On writ of certiorari from judgments dated 1 August 2000 by
Judge Jerry R. Tillett in Dare County Superior Court. Heard in the
Court of Appeals 21 May 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Christine M. Ryan, for the State.
Paul Pooley for defendant-appellant.
GREENE, Judge.
Antonio Norman (Defendant), by writ of certiorari, appeals
judgments dated 1 August 2000 entered pursuant to a plea agreement
under which he pled guilty to attempted second-degree rape,
first-degree burglary, and conspiracy to commit first-degree
burglary.
On 13 December 1999, Defendant was indicted for first-degree
burglary and attempted first-degree rape of both Lessie H. Payne
(Payne) and Helen Scarborough (Scarborough). Defendant pled guilty
to first-degree burglary and attempted second-degree rape as to
Payne and conspiracy to commit first-degree burglary in respect to
Scarborough. Testimony of the investigating officers submitted by
the State to establish the factual basis for entry of the plea
agreement revealed that, on the night of 14 November 1997,Defendant, a black male, broke into Payne's residence and entered
the bedroom where Payne was sleeping. When Payne awoke and noticed
a presence in the room, Defendant covered her head with a pillow.
As Payne struggled with Defendant, they rolled off the bed, at
which point Defendant attempted to pull down Payne's underwear.
While Payne did not believe Defendant had penetrated her with his
penis, she thought he may have ejaculated on her leg prior to
running from the room. As a result of the attack, Payne suffered
a fractured wrist and hand, swelling, dark bruising, lacerations,
and abrasions. During a subsequent medical examination of Payne,
a single pubic hair was found that contained traces of semen which
were later matched to Defendant. At the time of the attack, Payne
was seventy-eight years old.
On the night of 25 June 1998, Defendant went to Scarborough's
residence. Scarborough was sleeping in her bedroom but awoke when
she felt someone's hand around her neck. When she realized it was
a man trying to hold her down, she began to struggle with him.
Scarborough thought the man was trying to rape her, so she told him
about her broken hip. The struggle continued for fifteen to
twenty-five minutes until the man ran from the residence.
Scarborough described her attacker as a white male between twenty
and thirty years of age. While Scarborough had preexisting bruises
on her legs prior to the attack, the struggle had worsened those
bruises to such an extent that she required plastic surgery on both
legs. According to her daughter, Scarborough's general health
deteriorated considerably after the attack and she was never thesame person. At the time of the attack, Scarborough, who died
prior to the sentencing hearing, was ninety-two years old.
Defendant confessed to having broken into Payne's residence.
Although he first admitted having entered Scarborough's residence,
Defendant later recanted and told the investigating officers that
an accomplice, a white male, had actually entered Scarborough's
residence and attacked her. During the course of Defendant's
discussions with law enforcement, he stated he was sorry for what
he had done to Payne and Scarborough. At the sentencing hearing,
Defendant addressed Scarborough's daughter and made the following
statement:
I just want to apologize for my
wrongdoing and whatever. I understand how you
feel and I know your mom will never be back
with you and I kind of feel the same way, that
I will never be with my one[-]year-old son
again because of the actions that I took part
in[,] and I just wanted--just wanted to let
you know that I am sorry for the part that I
took in it and I hope that you will forgive
me.
And for the rest of the things that I
have been included in, I apologize for that,
too.
Defendant requested the trial court to consider as mitigating
factors Defendant's acceptance of responsibility at the sentencing
hearing as well as his support obligation to his child. No
evidence was submitted to corroborate Defendant's support
obligations.
In accordance with the plea agreement, the trial court entered
a judgment for felony conspiracy in the Scarborough case and a
separate judgment for first-degree burglary and attempted second-degree rape in the Payne case. The trial court found the same
aggravating and mitigating factors for both the Scarborough and the
Payne case. Among the several aggravating factors, the trial court
found that the victims were asleep, which made their condition
“more vulnerable and susceptible to injury or victimization.”
(See footnote 1)
As
mitigating factors, the trial court found that: (1) Defendant
suffered from a mental condition that significantly reduced his
culpability for the offenses; (2) Defendant's mental capacity was
limited at the time the offenses were committed; (3) Defendant
voluntarily acknowledged wrongdoing at an early stage in the
criminal process; (4) Defendant has a support system in the
community; and (5) Defendant has a positive employment history or
is gainfully employed. The trial court further found that “each
and every aggravating factor outweigh[ed] all mitigating factors”
and therefore “each aggravating factor [was] in and of itself a
sufficient basis for the imposition of a sentence in the aggravated
range.”
____________________________
The issues are whether the trial court erred in: (I) finding
that each aggravating factor standing alone outweighed all
mitigating factors combined; (II) finding as an aggravating factor
that the victims were asleep; and (III) rejecting as mitigatingfactors that Defendant accepted responsibility for his criminal
conduct and that Defendant supported his family.
I
Defendant argues the trial court committed error by finding
that each aggravating factor was sufficient in and of itself to
outweigh all mitigating factors. Defendant contends that the trial
court, in doing so, attempted to insulate itself from the rule
requiring remand for resentencing where an aggravating factor was
improperly found.
See State v. Ahearn, 307 N.C. 584, 602, 300
S.E.2d 689, 701 (1983);
State v. Taylor, 74 N.C. App. 326, 328, 328
S.E.2d 27, 29,
disc. review denied, 314 N.C. 547, 335 S.E.2d 319
(1985). While this may be true, we find nothing in the case law or
statutes that would prohibit this form of balancing.
