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  "name_abbreviation": "State v. Summerlin",
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    "judges": [
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    "parties": [
      "STATE OF NORTH CAROLINA v. RICKY EUGENE SUMMERLIN"
    ],
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      {
        "text": "JOHNSON, Judge.\nThe State\u2019s evidence tended to show the following: On the evening of 14 August 1988, Leonard Davis, the victim of the alleged robbery, was visiting a friend\u2019s house in Goldsboro. At about 10:30 p.m. he decided to walk home and headed down Highway 13 carrying a backpack which contained approximately $145.00 in cash, a pair of eyeglasses, a compact disc, several paperback books and an expired driver\u2019s permit.\nShortly thereafter, Davis turned off Highway 13 and headed south on Highway 117. Defendant Ricky Summerlin and his companion and co-defendant, Vincent L. Creel, were also walking along Highway 117, but were a short distance ahead of Davis. When Davis approached defendant and Creel, he spoke but received no response. Concerned about his safety, Davis crossed the highway. He then turned around and noticed that the men had also crossed and appeared to be following him.\nIn an attempt to get away from the men, Davis walked faster. Defendant and Creel called out for Davis and he stopped momentarily. Pleasant words were exchanged and defendant warned Davis of the dangers of walking down Highway 117. Davis then shook Creel\u2019s hand and walked hurriedly away from the men.\nMoments later, defendant and Creel, using obscene words, called out to Davis once again. In anticipation of possible trouble, Davis took his pocketknife out of his pocket, opened the blade and returned it to his pocket, leaving it protruding slightly. He then turned around to see what defendant and Creel wanted. Despite Davis\u2019 plea to be left alone, the men began to physically assault him.\nIn response to being pushed into a ditch, jumped upon and continuously punched, Davis reached for his pocketknife and stabbed Creel in the side. Hearing Creel\u2019s scream, defendant grabbed the pocketknife out of Davis\u2019 hand and proceeded to cut him on the back of his neck. As Davis lay on the ground injured, the men demanded his money and backpack. Davis complied.\nDavis sustained injuries to his neck, lip, head and shoulders and was also robbed of personal property valued at over $300.00.\nDefendant\u2019s testimonial account of the incident portrayed Davis as the aggressor. Defendant stated that on the night in question, he and Creel were walking along Highway 117 and some words were exchanged between them and Davis. Davis then walked toward them and he (defendant) put his hand on Davis\u2019 chest and asked him if there was a problem. Creel and Davis then shook hands and Davis left. Moments later, more words were exchanged between the men and Davis once again walked toward them. This time, however, Davis had his hand in his pocket. A fight ensued between Creel and Davis and Davis subsequently stabbed Creel in the side.\nTestimony elicited from Creel also portrayed Davis as the aggressor. Creel, however, also testified that he, not defendant, held the knife to Davis\u2019 throat and demanded his money and backpack.\nBy his first Assignment of Error, defendant contends that the trial court committed reversible error in allowing the assistant district attorney to mention in his opening statement that the victim had graduated second in his high school class and obtained a college scholarship.\nG.S. \u00a7 15A-1221(a)(4) provides that \u201c[e]ach party [in a criminal jury trial] must be given the opportunity to make a brief opening statement.\u201d This specific statute does not, however, define the scope of the opening statement. Our Supreme Court has nonetheless spoken on this particular issue in State v. Paige, 316 N.C. 630, 343 S.E.2d 848 (1986). Quoting this Court, the Supreme Court said:\nWhile the exact scope and extent of an opening statement rests largely in the discretion of the trial judge, we believe the proper function of an opening statement is to allow the party to inform the court and jury of the nature of his case and the evidence he plans to offer in support of it.\nId. at 648, 343 S.E.2d at 859 (quoting State v. Elliott, 69 N.C. App. 89, 93, 316 S.E.2d 632, 636, disc. rev. denied, appeal dismissed; 311 N.C. 765, 321 S.E.2d 148 (1984) (emphasis added)). A determination of whether an opening statement is proper must be made in light of the purpose of an opening statement. See State v. Gladden, 315 N.C. 398, 340 S.E.2d 673, cert. denied, 479 U.S. 871, 107 S.Ct. 241, 93 L.Ed.2d 166 (1986). Counsel representing each party is generally afforded wide latitude with respect to the scope of the opening statement. Id.