{ "id": 8411427, "name": "STATE OF NORTH CAROLINA v. ANTOINE DENARD YOUNG, Defendant", "name_abbreviation": "State v. Young", "decision_date": "2004-10-05", "docket_number": "No. COA03-257", "first_page": "401", "last_page": "413", "citations": [ { "type": "official", "cite": "166 N.C. App. 401" } ], "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": "593 S.E.2d 83", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631211, 12631212 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/se2d/593/0083-02", "/se2d/593/0083-01" ] }, { "cite": "358 N.C. 157", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631209, 12631211, 12631212, 12631213, 12631158, 12631159, 12631102 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/se2d/593/0081-01", "/se2d/593/0083-02", "/se2d/593/0083-01", "/se2d/593/0084-01", "/se2d/593/0395-01", "/se2d/593/0396-01", "/se2d/592/0200-02" ] }, { "cite": "537 U.S. 896", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9242368, 9242593, 9242307, 9242631, 9242668, 9242413, 9242287, 9242511, 9242481, 9242355, 9242453, 9242393, 9242330, 9242558, 9242431 ], "year": 2002, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/us/537/0896-05", "/us/537/0896-13", "/us/537/0896-02", "/us/537/0896-14", "/us/537/0896-15", "/us/537/0896-07", "/us/537/0896-01", "/us/537/0896-11", "/us/537/0896-10", "/us/537/0896-04", "/us/537/0896-09", "/us/537/0896-06", "/us/537/0896-03", "/us/537/0896-12", "/us/537/0896-08" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-7.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "588 S.E.2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "897" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 265", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8956792 ], "year": 2003, "pin_cites": [ { "page": "271" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0265-01" ] }, { "cite": "571 S.E.2d 883", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "885" }, { "page": "885" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 515", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251004 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "517" }, { "page": "517" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0515-01" ] }, { "cite": "239 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1977, "pin_cites": [ { "page": "465" }, { "page": "465" }, { "page": "465" } ], "opinion_index": 0 }, { "cite": "293 N.C. 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567044 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "712" }, { "page": "712-13" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0702-01" ] }, { "cite": "559 S.E.2d 762", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2002, "pin_cites": [ { "page": "765" }, { "page": "765" }, { "page": "765" }, { "page": "765" } ], "opinion_index": 0 }, { "cite": "355 N.C. 242", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220084 ], "weight": 4, "year": 2002, "pin_cites": [ { "page": "248" }, { "page": "248" }, { "page": "248" }, { "page": "248" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0242-01" ] }, { "cite": "154 L. Ed. 2d 165", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2002, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "558 S.E.2d 463", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2002, "pin_cites": [ { "page": "473", "parenthetical": "citations omitted" }, { "page": "473" }, { "page": "473" }, { "page": "473" } ], "opinion_index": 0 }, { "cite": "355 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220002 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "87", "parenthetical": "citations omitted" }, { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0073-01" ] } ], "analysis": { "cardinality": 874, "char_count": 28739, "ocr_confidence": 0.752, "pagerank": { "raw": 1.0440353494868761e-07, "percentile": 0.5516120824032598 }, "sha256": "73bcb8352a1b493246461ee77ad59e507e5352c266d6bd2cc9b7015581aff0bd", "simhash": "1:4d3bfd227667cc43", "word_count": 4664 }, "last_updated": "2023-07-14T18:02:59.875915+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and CALABRIA concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ANTOINE DENARD YOUNG, Defendant" ], "opinions": [ { "text": "ELMORE, Judge.\nAntoine Denard Young (defendant) appeals his convictions of possession with intent to sell and deliver marijuana and attaining habitual felon status. Defendant also appeals from the sentence imposed by the trial court following these convictions. For the reasons stated herein, we find no prejudicial error in the guilt-innocence phase of defendant\u2019s trial, but vacate his sentence and remand to the trial court for a new sentencing hearing.