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    "judges": [
      "Judges WYNN and TYSON concur."
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      "STATE OF NORTH CAROLINA v. XAVIER DOMINIQUE JOHNSON, Defendant"
    ],
    "opinions": [
      {
        "text": "HUDSON, Judge.\nIn August 2003, the grand jury in Durham County indicted defendant for kidnapping and assault with a deadly weapon inflicting serious injury. On 3 February 2005, the trial jury found defendant guilty of both offenses. On 4 February 2005, after hearing evidence on aggravating factors, the jury found two aggravating factors, and the court sentenced defendant within the aggravated range to two consecutive terms of 42 to 60 months imprisonment. Defendant appeals. We conclude that there was no error.\nThe evidence tends to show that defendant, co-defendant Robert Johnson, and Robert Harris, all residents of Durham, had known each other for years. According to Harris, he and Robert Johnson had a disagreement over money owed for drugs in April 2003. On 20 April 2003, defendant was driving his car when Harris approached. While they were speaking, Robert Johnson pulled up, got out of his vehicle, and forced Harris into defendant\u2019s car at gunpoint. Robert Johnson beat Harris while defendant drove. Harris testified that he offered to give Robert Johnson money, if that was what he wanted, but that defendant told Robert Johnson not to let Harris go because he would tell. Harris also testified that defendant asked Robert Johnson what he was going to do and told him, \u201cyou better kill him.\u201d Eventually, when defendant stopped the car, Robert forced Harris out of the car and shot him in the leg, partially severing his genitals and causing permanent injury.\nDefendant first argues that the trial court deprived him of his constitutional rights under the confrontation clause when it allowed the out-of-court statements of Ms. Felicia Turrain into evidence. At trial, Walter Harris testified that he had signed a notarized statement that defendant did not participate in the incident when Harris was kidnapped and shot. The State asked why Harris had signed this statement, and Harris stated that Felicia Turrain kept coming to the nursing school where he was taking classes and asking, \u201cwould I help [defendant] out, you know, to get out of this trouble, because really basically like he couldn\u2019t afford to take another charge like this.\u201d The court overruled defendant\u2019s objection but instructed the jury not to consider the portion of the testimony that \u201c \u2018he couldn\u2019t afford to take another charge like this.\u2019 \u201d It is well-established that our appellate courts will only review constitutional questions raised and passed upon at trial. N.C. R. App. P. 10(b)(1) (2004); State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982). Here, defendant lodged a general objection but did not object on constitutional grounds. Where a defendant fails to properly object at trial, he may argue plain error on appeal. N.C. R. App. P. 10(c)(4) (2004). However, defendant has not asserted plain error and thus has waived plain error review. State v. Dennison, 359 N.C. 312, 312, 608 S.E.2d 756, 757 (2005). Accordingly, defendant\u2019s constitutional argument is not properly before us, and we overrule this assignment of error.\nIn his next argument, defendant contends that the trial court erred in admitting prejudicial evidence of other crimes. We disagree. N.C. Gen. Stat. \u00a7 8C-1, Rule 404(b) (2003) provides that while \u201c[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person or that he acted in conformity therewith.\u201d Id. However, such evidence may be admissible for other purposes such as to prove motive, opportunity, intent, and knowledge. Id. Here, the State elicited testimony from Mr. Harris that he had not wanted to testify at defendant\u2019s trial and only did so after being arrested and jailed as a material witness. Harris testified that after he had testified at the earlier trial of a co-defendant in this case, \u201c[t]hey shot my momma\u2019s house up ... When I say they, I\u2019m not saying no names.\u201d The State subsequently asked if Harris had avoided coming to court in the present case \u201c[bjecause of the threats from Xavier Johnson; is that right?\u201d Harris responded ambiguously at first, but then stated \u201cas far as, you know, the arguments that we may have had, as far as coming up to the trial, [defendant] ain\u2019t threatened me. I mean him personally, no, being threatened, not him, you know.\u201d We fail to see how such testimony constitutes evidence of a prior bad act by defendant. Furthermore, even presuming error, we are not persuaded that such error would have prejudiced defendant, given the other evidence presented in this case. We overrule this assignment of error.