State v. Little , 163 N.C. App. 235 ( 2004 )

ELMORE, Judge,

concurring in part and dissenting in part.

I agree with the majority’s conclusions regarding defendant’s first three assignments of error, and accordingly concur with the majority’s holding of no error in the guilt-innocence phase of defendant’s trial. However, because I conclude that the trial court erred in finding as a statutory aggravating factor that “defendant joined with more than one other person in committing the offense and was not charged with committing a conspiracy” pursuant to N.C. Gen. Stat. § 15A-1340.16(d)(2) (2003), I would vacate defendant’s sentence and remand to the trial court for re-sentencing from the presumptive range.

The majority correctly states that “the plain language of [N.C. Gen. Stat. § 15A-1340.16(d)(2)] requires the participation of defendant and at least two others” in order to find the existence of an aggravating factor under this statute, and that “[t]he State bears the burden [under N.C. Gen. Stat. § 15A-1340.16(a)] of proving by a preponderance of the evidence that the aggravating factor exists.” It is clear from the uncontroverted trial testimony that defendant, accompanied by only one other person, his father, entered the victims’ apartment on the night in question and assaulted Lada and Lee. The testimony offered at trial tending to show that defendant sold drugs for Karen and had previously accompanied Karen to the victims’ apartment to retrieve money from them, and that defendant and Karen had received death threats from Karen’s dealer, gives rise to mere speculation that either Karen, Karen’s dealer, or both joined with defendant and his father in the commission of these crimes. Because I find nothing in the record to indicate that a third person was involved in any aspect of the burglary and assault perpetrated by defendant, and joined in by defendant’s father, on the night in question, I would vacate defendant’s sentence and remand to the trial court for re-sentencing from the presumptive range. See State v. Moses, 154 N.C. App. 332, 340, 572 S.E.2d 223, 229 (2002) (aggravated sentence imposed pursuant to N.C. Gen. Stat. § 15A-1340.16(d)(2) vacated, and remand for re-sentencing appropriate, where no evidence presented at trial of anyone involved in the crimes other than defendant and accomplice).