NO. COA01-1345
NORTH CAROLINA COURT OF APPEALS
Filed: 1 October 2002
STATE OF NORTH CAROLINA
v.
SHAWN DELL KEMP
STATE OF NORTH CAROLINA
v.
EDWARD EARL MCDOWELL
Appeal by defendants from judgments entered 3 April 2001 by
Judge Gregory A. Weeks in Superior Court, Bladen County.
Heard in
the Court of Appeals 14 August 2002.
Attorney General Roy Cooper, by Brian
Assistant Attorney General, for the State.
L.
Blankenship,
Attorney General Roy Cooper, by John J. Aldridge,
Special Deputy Attorney General, for the State.
III,
Paul Pooley for defendant Shawn Dell Kemp.
Appellate Defender Staples Hughes, by Constance E. Widenhouse,
Assistant Appellate Defender, for defendant Edward Earl
McDowell.
McGEE, Judge.
Shawn Dell Kemp (Kemp) was indicted on 19 January 2000 for
conspiracy to commit armed robbery with a dangerous weapon. Edward
Earl McDowell, Jr. (McDowell) was indicted 6 December 1999 for
conspiracy to commit robbery with a dangerous weapon, robbery with
a dangerous weapon, and possession of a firearm by a convicted
felon.
The evidence presented by the State at trial tended to show
-2the following.
Sammie Ripley (Ripley) testified that defendants Kemp and
McDowell, along with Timothy Rhodes (Rhodes), Antoine Barr (Barr),
and Ripley were on the porch of Kemp's mother's house on the
morning of 3 August 1999.
conversation
and
McDowell
The topic of robbery was raised in the
suggested
they
rob
Felix
Gillespie
(Gillespie), whom McDowell had purchased drugs from the previous
day.
Kemp did not verbally respond to McDowell's statement, but
Ripley testified that "everyone agreed to it."
Kemp, McDowell, Ripley, and Rhodes got into McDowell's car and
drove to Gillespie's house.
After finding that Gillespie was not
at home, the four men drank beer while waiting at a friend's house
across the road.
the block.
The group returned to McDowell's car and circled
Rhodes said Kemp and Ripley would enter Gillespie's
house and rob him, but Kemp stated that Gillespie knew him.
McDowell then agreed to enter the house instead of Kemp.
Kemp and
Rhodes remained in the vehicle while Ripley and McDowell forced
their way into the trailer where Gillespie was staying.
Ripley pointed a gun at Gillespie and ordered him to lie on
the floor.
McDowell placed a gun to the head of Brandon Williams
(Williams), Gillespie's son.
Ripley took Gillespie's wallet and
then walked him into the back room in search of crack cocaine.
Gillespie gave Ripley a bag containing the drugs.
a gunshot from another room in the trailer.
Gillespie heard
A struggle ensued
between Ripley and Gillespie during which Gillespie was shot in the
shoulder.
Ripley ran back through the trailer and exited with
-3Gillespie in pursuit.
They saw Williams lying face down on the
floor with a puddle of blood in his back.
Gillespie fired several
shots at Ripley as they ran out of the trailer.
McDowell and Ripley flagged down the car being driven by
Rhodes with Kemp as a passenger.
The group returned to Kemp's
mother's house and divided the money and drugs.
portion
of
the
drugs
Gillespie's wallet.
and
a
twenty
dollar
Kemp received a
bill
taken
from
McDowell received a portion of the money and
the drugs.
Williams' mother testified that prior to her son being shot,
he was an honor student, played football, and planned to attend
college.
He is now permanently unable to walk, uses a feeding
tube, and requires twenty-four hour nursing care. She testified he
can no longer speak but communicates by smiling, blinking, or
raising his legs.
Kemp moved to dismiss the charges against him at the close of
the
State's
evidence,
which
was
denied
Defendants did not present evidence.
by
the
trial
court.
Kemp renewed his motion to
dismiss the charges, which was again denied by the trial court.
The jury found Kemp guilty of conspiracy to commit armed robbery
and the trial court sentenced him to a minimum of twenty months and
a maximum of thirty-three months in prison.
McDowell moved to
dismiss the charges against him at the close of all the evidence,
which was denied by the trial court.
