Opinion
No. COA09-910
Filed 4 May 2010 This case not for publication
Appeal by Defendant from judgment entered 15 January 2009 by Judge Ripley E. Rand in Superior Court, Lenoir County. Heard in the Court of Appeals 13 January 2010.
Attorney General Roy Cooper, by Assistant Attorney General Kathleen N. Bolton, for the State. Michael J. Reece for Defendant-Appellant.
Lenoir County No. 06 CRS 54090.
Latonya Gail Dawson (Defendant) was indicted on one count of common law robbery and one count of assault inflicting serious bodily injury on 3 January 2007. Defendant was provided notice on 10 January 2007 that the State intended to prove, as an aggravating factor, that the victim was very old. A jury found Defendant guilty as charged on 15 January 2009. The jury also found that the victim was very old at the time of the offenses. The trial court found that an aggravated sentence was justified and sentenced Defendant to consecutive sentences of thirty-one to thirty-eight months and twenty-five to thirty months in prison. Defendant appeals.
The evidence at trial tended to show that the victim was a ninety-year-old woman who lived alone in her home in LaGrange. The victim supported herself by working in her home, performing clothing alterations and crocheting. The victim's customers would come to her house or call her on the telephone when they needed alterations and would usually pay her in cash. The victim testified that she kept her door unlocked and had "always [been] used to people coming and going[.]" Approximately two months prior to the incident giving rise to the charges against Defendant, Defendant had come to the victim's house and had asked for a drink of water and an aspirin. The victim went into her kitchen to get the water and, when her back was turned, Defendant reached into the victim's pocketbook and took the victim's billfold. The victim did not learn that her billfold was missing until after Defendant had left the victim's house. The billfold contained the victim's "important papers," and the victim was required to get replacements for her "Medicare, [her] Social Security, driver's license, and all [her] important papers, [her] birth certificate." She did not report the billfold as missing because she "could not prove that [Defendant] got it because there was nobody there but [the victim] and [Defendant]."
Defendant again came to the victim's house on 31 August 2006. The victim's front door consisted of a wooden inner door and a storm door mounted outside. The victim went to her front door and opened it slightly to see who was outside. Defendant was standing in the doorway, holding open the storm door. The victim attempted to close the inner door, but Defendant pushed the door open, pushing the victim backwards. The victim testified that Defendant was "too strong for [her]."
Defendant entered the victim's house and asked to borrow twenty dollars. The victim replied that she did not have the money but Defendant insisted that she did. Defendant then went into the kitchen as the victim held onto Defendant. The victim's pocketbook was on a chair in the kitchen. Defendant took the victim's billfold, saying "I won't do you like I did you the other time." The victim testified that Defendant "meant that she was going to leave [the victim's] billfold there, where [Defendant] had carried it [away] before." Defendant then took the victim's money out of the billfold, leaving the billfold on the chair.
Defendant threw the victim to the floor and walked out the front door. The victim testified that she "hollered because it hurt [her] so bad when [Defendant] threw [her] on the floor." The victim lay on the floor and could not get up "because both [her] arms [and] both hands were hurting." She testified that the telephone rang as she was on the floor, but she was unable to answer it. Eventually, a neighbor called the victim's niece to check on the victim because the neighbor had been unable to reach the victim by telephone. The niece arrived and found the victim still on the floor.
The victim was taken to a hospital where doctors found that she had a broken arm, a broken hip, and two broken fingers. She underwent surgery and had a "rod" placed in her hip. She stayed in the hospital for "about five weeks[,]" and required in-home care for four weeks after leaving the hospital. The victim was unable to resume her work doing alterations and crocheting for six months.
Aggravating Factor
Defendant makes two arguments concerning the trial court's application of the aggravating factor that "[t]he victim was very old." First, Defendant asserts that the aggravating factor that "[t]he victim was very old" does not apply to common law robbery. Second, Defendant contends that the trial court erred by sentencing her in the aggravated range because the State "did not prove that Defendant took advantage of the victim because of her age." We address each argument in turn.
Canady and Blakely
We must first address the standard of review applicable to Defendant's arguments. Defendant contends that we should view her arguments as properly preserved questions of law and therefore apply de novo review. The State argues that de novo review would be proper under our Supreme Court's decision in State v. Canady, 330 N.C. 398, 410 S.E.2d 875 (1991); however, the State contends that Canady is inapplicable to the case before us in light of the United States Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, reh'g denied, 542 U.S. 961, 159 L. Ed. 2d 851 (2004). N.C.R. App. P. 10(b)(1) provides that, "[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion[.]"