\nDefendant next argues that the trial court erred in aggravating defendant\u2019s sentences because it lacked authority to sentence defendant within the aggravated range. We disagree. We first note that defendant did not object to imposition of the aggravated sentence at trial, and the State contends that defendant thus failed to preserve this issue for our review. N.C. R. App. P. 10(b)(1). However, this Court has held that \u201can error at sentencing is not considered an error at trial for the purpose of Rule 10(b)(1) because this rule is directed to matters which occur at trial and upon which the trial court must be given an opportunity to rule in order to preserve the question for appeal.\u201d State v. Harris, 175 N.C. App. 360, 362-63, 623 S.E.2d 588, 590 (2006) (internal citations and quotation marks omitted). Accordingly, as in Harris, \u201cdespite defendant\u2019s failure to object to the sentence, the issue is properly before this Court.\u201d Id.\nIn 2004, the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004). The Court held that a defendant\u2019s constitutional right to trial by jury requires that jurors find, beyond a reasonable doubt, facts which increase the penalty for a crime \u201cbeyond the prescribed statutory maximum,\u201d defining \u201cstatutory maximum\u201d as the maximum sentence allowed by a jury\u2019s verdict or from a defendant\u2019s admissions, without additional judge-made findings of fact. Id. at 303-04, 159 L. Ed. 2d at 413-14. In State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005), withdrawn by 360 N.C. 569, 635 S.E.2d 899 (2006), the North Carolina Supreme Court reviewed the effect of Blakely on the North Carolina structured sentencing act (\u201cthe Act\u201d). The Court concluded that N.C. Gen. Stat. \u00a7 15A-1340.16 (2004), the portion of the Act which required trial judges to consider evidence of aggravating factors not found by a jury or admitted by the defendant, and which permitted imposition of an aggravated sentence upon judicial findings of such aggravating factors by a preponderance of the evidence, violated the Sixth Amendment as interpreted in Blakely. 359 N.C. at 438-39, 615 S.E.2d at 265. The Court held that all of its holdings in Allen applied to cases in which \u201cthe defendants had not been indicted as of the certification date of this opinion and to cases that are now pending on direct review or are not yet final.\u201d Id. at 427, 615 S.E.2d at 258. Here, defendant was indicted on 11 August 2003, judgment was entered 4 February 2005, and defendant filed notice of appeal on 5 February 2005. Allen was filed on 1 July 2005; thus, defendant\u2019s case was pending on direct review when Allen was certified. Although Allen was later withdrawn on other grounds (for its determination that Blakely errors were structural and not subject to harmless error analysis), Allen was controlling precedent at the time defendant was sentenced.\nThe General Assembly had hot amended the Act at the time of defendant\u2019s trial. When the legislature did amend N.C. Gen. Stat. \u00a7 15A-1340.16 on 30 June 2005, it stated that:\nThis act is effective when it becomes law. Prosecution for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.\n2005 N.C. Sess. Laws 145. Thus, at the time of defendant\u2019s trial, the applicable statute was the unamended version of N.C. Gen. Stat. \u00a7 15A-1340.16(2004), which required the trial court to find aggravating factors not admitted by defendant by a preponderance of the evidence and to make written findings. Id. Aware of the problems presented by Blakely, the trial court here presented the aggravating factors to the jury and the jury found these factors beyond a reasonable doubt. The trial court wrote by hand on the judgment form, \u201cfound by the jury beyond a reasonable doubt,\u201d below the findings of aggravating factors.\nDefendant does not assert that the trial court violated his rights under Blakely, but that the trial court acted without authority when it fashioned its own remedy to comply with Blakely before our legislature had amended the structured sentencing act. However, the North Carolina Supreme Court recently addressed this issue, where \u201cthe trial court allegedly lacked a procedural mechanism by which to submit the challenged aggravating factor to the jury,\u201d and concluded that North Carolina law \u201cpermits the submission of aggravating factors to a jury using a special verdict.\u201d State v. Blackwell, 361 N.C. 41, 46, S.E.2d \u2014 , \u2014 (2006).