{
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  "name": "STATE OF NORTH CAROLINA v. BRENDA JOYCE NOBLES",
  "name_abbreviation": "State v. Nobles",
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    "judges": [
      "Judges Arnold and Greene concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. BRENDA JOYCE NOBLES"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Chief Judge.\nDefendant first contends the trial court erred by ruling that defendant was competent to proceed to trial. In support of her contention, defendant argues \u201cthe state\u2019s evidence was both inadmissible and inadequate to support the judge\u2019s determination of competency.\u201d We disagree.\n\u201cIn determining a defendant\u2019s capacity to stand trial, the test is whether he has capacity to comprehend his position, to understand the nature of the proceedings against him, to conduct his defense in a rational manner and to cooperate with his counsel so that any available defense may be interposed.\u201d State v. Bundridge, 294 N.C. 45, 49-50, 239 S.E.2d 811, 815 (1978). \u201cThe question of defendant\u2019s capacity is within the trial judge\u2019s discretion and his determination thereof, if supported by the evidence, is conclusive on appeal.\u201d State v. Reid, 38 N.C. App. 547, 548-49, 248 S.E.2d 390, 391 (1978), disc. rev. denied, 296 N.C. 588, 254 S.E.2d 31 (1979). In a hearing to determine defendant\u2019s capacity to stand trial, \u201cthe ordinary rules as to the competency of evidence applied in a trial before a jury are to some extent relaxed, for the reason that the judge with knowledge of the law is able to eliminate from the testimony he hears that which is immaterial and incompetent, and consider only that which tends properly to prove the facts to be found.\u201d State v. Willard, 292 N.C. 567, 574, 234 S.E.2d 587, 591 (1977). \u201cAbsent affirmative evidence to the contrary, this Court presumes that the trial judge disregarded incompetent evidence in arriving at his decision.\u201d Id.\nIn the present case, the trial judge conducted an extensive voir dire hearing to determine defendant\u2019s competency to stand trial as required by G.S. 15A-1002(b)(3). At the hearing, the State presented the testimony of Dr. Steven Sanders, a general psychiatrist practicing in High Point, North Carolina, who had been appointed by the Court to examine defendant regarding her competency to stand trial. Dr. Sanders testified that in his opinion defendant was \u201cable to understand the nature and the proceedings against her, ... to comprehend her own situation in reference to the proceedings against her, . . . and to assist in her defense in a reasonable and responsible manner.\u201d The State also introduced into evidence the reports of defendant\u2019s evaluation by Dr. Rollins at Dorothea Dix Hospital which were conducted in August and September of 1988 in which he concluded that defendant was competent to stand trial.\nDefendant argues that Dr. Sanders\u2019 testimony should have been excluded because \u201c[h]e lacked the necessary expertise to render an opinion as to defendant\u2019s competency, and that his opinion was based upon inadequate data.\u201d With respect to the hospital reports, defendant argues that the evidence should have been excluded because it was hearsay and too remote. We have reviewed the exceptions upon which defendant bases these arguments and find no error in the trial judge\u2019s rulings allowing the testimony of Dr. Sanders and the hospital reports to be admitted into evidence. Furthermore, the evidence presented by the State was clearly sufficient to support the trial judge\u2019s finding that defendant was competent to proceed to trial. This assignment of error is overruled.\nNext, defendant contends \u201c[t]he trial court erred by disallowing certain questions posed by defense counsel during the voir dire examination of prospective jurors, thereby depriving defendant of her statutory and constitutional rights to make diligent inquiry into their fitness for service as jurors and to ensure selection of an impartial jury.\u201d We disagree.\nIt is well established that \u201ccounsel\u2019s exercise of the right to inquire into the fitness of jurors is subject to the trial judge\u2019s close supervision\u201d and \u201c[t]he regulation of the manner and the extent of the inquiry rests largely in the trial judge\u2019s discretion.\u201d State v. Avery, 315 N.C. 1, 20, 337 S.E.2d 786, 797 (1985). \u201c[T]he court should not permit counsel to question prospective jurors as to the kind of verdict they would render, or how they would be inclined to vote, under a given state of facts.\u201d State v. Vinson, 287 N.C. 326, 336, 215 S.E.2d 60, 68 (1975). On appeal, \u201c[a] defendant seeking to establish . . . that the exercise of such discretion constitutes reversible error must show harmful prejudice as well as clear abuse of discretion.\u201d State v. Young, 287 N.C. 377, 387, 214 S.E.2d 763, 771 (1975).