{
  "id": 8520659,
  "name": "STATE OF NORTH CAROLINA v. HENRY TURNER",
  "name_abbreviation": "State v. Turner",
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    "judges": [
      "Judge EAGLES concurs.",
      "Judge PHILLIPS concurs in the result."
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      "STATE OF NORTH CAROLINA v. HENRY TURNER"
    ],
    "opinions": [
      {
        "text": "WYNN, Judge.\nFrom a judgment imposing an eighteen-year sentence following his plea of guilty and conviction of attempted first degree sexual offense and attempted indecent liberties with a child, defendant appeals. For the reasons that follow, we find no error. .\nI\nAt the sentencing hearing, the State presented evidence which tended to show that on 18 February 1989, the defendant along with Chuckie Stump (\u201cStump\u201d) and David Hicks (\u201cHicks\u201d) went to a house party given by Chuckie\u2019s sister, Rhonda Stump. During the course of the evening, two minor children, the twelve-year-old prosecutrix and her seven-year-old sister, were left at the residence by their mother to be cared for by Rhonda Stump while their mother was working. Later that night after the party had ended, the three men were allowed to sleep in the living room along with the victim while Rhonda Stump slept with her boyfriend and the younger child in the only bedroom in the house. On being left alone with the victim, two of the men engaged in sexual activities including intercourse with her starting with Stump and followed by Hicks. After encouragement by his two companions, the defendant tried to have sex with the prosecutrix but stopped when she started crying. Testimony from Hicks established that the defendant penetrated the victim prior to stopping.\nDefendant admitted that he attempted to have sex with the victim but denied that he penetrated her.\nEvidence was also presented that the victim had an I.Q. in the mildly handicapped range and a developmental age of six years and two months. The prosecuting witness did not testify.\nThe pleas were consolidated for judgment and defendant was sentenced to eighteen years imprisonment.\nII\nThe defendant assigns error primarily to the trial judge\u2019s findings of factors in aggravation and mitigation at his sentencing hearing. With respect to such factors, the state has the burden of proving that aggravating factors exist, and the defendant has the burden of proving that mitigating factors exist; proof of aggravating and mitigating factors must be by a preponderance of the evidence, and it must be shown that such factors are reasonably related to the purposes of sentencing. N.C. Gen. Stat. \u00a7 15A-1340.4(a) (1988); State v. Canty, 321 N.C. 520, 364 S.E.2d 410 (1988). Having established what must be proven, we turn to the assignments of error with respect to factors in aggravation in this case.\nBy his first assignment of error, defendant contends that the trial judge erred by finding as an aggravating factor that there was vaginal penetration by defendant. He makes two contentions: 1) that the trial court\u2019s finding of a factor in aggravation based on evidence of the crime of first degree rape was improper in that it was not the charge to which defendant pled guilty and allowing it as an aggravating factor violated his due process rights, and 2) the evidence of vaginal penetration is suspect in that the State did not prove it by a preponderance of the evidence.\nWith respect to defendant\u2019s first contention, the issue is controlled by State v. Melton, 307 N.C. 370, 298 S.E.2d 673 (1983), wherein our Supreme Court held that it is not a violation of defendant\u2019s constitutional due process rights to consider as an aggravating factor an element of a greater charge dropped in exchange for a plea bargain for a lesser included offense where the dismissed charge is not used in aggravation. Accord State v. Parker, 92 N.C. App. 102, 373 S.E.2d 558 (1988), disc. review denied, 324 N.C. 250, 377 S.E.2d 760 (1989). Thus, defendant\u2019s first contention is without merit.\nAs to defendant\u2019s second contention, at trial, defendant stipulated to the introduction of State\u2019s Exhibit 2 which was offered to show that there was evidence to justify the original charge of first degree rape and that there was some penetration. Having made that stipulation, defendant cannot be heard to complain on appeal. Further, the victim told the police that there was vaginal penetration and David Hicks testified that the defendant had \u201cput his penis in her private spot.\u201d Based upon those facts, we find that there was proof by a preponderance of the evidence that vaginal penetration occurred and therefore, -this assignment of error is without merit.