State v. Styles , 93 N.C. App. 596 ( 1989 )

Judge COZORT

concurring in part and dissenting in part.

I concur with all of the majority opinion, except for that portion which remands the case for resentencing as to the crime of first-degree burglary.

In my opinion the trial court properly found as an aggravating factor that the victim, Mrs. Isenhour, was very old. I believe the majority has misread the standard as established by the Supreme Court opinions. In State v. Hines, 314 N.C. 522, 335 S.E. 2d 6 (1985), the Supreme Court remanded for resentencing in a burglary case where the aggravating factor of the victim being very old was based solely on evidence that the victim was 62 years old. The Supreme Court said:

Stewart’s age, by itself, does not demonstrate that he was more vulnerable to the assault at issue in this case than a younger person would have been. Many sixty-two-year-old men lead robust, active lives. Paul Stewart was a brickmason until the five years preceding his death. In those years he maintained a lively business selling drinks. He occasionally went fishing. There was no evidence he was in poor health or disabled. ... In short, we do not believe the mere fact that Paul Stewart was sixty-two years old would support finding in this case as an aggravating factor that he was “very old.”

Id. at 526, 335 S.E. 2d at 8. The Supreme Court further stated:

In cases . . . involving victims near the beginning or end of the age spectrum, the prosecution may establish vulnerability merely by relating the victim’s age and the crime committed.

Id. (emphasis supplied).

The facts below make this case obviously distinguishable from Hines. There is quite a difference between a 62-year-old healthy man and a 92-year-old invalid woman.

Furthermore, in State v. Thompson, 318 N.C. 395, 348 S.E. 2d 798 (1986), the Supreme Court stated:

Neither Hines nor Barts [State v. Barts, 316 N.C. 666, 343 S.E. 2d 828 (1986)] was meant to restrict the aggravation of crimes to those where the victim was targeted because of age. Where the age of the victim is taken advantage of by the defendant during the commission of the crime — by whatever means — the defendant’s culpability is increased. It is this increased culpability that leads to a more severe punishment.

Id. at 398-99, 348 S.E. 2d at 801.

In the case below, the victim to which the trial court referred in the aggravating factor was a 92-year-old invalid. Common sense dictates that she was more vulnerable than an ordinary, younger victim would have been and that she was more easily taken advantage of by defendant during the commission of the crime. A court of law is not required to ignore that which is common knowledge or common sense.

I find no error in either the trial or the sentencing of defendant.