The jury found McDowell
guilty of conspiracy to commit robbery with a firearm, robbery with
a firearm, and possession of a firearm by a convicted felon.
The
-4trial court sentenced McDowell to a minimum of forty-six months and
a maximum of sixty-five months in prison for conspiracy to commit
robbery with a firearm, a minimum of 117 months and a maximum of
150 months in prison for robbery with a firearm, and a minimum of
twenty months and a maximum of twenty-four months in prison for
possession of a firearm by a convicted felon.
Both defendants
appeal and we separately address their arguments.
I.
Shawn Dell Kemp
Kemp argues that the trial court erred in denying his motions
to dismiss the charges at the close of the State's evidence and at
the close of all the evidence.
Kemp contends that evidence of his
participation in the conspiracy to commit armed robbery was legally
insufficient to support the charge.
Upon review of a denial of a motion to dismiss, we must
determine "whether there is substantial evidence:
essential
element
of
the
offense
charged
.
.
1) of each
.
and
2)
of
defendant's being the perpetrator of the offense. If each of these
requirements are satisfied, the motion is properly denied."
State
v. Richardson, 308 N.C. 470, 474, 302 S.E.2d 799, 802 (1983); see
also State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990);
State v. Duncan, 136 N.C. App. 515, 520, 524 S.E.2d 808, 811
(2000). Substantial evidence is defined as "such relevant evidence
as
a
reasonable
conclusion."
169 (1980).
mind
might
accept
as
adequate
to
support
a
State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164,
All evidence is to be viewed in a light most favorable
to the State and the State must have the benefit of all reasonable
-5inferences from the evidence.
See State v. Baker, 338 N.C. 526,
558, 451 S.E.2d 574, 593 (1994).
"A criminal conspiracy is an agreement between two or more
people to do an unlawful act or to do a lawful act in an unlawful
manner.
In order to prove conspiracy, the State need not prove an
express agreement; evidence tending to show a mutual, implied
understanding will suffice."
State v. Morgan, 329 N.C. 654, 658,
406 S.E.2d 833, 835 (1991) (citations omitted); see also State v.
Martinez, 149 N.C. App. 553, 561 S.E.2d 528 (2002).
This evidence
may be circumstantial or inferred from the defendant's behavior.
See State v. Choppy, 141 N.C. App. 32, 39, 539 S.E.2d 44, 49
(2000), disc. review denied, 353 N.C. 384, 547 S.E.2d 817 (2001).
The crime of conspiracy does not require an overt act for its
completion; the agreement itself is the crime.
State v. Bindyke,
288 N.C. 608, 616, 220 S.E.2d 521, 526 (1975).
existence of a conspiracy is a jury question."
"Ordinarily the
State v. Gary, 78
N.C. App. 29, 35, 337 S.E.2d 70, 74 (1985), disc. review denied,
316 N.C. 197, 341 S.E.2d 586 (1986).
In the case before us, Kemp concedes that the State presented
sufficient evidence to withstand a motion to dismiss regarding the
existence of a conspiracy.
However, Kemp argues that the evidence
was insufficient to demonstrate that he was a member of that
conspiracy.
The evidence presented at trial showed that Kemp was present
when the idea to rob Gillespie was presented to the group by
McDowell on the porch of Kemp's mother's house.
Ripley further
-6testified that "everybody agreed to it."
After the agreement was
reached, Kemp got into the vehicle with the others and rode to
Gillespie's house.
Trial testimony further showed that Rhodes instructed Kemp and
Ripley to enter the house and rob Gillespie.
Rather than denying
a role in the conspiracy, Kemp stated that Gillespie knew him and
therefore he could not enter the trailer.
Kemp remained in the
vehicle with Rhodes and waited for McDowell and Ripley, picking
them up after the robbery. Kemp also received twenty dollars taken
from Gillespie's wallet, along with a portion of the drugs, after
the robbery was completed.
The evidence presented at trial was sufficient to allow a
reasonable mind to support a conclusion that Kemp was a perpetrator
of the conspiracy. The evidence demonstrated that Kemp was present
when "everyone agreed" to the conspiracy, rode with the other
parties to and from Gillespie's house, and received a portion of
the money and drugs taken during the robbery. Accordingly, we find
evidence in the record to satisfy the substantial evidence standard
for denying defendant's motion to dismiss the charge of conspiracy
to commit armed robbery.