\nWe have reviewed the complained of portions of the assistant district attorney\u2019s opening statement and find them to be entirely proper. The statements concerning Leonard Davis\u2019 scholastic achievements merely served to introduce the victim to the jury. Assuming arguendo that the statements went beyond the permissible scope of an opening statement, defendant has nevertheless failed to establish prejudicial error. Accordingly, this assignment of error is overruled.\nSecond, defendant challenges the admissibility of testimonial evidence concerning the victim\u2019s scholastic achievements. We find defendant\u2019s contention that the trial court improperly admitted this evidence to be without merit.\n.As a general rule, relevant evidenc\u00e9 is \u201cevidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d G.S. \u00a7 8C-1, Rule 401. If relevant, the evidence is admissible. G.S. \u00a7 8C-1, Rule 402. With respect to whether certain background information is relevant and therefore admissible, this Court has previously stated that\nwhen a witness has been sworn and takes the stand, preliminary questions are properly put to him as to name, residence, knowledge of the case, etc. The purpose of such questions is generally to introduce the witness to the court and the jury and to show why he is there testifying .... Evidence offered for this purpose is relevant at trial, if it does in fact establish an introduction for the witness. Moreover, relevant evidence should not be excluded \u201csimply because it may tend to prejudice the opponent or excite sympathy for the cause of the party who offers it.\u201d\nState v. Sports, 41 N.C. App. 687, 690, 255 S.E.2d 631, 633 (1979).\nIn the case sub judice, evidence of Davis\u2019 scholastic achievements was presented by the assistant district attorney during preliminary questioning. After reviewing the transcript, we find that the challenged testimony was relevant. We further find that the evidence was offered as a means of introducing the victim to the court and jury and to assist in explaining the victim\u2019s background. Considering the fact that defendant later portrayed Davis as the aggressor, we do not believe that the challenged testimony was prejudicial. This assignment of error is therefore overruled.\nThird, defendant contends that the trial court erred in allowing the assistant district attorney to pose leading questions concerning critical issues to the victim during direct examination. Specifically, defendant argues that the admission of the following interchange resulted in reversible error:\nQ. So are you absolutely sure Mr. Summerlin got the knife from you?\nA. Yes.\nMr. Ellis: Object to leading,\nThe COURT: Well, overruled.\n[Defendant\u2019s Exception No. 6]\nQ. Summerlin said that about if you call the police?\nA. Yes.\nMr. ELLIS: Objection to leading, Your Honor.\nTHE COURT: Well, overruled.\n[Defendant\u2019s Exception No. 7]\n\u201cA leading question is generally defined as one which suggests the desired response and may frequently be answered yes or no.\u201d State v. Britt, 291 N.C. 528, 539, 231 S.E.2d 644, 652 (1977). Historically, leading questions were generally only permissible on cross-examination, however, over the years other permissible circumstances have evolved. G.S. \u00a7 8-C, Rule 611(a). Our Supreme Court has cataloged eight circumstances in which leading questions are deemed permissible on direct examination. State v. Smith, 290 N.C. 148, 226 S.E.2d 10, cert. denied, 429 U.S. 932, 97 S.Ct. 339, 50 L.Ed.2d 301 (1976). Rulings by the trial court on the use of leading questions are discretionary and reversible only for an abuse of discretion. State v. Riddick, 315 N.C. 749, 340 S.E.2d 55 (1986).\nWe have reviewed the record and find no abuse of discretion. The leading questions complained of were either necessary to develop the witness\u2019s testimony or were questions which elicite1d testimony already received into evidence without objection. See State v. Smith, supra. This assignment is overruled.\nFourth, defendant contends that the trial court improperly commented on the evidence in front of the jury. The following exchange occurred:\nQ. There is no weigh [sic] they could have known you had any money; is there?\nA. It\u2019s a common assumption by thieves that you have money.\nQ. That\u2019s not my question, sir?\nA. I have no idea if they could have known. I had my own \u2014 it is a common assumption by thieves the person they are robbing from has money.\nMrs. HEAD: Objection, Your Honor. Motion to Strike.