{ "id": 8411020, "name": "STATE OF NORTH CAROLINA v. ANDY CECIL SHELTON", "name_abbreviation": "State v. Shelton", "decision_date": "2004-12-07", "docket_number": "No. COA04-33", "first_page": "225", "last_page": "234", "citations": [ { "type": "official", "cite": "167 N.C. App. 225" } ], "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": "423 S.E.2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "108 N.C. App. 338", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524198 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/108/0338-01" ] }, { "cite": "338 S.E.2d 557", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "560" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 753", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524066 ], "year": 1986, "pin_cites": [ { "page": "756" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0753-01" ] }, { "cite": "459 S.E.2d 192", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "196", "parenthetical": "citing State v. Daye, 78 N.C. App. 753, 756, 338 S.E.2d 557, 560 (1986)" } ], "opinion_index": 0 }, { "cite": "340 N.C. 720", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790161 ], "year": 1995, "pin_cites": [ { "page": "726", "parenthetical": "citing State v. Daye, 78 N.C. App. 753, 756, 338 S.E.2d 557, 560 (1986)" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0720-01" ] }, { "cite": "587 S.E.2d 456", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "460" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 144", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8955879 ], "year": 2003, "pin_cites": [ { "page": "149" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0144-01" ] }, { "cite": "306 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "454-55" } ], "opinion_index": 0 }, { "cite": "309 N.C. 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4762487 ], "year": 1983, "pin_cites": [ { "page": "218-20" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0214-01" ] }, { "cite": "471 S.E.2d 398", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "403", "parenthetical": "citing State v. Jones, 309 N.C. 214, 218-20, 306 S.E.2d 451, 454-55 (1983)" }, { "page": "404", "parenthetical": "trial court did not err by failing to find early acknowledgment of wrongdoing where defendant \"trie[d] to minimize his culpability\" and had \"attempted] to shift responsibility\" for the commission of the offense at issue" } ], "opinion_index": 0 }, { "cite": "343 N.C. 448", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798819 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "456-57", "parenthetical": "citing State v. Jones, 309 N.C. 214, 218-20, 306 S.E.2d 451, 454-55 (1983)" }, { "page": "457-58", "parenthetical": "trial court did not err by failing to find early acknowledgment of wrongdoing where defendant \"trie[d] to minimize his culpability\" and had \"attempted] to shift responsibility\" for the commission of the offense at issue" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0448-01" ] }, { "cite": "316 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "defendant does not admit wrongdoing where he admits killing victim but contends it was accidental" } ], "opinion_index": 0 }, { "cite": "311 N.C. 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4681330 ], "year": 1984, "pin_cites": [ { "parenthetical": "defendant does not admit wrongdoing where he admits killing victim but contends it was accidental" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0214-01" ] }, { "cite": "336 S.E.2d 83", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "86", "parenthetical": "defendant not entitled to finding in mitigation where he admitted that \"he killed the victim but denied culpability by contending that the shooting was justified by self-defense\"" } ], "opinion_index": 0 }, { "cite": "314 N.C. 638", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686274 ], "year": 1985, "pin_cites": [ { "page": "643", "parenthetical": "defendant not entitled to finding in mitigation where he admitted that \"he killed the victim but denied culpability by contending that the shooting was justified by self-defense\"" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0638-01" ] }, { "cite": "336 S.E.2d 702", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "707" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 58", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519519 ], "year": 1985, "pin_cites": [ { "page": "67" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0058-01" ] }, { "cite": "535 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "575", "parenthetical": "quoting State v. Rathbone, 78 N.C. App. 58, 67, 336 S.E.2d 702, 707 (1985)" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 15", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12121343 ], "year": 2000, "pin_cites": [ { "page": "28", "parenthetical": "quoting State