{ "id": 8320072, "name": "STATE OF NORTH CAROLINA v. LAVORIS MONTEIZ BATTLE", "name_abbreviation": "State v. Battle", "decision_date": "2005-08-02", "docket_number": "No. COA03-484", "first_page": "335", "last_page": "340", "citations": [ { "type": "official", "cite": "172 N.C. App. 335" } ], "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": "359 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796256 ], "weight": 2, "year": 2005, "pin_cites": [ { "parenthetical": "No. 485PA04" }, { "page": "440-41" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0425-01" ] }, { "cite": "548 S.E.2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "732" } ], "opinion_index": 0 }, { "cite": "353 N.C. 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135574 ], "year": 2001, "pin_cites": [ { "page": "598" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0568-01" ] }, { "cite": "160 L. Ed. 2d 621", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 5925862 ], "year": 2005, "pin_cites": [ { "page": "665" } ], "opinion_index": 0, "case_paths": [ "/us/543/0220-01" ] }, { "cite": "530 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413911 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "490" }, { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/us/530/0466-01" ] }, { "cite": "561 S.E.2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 291", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220194, 219977, 220046, 219926, 219993 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0291-04", "/nc/355/0291-01", "/nc/355/0291-05", "/nc/355/0291-02", "/nc/355/0291-03" ] }, { "cite": "551 S.E.2d 881", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "888" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 44", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11353786 ], "year": 2001, "pin_cites": [ { "page": "56" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0044-01" ] }, { "cite": "372 S.E.2d 517", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "519", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "323 N.C. 318", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566216 ], "year": 1988, "pin_cites": [ { "page": "322", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0318-01" ] }, { "cite": "542 U.S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868041 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "413-14", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/us/542/0296-01" ] } ], "analysis": { "cardinality": 585, "char_count": 10290, "ocr_confidence": 0.749, "pagerank": { "raw": 2.8651142789705816e-07, "percentile": 0.8421701419658058 }, "sha256": "3745c04f734445a91e3aaf46c8c42af529046ee1229c4a5f384a608192efdddc", "simhash": "1:9eeb64284b2ebc0e", "word_count": 1700 }, "last_updated": "2023-07-14T22:22:54.702952+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MCCULLOUGH and STEELMAN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. LAVORIS MONTEIZ BATTLE" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nDefendant was found guilty by a jury of robbery with a dangerous weapon. The trial court determined that defendant had a Prior Record level II and found as a factor in aggravation of sentencing that defendant \u201cjoined with more than one other person in committing the offense and was not charged with committing a conspiracy.\u201d Defendant was sentenced in the aggravated range to imprisonment for a minimum term of 95 months and a maximum term of 123 months. Defendant appeals.\nThe evidence before the trial court tended to show that on 23 December 2001, an individual wielding a sawed-off shotgun robbed the Citgo Food Mart in Grimesland, North Carolina. The robber ordered the two employees to open the cash register and then lie on the floor, and he took $1,665 from the register. Two surveillance cameras captured the robbery on tape. The gunman was wearing dark pants and a long black coat, and his face was covered by a t-shirt or towel.\nThree similar robberies occurred between December 2001 and March 2002. Police believed the three robberies were committed by the same perpetrator since the robber wore a long black coat and hid his face in at least three of the four robberies. Detective Phillip Moore of the Pitt County Sheriff\u2019s Department testified that he arrested Quincy Taft, Reginald Daniels, and defendant for the robbery in question.