{ "id": 9365693, "name": "STATE OF NORTH CAROLINA v. PHILLIP EUGENE BOYD", "name_abbreviation": "State v. Boyd", "decision_date": "2002-01-15", "docket_number": "No. COA99-1368-2", "first_page": "304", "last_page": "309", "citations": [ { "type": "official", "cite": "148 N.C. App. 304" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "548 S.E.2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": -1 }, { "cite": "353 N.C. 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135574 ], "year": 2001, "opinion_index": -1, "case_paths": [ "/nc/353/0568-01" ] }, { "cite": "541 S.E.2d 810", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": -1 }, { "cite": "141 N.C. App. 350", "category": "reporters:state", "reporter": "N.C. App.", "year": 2000, "opinion_index": -1 }, { "cite": "551 S.E.2d 106", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": -1 }, { "cite": "353 N.C. 729", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135619, 135982, 135568, 135706, 135866 ], "year": 2001, "opinion_index": -1, "case_paths": [ "/nc/353/0729-01", "/nc/353/0729-05", "/nc/353/0729-04", "/nc/353/0729-02", "/nc/353/0729-03" ] }, { "cite": "364 S.E.2d 410", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1988, "pin_cites": [ { "page": "413" }, { "page": "523" }, { "page": "413" }, { "page": "524" }, { "page": "413" } ], "opinion_index": 0 }, { "cite": "321 N.C. 520", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566165 ], "year": 1988, "pin_cites": [ { "page": "523" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0520-01" ] }, { "cite": "272 S.E.2d 128", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "142-43" } ], "opinion_index": 0 }, { "cite": "301 N.C. 407", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567847 ], "year": 1980, "pin_cites": [ { "page": "430-31" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0407-01" ] }, { "cite": "340 S.E.2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "70" } ], "opinion_index": 0 }, { "cite": "316 N.C. 24", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4695666 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0024-01" ] }, { "cite": "438 S.E.2d 751", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "753" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 415", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522714 ], "year": 1994, "pin_cites": [ { "page": "417" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0415-01" ] }, { "cite": "530 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413911 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/us/530/0466-01" ] }, { "cite": "505 S.E.2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "581" } ], "opinion_index": 0 }, { "cite": "349 N.C. 213", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571719 ], "year": 1998, "pin_cites": [ { "page": "216-17" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0213-01" ] }, { "cite": "516 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "131 N.C. App. 879", "category": "reporters:state", "reporter": "N.C. App.", "year": 1998, "opinion_index": 0 }, { "cite": "488 S.E.2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "346 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139648, 139656, 139603, 139610, 139675 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/346/0550-03", "/nc/346/0550-02", "/nc/346/0550-01", "/nc/346/0550-04", "/nc/346/0550-05" ] }, { "cite": "491 S.E.2d 563", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "126 N.C. App. 226", "category": "reporters:state", "reporter": "N.C. App.", "year": 1997, "opinion_index": 0 }, { "cite": "548 S.E.2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "731" } ], "opinion_index": 0 }, { "cite": "353 N.C. 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135574 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0568-01" ] } ], "analysis": { "cardinality": 594, "char_count": 13185, "ocr_confidence": 0.743, "pagerank": { "raw": 1.1397480804411707e-07, "percentile": 0.5781761793834312 }, "sha256": "a05357d76db90da89b6dd797e7b898ff21ce5be8562aaa0d4cc2699c62ba227c", "simhash": "1:c323526e463f0674", "word_count": 2159 }, "last_updated": "2023-07-14T20:14:25.013425+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and WYNN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. PHILLIP EUGENE BOYD" ], "opinions": [ { "text": "HUNTER, Judge.\nThis opinion supersedes and replaces our unpublished opinion in this case filed 29 December 2000. The following is a brief recitation of the facts necessary to the issues presented in this appeal.