In Canady, our Supreme Court held as follows: "We shall not require that after a trial is completed and a judge is preparing a judgment or making findings of aggravating factors in a criminal case, that a party object as each fact or factor is found in order to preserve the question for appeal." Canady, 330 N.C. at 402, 410 S.E.2d at 878. In Blakely, the United States Supreme Court mandated that facts which increase the penalty for a crime "`beyond the prescribed statutory maximum'" must be found beyond a reasonable doubt by a jury. Blakely, 542 U.S. at 301, 159 L. Ed. 2d at 412 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455 (2000)). In light of Blakely, the General Assembly changed our state's sentencing procedure to reflect the requirement that aggravating factors not admitted to by a defendant must be found by a jury beyond a reasonable doubt. N.C. Gen. Stat. § 15A-1340.16(a)-(a1) (2009).
The State argues that, because Canady was decided under prior law which allowed the trial judge to make determinations of aggravating factors, Canady is no longer applicable. The State contends that, because aggravating factors are now submitted to a jury for determination, our Court should review appeals concerning the jury's determination of aggravating factors in a similar manner to our review of "aggravating circumstances" under N.C. Gen. Stat. § 15A-2000(e) for sentencing in capital cases. Under N.C. Gen. Stat. § 15A-2000(e) (2009), our Supreme Court requires that a defendant object to the submission of the aggravating circumstances to the jury in order to preserve the issue for appeal. See State v. Haselden, 357 N.C. 1, 17, 577 S.E.2d 594, 604-05 (2003); State v. Gainey, 355 N.C. 73, 97-100, 558 S.E.2d 463, 479-80 (2002). The State also contends that our holding in State v. Johnson, 181 N.C. App. 287, 629 S.E.2d 78 (2007), shows that our Court has already adopted this line of reasoning.
We are cognizant of the potential conflict between Canady and Blakely and its progeny, as articulated by the State. However, we also note that Canady concerned the requirements of a defendant's objection to actions taking place "after a trial is completed and a judge is preparing a judgment or making findings of aggravating factors in a criminal case[.]" Canady, 330 N.C. at 402, 410 S.E.2d at 878. In the case before us, after the jury found beyond a reasonable doubt that the victim was very old, the trial court began the sentencing phase. Defendant conceded that the aggravating factor that the victim was very old was present and applicable to the charge of assault. However, Defendant argued, as will be further discussed below, that the aggravating factor was inapplicable to the charge of common law robbery, and requested that the trial court not consider that factor in sentencing Defendant for that crime. Therefore, Defendant's argument was not that there was insufficient evidence to submit the aggravating factor to the jury. Rather, Defendant argued that the aggravating factor did not, as a matter of law, apply to one of the charges against her. She properly submitted that question to the trial court during the sentencing phase when she requested and argued the matter "after [the] trial was completed and [the] judge [was] preparing [the] judgment[.]" Id. Because Defendant "presented to the trial court a timely request" concerning the application of the aggravating factor to common law robbery, she properly preserved that question for appeal to our Court. N.C.R. App. P. 10(b)(1).
Applicability to Common Law Robbery
Defendant first argues that the trial court erred by finding the aggravating factor that "[t]he victim was very old" applied to common law robbery. Defendant relies on State v. Skinner, 162 N.C. App. 434, 590 S.E.2d 876 (2004) and State v. Ledford, 315 N.C. 599, 340 S.E.2d 309 (1986) in arguing that, because a victim's old age is not an applicable aggravating factor to the crime of larceny, it should also not be applied to the crime of common law robbery. We disagree.
In Skinner, the defendant broke into the home of a seventy-six-year-old widow who lived alone, and struck the victim "on her head seven or eight times with what may have been a hammer." Skinner, 162 N.C. App. at 436, 590 S.E.2d at 879. The evidence tended to show that defendant also took seventy-five dollars from the elderly victim's purse. Id. The defendant was convicted, inter alia, of felonious larceny and assault with a deadly weapon with intent to kill inflicting serious injury. Id. at 435, 590 S.E.2d at 879. The trial court considered the victim's being "very old" as an aggravating factor in both of these convictions. Id.
The defendant in Skinner petitioned for certiorari and argued that the aggravating factor of the victim's old age did not apply to his case. Id. at 437, 590 S.E.2d at 880. Our Court agreed as to the charge of felonious larceny, noting that "[t]he underlying policy for this statutory aggravating factor (formerly G.S. § 15A-1340.4(a)(1)(j)) was to `discourage wrongdoers from taking advantage of a victim because of the victim's young or old age or infirmity.'" Id. at 438, 590 S.E.2d at 880-81 (quoting State v. Mitchell, 62 N.C. App. 21, 29, 302 S.E.2d 265, 270 (1983)). Our Court then discussed Ledford, and held that the victim's age was "`totally unrelated to the crime of felonious larceny'" and remanded for resentencing. Id. at 438-39, 590 S.E.2d at 881 (quoting Ledford, 315 N.C. at 625, 340 S.E.2d at 325).