\nDetective Moore testified, based on information provided to him by Daniels, that his investigation revealed defendant to have been the gunman at the December 23rd robbery. Upon defendant\u2019s objection based on hearsay, the trial court admitted the testimony for the limited purpose of corroborating the testimony of Daniels, who had not yet testified, and instructed the jury accordingly. Detective Moore also testified that Daniels had not been truthful with him about the robbery in question on several occasions and had attempted to minimize his involvement.\nDaniels testified at trial that defendant called him and asked him for a ride so he could rob the Citgo store. Daniels picked up defendant and Quincy Taft at defendant\u2019s house; defendant was carrying a sawed-off shotgun and was wearing dark clothes. Daniels drove defendant to a place near the store and let him out of the car. Defendant wrapped a t-shirt around his head and ran toward the store; Daniels drove a distance, then turned around and returned to the area and saw defendant running down the road. He picked defendant up and took him back to his house, where the three men counted the money. Defendant gave Daniels about $200.\nDefendant denied any participation in the robbery. He testified that on the evening in question he was at his mother\u2019s house. He left to go to Western Union at Kroger\u2019s grocery store to take out money, but it had already closed. On his way back, he stopped to get gas at the Citgo between 10:20 and 10:30 p.m. He returned home, and Sheretha Jones drove him and Quincy Taft to a cousin\u2019s house and then to the airport for an early morning flight to Connecticut. The surveillance tapes confirmed that he was at the Citgo buying gas at 10:15 p.m. Ms. Jones\u2019s testimony was similar to defendant\u2019s, and defendant\u2019s cousin confirmed that defendant stopped by his house a little before 11:00 p.m.\nQuincy Taft testified that he went with defendant to the Western Union, to the Citgo for gas, and back to defendant\u2019s mother\u2019s house. Reginald Daniels came to the house, and Daniels and defendant left. When they returned, Taft saw some money lying on a bed, but he did not know where it came from or how it got there. Taft said he did not ride anywhere with Reginald Daniels that night.\nIn the record on appeal, defendant assigns plain error to the admission of Detective Moore\u2019s testimony that defendant had been the gunman. He also assigns plain error to the trial court\u2019s entry of judgment, arguing that the evidence was insufficient to establish his guilt beyond a reasonable doubt. Neither of these assignments of error has been properly preserved. By Motion for Appropriate Relief filed in this Court, defendant also asserts that his sentence, in the aggravated range, was \u201cinvalid as a matter of law\u201d pursuant to the decision of the United States Supreme Court in Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004). We hold defendant is entitled to a new sentencing hearing.\nDefendant first argues that the trial court erred in allowing Detective Moore of the Pitt County Sheriffs Department to testify that his investigation had revealed that defendant committed the robbery. On appeal, he argues that such testimony amounted to an impermissible opinion concerning defendant\u2019s guilt. His objection at trial, however, was based on hearsay.\nOur Courts have consistently held that a defendant may not advance a theory on appeal which was not first argued at trial. State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988) (citation omitted) (\u201c \u2018The theory upon which a case is tried in the lower court must control in construing the record and determining the validity of the exceptions.\u2019.. . Defendant may not swap horses after trial in order to obtain a thoroughbred upon appeal\u201d); State v. Smarr, 146 N.C. App. 44, 56, 551 S.E.2d 881, 888 (2001), disc. review denied, 355 N.C. 291, 561 S.E.2d 500 (2002). Because defendant\u2019s objection at trial was based on hearsay, a theory different from that advanced on appeal, we must hold that defendant has not properly preserved the issue for review and we will not consider his argument.\nDefendant next argues that the trial court committed plain error in entering judgment when insufficient evidence existed to support his conviction. Rule 10(b)(3) of the North Carolina Rules of Appellate Procedure mandates that a defendant must move to dismiss a criminal charge in the trial court in order to preserve the issue of the sufficiency of the evidence for appellate review. N.C.R. App. P. 10(b)(3) (2004) (\u201cA defendant in a criminal case may not assign as error the insufficiency of the evidence to prove the crime charged unless he moves to dismiss the action ... at trial\u201d). In the instant case, defendant did not move to dismiss the charge at the close of the State\u2019s evidence nor at the close of all the evidence. Accordingly, this assignment of error is dismissed.