STATE of North Carolina
v.
Jimmy Dean WHEELER and Sherman Van Hammett.
No. 8324SC943.
Court of Appeals of North Carolina.
September 4, 1984.*633 Atty. Gen. Rufus L. Edmisten, by Asst. Atty. Gen. Norma S. Harrell, Raleigh, for the State.
Appellate Defender Adam Stein, by Asst. Appellate Defender Ann B. Petersen, Raleigh, for defendant Wheeler.
Robert H. West, Boone, for defendant Hammett.
HEDRICK, Judge.
Defendants first assign error to entry of judgment for two counts of armed robbery, contending that the evidence supports only a single conviction of armed robbery. The State's evidence tended to show that defendants were armed with rifles when they entered the home of Frank and Mattie Brown. The Browns, both eighty years old, had been married for approximately 60 years at the time of the crime. While defendant Wheeler held the Browns at gunpoint, defendant Hammett wandered through the house, during which time Hammett drank some cough syrup that had been prescribed for Mrs. Brown. Defendant Hammett also picked up a shotgun and shells belonging to Mr. Brown, handing these items to defendant Wheeler, who took the gun and shells with him when he left.
Defendants contend that this evidence demonstrates only one instance of armed robbery. Each victim, they claim, had a special property interest in the item taken from the other as a result of their marital relationship and joint possession. The fact that each item was identified as the personal property of one person, defendants argue, is "not a material variance sufficient to convert these facts into two crimes." We disagree.
Resolution of this issue requires application of the "same evidence test" to the facts of the instant case. The "same evidence test" has been defined by our Supreme Court as follows: "Whether the facts alleged in the second indictment, if given in evidence, would have sustained a conviction under the first indictment ... or whether the same evidence would support a conviction in each case." State v. Hicks, 233 N.C. 511, 516, 64 S.E.2d 871, 875 (1951) (citations omitted).
In State v. Johnson, 23 N.C.App. 52, 208 S.E.2d 206, cert. denied, 286 N.C. 339, 210 S.E.2d 59 (1974), this Court was confronted with a case involving facts similar to those of the instant case. In Johnson, the defendants were accused of robbing two men in a diner, taking personal property from each. We find the language of Johnson apposite here:
[W]e find that the same evidence would not support a conviction in each case. Evidence of a robbery of property from the first victim will not support a conviction *634 of a robbery of different property from a different victim.
. . . . .
Here defendants threatened the use of force on separate victims and took property from each of them. They were not employees. It was not the employer who was robbed. Rather each separate victim was deprived of property. The armed robbery of each person is a separate and distinct offense, for which defendants may be prosecuted and punished.
Id. 23 N.C.App. at 55-56, 208 S.E.2d at 208-09. Nor are we persuaded by defendants' contention that the marital relationship of the victims dictates a different result in the instant case. In State v. Horne, 59 N.C.App. 576, 297 S.E.2d 788 (1982), this Court upheld defendant's conviction of two counts of armed robbery where the victims were married. The Court in Horne noted that the defendant had been charged in one bill of indictment with taking personal property belonging to one victim, the husband, and in another bill of indictment with taking personal property belonging to the other victim, the wife. Citing Johnson, the Horne Court held that the defendant's actions constituted two distinct offenses. We find Johnson and Horne controlling in the instant case and so find the assignments of error without merit.
Defendants next contend that "the evidence was insufficient to support the conviction for the Brown breaking and entering." They argue that all the evidence shows that the Browns consented to defendants' entry into the Brown home, thus barring a finding that defendants "broke" or "entered" the home as those terms are used in N.C.Gen.Stat. Sec. 14-54(a).
Felonious entry is defined in N.C.Gen. Stat. Sec. 14-54(a) as follows: "Any person who ... enters any building with intent to commit any felony or larceny therein shall be punished as a Class H felon." Our Courts have held that an entry is punishable under this statute only if it is wrongful, i.e., without the owner's consent. State v. Boone, 297 N.C. 652, 256 S.E.2d 683 (1979). Where "consent" is obtained by fraud or trickery, however, the law treats defendant's action as a "constructive breaking," sufficient to sustain conviction under the statute. See State v. Henry, 31 N.C. 463 (1849); State v. Wilson, 289 N.C. 531, 223 S.E.2d 311 (1976).
In the instant case, there is no contention that defendants' entry into the Brown house was accomplished by an actual breaking. The State proceeded instead on a theory of "constructive breaking," and it was as to this theory that the trial court instructed the jury. Our inquiry is thus limited to whether the evidence of constructive breaking was sufficient to permit submission of the case to the jury.
In reviewing the sufficiency of the evidence, the law is clear that the evidence must be considered
in the light most favorable to the State, and the State is entitled to ... every reasonable inference to be drawn therefrom. [Citation omitted.] Contradictions and discrepancies are for the jury to resolve.... All of the evidence actually admitted, whether competent or incompetent, which is favorable to the State is considered by the Court.... If there is substantial evidencewhether direct, circumstantial, or bothto support a finding that the offense charged has been committed and that defendant committed it, a case for the jury is made....
State v. McKinney, 288 N.C. 113, 117, 215 S.E.2d 578, 581-82 (1975); see also State v. Thompson, 59 N.C.App. 425, 297 S.E.2d 177 (1982).
