State v. Nobles , 329 N.C. 239 ( 1991 )

WEBB, Justice.

Appeal by the State

The State’s appeal has brought to the Court a question as to whether certain aggravating factors were properly found. We note at the outset that the State petitioned for discretionary review as to only the first two aggravating factors which the Court of Appeals held it was error to find. The State did not petition for a review of the third aggravating factor which the Court of Appeals held was erroneously found. This holding by the Court of Appeals is not disturbed. We shall discuss the other aggravating factors with which the Court of Appeals dealt.

The first aggravating factor found was that defendant induced another as an accessory after the fact or in the commission of the crime. This is a statutory aggravating factor. N.C.G.S. § 15A-1340.4(a)(l)a (1988). There is no dispute that the defendant’s daughter was involved at least in concealing the baby after it was taken from the hospital. The defendant contends that this does not support a finding that she induced this participation. The defendant, relying on State v. Gore, 68 N.C. App. 305, 314 S.E.2d 300 (1984), and State v. Setzer, 61 N.C. App. 500, 301 S.E.2d 107, disc. rev. denied, 308 N.C. 680, 304 S.E.2d 760 (1983), argues that evidence that another person participated in the crime is not sufficient evidence that the defendant induced such participation. There is more evidence in this case than the participation of Ms. Slaydon in the crime. The evidence is that the defendant was anxious to get a baby. She went to the hospital and took the baby. She carried the baby to the home on which the defendant paid the rent and in which her daughter was living and her daughter cared for the baby, telling people it was her mother’s child. The court could infer from this evidence that the idea for the crime originated with the defendant and she procured Ms. Slaydon’s help in executing the crime. This would support the finding of the court. This is a statutory aggravating factor which must be considered by the court in imposing a sentence. State v. Cameron, 314 N.C. 516, 335 S.E.2d 9 (1985)'. We hold it was not error for the superior court to find this aggravating factor and to consider it in imposing the sentence.

The second aggravating factor dealt with the vulnerability of the victim because he was extremely young and because he was in a hospital. The victim’s being very young is a statutory aggravating factor. N.C.G.S. § 15A-1340.4(a)(l)j (1988). To find age as an aggravating factor there must be evidence that the victim was vulnerable because of his age. State v. Barts, 316 N.C. 666, 343 S.E.2d 828 (1986); State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983); State v. Eason, 67 N.C. App. 460, 313 S.E.2d 221, aff’d, 312 N.C. 320, 321 S.E.2d 881 (1984). We have said that 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.” State v. Hines, 314 N.C. 522, 526, 335 S.E.2d 6, 8 (1985). The victim could not have been much younger than was the victim in this case. He was more vulnerable than a child a few years older would have been.

The defendant argues that the age factor was not properly found because, although the victim was more vulnerable in this case than an older child would have been, this was not the reason the defendant abducted the child. The abduction, she says, was not caused by the child’s vulnerability. It is not the cause of the taking which supports the aggravating factor. Whatever the motive, if the victim is more vulnerable because of age, this aggravates the crime.

The court also found as an aggravating factor that the victim was more vulnerable because he was in a hospital at the time of his abduction. This is a nonstatutory aggravating factor. The defendant argues that to hold this is a proper aggravating factor would mean that every time an offense is committed against a person who is not in the safety of his home this aggravating factor could be found. The court may consider any aggravating factor that is proved by a preponderance of the evidence, and is reasonably related to the purposes of sentencing. N.C.G.S. § 15A-1340.4(a) (1988). Factors that increase the offender’s culpability are related to the purposes of sentencing. N.C.G.S. § 15A-1340.4 (1978). State v. Melton, 307 N.C. 370, 298 S.E.2d 673 (1983).

We hold that the increased vulnerability of the victim because of his being in a hospital makes this a proper aggravating factor. A person should be able to enter a hospital without feeling he has to be on guard against wrongdoers. In this case it was particularly egregious that the defendant disguised herself as a nurse and used this disguise to abduct the baby. The mother of the child had a right to rely on a person dressed as a nurse. This made the victim more vulnerable than he ordinarily would have been and makes it a worse crime than if it had occurred under other circumstances. It is not only that the victim was away from the safety of his home that makes this a properly found aggravating factor.

The Defendant’s Appeal

The defendant has appealed, assigning error to the court’s failure to charge the jury, as requested by the defendant, that in order to convict the defendant, the jury must find that she abducted the victim, knowing it was not her child. There is a common law principle that the existence of guilty knowledge on the part of the defendant is essential to criminality although it is not required by the statute in express terms. State v. Boone, 310 N.C. 284, 311 S.E.2d 552 (1984); State v. Welch, 232 N.C. 77, 59 S.E.2d 199 (1950). The General Assembly may dispense with this requirement. Poultry Co. v. Thomas, 289 N.C. 7, 220 S.E.2d 536 (1975). The Court of Appeals applied this principle in State v. Walker, 35 N.C. App. 182, 241 S.E.2d 89 (1978), by granting a new trial in a child abduction case for failure of the court to charge that the jury should find the defendant not guilty if it should find the defendant mistakenly believed the child he took was his grandchild.

When specific intent is not an element of the crime, the court does not ordinarily have to charge on guilty knowledge. However, when the defendant introduces evidence of lack of guilty knowledge the court must charge on it. State v. Elliott, 232 N.C. 377, 61 S.E.2d 93 (1950).

The defendant concedes that she did not present any evidence to support a mistake of fact defense but she says “the inference that she committed the prohibited act without criminal intent plainly was raised by the evidence.” This is not enough evidence to require a charge on guilty knowledge. If the defendant did not know that her conduct was criminal she still may be found guilty if she knew she was doing all the acts that constituted the elements of the crime. This assignment of error is overruled.

For the reasons stated in this opinion we affirm the holding of the Court of Appeals and remand to the Court of Appeals for remand to the Superior Court of Guilford County for further proceedings consistent with this opinion.

Affirmed.