{ "id": 8920515, "name": "STATE OF NORTH CAROLINA, Plaintiff v. LESTER DISTANCE and TREMAINE LANGLEY, Defendants", "name_abbreviation": "State v. Distance", "decision_date": "2004-04-20", "docket_number": "No. COA03-165", "first_page": "711", "last_page": "719", "citations": [ { "type": "official", "cite": "163 N.C. App. 711" } ], "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": "289 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569669 ], "year": 1976, "opinion_index": -1, "case_paths": [ "/nc/289/0372-01" ] }, { "cite": "348 S.E.2d 798", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "800" } ], "opinion_index": 0 }, { "cite": "318 N.C. 395", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4737458 ], "year": 1986, "pin_cites": [ { "page": "398" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0395-01" ] }, { "cite": "404 S.E.2d 12", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "15" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 777", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525759 ], "year": 1991, "pin_cites": [ { "page": "781" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0777-01" ] }, { "cite": "317 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "88" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 392", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526350 ], "year": 1984, "pin_cites": [ { "page": "396" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0392-01" ] }, { "cite": "333 S.E.2d 288", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "294" } ], "opinion_index": 0 }, { "cite": "314 N.C. 256", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4690513 ], "year": 1985, "pin_cites": [ { "page": "264" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0256-01" ] }, { "cite": "343 S.E.2d 848", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1986, "pin_cites": [ { "page": "857" }, { "page": "856" }, { "page": "856" }, { "page": "856" } ], "opinion_index": 0 }, { "cite": "316 N.C. 630", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4695646 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0630-01" ] }, { "cite": "429 U.S. 809", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6085, 7371, 6739, 5782, 5823 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/429/0809-04", "/us/429/0809-01", "/us/429/0809-03", "/us/429/0809-05", "/us/429/0809-02" ] }, { "cite": "222 S.E.2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1976, "pin_cites": [ { "page": "233" }, { "page": "231" }, { "page": "233" } ], "opinion_index": 0 }, { "cite": "235 S.E.2d 63", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572085, 8572215, 8572187, 8572061, 8572126 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0642-02", "/nc/292/0642-05", "/nc/292/0642-04", "/nc/292/0642-01", "/nc/292/0642-03" ] }, { "cite": "232 S.E.2d 282", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "284" } ], "opinion_index": 0 }, { "cite": "32 N.C. App. 357", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550583 ], "year": 1977, "pin_cites": [ { "page": "360" } ], "opinion_index": 0, "case_paths": [ "/nc-app/32/0357-01" ] }, { "cite": "446 U.S. 929", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6242663, 6241351, 6241707, 6241998, 6241039, 6242940, 6242301 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/us/446/0929-06", "/us/446/0929-02", "/us/446/0929-03", "/us/446/0929-04", "/us/446/0929-01", "/us/446/0929-07", "/us/446/0929-05" ] }, { "cite": "260 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "639" } ], "opinion_index": 0 }, { "cite": "298 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573777 ], "year": 1979, "pin_cites": [ { "page": "586" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0573-01" ] }, { "cite": "289 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569669 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0372-01" ] } ], "analysis": { "cardinality": 727, "char_count": 18461, "ocr_confidence": 0.761, "pagerank": { "raw": 5.9594945184235646e-08, "percentile": 0.371212182640764 }, "sha256": "cd2179762f0806c6b7494c6f7c0cb523bf9a5f9a91dc8ff2f76b6345bfd29d53", "simhash": "1:8665d022371e0138", "word_count": 3013 }, "last_updated": "2023-07-14T15:27:37.331987+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and McCULLOUGH concur." ], "parties": [ "STATE OF NORTH CAROLINA, Plaintiff v. LESTER DISTANCE and TREMAINE LANGLEY, Defendants" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nLester Distance (\u201cDistance\u201d) and Tremaine Langley (\u201cLangley\u201d) (collectively, \u201cdefendants\u201d) appeal their convictions for robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. For the reasons stated herein, we hold that defendants received a trial free of prejudicial error.