v. Rathbone, 78 N.C. App. 58, 67, 336 S.E.2d 702, 707 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0015-01" ] }, { "cite": "354 S.E.2d 216", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 308", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4743588 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0308-01" ] }, { "cite": "489 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "414" } ], "opinion_index": 0 }, { "cite": "347 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551309 ], "year": 1997, "pin_cites": [ { "page": "41" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0001-01" ] }, { "cite": "495 S.E.2d 669", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "672", "parenthetical": "quoting State v. Flowers, 347 N.C. 1, 41, 489 S.E.2d 391, 414 (1997)" } ], "opinion_index": 0 }, { "cite": "347 N.C. 508", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551065 ], "year": 1998, "pin_cites": [ { "page": "513", "parenthetical": "quoting State v. Flowers, 347 N.C. 1, 41, 489 S.E.2d 391, 414 (1997)" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0508-01" ] }, { "cite": "432 S.E.2d 275", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "279", "parenthetical": "no \"actual entry of the guilty plea\" took place where \"defendant tendered a guilty plea which was not accepted and approved by the trial judge\"" } ], "opinion_index": 0 }, { "cite": "334 N.C. 273", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531784 ], "year": 1993, "pin_cites": [ { "page": "280-81", "parenthetical": "no \"actual entry of the guilty plea\" took place where \"defendant tendered a guilty plea which was not accepted and approved by the trial judge\"" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0273-01" ] }, { "cite": "575 S.E.2d 835", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "839-40" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 139", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9189905 ], "year": 2003, "pin_cites": [ { "page": "145-46" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0139-01" ] }, { "cite": "581 S.E.2d 444", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 169", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491521, 491781, 491848, 491753, 491727, 491668, 491638, 491482, 491900 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0169-03", "/nc/357/0169-09", "/nc/357/0169-06", "/nc/357/0169-04", "/nc/357/0169-08", "/nc/357/0169-05", "/nc/357/0169-07", "/nc/357/0169-02", "/nc/357/0169-01" ] }, { "cite": "573 S.E.2d 643", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "647", "parenthetical": "defendant convicted of three counts of incest with his daughter that occurred when victim visited defendant \"every weekend\" between the ages of twelve and seventeen and had intercourse with defendant \"every single time\" she visited" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9248826 ], "year": 2002, "pin_cites": [ { "page": "5", "parenthetical": "defendant convicted of three counts of incest with his daughter that occurred when victim visited defendant \"every weekend\" between the ages of twelve and seventeen and had intercourse with defendant \"every single time\" she visited" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0001-01" ] }, { "cite": "352 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "parenthetical": "defendant convicted of four counts of incest with his daughter occurring over a ten month period" } ], "opinion_index": 0 }, { "cite": "319 N.C. 34", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4741158 ], "year": 1987, "pin_cites": [ { "parenthetical": "defendant convicted of four counts of incest with his daughter occurring over a ten month period" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0034-01" ] }, { "cite": "366 S.E.2d 471", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "defendant convicted of two counts of incest with his daughter" } ], "opinion_index": 0 }, { "cite": "322 N.C. 97", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514274 ], "year": 1988, "pin_cites": [ { "parenthetical": "defendant convicted of two counts of incest with his daughter" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0097-01" ] }, { "cite": "178 S.E.2d 608", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "609" } ], "opinion_index": 0 }, { "cite": "278 N.C. 