\nDefendant\u2019s next assignment of error is to the trial judge\u2019s finding as an aggravating factor that the victim was especially vulnerable in that she had an I.Q. in the mildly handicapped range (45-60) and that her development age was 6 years and 2 months. He contends that several witnesses described Patricia Baker as appearing like any normal 12 year old and that in the report which discusses her I.Q. and developmental age, it is stated that her \u201cattitude and behavior in the classroom are excellent.\u201d These contentions are unavailing.\nFirst, the defendant fails to cite any authority in support of his argument as required by N.C. R. App. P. 28(b)(5) (1990). Failure to comply with that rule subjects the assignments of error to abandonment. S.J. Groves & Sons & Co. v. State, 50 N.C. App. 1, 273 S.E.2d 465 (1980), disc. review, denied, 302 N.C. 396, 279 S.E.2d 353 (1981). However, we will suspend the operation of Rule 28(b)(5) and consider this assignment of error pursuant to our authority under N.C. R. App. P. 2 (1990).\nSecond, our Supreme Court has held that a trial judge can use an aggravating factor not set forth in N.C. Gen. Stat. \u00a7 15A-1340.4(a)(l), as long as the judge finds that factor by a preponderance of the evidence and as long as the factor reasonably relates to the purposes of sentencing. State v. Thompson, 310 N.C. 209, 311 S.E.2d 866 (1984), rev\u2019d on other grounds, 321 N.C. 570, 364 S.E.2d 73 (1984). Moreover, a finding in aggravation that the victim was particularly vulnerable is proper where the defendant takes advantage of the victim\u2019s vulnerability during the actual commission of the crime. State v. Thompson, 318 N.C. 395, 348 S.E.2d 798 (1986).\nIn the case at bar, the defendant testified that he knew that Rhonda Stump was baby-sitting for the victim and that he had seen the victim on previous occasions at her mother\u2019s store and knew who she was. The facts also show that the defendant had the opportunity to observe the victim at Rhonda Stump\u2019s apartment all that evening. The statements of co-defendant Hicks, corroborated by defendant\u2019s statements, establish that the defendant was not the first of the three men to assault the victim; he had the opportunity to observe her behavior while either Hicks or Stump was sexually assaulting her and joined in the offense only at their encouragement. Further, the State produced a psychoeducational evaluation of the victim conducted nine months after the assault which established that the victim had a developmental age of six years and two months, that her I.Q. fell in the moderately handicapped range and that her comprehension and expressive skills were clearly quite low. This evidence was sufficient for the trial judge to find by a preponderance that the victim was particularly vulnerable.\nThe final aggravating factor to which defendant assigns error is to the finding of a prior conviction for purposes of aggravating his sentence. He contends that the state must make an adequate showing as to whether the defendant was indigent or had counsel at the time of the offense which is being offered to support the aggravating factor of a past conviction.\nDefendant\u2019s statement of the law is correct as set forth in State v. Thompson, 309 N.C. 421, 307 S.E.2d 156 (1983), but the burden of raising the issue of indigency and lack of assistance of counsel on a prior conviction is on the defendant. Id. Here, the defendant failed to object or move to suppress the evidence of the prior conviction because of his indigency and lack of counsel. \u201cWhere a defendant stands silent and, without objection or motion, allows the introduction of evidence of a prior conviction, he deprives the trial division of the opportunity to pass on the constitutional question and is properly precluded from raising the issue on appeal.\u201d Id. at 426, 307 S.E.2d at 160; see also N.C. Gen. Stat. \u00a7 15A-980 (1988). Since the defendant neither objected nor moved to suppress the evidence of the prior conviction, he is precluded from raising the issue of his indigency and lack of counsel on appeal. This assignment of error is overruled.\nIll\nWe turn now to defendant\u2019s assignments of error with respect to factors in mitigation. The trial judge found as mitigating factors that defendant aided in the apprehension of another felon; that he voluntarily acknowledged wrongdoing at an early stage; and that he agreed to testify against his co-defendants (a non-statutory mitigating factor).\nDefendant assigns error to the trial judge\u2019s failure to find that he was a passive participant. He contends that because his role in the offense was minor, the trial judge should have found that he was a passive participant to diminish his culpability.