\nIn the case sub judice, defendant maintains the trial judge erred in sustaining the State\u2019s objections to six questions posed by her counsel to the prospective jurors. We have examined each question challenged by this assignment of error and find no conceivable prejudice to defendant in the trial judge\u2019s rulings thereon.\nIn her third contention, defendant asserts \u201c[t]he trial court erred in its charge to the jury by failing to instruct on scienter as an element of the offense . . . .\u201d Defendant argues that the trial court\u2019s failure to instruct the jury that \u201cdefendant must have abducted the child \u2018knowingly\u2019 and \u2018knowing that the victim was not her child,\u2019 \u201d as requested by defendant, resulted in the imposition of strict liability for the offense in violation of state and federal requirements of due process, and violated the court\u2019s duty to declare and explain the law arising on the evidence. This contention is also without merit.\nThe trial judge is required to give a requested instruction only when it is a correct statement of the law and supported by the evidence. See State v. Corn, 307 N.C. 79, 296 S.E.2d 261 (1982). In the present case, defendant was charged with child abduction in violation of G.S. 14-41 which provides:\nIf anyone shall abduct or by any means induce any child under the age of fourteen years, who shall reside with its father, mother, uncle, aunt, brother or elder sister, or shall reside at a school, or be an orphan and reside with a guardian, to leave such person or school, he shall be punished as a Class G felon.\nThere is nothing in this section which requires that the abduction should be with a particular intent. To support a conviction for this offense, it is only necessary to allege and prove that the child was abducted, or by any means induced to leave its custodian. State v. Chisenhall, 106 N.C. 676, 11 S.E. 518 (1890).\nThe record clearly indicates that the instructions given to the jury by the trial judge were supported by substantial evidence and were proper in all other respects. We hold the trial judge did not err in refusing to instruct the jury as duly requested by defendant because it was not a correct statement of the law. This assignment of error is overruled.\nFinally, defendant contends that she is entitled to a new sentencing hearing because in sentencing her the trial court relied on three nonstatutory aggravating factors which were not supported by the evidence. For the reasons set forth below, we agree.\nG.S. 15A-1340.4(b) provides in pertinent part:\nIf the judge imposes a prison term for a felony that differs from the presumptive term provided . . . the judge must specifically list in the record each matter in aggravation or mitigation that he finds proved by a preponderance of the evidence.\nG.S. 15A-1340.4(a) further provides:\nIn imposing a prison term, the judge . . . may consider any aggravating and mitigating factors that he finds are proved by the preponderance of the evidence, and that are reasonably related to the purposes of sentencing, whether or not such aggravating or mitigating factors are set forth herein ....\nIn the present case, defendant was charged with child abduction in violation of G.S. 14-41. By statute, child abduction is classified as a Class G felony carrying with it a presumptive prison term of four and one-half years. G.S. 14-41; G.S. 15A-1340.4(f)(5). Defendant, however, was sentenced to twelve years imprisonment for this offense.\nIn sentencing defendant, Judge DeRamus found three non-statutory aggravating factors which are set out in the record as follows:\n1. The Court finds as an aggravating factor that the defendant induced another to participate as an accessory after the fact to the offense, or in the commission of the offense itself.\n2. The Court finds that the victim, Jason Ray McClure, was not just very young, as the Statutory aggravating factor reads but was extremely young and because of such extreme youth was very vulnerable by reason of physical and mental immaturity, and vulnerable by reason of location in a hospital at a young age, as a temporary residence, rather than a more permanent residence to which the public would not have as great an access, and as part of this finding, the Court is considering the fact that the defendant took advantage of this vulnerability.\n3. As an additional finding in aggravation, nonstatutory, the Court finds that the defendant has suffered and continues to suffer from an abnormal mental condition or conditions that makes her significantly more dangerous to others than the great majority of the general public.\nBased upon these findings, Judge DeRamus concluded that the factors in aggravation outweighed the factors in mitigation and sentenced defendant to a term of imprisonment in excess of the presumptive term for the crime charged. Our review of the record, however, reveals that the factors in aggravation found by the trial judge were not proven by a preponderance of the evidence, nor were they proper as a matter of law.