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559645 ], "year": 1971, "pin_cites": [ { "page": "64" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0063-01" ] }, { "cite": "524 S.E.2d 75", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "79", "parenthetical": "because offense of maintaining dwelling for use of controlled substances is a continuing offense, convictions of two counts of the offense violated constitutional prohibition against double jeopardy" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 394", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239742 ], "year": 2000, "pin_cites": [ { "page": "399", "parenthetical": "because offense of maintaining dwelling for use of controlled substances is a continuing offense, convictions of two counts of the offense violated constitutional prohibition against double jeopardy" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0394-01" ] }, { "cite": "133 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "3" } ], "opinion_index": 0 }, { "cite": "260 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574964 ], "year": 1963, "pin_cites": [ { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/nc/260/0406-01" ] } ], "analysis": { "cardinality": 939, "char_count": 22708, "ocr_confidence": 0.75, "pagerank": { "raw": 3.247251748070507e-07, "percentile": 0.8686807609246717 }, "sha256": "4765399848c6fd888cb28aa31c4f1f5d939fca0cc4ed4cb88503c247baa8b573", "simhash": "1:0fbb205b2618897a", "word_count": 3751 }, "last_updated": "2023-07-14T15:53:28.670431+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TYSON and BRYANT concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ANDY CECIL SHELTON" ], "opinions": [ { "text": "LEVINSON, Judge.\nDefendant (Andy Shelton) appeals from judgments entered upon his convictions of seven counts of felony incest, two counts of first degree rape, and three counts of second degree rape. The evidence at trial is summarized in relevant part as follows: The defendant\u2019s daughter, K., testified that she was bom in 1971 and that as a child she experienced severe beatings and \u201cwhippings\u201d from her father. In 1981, when she was ten years old, the defendant told her that \u201che wanted to teach [her] what boys wanted\u201d and engaged her in forcible sexual intercourse. For the following seven years, defendant forced K. to have intercourse about once a week. In October 1988 he forced her to have sex with him at gunpoint, resulting in her becoming pregnant with her daughter, M.L. K. also testified she never initiated sexual relations with her father, and never consented to sex with him.\nK.\u2019s sister, M.A., testified that she was bom in 1969 and that the defendant is her father. The defendant beat her frequently when she was a child, leaving bruises and marks on her face. When M.A. was about fourteen years old, the defendant raped her after telling her that the \u201csafest\u201d way to have sex was \u201cat home.\u201d Despite her refusal, defendant forced her to engage in sexual intercourse repeatedly over the next few years. In 1989 the defendant raped her and she became pregnant with her son A., who was born in 1990. M.A. testified that she never consented to sexual relations with the defendant.\nYancey County Deputy Sheriff Thomas Farmer testified to corroborative statements taken from K. and M.A., and to genetic testing confirming defendant\u2019s paternity of his daughters and of their children A. and M.L. He also testified concerning three statements he obtained from the defendant. In the first statement, taken in November 2002, the defendant told Farmer the following: He admitted having sexual relations with K. at least four times and with his third daughter, \u201cM\u201d, at least once. However, he claimed that K. had initiated their sexual encounters, and denied forcing K. or pointing a gun at her. He also apologized for the \u201cmistake\u201d of having sex with his daughters. After his arrest in December 2002, defendant made a second statement, in which he claimed that K. initiated their sexual activity because she \u201cwanted him\u201d sexually, and that she \u201cused sex to get her way.\u201d In February 2003 defendant made a third statement admitting to having sex with M.A. on one occasion and to fathering her child. Each of these statements was reduced to writing and signed by the defendant. The State also introduced a stipulation by the defendant admitting that he was the natural father of K. and M.A., and was also the father of their children A. and M.L.\nFollowing the presentation of evidence, the jury convicted the defendant of all charges. He was sentenced to consecutive prison terms totaling 186% years for the charges of second degree rape and incest, and to consecutive life sentences for the charges of first degree rape. From these judgments and convictions the defendant appeals.\nThe defendant was convicted of four counts of incest with K. and three counts of incest with M.A. He argues first that the trial court erred by denying his motion to dismiss all but one incest charge per victim. He contends \u201cthat a pattern of recurrent incestuous behaviors constitutes one offense,\u201d and thus that he could not be convicted of two or more counts of incest with the same victim. We disagree.\n\u201cThe crime of incest is purely statutor,\" State v. Rogers, 260 N.C. 406, 409, 133 S.E.2d 1, 3 (1963), and is defined by N.C.G.S. \u00a7 14-178 (2003), which provides in pertinent part that a \u201cperson commits the offense of incest if the person engages in carnal intercourse with the person\u2019s . . . child[.]