\nIn support of his contention that he was a passive participant, defendant cites State v. Jones, 309 N.C. 214, 306 S.E.2d 451 (1983). While Jones is instructive on this issue, it does not support defendant\u2019s argument. In Jones, the defendant tried to persuade a co-defendant not to shoot a convenience store clerk after they had robbed the store. In the case at bar, defendant did not object to the actions of Hicks and Chuckie Stump; he did not attempt to persuade them to stop and, in fact, he attempted to have sex with the victim at Hicks\u2019s encouragement. We find no error in the trial judge\u2019s refusal to find that the defendant was a passive participant. This assignment of error is overruled.\nDefendant next assigns as error the trial judge\u2019s refusal to find as a mitigating factor that defendant is of good character. He contends that the record taken in its entirety provides, by a preponderance of the evidence, that he is a person of good character. When a defendant argues that the trial judge erred in failing to find a mitigating factor, proved by uncontradicted evidence, he is \u201casking the court to conclude that \u2018the evidence so clearly establishes that fact in issue that no reasonable inferences to the contrary can be drawn,\u2019 and that the credibility of the evidence \u2018is manifest as a matter of law.\u2019 \u201d Id. at 219-20, 306 S.E.2d at 455 (citations omitted). Here, the defendant has not cited any evidence that is manifestly credible. He has thereby failed to carry his burden of proof on appeal. Further, the record establishes, at best, that there is an absence of bad character. The absence of bad character does not establish good character. State v. Benbow, 309 N.C. 538, 308 S.E.2d 647 (1983). We find no merit to defendant\u2019s assignment of error and therefore it is overruled.\nIV\nFinally, defendant assigns error to the trial judge\u2019s failure to make separate findings of aggravating and mitigating factors for each offense. He also assigns error to the trial judge\u2019s finding that the aggravating factors outweighed the mitigating factors in sentencing defendant to a term beyond the presumptive term for the offenses to which he pled guilty.\nWith respect to defendant\u2019s contention that the trial judge should have found factors in aggravation and mitigation for each separate offense, we find that State v. Miller, 316 N.C. 273, 341 S.E.2d 531 (1986), is controlling. In Miller, the Supreme Court held:\nWhen cases are consolidated for judgment and the judge finds aggravating and mitigating factors as to the most serious offense, but fails to make such findings as to the lesser offenses consolidated, the defendant is not prejudiced so long as the sentence given does not exceed the maximum sentence permissible for the most serious offense.\n316 N.C. at 284, 341 S.E.2d at 537.\nIn the case at bar, the maximum sentence allowable for the more serious felony, attempted first degree sexual offense is twenty years, a period in excess of the 18 years received by the defendant. The defendant benefited from his plea bargain by having his convictions consolidated for judgment and receiving a sentence less than the 20 years allowed for the more serious offense; he is not entitled to an additional benefit of separate findings as to the lesser of the consolidated offenses.\nWith respect to defendant\u2019s assignment of error to the trial judge\u2019s finding that the factors in aggravation outweighed the factors in mitigation, this court has held that the weight given to each factor and the decision to increase or decrease the presumptive sentence is within the sound discretion of the trial judge. State v. Davis, 58 N.C. App. 330, 333, 293 S.E.2d 658, 661 (1982), disc. review denied, 306 N.C. 745, 295 S.E.2d 482. \u201cA judgment will not be disturbed because of sentencing procedures unless there is a showing of abuse of discretion, procedural conduct prejudicial to defendant, circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play.\u201d State v. Ahearn, 307 N.C. 584, 598, 300 S.E.2d 689, 697 (1983) (citations omitted).\nIn the case at bar, defendant cites no authority to substantiate any claim of error. Nor has he shown that the trial judge abused his discretion. Accordingly, we find that the trial judge committed no error in sentencing defendant beyond the presumptive term.\nV\nFor the foregoing reasons, in the decision of the trial judge at the sentencing hearing we find,\nNo error.\nJudge EAGLES concurs.\nJudge PHILLIPS concurs in the result.",
        "type": "majority",
        "author": "WYNN, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Assistant Attorney General Angelina M. Maletto, for the State,",