\nThe evidence presented by the State at trial tends to show the following: At approximately 6:00 p.m. on 5 August 2001, Officer Brett Moyer of the Winston-Salem Police Department was conducting surveillance from a vacant house on East 17th Street across from Cleveland Avenue Homes, a Winston-Salem public housing project in an area routinely patrolled by Officer Moyer, when he observed defendant, defendant\u2019s brother Robert Young, and five or six other people across the street. Officer Moyer testified that defendant was seated in a chair on the sidewalk next to a brown Pontiac automobile which was parked at the curb. Robert was leaning against the car, and the others were milling about on the sidewalk. Officer Moyer observed, through binoculars, a black male approach defendant. Defendant handed the black male what appeared to be a \u201cplastic bag with something in it\u201d and the black male handed defendant money, then walked away. Defendant handed the money to Robert, and at that point Officer Moyer directed another officer conducting the surveillance with him to begin videotaping the scene across the street. This videotape was introduced into evidence at trial and played for the jury. Officer Moyer testified that a heavyset black female then approached defendant\u2019s chair and appeared to converse with defendant. Both the black female and defendant were moving their arms, but they were positioned in such a way that Officer Moyer \u201ccouldn\u2019t see exactly what was happening!)]\u201d The black female then approached Robert and shook his hand with a \u201cpalming handshake\u201d in which she \u201ccupped [her] hand,\u201d before walking away.\nOfficer Moyer testified that defendant then got up from his chair and walked a short distance through an opening in a fence and onto the Cleveland Avenue Homes property. Defendant approached one of the buildings and bent low to the ground near a crawl space vent at the building\u2019s base \u201cfor just a second\u201d before standing up and returning to the sidewalk area with \u201chis hand up carrying something in his hand.\u201d While at the crawl space vent, defendant\u2019s back was to Officer Moyer such that Officer Moyer \u201ccouldn\u2019t see[] . . . what, if anything, [defendant] was doing.\u201d Defendant then walked over to the brown Pontiac parked at the curb near where he had been sitting and got into the vehicle on the front passenger side, and \u201cgot down low in the seat and . . . after a second\u201d got out of the car.\nOfficer Moyer testified that throughout the surveillance he had been in radio contact with his \u201carrest team,\u201d which consisted of Winston-Salem Police Department patrol officers T.G. Porter, Mark Bollinger, and Steven Snyder, relating to them his observations and giving a physical description of both defendant and Robert. After observing defendant get into and out of the car, Officer Moyer requested that the arrest team come to the scene and take defendant and Robert into custody. Officers Porter, Bollinger, and Snyder arrived minutes later, and defendant and Robert were taken into custody without incident.\nAt trial, Officers Porter, Bollinger, and Snyder were each allowed to testify, over defendant\u2019s objection, regarding Officer Moyer\u2019s descriptions to them of the activity he observed during his surveillance operation. Before this portion of each officer\u2019s testimony, the trial court instructed the jury that this testimony was received only for corroborative purposes or for determining Officer Moyer\u2019s credibility. Officer Porter testified that after he arrived at the scene, Officer Moyer told him that defendant had engaged in some activity at the crawl space vent of the nearby Cleveland Avenue Homes building. Officer Porter then \u201cwalked over to the crawl space and . . . looked in and found a clear, plastic bag with four small Ziploc bags in it containing a green vegetable material. . . . [I]t was marijuana.\u201d Officer Porter testified that this was \u201cconsistent with the way individuals will package marijuana or other narcotics for sale[.]\u201d Officer Bollinger testified as to Officer Moyer\u2019s description of the interaction between the black female and defendant and Robert. Officer Bollinger also testified that his search incident to the arrest of Robert revealed that Robert was carrying $192.00, mostly in small bills, and that Robert did not have any drugs or drug paraphernalia on his person. Finally, Officer Snyder testified that after Officer Moyer described to him defendant getting in and out of the brown Pontiac parked on the curb near where defendant had been sitting, Officer Snyder searched the car and found a small Ziploc bag containing marijuana under the front passenger seat. Officer Snyder also testified that his search incident to the arrest of defendant revealed no money, drugs, or drug paraphernalia on defendant\u2019s person.