\nA special verdict is a common law procedural device by which the jury may answer specific questions posed by the trial judge that are separate and distinct from the general verdict. Despite the fact that the General Statutes do not specifically authorize the use of special verdicts in criminal trials, it is well-settled under our common law that special verdicts are permissible in criminal cases. Special verdicts, however, are subject to certain limitations. After the United States Supreme Court decision in United States v. Gaudin, a special verdict in a criminal case must not be a true special verdict \u2014 one by which the jury only makes findings on the factual components of the essential elements alone\u2014 as this practice violates a criminal defendant\u2019s Sixth Amendment right to a jury trial. Thus, trial courts using special verdicts in criminal cases must require juries to apply law to the facts they find, in some cases straddling] the line between facts and law as a mini-verdict of sorts. Furthermore, requests for criminal special verdicts must require the jury to arrive at its decision using a beyond a reasonable doubt standard, since a lesser standard such as preponderance of the evidence would violate a defendant\u2019s right to a jury trial. Aside from these limitations, however, we are aware of no limits on our trial courts\u2019 broad discretion to utilize special verdicts in criminal cases when appropriate. It is difficult to imagine a more appropriate set of circumstances for the use of a special verdict than those existing in the instant case, in which a special verdict in compliance with the above limitations would have safeguarded defendant\u2019s right to a jury trial under Blakely .... [P]rior to the Blakely Act, special verdicts were the appropriate procedural mechanism under state law to submit aggravating factors to a jury.\nId. Here, we conclude that the trial court complied with the limitations for a special verdict set forth in Blackwell, and thus we overrule this assignment of error.\nDefendant also contends that there was insufficient evidence to support submission of the aggravating factors to the jury. We disagree. The jury was instructed and found that the defendant occupied a position of leadership or dominance of other participants in the commission of the offenses of assault with a deadly weapon causing serious injury and second-degree kidnapping. Defendant objected to the submission of this aggravating factor. \u25a0 In determining whether there was sufficient evidence to present to the jury, we review the evidence in the light most favorable to the State. State v. Thomas, 296 N.C. 236, 245, 250 S.E.2d 204, 208 (1978). The State is entitled to every reasonable inference to be drawn from the evidence and to have all contradictions in the evidence resolved in its favor. State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998). The ultimate question is \u201cwhether a reasonable inference of the defendant\u2019s guilt may be drawn from the circumstances.\u201d Id. If the evidence supports a reasonable inference of defendant\u2019s guilt, \u201cit is for the jury to decide whether the facts, taken singly or in combination, satisfy them beyond a reasonable doubt that the defendant is actually guilty.\u201d Thomas, 296 N.C. at 244, 250 S.E.2d at 209. Here, Mr. Harris testified that defendant was driving the vehicle that Harris was forced into, that defendant drove while Robert Johnson beat Harris, and that defendant told Robert Johnson that they should not let Harris go and that they should kill him. Viewing the evidence in the light most favorable to the State, we conclude that there was sufficient evidence to support the instruction on occupying a position of leadership or dominance.\nDefendant also asserts that there was insufficient evidence to support the aggravating factor submitted and found by the jury that the offenses were committed with the use of a deadly weapon. As defendant did not object to this charge at trial, we review this claim for plain error. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 379 (1983). It is undisputed that the offenses committed by Robert Johnson were committed with the use of a deadly weapon. It is also undisputed that defendant had no weapon. Defendant asserts that the trial court may not submit an aggravating factor based on a theory of acting in concert, citing State v. Oliver, 309 N.C. 326, 365, 307 S.E.2d 304, 329 (1983). However, Oliver does not stand for this proposition and defendant has not cited any other law in support of this argument. Indeed, our Courts have upheld the application of the theory of acting in concert to the finding of aggravating factors. See State v. Barnes, 333 N.C. 666, 686, 430 S.E.2d 223, 234 (1993); State v. Collier, 72 N.C. App. 508, 512, 325 S.E.2d 256, 258 (1985). Where two or more persons join in a plan to commit a crime, each of them, if actually or constructively present, is guilty as a principal if the other commits that particular crime. State v. Barnes, 345 N.C. 184, 233, 481 S.E.2d 44, 71 (1997). We conclude that the court did not commit plain error in submitting the aggravating factor that the offenses were committed with the use of a deadly weapon based on a theory of acting in concert. We overrule this assignment of error.\nNo error.\nJudges WYNN and TYSON concur.\nThe judges participated and submitted this opinion for filing prior to 1 January 2007.",