      "Wayne E. Crumwell for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. HENRY TURNER\nNo. 9017SC474\n(Filed 2 July 1991)\n1. Criminal Law \u00a7 1099 (NCI4th) \u2014 attempted sexual offense and indecent liberties \u2014penetration as aggravating factor\nIt is not a violation of a defendant\u2019s due process rights to consider as an aggravating factor an element of a greater charge dropped in exchange for a plea bargain for a lesser included offense. Therefore, defendant\u2019s due process rights were not violated by the trial court\u2019s finding as an aggravating factor for attempted first degree sexual offense and attempted indecent liberties with a child to which defendant pled guilty that there was vaginal penetration by defendant.\nAm Jur 2d, Assault and Battery \u00a7 55; Criminal Law \u00a7\u00a7 598, 599.\n2. Criminal Law \u00a7 1099 (NCIdtJh) \u2014 aggravating factor \u2014 penetration \u2014 sufficiency of evidence\nThe trial court\u2019s finding as an aggravating factor for attempted sexual offense and attempted indecent liberties that there was vaginal penetration by defendant was supported by a preponderance of the evidence where defendant stipulated to the admission of an exhibit offered to show that there was some penetration; there was evidence that the victim told the police that there was vaginal penetration; and a code-fendant testified that defendant \u201cput his penis in her private spot.\u201d\nAm Jur 2d, Assault and Battery \u00a7 55; Criminal Law \u00a7\u00a7 598, 599.\n3. Criminal Law \u00a7 1166 (NCI4th)\u2014 aggravating factor \u2014 low I.Q. and development range\nThe evidence supported the trial court\u2019s finding as an aggravating factor for attempted sexual offense and attempted indecent liberties that the twelve-year-old victim was especially vulnerable in that she had an I.Q. in the mildly handicapped range and her development age was six years and two months where it tended to show that defendant went to a party given by a person who was baby-sitting the victim; defendant had seen the victim on previous occasions at her mother\u2019s store and knew who she was; defendant had the opportunity to observe the victim all evening during the party; defendant observed the victim\u2019s behavior while two codefendants were sexually assaulting her and joined in the offense only at their encouragement; and the State introduced a psychoeducational evaluation of the victim conducted nine months after the assault which established that the victim had a developmental age of six years and two months, that her I.Q. fell in the moderately handicapped range and that her comprehension and expressive skills were quite low.\nAm Jur 2d, Assault and Battery \u00a7 55; Criminal Law \u00a7\u00a7 598, 599.\n4. Criminal Law \u00a7 1187 (NCI4th)\u2014 aggravating factor \u2014 prior conviction \u2014 failure to raise lack of counsel issue\nThe burden of raising the issue of indigency and lack of assistance of counsel on a prior conviction is on the defendant, and where defendant failed to object or move to suppress the evidence of a prior conviction, he is precluded from raising on appeal the issue of his indigency and lack of counsel.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599; Habitual Criminals and Subsequent Offenders \u00a7 9.\n5. Criminal Law \u00a7 1218 (NCI4th)\u2014 mitigating factor \u2014 passive participant \u2014 finding not required\nThe trial court did not err in failing to find as a mitigating factor for an attempted sexual offense that defendant was a passive participant where defendant did not object to sexual assaults on the victim by the two codefendants and attempted to have sex with the victim at the encouragement of one codefendant.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\n6. Criminal Law \u00a7 1267 (NCI4th) \u2014 mitigating factor \u2014good character \u2014finding not required\nThe trial court did not err in failing to find as a mitigating factor that defendant is of good character where the record established, at best, only an absence of bad character.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\n7. Criminal Law \u00a7 1086 (NCI4th)\u2014 two offenses \u2014 consolidated judgment \u2014 aggravating and mitigating factors \u2014 absence of findings for each offense\nWhere offenses of attempted first degree sexual offense and attempted indecent liberties with a child were consolidated for judgment, and the sentence imposed did not exceed the maximum sentence allowable for the more serious felony, defendant was not prejudiced by the trial court\u2019s failure to make separate findings of aggravating and mitigating factors for each offense.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\nAPPEAL by defendant from judgment entered 13 December 1989 in CASWELL County Superior Court by Judge Melzer A. Morgan, Jr. Heard in the Court of Appeals 15 January 1991.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Angelina M. Maletto, for the State,\nWayne E. Crumwell for defendant-appellant."
  },
  "file_name": "0331-01",
  "first_page_order": 361,
  "last_page_order": 370
}
