{ "id": 4174626, "name": "STATE OF NORTH CAROLINA v. DAVID JOSEPH RILEY", "name_abbreviation": "State v. Riley", "decision_date": "2010-02-02", "docket_number": "No. COA09-643", "first_page": "299", "last_page": "309", "citations": [ { "type": "official", "cite": "202 N.C. App. 299" } ], "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": "656 S.E.2d 701", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640371 ], "weight": 4, "year": 2008, "pin_cites": [ { "page": "703" }, { "page": "703" }, { "page": "703" }, { "page": "703" } ], "opinion_index": 0, "case_paths": [ "/se2d/656/0701-01" ] }, { "cite": "501 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "656", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "348 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659850 ], "year": 1998, "pin_cites": [ { "page": "547", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0537-01" ] }, { "cite": "188 N.C. App. 827", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4155707 ], "weight": 4, "year": 2008, "pin_cites": [ { "page": "830" }, { "page": "831" }, { "page": "831" }, { "page": "831" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0827-01" ] }, { "cite": "516 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "397" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 496", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11220395 ], "year": 1999, "pin_cites": [ { "page": "509" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0496-01" ] }, { "cite": "477 U.S. 168", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6205694 ], "weight": 8, "year": 1986, "pin_cites": [ { "page": "181" }, { "page": "157" }, { "page": "181" }, { "page": "157", "parenthetical": "citations and quotations omitted" }, { "page": "181-82" }, { "page": "157-58" }, { "page": "181" }, { "page": "157" } ], "opinion_index": 0, "case_paths": [ "/us/477/0168-01" ] }, { "cite": "129 L. Ed. 2d 895", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "512 U.S. 1254", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 39539 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/us/512/1254-01" ] }, { "cite": "346 S.E.2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4778236 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0474-01" ] }, { "cite": "433 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "152", "parenthetical": "citing State v. Williams, 317 N.C. 474, 346 S.E.2d 405 (1986)" }, { "page": "152" }, { "page": "152-53", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "334 N.C. 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530367 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "223", "parenthetical": "citing State v. Williams, 317 N.C. 474, 346 S.E.2d 405 (1986)" }, { "page": "224-25" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0208-01" ] }, { "cite": "418 S.E.2d 480", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "487", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "332 N.C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2505926 ], "year": 1992, "pin_cites": [ { "page": "60", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0047-01" ] }, { "cite": "558 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "106", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "355 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219899 ], "year": 2002, "pin_cites": [ { "page": "131", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0117-01" ] }, { "cite": "300 S.E.2d 884", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "886", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "61 N.C. App. 462", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521735 ], "year": 1983, "pin_cites": [ { "page": "464", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/61/0462-01" ] }, { "cite": "404 S.E.2d 835", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "329 N.C. 254", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554416 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0254-01" ] }, { "cite": "451 S.E.2d 131", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "338 N.C. 315", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518881 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/338/0315-01" ] } ], "analysis": { "cardinality": 847, "char_count": 20719, "ocr_confidence": 0.745, "pagerank": { "raw": 9.505882454708161e-08, "percentile": 0.5218574519209421 }, "sha256": "13e5c411dc2f922e167521d28756f47f0d3d972bdbbb10ac964751999310210e", "simhash": "1:9f7b71007f3a1dd4", "word_count": 3408 }, "last_updated": "2023-07-14T21:18:34.741992+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and HUNTER JR., ROBERT N. concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DAVID JOSEPH RILEY" ], "opinions": [ { "text": "STEELMAN, Judge.