{
  "id": 8526453,
  "name": "STATE OF NORTH CAROLINA v. JOHNNY RAY PARKER",
  "name_abbreviation": "State v. Parker",
  "decision_date": "1988-11-15",
  "docket_number": "No. 8818SC116",
  "first_page": "102",
  "last_page": "105",
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    "name": "North Carolina Court of Appeals"
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    "name": "N.C."
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      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1985,
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    {
      "cite": "317 N.C. 275",
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      "reporter": "N.C.",
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    {
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      "reporter": "S.E.2d",
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      "opinion_index": 0
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    {
      "cite": "309 N.C. 214",
      "category": "reporters:state",
      "reporter": "N.C.",
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        4762487
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    {
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      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1983,
      "opinion_index": 0
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    {
      "cite": "307 N.C. 370",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8562412
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      "year": 1983,
      "opinion_index": 0,
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  "last_updated": "2023-07-14T21:55:11.858082+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Eagles and Parker concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. JOHNNY RAY PARKER"
    ],
    "opinions": [
      {
        "text": "PHILLIPS, Judge.\nDefendant\u2019s appeal questions only the process by which he was sentenced to a prison term of ten years. The errors that he contends the court made were in finding the two aggravating factors and in not finding in mitigation that (1) he reasonably believed the victim was sixteen years old and his conduct was legal and (2) his immaturity significantly reduced his culpability. The contentions concerning the aggravating factor involving penetration and the court\u2019s failure to find additional factors in mitigation clearly have no merit and can be quickly disposed of; but the contention concerning the other factor in aggravation is well founded and defendant must be resentenced.\nContrary to defendant\u2019s contention, evidence of vaginal penetration was not necessary to prove the offense that he pled guilty to and was sentenced for, taking indecent liberties with a child, see G.S. 14-202.1; and the finding that his conduct indicated he was guilty of the greater offense charged was therefore not forbidden by G.S. 15A-1340.4(a)(1). The finding is authorized, though, by State v. Melton, 307 N.C. 370, 298 S.E. 2d 673 (1983), which defendant implicitly recognized by arguing not that Melton does not apply, but that it is fundamentally and constitutionally unfair and a deterrent to good faith plea bargaining because it permits a defendant to be punished for an offense that has been dismissed by accepting a lesser plea. Though the argument is interesting it would be fruitless for us to address it for an obvious reason.\nAs to the two factors in mitigation that the court declined to find it is enough to say that: The court was not required t'o find that defendant believed the victim was sixteen years old since the evidence bearing thereon was not undisputed, State v. Jones, 309 N.C. 214, 306 S.E. 2d 451 (1983); whether defendant\u2019s immaturity significantly reduced his culpability was a factual question for the court to determine in its discretion after receiving the evidence and observing defendant, State v. Moore, 317 N.C. 275, 345 S.E. 2d 217 (1986), and no abuse is indicated.\nBut the factor in aggravation as to defendant\u2019s lack of remorse for his crime was erroneously found. This nonstatutory factor, that a defendant after having had the opportunity to reflect on his criminal deed is without remorse for the crime committed, if supported by evidence, is authorized by State v. Parker, 315 N.C. 249, 337 S.E. 2d 497 (1985). The only evidence recorded in support of the court\u2019s finding that defendant is unremorseful is that during the sentencing proceeding defendant laughed while the prosecutor was reading statements elicited by the police that were contradicted by his testimony as to how the sexual encounter started, and his statement that he laughed because the statements read were mostly lies. Thus, the only support for the court\u2019s finding that defendant had no remorse is the laugh itself and defendant\u2019s statement that he laughed for another reason. While this evidence