State v. Isom

ARNOLD, Judge.

Defendant contends the court erred by finding that his victim was very old, by finding that his victim was helpless and defenseless, by finding that defendant inflicted bodily injury upon his blind victim who was both helpless and defenseless, and by refusing to find as a factor in mitigation that defendant suffered from a mental or physical condition, to wit: intoxication, which while insufficient to constitute a defense was sufficient to reduce his culpability. Believing that the trial court’s finding that “the defendant inflicted bodily injury upon his blind victim who was hopeless and defenseless” was cumulative to its finding that “the victim was very old and blind,” we reverse and remand for a new sentencing hearing.

G.S. 15A-1340.4(a)(l) provides that the same evidence may not be used to support more than one aggravating factor. In State v. Monk, 63 N.C. App. 512, 523, 305 S.E. 2d 755, 762 (1983), Judge Johnson writing for this Court stated that “[t]he age of the victim may not be used as an aggravating factor unless it appears that the defendant took advantage of the victim’s relative helplessness to commit the crime or that the harm was worse because of the age or condition of the victim.” The court by finding that the victim was very old and blind was implicitly finding that his age and condition rendered him helpless and defenseless, and that the defendant took advantage of this condition to perpetrate the crime. Thus, the court’s finding of the non-statutory factor that the defendant inflicted injury, upon his blind victim who was helpless and defenseless, in excess of the amount necessary to prove the offense was supported by the same evidence used to support the statutory finding that the victim was old and blind and as such was a violation of G.S. 15A-1340.4(a)(l). This error compels us to remand defendant’s case for a new sentencing hearing.

We have carefully considered defendant’s contentions that the evidence did not support a finding that the victim was very old, that the evidence did not support a finding that the victim was helpless and defenseless, and his argument that the court should have found as a factor in mitigation that he suffered from a mental or physical condition insufficient to constitute a defense but which reduced his culpability. We find each of these assignments of error to be without merit.

As this is the second time that this case has been remanded for resentencing because of the trial court’s finding of improper non-statutory aggravating factors, we feel it appropriate to once again remind our trial courts of our concern regarding their finding of non-statutory aggravating factors. In State v. Baucom, 66 N.C. App. 298, 301-302, 311 S.E. 2d 73, 75 (1984), we stated:

In light of the increasing number of cases that have been remanded because of erroneous findings of non-statutory factors in aggravation, this Court deems it appropriate to remind trial judges that only one factor in aggravation is necessary to support a sentence greater than the presumptive term. The trial judge must determine that this factor is proved by a preponderance of the evidence and outweighs any mitigating factors. G.S. 15A-1340.4(b). “The balance struck by the trial judge will not be disturbed if there is support in the record for his determination. [Citations omitted.]” State v. Davis, 58 N.C. App. 330, 333-34, 293 S.E. 2d 658, 661, disc. rev. denied, 306 N.C. 745, 295 S.E. 2d 482 (1982). With these rules in mind the trial judge may wish to exercise restraint when considering non-statutory aggravating factors after having found statutory factors. This prudent course of conduct would lessen the chance of having the case remanded for resentencing.

Because of error in the finding of the non-statutory aggravating factor found by the trial judge, the case is

Remanded for resentencing.

Judges Eagles and Parker concur.