\nOn 30 January 2002, defendants were indicted for robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. The trial court granted the State\u2019s pretrial motion to join defendants\u2019 trials. On 3 April 2002, Distance filed a motion to sever the trial. At the voir dire hearing on the motion to sever, Julia Distance, Distance\u2019s wife, testified that Langley told her that \u201cif it came down to it that [Langley] would, if [Langley] had to make a statement or talk to the police about what happened, that [Langley] would make sure that they knew that [Distance] was not the one in there.\u201d On 3 April 2002, the trial court denied Distance\u2019s motion to sever.\nDefendants\u2019 trial began on 8 April 2002. The State presented evidence that tended to show the following: On 7 November 2001, Carolyn Simpson (\u201cSimpson\u201d) was working alone at Carolina Video, a video rental store in Kitty Hawk, North Carolina. Simpson is sixty-five years old and has had two knee replacement surgeries. At approximately 8:30 p.m. on 7 November 2001, as Simpson prepared to close Carolina Video for the evening, Distance, Langley, and Michael Pratt (\u201cPratt\u201d) entered the store. After the three men browsed the video rental section for approximately five minutes, Pratt left the store. Distance and Langley then approached the front counter of the store and attempted to rent two videos. As another customer entered the store, Distance and Langley walked away from the counter and began browsing the \u201cnew release\u201d section of the store. Simpson then waited on the other customer.\nAfter the customer left the store, Distance and Langley ran towards the counter and demanded money from Simpson. Langley pushed Simpson to the floor and stood over her, placing a box cutter to her throat. Langley threatened to cut Simpson unless she gave them the store\u2019s money. Langley told Simpson that he and Distance had watched Simpson for ten to fifteen minutes, and that they knew that she had placed money in a bank bag. After Simpson told defendants the bank bag was kept in the bathroom, Langley ordered Simpson to go to the bathroom and retrieve the bank bag. Simpson responded, \u201cI cannot crawl because I have had two knee replacements and I do not have any support on my legs.\u201d After Distance retrieved the bank bag, Langley asked Simpson how to open the cash register. Distance then made several failed attempts to open the cash register, prompting Langley to allow Simpson to stand up to show defendants how to open the cash register. After the cash register was emptied, Langley found Simpson\u2019s pocketbook and forced Simpson to give him the money in her wallet. Langley then forced Simpson into the bathroom of the video store, and he and Distance fled the scene with $380 in cash.\nAt trial, Simpson identified both Distance and Langley as the perpetrators of the robbery. Langley moved to suppress the in-court identification. In a voir dire hearing, the State, defense counsel for Distance, and defense counsel for Langley questioned Simpson regarding her identification of defendants. Investigator Eugene McLawhorn of the Kitty Hawk Police Department (\u201cInvestigator McLawhorn\u201d) also testified at the voir dire hearing. Investigator McLawhorn testified that he arranged for Simpson to view a suspect in custody on the night of the robbery. After another investigator brought Distance to the front of the patrol car where Simpson and Investigator McLawhorn were sitting, Simpson told Investigator McLawhorn that she could not determine whether Distance was one of the men who robbed her. Nevertheless, the trial court denied defendants\u2019 motions to suppress, concluding that Simpson\u2019s in-court identification of defendants was not \u201cinherently incredible, given all the circumstances of [Simpson\u2019s] ability to view each of the accused at the time of the alleged crime.\u201d The trial court further concluded that \u201cthe credibility of the identification evidence is for the jury to weigh.\u201d\nOn 11 April 2002, the jury convicted both defendants for robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. At defendants\u2019 sentencing hearing, the trial court found as aggravating factors that Simpson was very old and physically infirm. The trial court also found that Simpson was specifically targeted by defendants because of her age. Defendants appeal.\nDefendants filed separate appellate briefs to this Court. As an initial matter, we note that the briefs of both defendants fail to support all of their original assignments of error. Pursuant to N.C.R. App. P. 28(b)(6) (2004), the omitted assignments of error are deemed abandoned. Therefore, we limit our present review to those assignments of error properly preserved by defendants for appeal.