\nWhile the prosecutor improperly cross-examined defendant about pleading guilty to a lesser charge as part of a plea bargain, defendant failed to show that any error was prejudicial. While a portion of the prosecutor\u2019s closing argument was improper, it did not rise to the level of denying defendant a fair trial. Pursuant to N.C. Gen. Stat. \u00a7 15A-1351, the maximum period of special probation that could have been imposed was one-fourth of defendant\u2019s maximum sentence. When the trial court makes no findings in support of its imposition of a term of probation that exceeds the presumptive term, the matter must be remanded to the trial court for resentencing. Factors of extraordinary mitigation are those of a kind significantly greater than in the normal case. The normal mitigating factors as set forth in N.C. Gen. Stat. \u00a7 15A-1340.16(e) are not sufficient to support a finding of extraordinary mitigation.\nI. Factual and Procedural Background\nIn the early morning hours of 6 July 2007, David Joseph Riley (defendant) and Robert Jordan (Jordan) went to a trailer located in Burgaw that was occupied by Nathan Morgan (Morgan) and his girlfriend Brittney Wells (Wells). They obtained entry to the trailer by representing themselves to be law enforcement agents. A firearm was displayed, and defendant and Jordan demanded that Morgan and Wells produce drugs and money. They proceeded to ransack the trailer, taking some change that was stored in ajar. The men then left the trailer and drove away.\nDefendant was indicted for the felony of first degree burglary and the misdemeanor of impersonating a law enforcement officer. On 17 September 2008, a jury found defendant guilty of both charges, but found in a special interrogatory that defendant had not displayed or threatened to use a firearm during the burglary. The trial court found two factors in extraordinary mitigation: (1) that \u201cdefendant was suffering from a mental condition that was insufficient to constitute a defense but significantly reduced the defendant\u2019s culpability for the offense;\u201d and (2) that \u201cdefendant aided in the apprehension of another felon.\u201d Defendant was sentenced to a term of 46 to 65 months, which was suspended. As an intermediate sanction, defendant was to serve a term of special probation of 30 months.\nDefendant appeals. The State appeals the trial court\u2019s finding of extraordinary mitigation and the sentence imposed.\nII. Defendant\u2019s Appeal\nA. Cross-examination of Defendant Concerning Conviction Obtained as a Result of a Plea Bargain.\nIn his first argument, defendant contends that the trial court erred in allowing the prosecutor to cross-examine defendant concerning pleading guilty to a lesser charge as part of a plea bargain. We disagree.\nDefendant testified in this case. Rule 609 of the Rules of Evidence permits a witness to be cross-examined concerning prior felony and misdemeanor convictions, with the exception of Class 3 misdemeanors, committed within the time limits set forth in subsection (b), for the purpose of attacking the credibility of the witness. N.C. Gen. Stat. \u00a7 8C-1, Rule 609.\nThe following exchange took place between the prosecutor and defendant:\nCROSS-EXAMTN ATTON BY MR. FENNELL:\nQ. Your prior conviction was \u2014 actually started off as a felony financial card theft\u2014\nMR. HALL: Objection.\nTHE COURT: Sustained.\nQ. You were also charged with fraud; isn\u2019t that correct?\nMR. HALL: Objection.\nTHE COURT: Sustained.\nMR. HALL: Your Honor, move to strike.\nTHE COURT: Motion to strike is allowed. Ladies and gentlemen, disregard the district attorney\u2019s question. He is allowed to ask a man about convictions, not charges.\nMR. FENNELL: Your Honor, I would contend it goes directly to his willingness to tell the truth. He was charged with fraud.\nTHE COURT: No, sir, you\u2019re not going to do that.\nQ. You were charged [with] misdemeanor larceny as the result of a plea bargain; is that correct?