\nThis case arose from defendant\u2019s encounter with his girlfriend, Onjaya Scott, and her friend, Jacqueline Murphy, on 13 May 1995. On the night of 12 May 1995, Ms. Murphy was spending the night with Ms. Scott in Ms. Scott\u2019s apartment. The State\u2019s evidence tended to show that during the early morning of 13 May 1995, defendant entered the apartment, struck Ms. Scott in the face, pointed a gun at Ms. Murphy, and held the two women in the apartment for approximately two and one-half hours. During this time, he threatened to kill the women if they tried to run, and savagely beat Ms. Murphy with a rolling pin, fracturing both of her hands.\nDefendant was convicted of one count of simple assault on Ms. Scott, one count of assault with a deadly weapon with intent to kill inflicting serious bodily injury on Ms. Murphy, two counts of second degree kidnapping, and two counts of being an habitual felon. In defendant\u2019s first appeal, another panel of this Court found no error in defendant\u2019s trial, but vacated the sentence and awarded him a new sentencing hearing. State v. Boyd (COA96-662, unpublished opinion filed 6 May 1997), 126 N.C. App. 226, 491 S.E.2d 563, disc. review denied, 346 N.C. 550, 488 S.E.2d 811 (1997). In a second appeal, defendant contested his resentencing. Another panel of this Court again vacated his sentences and remanded for still another sentencing hearing. State v. Boyd (COA98-197, unpublished opinion filed 29 December 1998), 131 N.C. App. 879, 516 S.E.2d 652 (1998). In the present appeal, we are asked to review defendant\u2019s sentence.\nThe resentencing at issue here was conducted on 3 May 1999. The court imposed two consecutive sentences on defendant. The first sentence is based on defendant\u2019s conviction in 95CRS 14675 of Ms. Murphy, enhanced to a Class C felony by reason of defendant\u2019s habitual felon status. As to this offense, defendant received a minimum of 86 and a maximum of 113 months\u2019 imprisonment. The second sentence relates to the following consolidated offenses: (1) second degree kidnapping of Ms. Scott in 95CRS 14676, enhanced to a Class C felony by reason of habitual felon status, (2) assault with a deadly weapon inflicting serious injury on Ms. Murphy in 95CRS 14674, a Class E felony, and (3) simple assault on Ms. Scott in 95CRS 13585, a misdemeanor. For these consolidated offenses, defendant received a minimum of 108 and a maximum of 139 months\u2019 imprisonment. Pursuant to N.C. Gen. Stat. \u00a7 15A-1340.16A, the firearm enhancement section of the Structured Sentencing Act, the sentencing judge enhanced the punishment for these consolidated offenses by sixty months. Defendant\u2019s sentence for the consolidated offenses then became a minimum of 168 and a maximum of 211 months\u2019 imprisonment.\nThe firearm enhancement section of the Structured Sentencing Act provides:\n(a) If a person is convicted of a Class A, Bl, B2, C, D, or E felony and the court finds that the person used, displayed, or threatened to use or display a firearm at the time of the felony, the court shall increase the minimum term of imprisonment to which the person is sentenced by 60 months. The court shall not suspend the 60-month minimum term of imprisonment imposed as an enhanced sentence under this section and shall not place any person sentenced under this section on probation for the enhanced sentence.\n(b) Subsection (a) of this section does not apply in any of the following circumstances:\n(1) The person is not sentenced to an active term of imprisonment.\n(2) The evidence of the use, display, or threatened use or display of a firearm is needed to prove an element of the underlying Class A, Bl, B2, C, D, or E felony.\n(3) The person did not actually possess a firearm about his or her person.\nN.C. Gen. Stat. \u00a7 15A-1340.16A (1999).\nAt the outset, we address defendant\u2019s contention that evidence of the display or threatened use of a firearm in this case was necessary to prove the element of restraint in the underlying felony of second degree kidnapping, in violation N.C. Gen. Stat. \u00a7 15A-1340.16A(b)(2). Our own Supreme Court has made clear that even where a defendant displayed a firearm when he kidnapped and raped the victim, \u201cthe use or display of a firearm is not an essential element of second-degree kidnapping\u201d and thus, a trial court is \u201cnot precluded from relying on evidence of defendant\u2019s use of the firearm and enhancing defendant\u2019s term of imprisonment pursuant to the firearm enhancement section [in N.C. Gen. Stat. \u00a7 15A-1340.16A(b)(2)].