In the instant case, Mattie Brown testified as follows:
They [the defendants] come to the door, and I reckon, maybe the door might have been kindly open, I don't remember, but anyway, they told him that they wanted to call the Watauga Hospital.
Q. They told your husband that?
A. Yes. And so they come onhe told them well the phone was right there and the number was on the phone just to call....
*635 While it is true, as defendants contend, that Frank Brown testified on cross-examination that defendants had already entered the house when they asked to use the phone, this evidence merely created an inconsistency for the jury to resolve. It did not, contrary to defendants' contentions, require that the charges against defendants be dismissed. Because the evidence, taken in the light most favorable to the State, supports the conclusion that defendants obtained entry by means of trickery, this assignment of error must be overruled.
Defendants next assign error to the court's imposition of sentences exceeding the presumptive in those cases which are governed by the Fair Sentencing Act. N.C. Gen.Stat. Sec. 15A-1340.4. In his brief defendant Wheeler states that the trial judge "threw in the kitchen sink" when making findings in regard to aggravating factors, and argues that numerous factors found by the judge are unsupported by the evidence, are irrelevant to the purposes of sentencing, or are affected by other error of law. Our examination of the factors found by the trial judge reveals several errors, and we hold that the judgments challenged by these assignments of error must be remanded for resentencing.
Defendants first contend that the court erred in finding the following non-statutory factors in aggravation in connection with all of the judgments involving felonies:
The sentence pronounced is necessary to deter others from the commission of the same offense.
A lesser sentence than that pronounced by the Court would unduly depreciate the seriousness of the defendant's crime.
Our Supreme Court has held these considerations to be improper factors in aggravation. State v. Jerrett, 309 N.C. 239, 307 S.E.2d 339 (1983); State v. Chatman, 308 N.C. 169, 301 S.E.2d 71 (1983).
Defendants next contend that the court improperly found as aggravating factors in the armed robbery judgments that the victims were "very old" and that Mattie Brown was "physically infirm." We agree. Our case law makes clear that a finding of this factor is not necessarily appropriate in every case in which the victim might be described as "very old" or "physically infirm." See, e.g., State v. Monk, 63 N.C. App. 512, 305 S.E.2d 755 (1983). Our Supreme Court has said that "vulnerability is clearly the concern addressed by this factor." State v. Ahearn, 307 N.C. 584, 603, 300 S.E.2d 689, 701 (1983). We find no evidence in this record tending to suggest that the Browns were rendered more vulnerable to being robbed at gunpoint because of their advanced age. There is no evidence tending to show that the Browns were targeted as victims because of their age, or even that defendants were aware of their age when they selected the Brown home to enter with intent to commit robbery. The record contains no evidence tending to show that the Browns suffered physical injury of any type, or that the emotional discomfort resulting from being victimized was greater or more severe than that experienced by most victims of serious crimes. In short, we find no evidence tending to show that the Browns were selected as victims because of their age, that they were any more vulnerable to being robbed at gunpoint than anyone else, or that the consequences of such robbery were in any way more severe.
Defendants also assign error to the following findings, present in all judgments forming the basis of this assignment of error:
[1] The defendant has served prior prison terms.
[2] The defendant has a long history of prior criminal activity.
Defendants do not contend that the court erred in finding the statutory factor that defendants have prior convictions for offenses punishable by more than sixty days confinement. They contend instead that in finding the above-quoted non-statutory factors as well, the court improperly relied on the same evidence as that used to support the statutory finding, in violation of G.S. *636 15A-1340.4(a). Our examination of the record reveals that all of the factors listed above are based on the same evidencedefendants' prior criminal records. This Court has held that this is error. State v. Harris, 67 N.C.App. 725, 313 S.E.2d 915 (1984).
Our disposition of the case makes it unnecessary for us to discuss other errors made by the trial judge in the course of finding some ninety aggravating factors. For the benefit of the trial judge on remand we reiterate the admonition of this Court in State v. Baucom, 66 N.C.App. 298, 301-02, 311 S.E.2d 73, 75 (1984);
In light of the increasing number of cases that have been remanded because of erroneous findings of non-statutory factors in aggravation, this Court deems it appropriate to remind trial judges that only one factor in aggravation is necessary to support a sentence greater than the presumptive term. The trial judge must determine that this factor is proved by a preponderance of the evidence and outweighs any mitigating factors. G.S. 15A-1340.4(b). "The balance struck by the trial judge will not be disturbed if there is support in the record for his determination. [Citations omitted]." State v. Davis, 58 N.C.App. 330, 333-34, 293 S.E.2d 658, 661, disc. rev. denied, 306 N.C. 745, 295 S.E.2d 482 (1982). With these rules in mind the trial judge may wish to exercise restraint when considering non-statutory aggravating factors after having found statutory factors. This prudent course of conduct would lessen the chance of having the case remanded for resentencing.
See also State v. Benfield, 67 N.C.App. 490, 313 S.E.2d 198 (1984).
In defendants' trials we find no error, but all casesexcept case # 82CRS3298, wherein defendant Wheeler was found guilty of false imprisonmentare remanded for resentencing.
VAUGHN, C.J., and WELLS, J., concur.