\u201d The statutory language does not reveal any legislative intent to prohibit prosecuting a defendant for more than one count of incest per victim. Thus, defendant\u2019s argument is not supported by the relevant statutory provisions.\nDefendant asserts that incest is a continuing offense for which only a single prosecution is authorized. A continuing offense \u201cis a breach of the criminal law not terminated by a single act or fact, but which subsists for a definite period and is intended to cover or apply to successive similar obligations or occurrences.\u201d State v. Grady, 136 N.C. App. 394, 399, 524 S.E.2d 75, 79 (2000) (because offense of maintaining dwelling for use of controlled substances is a continuing offense, convictions of two counts of the offense violated constitutional prohibition against double jeopardy) (citation omitted). We conclude that neither statutory provisions nor relevant case law suggests that incest is a continuing offense.\nDefendant also argues that certain North Carolina appellate cases are properly interpreted as barring more than one conviction for incest between a defendant and a particular victim. He bases this argument upon language found in several older cases, including State v. Vincent, 278 N.C. 63, 64, 178 S.E.2d 608, 609 (1971), stating that a father \u201cis guilty of the statutory felony of incest if he has sexual intercourse, either habitual or in a single instance, with a woman or girl whom he knows to be his daughter.\u201d Defendant would have us interpret the phrase \u201ceither habitual or in a single instance\u201d as imposing a prohibition on prosecution of a defendant for more than one count of incest where there is evidence of \u201chabitual\u201d incest. However, neither Vincent nor the other cases cited by defendant draw such a conclusion. Indeed, the cases cited by defendant do not address the issue of multiple indictments.\nMoreover, evidence presented in incest cases often shows a pattern of ongoing sexual relations over a period of time between a defendant and a single victim. In this factual context, our appellate courts have not hesitated to uphold multiple convictions of incest by a defendant committed against a given child. See, e.g., State v. Weathers, 322 N.C. 97, 366 S.E.2d 471 (1988) (defendant convicted of two counts of incest with his daughter); State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987) (defendant convicted of four counts of incest with his daughter occurring over a ten month period); State v. Wade, 155 N.C. App. 1, 5, 573 S.E.2d 643, 647 (2002) (defendant convicted of three counts of incest with his daughter that occurred when victim visited defendant \u201cevery weekend\u201d between the ages of twelve and seventeen and had intercourse with defendant \u201cevery single time\u201d she visited), disc. review denied, 357 N.C. 169, 581 S.E.2d 444 (2003).\nThis assignment of error is overruled.\nDefendant argues next that the trial court erred by accepting defendant\u2019s plea of guilty but then submitting these same counts to the jury for their determination of his guilt or innocence. We disagree.\nThe transcript indicates that at the start of trial the defendant informed the court, in the presence of the jury, that he wished to plead guilty to two counts of incest, and that the trial court noted this for the record. The defendant neither asked to execute a transcript of plea, nor requested the court to limit or exclude any evidence on the basis of his offer to plead guilty. During trial, all of the State\u2019s witnesses testified regarding the incidents that formed the basis of the charges to which defendant had offered to plead guilty. The defendant neither objected to the introduction of such evidence, nor asked the court to accept his plea of guilty at the close of the evidence. Moreover, the trial court informed the parties during the charge conference of its intention to instruct the jury that, although defendant had tendered a plea of guilty, the court was nonetheless submitting these charges to the jury for their determination. The defendant voiced no objections, either during the charge conference or when the trial court instructed the jury as follows:\nNow, members of the jury, you will recall that during or following the Court\u2019s opening instructions prior to the opening statements of the lawyers that the defendant stated that he was pleading guilty to two charges. These are Case Numbers 03 CRS 180 and 02 CRS 1192. However, during the arraignment the defendant pled not guilty to the said charges. Members of the jury, the Court is submitting to you these cases for your determination of the guilt or innocence of the defendant. It is your duty to find the facts in these cases as it is in all of the cases and to determine whether the defendant is guilty beyond a reasonable doubt in these two cases and in all of the cases.