In Ledford, our Supreme Court addressed a defendant's enhanced sentence pursuant to the aggravating factor of the victim's old age. The Ledford Court held that "the trial judge . . . erred by finding two aggravating circumstances — that the victim was very old and that the offense was especially heinous, atrocious, and cruel — which are, under the facts of this case, totally unrelated to the crime of felonious larceny." Ledford, 315 N.C. at 625, 340 S.E.2d at 325 (emphasis added).
We agree with Defendant that, under the specific facts of Ledford and Skinner, our Court and the Supreme Court have found the aggravating factor of the victim's advanced age to be unrelated to the charges of larceny. However, in the case before us, Defendant was charged with common law robbery. "Common law robbery is the felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear." State v. Smith, 305 N.C. 691, 700, 292 S.E.2d 264, 270 (citations omitted), cert. denied, 459 U.S. 1056, 74 L. Ed. 2d 622 (1982). "Absent the elements of violence or intimidation, the offense becomes larceny." State v. Bailey, 4 N.C. App. 407, 411, 167 S.E.2d 24, 26 (1969). Thus, common law robbery and larceny, though related, are in fact different crimes. Because Skinner and Ledford dealt with larceny and not with common law robbery, they are inapposite to Defendant's case. Defendant has cited no applicable authority for her argument that the aggravating factor that "[t]he victim was very old" is not applicable to common law robbery. We therefore find no error as to the trial court's application of the aggravating factor that "[t]he victim was very old" to the crime of common law robbery.
Taking Advantage of or Targeting the Victim
Defendant next argues that the trial court erred in "sentencing [her] to an aggravated sentence, [because] the State did not prove that Defendant took advantage of the victim because of her age." Defendant contends that
[t]here was nothing about the victim's age that related to the force used. . . . Nor can it be said that Defendant targeted [the victim] any more than did the defendants in Skinner and Ledford.
We disagree.
"The age of the victim may not be used as an aggravating factor unless it appears that the defendant took advantage of the victim's relative helplessness to commit the crime or that the harm was worse because of the age or condition of the victim." State v. Monk, 63 N.C. App. 512, 523, 305 S.E.2d 755, 762 (1983). Our Supreme Court has held:
Defendant makes no argument that the issue of whether Defendant took advantage of the victim's old age should have been determined by the jury, pursuant to Blakely and its progeny. We therefore do not address this issue.
There are at least two ways in which a defendant may take advantage of the age of his victim. First, he may "target" the victim because of the victim's age, knowing that his chances of success are greater where the victim is very young or very old. Or the defendant may take advantage of the victim's age during the actual commission of a crime against the person of the victim, or in the victim's presence, knowing that the victim, by reason of age, is unlikely to effectively intervene or defend himself. In either case, the defendant's culpability is increased.
State v. Thompson, 318 N.C. 395, 398, 348 S.E.2d 798, 800 (1986).
Defendant argues that it cannot "be said that Defendant targeted . . . [the victim] any more than did the defendants in Skinner and Ledford." We disagree. We first note that, in Skinner, the trial court found that the defendant did in fact take advantage of the victim and found the victim's being "very old" an aggravating factor as to charges of both larceny and assault. Skinner, 162 N.C. App. at 435, 590 S.E.2d at 879. While our Court held that it was error to apply this aggravating factor to larceny, we upheld the factor as applied to the assault charge. Id. at 438, 590 S.E.2d at 881.
In the case before us, the evidence tended to show the victim was ninety years old and lived alone. Defendant had previously robbed the victim and was therefore aware of the victim's age, her living situation, the layout of her house, and the location where the victim kept her purse. Defendant came to the victim's door, knocked on it, and forcefully pushed the door open against the victim's resistance. Defendant then dragged the victim through the house, stole her money, and threw her onto the floor. The victim suffered several injuries, including broken bones, and required extensive recovery time. We find that these facts are sufficient to support a finding that Defendant took advantage of the victim's age by either (1) specifically targeting the victim because of her age or (2) knowing that the victim would be unable to effectively defend herself, or both. See Skinner, 162 N.C. App. at 438, 590 S.E.2d at 881; see also State v. Distance, 163 N.C. App. 711, 717-19, 594 S.E.2d 221, 226-27 (2004). The trial court did not err in its sentencing of Defendant.
No error.
Judges STEELMAN and BEASLEY concur.
Report per Rule 30(e).