposes of sentencing. G.S. § 15A-1340.4(a). The State bears the burden of proof if it wishes to establish the existence of an aggravating factor. State v. Jones, 309 N.C. 214, 306 S.E.2d 451 (1983). Where the State presents insufficient evidence to support an aggravating circumstance the defendant is entitled to a new sentencing hearing. State v. Thompson, 314 N.C. 618, 336 S.E.2d 78 (1985); State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983). In State v. Brown, 312 N.C. 237, 321 S.E.2d 856 (1984), the trial court found as an aggravating factor that the defendant caused serious mental injury to the victim. The only evidence offered by the State in support of this factor was a statement by the district attorney that he had been told by the victim's husband that she had entered the hospital after testifying at trial, had been heavily sedated and was resting at home. The husband did not testify, nor did the State offer any medical testimony or medical reports to support its contention that the victim suffered a serious mental injury caused by the defendant's actions. Our Supreme Court found this evidence to be insufficient. Brown, 312 N.C. at 249-250, 321 S.E.2d at 863.

In the case sub judice, evidence concerning the victim's medical bills and his lack of insurance was placed before the court solely by the oral representation of the prosecuting attorney. No bills or records or other evidence was submitted. The victim did not testify nor did the defendant stipulate to the amounts or existence of the medical bills. We hold that the State presented insufficient evidence to support the non-statutory aggravating factor that the injury caused great monetary damage to the victim. Defendant is therefore entitled to a new sentencing hearing. Ahearn, 307 N.C. 584, 300 S.E.2d 689.

Normally, at a resentencing hearing, the State would be permitted to present proper evidence in support of an aggravating factor and the defendant would be permitted to rebutt that evidence if he could. State v. Jones, 314 N.C. 644, 336 S.E.2d 385 (1985) (A resentencing hearing is a de novo proceeding at which the trial judge may find aggravating and mitigating factors without regard to the findings made at the prior sentencing hearing.) We expect that the State in this case would attempt to present evidence at the resentencing hearing which would properly prove the existence of this factor. We therefore continue our analysis and inquire as to whether, under the facts of the case sub judice, this factor can be properly found even assuming that the State meets its burden of proof. We hold that it cannot.

We note first that the defendant was convicted of assault with a deadly weapon inflicting serious...