\nThe defendant never asked to execute a plea transcript, or otherwise followed up on his initial offer to plead guilty.\nOn this record, defendant asserts that he tendered pleas of guilty to two counts of incest, and that \u201c[w]ithout engaging in the plea colloquies required by G.S. \u00a7 15A-1022 and 1026, the trial court accepted and recorded the plea.\u201d However, defendant\u2019s argument is premised upon a legal impossibility, because without engaging in the plea colloquies required by statute, the trial court cannot and does not accept an offered plea of guilty. See State v. Glover, 156 N.C. App. 139, 145-46, 575 S.E.2d 835, 839-40 (2003); see also State v. Marlow, 334 N.C. 273, 280-81, 432 S.E.2d 275, 279 (1993) (no \u201cactual entry of the guilty plea\u201d took place where \u201cdefendant tendered a guilty plea which was not accepted and approved by the trial judge\u201d). We conclude that, notwithstanding defendant\u2019s offer to plead guilty, no plea was accepted or entered by the trial court.\nDefendant also argues that the court erred by admitting evidence of the charges to which he had offered to plead guilty. By not objecting to such evidence, defendant failed to preserve this issue for appellate review. N.C. R. App. Proc. 10(b)(1) (2003) (\u201cto preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make\u201d). Nor do we agree with defendant that the jury \u201cwas improperly privy to counsel\u2019s admission of his client\u2019s guilt.\u201d The record is clear that it was defendant who chose to proffer a plea of guilty in front of the jury.\nWe conclude that, notwithstanding defendant\u2019s strategic decision to admit his guilt of two of the charged offenses in the jury\u2019s presence, no plea of guilty was accepted or entered by the court. The charges were instead submitted for the jury\u2019s determination. Defendant\u2019s argument on this issue is rejected. However, we note that on the judgment forms for the two cases at issue, 02 CRS 1192 and 03 CRS 180, the box marked \u201cpled guilty\u201d is erroneously checked. Accordingly, we remand solely for correction of this clerical error.\nDefendant\u2019s next two arguments pertain to sentencing. He argues first that the trial court abused its discretion by failing to find as a mitigating factor that defendant voluntarily acknowledged wrongdoing prior to arrest and at an early stage of the criminal process. We disagree.\n\u201cUnder the Fair Sentencing Act, \u2018the sentencing judge must find and weigh aggravating and mitigating factors before imposing a sentence greater than the presumptive sentence set by the statute.\u2019 \u201d State v. Mickey, 347 N.C. 508, 513, 495 S.E.2d 669, 672 (1998) (quoting State v. Flowers, 347 N.C. 1, 41, 489 S.E.2d 391, 414 (1997)). Under former N.C.G.S. \u00a7 15A-1340.4(a)(2)(1) (repealed effective 1 October 1994), one such statutory mitigating factor is that \u201cprior to arrest or at an early stage of the criminal process, the defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer.\u201d The trial court errs by failing to find this mitigating factor when the defendant has made a full confession to the charged offense before arrest. State v. Daniel, 319 N.C. 308, 354 S.E.2d 216 (1987). \u201cA defendant \u2018acknowledges wrongdoing\u2019 when he admits \u2018culpability, responsibility or remorse, as well as guilt.\u2019 \u201d State v. Godley, 140 N.C. App. 15, 28, 535 S.E.2d 566, 575 (2000) (quoting State v. Rathbone, 78 N.C. App. 58, 67, 336 S.E.2d 702, 707 (1985)). Thus, where defendant admits committing certain acts, but does not acknowledge wrongdoing or culpability, the trial court does not err by failing to find this mitigating factor. See, e.g., State v. Clark, 314 N.C. 638, 643, 336 S.E.2d 83, 86 (1985) (defendant not entitled to finding in mitigation where he admitted that \u201che killed the victim but denied culpability by contending that the shooting was justified by self-defense\u201d); State v. Michael, 311 N.C. 214, 316 S.E.2d 276 (1984) (defendant does not admit wrongdoing where he admits killing victim but contends it was accidental).\n\u201cUnder the Fair Sentencing Act, a trial court must find a statutory mitigating factor if that factor is supported by uncontradicted, substantial, and manifestly credible evidence. In order to show that the trial court erred in failing to find a mitigating factor, the defendant has the burden of showing that no other reasonable inferences can be drawn from the evidence.\u201d State v. Brewington, 343 N.C. 448, 456-57, 471 S.E.2d 398, 403 (1996) (citing State v. Jones, 309 N.C. 214, 218-20, 306 S.E.2d 451, 454-55 (1983)).\nDefendant first argues that the record \u201cshows that the defendant specifically requested the trial court to find this mitigating factor.