State v. Waters , 87 N.C. App. 502 ( 1987 )

361 S.E.2d 416 (1987) 87 N.C. App. 502

STATE of North Carolina
v.
Martin WATERS.

No. 8720SC56.

Court of Appeals of North Carolina.

November 3, 1987.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Francis W. Crawley, Raleigh, for the State.

Appellate Defender Malcolm Ray Hunter, Jr. by Asst. Appellate Defender Robin E. Hudson, Raleigh, for defendant-appellant.

ARNOLD, Judge.

Defendant first contends that he is entitled to a new trial "because the trial judge conveyed prejudicial opinions to the jury through his persistent questioning of witnesses." We disagree.

G.S. 15A-1222 prohibits a trial judge from expressing "during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury." The trial judge may not "indicate in any manner his opinion as to the weight of the evidence or the credibility of any evidence properly before the jury." State v. Blackstock, 314 N.C. 232, 236, 333 S.E.2d 245, 248 (1985). The Supreme Court further stated in Blackstock:

[I]n a criminal case it is only when the jury may reasonably infer from the evidence before it that the trial judge's action intimated an opinion as to a factual issue, the defendant's guilt, the weight of the evidence or a witness's credibility that prejudicial error results. In this connection it is well settled that it is the duty of the trial judge to supervise and control the course of a trial so as to assure justice to all parties. In so doing the court may question a witness in order to clarify confusing or contradicting testimony. (Citations omitted.)

Id.

The burden rests upon the defendant to show that the remarks of the trial judge deprived him of a fair trial. State v. Greene, 285 N.C. 482, 206 S.E.2d 229 (1974). After a careful examination of the transcript, we hold that defendant has in no way shown that he was prejudiced by questions asked by the trial judge. Defendant's contention is without merit.

Defendant next contends that the trial court erred in that two out of the three aggravating factors used in his sentencing were improper. We agree.

The trial court found as an aggravating factor that "the defendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person." In State v. Jones, 310 N.C. 628, 315 S.E.2d 698 (1984), the Supreme Court held that this is not an appropriate aggravating factor to be considered when a defendant is convicted of violating G.S. 14-67 (attempting to burn dwelling houses and certain other buildings). With this holding in mind, we can only conclude that this factor is not an appropriate aggravating factor to be used when a defendant is convicted of first degree arson. The trial court improperly applied it as such.

The trial court also found as an aggravating factor that "the defendant involved a person under the age of 16 in the commission of the crime." The trial court here was referring to Ms. Marsh's two-year-old child who was inside the house when defendant set it ablaze. The legislative intent behind this statutory aggravating factor, G.S. 15A-1340.4(a)(1)(l), concerned situations where children are encouraged and actually used in the commission of a crime. The fact that the victim of a particular crime falls below the age of sixteen is not included within the meaning of G.S. 15A-1340.4(a)(1)(l). The trial court erred in using this factor to aggravate defendant's sentence. Upon remand, the two factors discussed above shall not be considered as aggravating factors.

Remanded for resentencing.

HEDRICK, C.J., and ORR, J., concur.