State v. Setzer , 61 N.C. App. 500 ( 1983 )

301 S.E.2d 107 (1983)

STATE of North Carolina
v.
Cyril Rodney SETZER.

No. 8227SC700.

Court of Appeals of North Carolina.

April 5, 1983.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Jane P. Gray, Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender Marc D. Towler, Raleigh, for defendant-appellant.

WEBB, Judge.

The defendant argues under one assignment of error that the indictment on which he was tried is fatally defective. The indictment reads as follows:

"THE JURORS FOR THE STATE UPON THEIR OATH PRESENT that on or about the 17th day of October, 1981, in Cleveland County Cyril Rodney Setzer unlawfully, wilfully, and feloniously having in his possession and with the use and threatened use of firearms, and other dangerous weapons, implements, and means, to wit: a pistol whereby the life of Sheila Chapman was endangered and threatened, did then and there unlawfully, wilfully, forcibly, violently and feloniously take, steal, and carry away Two Hundred and Twelve ($212.00) Dollars in United States Currency of the value of Two Hundred and Twelve ($212.00) dollars, from the presence, person, place of business, and residence of The Pantry, Inc., Store # 257, a corporation, located on Fallston Road at the intersection of Highway 18 and Highway 180 North of Shelby, North Carolina."

The defendant contends the allegation in the indictment that the property was taken from "the person, presence, place of business and residence" of a corporation named The Pantry, Inc. does not sufficiently allege the property was taken from the person or presence of any person. He says the failure to allege this element of armed robbery renders the indictment defective.

We believe the indictment is sufficient. It charges that by use of a pistol whereby the life of Sheila Chapman was endangered and threatened, the defendant took personal property from The Pantry, Inc. We believe this sufficiently alleges the property was taken from Sheila Chapman. Corporations act through agents, and we believe it is clear from this allegation that Sheila Chapman was the person in control of the corporation's property and from whose possession the property was taken. See State v. Rankin, 55 N.C.App. 478, 286 S.E.2d 119, cert. denied, 305 N.C. 590, 292 S.E.2d 11 (1982).

The defendant also assigns error to the charge. In recapitulating the evidence, the court did not say that there was evidence that the gun used in the robbery was a plastic gun. The defendant contends this inhibited the jury from finding the defendant guilty of common law robbery. There is nothing in the record to show the defendant objected to the charge before the jury retired, although the defendant was given an opportunity to do so. Rule 10(b)(2) of the Rules of Appellate Procedure (effective 10 October 1981) provides in part:

"No party may assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection; provided, that opportunity was given to the party to make the objection out of the hearing of the jury and, on request of any party, out of the presence of the jury."

Since no objection to the charge was made before the jury retired, the defendant cannot assign error to the charge.

The defendant assigns error, in which the State concurs, to the sentence imposed. Armed robbery is a Class D felony with a requirement that the defendant receive a sentence of at least 14 years. See G.S. 14-87 and State v. Morris, 59 N.C.App. 157, 296 S.E.2d 309 (1982), cert. denied, 307 N.C. 471, 299 S.E.2d 227 (1983). The court found four aggravating factors and three mitigating factors and imposed a sentence of 20 years. The aggravating factors which the court found were as follows: (1) the defendant induced others to participate in the commission of the offense or occupied a position of leadership or dominance of other participants, to wit: his wife; (2) the offense was committed for hire or pecuniary gain; (3) the defendant was armed or used a deadly weapon at the time of the crime; and (4) the defendant deliberately lied to the court concerning the circumstances of the taking of a statement concerning his participation in the offense.

The evidence supporting the first aggravating factor consisted of his wife's testimony on cross-examination. She testified she had signed a statement in which she said she had placed gauze on the defendant's face, looked with him for a place to rob, and waited for him in the automobile while he went into The Pantry. This is some evidence that she acted in concert with her husband. We do not believe it is evidence that the defendant induced his wife to participate in the crime or occupied a position of leadership or dominance over her unless we presume a man controls the actions of his wife. Such a presumption against Mr. Bumble brought from him possibly the most colorful denunciation of the law in our literature. I do not believe we should make such a presumption here. We hold the evidence was not sufficient to support a finding of this aggravating factor.

As to the second aggravating factor, there is no evidence the defendant committed the crime for hire. The evidence that he received money was necessary to prove an element of armed robbery; that he took property from The Pantry. It cannot be used to prove he committed the crime for pecuniary gain. See State v. Thompson, ___ N.C.App. ___, 300 S.E.2d 29 (1983). Without this, there is not sufficient evidence that the defendant committed the robbery for pecuniary gain to support this finding of an aggravating factor.

It was also error to find as an aggravating factor that the defendant was armed or used a deadly weapon at the time of the crime. The evidence that the defendant was armed and used a deadly weapon was used to prove an element of the crime. See G.S. 15A-1340.4(a)(1).

The fourth aggravating factor found by the court is "the defendant deliberately lied to the Court concerning the circumstances of the taking of a statement concerning his participation in the offense." The court conducted a voir dire hearing during the trial to determine the admissibility of the defendant's statement to Mr. Woodard. The defendant testified at this hearing that the statement was coerced. Mr. Woodard testified the statement was not coerced. The court accepted Mr. Woodard's testimony and allowed the statement into evidence. There is no other evidence in the record as to the truthfulness of the defendant's testimony.

The fourth aggravating factor found by the court is not one of those listed under G.S. 15A-1340.4. This section does not require that only aggravating or mitigating factors listed in the section be considered. The court may use any factors which are supported by the preponderance of the evidence and are reasonably related to the purposes of sentencing. We do not believe, based on the evidence in this case, we should hold that the fourth factor could have been considered in imposing a sentence. If, in any case in which the defendant testifies and is found guilty, the court may then find as an aggravating factor that the defendant did not testify truthfully, it would virtually repeal presumptive sentencing in a large percentage of cases. This the courts cannot do. In order to carry out presumptive sentencing as mandated by the General Assembly, we hold that a judge cannot find as an aggravating factor that the defendant did not testify truthfully when the only evidence of his untruthfulness is his contradicted testimony at a voir dire hearing or during the trial.

We find no error in the trial. We reverse the sentence imposed and remand for a new hearing as to the sentence to be imposed.

Reversed and remanded.

BECTON and PHILLIPS, JJ., concur.