\nDefendant has filed a Motion for Appropriate Relief requesting this Court to vacate his sentence and remand the case for resentenc-ing pursuant to the decision of the United States Supreme Court in Blakely v. Washington, supra. In 2000, the U.S. Supreme Court held in Apprendi v. New Jersey that \u201c[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.\u201d 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455 (2000). In Blakely, the Court further stated:\nthe \u201cstatutory maximum\u201d for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant \u201cstatutory maximum\u201d is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.\nBlakely, 542 U.S. at \u2014, 159 L. Ed. 2d at 413-14 (citations omitted) (emphasis in original). The holdings in Apprendi and Blakely apply to cases in which direct appellate review was pending and the conviction had not yet become final on the date Blakely was decided, 24 June 2004. U.S. v. Booker, 543 U.S. -, 160 L. Ed. 2d 621, 665 (2005); State v. Lucas, 353 N.C. 568, 598, 548 S.E.2d 712, 732 (2001).\nIn State v. Allen, 359 N.C. 425, - S.E.2d-(July 1, 2005) (No. 485PA04), the North Carolina Supreme Court held, interpreting Blakely, that the provisions of North Carolina\u2019s Structured. Sentencing Act, specifically N.C. Gen. Stat. \u00a7 15A-1340.16(a),(b), and (c), which require the trial court to consider evidence of statutory aggravating factors, other than the fact of a prior conviction, that are not admitted by defendant or found beyond a reasonable doubt by a jury, and that permit the imposition of\u00b0an aggravated sentence based thereon, violate the Sixth Amendment to the United States Constitution. Moreover, the removal of aggravating factors from jury consideration for sentencing purposes was held by the Court to be structural error, and therefore, reversible per se. Id. at 440-41.\nIn the present case, defendant\u2019s sentence was enhanced beyond the prescribed presumptive range based upon a factor which was not submitted to the jury and proved beyond a reasonable doubt. Therefore, the sentence was imposed in violation of defendant\u2019s Sixth Amendment right, pursuant to Blakely, and such error is reversible per se, pursuant to Allen. Defendant is entitled to a new sentencing hearing.\nNo error in defendant\u2019s trial.\nRemanded for a new sentencing hearing.\nJudges MCCULLOUGH and STEELMAN concur.", "type": "majority", "author": "MARTIN, Chief Judge." } ], "attorneys": [ "Roy Cooper, Attorney General, by Sonya M. Calloway, Assistant Attorney General, for the State.", "Staples S. Hughes, Appellate Defender, by Barbara S. Blackman, Assistant Appellate Defender, for the defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LAVORIS MONTEIZ BATTLE\nNo. COA03-484\n(Filed 2 August 2005)\n1. Appeal and Error\u2014 preservation of issues \u2014 grounds for objection \u2014 difference between trial and appeal\nDefendant did not preserve for appeal his contention that a detective\u2019s opinion amounted to an impermissible opinion about guilt where his objection at trial was based on hearsay.\n2. Appeal and Error\u2014 preservation of issues \u2014 sufficiency of evidence \u2014 motion at trial required\nA defendant must move to dismiss a criminal charge in the trial court to preserve sufficiency of evidence for appellate review; here, defendant\u2019s assignment of error alleging plain error in this regard was dismissed.\n3. Sentencing\u2014 aggravating factor \u2014 Blakely error \u2014 jury finding required\nDefendant was awarded a new sentencing hearing where his sentence was enhanced beyond the presumptive range based upon a factor not submitted to the jury and proven beyond a reasonable doubt.\nAppeal by defendant from judgment entered 27 September 2002 by Judge W. Russell Duke, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 15 November 2004.\nRoy Cooper, Attorney General, by Sonya M. Calloway, Assistant Attorney General, for the State.\nStaples S. Hughes, Appellate Defender, by Barbara S. Blackman, Assistant Appellate Defender, for the defendant." }, "file_name": "0335-01", "first_page_order": 365, "last_page_order": 370 }