\nFirst, we hold that the trial judge\u2019s finding that defendant \u201cinduced another to participate as an accessory after the fact\u201d was not supported by substantial evidence in the record. In finding this factor in aggravation, the trial judge must focus on the role of defendant in \u201cinducing\u201d others to participate, not on the actions of the participants. See State v. Lattimore, 310 N.C. 295, 311 S.E.2d 876 (1984). In the present case, there is evidence in the record tending to show that defendant\u2019s daughter assisted her in caring for the child after defendant took the child from the hospital. However, the record is devoid of any evidence tending to show that defendant actually \u201cinduced\u201d her daughter\u2019s participation in the offense after the fact. Furthermore, we perceive no reasonable relationship between this finding in aggravation and the purpose of sentencing.\nWe also find error in the trial judge\u2019s finding in aggravation that the victim was vulnerable because of his extreme youth and location in a hospital at the time of his abduction. In State v. Hines, our Supreme Court stated:\nOne of the purposes of sentencing is to impose a punishment commensurate with the offender\u2019s culpability (citation omitted). Age should not be considered as an aggravating factor in sentencing unless it makes the defendant more blameworthy than he or she already is as a result of committing a violent crime against another person. A victim\u2019s age does not make a defendant more blameworthy unless the victim\u2019s age causes the victim to be more vulnerable than he or she otherwise would be to the crime committed against him or her ....\n314 N.C. 522, 525, 335 S.E.2d 6, 8 (1985). In State v. Sumpter, 318 N.C. 102, 347 S.E.2d 396 (1986), the Court applied this principle and granted the defendant a new sentencing hearing where he was charged and convicted of taking indecent liberties with a minor, and the trial judge aggravated his sentence on the ground that the victim was very young. In that case, the Court noted, \u201cthe determination of vulnerability must be made in light of the crime committed\u201d and \u201cwe cannot say that the victim\u2019s age made her more vulnerable to the offense of indecent liberties with a minor than other victims of the offense.\u201d Id. at 112-113, 347 S.E.2d at 402.\nIn the present case, defendant was charged with child abduction which, by statute, requires that the victim of the offense be under the age of fourteen. G.S. 14-41. We hold the fact that the victim was only a few days old does not make defendant \u201cmore blameworthy\u201d than she already is as a result of committing the offense of child abduction, and it was thus error for the trial judge to aggravate defendant\u2019s sentence because of the victim\u2019s extreme youth.\nLikewise, it was error for the trial judge to consider the location of the child in a hospital at the time of the abduction as a factor in aggravation. It is well established that a factor considered in aggravation must relate to the character or conduct of the defendant. See State v. Chatham, 308 N.C. 169, 301 S.E.2d 71 (1983). Here, the victim\u2019s vulnerability was increased by his mere presence in a place which was accessible to the general public. We fail to see how this fact is in any way related to defendant\u2019s conduct or character, and therefore, it should not have been taken into account for the purpose of sentencing.\nFinally, it was error for the trial judge to aggravate defendant\u2019s sentence on the ground that she \u201cha[d] suffered and continues to suffer from an abnormal mental condition or conditions that makes her significantly more dangerous to others than the great majority of the general public.\u201d A mental or emotional disorder may not be considered as an aggravating factor unless the evidence presented shows that \u201cmanifestations of that disorder involve . . . little hope of rehabilitation coupled with serious antisocial and criminal behavior. . . .\u201d State v. Todd, 313 N.C. 110, 122, 326 S.E.2d 249, 256 (1985). Although the evidence in the present case does demonstrate that defendant had serious psychiatric problems, we find the evidence insufficient to support the trial judge\u2019s finding of dangerousness. The crime for which defendant was convicted was not a violent crime, nor was there any evidence presented that defendant had a history of violent, threatening, or psychotic behavior. Since the record fails to demonstrate that defendant\u2019s mental condition has \u201clittle hope of rehabilitation coupled with serious antisocial and criminal behavior,\u201d we hold the trial judge erred in considering defendant\u2019s mental condition as an aggravating factor.\nDefendant received a fair trial free from prejudicial error, but for the reasons set forth above, the case is remanded to the Superior Court, Guilford County for resentencing.\nNo error in trial; remanded for resentencing.\nJudges Arnold and Greene concur.",
        "type": "majority",
        "author": "HEDRICK, Chief Judge."