We find no error by the trial court and
affirm the trial court's denial of Kemp's motions to dismiss.
II.
Edward Earl McDowell
McDowell first assigns error to the trial court's failure to
exclude
victim
Williams
from
the
courtroom,
contending
that
Williams was incompetent to understand or participate in the
proceedings and his presence unfairly prejudiced the jury against
-7McDowell.
McDowell first argues that Williams' presence in the
courtroom was "functionally equivalent to the presentation of
evidence which defendant was without means to confront or crossexamine."
McDowell states that the jury could simply look at
Williams to determine the extent of his injuries, but that McDowell
was prevented from cross-examining Williams about the injuries he
sustained because Williams did not testify.
We agree with the trial court that Williams' presence in the
courtroom did not constitute the presentation of evidence or its
functional
equivalent.
Williams'
courtroom
presence
for
evidentiary purposes is not reflected in the trial testimony or the
record, nor is there any indication that the State attempted to
utilize his presence for evidentiary purposes.
Furthermore, there
is no indication that the jury based any part of its decision upon
its observance of Williams' physical condition.
McDowell
not
guilty
of
the
charges
felonious assault of Williams.
of
The jury found
attempted
murder
and
These verdicts in McDowell's favor
tend to demonstrate the absence of prejudice caused by Williams'
courtroom presence during trial.
McDowell argues that he was denied the opportunity to confront
and cross-examine Williams because Williams was not called to
testify and was incapable of communicating.
However, McDowell
could have called Williams as a witness and could have questioned
him
about
his
injuries.
While
the
testimony
indicated
that
Williams could not verbally communicate, it did tend to show that
Williams
could
communicate
through
non-verbal
means,
such
as
-8blinking his eyes and lifting his legs.
Thus, McDowell was not
prevented from examining Williams as a result of his injuries and
had sufficient opportunity to confront Williams as a witness if he
wished.
McDowell further argues that, to the extent Williams' presence
was evidence, it should have been excluded because the evidence was
not presented in accordance with the North Carolina Rules of
Evidence.
Additionally, McDowell argues that the prejudicial
effect of the evidence substantially outweighs any probative value
and should have been excluded from evidence.
McDowell cites State
v. Stokes, 528 S.E.2d 430 (S.C. Ct. App. 2000), in support of this
argument.
In Stokes, the South Carolina court ruled that it was
error to admit a child into evidence to demonstrate the injuries
sustained by the child during an assault.
The court reasoned that
submitting the injured child into evidence would "evoke great
sympathy for the victim" and would likely produce a prejudiced
response from the jury.
Id. at 433.
Stokes is clearly distinguishable from the case before us. In
Stokes, the injured child was actually physically presented and
admitted into evidence as an exhibit.
In the case before us,
Williams was neither admitted into evidence as an exhibit nor
tendered as a witness.
He simply observed the trial from the seats
in the courtroom that were open to the general public.
There was
no improper or overly prejudicial evidentiary admission because
Williams' presence was never admitted or utilized as evidence
during the trial.
-9McDowell
also
argues
that
the
trial
court
incorrectly
interpreted the Crime Victims' Rights Act in refusing to exclude
Williams from the courtroom. See N.C. Gen. Stat. § 15A-830 (2001).
McDowell maintains that the Act's provision permitting a legal
guardian to be present in the courtroom in lieu of a physically or
mentally incompetent or minor victim, prohibits the actual victim
from being in the courtroom as well.
This aspect of the Crime
Victims' Rights Act has not been previously addressed by our
appellate
courts
and
we
disagree
with
McDowell's
narrow
interpretation of the statute.
N.C. Gen. Stat. § 15A-841 (2001) provides that
[w]hen a victim is mentally or
incompetent or when the victim is a
victim's rights under this Article
be exercised by the victim's next
legal guardian.
physically
minor, the
. . . may
of kin or
In interpreting statutory language, we must give effect to the
intent of the General Assembly.
Clark v. Sanger Clinic, P.A., 142
N.C. App. 350, 354, 542 S.E.2d 668, 671, disc. review denied, 353
N.C. 450, 548 S.E.2d 524 (2001).
language
of
the
statute
itself
We must primarily rely on the
and
refrain
from
judicial
construction in the absence of ambiguity in the express terms of
the statute.