\nThe COURT: Well, that\u2019s the opinion.\n[Defendant\u2019s Exception No. 8]\nG.S. \u00a7 15A-1222 provides that \u201c[a] judge may not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury.\u201d Even so, not every improper remark made by the trial judge requires a new trial. State v. Guffey, 39 N.C. App. 359, 250 S.E.2d 96 (1979). When considering an improper remark in light of the circumstances under which it was made, the underlying result may manifest mere harmless error. State v. King, 311 N.C. 603, 320 S.E.2d 1 (1984). Defendant nonetheless bears the burden of establishing that the trial judge\u2019s remarks were prejudicial. State v. Blackstock, 314 N.C. 232, 333 S.E.2d 245 (1985).\nDefendant contends that one of the victim\u2019s answers to the prosecutor\u2019s questions constituted something other than an opinion. Further, defendant contends that the trial judge\u2019s response (Defendant\u2019s Exception No. 8) to the motion to strike the victim\u2019s answer was both improper and prejudicial and therefore a basis for a new trial.\nAfter considering the statement made by the trial judge and the circumstances in which it was made, we are unable to reach the conclusion defendant desires. The trial judge\u2019s statement does not import an expressed opinion nor does it demonstrate any favoritism. As such, it is not prejudicial and does not warrant the granting of a new trial for defendant. This assignment is overruled.\nFifth, defendant contends that the trial court erred by failing to charge the jury on the offense of misdemeanor larceny, the lesser included offense of robbery. We disagree.\nRecently, our Supreme Court, in analyzing G.S. \u00a7 14-87, has implicitly stated that larceny is a lesser included offense of robbery. State v. White, 322 N.C. 506, 369 S.E.2d 813 (1988). Moreover, the Court has stated that\n[t]he law is well settled that the trial court must submit and instruct the jury on a lesser included offense when, and only when, there is evidence from which the jury could find that defendant committed the lesser included offense. However, when the State\u2019s evidence is positive as to every element of the crime charged and there is no conflicting evidence relating to any element of the crime charged, the trial court is not required to submit and instruct the jury on any lesser included offense.\nState v. Rhinehart, 322 N.C. 53, 59, 366 S.E.2d 429, 432-33 (1988) (quoting State v. Boykin, 310 N.C. 118, 121, 310 S.E.2d 315, 317 (1984)). Hence, \u201cwhen all the evidence tends to show that defendant committed the crime charged . . . and there is no evidence of the lesser-included offense, the court should refuse to charge on the lesser-included offense.\u201d State v. Summitt, 301 N.C. 591, 596, 273 S.E.2d 425, 427, cert. denied, 451 U.S. 970, 101 S.Ct. 2048, 68 L.Ed.2d 349 (1981). Notably, the tri\u00e1l court is not required to instruct on a lesser included offense when the defendant\u2019s evidence merely tends to show that he committed no crime at all. State v. Coats, 301 N.C. 216, 270 S.E.2d 422 (1980). The determinative factor of whether the trial court is to instruct the jury on the lesser included offense is the presence of evidence which tends to support a conviction of the lesser included offense. Id.\nTo convict pursuant to G.S. \u00a7 14-87(a), there must be proof that defendant: (1) unlawfully took or attempted to take personal property from the person or in the presence of another (2) by use of a firearm or other dangerous weapon (3) whereby the life of a person was endangered or threatened. State v. Hope, 317 N.C. 302, 345 S.E.2d 361 (1986).\nApplying the foregoing principles to the instant case, we find that the State\u2019s evidence sufficiently establishes the requisite elements of robbery with a dangerous weapon. We also find defendant\u2019s version of the events to be consistent with the State\u2019s evidence up until the time criminal activity begins. At such time, defendant conveniently portrays himself as both a victim and an innocent bystander who is helpless to the mischievous but criminal conduct of his co-defendant Creel. Holding that the trial court erred in failing to instruct the jury on the lesser included offense of misdemeanor larceny would be like putting on blinders to what is just. This we decline to do. Accordingly, this assignment is overruled.\nSixth, defendant contends that the trial court\u2019s imposition of a prison term of twenty-five years reflects a punishment for defendant\u2019s failure to plead guilty and for the exercising of his right to a trial by jury. We disagree.