*1 OF APPEALS Thompson 25-2-312(3), warranty statutory prac under G.S. and unfair trade why statutory warranty was already tices. We have discussed case, on this was in this directed verdict claim inapplicable statute, practices, As to the claim of unfair trade appropriate. 75-1.(a), competition “Unfair methods of in or af provides: G.S. commerce, or in or fecting practices unfair or acts deceptive commerce, A is unfair are declared unlawful.” affecting immoral, it is public when or when policy it offends established unethical, substantially unscrupulous, or oppressive, injurious Co., 300 v. Phoenix Insurance consumers. Johnson Mutual Life evidence, taken appellants’ light true in the most favorable to appellants, and viewed anything did which offended Thompson shows no evidence that immoral, unethical, oppressive, unscrupulous, or was public policy injurious. Thompson deceptive contend that Appellants оr said filled his blank on the contract which name relied any appellants Absent read it or “architect.” indication to be an or any way it in could not find this unfair Moreover, verdict, Sid- their found that deceptive act. infringement, so error of diqui responsibility had assumed issue of unfair prac court trade submitting Hendricks, 733, 161 Hеndricks v. tices was harmless. See S.E. 2d assign- carefully remaining have reviewed appellants’ and find them without merit. ments of error to be No error. Eagles WEBB concur.
Judges HARRIS THOMPSON NORTH CAROLINA v. GEORGE STATE OF No. 8227SC963 1983) (Filed May of continuance 91.7— absence of witness —denial 1. Criminal Law alibi motion contin- for a court not err the denial The trial did no sub- unavailability out-of-state witness where of an uance because witness, filed and defendant poena for the had been issued attendance *2 showing no affidavits which the witness would have offered at object § 2. Criminal Law 163— failure to instructions —absence instruc- tion conference Although judge the better would be for thе trial to hold a in- pursuant struction conference to Rule 21 of the General Rules of Practice for Courts, conference, Superior and District the lack of a one is not re- where quested, timely objection will not excuse a defendant’s failure to make a 10(b)(2). by required as finding Criminal aggravation 3. Law 138— еrroneous hear- —new ing judge making finding When a imposes errs in sentence, prison term in excess of the case entire must be sentencing hearing. remanded for a new § robbery aggravating 4. Criminal pecuniary Law 138— armed — factors — gain deadly weapon by codefendant —use imposing robbery, In a sentence fоr armed the trial court erred aggravating gain pecuniary factors that the offense was committed for deadly weapon that a codefendant was with or armed used a at the time of the crime, since such factors of the constituted elements crime for which defendant 15A-1340.4(a)(l). being was sentenсed. G.S. § aggravating prior sufficiency 5. Criminal Law 138— factor — convictions — evidence properly aggravating The trial court found as an factor that defendant prior punishable by had convictions for criminal offenses more than 60 confinement where defendant’s record of convictions was read into the by attorney sentencing hearing record the district at the attorney. aggravating by 6. Criminal Law 138— factor —untruthfulness properly The trial court found as an circumstance that defendant lied on police trial and in his statement probative since a defendant’s truthfulness under oath is of his attitudes toward is, therefore, society prospects and his for rehabilitation and relevant 15A-1340.3. G.S. Judge concurring in the result. Becton APPEAL by from Thornburg, Judge. Judgment Court, entered 5 1982 in Superior County. March CLEVELAND Appeals Heard 10 March 1983. Court Defendant charged with and convicted of armed in violation of 14-87. From judgment G.S. and the of a imposition term, twenty-year prison appeals. OF Edmisten, Attorney General Assistant General
Attorney Grayson Kelley, G. State. Stein, Adam Assistant Appellate Defender Petersen, Glover, Ann B. and James R.
Defender for defendant- appellant. HILL, Judge. Defendant first argues erred in denying unavailability
his motion for continuance because of thе
of an alibi
rule,
witness. As a general
grant
or denial of a motion for
*3
is in the
continuance
sound discretion of the trial
Never
judge.
theless,
since
pro
defendant contends that
the court’s action
of
right
hibited the exercise
his
to confront his accusers and
Constitutions,
witnesses as guaranteed
the Federal and State
the
question presented
one of law and thus is reviewable on ap
(1975).
Smathers,
See State v.
214 S.E.
peal.
N.C.
grant
The failure to
a motion for continuance will
result
new trial
where defendant
shows that
the denial was er-
Robinson,
he was prejudiced thereby.
roneous and
State v.
(1973).
