{ "id": 8525919, "name": "STATE OF NORTH CAROLINA v. LARRY DONNELL SIMMONS", "name_abbreviation": "Carolina v. Simmons", "decision_date": "1984-01-03", "docket_number": "No. 8310SC372", "first_page": "804", "last_page": "807", "citations": [ { "type": "official", "cite": "65 N.C. App. 804" } ], "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": "300 S.E. 2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "701" } ], "opinion_index": 0 }, { "cite": "307 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565300 ], "year": 1983, "pin_cites": [ { "page": "602" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0584-01" ] }, { "cite": "302 S.E. 2d 884", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 547", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710917, 4709257, 4709578, 4710163, 4709598 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0547-04", "/nc/308/0547-03", "/nc/308/0547-05", "/nc/308/0547-02", "/nc/308/0547-01" ] }, { "cite": "300 S.E. 2d 903", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "61 N.C. App. 446", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521653 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/61/0446-01" ] }, { "cite": "306 S.E. 2d 100", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "108" } ], "opinion_index": 0 }, { "cite": "309 N.C. 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761187 ], "year": 1983, "pin_cites": [ { "page": "77" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0063-01" ] }, { "cite": "307 S.E. 2d 156", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "158" }, { "page": "158" }, { "page": "158-61" } ], "opinion_index": 0 }, { "cite": "309 N.C. 421", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4766681 ], "year": 1983, "pin_cites": [ { "page": "422" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0421-01" ] }, { "cite": "300 S.E. 2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378-79" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "659-61" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "302 S.E. 2d 786", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "789-90" }, { "page": "790" } ], "opinion_index": 0 }, { "cite": "308 N.C. 530", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4705445 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "535" }, { "page": "535-36" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0530-01" ] } ], "analysis": { "cardinality": 363, "char_count": 7513, "ocr_confidence": 0.799, "pagerank": { "raw": 1.1006896912945222e-07, "percentile": 0.5682466429509982 }, "sha256": "15447e1d72c01579828a8bb938075c31fed7c77af2a9a69eb8de2b6a2eb019f6", "simhash": "1:c362d0ee34a1784e", "word_count": 1218 }, "last_updated": "2023-07-14T21:11:09.312138+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HILL and BECTON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. LARRY DONNELL SIMMONS" ], "opinions": [ { "text": "WHICHARD, Judge.\nGuilt Phase\nDefendant contends the court erred in failing to summarize any of his evidence or contentions in its instructions while fully summarizing the State\u2019s evidence and contentions. He did not present evidence, but relies on evidence allegedly favorable to him elicited on cross-examination.\nDefendant concedes that he did not object at trial, and that N.C. R. App. P. 10(b)(2) thus precludes assigning this failure as error on appeal. He argues, however, that failure to allow him the opportunity to object out of the hearing of the jury obviates the Rule 10(b)(2) requirement.\nThe record establishes that at the end of its instructions the court asked if there was a request for additional instructions. Defense counsel responded in the negative. This contention is thus without merit. See State v. Bennett, 308 N.C. 530, 535, 302 S.E. 2d 786, 789-90 (1983).\nDefendant also argues that this Court should find \u201cplain error\u201d in the instructions. See State v. Odom, 307 N.C. 655, 659-61, 300 S.E. 2d 375, 378-79 (1983). Having reviewed the instructions and the whole record, we find no \u201cplain error\u201d such as to require a new trial despite defendant\u2019s failure to comply with Rule 10(b)(2). See State v. Bennett, supra, 308 N.C. at 535-36, 302 S.E. 2d at 790.\nSentencing Phase\nDefendant contends the court erred in finding as an aggravating factor that the offense was committed for hire or pecuniary gain. Evidence that defendant was hired or paid to commit the offense is necessary to support a finding of this factor. State v. Thompson, 309 N.C. 421, 422, 307 S.E. 2d 156, 158 (1983); State v. Abdullah, 309 N.C. 63, 77, 306 S.E. 2d 100, 108 (1983). The record contains no such evidence, and this factor thus was improperly considered.\nDefendant contends the court used, to prove the aggravating factors that the offense was committed for pecuniary gain and involved the taking of property of great monetary value, the same evidence used to prove an element of the offense. See G.S. 15A-1340.4(a)(l). Our holding above eliminates the \u201cpecuniary gain\u201d factor from consideration upon re-sentencing. The court is not precluded from finding the \u201ctaking of property of great monetary value\u201d factor simply because defendant has been charged with larceny. Our Supreme Court has stated: \u201cThe additional evidence necessary to prove a taking or attempted taking of property of great monetary value is not evidence necessary to prove an element of felonious larceny.