STATE OF NORTH CAROLINA
v
.
SHAWN ANTHONY RADFORD
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Anne M. Middleton, for the State.
Adrian M. Lapas, for defendant-appellant.
HUDSON, Judge.
Defendant Shawn Anthony Radford pled guilty to two counts of
sexual activity by a substitute parent and two counts of taking
indecent liberties with a child. At the sentencing hearing, the
trial court found that the aggravating circumstances outweighed
those in mitigation and sentenced defendant in the aggravated range
for his class and level of offenses. Defendant appeals his
sentence. For the reasons set forth below, we reverse the decision
of the trial court and remand for resentencing.
On August 13, 2001, defendant entered into a plea agreement,
pursuant to which he tendered pleas of guilty to two counts of
sexual activity by a substitute parent, in violation of N.C. Gen.
Stat. § 14-27.7, and two counts of taking indecent liberties with
a child, in violation of N.C. Gen. Stat. § 14-202.1. Sentencingwas left to the discretion of the court.
At the sentencing hearing, the prosecutor summarized the
factual basis for defendant's guilty plea as follows: In the fall
of 1999, the victim was sexually abused by her natural father in
South Carolina. The father was charged with and later pled guilty
to sexual contact with a minor in violation of South Carolina law.
Because of the resulting disruption to the family and the
psychological and emotional stress caused by the abuse, the
victim's mother and stepfather decided that the victim should live
with relatives in North Carolina. The victim then moved in with
her aunt, Grace King, and King's long-time companion, the
defendant, in Morganton, North Carolina. The victim's mother and
stepfather planned to remain in South Carolina until they could
wind up their affairs and join their daughter in North Carolina,
which they ultimately did.
Defendant began a pattern of perpetrating sexual acts on the
victim, who was then thirteen years old. On the first such
occasion, defendant and the girl were listening to music and
drinking alcohol that defendant had provided. Defendant picked up
the victim, carried her into the bedroom, and had vaginal
intercourse. The victim repeatedly told defendant to stop, that
she did not think she was ready for this, and that she did not want
to participate in that kind of activity. Defendant ignored her
protests and continued to have intercourse with her for 15 to 20
minutes. When defendant was finished, the victim left the bedroom
and went into the living room, while defendant stayed in thebedroom.
This type of encounter occurred repeatedly. As a result of
increasing seduction by defendant, the victim became convinced that
she felt affection for him. She began sneaking out of the house to
be with him, and they engaged in additional acts of intercourse,
continuing until November 23, 2000, when the victim was discovered
missing from her bedroom. The victim's stepfather, who by this
time had moved to North Carolina with the mother, found the victim
hiding in a bathroom at defendant's house. Defendant had denied
that she was there. The victim then told her mother and stepfather
about the first incident with defendant and the subsequent events.
Although defendant initially denied that any inappropriate
behavior had occurred, he later admitted to the victim's mother and
stepfather that he had engaged in intercourse with the victim. A
medical examination was conducted, which revealed scarring
consistent with healing tears that corroborated the victim's story.
Also at the sentencing hearing, the State argued that the
seriousness of the offenses was aggravated because defendant was
aware of what the victim's father had done to her and knew about
the resulting emotional and psychological trauma. According to the
prosecutor, defendant and Grace King had held themselves out as
able to provide a safe haven to which the victim could escape what
had occurred in South Carolina, but, instead of providing such a
place, defendant targeted her as a sexual victim again. The victim
acknowledged at the hearing that the incidents with her biological
father had not involved intercourse and that the first time she hadhad intercourse was with defendant. She did not add anything
further, nor did her mother or stepfather.
The State then argued that defendant's conduct--holding
himself out as providing a safe haven but instead further
victimizing a child who was already traumatized--should constitute
a nonstatutory aggravating factor. The court asked whether the
victim had undergone any psychological testing. The prosecutor
conferred with the victim's mother and then informed the court that
the victim was in counseling but that he had not seen any testing
or reports. The prosecutor also informed the court, per the wishes
of the victim's mother, that defendant's conduct had virtually
destroyed the relationship between Grace King, her sister, and her.