\nDistance assigns error to the trial court\u2019s denial of his motion to sever the trial. Langley assigns error to the trial court\u2019s denial of his motion to suppress Simpson\u2019s in-court identification. Both defendants assign error to the trial court\u2019s finding as an aggravating factor that the victim of their crime was very old and physically infirm.\nDistance first assigns error to the trial court\u2019s denial of his motion to sever. Distance argues that defendants\u2019 trial should have been severed because a prior statement by Langley provided exculpatory evidence in favor of Distance. We disagree.\nWhere two defendants are being held accountable for the same crime or crimes, \u201cpublic policy strongly compels consolidation as the rule rather than the exception.\u201d State v. Nelson, 298 N.C. 573, 586, 260 S.E.2d 629, 639 (1979), cert. denied sub nom. Jolly v. North Carolina, 446 U.S. 929 (1980). Consolidation is \u201cin the discretion of the trial judge, and, in the absence of a showing that a joint trial has deprived a defendant of a fair trial, the exercise of the judge\u2019s discretion will not be disturbed on appeal.\u201d State v. Craft, 32 N.C. App. 357, 360, 232 S.E.2d 282, 284, disc. review denied, 292 N.C. 642, 235 S.E.2d 63 (1977). In the case sub judice, Distance\u2019s wife, Julia Distance (\u201cJulia\u201d), testified during the voir dire hearing of Distance\u2019s motion to sever. Julia stated that Langley told her that \u201cif it came down to it that [Langley] would, if [Langley] had to make a statement or talk to the police about what happened, that [Langley] would make sure that they knew that [Distance] was not the one in there.\u201d Distance argued at the voir dire hearing that Julia\u2019s testimony suggested that there was exculpatory evidence of Distance\u2019s innocence, and that this evidence could not be presented at a consolidated trial because the statement would implicate Langley in the robbery. Distance further argued that \u201cwere Langley not at jeopardy, . . . [it] would certainly make it likely that [Langley] would present this evidence.\u201d\nDistance now argues that State v. Alford, 289 N.C. 372, 222 S.E.2d 222, death penalty vacated sub nom. Carter v. North Carolina, 429 U.S. 809 (1976), requires severance in the case sub judice. In Alford, the defendant argued that he was prejudiced by a joint trial with his co-defendant, Carter, because Carter could not be called as a witness to bolster the defendant\u2019s alibi defense. Id. at 389, 222 S.E.2d at 233. Carter had previously provided the police with a signed statement in which he had admitted that he was involved in the crime and stated that an individual other than Alford had committed the crime. Id. at 386-87, 222 S.E.2d at 231. The Court reversed the trial court\u2019s order denying the motion to sever, and the Court ordered a new trial for Alford. Id. at 389, 222 S.E.2d at 233.\nWe find the facts of State v. Paige, 316 N.C. 630, 343 S.E.2d 848 (1986), more analogous to the case subjudice. In Paige, our Supreme Court held that the trial court did not err in denying the the defendant\u2019s motion to sever. Id. at 643, 343 S.E.2d at 857. The only suggestion that Paige\u2019s co-defendant Lowery could aid Paige in his defense was an unsupported assertion by Paige\u2019s counsel that \u201csuspect Lowery said that Arnold Lorenzo Paige was not present during any crime and could be a witness for Arnold Lorenzo Paige were the join-der not ordered.\u201d Id. at 641, 343 S.E.2d at 856. The Court noted that Paige made no attempt to corroborate Lowery\u2019s statement at the pretrial voir dire hearing, and the Court distinguished the facts before it from the facts of Alford, finding that Lowery\u2019s statement was \u201ca far cry from a signed, sworn statement by a co-defendant admitting his own guilt and identifying some person other than the defendant as the other guilty party.\u201d Id. at 641-42, 343 S.E.2d at 856.\nIn the case sub judice, Distance failed to provide any evidence to corroborate the testimony of Julia, an interested witness providing hearsay testimony. Furthermore, Distance made no attempt during the voir dire hearing or at trial to corroborate his assertion that Langley would have testified on Distance\u2019s behalf were their trial severed. This \u201cbald assertion of hearsay information\u201d coupled with the \u201ctheoretical possibility\u201d that Langley might testify for Distance if the trial was severed is insufficient to show that Distance was deprived of an opportunity to present his defense. Id. at 642, 343 S.E.2d at 856. Furthermore, as in Paige, Langley\u2019s alleged statement is a far cry from the sworn statement made by the co-defendant in Alford. Thus, we conclude that Distance has failed to show that the trial court abused its discretion in consolidating the trial or that the consolidation deprived Distance of a fair trial. Therefore, we hold that the trial court did not err in denying Distance\u2019s motion to sever the trial.