\nAt trial, the parties stipulated that the green vegetable matter seized by the officers from the crawl space vent and the car was marijuana, weighing a total of 6.6 grams. Defendant presented no evidence. After the jury returned its verdict finding defendant guilty of possession with intent to sell and deliver marijuana, defendant pled guilty to being a habitual felon. The trial court found no aggravating or mitigating factors and sentenced defendant from the presumptive range to between 96 and 125 months imprisonment. Defendant timely filed notice of appeal on 31 October 2002.\nBy his first assignment of error, defendant contends that the trial court committed reversible error by allowing Officers Porter, Bollinger, and Snyder to testify regarding statements made to them by Officer Moyer describing the activities of defendant and others witnessed by Officer Moyer during the surveillance operation. Defendant argues that because the testimony of each officer contains some additional details not present in Officer Moyer\u2019s testimony, the challenged testimony went beyond corroboration of Officer Moyer\u2019s testimony and instead constituted inadmissible hearsay. We disagree.\nThe State asserts, and we agree, that the challenged testimony of Officers Porter, Bollinger, and Snyder as to observations related to them by Officer Moyer from his surveillance was offered not to prove the truth of the matters asserted therein, but rather to explain the officers\u2019 conduct after they arrived at the scene. We note at the outset that the trial court specifically instructed the jury that each officer\u2019s testimony was not offered for the truth of the matter asserted. The officers\u2019 conduct upon arrival included searching the crawl space vent area and the Pontiac, both areas Officer Moyer described to the arrest team as having been visited by defendant immediately before the arrest team was called in, and arresting defendant after marijuana was found in both locations.\nOur Supreme Court has stated that:\n[t]he North Carolina Rules of Evidence define \u201chearsay\u201d as \u201ca statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\u201d N.C.G.S. \u00a7 8C-1, Rule 801(c) (1999). Out-of-court statements that are offered for purposes other than to prove the truth of the matter asserted are not considered hearsay. Specifically, statements are not hearsay if they are made to explain the subsequent conduct of the person to whom the statement was directed.\nState v. Gainey, 355 N.C. 73, 87, 558 S.E.2d 463, 473, cert. denied, 537 U.S. 896, 154 L. Ed. 2d 165 (2002) (citations omitted) (emphasis added); see also State v. Canaday, 355 N.C. 242, 248, 559 S.E.2d 762, 765 (2002).\nIn the present case, defendant first challenges the testimony of Officers Porter, Bollinger, and Snyder that Officer Moyer told each of them, prior to their arrival at the scene, that he had observed defendant involved in illegal drug activity. Defendant argues that because Officer Moyer never testified that he observed anything which he could positively identify as drugs during his surveillance, this testimony from the three arresting officers went so far beyond corroboration of Officer Moyer\u2019s testimony as to constitute inadmissible hearsay. However, we conclude that this testimony from each officer was offered not to prove that defendant was engaged in illegal drug activity, but rather to explain (1) why the arrest team was called to the scene and (2) each officer\u2019s subsequent conduct upon arrival, which consisted of Officer Porter searching the crawl space vent area and seizing marijuana found therein packaged in a manner indicative of sale; Officer Bollinger arresting Robert and seizing $192.00, mostly in small bills, from his person; and Officer Snyder searching the Pontiac, seizing marijuana therefrom, and arresting defendant. Accordingly, this testimony does not constitute inadmissible hearsay under the authority of Gainey and Canaday. Moreover, we disagree with defendant\u2019s contention that this testimony did not corroborate Officer Moyer\u2019s testimony.\nWhile defendant correctly asserts that Officer Moyer never testified that he observed anything he could positively identify as illegal drugs during his surveillance, Officer Moyer did testify that he observed a black male approach defendant and hand defendant money in exchange for a \u201cplastic bag with something in it,\u201d and that defendant then handed the money to Robert. Officer Moyer also testified that he observed a black female who first conversed with defendant while their arms were moving, then approached Robert and shook his hand with a \u201cpalming handshake\u201d in which she \u201ccupped [her] hand,\u201d before walking away. Officer Moyer further testified that he observed defendant walk to the crawl space vent area, bend low to the ground for a second, stand up and raise his hand with something in it, walk to the Pontiac parked near the curb, get in and sit low in the seat briefly, then get out of the car. While Officer Moyer\u2019s trial testimony did not specifically denominate any of this behavior as \u201cillegal drug activity,\u201d we cannot say that the testimony of Officers Porter, Bollinger, and Snyder that Officer Moyer, in summoning them to arrest defendant, so characterized the totality of the behavior he described at trial is not corroborative of Officer Moyer\u2019s testimony.