71,
Defendant was arrested for armed on 4 December 1981 and indicted for on January the same offense 1982. Defense counsel first argued his motion to continue the just trial jury before selection on 3 offering March as grounds the stаte, absence defendant’s brother who lived in another as well as the absence of a sister who later No appeared. subpoena had witness, been issued for the attendance of out-of-state circum- ordinarily will stance that grounds eradicate for a continuance. Lee, 293 N.C. No аffidavits were to support filed the motion. Although testimony on the prob- able location of the absent witness was presented by mother, and his we find that defendant has shown prejudice no since the record lacks specific evidence of the Eatman, witness would have offered at trial. See Statе v. 34 665, This assignment of error is over- ruled. Defendant contends committed prejudicial er to jury by jury the charge possibly misleading
ror in his establishing proof carried the burden should be to raise argues his alibi. Defendant first that he allowed error even at trial he made no ob though this claimed on jection the and failed tо additional instructions charge request to the He bases his provided opportunity. argument hold a instructions judge’s concerning failure to conference close of evidence as directed Rule 21 of the General at the superior of Practice for the and district courts. Rules disagree. 10(b)(2) provides, of the Rules Procedure Appellate
pertinent part, as follows: any charge may assign portion jury
No as error party objects thereto before or omission therefrom unless he verdict, distinctly that to stating retires consider its jury to objection; of his objects grounds provided, which he and the objec- given party make opportunity and, hearing request tion out .... out of of the party, said, “Rule recently North has Supreme Carolina Court 10(b)(2) objection Procedure requiring of our Rules of merely mandatory jury retires is before the *4 258, 263, 393, Fennell, 307 297 S.E. 2d directory.” State v. N.C. (1982). would for the trial 396 the better be Although 21, the to Rule рursuant to hold the instruction conference judge conference, is will not excuse a where one not requested, lack of a as re- timely objection charge to make a the defendant’s failure 10(b)(2). grievous shown so by Rule Unless an error is to be quired rules under necessary to the as allowed suspеnd that it is deemed 2, by are the Rules of the courts bound appellate per- presented matters improperly and no review Procedure er- no “plain the whole record reveals Id. Our review of mitted. impact have would had an in the court’s instructions that ror” —Odom, N.C. State return a verdict. See jury’s guilty the (1983). Mоreover, —, correctly trial judge and that jury charged alibi recapitulated defendant. upon did not rest an alibi proving burden entirety, possibili- see no reasonable in its we Reading 42
ty in any way misinformed or misled on this aspect of the case.
[3] In his final assignment error, defendant contends that trial judge twenty-year еrred in a imposing prison sentence which exceeds the years sentence of fourteen 199, with a firearm. 59 See State v. 296 S.E. Leeper, App. N.C. 2d 7, (1982). denied, disc. rev. 307 218 N.C. Under the may Fair a judge term impose prison exceeds the presumptive sentence if he specifically lists in the record each matter in aggravation and mitigation finds that the factors in aggravation outweigh the factors in mitigation. by G.S. 15A-1340.4.These factors must be proved the preponder reasonably ance of the evidence and be related to the purposes of Balancing Id. the factors is a matter within the trial court’s discretion and will not be disturbed on if there Davis, in support the record for the court’s decision. State v. When, however, S.E. 2d 658 a trial judge errs in making and also imposes a sentence, prison term in excess of the presumptive the entire case must be remanded for a new sentencing hearing. State v. Ahearn, S.E. 2d 689 (1) The trial found the judge following factors aggravation: (2) the offense was committed for pecuniary gain; a co-defendant crime; deadly was armed with or weapon used a at the time of the (3)the defendant had a conviction or convictions for criminal (4) confinement; offenses punishable more than delibеrately presented, during the course of the “[t]he trial, evidence which he knew to be false about his day deliberately false evidence con- question presented obviously the statement attributed to him and found cerning to be false.” Since we find that erred in finding the first obliged we are to remand this case fоr aggravation, two factors tried and convicted of the armed resentencing. Defendant was 15A-1340.4(a)(l) robbery of a store. G.S. jewelry provides “[ejvidence necessary to an element of the offense prove *5 . . . .” be used to factor Under the facts prove case, is in pecuniary gain of this the commission of the crime for may herent in the offense and not be considered an aggravating OF Likewise, at the time deadly weapon of a proof of the use factor. an element necessary is to establish essential crime used to may and be which was tried crime for aggravation. prove a factor We find no error in the last two aggravating factors. Defend carrying for offenses sentences of convictions
