State v. Pickens

IN THE SUPREME COURT OF NORTH CAROLINA

No. 276A22

Filed 20 October 2023

STATE OF NORTH CAROLINA

v.
TROY LOGAN PICKENS

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, 284 N.C. App. 712 (2022), finding no error in part and vacating

in part judgments entered on 1 November 2019 by Judge Carl R. Fox in Superior

Court, Wake County, and remanding the case for resentencing. On 13 December

2022, the Supreme Court allowed the State’s petition for discretionary review. Heard

in the Supreme Court on 12 September 2023.

Joshua H. Stein, Attorney General, by Sherri Horner Lawrence, Special Deputy
Attorney General, for the State-appellee.

Michael E. Casterline for defendant-appellant.

EARLS, Justice.

This case involves Troy Logan Pickens, a former chorus teacher at Durant

Middle School, and his convictions for first-degree rape and first-degree statutory

sexual offense with a child, Ellen,1 a Durant Middle School student. While this trial

involved defendant’s assaults on Ellen, the first question before this Court is whether

1 This is a pseudonym used to protect the identity of the minor victim in this case.
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Opinion of the Court

evidence of Pickens’s alleged rape of another student, Kathleen,2 was properly

admitted at trial pursuant to Rule 404(b) of the North Carolina Rules of Evidence.

N.C.G.S. § 8C-1, Rule 404(b) (2021). The second issue this Court must address is

whether the trial court improperly considered Pickens’s decision to exercise his

constitutional right to a jury trial when it imposed consecutive sentences. We find

that the trial court properly admitted Kathleen’s Rule 404(b) testimony and that the

trial court did not improperly consider Pickens’s choice not to plead guilty and

exercise his right to a jury trial in sentencing Pickens.

I. Procedural History

Pickens was indicted for one count of first-degree statutory rape of a child by

an adult offender and two counts of first-degree statutory sexual offense with a child

by an adult offender. These cases were tried during the 21 October 2019 criminal

session of Superior Court, Wake County. Before the trial began, Pickens filed a

motion in limine to exclude evidence of the offense involving Kathleen pursuant to

Rule 404(b) of the North Carolina Rules of Evidence. N.C.G.S. § 8C-1, Rule 404(b).

This motion was denied, and the jury found Pickens guilty of all charges. Pickens was

sentenced to three consecutive active sentences of 300 to 420 months in prison.

Pickens entered notice of appeal.

On appeal, the Court of Appeals determined Kathleen’s Rule 404(b) testimony

2 This is a pseudonym used to protect the identity of the minor Rule 404(b) witness in

this case.

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had been properly admitted. State v. Pickens, 284 N.C. App. 712, 719 (2022). Judge

Murphy dissented on this issue, see id. at 722–35 (Murphy, J., dissenting), and

Pickens filed a Notice of Appeal with our Court on 2 September 2022. On the

sentencing issue, the Court of Appeals found the trial court improperly considered

Pickens’s exercise of his constitutional right to a jury trial during sentencing. Id. at

722 (majority opinion). The State filed a petition for discretionary review on this

issue, which our Court allowed on 13 December 2022.

II. Background

Ellen was born in 2004 and lived with her parents and brother in Raleigh,

North Carolina. She enjoyed playing soccer, riding bikes with her family and friends,

participating in gymnastics, and singing in the church choir. In 2012, when Ellen was

eight years old and in the third grade, her teachers began noticing she had difficulty

focusing in class. This prompted her parents to consult a neuropsychiatrist, Dr.

Jordana Werner, who ultimately diagnosed Ellen with attention-deficit/hyperactivity

disorder (ADHD), inattentive type, with features of anxiety. Ellen was prescribed

methylphenidate, a form of liquid Ritalin, as treatment.