\nMR. HALL: Objection.\nTHE COURT: That\u2019s what he pled to. Is that what he pled to?\nMR. FENNELL: Yes, sir.\nTHE COURT: All right.\nQ. Is that correct?\nA. Yes, sir.\nDefendant complains of the last question where the State asked if he pled guilty to misdemeanor larceny as a result of a plea bargain. N.C. Gen. Stat. \u00a7 15A-1025 provides: \u201cThe fact that the defendant or his counsel and the prosecutor engaged in plea discussions or made a plea arrangement may not be received in evidence against or in favor of the defendant in any criminal or civil action or administrative proceedings.\u201d N.C. Gen. Stat. \u00a7 15A-1025 (2007). We hold that the question complained of was improper and violated the provisions of N.C. Gen. Stat. \u00a7 15A-1025.' The State does not dispute that the question was improper. However, this does not end our analysis. Defendant still bears the burden of showing that the error was prejudicial. N.C. Gen. Stat. \u00a7 15A-1443(a) (2007).\nThe trial court sustained defendant\u2019s objections during the first part of the above-recited examination, and made it clear that the State was only \u201callowed to ask a man about convictions, not charges.\u201d In ruling on the objection to the question, the trial court again focused upon the conviction, not the charge: \u201cThat\u2019s what he pled to. Is that what he pled to?\u201d The only cases cited by defendant in support of his argument are State v. Abraham, 338 N.C. 315, 451 S.E.2d 131 (1994) and State v. Jones, 329 N.C. 254, 404 S.E.2d 835 (1991), which stand for the proposition that it is improper to examine a witness concerning mere charges of crimes. The trial court\u2019s rulings were consistent with the holdings in these cases.\nThe trial court specifically gave a limiting instruction to the jury that evidence of a prior criminal charge was not to be used as evidence of defendant\u2019s guilt in the instant case. \u201c[Y]ou may consider this evidence for one purpose only. Again, if, considering the nature of the crime, you believe that it bears on truthfulness, then you may consider it together with all other facts and circumstances bearing upon the witness\u2019 truthfulness . . . .\u201d \u201cThe law presumes that the jury heeds limiting instructions that the trial judge gives regarding the evidence.\u201d State v. Shields, 61 N.C. App. 462, 464, 300 S.E.2d 884, 886 (1983) (citation omitted). Any error in the prosecutor\u2019s cross-examination of defendant concerning a prior criminal charge was cured by the trial court\u2019s limiting instruction to the jury.\nWe hold that defendant has failed to meet his burden of showing that had the error in question not been committed, a different result would have been reached at trial. N.C. Gen. Stat. \u00a7 15A-1443(a) (2007).\nThis argument is without merit.\nB. Closing Arguments of Prosecutor\nIn his second argument, defendant contends that the trial court erred in overruling his objection to a portion of the prosecutor\u2019s closing argument. We disagree.\nDefendant gave a statement to Officer Croom in July 2007, in which he acknowledged that he and Jordan went to the Morgan trailer with the intent to steal. Subsequent statements of defendant and his trial testimony contradicted his first statement as to why they went to the Morgan trailer.\nThe prosecutor argued in closing argument:\nMR. FENNELL: It says \u2014 we\u2019re talking so much about inconsistent statements, Scott Croom\u2019s very first statement a month after he got home, he said, We went there to steal. The word is in the statement, folks. That\u2019s what he told him. We went there to steal.\nThat was probably because \u2014 probably before he had a conversation with his lawyer, and his lawyer told him if you go into a house and steal, you committed burglary, which is a ten-year offense, as opposed to misdemeanor larceny, which is not.\nMR. HALL: Objection\nTHE COURT: Overruled.\nMR. FENNELL: Now he realizes he can\u2019t have gone in there to steal, like he told Scott Croom. The only person \u2014 look at what they did when they went in there. The very first thing he said is, Give me your money and your dope. The very first thing he said was, Where\u2019s the money? Where\u2019s the dope?\nWhat did they do? Where did they look? They looked in the wallet. They looked in the pocketbook. They looked in the safe. You don\u2019t keep pounds of pot in wallets. You don\u2019t keep pounds of pot in pocketbooks.