\u201d State v. Ruff, 349 N.C. 213, 216-17, 505 S.E.2d 579, 581 (1998). Defendant\u2019s argument is without merit.\nDefendant next contends his sentence under the firearm enhancement provision in N.C. Gen Stat. \u00a7 15A-1340.16A must be vacated in light of the United States Supreme Court\u2019s recent decision in Apprendi v. New Jersey, because it subjected him to increased punishment which was not charged in the indictment, not submitted to a jury and not proven beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000). For the reasons stated in State v. Lucas, 353 N.C. 568, 548 S.E.2d 712, we agree with defendant\u2019s contention on this issue. In Lucas, our Supreme Court held that \u201cin every instance where the State seeks an enhanced sentence pursuant to N.C.G.S. \u00a7 15A-1340.16A, it must allege the statutory factors supporting the enhancement in an indictment. . . and submit those factors to the jury.\u201d Id. at 597-98, 548 S.E.2d at 731. Accordingly, since defendant\u2019s indictment failed to allege the statutory factors supporting enhancement, the imposition of the firearm enhancement penalty to defendant\u2019s sentence in this case is vacated and the case is remanded for resentencing consistent with the Supreme Court\u2019s decision in Lucas.\nDefendant next contends the trial court erred by using the aggravating factor that Ms. Murphy suffered permanent and debilitating injuries to increase defendant\u2019s sentence as to the consolidated judgment. Defendant concedes he raised this issue in his previous appeal. Indeed, a prior panel of this Court addressed defendant\u2019s contention and found no error in applying the aggravating factor to the entire consolidated judgment. \u201cAccording to the doctrine of the law of the case, once an appellate court has ruled on a question, that decision becomes the law of the case and governs the question both in subsequent proceedings in a trial court and on subsequent appeal.\u201d Weston v. Carolina Medicorp, Inc., 113 N.C. App. 415, 417, 438 S.E.2d 751, 753 (1994). Accordingly, this issue is not properly before this panel of our Court and we will not address it.\nIn his next assignment of error, defendant contends that during his second resentencing, the sentencing judge failed to apply the statutory mitigating factor that defendant supports his family pursuant to N.C. Gen. Stat. \u00a7 15A-1340.16(e)(17). Citing State v. Swimm, 316 N.C. 24, 340 S.E.2d 65 (1986), defendant points to the sentencing judge\u2019s statement that \u201c[t]he Court cannot find a mitigating factor\u201d to establish that the judge was operating under a misapprehension that he was precluded from considering mitigating factors not found at a previous sentencing hearing. In Swimm, our Supreme Court held that \u201c[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.\u201d Id. at 31, 340 S.E.2d at 70.\nAs the State maintains, the sentencing judge\u2019s statement is largely ambiguous. It could either imply that the sentencing judge thought he was not allowed to find a mitigating factor, or it may be read as a finding that the court did not, after consideration, find a mitigating factor. We find the latter interpretation more reasonable. The statement was made directly after the sentencing judge finished making its own findings as to the applicable aggravating factors in defendant\u2019s case. The State also points out that the sentencing judge began the hearing by asking the parties whether there would be any further evidence presented, and by accepting an affidavit in support of the mitigating factor now at issue. Furthermore, the sentencing judge heard defendant\u2019s argument as to why the new mitigating factor should be found and the court\u2019s written findings state that \u201cafter considering the evidence and arguments presented- at the trial and sentencing hearing, [the court] finds that the aggravating and mitigating factors marked, if any, were proven by a preponderance of the evidence.\u201d These facts tend to indicate that the trial court was not operating under a misapprehension of the law, but clearly understood that the resentencing hearing was a de novo proceeding. Defendant has not met his burden on appeal to show error. See, e.g., State v. Small, 301 N.C. 407, 430-31, 272 S.E.2d 128, 142-43 (1980).