Section 15A-1340.16(b) of the North Carolina General Statutes
provides that “[i]f the [trial] court finds that aggravating
factors are present and are sufficient to outweigh any mitigating
factors that are present, it may impose a sentence that is
permitted by the aggravated range.” N.C.G.S. § 15A-1340.16(b)
(2001). The weighing of aggravating and mitigating factors is
within the sound discretion of the trial court.
State v. Davis, 58
N.C. App. 330, 333, 293 S.E.2d 658, 661,
disc. review denied, 306
N.C. 745, 295 S.E.2d 482 (1982). Thus, “[a] sentencing judge
properly may determine in appropriate cases that one factor in
aggravation outweighs more than one factor in mitigation and vice
versa.”
State v. Parker, 315 N.C. 249, 258, 337 S.E.2d 497, 502
(1985). Furthermore, the trial court “need not justify the weight[it] attaches to any factor.”
Ahearn,
307 N.C. at 597, 300 S.E.2d
at 697. On the other hand, this Court has recommended restraint on
the part of trial courts in finding non-statutory aggravating
factors after having found statutory factors and noted that only
one error in finding an aggravating factor requires remand.
See
State v. Baucom, 66 N.C. App. 298, 301-02, 311 S.E.2d 73, 75
(1984). The need for remand is based on an appellate court's
inability to determine the respective weights assigned by a trial
court to each factor when such weight distributions are normally
not specified in the record on appeal.
As the trial court's discretion includes the power to find
that one aggravating factor outweighs several mitigating factors,
the trial court may also properly determine that each of several
aggravating factors is in and of itself sufficient to outweigh all
mitigating factors. Furthermore, because the trial court in this
case specifically noted its weight distribution by stating that
each aggravating factor, standing on its own, was sufficient to
outweigh all the mitigating factors, it eliminated the need for
remand if this Court were to determine that the trial court had
erred in finding an aggravating factor.
II
Because the trial court could properly find that each
aggravating factor in and of itself was sufficient to outweigh all
mitigating factors, we must only determine whether the evidence
supported one of the aggravating factors found by the trial court.
Defendant argues the trial court erred in aggravating hissentence based upon a finding that the victims were asleep and thus
more vulnerable and susceptible to injury or victimization. This
non-statutory factor is analogous to the statutory factor allowing
a trial court to aggravate a defendant's sentence based on the
victim's age.
State v. Davy, 100 N.C. App. 551, 558, 397 S.E.2d
634, 638,
appeal dismissed and disc. review denied, 327 N.C. 638,
398 S.E.2d 871 (1990); N.C.G.S. § 15A-1340.16(d)(11) (2001). The
concern addressed by this aggravating factor is vulnerability.
See
Ahearn, 307 N.C. at 603, 300 S.E.2d at 701. Accordingly, the State
has the burden of showing that: (1) the victim was in fact
vulnerable because of conditions at the time of the offense and (2)
she was targeted either because of these conditions or the
defendant took advantage of them while committing the offense.
State v. Drayton, 321 N.C. 512, 514, 364 S.E.2d 121, 122 (1988).
Sleep will therefore constitute a proper basis for an aggravating
factor if it impaired the victim's ability to flee, fend off an
attack, or otherwise avoid being victimized.
Id. Furthermore,
this Court has stated that “being asleep would surely render a rape
victim [more] vulnerable to attack.”
Davy, 100 N.C. App. at 559,
397 S.E.2d at 638.
In this case, both victims were asleep, and thus in a
vulnerable state, when a man entered their respective bedrooms.
This vulnerable state was taken advantage of when the victims,
still lying in their beds, were subsequently attacked. Thus, the
trial court properly aggravated Defendant's sentences on the
grounds the victims were asleep, thus making them more vulnerableand susceptible to injury or victimization.
III
Defendant further argues the trial court committed error in
failing to find legally and factually supported mitigating factors.
A defendant has the burden of proving by a preponderance of
the evidence the existence of mitigating factors. N.C.G.S. § 15A-
1340.16(a) (2001). “A trial judge is given 'wide latitude in
determining the existence of . . . mitigating factors,' and the
trial court's failure to find a mitigating factor is error only
when 'no other reasonable inferences can be drawn from the
evidence.'”
State v. Godley, 140 N.C. App. 15, 27, 535 S.E.2d 566,
575 (2000) (quoting
State v. Canty, 321 N.C. 520, 524, 364 S.E.2d
410, 413 (1988)),
disc. review denied, 353 N.C. 387, 547 S.E.2d 25,
cert. denied, 532 U.S. 964, 149 L. Ed. 2d 384 (2001).
Defendant first contends the trial court should have found as
a mitigating factor, based on his apology at the sentencing
hearing, that Defendant accepted responsibility for his criminal
conduct. We disagree.
A defendant accepts responsibility for his criminal conduct by
accepting that he is answerable for the result of his criminal
conduct.
Godley, 140 N.C. App. at 28, 535 S.E.2d at 576. While
Defendant in this case was remorseful at the sentencing hearing and
apologized for the “part” that he had played in the crimes
committed against Payne and Scarborough, his statement does not
lead to the sole inference that he accepted he was answerable for
the result of his criminal conduct. Thus, the trial court did noterr in failing to find as a mitigating factor that Defendant
accepted responsibility for his criminal conduct.
Defendant also argues the trial court erred in failing to find
as a mitigating factor that Defendant supports his family.
Although comments were made by Defendant's attorney at the
sentencing hearing about Defendant's provision of child support for
his son, no specific evidence was offered to substantiate this
allegation. Accordingly, the trial court did not err in rejecting
this proposed mitigating factor as well.
Affirmed.
Judges HUDSON and BIGGS concur.
Footnote: 1