\nDefendant next challenges, on the same grounds, specific portions of each officer\u2019s testimony. First, defendant excepts to the trial court\u2019s admission of the following testimony by Officer Porter:\nQ. [by the Assistant District Attorney]: Did you have any communication with Officer Moyer at that time?\nA. Yes, ma\u2019am.\nQ. And what did he say to you?\nA. ... He advised us that, as we were arriving, [defendant] approached the little crawl space vent\u2014\nQ. Yes, sir.\nA. \u2014and had dropped something into that vent or that crawl space area.\n[Defendant\u2019s Trial Counsel]: Objection.\nThe Court: This testimony is offered for corroborative purposes. It\u2019s not offered for the truth of the matter asserted. You may proceed. Objection overruled.\nQ. So, after he indicated that there was some activity at the crawl space, what did you do, Officer?\nA. I walked over to the crawl space.\nQ. And tell the members of the jury what you found[] ....\nA. ... So, I walked over to the crawl space and I looked in and found a clear, plastic bag with four small Ziploc bags in it containing a green vegetable material.\nWe again note that the trial court instructed the jury that this testimony was not offered for the truth of the matter asserted. The transcript reveals that immediately after eliciting Officer Porter\u2019s testimony regarding Officer Moyer\u2019s statement to him about defendant\u2019s activity at the crawl space vent, the prosecutor proceeded to question Officer Porter about his subsequent search of the crawl space vent area. She did not follow up on Officer Porter\u2019s testimony that Officer Moyer told him that defendant \u201chad dropped something\u201d into the crawl space vent area, which was admittedly different from Officer Moyer\u2019s testimony, from which the reasonable conclusion could be drawn that defendant instead took something out of the crawl space vent. Again, we conclude that this testimony from Officer Porter was offered not for the truth of the matter asserted, but rather to explain Officer Porter\u2019s actions, taken subsequent to Officer Moyer\u2019s statement to him about defendant\u2019s activity at the crawl space vent, of approaching the crawl space vent, searching it, and seizing therefrom marijuana packaged in a manner which he testified was indicative of sale. Accordingly, this testimony does not constitute inadmissible hearsay. Gainey, 355 N.C. at 87, 558 S.E.2d at 473; Canaday, 355 N.C. at 248, 559 S.E.2d at 765.\nDefendant next challenges admission of the following testimony by Officer Bollinger, characterizing it as inadmissible hearsay:\nQ. [by the Assistant District Attorney]: What information did you have about the activity that was being investigated on August 5th of 2001?\nA. By radio traffic we were told that several subjects were involved in what appeared to be drug activity in the 1700 or\u2014 excuse me \u2014 thousand block of 17th Street, East 17th. We were given\u2014\n[Dependant\u2019s Trial Counsel]: Objection.\nThe Court: Overruled. Ladies and gentlemen, this is not offered for the truth of the matter asserted. This officer is testifying as to what another officer heard [sic]. You\u2019re to consider the evidence as presented in this courtroom to determine whether there was something illegal going on or not. You may proceed, [Assistant District Attorney].\nQ. Officer, if you would tell the members of the jury[] . . . about what information you received upon arriving at the 1000 block of East 17th Street.\nA. Basically, I was just told \u2014 I was given a description of a \u2014 of a subject involved in activity and was told to respond to that area and take that person into custody.\nQ. And did you get any information about what activity specifically had been afoot, so to speak?\nA. What I was told was that a \u2014 a female \u2014 well, I was given some descriptions. I was told that a black female would get a small bag of what appeared to be marijuana from a \u2014 from a black male subject, and I was given his description, and that \u2022they \u2014 that the female would take the marijuana to a, what appeared to be, a buyer and that the \u2014 a transaction would take place and that the female would, in turn, take the money that she had obtained and hand it off to a different subject, a third party.