On appeal, defendant argues that the court's findings ofaggravation to support his sentence, which is above the presumptive
range, are not consistent with the law and evidence in the case,
and that he is, therefore, entitled to a new sentencing hearing.
We disagree.
At the outset, we note that defendant failed to object to any
of the court's findings related to the aggravating factors during
the sentencing hearing.
See State v. Kimble, 141 N.C. App. 144,
539 S.E.2d 342 (2000). Nor has defendant alleged that the findings
amounted to plain error.
See State v. Degree, 110 N.C. App. 638,
430 S.E.2d 491 (1993).
Therefore, the issue was not properly
preserved for appeal.
See N.C.R. App. P 10(b)(1);
State v. Hughes,
136 N.C. App. 92, 524 S.E.2d 63 (1999),
disc. review denied, 351
N.C. 644, 543 S.E.2d 878 (2000)
. We will, however, exercise our
discretion pursuant to Rule 2 of the North Carolina Rules of
Appellate Procedure and review the merits of this appeal.
In sentencing a defendant to a term of imprisonment outside of
the presumptive range, the trial court must make specific findings
of aggravation and mitigation.
State v. Bright, 135 N.C. App. 381,
520 S.E.2d 138 (1999); N.C.G.S. § 15A-1340.16 (2001). Aggravating
and mitigating factors must be proved by a preponderance of the
evidence.
State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983).
The State bears the burden of establishing whether aggravating
factors exist and the defendant has the burden of proving whether
mitigating factors exists.
State v. Parker, 315 N.C. 249, 337
S.E.2d 497 (1985); N.C.G.S. § 15A-1340.16 (2001).
N.C. Gen. Stat. § 15A-1340.16 (2001) provides in part that“[t]he court shall consider evidence of aggravating or mitigating
factors present in the offense that make an aggravated or mitigated
sentence appropriate, but the decision to depart from the
presumptive range is in the discretion of the court.” “A
sentencing judge properly may determine in appropriate cases that
one factor in aggravation outweighs more than one factor in
mitigation and vice versa.”
Parker, 315 N.C. at 258, 337 S.E.2d at
502. 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. However, 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.”
State v. Norman, 151 N.C. App. 100,l 564
S.E.2d 630 (2002).
In the case
sub judice, defendant contends first that the
trial court erred in finding non-statutory aggravating factor,
number 20.A, that “the offense was committed with premeditation and
malice”. Specifically, defendant argues that the trial court
considered evidence of malice to aggravate defendant's sentence,
even though malice is an essential element of the offense of
second-degree murder. We agree. N.C.G.S. § 15A-1340.16 specifically states that “evidence
necessary to prove an element of the offense shall not be used to
prove any factor in aggravation. . . .” N.C.G.S. §. 15A-
1340.16(d)(20)(2001). Second-degree murder is defined as “the
unlawful killing of a human being with malice, but without
premeditation and deliberation.”
State v. Welch, 135 N.C. App.
499, 502, 521 S.E.2d 266, 268 (1999) (quoting
State v. Robbins, 309
N.C. 771, 775, 309 S.E.2d 188, 190 (1983)).
See also State v.
Melton, 307 N.C. 370, 298 S.E.2d 673 (1983) (premeditation and
deliberation are not elements of murder in the second degree).
Thus, while premeditation could serve as an aggravating factor for
second degree murder, malice cannot.
See, generally, State v.
McIntyre, 65 N.C. App. 807, 310 S.E.2d 119 (1984).
In the present case,
the trial court, in both its written and
verbal orders, included the element of malice. We are not
persuaded by the State's assertion that the inclusion of the term
malice in both orders was inadvertent. “This Court . . . is bound
by the record as certified and can judicially know only what
appears of record.”
State v. Brown, 142 N.C. App. 491, 492, 543
S.E.2d 192, 193 (2001) (quoting
State v. Williams, 280 N.C. 132,
137, 184 S.E.2d 875, 878 (1971)). “It is also settled that the
record imports verity and the court is bound on appeal by the
record as certified.”