\nLangley first assigns error to the trial court\u2019s denial of his motion to suppress Simpson\u2019s in-court identification. Langley argues that the in-court identification was impermissibly suggestive. We disagree.\nLangley contends that the only reason Simpson identified him was because he was present in court and seated in the defendant\u2019s chair. However, in ruling on the motion to suppress, the trial court found that Langley \u201ccame within arm[\u2019s] reach of [Simpson] at the counter,\u201d that Langley \u201ccame to be side-by-side or with [Simpson] as she opened the cash register for him,\u201d that Simpson \u201chad ample opportunity to view [Langley\u2019s face],\u201d and that while in court five months later, Simpson \u201crecognized [Langley] immediately as being the person[] who held the box cutter to her throat.\u201d\nAn identification procedure is impermissibly suggestive only if the totality of the circumstances surrounding the identification indicate that the procedure resulted in a very substantial likelihood of irreparable misidentification. State v. Lyszaj, 314 N.C. 256, 264, 333 S.E.2d 288, 294 (1985). The factors for the court to consider when reviewing an identification include: the opportunity of the witness to view the perpetrator at the time of the crime; the witness\u2019s degree of attention; the accuracy of the witness\u2019s prior description of the perpetrator; the level of certainty demonstrated by the witness at the identification; and the length of time between the crime and the identification. Id. In the case sub judice, after making the findings of fact detailed above, the trial court concluded as a matter of law that Simpson\u2019s in-court identification of Langley was not \u201cinherently incredible, given all the circumstances of [Simpson\u2019s] ability to view each of the accused at the time of the alleged crime.\u201d\nWe conclude that the trial court\u2019s findings of fact support its conclusion of law that Simpson\u2019s in-court identification of defendants was credible. Langley maintains that Simpson\u2019s level of attention was impaired the night the video store was robbed, and that her prior description of what Langley was wearing was incorrect. However, an in-court identification is considered competent where the identification is independent in origin and based upon the witness\u2019s observations at the time and scene of the crime. State v. Miller, 69 N.C. App. 392, 396, 317 S.E.2d 84, 88 (1984). Furthermore, any uncertainty in an in-court identification goes to the weight and not the admissibility of the testimony. Id. Therefore, we hold that the trial court did not err in denying Langley\u2019s motion to suppress Simpson\u2019s in-court identification.\nBoth defendants assign error to the trial court\u2019s finding as an aggravating factor that the victim was very old and physically infirm. We note as an initial matter that, because neither defendant objected to the trial court\u2019s finding at the sentencing hearing, this issue is not properly before this Court. See N.C.R. App. R 10(b)(1) (2004). Nevertheless, pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure, we have elected to examine defendants\u2019 arguments, and we conclude that they are without merit. N.C.R. App. P. 2 (2004).\nUnder Structured Sentencing, the trial court may find as an aggravating factor that the victim was very young or very old, or mentally or physically infirm, or handicapped. N.C. Gen. Stat. \u00a7 15A-1340.16(d) (11) (2003). The State bears the burden of proving by a preponderance of the evidence that the aggravating factor exists. N.C. Gen. Stat. \u00a7 15A-1340.16(a) (2003). Furthermore, the trial court\u2019s finding of an aggravating factor must be supported by \u201csufficient evidence to allow a reasonable judge to find its existence by a preponderance of the evidence.\u201d State v. Hayes, 102 N.C. App. 777, 781, 404 S.E.2d 12, 15 (1991).