warrants the reprimand that the court administered it does not support the court\u2019s conclusion that the defendant was without remorse; the only finding that it could support is that he laughed because some of the statements were false. If he did not laugh for that reason, why he laughed is entirely speculative so far as the evidence shows. Some of the many possibilities are that he laughed out of mere nervousness or meanness, or because he was an immature adolescent in the toils of the law for the first time, or because he had no remorse for his crime. One thing that is not speculative, though, but known to everyone that has spent much time in court is that defendants and other witnesses often laugh or smile at being contradicted.\nThe judgment sentencing defendant is vacated and the case is remanded to the Superior Court for resentencing.\nVacated and remanded.\nJudges Eagles and Parker concur.",
        "type": "majority",
        "author": "PHILLIPS, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Thornburg, by Assistant Attorney General David R. Minges, for the State.",
      "Assistant Public Defender Mathias P. Hunoval for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JOHNNY RAY PARKER\nNo. 8818SC116\n(Filed 15 November 1988)\n1. Criminal Law \u00a7 138.29\u2014 guilty plea to indecent liberties \u2014 sex offense as aggravating factor\nThe trial court could properly find as an aggravating factor for taking indecent liberties with a minor to which defendant pled guilty that defendant actually penetrated the victim\u2019s sex organ with his finger and that this was a prima facie showing of a first degree sex offense in light of their ages. N.C.G.S. \u00a7 15A-1340.4(a)(l).\n2. Criminal Law \u00a7\u00a7 138.35, 138.42\u2014 indecent liberties \u2014 belief victim was sixteen \u2014immaturity of defendant \u2014 findings in mitigation not required\nThe trial court was not required to find as a mitigating factor for taking indecent liberties with a minor that defendant believed the victim was sixteen years old since the evidence bearing thereon was not undisputed. Furthermore, the trial court did not abuse its discretion in failing to find that defendant\u2019s immaturity significantly reduced his culpability for the crime.\n3. Criminal Law \u00a7 138.29\u2014 aggravating factor \u2014 defendant unremorseful \u2014 insufficient evidence\nThe trial court\u2019s finding as an aggravating factor for taking indecent liberties with a minor that defendant is unremorseful was not supported by evidence that defendant laughed during the sentencing hearing while the prosecutor was reading the police report and that defendant told the court that he laughed because the statements read were mostly lies.\nAPPEAL by defendant from Albright, Judge. Judgment entered 16 November 1987 in Superior Court, Guilford County. Heard in the Court of Appeals 27 September 1988.\nDefendant, then sixteen years old and indicted for a first degree sexual offense, in a bargain with the State pled guilty to taking indecent liberties with a child ten years of age in violation of G.S. 14-202.1. The State\u2019s evidence tended to show that: The victim was a friend of defendant\u2019s sister and often visited in their home; on such a visit he stuck his hand under her shorts and inserted his finger into her vagina, but stopped after she told him to. After being charged defendant admitted the above to the authorities, but told the officers and testified that the victim, who was approximately 5' 8\" tall and weighed approximately 120 pounds, initiated the encounter and told him she was sixteen years old. During the sentencing hearing while the prosecutor was reading the police report the defendant laughed, and when the court asked him what was funny he responded, \u201cBecause most of this is lies;*\u2019 The court cautioned him that this was a serious matter and if he laughed again he would \u201ctake a dim view of it.\u201d In sentencing defendant to a maximum term of ten years as a committed youthful offender the court found (a) as factors in aggravation that defendant actually penetrated the victim\u2019s sex organ with his finger and that this was a prima facie showing of first degree sex offense in light of their ages; and that \u201cthe defendant exhibited a casual, indifferent and manifestly unremorseful attitude toward the entire proceedings by laughing visibly within the view and observation of the Court, requiring a reprimand by the Court\u201d; (b) as mitigating factors that defendant had no prior criminal record and had made a statement; and (c) that the aggravating factors outweighed the mitigating factors.\nAttorney General Thornburg, by Assistant Attorney General David R. Minges, for the State.\nAssistant Public Defender Mathias P. Hunoval for defendant appellant."
  },
  "file_name": "0102-01",
  "first_page_order": 132,
  "last_page_order": 135
}