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    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Assistant Attorney General Doris J. Holton, for the State.",
      "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Constance H. Everhart, for defendant, appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. BRENDA JOYCE NOBLES\nNo. 8918SC1241\n(Filed 17 July 1990)\n1. Criminal Law \u00a7 174 (NCI4th) \u2014 defendant\u2019s competency to proceed to trial \u2014 sufficiency of evidence to support court\u2019s ruling\nThe trial court did not err in ruling that defendant was competent to proceed to trial where the trial judge conducted an extensive voir dire hearing, properly considered the testimony of a general psychiatrist who had been appointed by the court to examine defendant regarding her competency to stand trial, and properly considered the reports of defendant\u2019s evaluation by a doctor at Dorothea Dix Hospital.\nAm Jur 2d, Criminal Law \u00a7\u00a7 67, 68.\n2. Jury \u00a7 6.3 (NCI3d)\u2014 voir dire examination of prospective jurors \u2014 defense counsel\u2019s questions disallowed \u2014no error\nThe trial court did not err by disallowing certain questions posed by defense counsel during the voir dire examination of prospective jurors.\nAm Jur 2d, Jury \u00a7\u00a7 200-202, 212.\n3. Kidnapping \u00a7 1.3 (NCI3d)\u2014 child abduction \u2014 requested instruction on scienter improper\nIn a prosecution of defendant for child abduction the trial court was not required to give defendant\u2019s requested instruction on scienter, since that was not a correct statement of the law. N.C.G.S. \u00a7 14-41.\nAm Jur 2d, Abduction and Kidnapping \u00a7\u00a7 20, 21.\n4. Criminal Law \u00a7 1133 (NCI4th) \u2014 sentence for child abduction\u2014 aggravating factor of inducing another to participate \u2014insufficiency of evidence\nIn sentencing defendant for child abduction the trial court erred in finding as a factor in aggravation that defendant induced another to participate as an accessory after the fact where there was evidence that defendant\u2019s daughter assisted her in caring for the child after defendant took him from the hospital, but the record was devoid of any evidence tending to show that defendant actually induced her daughter\u2019s participation in the offense after the fact; furthermore, there was no reasonable relationship between this finding in aggravation and the purpose of sentencing.\nAm Jur 2d, Abduction and Kidnapping \u00a7 34; Criminal Law \u00a7\u00a7 598, 599.\n5. Criminal Law \u00a7 1161 (NCI4th)\u2014 sentence for child abduction\u2014 victim only a few days old \u2014 youth improper aggravating circumstance\nThe fact that the victim was only a few days old did not make defendant \u201cmore blameworthy\u201d than she already was as a result of committing the offense of child abduction, and it was thus error for the trial judge to aggravate defendant\u2019s sentence because of the victim\u2019s extreme youth.\nAm Jur 2d, Abduction and Kidnapping \u00a7 34; Criminal Law \u00a7\u00a7 598, 599.\n6. Criminal Law \u00a7 1127 (NCI4th)\u2014 sentence for child abduction\u2014 aggravating circumstance of child\u2019s location in hospital improper\nIn sentencing defendant for child abduction it was error for the trial judge to consider the location of the child in a hospital at the time of the abduction as a factor in aggravation, since the victim\u2019s vulnerability was increased by his mere presence in a place which was accessible to the general public, but this fact was in no way related to defendant\u2019s conduct or character.\nAm Jur 2d, Abduction and Kidnapping \u00a7 34; Criminal Law \u00a7\u00a7 598, 599.\n7. Criminal Law \u00a7 1108 (NCI4th)\u2014 sentence for child abduction \u2014 aggravating circumstance of defendant\u2019s mental condition improper\nIn sentencing defendant for child abduction it was error for the trial judge to aggravate defendant\u2019s sentence on the ground that she suffered from an abnormal mental condition which made her significantly more dangerous to others, since the crime for which defendant was convicted was not a violent one, nor was there any evidence that defendant had a history of violent, threatening, or psychotic behavior, and the evidence was thus insufficient to support the trial judge\u2019s finding of dangerousness.\nAm Jur 2d, Abduction and Kidnapping \u00a7 34; Criminal Law \u00a7\u00a7 598, 599.\nAppeal by defendant from DeRamus, Judge. Judgment entered 5 April 1989 in Superior Court, GUILFORD County. Heard in the Court of Appeals 6 June 1990.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Doris J. Holton, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Constance H. Everhart, for defendant, appellant."
  },
  "file_name": "0473-01",
  "first_page_order": 503,
  "last_page_order": 511
}