Id. at 354, 542 S.E.2d at 671-72.
The Crime Victims' Rights Act was designed to safeguard the
rights of victims as they confront the accused through the legal
process.
The statute does not state that the exercise of rights
of a minor or an incompetent by his or her legal guardian exclude
the actual victim from the benefits and rights granted by the
-10statute.
Such a restrictive reading would effectively bar all
minors from observing or participating in proceedings relating to
events in which they were victims.
This is contrary to the spirit
of the Crime Victims' Rights Act and was not reflected by the
language used by the General Assembly.
The statute should not be
construed to place the victim's rights in competition with the
guardian's ability to exercise those rights in the event the victim
is
rendered
incapable
of
exercising
them.
Instead,
the
guardianship provision should be viewed as supplemental to the
victim's rights in order to ensure that the victim's enjoyment of
his
or
her
rights
under
the
Act
is
not
hindered
by
any
incompetency.
In the present case, Williams, the victim, was a minor and
physically incompetent to exercise some of his rights under the
Crime
Victims'
Rights
Act,
thereby
permitting
his
mother
to
properly exercise those rights on his behalf. However, there is no
evidence that Williams was incapable of observing the trial due to
his physical incompetency or any mental incapacity and he exercised
this right by attending the trial proceedings.
His mother's
attendance alongside him is inconsequential to the issue raised by
McDowell.
The fact that she may have exercised some of Williams'
rights during the process did not preclude Williams from attending
the trial under the terms of the Crime Victims' Rights Act.
Williams' presence at trial was proper, whether the right was
asserted primarily on his own or by his mother.
The language and purpose of the Act requires us to give a more
-11expansive reading to the statute than proposed by McDowell. He has
failed to demonstrate error in the trial court's decision or any
prejudice resulting from Williams' presence in the courtroom.
The
trial court did not err in refusing to exclude victim Brandon
Williams from the courtroom.
McDowell next argues the trial court erred in sentencing him
in the aggravated range for conspiracy based on a finding that
McDowell induced others to participate in the crime.
McDowell
argues that finding that he induced others to participate in the
offense as an aggravating factor is erroneous as a matter of law
because it is based on the same evidence used to support his
conspiracy conviction.
Under the Structured Sentencing Act, the trial court must
consider evidence of aggravating and mitigating factors and may
then impose a sentence in its discretion.
1340.16(a)
(2001).
The
State
bears
N.C. Gen. Stat. § 15Athe
burden
of
aggravating factors by a preponderance of the evidence.
proving
Id.
A
trial court's weighing of mitigating and aggravating factors will
not be disturbed on appeal absent a showing that there was an abuse
of discretion.
See State v. Wampler, 145 N.C. App. 127, 549 S.E.2d
563 (2001); see also State v. Daniels, 319 N.C. 452, 355 S.E.2d 136
(1987).
"Evidence necessary to prove an element of the offense
shall not be used to prove any factor in aggravation, and the same
item of evidence shall not be used to prove more than one factor in
aggravation."
N.C.G.S. § 15A-1340.16(d); see State v. Holt, 144
N.C. App. 112, 547 S.E.2d 148 (2001).
In State v. SanMiguel, 74
-12N.C.
App.
276,
328
S.E.2d
326
(1985),
our
Court
upheld
the
aggravated sentence of a defendant who pled guilty to conspiracy
and was found by the trial court during sentencing to have induced
others to participate in the conspiracy.
a
conspiracy
"inducement
is
to
an
agreement
enter
agreement itself."
an
to
do
agreement
Our Court reasoned that
a
criminal
necessarily
Id. at 281, 328 S.E.2d at 330.
act,
while
precedes
the
The inducement
of others is not an element of conspiracy and may be found
independently of the conspiracy.
In the present case, testimony was presented that McDowell
initiated the idea of robbing Gillespie.
a
contemplated
robbery
McDowell's suggestion.
or
of
There is no evidence of
targeting
Gillespie
outside
of
McDowell's inducement of others to join in
the offense preceded the formation of the actual conspiracy and is
not an element thereof.