In October 2014, after Dr. Werner moved out of state, Ellen began seeing

Katherine Myers, a psychiatric physician assistant (PA), every three months. PA

Myers testified that during that time, Ellen experienced anxiety about beginning

middle school, which manifested as physical symptoms in the form of stomachaches

and headaches. And while Ellen preferred eating some types of foods over others, she

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“didn’t have problems with the act of eating.” To treat Ellen’s anxiety, PA Myers

prescribed an antidepressant, Lexapro, which is commonly used to treat anxiety and

depression. According to PA Myers, Ellen appeared to be doing “very well” at her

follow-up appointment in February 2015, as “[s]he was much less anxious[,] . . . was

going to other people’s houses[, and] . . . wasn’t as scared.” PA Myers’s testimony

regarding Ellen’s subsequent follow-up appointment in June 2015 was similar, and

PA Myers explained Ellen was adjusting to her medication well, without any reported

side effects. Furthermore, while Ellen still had some anxiety about starting middle

school, PA Myers did not consider this abnormal, and Ellen’s anxiety subsided shortly

after classes began.

In July 2015, at age eleven, Ellen began attending Durant Middle School. The

school nurse administered Ellen’s daily dose of Ritalin around 12:00 p.m. or 12:10

p.m., while other students were in class. This required Ellen to walk down the sixth-

grade hallway alone. From 15 August 2015 to 14 September 2015, Pickens, a Durant

Middle School chorus teacher, had a planning period from 12:15 p.m. to 1:00 p.m.

This meant that Pickens was not teaching class around the time Ellen left her

classroom and walked to the school nurse’s office.

Soon after Ellen’s anxiety about starting school subsided, her mother noticed

a change in Ellen’s behavior. Ellen began withdrawing from her neighborhood

friends, her eating decreased, she stopped wanting to play outside, and she asked not

to attend soccer practice. She began texting her mother around 11:30 a.m., just before

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she was scheduled to leave her classroom to receive her daily dose of Ritalin, asking

that her mother pick her up from school. In her texts, Ellen would provide different

reasons for wanting her mother to pick her up. She would say her “tummy hurts” or

that she was “really tired.” In addition to asking to leave school frequently, Ellen also

pleaded with her mother, “Please don’t make me go to school. Please don’t make me

go to school. I don’t want to go to school.”

Ellen testified that she first met Pickens in the sixth-grade hallway,

approximately one to two months after school began, while she was on her way to

receive or on the way back from receiving her Ritalin from the school nurse. There

was no one else in the hallway at the time. Ellen stated that Pickens motioned to her

with his hand, gesturing for her to “come over” to him. When Ellen asked what

Pickens needed, he responded, “I need you to be quiet.” Pickens then grabbed the back

of Ellen’s shirt and took her into the largest stall in the sixth-grade bathroom, where

he sexually assaulted her. This incident lasted approximately five minutes. Ellen did

not report this incident because Pickens had threatened to hurt her or her family if

she told anyone. Because Ellen was afraid Pickens would “do it again,” she did not

want to return to school.

Ellen’s next encounter with Pickens was “worse than the first time.” He

grabbed the back of her shirt and her ponytail and took her back into the same

bathroom stall where he had assaulted her previously. This time he raped her. While

the encounter lasted only “[a] couple minutes,” Ellen testified that “it felt . . . like[ ]

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forever.” She also testified that she cried during the assault. Ellen did not tell anyone

what happened but asked her parents to keep her home from school.

Regarding Ellen’s third encounter with Pickens, she reported that the “[s]ame

first sequence” of events occurred and Pickens again raped her. However, this time

Pickens also asked Ellen to defecate in the toilet and pick up the feces. Ellen testified

that she “didn’t want to touch [the feces]” but complied because Pickens had

threatened her and her family. Pickens took the feces from Ellen and put it in her

mouth, which caused Ellen to gag repeatedly. The feces was then smeared on the wall

of the bathroom stall. According to Ellen’s testimony, Pickens assaulted her in a

similar manner almost every other day when she left class to take her medication.

Some of Pickens’s assaults also involved forcing Ellen to perform fellatio.

Glenn Moss, the former head custodian at Durant Middle School, testified that

in August or September 2015, he noticed feces was being smeared on the wall of the

largest bathroom stall in the sixth-grade girl’s bathroom. This was the same

bathroom stall where Ellen reported Pickens’s assaults took place. Moss reported the

smeared feces to the school administration, and in September 2015, Nancy Allen, the

Durant Middle School principal, questioned Ellen about the smeared feces. Ellen

denied smearing the feces on the bathroom wall and began to cry. Principal Allen

spoke with Ellen’s parents and explained that Ellen must receive a mental health

evaluation before returning to school.