\u201d Defendant misstates the record in this regard. In fact, the record shows only one oblique reference to this issue:\nDefense Counsel: So I\u2019d offer to you as a mitigating factor, Your Honor, that his mental abilities are diminished. I think that\u2019s 4B on the list of factors. That he admitted some of this and was candid with Officer Farmer as Lieutenant Farmer said; that he\u2019s got a support system here in the community.\nWe do not agree that counsel\u2019s statement to the court that defendant \u201cadmitted some of this\u201d constitutes a request for the court to find the statutory mitigating factor at issue. However, even construing defendant\u2019s statements at sentencing as a request for the trial court to find the mitigating factor, we conclude that the trial court did not err by failing to do so.\nIn his statements to Officer Farmer, the defendant conceded that he had engaged in several acts of intercourse with his daughters. However, the defendant admitted to only a few of the numerous incidents to which the victims testified, and he never acknowledged forcing or pressuring them to engage in sexual activities. In his first statement he admitted having sex with a third daughter and with K. on four occasions, although insisting that the sexual activity was \u201cagreed on between [them].\u201d In his second statement, defendant denied having intercourse with K. when she was ten years old, as she testified. He also claimed K. had \u201cwanted him\u201d sexually, and had enticed him by wearing \u201cmini skirts [and] small shirts.\u201d He stated that K. \u201ccauses problems for everyone,\u201d and that she \u201cinitiated the sexual intercourse between the two of them.\u201d He also claimed that he could not understand why charges were being brought against him. Further, he did not admit to any acts of intercourse with M.A. until his third statement, after being confronted by DNA evidence proving that he had fathered her child. In that statement defendant explained having intercourse with M.A. partly on the basis that his wife \u201cwas going thorough the change of life and she and I were not having sex very often\u201d and also that on the one occasion he acknowledged having sex with M.A. she had been \u201cwearing tight jeans.\u201d Finally, defendant never acknowledged the pain and suffering he caused his victims; the closest he came to admitting any wrongdoing was a grudging acknowledgment in his first statement that having sex with his daughters had been a \u201cmistake.\u201d\nWe conclude the trial court did not abuse its discretion by failing to find this mitigating factor. Although defendant made certain statements to Officer Farmer, his statements did not prove by a preponderance of uncontradicted and manifestly credible evidence that \u201cprior to arrest or at an early stage of the criminal process, the defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer.\u201d See State v. Brewington, 343 N.C. 448, 457-58, 471 S.E.2d 398, 404 (1996) (trial court did not err by failing to find early acknowledgment of wrongdoing where defendant \u201ctrie[d] to minimize his culpability\u201d and had \u201cattempted] to shift responsibility\u201d for the commission of the offense at issue). This assignment of error is overruled.\nDefendant also argues that the trial court recommended an amount of restitution that was not supported by competent evidence. We agree.\nEvidence was adduced at trial that during its investigation of these offenses the State secured nontestimonial identification orders. These were used to obtain the genetic DNA testing that established that defendant was, to an overwhelming degree of certainty, the father of his daughters K. and M.A., and of their children A. and M.L. During sentencing, the State asked that in the event defendant was granted work release he be required to reimburse the $2,250.00 expense for genetic testing. The issue was addressed in the judgment for Case Number 02 CRS 1197, in which the defendant was sentenced to life in prison for the offense of first degree rape. On the judgment for this offense, the court ordered that if defendant were ever paroled he be required to pay restitution of $2,250.00. Restitution was not ordered in any of the other judgments.\nPreliminarily, we reject the State\u2019s argument that defendant has not properly preserved this issue for appellate review. While defendant did not specifically object to the trial court\u2019s entry of an award of restitution, this issue is deemed preserved for appellate review under N.C. Gen. Stat. \u00a7 15A-1446(d)(18). State v. Reynolds, 161 N.C. App. 144, 149, 587 S.E.2d 456, 460 (2003).\n\u201c[T]he amount of restitution recommended by the trial court must be supported by evidence adduced at trial or at sentencing.