\nQ. Were you just given a description of the black male and what he was wearing that she received something from?\nA. I was told that the \u2014 well, I was told that the \u2014 that she would receive items from the \u2014 or the marijuana, what appeared to be marijuana, from a black male wearing a white T-shirt and, blue jeans, and that, in turn, she would take the \u2014 the money that she got back and hand it to a black male wearing blue jean shorts and a white T-shirt that had a red emblem on it.\nQ. When you arrived on the scene, did you find people who matched those descriptions?\nA. Yes, ma\u2019am.\nQ. Were those persons taken into custody?\nA. Yes, ma\u2019am.\nAgain, we note that the trial court instructed the jury that this testimony was not offered for the truth of the matter asserted. The transcript indicates that immediately after eliciting Officer Bollinger\u2019s testimony regarding what Officer Moyer told him about the interaction between the black female and defendant and Robert, the prosecutor\u2019s line of questioning turned to Officer Bollinger\u2019s subsequent arrival at the scene, visual identification of defendant and Robert, and arrest of Robert. Again, the prosecutor did not follow up on Officer Bollinger\u2019s testimony that Officer Moyer told him that the black female would \u201cget a small bag of what appeared to be marijuana\u201d from defendant and \u201ctake the marijuana to ... what appeared to be a buyer\u201d and then \u201ctake the money that she had obtained and hand it off to\u201d Robert, which testimony contained some additional details not present in Officer Moyer\u2019s trial testimony about his observations regarding the interaction between the black female and defendant and Robert. We note that while Officer Moyer\u2019s testimony on this point was less detailed, a reasonable conclusion that the black female was serving as a \u201cmiddleman\u201d in drug transactions involving defendant could nevertheless be drawn from Officer Moyer\u2019s testimony that the black female first approached defendant in such a way that she obstructed Officer Moyer\u2019s view, conversed with him while moving her arms, and then moved towards Robert and shook his hand with a \u201cpalming handshake.\u201d\nAgain, we conclude that the challenged testimony from Officer Bollinger was offered not for the truth of the matter asserted, but rather to explain his actions, taken subsequent to Officer Moyer\u2019s statement to him about the interaction between defendant and Robert and the black female, of responding to the scene, visually identifying defendant and Robert, placing Robert under arrest, and seizing incident to the arrest $192.00 in mostly small bills from Robert\u2019s person. We therefore conclude that Officer Bollinger\u2019s testimony on this point does not constitute inadmissible hearsay. Gainey, 355 N.C. at 87, 558 S.E.2d at 473; Canaday, 355 N.C. at 248, 559 S.E.2d at 765.\nFinally, defendant challenges admission of the following testimony by Officer Snyder, also characterizing it as inadmissible hearsay:\nQ. [by the Assistant District Attorney]: Did Officer Moyer direct you to any other area where [defendant] had been to search?\nA. Yes. Right adjacent to where there was a fence line and beyond that on the housing authority side, there\u2019s some vents, some \u2014 I guess they would be like basement vents to the \u2014 to the bottom of the building. [Officer Moyer] [directed me to that area where he told me via radio that [defendant] had gone back and forth to that area, that he believed that\u2019s where he was keeping his marijuana.\n[Defendant\u2019s Trial Counsel]: Objection, move to strike.\nThe Court: Objection overruled. Ladies and gentlemen, once again, his testimony is offered for corroborative purposes. You may consider it as it corroborates what the witness testified to previously. If it\u2019s inconsistent with it, you can consider it as it effects the credibility of the witness. You may proceed.\nQ. After Officer Moyer told you he believed that there was marijuana in the crawl space, was a search conducted of the crawl space?\n[Defendant\u2019s Trial Counsel]: Objection to the form.\nThe Court: Overruled.\nA. Yes, there was.\nQ. What was located in the crawl space, Officer?\n[Defendant\u2019s Trial Counsel]: Objection.\nThe Court: Overruled.\nA. There was a small bag with some ... $10 bags of marijuana. . . .\nQ. Did you conduct a search of the vehicle that had been parked where [defendant] was standing?\nA. Yes. Upon Officer Moyer advising me that he had also observed [defendant] go to the front passenger area of his vehicle towards the floorboard area and under his seat, I had responded to that area upon information Officer Moyer gave me and found a bag of marijuana under the \u2014 in that area also.