{ "id": 8520445, "name": "STATE OF NORTH CAROLINA v. MARVIN EARL SMAW", "name_abbreviation": "State v. Smaw", "decision_date": "1989-10-17", "docket_number": "No. 893SC135", "first_page": "98", "last_page": "102", "citations": [ { "type": "official", "cite": "96 N.C. App. 98" } ], "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": "295 S.E.2d 484", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "and cases cited therein" } ], "opinion_index": 0 }, { "cite": "306 N.C. 748", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574504, 8574604, 8574543, 8574578, 8574523 ], "year": 1982, "pin_cites": [ { "parenthetical": "and cases cited therein" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0748-01", "/nc/306/0748-05", "/nc/306/0748-03", "/nc/306/0748-04", "/nc/306/0748-02" ] }, { "cite": "291 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "and cases cited therein" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 503", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525013 ], "year": 1982, "pin_cites": [ { "parenthetical": "and cases cited therein" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0503-01" ] }, { "cite": "90 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "243 N.C. 177", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622662 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/nc/243/0177-01" ] }, { "cite": "272 S.E.2d 128", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "parenthetical": "and cases cited therein" } ], "opinion_index": 0 }, { "cite": "301 N.C. 407", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567847 ], "year": 1980, "pin_cites": [ { "parenthetical": "and cases cited therein" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0407-01" ] }, { "cite": "364 S.E.2d 410", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 520", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566165 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0520-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-87.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 1988, "opinion_index": 0 } ], "analysis": { "cardinality": 441, "char_count": 8392, "ocr_confidence": 0.736, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20548649747533543 }, "sha256": "9d65be968fa6cd809a77004d90208b0c3fe6128688bf3f921a8f1d3673475cbb", "simhash": "1:837be3bf532f9bc7", "word_count": 1388 }, "last_updated": "2023-07-14T18:28:35.242103+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNS.ON and Orr concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MARVIN EARL SMAW" ], "opinions": [ { "text": "WELLS, Judge.\nBecause defendant pleaded guilty, the sole issue presented by this appeal is whether his sentence for a term of imprisonment beyond the statutory presumptive term is supported by the evidence introduced at the sentencing hearing. N.C. Gen. Stat. \u00a7 15A-1444(al) (1988). Common law robbery is punishable as a Class H felony, N.C. Gen. Stat. \u00a7 14-87.1 (1988), bearing a presumptive term of 3 years\u2019 imprisonment, id., \u00a7 15A-1340.4(f)(6), and a maximum term of 10 years\u2019 imprisonment, id., \u00a7 14-l.l(a)(8). For felony convictions other than Class A or B felonies, G.S. \u00a7 15A-1340.4(a) requires the trial court to impose the statutory presumptive term of imprisonment \u201cunless, after consideration of aggravating or mitigating factors, or both, [the court] decides to impose a longer or shorter term[.]\u201d To be considered by the court, such factors must be reasonably related to the purpose of sentencing and proved by a \u201cpreponderance of the evidence^]\u201d Id. The State has the burden of proof on aggravating factors, while the burden of proof on mitigating factors rests upon the defendant. State v. Canty, 321 N.C. 520, 364 S.E.2d 410 (1988). Although the trial court has wide latitude in determining whether aggravating and mitigating factors exist, id., it may not consider evidence necessary to establish an element of the offense as proof of a factor in aggravation. N.C. Gen. Stat. \u00a7 15A-1340.4(a).\nDefendant first challenges the court\u2019s findings as a statutory aggravating factor under G.S. \u00a7 15A-1340.4(a)(l)(i) that he \u201cused a deadly weapon at the time of the crime.\u201d He contends that he was unaware that his codefendant had the gun and that this codefendant\u2019s lone statement to the contrary was insufficient to establish that defendant was other than a minor participant in the crime. Defendant also urges that the informal evidentiary procedures used at the sentencing hearing lessened the credibility of the State\u2019s evidence on this point. Defendant miscasts the issue. By being present at the scene of the crime, with the intent to see it take place, and by performing the overt act of assisting in its commission by driving the getaway car, defendant became a principal in the crime. See State v. Small, 301 N.C. 407, 272 S.E.2d 128 (1980) (and cases cited therein). His codefendant\u2019s use of the gun in perpetrating the crime is therefore imputed to defendant. Id.; see also State v. Kelly, 243 N.C. 177, 90 S.E.2d 241 (1955). More importantly, there is no indication that the Legislature in its enactment of G.S. \u00a7 15A-1340.4 sought to change this well-established rule with respect to the statutory aggravating factor in issue by adding scienter as an element to be found by the court. See G.S. \u00a7 15A-1340.4(a)(l)(i); c/., G.S. \u00a7 15A-1340.4(a)(l)(g) (\u201cThe defendant knowingly created a risk of death[.]