\nDefendant contends that the argument was improper because it attacked the integrity of defense counsel, and was based upon pure speculation that defendant changed his story after speaking with his attorney. The State acknowledges that the argument \u201cwas inappropriate, contrary to Rule 12 of the General Rules of Practice in Superior and District Court, and even improper.\u201d The State further argues that the improper argument was a single, isolated incident, and does not rise to the level required for defendant to be entitled to a new trial.\nThe North Carolina General Assembly has set specific guidelines for closing arguments:\nDuring a closing argument to the jury an attorney may not become abusive, inject his personal experiences, express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant, or make arguments on the basis of matters outside the record except for matters concerning which the court may take judicial notice. An attorney may, however, on the basis of his analysis of the evidence, argue any position or conclusion with respect to a matter in issue.\nN.C. Gen. Stat. \u00a7 15A-1230(a) (2007).\nWhen opposing counsel timely objects to improper closing arguments, the standard of review is whether the trial court abused its discretion by failing to sustain the objection. State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002) (citations omitted). \u201cTrial counsel are granted wide latitude in the scope of jury argument, and control of closing arguments is in the discretion of the trial court.\u201d State v. Soyars, 332 N.C. 47, 60, 418 S.E.2d 480, 487 (1992) (citations omitted). Trial counsel are permitted to argue the facts that have been presented, as well as any reasonable inferences which can be drawn from those facts. State v. McCollum, 334 N.C. 208, 223, 433 S.E.2d 144, 152 (1993) (citing State v. Williams, 317 N.C. 474, 346 S.E.2d 405 (1986)), cert. denied, 512 U.S. 1254, 129 L. Ed. 2d 895 (1994). \u201cIn order for a defendant to receive a new sentencing proceeding, the prosecutor\u2019s comments must have \u2018so infected the trial with unfairness as to make the resulting conviction a denial of due process.\u2019 \u201d Id. at 223-24, 433 S.E.2d at 152 (quoting Darden v. Wainwright, 477 U.S. 168, 181, 91 L. Ed. 2d 144, 157 (1986)). It is not enough that the prosecutor\u2019s remarks were undesirable or even universally condemned. Darden, 477 U.S. at 181, 91 L. Ed. 2d at 157 (citations and quotations omitted).\nAs the State concedes in the instant case, the prosecutor\u2019s remarks in the closing argument were improper, but they did not rise to the level of depriving defendant of a fair trial. \u201cThe prosecutorfs] argument did not manipulate or misstate the evidence, nor did it implicate other specific rights of the accused such as the right to counsel or the right to remain silent.\u201d Id. at 181-82, 91 L. Ed. 2d at 157-58. The trial court instructed the jurors that their decision was to be made on the basis of their recollection of the evidence alone, and not on the recollection of the evidence as argued by the attorneys. The weight of the evidence against defendant with respect to his intent to steal was substantial, and defendant\u2019s own statement to Officer Croom acknowledged that he went to the Morgan trailer for the purpose of stealing. Defendant drove to the Morgan trailer in the early hours of the morning, wore dark clothing and an earpiece, pretended to be a police officer, and flashed a fake police badge. \u201cAll of these factors reduced the likelihood that the jury\u2019s decision was influenced by these portions of the prosecutor\u2019s closing argument. Therefore, the prosecutor\u2019s closing argument did not deny the defendant due process.\u201d McCollum, 334 N.C. at 224-25, 433 S.E.2d at 152-53 (citation omitted). We hold that the prosecutor\u2019s comments, while undesirable, did not so infect the trial with unfairness as to make defendant\u2019s conviction a denial of due process. Darden, 477 U.S. at 181, 91 L. Ed. 2d at 157.\nThis argument is overruled.\nC. Improper Term of Special Probation\nIn his third argument, defendant contends that the trial court improperly sentenced defendant to a 30 month term of special probation. We agree.