Around this time, Ellen exhibited even more troubled behavior. As mentioned

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above, Ellen withdrew from her friends and refused to go to school. She also followed

her mother everywhere, began sleeping with her mother each night, experienced

flashbacks of her trauma, and began exhibiting disordered eating. As a result, Ellen

experienced significant weight loss, so much so that her ribs and other bones were

visible. Ellen was diagnosed with avoidant restrictive food intake disorder (ARFID),

which involves a fear of eating, such as vomiting or choking, that is unrelated to

weight gain. Ultimately, Ellen required inpatient psychiatric treatment, and due to

her ARFID and resulting weight loss causing her to be below normal weight, it was

necessary for her physicians to insert a feeding tube for proper nutrition.

In April 2017, Ellen disclosed to her mother that Pickens had hurt her. While

she did not disclose the full extent of the sexual conduct Pickens forced her to engage

in, she did disclose that Pickens had touched her inappropriately.

III. Standard of Review

This Court’s review of whether Rule 404(b) evidence is properly admitted is a

question of law and is reviewed de novo on appeal. State v. Beckelheimer, 366 N.C.

127, 130 (2012).

IV. Rule 404(b) of the North Carolina Rules of Evidence

Under Rule 404(b) of the North Carolina Rules of Evidence, “[e]vidence of a

person’s character or a trait of his character is not admissible for the purpose of

proving that he acted in conformity therewith on a particular occasion.” N.C.G.S. §

8C-1, Rule 404(a) (2021). There is a good reason for this. Namely, if a jury chooses to

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convict a defendant, then that conviction must be based on the evidence before the

jury, not the jury’s view of the defendant’s character. In other words, a jury must

convict a defendant because the State has met its burden to show that the defendant

committed the alleged offense beyond a reasonable doubt, not because the jury

believes the defendant may have committed similar crimes. See N.C.P.I.—Crim.

101.10 (Burden of Proof and Reasonable Doubt).

While evidence of a defendant’s character is not admissible to prove he “acted

in conformity therewith,” N.C.G.S. § 8C-1, Rule 404(a), “[e]vidence of other crimes,

wrongs, or acts . . . may, however, be admissible [to prove] motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake, entrapment or

accident,” N.C.G.S. § 8C-1, Rule 404(b). Thus, Rule 404(b) has been characterized as

a rule of inclusion, and evidence of prior bad acts is admissible unless the only reason

that the evidence is introduced is to show the defendant’s propensity for committing

a crime like the act charged. State v. Coffey, 326 N.C. 268, 278–79 (1990). However,

“Rule 404(b) is still constrained by the requirements of similarity and temporal

proximity.” Beckelheimer, 366 N.C. at 131 (cleaned up). To be admissible, prior bad

acts do not need to “rise to the level of the unique and bizarre” and instead will be

considered sufficiently similar and admissible “if there are some unusual facts

present in both crimes that would indicate that the same person committed them.”

Id. (cleaned up).

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A. Kathleen’s Rule 404(b) Testimony

At trial, Kathleen testified that she met Pickens when she was in seventh

grade at Neal Middle School in Durham, North Carolina. Pickens was Kathleen’s

chorus teacher. One day, while Kathleen was leaving class Pickens put his hands on

Kathleen’s waist and touched her bottom. This occurred while other students were

present, and it made Kathleen so uncomfortable that she ran out of the classroom.

When Kathleen was in eighth grade, Pickens asked Kathleen to participate in

a singing and dancing performance called Evening of Entertainment, which was held

at Riverside High School. When Kathleen declined to participate, Pickens called

Kathleen’s mother and received her consent. The practices for this event were held

at Riverside High School, and Pickens drove Kathleen to each practice.

Kathleen turned fourteen on 1 February 2015. The following day, Pickens

drove Kathleen to practice but stopped at his apartment to change his clothes.