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    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Sandra Wallace-Smith, for the State.",
      "Glover & Petersen, P.A., by Ann B. Petersen, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. XAVIER DOMINIQUE JOHNSON, Defendant\nNo. COA05-1403\n(Filed 2 January 2007)\n1. Appeal and Error\u2014 preservation of issues \u2014 failure to object on constitutional grounds \u2014 failure to assert plain error\nAlthough defendant contends the trial court violated his right to confrontation in a kidnapping and assault with a deadly weapon inflicting serious injury case by allowing the out-of-court statements of a witness, this assignment of error is dismissed because: (1) our appellate courts will only review constitutional questions raised and passed upon at trial; (2) defendant only lodged a general objection but did not object on constitutional grounds; and (3) defendant failed to assert plain error.\n2. Evidence\u2014 prior crimes or bad acts \u2014 victim\u2019s lack of willingness to testify \u2014 shooting at mother\u2019s house\nTestimony by a kidnapping and assault victim that he did not want to testify at defendant\u2019s trial and only did so after being jailed as a material witness, and that after he testified at a code-fendant\u2019s trial \u201cthey shot my momma\u2019s house up,\u201d but that defendant had not threatened him, did not constitute evidence of a prior bad act by defendant in violation of N.C.G.S. \u00a7 8C-1, Rule 404(b). Even presuming error, defendant was not prejudiced given the other evidence presented in the case.\n3. Sentencing\u2014 aggravated sentences \u2014 special verdict\nThe trial court did not err in a kidnapping and assault with a deadly weapon inflicting serious injury case by aggravating defendant\u2019s sentences, because: (1) at the time of defendant\u2019s trial, the applicable statute was the unamended version of N.C.G.S. \u00a7 15A-1340.16 (2004) which required the trial court to find aggravating factors not admitted by defendant by \u00e1 preponderance of the evidence and to make written findings; (2) North Carolina law permits the submission of aggravating factors to a jury using a special verdict; and (3) the trial court complied with the limitations for a special verdict set forth in State v. Blackwell, 361 N.C. 41 (2006).\n4. Sentencing\u2014 aggravating factors \u2014 position of leadership or dominance of other participants\nThe trial court did not err in a kidnapping and assault with a deadly weapon inflicting serious injury case by concluding there was sufficient evidence to support submission of the aggravating factor that defendant occupied a position of leadership or dominance of other participants in the commission of the offenses, because: (1) a reasonable inference of defendant\u2019s guilt may be drawn from the circumstances; and (2) the victim testified that defendant was driving the vehicle that the victim was forced into, that defendant drove while another person beat the victim, and that defendant told the other person that they should not let the victim go and that they should kill him.\n5. Sentencing\u2014 aggravating factors \u2014 offenses committed with use of deadly weapon \u2014 acting in concert\nThe trial court did not commit plain error in a kidnapping and assault with a deadly weapon inflicting serious injury case by concluding there was sufficient evidence to support submission of the aggravating factor that the offenses were committed with the use of a deadly weapon even though defendant himself had no weapon, because: (1) our courts have upheld the application of the theory of acting in concert to the finding of aggravating factors; and (2) defendant\u2019s coparticipant committed the offenses with the use of a deadly weapon.\nAppeal by defendant from judgments entered 4 February 2005 by Judge Robert H. Hobgood in the Superior Court in Durham County. Heard in the Court of Appeals 22 August 2006.\nAttorney General Roy Cooper, by Assistant Attorney General Sandra Wallace-Smith, for the State.\nGlover & Petersen, P.A., by Ann B. Petersen, for defendant-appellant."
  },
  "file_name": "0287-01",
  "first_page_order": 319,
  "last_page_order": 326
}