\u201d). (Emphasis added.) We certainly will not do so. The question of defendant\u2019s awareness of the gun is thus not dispositive. In addition, the informal evidentiary procedures used at the sentencing hearing are not dispositive of the question of the credibility of the State\u2019s evidence, inasmuch as G.S. \u00a7 15A-1334(b) expressly suspends application of the formal rules of evidence to a sentencing hearing. We therefore hold the State\u2019s evidence sufficient to support the court\u2019s finding as a statutory aggravating factor that defendant used a deadly weapon at the time of the crime.\nDefendant, however, argues in the alternative that the gun could not be used as evidence to support a finding of a factor in aggravation because its use in the crime rendered it evidence of an element of the offense of common law robbery by putting the victim in fear. We are unpersuaded. Put simply, the use of a deadly weapon has never been an element of proof required to establish common law robbery in North Carolina. See, e.g., State v. Melvin, 57 N.C. App. 503, 291 S.E.2d 885, cert. denied, 306 N.C. 748, 295 S.E.2d 484 (1982) (and cases cited therein). Conse\\ quently, the State\u2019s evidence proving defendant\u2019s use of the gun as an aggravating factor was not barred by G.S. \u00a7 15A-1340.4(a).\nFinally, defendant challenges the court\u2019s failure to find as a statutory mitigating factor that he was a passive participant or minor player in the crime. In raising this issue on appeal, defendant has the burden of proving that the evidence in support thereof is \u201csubstantial, uncontradicted, and manifestly credible.\u201d State v. Canty, supra. A court is not compelled to find a statutory mitigating factor unless the evidence offered at the sentencing hearing \u201cso clearly establishes the fact in issue that no reasonable inferences to the contrary can be drawn.\u201d Id. Applying these principles to the facts before the trial court, we determine that defendant has not overcome his burden and that the court below properly declined to find this statutory factor in mitigation.\nAffirmed.\nJudges JOHNS.ON and Orr concur.", "type": "majority", "author": "WELLS, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General James Wallace, Jr., for the State.", "J. Graham Clark, III for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MARVIN EARL SMAW\nNo. 893SC135\n(Filed 17 October 1989)\n1. Criminal Law \u00a7\u00a7 1156, 1124 (NCI4th)\u2014 robbery \u2014aggravating factors \u2014use of weapon\nThe trial court did not err when sentencing defendant for common law robbery by finding in aggravation that he used a deadly weapon at the time of the crime where defendant claimed that he was unaware that his codefendant had the gun and that his codefendant\u2019s statement to the contrary was insufficient to establish that defendant was other than a minor participant in the crime. Defendant was a principal in the crime and his codefendant\u2019s use of the gun was therefore imputed to defendant. The informal evidentiary procedures used at the sentencing hearing are not dispositive of the question of the credibility of the State\u2019s evidence. N.C.G.S. \u00a7 15A-1340.4(a)(l)i.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599; Robbery \u00a7\u00a7 82-84.\n2. Criminal Law \u00a7\u00a7 1156,1098 (NCI4th)\u2014 common law robbery\u2014 aggravating factor \u2014use of weapon\nThe trial court did not err when sentencing defendant for common law robbery by finding in aggravation that defendant used a deadly weapon in the performance of the crime. The use of a deadly weapon has never been an element of proof required to establish common law robbery in North Carolina. N.C.G.S. \u00a7 15A-1340.4(a).\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599; Robbery \u00a7\u00a7 82-84.\n3. Criminal Law \u00a7 1218 (NCI4th|\u2014 robbery \u2014 mitigating factor\u2014 passive participant\nThe trial court did not err when sentencing defendant for common law robbery by not finding in mitigation that he was a passive participant in the crime.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599; Robbery \u00a7\u00a7 82-84.\nAPPEAL by defendant from Winberry, Charles B., Judge. Judgment entered 12 October 1988 in Pitt County Superior Court. Heard in the Court of Appeals 19 September 1989.\nDefendant was indicted for robbery with a dangerous weapon and conspiracy to commit common law robbery. Pursuant to a plea bargain with the State, defendant pleaded guilty to the offense of common law robbery in return for which the two original charges were dismissed.\nThe evidence introduced at the sentencing hearing tended to establish that on 16 April 1988 defendant Smaw, Tyrone Hopkins, and Darrell Lowrey entered into a plan to snatch purses. Defendant drove the three of them from Washington, North Carolina to the Pitt Plaza Mall in Greenville, North Carolina. Once there, defendant and Hopkins waited in the car while Lowrey approached the victim and her daughter, who were shopping at the mall. Lowrey put a gun to the victim\u2019s head, took her purse containing some three hundred dollars, and ran back to defendant\u2019s car. The three then fled in the car, defendant driving. Upon arrest, defendant admitted his complicity. He had no prior criminal record.\nThe court found as a statutory aggravating factor that defendant used a deadly weapon at the time of the crime. It found as statutory mitigating factors that defendant had no record of criminal convictions and that, at an early stage of the criminal process, he voluntarily acknowledged his wrongdoing in connection with the offense to a law enforcement officer. Upon finding the aggravating factor to outweigh the mitigating factors, the court sentenced defendant to a term of eight years\u2019 imprisonment. From this sentence, defendant appeals.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General James Wallace, Jr., for the State.\nJ. Graham Clark, III for defendant-appellant." }, "file_name": "0098-01", "first_page_order": 130, "last_page_order": 134 }