Kathleen initially stated she would wait for Pickens in the car, but Pickens said she

“should come up” and Kathleen complied. When Kathleen arrived in Pickens’s

apartment, she sat on the couch and watched the cartoon “Teen Titans Go!” while

Pickens made sandwiches for himself and Kathleen. After eating the sandwich and

putting the dishes in the sink, Pickens returned to the couch, sat down next to

Kathleen, and began to touch her left thigh. Kathleen moved Pickens’s hand and

“asked him not to do that.” However, Pickens continued to touch Kathleen’s leg,

pulled her up by her arm, and took her into his bedroom. Kathleen testified that while

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she tried to pull away from Pickens, she was 5′2″ and 100 pounds at the time and was

unable to get away from him. Pickens threw Kathleen onto his bed and forced her

pants and underwear off completely. Pickens pulled his pants halfway down and

vaginally raped Kathleen. During the rape, Kathleen reported crying and asking

Pickens to stop and to move away from her. But Pickens refused to stop. Afterwards,

Pickens apologized to Kathleen and threatened her, stating that if she told anyone,

he would rape her again.

In 2016, when Kathleen was in tenth grade, she was asked to write about an

incident that changed her life. There, for the first time, she described what Pickens

had done to her. After reading the paper, Kathleen’s teacher reported the incident,

and Kathleen spoke with law enforcement about what had occurred.

B. Application of Rule 404(b) to Kathleen’s Testimony

The State contends that Kathleen’s Rule 404(b) testimony was offered for

proper reasons: to prove Pickens’s intent, motive, plan, and design to sexually assault

middle school students from schools where he was a teacher. In support, the State

shows that Pickens used his position as a teacher at Durant Middle School and Neal

Middle School to gain access to both Ellen and Kathleen. Moreover, both of Pickens’s

victims were middle school students at a school where Pickens was employed. Ellen’s

and Kathleen’s assaults also both happened during school-related activities or school

hours. In Ellen’s case, she was either on her way to receive medication from the school

nurse or on her way back to class when the assaults occurred. For Kathleen, although

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Pickens’s alleged rape of her occurred off the school campus and in Pickens’s

apartment, the State contends that Pickens committed the assault while acting in his

official capacity as a teacher as he was taking Kathleen to an after-school activity.

Furthermore, some of the assaults happened during school hours: namely, the

sexual conduct Ellen described, which took place exclusively in the school bathroom,

and Pickens’s touching of Kathleen on her waist and bottom in the classroom. The

State also notes that even though Pickens only engaged in vaginal intercourse with

Kathleen, he attempted to do the same with Ellen but was unable to do so because of

her small size. Only then did Pickens resort to anal intercourse and fellatio with

Ellen.

According to the State, Pickens also asserted control over both Ellen and

Kathleen through his position as a teacher. In Kathleen’s case, (1) Pickens insisted

she come up to his apartment despite Kathleen having stated she would wait in the

car; (2) Pickens touched Kathleen’s thigh even though she asked him to stop; (3)

Pickens physically pulled Kathleen into his bedroom, threw her down on his bed, and

raped her; (4) Pickens removed Kathleen’s pants and underwear; and (5) Pickens

continued to rape Kathleen despite her crying and asking him to stop. In Ellen’s case,

Pickens (1) physically pulled Ellen into the bathroom; (2) continued to sexually

assault Ellen despite her tears; and (3) directed Ellen to remove her pants and

underwear. Moreover, the State asserts that in both Ellen’s and Kathleen’s assaults,

Pickens only removed his pants and underwear halfway down. Additionally, he

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threatened both girls after the assaults occurred. Accordingly, the State contends that

Kathleen’s Rule 404(b) testimony meets the required standard and was properly

admitted.

In response, Pickens argues that Kathleen’s Rule 404(b) testimony was not

sufficiently similar to be admissible. Namely, that there were “no unusual

[distinguishing] similarities” between Ellen’s and Kathleen’s accounts. Pickens

focuses on the differences between the victims and disparities in the incidents, noting

that while Ellen was eleven years old, Kathleen was significantly older at fourteen

years old. The girls had different physical builds in that Ellen was shorter than

Kathleen by at least four inches, weighed thirty-five pounds less than Kathleen, and

had not reached puberty at the time of the assault. Pickens also argues that his

relationship with Kathleen was different from his relationship with Ellen, namely

that Pickens knew Kathleen well because she had been in his class for two years, but

the same was not true of Ellen who only attended the school where Pickens worked.

