{
  "id": 8525065,
  "name": "STATE OF NORTH CAROLINA v. CHARLES FRAZIER",
  "name_abbreviation": "State v. Frazier",
  "decision_date": "1986-05-06",
  "docket_number": "No. 8520SC842",
  "first_page": "547",
  "last_page": "549",
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      "cite": "80 N.C. App. 547"
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "category": "reporters:state_regional",
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      "category": "reporters:state",
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      "reporter": "S.E.2d",
      "year": 1986,
      "opinion_index": 0
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    {
      "cite": "316 N.C. 24",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
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      "year": 1986,
      "opinion_index": 0,
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        "/nc/316/0024-01"
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  "last_updated": "2023-07-14T15:01:08.586003+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Phillips and Cozort concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. CHARLES FRAZIER"
    ],
    "opinions": [
      {
        "text": "WELLS, Judge.\nDefendant first contends that there was insufficient evidence that defendant, on 4 February 1985, possessed more than $400 worth of copper wire which was taken from American Rewinding, Inc. between 2 February and 4 February 1985 because the owner of American Rewinding failed to identify all of the copper wire he saw at United Scrap Processors on 6 February 1985 as being that stolen from American Rewinding. Defendant, however, is precluded from challenging the sufficiency of the evidence on appeal by his failure to make a motion to dismiss at trial. Rule 10(b)(3) of the Rules of Appellate Procedure. Even if he had made such a motion, his contention has no merit. The State presented evidence tending to show that defendant, on 4 February 1985, sold United Scrap Processors 1,040 pounds of copper wire, valued at $.45 per pound, all of which was placed in or beside a bin in a warehouse; that the owner of American Rewinding identified the wire in the bin on 6 February 1985 as being that stolen from American Rewinding; that all of the wire in or beside the bin had been purchased by United Scrap Processors from defendant on 4 February 1985 and 6 February 1985; and that the owner estimated that there were approximately 2,200-2,500 pounds of copper in or about the bin. We hold that the foregoing evidence was sufficient to withstand a motion to dismiss, had one been made.\nDefendant\u2019s remaining contention is that the prosecutor\u2019s unsworn statements as to defendant\u2019s criminal record were not competent evidence to support a finding of an aggravating factor that defendant had prior convictions. We agree and remand for entry of the appropriate presumptive sentence. In the sentencing phase of defendant\u2019s trial, the only presentation made by the State was the prosecutor\u2019s unsworn statement to the court as to defendant\u2019s records of prior convictions. \u201cUnder the Fair Sentencing Act, a trial court may not find an aggravating factor where the only evidence to support it is the prosecutor\u2019s mere assertion that it exists.\u201d State v. Swimm, 316 N.C. 24, 340 S.E. 2d 65 (1986), citing State v. Thompson, 309 N.C. 421, 307 S.E. 2d 156 (1983). The trial court erroneously found this factor. The trial court found no other factors in aggravation and none in mitigation. Under these circumstances, we remand for entry of the appropriate presumptive sentence.\nThis opinion supersedes our unpublished opinion in this case filed 17 December 1985.\nNo error in the trial;\nRemanded for resentencing.\nJudges Phillips and Cozort concur.",
        "type": "majority",
        "author": "WELLS, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Assistant Attorney General Thomas D. Zweigart, for the State.",
      "Acting Appellate Defender Malcolm Ray Hunter, Jr. for defendant-appe llant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. CHARLES FRAZIER\nNo. 8520SC842\n(Filed 6 May 1986)\n1. Larceny g 7.4\u2014 felonious possession of stolen property \u2014 evidence sufficient\nIn a prosecution for felonious possession of stolen copper wire, defendant was precluded from challenging the sufficiency of the evidence by his failure to make a motion to dismiss at trial; however, even if he had made such a motion, the evidence was sufficient in that the State presented evidence showing that defendant sold United Scrap Processors 1,040 pounds of copper wire, all of the wire was placed in or beside a bin in a warehouse, the owner of American Rewinding identified the wire as being that stolen from American Rewinding, the owner estimated that there were approximately 2,200-2,500 pounds of copper in or about the bin, and the wire was valued at 451 per pound.\n2. Criminal Law 8 138.28\u2014 aggravating factor \u2014 criminal record \u2014 prosecutor\u2019s un-sworn statements \u2014 insufficient\nIn a prosecution for felonious possession of stolen property, the prosecutor\u2019s unsworn statements as to defendant\u2019s prior criminal record were not competent to support a finding of an aggravating factor and, because no other factors in aggravation or mitigation were found, the case was remanded for entry of the appropriate presumptive sentence.\nON remand from the Supreme Court of North Carolina.\nAppeal by defendant from Collier, Judge.\nDefendant was indicted and convicted of felonious possession of stolen goods, namely, copper wire. He received a four-year prison sentence which exceeded the presumptive term of three years.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Thomas D. Zweigart, for the State.\nActing Appellate Defender Malcolm Ray Hunter, Jr. for defendant-appe llant."
  },
  "file_name": "0547-01",
  "first_page_order": 575,
  "last_page_order": 577
}