\u201d State v. Thompson, supra, 309 N.C. at 422, 307 S.E. 2d at 158.\nThe evidence here was that the victim had just returned from a trip and had $2,500 in her billfold when it was taken. In light of this evidence and of Thompson, supra, we hold that the court could properly find as an aggravating factor that the offense involved the taking of property of great monetary value.\nDefendant contends the court used the same evidence to prove the \u201cpecuniary gain\u201d and \u201cgreat monetary value\u201d factors in violation of the prohibition against using the same evidence to prove more than one factor in aggravation. G.S. 15A-1340.4(a)(l). Again, our holding that the \u201cpecuniary gain\u201d factor was improperly considered eliminates it from consideration upon re-sentencing. The violation complained of thus will not recur.\nDefendant contends the court erred in finding his prior convictions as an aggravating factor absent evidence and findings as to whether he was indigent and represented by counsel or waived counsel. He did not sustain his initial burden of raising this issue in the trial court, however, and thus is precluded from raising it on appeal. State v. Thompson, supra, 309 N.C. at 425-28, 307 S.E. 2d at 158-61.\nDefendant contends the court erred in failing to consider as a mitigating factor that when he learned there was a warrant for his arrest, he went to the police and turned himself in. He argues that his conduct was covered by the following statutory mitigating factor: \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 G.S. 15A-1340.4(a)(2)l.\nAt no time did defendant acknowledge his wrongdoing. Rather, he steadfastly, from the arrest stage through the sentencing stage, asserted his innocence. The statutory mitigating factor on which defendant relies is thus inapposite.\nDefendant\u2019s reliance on State v. Wood, 61 N.C. App. 446, 300 S.E. 2d 903, disc. rev. denied, 308 N.C. 547, 302 S.E. 2d 884 (1983), is also misplaced. Defendant there acknowledged that he perpetrated a shooting, but pleaded self-defense. Here, by contrast, defendant consistently denied his involvement.\nBecause the sentence imposed exceeds the presumptive, and the court erred in finding \u201cpecuniary gain\u201d as an aggravating factor, the case must be remanded for a new sentencing hearing. State v. Ahearn, 307 N.C. 584, 602, 300 S.E. 2d 689, 701 (1983).\nNo error in the trial; remanded for re-sentencing.\nJudges HILL and BECTON concur.", "type": "majority", "author": "WHICHARD, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Evelyn M. Coman, for the State.", "Appellate Defender Adam Stein, by Assistant Appellate Defender Nora B. Henry, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LARRY DONNELL SIMMONS\nNo. 8310SC372\n(Filed 3 January 1984)\n1. Criminal Law \u00a7 163\u2014 failure to object to instructions \u2014waiver of objection\nWhere the record established that at the end of its instructions, the court asked if there was a request for further instructions, and defense counsel responded in the negative, App. R. 10(b)(2) precluded assigning as error defendant\u2019s contention that the trial court erred in failing to summarize any of defendant\u2019s evidence or contentions in its instructions while fully summarizing the State\u2019s evidence and contentions.\n2. Criminal Law \u00a7 138\u2014 aggravating factor of pecuniary gain improperly considered-aggravating factor of \u201cgreat monetary value\u201d properly available\nIn a prosecution for felonious larceny, where there was evidence that the victim had just returned from a trip and had $2,500.00 in her billfold when it was taken, although the trial court improperly considered as an aggravating factor that the offense was committed for pecuniary gain, the trial court could properly find as an aggravating factor on remand that the offense involved a taking of property of great monetary value. G.S. 15A-1340.4(a)(l).\n3. Criminal Law \u00a7 138\u2014 consideration of prior convictions\nDefendant did not sustain his initial burden of raising the issue that the trial court erred in finding his prior convictions as an aggravating factor absent evidence and findings as to whether he was indigent and represented by counsel or waived counsel, and he is precluded from raising this issue on appeal.\n4. Criminal Law \u00a7 138\u2014 failure to consider mitigating factor that defendant voluntarily acknowledged wrongdoing proper\nWhere the evidence tended to show that at no time did defendant acknowledge his wrongdoing, the trial court properly failed to consider the mitigating factor: \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 G.S. 15A-1340.4(a)(2)l.\nOn certiorari to review judgment entered by Godwin, Judge. Judgment entered 3 March 1982 in Superior Court, WAKE County. Heard in the Court of Appeals 28 November 1983.\nDefendant appeals from a judgment of imprisonment entered upon his conviction of felonious larceny.\nAttorney General Edmisten, by Assistant Attorney General Evelyn M. Coman, for the State.\nAppellate Defender Adam Stein, by Assistant Appellate Defender Nora B. Henry, for defendant appellant." }, "file_name": "0804-01", "first_page_order": 836, "last_page_order": 839 }