Furthermore, Pickens contends that the sex acts in Kathleen’s case were

substantially different from those Ellen described. This is because Kathleen’s rape

took place outside of school, in Pickens’s apartment, and only involved vaginal

intercourse. But Ellen’s assault occurred on the school campus, in the girls’ restroom,

and included attempted vaginal intercourse, anal intercourse, and fellatio.

Importantly, Pickens argues that there are no common facts between Ellen’s and

Kathleen’s sexual assaults except for those common in any case involving a sex

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offense by an adult against a child, and those facts cannot meet the admissibility

standard required under Rule 404(b).

Our Rule 404(b) standard does not require identical or even near-identical

circumstances between the charged offense and the prior bad act for evidence of the

prior bad act to be admissible. Beckelheimer, 366 N.C. at 132. Instead, Rule 404(b)

requires that the incidents share “some unusual facts that go to a purpose other than

propensity for the evidence to be admissible.” Id. (cleaned up). Here, as the State

points out, the evidence was admitted to show an intent, motive, plan, and design to

assault middle school students. The unique facts common to both victims include

that: (1) the girls were middle-school-aged children attending schools where

defendant taught; (2) defendant used his position as a middle school teacher to gain

access to both victims; (3) defendant exerted control over both victims during the

assaults despite their protests, tears and resistance; (4) defendant engaged in vaginal

intercourse or tried to engage in vaginal intercourse with both victims; (5) defendant

committed the offenses during school hours or during school-related activities; (6)

defendant only removed his pants and underwear halfway during both assaults; and

(7) defendant threatened the girls after the assaults were completed.

In Beckelheimer, this Court explained that the correct analysis for the

admissibility of Rule 404(b) evidence involves focusing on the similarities and not the

differences between the two incidents. Id. at 131–32. The same is true here. Because

the similarities in this case are sufficient to show “some unusual facts present in both

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crimes that would indicate that the same person committed them,” id. at 131 (cleaned

up), Kathleen’s Rule 404(b) testimony was properly admitted. The trial court did not

err in admitting this evidence and the Court of Appeals was correct in concluding the

same. Accordingly, we affirm the Court of Appeals’ decision regarding the

admissibility of Kathleen’s Rule 404(b) testimony.

V. Sentencing

A. Standard of Review

“The general rule is that a judgment is presumed to be valid and will not be

disturbed absent a showing that the trial judge abused his discretion.” State v. Bright,

301 N.C. 243, 261 (1980). “A decision entrusted to a trial judge’s discretion may be

reversed only if it is manifestly unsupported by reason or so arbitrary that it could

not have been a reasoned decision.” State v. Brown, 314 N.C. 588, 595 (1985) (cleaned

up).

B. Consideration of Improper Factors During Sentencing

When a sentence imposed by the trial court is within statutory limits it is

“presumed regular and valid.” State v. Boone, 293 N.C. 702, 712 (1977). However, the

presumption of regularity is overcome “[i]f the record discloses that the court

considered [an] irrelevant and improper matter in determining the severity of the

sentence.” Id. (citing State v. Swinney, 271 N.C. 130 (1967)).

Under Article I, Section 24 of the North Carolina Constitution, “[n]o person

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shall be convicted of any crime but by unanimous verdict of a jury in open court.”3

N.C. Const. art. I, § 24. “No other right of the individual has been so zealously guarded

over the years and so deeply embedded in our system of jurisprudence as an accused’s

right to a jury trial.” Boone, 293 N.C. at 712. Accordingly, “[t]his right ought not to be

denied or abridged nor should the attempt to exercise this right impose upon the

defendant an additional penalty or enlargement of his sentence.” Id.; see also State v.

Cannon, 326 N.C. 37, 39 (1990) (“A criminal defendant may not be punished at

sentencing for exercising this constitutional right to trial by jury.”). Thus, “[w]here it

can reasonably be inferred from the language of the trial judge that the sentence was

imposed at least in part because defendant . . . insisted on a trial by jury, defendant’s

constitutional right to trial by jury has been abridged, and a new sentencing hearing

must result.” Id.