\nG.S. \u00a7 15A-1340.4(a) explicitly prohibits a judge from considering as an aggravating factor the fact that the defendant exercised his right to a jury trial. We find defendant\u2019s blanket assertion to be unsupported by the evidence. This assignment is overruled.\nBy his seventh Assignment of Error, defendant contends that the trial court committed reversible error by imposing a sentence in excess of the presumptive term after finding one factor in aggravation and no factors in mitigation. Specifically, defendant argues that the trial court acted in contravention of the Fair Sentencing Act. We disagree.\nBefore addressing the issue presented to this Court, we feel compelled to articulate the purposes of sentencing as set out in the Fair Sentencing Act. See G.S. \u00a7 15A-1340 et seq.\nThe primary purposes of sentencing a person convicted of a crime are to impose a punishment commensurate with the injury the offense has caused, taking into account factors that may diminish or increase the offender\u2019s culpability; to protect the public by restraining offenders; to assist the offender toward rehabilitation and restoration to the community as a lawful citizen; and to provide a general deterrent to criminal behavior.\nG.S. \u00a7 15A-1340.3. Unquestionably, sentencing judges are to be guided by these purposes.\nWe now turn to the instant case. At sentencing, the trial court found as an aggravating factor that defendant had a prior conviction for a criminal offense punishable by more than sixty days in prison. The trial court did not, however, find any factor in mitigation. It was then determined that the aggravating factors outweighed the mitigating factors and, on this basis, defendant was sentenced to twenty-five years in prison for robbery with a dangerous weapon.\nIn an attempt to navigate a balance between the inflexibility of a presumptive sentence and the flexibility of permitting punishment to adapt to the offense committed, established principles have provided guidance for our sentencing judges.\n[A] sentencing judge\u2019s discretion to impose a sentence within the statutory limits, but greater . . . than the presumptive term, is carefully guarded by the requirement that he make written findings in aggravation and mitigation, which findings must be proved by a preponderance of the evidence; that is, by the greater weight of the evidence.\nState v. Ahearn, 307 N.C. 584, 596, 300 S.E.2d 689, 696-97 (1983). The factors in aggravation must be found to outweigh the factors in mitigation. State v. Attmore, 92 N.C. App. 385, 374 S.E.2d 649 (1988). However, in the instances where the trial judge finds aggravating, but no mitigating factors, specific findings that such factors outweigh the nonexisting mitigating factors are unnecessary. State v. Freeman, 313 N.C. 539, 330 S.E.2d 465 (1985).\nA defendant who has been found guilty is entitled to appellate review of the issue of whether his sentence is supported by the evidence presented at trial or during the sentencing hearing. See G.S. \u00a7 15A-1444(al). The reviewing court must also determine whether the trial court abused its discretion in weighing the aggravating and mitigating factors. State v. Cannon, 92 N.C. App. 246, 374 S.E.2d 604 (1988), disc. rev. denied on additional issues, 324 N.C. 249, 377 S.E.2d 757 (1989), rev\u2019d on other grounds, 326 N.C. 37, 387 S.E.2d 450 (1990). The applicable standard of review for sentencing procedures which deviate from the presumptive term is as follows:\n[tjhere is a presumption that the judgment of a court is valid and just. The burden is upon appellant to show error amounting to a denial of some substantial right. A judgment will not be disturbed because of sentencing procedures unless there is a showing of abuse of discretion, procedural conduct prejudicial to defendant, circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play. (Citations omitted.)\nId. at 249-50, 374 S.E.2d at 606 (quoting State v. Pope, 257 N.C. 326, 335, 126 S.E.2d 126, 133 (1962)).\nFrom our review of the record, we detect neither an error in the trial judge\u2019s finding that an aggravating factor existed nor an abuse of the trial judge\u2019s discretion in imposing a sentence greater than the presumptive term. We therefore find the twenty-five year sentence for robbery with a dangerous weapon to be valid, just and in accordance with the purposes of the Fair Sentencing Act. Thus, we overrule this assignment of error.\nIn light of defendant\u2019s other assignments of error and our holdings, we have considered, but find no merit to his contention that the trial court considered its opinion of the defendant\u2019s truthfulness as a factor in the sentencing hearing. Assignment of Error number eight is therefore not discussed.\nFor all the aforementioned reasons, we find that defendant had a fair trial free of prejudicial error.\nNo error.\nJudges COZORT and LEWIS concur.",