State v. Dellinger, 308 N.C. 288, 294, 302
S.E.2d 194, 197 (1983) (citing
State v. Williams, 280 N.C. at 137,
184 S.E.2d at 878). We conclude that the court's finding that “the
offense was committed with . . . malice” was error. Defendant contends next that the trial court erred in finding
the non-statutory aggravating factor 20.B, that the “offense was
committed in the course of conduct involving violence to more than
one person.” Defendant argues that since he pled guilty to
offenses involving the second occupant of the car, assault with a
deadly weapon with intent to kill inflicting serious injury and
discharging a firearm into occupied property, that the conduct
which supports those offenses cannot be used to aggravate his
sentence for second-degree murder. This is without merit.
Under the Structured Sentencing Act and controlling case law,
“[e]vidence used to prove an element of one offense may also be
used to support an aggravating factor of a separate joined offense.
State v. Crocket, 138 N.C. App. 109, 119, 530 S.E.2d 359, 365
(2000) (citing
State v. Farlow, 336 N.C. 534, 444 S.E.2d 913
(1994)). Defendant urges this Court to rely upon the holding in
State v. Lattimore, 310 N.C. 295, 311 S.E.2d 876 (1984) and
State
v. Westmoreland, 314 N.C. 442, 334 S.E.2d 223 (1985) for the
proposition that the trial judge is not permitted to find as a non-
statutory aggravating factor that the defendant committed the
joinable offense. These cases, however, were decided prior to the
Structured Sentencing Act and have no application here.
See State
v. Ruff, 349 N.C. 213, 505 S.E.2d 579 (1998).
The following evidence supports the Court's finding that
defendant's course of conduct involved violence to more than one
person: that upon exiting the vehicle, defendant began shooting at
Burden and Ballard while the two remained inside the vehicle; thata third individual, Crystal Brunson, was close by when the shooting
began; that defendant shot approximately five times at both
occupants of the vehicle; and that only two of the five shots
resulted in Burden's death and that a second occupant of the
vehicle, Ballard, was injured.
We hold that there was sufficient evidence to support the
trial court's finding of aggravating factor 20.B.
Lastly, defendant contends that the trial court's finding of
statutory aggravating factor number 8, that 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” is not supported by the evidence.
Specifically, he argues that the evidence used for both the
statutory aggravating factor number 8 and the non-statutory
aggravating factor number 20.B were the “same item of evidence.”
To determine whether the aggravating factor at issue has been
proven, the trial court considers evidence regarding both (1) the
nature of the weapon used, and (2) the risk of death to more than
one person.
State v. Moose, 310 N.C. 482, 313 S.E.2d 507 (1984);
see also, State v. Rose, 327 N.C. 599, 605, 398 S.E.2d 314, 317
(1990);
State v. Demos, 148 N.C. App. 343, 559 S.E.2d 17 (2002).
Our Supreme Court has held that a shotgun falls within the category
of a “weapon” envisioned by the legislature to support statutory
aggravating factor number 8.
Moose, 310 N.C. at 497, 313 S.E.2d at
517. Moreover, the Court, in
Moose, held that the second component
that “there be a risk of death to more than one person” issatisfied where a shotgun was fired at close range into the
passenger compartment of a vehicle occupied by two persons.
Id.
There is unquestionably sufficient evidence here, as in
moose,
to support the court's finding statutory aggravating factor number
8. However, assuming
arguendo, that the trial court considered
the same evidence in making a finding of both this statutory
aggravating factor and the non-statutory aggravating factor 20.B,
defendant has not demonstrated, nor do we find, prejudice. This
Court has held that
[i]n 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. G.S. 15A-
1340.4(b).
Baucom, 66 N.C. App. 298, 301-02, 311 S.E.2d 73, 75 (1984);
see
also, Norman, 151 N.C. App. 100, 564 S.E.2d 630 (2002).
Having determined that there was sufficient evidence to
support the trial court's finding of aggravating factor number
20.B, we conclude, defendant is not entitled to a new sentencing.
Only one aggravating factor was needed to support defendant's
sentence in the aggravated range. Moreover, in view of the fact
that the trial court found no mitigating factors, we conclude that
there is no need to remand. We hold that the trial court did not
abuse its discretion in sentencing defendant in accordance with the
plea agreement.
No prejudicial error.
Chief Judge EAGLES and Judge WALKER concur. Report per Rule 30(e).
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