C. Background

The trial court made the following statement before sentencing Pickens:

To say the facts of this case are egregious is putting it
mildly. The facts of this case are among the worst I’ve ever
seen, and I’ve seen a lot of cases, thousands as a prosecutor,
thousands as a judge. One of the things that one has to
understand — I was thinking about this earlier — is that
children the age of 11, unless they are really in an
[un]usual environment, have no idea about sex acts. They
just don’t. I mean, I’m sure — I’ve seen girls who were

3 This right may be waived through procedures prescribed by the General Assembly

and with the consent of a trial judge in cases where the State is not seeking a death sentence
in superior court. N.C. Const. art. I, § 24. Additionally, “[t]he General Assembly may . . .
provide for other means of trial for misdemeanors, with the right of appeal for trial de novo.”
Id.

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pregnant at that age, but they shouldn’t have been, but
were raped. They weren’t consensual acts.

The Legislature did something several years ago
when they enacted this structured sentencing that I totally
agreed with and I advocated for for ten years before they
did it, and that was to make — send a clear message that
there was a difference between a violent crime and crimes
against — and nonviolent crimes, crimes against property,
because the effect is totally different. I mean, just seeing
these children testify in this case was just evidence to
anyone who opened their eyes who had listened to it as to
how damaged these children were by their experience. I
don’t — given the number of women out here in the world,
I don’t understand why some people choose underage girls,
but it’s wrong. It’s morally wrong. It’s legally wrong, and
there’s no justification for it.

It would be difficult for an adult to come in here and
testify in front of God and the country about what those
two girls came in here and testified about. It would be
embarrassing. It would be embarrassing to testify about
consensual sex in front of a jury or a bunch of strangers.
And in truth, they get traumatized again by being here, but
it’s absolutely necessary when a defendant pleads not
guilty. They didn’t have a choice and you, Mr. Pickens, had
a choice.

Following these remarks, the trial court sentenced Pickens to a minimum of 300

months and a maximum of 420 months for each of the three charges the jury found

him guilty of. Each sentence was ordered to run consecutively.

On appeal, the Court of Appeals determined that the trial court’s statements

to Pickens revealed that it had improperly considered Pickens’s exercise of his

constitutional right to a jury trial when imposing Pickens’s sentence. Namely, the

Court of Appeals explained that while a trial court may use its discretion to impose

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consecutive sentences, in this case, there was a “clear inference that a greater

sentence was imposed because Defendant did not plead guilty.” Pickens, 284 N.C.

App. at 722.

D. Mr. Pickens’s Sentencing

The language at issue is the trial court’s statement during sentencing that:

“They didn’t have a choice and you, Mr. Pickens, had a choice.” Mr. Pickens argues

that it can be reasonably inferred that these words referred to his decision to plead

not guilty and to exercise his right to a jury trial. However, the State argues that the

trial court’s statement was not related to Pickens’s choice to proceed with a jury trial

but instead referred to his choice to commit egregious sexual assaults on Ellen and

Kathleen against their will. The State supports its argument by highlighting the

context in which the court’s statement was made. Namely, that before using these

particular words, the trial court was discussing Pickens’s choice to sexually assault

Ellen and Kathleen. Thus, according to the State, it can be reasonably inferred that

in making the statement at issue, the trial court was referring to Pickens’s decision

to assault Ellen and Kathleen and not Pickens’s decision to exercise his right to a jury

trial. It is frequently difficult to prove intent in this context. We must be vigilant to

protect the right to a jury trial and ensure that individuals who choose to assert that

right are not punished for doing so. See Boone, 293 N.C. at 712 (providing that the

right to a jury trial “ought not to be denied or abridged nor should the attempt to

exercise this right impose upon the defendant an additional penalty or enlargement

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of his sentence”).

Nevertheless, our precedents in Boone, 293 N.C. 702; State v. Langford, 319

N.C. 340 (1987); and Cannon, 326 N.C. 37, provide some guidance. In Boone, we

determined that the trial court had improperly used the defendant’s choice not to

plead guilty against the defendant during sentencing. 293 N.C. at 712. There, in open

court, the trial court “indicated that [it] would be compelled to give the defendant an

active sentence due to the fact that the defendant had pleaded not guilty.” Id.