\nThe trial court sentenced defendant to a term of 46 to 65 months, suspended the sentence, and then imposed a term of special probation of 30 months. N.C. Gen. Stat. \u00a7 15A-1351 provides that: \u201cthe total of all periods of confinement imposed as an incident of special probation, but not including an activated suspended sentence, may not exceed one-fourth the maximum sentence of imprisonment imposed for the offense . . . .\u201d N.C. Gen. Stat. \u00a7 15A-1351(a) (2007). The maximum period of special probation that could have been imposed was one-fourth of the maximum sentence of 65 months or 16.25 months.\nBecause the term of special probation imposed by the trial court violated the provisions of N.C. Gen. Stat. \u00a7 15A-1351(a), this matter must be remanded to the trial court for resentencing.\nD. Imposition of a Term of Probation for 60 Months\nIn his fourth argument, defendant contends that the trial court improperly imposed a 60 month term of probation, without making the findings required by N.C. Gen. Stat. \u00a7 15A-1343.2(d)(4). We agree.\nN.C. Gen. Stat. \u00a7 15A-1343.2 provides that unless the trial court makes specific findings supporting a longer or shorter period of probation, the term of probation for a felon sentenced to intermediate punishment shall be no more than 36 months. N.C. Gen. Stat. \u00a7 15A-1343.2(d)(4) (2007). If the trial court finds that a longer period of probation is necessary, it shall not exceed five years, as set forth in N.C. Gen. Stat. \u00a7 15A-1342 and N.C. Gen. Stat. \u00a7 15A-1351. In the instant case, the trial court made no findings in support of its imposition of a term of probation of 60 months.\nThis matter must be remanded to the trial court for resentencing on the length of the term of probation. State v. Cardwell, 133 N.C. App. 496, 509, 516 S.E.2d 388, 397 (1999). Upon remand, the trial court may consider whether a term of probation of greater than 36 months is appropriate.\nHI. State\u2019s Appeal\nIn its first argument, the State contends that the trial court\u2019s findings were not sufficient to support a determination of extraordinary mitigation. We agree.\nA. Standard of Review\nThe decisions of a trial court on extraordinary mitigating factors are reviewed under an abuse of discretion standard. State v. Melvin, 188 N.C. App. 827, 830, 656 S.E.2d 701, 703 (2008). An abuse of discretion occurs only when the trial court\u2019s ruling is \u201cmanifestly unsupported by reason or one so arbitrary that it could not have been the result of a reasoned decision.\u201d Briley v. Farabow, 348 N.C. 537, 547, 501 S.E.2d 649, 656 (1998) (citation omitted).\nB. Extraordinary Mitigation Under Felony Structured Sentencing\nThe felony sentencing grid contained in N.C. Gen. Stat. \u00a7 15A-1340.17 provides for three possible sentencing dispositions: (a) \u201cC\u201d being community punishment as defined in N.C. Gen. Stat. \u00a7 15A-1340.11(2); (b) \u201cI\u201d being intermediate punishment as defined in N.C. Gen. Stat. \u00a7 15A-1340.11(6); and (c) \u201cA\u201d being active imprisonment in the Department of Corrections as defined in N.C. Gen. Stat. \u00a7 15A-1340.11(1). Where a cell in the sentencing grid contains only an \u201cA\u201d as the sentencing disposition, the trial court is required to impose an active prison sentence. The only exception to the imposition of an active sentence is where the trial court finds the existence of a factor in extraordinary mitigation as provided in N.C. Gen. Stat. \u00a7 15A-1340.13(g).\n[A] factor of extraordinary mitigation must be of a \u201ckind significantly greater than in the normal case.\u201d The statutory mitigating factors set forth in N.C. Gen. Stat. \u00a7 15A-1340.16(e) are mitigating factors found in a normal case. While the trial court is not precluded from making a finding of extraordinary mitigation based upon the same facts as would support one of the mitigating factors listed in the statute, in order to be extraordinary mitigation there must be additional facts present, over and above the facts required to support a normal statutory mitigation factor.\nMelvin, 188 N.C. App. at 831, 656 S.E.2d at 703.\nIn the instant case, the trial court found two statutory mitigating factors: (1) \u201cThe defendant was suffering from a mental condition that was insufficient to constitute a defense but significantly reduced the defendant\u2019s culpability for the offense.