\nAs with the challenged portions of Officer Porter\u2019s and Officer Bollinger\u2019s testimony, we note that the trial court instructed the jury that this testimony was not offered for the truth of the matter asserted. The transcript indicates that immediately after eliciting Officer Snyder\u2019s testimony that Officer Moyer told him to search the crawl space vent area because Officer Moyer believed \u201cthat\u2019s where [defendant] was keeping his marijuana,\u201d Officers Porter and Snyder proceeded to do so, where they recovered marijuana packaged in a manner consistent with its sale. Officer Snyder then testified that he searched the brown Pontiac \u201c[u]pon Officer Moyer advising me that he had also observed defendant go to the front passenger area of his vehicle towards the floorboard area and under his seat,\u201d and recovered marijuana from that location as well. As with the challenged testimony from Officers Porter and Bollinger, we conclude that this testimony from Officer Snyder was offered not for the truth of the matter asserted, but rather to explain his actions, taken subsequent to Officer Moyer\u2019s statements to him about his observations of defendant\u2019s activity at the crawl space vent and in the front seat of the brown Pontiac. We therefore conclude that the challenged portion of Officer Snyder\u2019s testimony does not constitute inadmissible hearsay. Gainey, 355 N.C. at 87, 558 S.E.2d at 473; Canaday, 355 N.C. at 248, 559 S.E.2d at 765.\nDefendant\u2019s first assignment of error is overruled.\nTurning to his second assignment of error, defendant contends that the trial court improperly considered defendant\u2019s decision to plead not guilty to the possession with intent to sell and deliver marijuana charge in determining his sentence, resulting in imposition of a harsher sentence because defendant exercised his right to a jury trial on that charge. We agree.\nRegarding the influence on a trial court\u2019s sentence of a criminal defendant\u2019s decision to not plead guilty and to pursue a jury trial, this Court has previously stated:\nAlthough a sentence within the statutory limit will be presumed regular and valid, such a presumption is not conclusive. State v. Boone, 293 N.C. 702, 712, 239 S.E.2d 459, 465 (1977). \u201cIf the record discloses that the [trial] court considered irrelevant and improper matter in determining the severity of the sentence, the presumption of regularity is overcome, and the sentence is in violation of [the] defendant\u2019s rights.\u201d Id. A defendant has the right to plead not guilty, and \u201che should not and cannot be punished for exercising that right.\u201d Id. at 712-13, 239 S.E.2d at 465. Thus, \u201c[w]here it can be reasonably inferred the sentence imposed on a defendant was based, even in part, on the defendant\u2019s insistence on a jury trial, the defendant is entitled to a new sentencing hearing.\u201d State v. Peterson, 154 N.C. App. 515, 517, 571 S.E.2d 883, 885 (2002).\nState v. Gantt, 161 N.C. App. 265, 271, 588 S.E.2d 893, 897 (2003), disc. review allowed, 358 N.C. 157, 593 S.E.2d 83 (2003).\nIn the present case, our review of the record indicates that while hearing pre-trial motions, the trial court discussed with defense counsel defendant\u2019s prior record level. Following this discussion, the trial court stated as follows:\nNow, [defendant], if you pled straight up, I know the State is not going to offer you any pleas, but if you pled straight up I\u2019d sentence you at the bottom of the mitigated range. But that\u2019s \u2014 that\u2019s about as good as we can get with these habitual felons[] . . . . (emphasis added)\nThe trial court then proceeded to discuss the likelihood that evidence of defendant\u2019s prior drug convictions would be admissible should defendant pursue a jury trial, as well as the futility of an instruction to the jury not to consider defendant\u2019s previous drug activity as evidence of his guilt on the current charge. The trial court then stated as follows to defense counsel:\nNow, if you go to trial and he\u2019s convicted, I\u2019ll be perfectly honest with you, I\u2019m not going to sentence him- \u2014 I doubt I would sentence him in the aggravated range. I may, but it just depends upon how bad it is, but he definitely would probably get a sentence in the \u2014 he would definitely get a sentence in the presumptive range. I probably wouldn\u2019t go back to the mitigated range since I\u2019m offering this now prior to trial, but I\u2019ll let you think about it, unless you already know that he\u2019s not interested in it.\nDefendant thereafter chose not to plead guilty and exercised his right to a jury trial on the marijuana possession with intent to sell and deliver charge. After the jury returned its guilty verdict on that charge, defendant pled guilty to having attained habitual felon status. The trial court then proceeded to sentencing, stating as follows:\nAll right. [Defense counsel], you care to be heard on behalf of your client? I believe I previously indicated what the Court\u2019s position would be at sentencing, but I\u2019ll still consider whatever you have to say.