\nA defendant may take advantage of a victim\u2019s age in at least two ways. State v. Thompson, 318 N.C. 395, 398, 348 S.E.2d 798, 800 (1986). First, a defendant may target the victim of a crime because of the victim\u2019s age, knowing that the chances of success are greater where the victim is very old. Id. Second, a defendant may take advantage of a victim\u2019s age during the actual commission of the crime, knowing that the victim is unlikely to effectively intervene or defend him or herself if the victim is very old or physically infirm. Id. In the case sub judice, defendants argue that the State failed to prove that defendants took advantage of Simpson because of her age and physical infirmity. We disagree.\nSimpson testified at trial that she is sixty-five years old, has had two knee replacement surgeries, and has difficulty kneeling and walking. Simpson also testified that as Langley held a razor blade to her throat, he ordered her to retrieve the bank bag. Simpson testified that she responded by telling Langley that she had knee problems and therefore could not crawl to the bathroom to retrieve the bank bag. Simpson further testified that she needed the help of a chair to stand up and show defendants how to open the cash register. Michael Pratt testified that before defendants robbed the store, one of them said that he saw \u201can old lady in the movie store.\u201d Pratt further testified that, as the three walked past the video store, Langley said, \u201cyeah, she\u2019s in there by herself. Let\u2019s go in there and get her.\u201d Simpson also testified that Langley told her after he forced her to the ground that defendants had been watching her for ten to fifteen minutes before they entered the store.\nWe conclude that the evidence was sufficient to allow the trial judge to find that defendants targeted the video store because Simpson was very old and physically infirm, and that defendants took advantage of Simpson\u2019s age and infirmity during the commission of the robbery. Therefore, we hold that the trial court did not err in finding as an aggravating factor that the victim was very old and physically infirm.\nNo error.\nJudges WYNN and McCULLOUGH concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General David J. Adinolfi, II, and Assistant Attorney General H. Dean Bowman, for the State.", "Adrian M. Lapas for defendant-appellant Lester Distance.", "Richard E. Jester for defendant-appellant Tremaine Langley." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA, Plaintiff v. LESTER DISTANCE and TREMAINE LANGLEY, Defendants\nNo. COA03-165\n(Filed 20 April 2004)\n1. Criminal Law\u2014 joint trial \u2014 motion to sever\nThe trial court did not abuse its discretion in a robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon case by denying defendant\u2019s motion to sever his trial from that of his codefendant based on an alleged prior statement by the codefendant providing exculpatory evidence in favor of defendant, because: (1) a bald assertion of hearsay information from an interested witness coupled with the theoretical possibility that the codefendant might testify on defendant\u2019s behalf if the trial was severed was insufficient to show that defendant was deprived of an opportunity to present his defense; and (2) the codefendant\u2019s alleged statement is a far cry from the sworn statement made by the codefendant in State v. Alford, 289 N.C. 372 (1976).\n2. Identification of Defendants\u2014 in-court \u2014 motion to suppress\nThe trial court did not err in a robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon case by denying defendant\u2019s motion to suppress the victim\u2019s in-court identification, because: (1) the identification was not inherently incredible given all the circumstances of the' victim\u2019s ability to view the accused at the time of the alleged crime; and (2) any uncertainty in an in-court identification goes to the weight and not to the admissibility of the testimony.\n3. Sentencing\u2014 aggravating factor \u2014 victim very old and physically infirm\nThe trial court did not err in a robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon case by finding as an aggravating factor under N.C.G.S. \u00a7 15A-1340.16(d)(ll) that the victim was very old and physically infirm, because the evidence was sufficient to allow the trial court to find that defendants: (1) targeted the video store since the victim was very old and physically infirm; and (2) took advantage of the victim\u2019s age (65) and infirmity during the commission of the robbery.\nAppeal by defendants from judgments entered 12 April 2002 by Judge Thomas D. Haigwood in Dare County Superior Court. Heard in the Court of Appeals 13 January 2004.\nAttorney General Roy Cooper, by Assistant Attorney General David J. Adinolfi, II, and Assistant Attorney General H. Dean Bowman, for the State.\nAdrian M. Lapas for defendant-appellant Lester Distance.\nRichard E. Jester for defendant-appellant Tremaine Langley." }, "file_name": "0711-01", "first_page_order": 741, "last_page_order": 749 }