\u201d (N.C. Gen. Stat. \u00a7 15A-1340.16(e)(3)); and (2) \u201cThe defendant aided in the apprehension of another felon.\u201d (N.C. Gen. Stat. \u00a7 15A-1340.16(e)(7)). Under the rationale of Melvin, the normal mitigating factors set forth in N.C. Gen. Stat. \u00a7 15A-1340.16(e) are not in and of themselves sufficient to support a finding of extraordinary mitigation. \u201c[T]here must be additional facts present, over and above the facts required to support a normal statutory mitigation factor.\u201d Melvin, 188 N.C. App. at 831, 656 S.E.2d at 703. It was an abuse of discretion for the trial court to hold that a normal mitigating factor, without additional facts being present, constituted an extraordinary mitigating factor.\nThe fact that the trial court found two normal mitigating factors does not alter our conclusion. It is the quality and not the quantity of mitigating factors that qualify them as factors of extraordinary mitigation. Melvin, 188 N.C. App. at 831, 656 S.E.2d at 703.\nThis case is remanded to the trial court for resentencing as to whether there exists a factor or factors of extraordinary mitigation.\nNO PREJUDICIAL ERROR AS TO THE TRIAL, REMANDED TO THE TRIAL COURT FOR RESENTENCING.\nJudges ELMORE and HUNTER JR., ROBERT N. concur.\n. We note that Chapter 151 of the 2003 Session Laws amended N.C. Gen. Stat. \u00a7 15A-1351(a) to remove a cap of six months for a term of special probation. However, this amendment left intact the other cap of one-fourth of the maximum sentence imposed for the offense.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General John- G. Barnwell, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Benjamin Dowling-Sendor, for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DAVID JOSEPH RILEY\nNo. COA09-643\n(Filed 2 February 2010)\n1. Evidence\u2014 cross-examination \u2014 guilty plea to lesser charge \u2014 plea bargain \u2014 harmless error\nAlthough defendant contends the trial court erred by allowing the prosecutor to cross-examine defendant concerning pleading guilty to a lesser charge as part of a plea bargain, defendant failed to meet his burden of showing that a different result would have been reached at trial absent the alleged error.\n2. Criminal Law\u2014 prosecutor\u2019s argument \u2014 improper remarks\nThe trial court did not abuse its discretion in a first-degree burglary and impersonating a law enforcement officer case by overruling defendant\u2019s objection to a portion of the prosecutor\u2019s closing argument regarding defendant\u2019s intent to steal because even though the remarks were improper, they did not rise to the level of depriving defendant of a fair trial.\n3. Probation and Parole\u2014 sentencing \u2014 special probation\u2014 violation of statute\nThe trial court erred in a first-degree burglary and impersonating a law enforcement officer case by sentencing defendant to a 30-month term of special probation because it violated the provisions of N.C.G.S. \u00a7 15A-1351(a). The case was remanded for resentencing.\n4. Probation and Parole\u2014 sentencing \u2014 length of probation\u2014 failure to make required findings\nThe trial court erred in a first-degree burglary and impersonating a law enforcement officer case by sentencing defendant to a 60-month term of probation without making the findings required by N.G.G.S. \u00a7 15A-1343.2(d)(4). The case was remanded for resentencing on the length of the term of probation.\n5. Sentencing\u2014 extraordinary mitigation \u2014 sufficiency of findings\nThe trial court abused its discretion in a first-degree burglary and impersonating a law enforcement officer case by concluding that its findings of two normal statutory mitigating factors, without any additional facts, were sufficient to support a determination of extraordinary mitigation. The case was remanded for resentencing based on whether there existed factor(s) of extraordinary mitigation.\nAppeal by defendant and cross-appeal by the State from judgment entered 18 September 2008 by Judge Russell J. Lanier, Jr. in Pender County Superior Court. Heard in the Court of Appeals 28 October 2009.\nAttorney General Roy Cooper, by Assistant Attorney General John- G. Barnwell, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Benjamin Dowling-Sendor, for defendant." }, "file_name": "0299-01", "first_page_order": 327, "last_page_order": 337 }