The evidence presented at trial is
sufficient to prove the aggravating factor by a preponderance of
the evidence.
finding
an
The trial court did not abuse its discretion by
aggravated
factor
of
inducement
and
imposing
an
aggravated sentence for the charge of conspiracy.
McDowell next argues that the trial court erred in finding as
an aggravating factor that he induced others to participate in the
offense of possession of a firearm by a felon because (1) the
evidence in support of this factor was the same evidence used to
support the conspiracy conviction and (2) this aggravating factor
was inapplicable to the facts in this case.
An aggravating factor
should be found by the trial court only if the defendant behaved in
-13a manner that increases his culpability for the offense.
Bates, 76 N.C. App. 676, 334 S.E.2d 73 (1985).
State v.
The aggravating
factor must be proven by a preponderance of the evidence and the
sentence imposed is within the discretion of the trial court.
N.C.G.S. § 15A-1340.16(a).
In the case before us, the trial court found an aggravating
factor based on inducement of others to participate in the offense
of possession of a firearm by a felon.
Prior to the formation of
the conspiracy, there is no evidence that McDowell possessed a
firearm on his own accord.
McDowell obtained a firearm from
Rhodes, one of the co-conspirators, who also provided a gun to
Ripley.
As previously discussed, McDowell initiated the idea of
robbing Gillespie and convinced the others to participate in the
conspiracy, including Rhodes.
The evidence is sufficient to prove
the aggravating factor by a preponderance of the evidence.
The
trial court did not abuse its discretion by finding an aggravated
factor of inducement and imposing an aggravated sentence for the
charge of possession of a firearm by a felon.
Lastly, McDowell argues the trial court erred in not finding
a statutory mitigating factor which was supported by reliable and
uncontroverted evidence.
A trial court must consider evidence of
mitigating factors and may depart from the presumptive range of
sentencing in its discretion.
N.C.G.S. § 15A-1340.16(a).
The
defendant bears the burden of proving mitigating circumstances by
a preponderance of the evidence.
Id.; State v. Noffsinger, 137
N.C. App. 418, 429, 528 S.E.2d 605, 612 (2000).
"A sentencing
-14judge must find a statutory mitigating sentence factor if it is
supported by a preponderance of the evidence." State v. Crisp, 126
N.C. 30, 41, 483 S.E.2d 462, 469, disc. review denied and appeal
dismissed, 346 N.C. 284, 487 S.E.2d 559 (1997).
A mitigating
factor
substantial,
is
proven
"'uncontradicted[,]
credibility.'"
when
and
the
there
evidence
is
no
is
reason
to
doubt
its
State v. Truesdale, 123 N.C. App. 639, 643, 473
S.E.2d 670, 672 (1996) (quoting State v. Hood, 332 N.C. 611, 623,
422 S.E.2d 679, 685 (1992)); see also State v. Maness, 321 N.C.
454, 364 S.E.2d 349 (1988).
The trial court has wide latitude in
determining
of
the
existence
mitigating
factors.
State
v.
Heatwole, 333 N.C. 156, 423 S.E.2d 735 (1992).
McDowell argues that the trial court erred in not finding the
mitigating factor of McDowell having a "support system in the
community."
See N.C.G.S. § 15A-1340.16(e)(18).
Trial testimony
offered by McDowell tended to show that he took care of his family,
supported his minor child, and had a good reputation in the
community.
Thus, the trial court correctly found the mitigating
factors of family support and positive employment history.
While
McDowell's sister-in-law testified that there was a large support
structure available to McDowell in the community, the evidence did
not demonstrate that he was engaged in this support structure or
intended to utilize it.
Furthermore, no evidence was presented
indicating what this support structure consisted of.
Testimony
demonstrating the existence of a large family in the community and
support of that family alone is insufficient to demonstrate the
-15separate mitigating factor of a community support system.
One
witness' conclusory testimony as to the existence of a support
structure is unsubstantial and insufficient to clearly establish
the factor and does not compel a finding of the mitigating factor.
See Maness, 321 N.C. at 463, 364 S.E.2d at 353-54.
The trial court
did not err in refusing to find the mitigating factor.
No error in the trial of Shawn Dell Kemp.
No error in the trial of Edward Earl McDowell.
Judges McCULLOUGH and BRYANT concur.