ant’s record read into the record confinement was more than attorney in the sentencing hearing at district to attorney. objected Since defendant neither defendant’s correctness, its questioned nor establishing his record means to used any objection the method to waived has prove Massey, his convictions. State v. (1982). hold, addition, by the the fourth [6] court, ie., trial and his
that defendant lied on police, acceptable to the is statement of the statute and reasonably purposes it is because related deter provides general the rehabilitation the offender under oath criminal A defendant’s truthfulness rent behavior. society and his for probative prospects of his attitudes toward relevant See G.S. and is therefore rehabilitation 15A-1340.3; Grayson, 438 U.S. United States S.Ct. Cf. L.Ed. 2d 582 the Fаir In under pronouncing judgment which is con- look first trial at the defendant court must To permit of a the truth. The aim trial is to seek find victed. during a reprisal to commit without fear of perjury a defendant system destroy our lead to erroneous verdicts and trial could oath would become mean- sanctity of an jurisprudеnce; for at perjury could be tried ingless. The fact the defendant in the face of pales trial before another another the initial trial. the immediate need truth at of incurring no merit the fear argument We find testifying. There defendants from greater punishment deter States v. right perjury. to commit United protected no con- sentencing judge’s To that a the extent Grayson, supra. that defend- of a truthfulness would deter sideration entirely permissible. effect is testifying falsely, the ant from *6 44 COURT OF APPEALS Thompson Setzer, We are aware of State v. App. S.E. (1983) in which this Court remanded for resentencing that trial grounds judge improperly found as an aggravating factor that the defendant lied on voir dire. That case involved testimony contradicted at a voir dire hearing which is a far cry from finding of perjured testimony before a judge jury.
We conclude that sentencing of a defendant must include con- sideration facts that arose in the the case. In sо doing, we conclude that the sentencing judge’s taking into account that lied at trial is consistent with purposes uniform and with sentencing punitive rehabilitative purposes of in system our sentencing jurisprudence. assignment This overruled. we
Because find error in the first two aggravating factors listed the trial judge, this case is rеmanded for in resentencing accordance with this opinion.
Remanded.
Judge concurs. Arnold
Judge Becton concurs in the result. Judge concurring the result. Becton I concur decision remand this case so that defendant however, can be resentenced. I write this concurring opinion, because I an additional basis exists for a resentenc- is, ing hearing the trial court erred in ag —that factor that lied gravating during stand Setzer, holding rationale (1983) Setter, impels conclusion. In this Court said at 6 of the p. slip opinion:
If, case in which testifies and found the court then guilty, find as an aggravating factor testify did truthfully, virtually the defendant it would repeal presumptive sentencing large cases. percentage carry ... In order out ... we a judge hold that cannot find as an testify the defendant did not evi- truthfully when the Presbyterian In re Southview Church dence of his untruthfulness is his contradicted at a added.) voir dire or hearing (Emphasis *7 reasons, fundamental, legal policy equally equally Other sоund, was decided persuasive, suggest Setzer equally unfair, First, fundamentally context correctly. it would be Act, as of our Fair to increase a defendant’s sentence Sentencing of a form of for a new crime without benefit punishment (perjury) Second, greater punishment or trial. fear of a could deter givеn even the defendant who would have truthful Third, in the Fair our testifying. adopting Sentencing from fitting of legislature rejected prevalent sentencing philosophy statutory through long to the offender maximum punishment judicial terms and broad discretion and adopted to the crime philosophy fitting punishment application defendant, Therefore, if suggested by sentences. eliminating Act its goal the Fair to achieve myriad of fac- it must be read to limit the disparate sentencing, punish- appropriate fitting tors that were considered State, v. Juneby ment to the offender was the watchword. See (Alaska 1982). Fourth, although perjury 641 P. 2d rehаbilitation, it for does poor prospects be an indication will necessarily improve that a sentence longer indicate chances. Setzer, reasons, I
For these and on the basis State the trial court erred that defendant lied PRESBYTERIAN THE APPEAL OF SOUTHVIEW
IN THE MATTER OF: BY THE ITS EXEMPTION THE DENIAL OF CLAIM FOR FROM CHURCH EQUALIZATION AND REVIEW FOR 1981 COUNTY BOARD OF No. 8210PTC547 1983) (Filed May for property and Scout activities —use used fоr recreation Taxation 22.1— taxation religious purposes exemption from ad valorem — is used portion petitioner’s acre tract of land 20.56 A 15.56 acre peti- necessary use for the convenient religious purposes, is reasonable is, therefore, acres, remaining buildings five located on the tioner’s church