Opinion
No. COA10-637
Filed 4 January 2011 This case not for publication
Appeal by defendant from judgment entered 27 July 2009 by Judge Ripley E. Rand in Harnett County Superior Court. Heard in the Court of Appeals 20 December 2010.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Kevin Anderson, for the State. Glenn Gerding for defendant-appellant.
Harnett County No. 07 CRS 53708.
Antonio G. Byrd ("defendant") appeals from judgment consistent with a jury verdict finding him guilty of involuntary manslaughter. For the following reasons, we remand for resentencing.
The State's evidence at trial tended to show that defendant and Sheteka M. started dating in July or August 2006. Approximately two months later, defendant moved in with Sheteka M. and her two daughters, three-year-old Z.M. and two-year-old M.M. On 2 July 2007, defendant was at home with Z.M. and M.M. and gave the children a bath. Defendant left the bathroom to get clothes and, upon returning, defendant saw M.M. slumped over. M.M. was transported to a local fire station, and the emergency medical personnel there found her unresponsive. Defendant called Sheteka M. and told her that M.M. had drowned. When he later saw her in person, he told her that he was "going to go to jail." M.M. was transported to the hospital where she was pronounced dead. Doctors determined that M.M. died of severe trauma to her abdomen "as a result of blunt force injury[.]" At trial, Z.M. testified that she saw defendant and M.M. in the bathroom; that defendant was "whooping [M.M.'s] tail[;]" and that M.M. was crying.
The trial court instructed the jury that it could find defendant guilty of involuntary manslaughter based upon either of two theories: (1) defendant acted in a criminally negligent way; or (2) defendant acted unlawfully. The court specifically defined criminal negligence. The court further instructed that defendant acted unlawfully "if [M.M.] was less than 16 years of age and the [D]efendant was providing care to or supervision of [M.M.], and if he assaulted her thereby inflicting physical injury on her, or if he contributed to her neglect by failing to provide or seek necessary medical care for her." After deliberating, the jury found defendant guilty of involuntary manslaughter.
At the sentencing hearing, the trial court submitted to the jury aggravating factors. The jury returned a special verdict, finding the existence of the following aggravating factors: (1) the offense was especially cruel; (2) M.M. was very young at the time of the offense; and (3) defendant "took advantage of a position of trust or confidence (which includes a domestic relationship) to commit the offense." The trial court found four factors in mitigation and determined that the factors in aggravation outweighed the factors in mitigation. The trial court sentenced defendant to an aggravated sentence of twenty to twenty-four months imprisonment. Defendant appeals.
Defendant contends the trial court improperly used the third aggravating factor — that he took advantage of a position of trust or confidence — for sentencing purposes. Defendant argues that the evidence necessary to prove the aggravating factor was necessary to prove an element of the offense as defined for the jury, in violation of North Carolina General Statutes, section 15A-1340.16(d). See N.C. Gen. Stat. § 15A-1340.16(d) (2009) ("Evidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation."). He asserts that this Court's holding in State v. Darby, 102 N.C. App. 297, 401 S.E.2d 791 (1991), supports his argument and therefore submits that his case should be remanded for resentencing. We agree.
In Darby, the defendant appealed her sentencing for an involuntary manslaughter conviction. Id. at 298, 401 S.E.2d at 791. The defendant asserted that the court erred in finding the aggravating factor that defendant took advantage of a position of trust or confidence to commit the offense because the evidence necessary to prove the factor was necessary to prove an element of the offense, misdemeanor child abuse. Id. at 298, 401 S.E.2d at 791-92. We noted that the jury was instructed that the manslaughter conviction could be based on: (1) the predicate crime of misdemeanor child abuse, which has as an element that the defendant was a parent of the victim or had a relationship that involved a person providing care or supervision of a child; or (2) a finding that defendant committed a criminally negligent act. Id. at 298-99, 401 S.E.2d at 791-92. We held that the "position of trust or confidence" aggravating factor could not be used to aggravate the defendant's sentence for involuntary manslaughter because it was possible the jury relied upon the same evidence for both the involuntary manslaughter conviction and the aggravating factor. Id. at 299, 401 S.E.2d at 792. The defendant's sentence was reversed and the matter remanded for resentencing. Id. at 301, 401 S.E.2d at 793.
In the case sub judice, the State concedes that the trial court committed error in view of Darby by using the "position of trust or confidence" aggravating factor to aggravate defendant's involuntary manslaughter sentence, and therefore, the case should be remanded for resentencing. When, as here, the trial court errs in making a finding of aggravation and imposes a sentence in excess of the presumptive range, the case must be remanded for a new sentencing hearing. State v. Ahearn, 307 N.C. 584, 602, 300 S.E.2d 689, 701 (1983). Accordingly, we vacate defendant's sentence and remand this matter to the trial court for resentencing.
Remanded for resentencing.
Chief Judge MARTIN and Judge ELMORE concur.
Report per Rule 30(e).
Judge Jackson concurred prior to December 31, 2010.