        "type": "majority",
        "author": "JOHNSON, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Assistant Attorney General Julia F. Renfrow, for the State.",
      "Michael A. Ellis for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. RICKY EUGENE SUMMERLIN\nNo. 898SC428\n(Filed 17 April 1990)\n1. Criminal Law \u00a7 417 (NCI4th)\u2014 robbery \u2014prosecutor\u2019s opening statement \u2014 description of victim \u2014no error\nThe trial court did not err in an armed robbery prosecution by allowing the prosecutor to mention in his opening statement that the victim had graduated second in his high school class and obtained a college scholarship. Those statements merely served to introduce the victim to the jury; even assuming that they went beyond the scope of opening argument, defendant failed to establish prejudicial error. N.C.G.S. \u00a7 15A-1221(a)(4).\nAm Jur 2d, Trial \u00a7 207.\n2. Robbery \u00a7 3 (NCI3d( \u2014 testimony concerning victim\u2019s scholastic achievements \u2014 not prejudicial\nThe trial court did not err in an armed robbery prosecution by permitting testimony regarding the victim\u2019s scholastic achievements where the evidence was presented by the district attorney during preliminary questioning; the evidence was offered as a means of introducing the victim to the court and the jury; and, considering the fact that defendant later portrayed the victim as the aggressor, the challenged testimony was not prejudicial. N.C.G.S. \u00a7 8C-1, Rule 401.\nAm Jur 2d, Evidence \u00a7 342.\n3. Criminal Law \u00a7 87.2 (NCI3d)\u2014 robbery \u2014 leading questions by prosecutor \u2014no abuse of discretion\nThe trial court did not abuse its discretion in an armed robbery prosecution by allowing the prosecutor to pose leading questions to the victim where the questions complained of were either necessary to develop the witness\u2019s testimony or were questions which elicited testimony already received into evidence without objection.\nAm Jur 2d, Trial \u00a7 194.\n4. Criminal Law \u00a7 374 (NCI4th)\u2014 judge\u2019s comment when ruling on evidence \u2014not prejudicial\nThe trial court\u2019s comment following a witness\u2019s answer in an armed robbery prosecution did not import an expressed opinion or demonstrate favoritism, was not prejudicial, and did not warrant the granting of a new trial for defendant.\nAm Jur 2d, Trial \u00a7 98.\n5. Robbery \u00a7 5.4 (NCI3d)\u2014 armed robbery \u2014 failure to charge on misdemeanor larceny \u2014 no error\nThe trial court did not err in an armed robbery prosecution by failing to charge the jury on the offense of misdemeanor larceny where the State\u2019s evidence sufficiently established the requisite elements of robbery with a dangerous weapon, and defendant\u2019s version of events was consistent with the State\u2019s evidence to the time the crime actually began, at which time defendant consistently portrayed himself as a victim and innocent bystander.\nAm Jur 2d, Trial \u00a7 727.\n6. Criminal Law \u00a7 1114 (NCI4th)\u2014 robbery \u2014sentencing\u2014-allegation of punishment for not pleading guilty \u2014 unsupported\nDefendant\u2019s assertion that a prison term of twenty-five years for armed robbery was punishment for failing to plead guilty was unsupported by the evidence.\nAm Jur 2d, Criminal Law \u00a7 525.\n7. Criminal Law \u00a7 1082 (NCI4th)\u2014 robbery \u2014 sentence in excess of presumptive term \u2014no error\nThe trial court did not err when sentencing defendant for armed robbery by imposing a sentence in excess of the presumptive term after finding one factor in aggravation and none in mitigation where there was neither an error in finding that an aggravating factor existed nor an abuse of discretion in imposing a sentence greater than the presumptive term.\nAm Jur 2d, Criminal Law \u00a7 538.\nAPPEAL by defendant from judgment entered 4 January 1989 by Judge Samuel Currin, Jr. in WAYNE County Superior Court. Heard in the Court of Appeals 15 November 1989.\nAfter a trial by jury, defendant was convicted of robbery with a dangerous weapon in violation of G.S. \u00a7 14-87. Upon conviction, the trial court imposed an active prison term of twenty-five years. Defendant gave notice of appeal in open court.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Julia F. Renfrow, for the State.\nMichael A. Ellis for defendant-appellant."
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  "file_name": "0167-01",
  "first_page_order": 195,
  "last_page_order": 206
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