\nFollowing defense counsel\u2019s brief argument for imposition of a mitigated sentence, the trial court found no aggravating or mitigating factors and, pursuant to the sentence enhancement required by defendant\u2019s habitual felon plea, imposed a sentence from the presumptive range for a class C felony. See N.C. Gen. Stat. \u00a7 14-7.6 \u2019(2003); see also N.C. Gen. Stat. \u00a7 15A-1340.17(c), (d) (2003).\nWe conclude that because it can be \u201creasonably inferred\u201d on this record that defendant\u2019s sentence was based, at least in part, on his refusal to plead guilty and to instead pursue a jury trial, defendant is entitled to a new sentencing hearing. Peterson, 154 N.C. App. at 517, 571 S.E.2d at 885. Before the jury was empaneled, the trial court informed defendant that if he entered a plea of guilty to the possession with intent to sell and deliver charge, the trial court would \u201csentence [defendant] at the bottom of the mitigated range.\u201d The trial court then warned defendant that if he instead pursued a jury trial which resulted in a conviction, defendant \u201cwould definitely get a sentence in the presumptive range\u201d and that the trial court \u201cprobably wouldn\u2019t go back to the mitigated range since I\u2019m offering this now prior to trial[.]\u201d We note that while these statements were made after a discussion of defendant\u2019s prior offense history, the record does not indicate that the trial court had yet been made aware of what evidence, if any, might exist to support any of the statutory factors in support of a mitigated sentence. Following defendant\u2019s conviction on the drug charge and subsequent guilty plea on the habitual felon charge, the trial court stated that it had \u201cpreviously indicated what the Court\u2019s position would be at sentencing\u201d before imposing a sentence from the presumptive range, which was, indeed, consistent with its pre-trial expression of intent should defendant pursue a jury trial. We hold that the totality of these comments evidence an improper intent by the trial court to punish defendant for exercising his right to plead not guilty. State v. Boone, 293 N.C. 702, 712-13, 239 S.E.2d 459, 465 (1977). We therefore remand this matter to the trial court for a new sentencing hearing.\nNo error in trial, vacate and remand for resentencing.\nJudges BRYANT and CALABRIA concur.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Deborrah L. Newton, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Constance E. Widenhouse, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ANTOINE DENARD YOUNG, Defendant\nNo. COA03-257\n(Filed 5 October 2004)\n1. Evidence\u2014 hearsay \u2014 not offered for truth of matter asserted \u2014 corroboration\nThe trial court did not err in a possession with intent to sell and deliver marijuana case by allowing three officers to testify regarding statements made to them by another officer describing the activities of defendant and others witnessed by that officer during a surveillance operation, because: (1) the challenged testimony was offered not to prove the truth of the matters asserted therein, but rather to explain the officers\u2019 conduct after they arrived at the scene; (2) the trial court specifically instructed the jury that each officer\u2019s testimony was not offered for the truth of the matter asserted; and (3) while an officer\u2019s trial testimony did not specifically denominate any of the behavior as illegal drug activity, it cannot be said that the testimony of the other three officers was not corroborative of the officer\u2019s testimony.\n2. Sentencing\u2014 improper punishment \u2014 exercising right to plead not guilty\nThe trial court erred by considering defendant\u2019s decision to plead not guilty to possession with intent to sell and deliver marijuana in determining his sentence, resulting in imposition of a harsher sentence based on defendant exercising his right to a jury trial on that charge, and the case is remanded for a new sentencing hearing because the totality of the trial court\u2019s comments evidenced an improper intent by the trial court to punish defendant for exercising his right to plead not guilty.\nAppeal by defendant from judgment entered 22 October 2002 by Judge L. Todd Burke in Forsyth County Superior Court. Heard in the Court of Appeals 19 November 2003.\nAttorney General Roy Cooper, by Assistant Attorney General Deborrah L. Newton, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Constance E. Widenhouse, for defendant-appellant." }, "file_name": "0401-01", "first_page_order": 431, "last_page_order": 443 }