\u201d State v. Wilson, 340 N.C. 720, 726, 459 S.E.2d 192, 196 (1995) (citing State v. Daye, 78 N.C. App. 753, 756, 338 S.E.2d 557, 560 (1986)). The unsworn statement of the prosecutor is insufficient to support the amount of restitution ordered. State v. Buchanan, 108 N.C. App. 338, 423 S.E.2d 819 (1992). In the instant case, the record does not include any evidence supporting the prosecutor\u2019s statement during sentencing as to the amount charged for the genetic testing. Consequently, this portion of the judgment in Case Number 02 CRS 1197 is vacated.\nWe have considered defendant\u2019s other assignments of error and find them to be without merit. In summary, we find no error in defendant\u2019s convictions and sentences with the exception of the restitution recommended in 02 CRS 1197. Additionally, we remand for the limited purpose of allowing the trial court, in the absence of the defendant, to make a clerical correction in the judgment forms for 02 CRS 1192 and 03 CRS 180 to reflect that defendant was found guilty by a jury.\nNo error in part, remanded in part, vacated in part.\nJudges TYSON and BRYANT concur.\n. To preserve their privacy, the names of the victims in this case, and of their children, are referred to by their initials.", "type": "majority", "author": "LEVINSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Jennie Wilhelm Mau, for the State.", "Paul Pooley for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ANDY CECIL SHELTON\nNo. COA04-33\n(Filed 7 December 2004)\n1. Sexual Offenses\u2014 incest \u2014 motion to dismiss \u2014 no requirement of one count of incest per victim\nThe trial court did not err by denying defendant\u2019s motion to dismiss all but one incest charge per victim, because: (1) N.C.G.S. \u00a7 14-178 does not reveal any legislative intent to prohibit prosecuting a defendant for more than one count of incest per victim; and (2) neither statutory provisions nor relevant case law suggest that incest is a continuing offense.\n2. Criminal Law\u2014 guilty plea \u2014 no acceptance by court \u2014 clerical error\nThe trial court did not err by allegedly accepting defendant\u2019s plea of guilty to two counts of incest but then submitting these same counts to the jury for their determination of his guilt or innocence, and the case is remanded solely for correction of the clerical errors in 02 CRS 1192 and 03 CRS 180 where the box marked \u201cpled guilty\u201d is erroneously checked, because: (1) defendant never asked to execute a plea transcript and never followed up on his initial offer to plead guilty; (2) without engaging in the plea colloquies required by N.C.G.S. \u00a7\u00a7 15A-1022 and 1026, the trial court cannot and does not accept an offered plea of guilty; and (3) defendant failed to object to evidence of the charges to which he offered to plead guilty and thus failed to preserve this issue for appellate review.\n3. Sentencing\u2014 mitigating factor \u2014 acknowledged wrongdoing prior to arrest\nThe trial court did not abuse its discretion in a multiple felony incest, double first-degree rape, and triple second-degree rape case by failing to find as a mitigating factor that defendant voluntarily acknowledged wrongdoing prior to arrest and at an early stage of the criminal process, because: (1) defense counsel\u2019s statement to the court that defendant \u201cadmitted some of this\u201d did not constitute a request for the court to find the statutory mitigating factor at issue; and (2) assuming arguendo that defense counsel\u2019s statement at sentencing was such a request, defendant never acknowledged the pain and suffering he caused the victims, the closest defendant came to admitting any wrongdoing was a grudging acknowledgment that having sex with his daughters had been a mistake, and defendant\u2019s statements did not prove by a preponderance of evidence that he acknowledged wrongdoing in connection with the offense.\n4. Sentencing\u2014 restitution \u2014 genetic testing \u2014 incompetent evidence\nThe trial court erred in a multiple felony incest, double first-degree rape, and triple second-degree rape case by recommending an amount of restitution to reimburse the $2,250 expense for genetic testing, because: (1) while defendant did not specifically object to the trial court\u2019s entry of an award of restitution, this issue is deemed preserved for appellate review under N.C.G.S. \u00a7 15A-1446(d)(18); and (2) the record does not include any evidence supporting the prosecutor\u2019s statement during sentencing as to the amount charged for the genetic testing.\nAppeal by defendant from judgments entered 4 June 2003 by Judge Zoro J. Guice, Jr., in Yancey County Superior Court. Heard in the Court of Appeals 14 October 2004.\nAttorney General Roy Cooper, by Assistant Attorney General Jennie Wilhelm Mau, for the State.\nPaul Pooley for defendant-appellant." }, "file_name": "0225-01", "first_page_order": 255, "last_page_order": 264 }