Similarly, in Cannon, this Court found that the trial court had violated each

defendant’s right to a jury trial. 326 N.C. at 40. There, after being “advised that

defendants demanded a jury trial, the trial judge told counsel in no uncertain terms

that if defendants were convicted he would give them the maximum sentence.” Id. at

38. However, this case is not like Boone or Cannon. The trial court in Pickens’s case

did not explicitly state that it was giving Pickens a harsher sentence because he chose

to exercise his right to a jury trial. See Boone, 293 N.C. at 712; Cannon, 326 N.C. at

38.

The Court of Appeals has also addressed this issue more recently in State v.

Hueto, 195 N.C. App. 67 (2009), and State v. Haymond, 203 N.C. App. 151 (2010). The

facts in both cases illustrate that the entire context of a trial judge’s statements must

be examined when determining whether a reasonable inference can be made that the

court had improperly considered the defendant’s decision not to plead guilty when

sentencing him. See Hueto, 195 N.C. App. at 74–78 (examining pre-trial and post-

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verdict statements by the trial court); Haymond, 203 N.C. App. at 169–71

(considering statements relating to sentencing made at several hearings in the case).

Pickens’s case is also not analogous to Hueto or Haymond because those cases

involved pretrial and posttrial statements that referenced the defendant’s

sentencing, which when taken together and in conjunction with the sentence the trial

court imposed, created an inference that the defendant’s choice to go to trial was

considered during sentencing. See Hueto, 195 N.C. App. at 78; Haymond, 203 N.C.

App. at 171. In this case, the only statement at issue occurred during sentencing, and

the parties have not asked this Court to consider any other statements made by the

trial court.

In Langford, this Court determined that the trial court’s statements did not

show an intent to penalize the defendant for exercising his right to a jury trial. 319

N.C. at 346. The defendant argued that the following statement by the trial court

showed the court sentenced him to a consecutive sentence because he chose not to

plead guilty: “I’m aware that I could have avoided this trial had I been willing at the

outset of the trial to commit myself to concurrent sentences.” Id. This Court noted

that while the defendant pointed to this statement “in isolation,” the whole record did

not evidence that a harsher penalty was imposed based on the defendant’s choice to

exercise his right to a jury trial. Id. Moreover, while the trial court’s statement may

have been “an unnecessary statement,” it referenced nothing more than a “historical

fact.” Id. This was because the record showed that the “defendant was forced to plead

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not guilty and to proceed to trial [because] . . . the prosecutor and trial court refused

to agree in advance to a concurrent sentence.” Id. Accordingly, there was no indication

that the trial court would have made the sentence concurrent had the defendant

pleaded guilty. Id. In essence, all the record showed was that the trial court’s

statements reflected its refusal to decide whether the defendant’s sentence would be

concurrent or consecutive until it heard the evidence presented at trial. Id.

Langford is particularly instructive and stands for the proposition that the

statement at issue cannot be reviewed in isolation but instead must be considered

with the remainder of the record. 319 N.C. at 346. Pickens points out that the trial

court discussed “the act of the trial itself” and the victims’ need to testify at trial

immediately before stating, “They didn’t have a choice and you, Mr. Pickens, had a

choice.” He contends this context means it can be inferred that during sentencing the

trial court improperly considered his choice to plead not guilty. However, when the

trial court’s statement is reviewed alongside other portions of that same discussion,

an equally reasonable inference could be drawn that the court was not referring to

Pickens’s exercise of his right to a jury trial and instead was referring to the egregious

nature of Pickens’s crimes and his decision to commit those crimes.

With the ambiguous statement capable of multiple interpretations, the

“presumption of regularity” is not overcome, Boone, 293 N.C. at 712, and we conclude

the trial court did not violate Pickens’s constitutional right to a jury trial when it

imposed Pickens’s sentence or when it imposed consecutive sentences on Pickens. See

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 STATE V. PICKENS

Opinion of the Court

Cannon, 326 N.C. at 39. Thus, we affirm the Court of Appeals’ holding that the Rule

404(b) evidence of Pickens’s assault on Kathleen was properly admitted and reverse

the Court of Appeals’ decision to vacate Pickens’s sentence, resulting in a

reinstatement of the original sentence imposed by the trial court.

AFFIRMED IN PART AND REVERSED IN PART.

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