\nDefendant also contends that an affidavit he submitted to the trial court in the previous resentencing sufficiently established the mitigating factor that defendant supports his family under N.C. Gen. Stat. \u00a7 15A-1340.16(e)(17). A defendant has the burden of proving by a preponderance of the evidence the existence of mitigating factors. State v. Canty, 321 N.C. 520, 523, 364 S.E.2d 410, 413 (1988). Atrial judge is given wide latitude in determining the existence of mitigating factors. Id. at 523, 364 S.E.2d at 413. The trial court\u2019s failure to find a mitigating factor is error only when the evidence so clearly establishes the fact in issue such that \u201cno other reasonable inferences can be drawn from the evidence.\u201d Id. at 524, 364 S.E.2d at 413.\nDefendant\u2019s affidavit stated that while he was imprisoned, he settled a civil lawsuit for $2,000.00 and directed the proceeds to be disbursed to his former wife for the benefit of his minor child. This being the only evidence submitted indicating that defendant supported his minor child, it is quite possible that this is the only time defendant has offered support in favor of his minor child. Thus, defendant\u2019s evidence does not so clearly establish that defendant supports his family such that no other reasonable inference can be drawn. The sentencing judge thus did not err in refusing to find this mitigating factor.\nIn summary, we vacate the judgment entered for enhanced firearm penalty in cases 95CRS 13585, 95CRS 14674 and 95CRS 14676, and remand these cases for resentencing in accordance with our Supreme Court\u2019s decision in State v. Lucas.\nVacated and remanded for resentencing.\nJudges GREENE and WYNN concur.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Robert C. Montgomery, for the State.", "Daniel Shatz for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. PHILLIP EUGENE BOYD\nNo. COA99-1368-2\n(Filed 15 January 2002)\n1. Sentencing\u2014 second-degree kidnapping \u2014 use of firearm\nThe trial court was not precluded from enhancing the sentence of a second-degree kidnapping defendant for use of a firearm because the use or display of a firearm is not an essential element of second-degree kidnapping.\n2. Sentencing\u2014 firearm enhancement \u2014 indictment\u2014statutory factors\nA sentence under the firearm enhancement provision of N.C.G.S. \u00a7 15A-1340.16A was vacated and remanded where the indictment did not allege the statutory factors supporting enhancement.\n3. Appeal and Error\u2014 law of the case \u2014 prior Court of Appeals panel in same case\nA decision by a prior panel of the Court of Appeals on the same issue in the same case was the law of the case and governed on further appeal after remand and resentencing.\n4. Sentencing\u2014 resentencing \u2014 mitigating factor\nA kidnapping and rape defendant did not show error in his resentencing hearing where defendant contended that the judge\u2019s statement that he could not find a mitigating factor showed a misapprehension that he was precluded from finding factors not found at a previous hearing, but the statement was ambiguous and could also be read as stating that the judge was not finding a mitigating factor.\n5. Sentencing\u2014 mitigating factor \u2014 supporting family \u2014 insufficient evidence\nThe trial court did not err when sentencing defendant for kidnapping and rape by refusing to find as a mitigating factor that defendant supports his family where the only evidence submitted was that defendant had directed $2,000 from the settlement of a lawsuit to his former wife for the benefit of his child.\nOn remand based on an'order of the Supreme Court filed 19 July 2001, State v. Boyd (No. 34P01), 353 N.C. 729, 551 S.E.2d 106 (2001), remanding the unanimous decision of the Court of Appeals, State v. Boyd (COA99-1368, unpublished opinion filed 29 December 2000), 141 N.C. App. 350, 541 S.E.2d 810 (2000), for reconsideration in light of the Supreme Court\u2019s opinion in State v. Lucas, 353 N.C. 568, 548 S.E.2d 712 (2001). Appeal by defendant from judgments entered 3 May 1999 by Judge Orlando F. Hudson in Durham County Superior Court. Originally heard in the Court of Appeals 11 October 2000.\nAttorney General Michael F. Easley, by Assistant Attorney General Robert C. Montgomery, for the State.\nDaniel Shatz for defendant-appellant." }, "file_name": "0304-01", "first_page_order": 334, "last_page_order": 339 }