Defendant's attorney informed the court that defendant had a
long history of alcohol problems, that he had been in treatment for
them, and that he had worked for 17 years as a carpet installer.
The attorney presented the court with a letter from defendant's
employer and a letter from defendant's landlord attesting to
defendant's character. He then submitted as statutory mitigating
factors defendant's longtime problems with alcohol, his
acknowledgment of wrongdoing and acceptance of responsibility, and
his positive employment history. The court found these as
mitigating factors.
As nonstatutory aggravating factors, the court found that
although there was “not evidence before the Court as to whether or
not the condition is permanent, the Court does find that
psychological injury suffered by the victim as a result of theDefendant's conduct is debilitating and has required psychological
counseling.” The court also found that defendant's conduct
devastated the support group that the victim should have been able
to turn to and that his conduct would affect her ability to recover
successfully.
The court then concluded that the aggravating factors
outweighed the mitigating factors. Accordingly, the court
sentenced defendant in the aggravated range on each count: 36 to
53 months on both counts of sexual activity by a substitute parent
and 24 to 29 months on both counts of indecent liberties with a
child, to run consecutively. Defendant appeals his sentence.
By his first and only assignment of error, defendant contends
that the State presented insufficient evidence to support the trial
court's finding that the victim suffered debilitating psychological
injuries. In defendant's view, the prosecutor's statement,
standing alone, is not sufficient to support the court's finding of
this aggravating factor. We agree.
Under the Structured Sentencing Act, the trial court must
impose a sentence within the statutorily set presumptive range
unless it determines that aggravating or mitigating factors warrant
a greater or lesser sentence. N.C. Gen. Stat.
§
15A-
1340.16(a)(2001)
.
The trial court is required to consider evidence
of these aggravating or mitigating factors, but whether to depart
from the presumptive range
is within the trial court's discretion.
Id.
The State bears the burden of proving aggravating factors by
a preponderance of the evidence. State v. Kemp, __ N.C. App. __,__, 569 S.E.2d 717, 722, disc. review denied, 356 N.C. 441, 573
S.E.2d 158 (2002). Where the State presents insufficient evidence
to support an aggravating factor, the defendant is entitled to a
new sentencing hearing. State v. Ahearn, 307 N.C. 584, 602, 300
S.E.2d 689, 701 (1983).
It is well established that trial courts cannot find an
aggravating factor where the only evidence to support it is the
prosecutor's mere assertion that the factor exists. In State v.
Brown, 312 N.C. 237, 321 S.E.2d 856 (1984),
(See footnote 1)
for example, the trial
court found as an aggravating factor that the defendant's conduct
caused severe mental injury to the victim. The only evidence
offered by the State in support was a statement by the district
attorney that he had been told by the victim's husband that the
victim had entered the hospital after testifying at trial, that she
had been heavily sedated, and that she was resting at home. Id. at
250, 321 S.E.2d at 863. The husband did not testify, nor did the
State offer any medical testimony or reports. Id. “Since there
was no evidence to support a finding that defendant caused [the
victim's] hospitalization during the trial other than the
prosecutor's reiteration of [the husband's] statement that she was
confined to bed and heavily sedated,” the court held that the trialjudge erred in finding the aggravating factor. Id.
Similarly in State v. Jones, 104 N.C. App. 251, 409 S.E.2d 322
(1991), the trial court found as an aggravating factor that the
defendant inflicted physical injury on the victim that caused great
monetary damage. Again, however, the evidence concerning the
victim's medical bills and lack of insurance was placed before the
court “solely by the oral representation of the prosecuting
attorney.” Id. at 256, 409 S.E.2d at 325. No bills or records
were submitted. The victim did not testify nor did the defendant
stipulate to the amounts or existence of the medical bills.
Accordingly, the court held that the State presented insufficient
evidence to support the aggravating factor and awarded the
defendant a new sentencing hearing. Id.; see also State v. Canady,
330 N.C. 398, 399-400, 410 S.E.2d 875, 876-77 (1991) (new
sentencing hearing where only evidence of defendant's prior
convictions, an aggravating factor, was prosecutor's statement to
that effect); State v. Thompson, 309 N.C. 421, 424-25, 307 S.E.2d
156, 159 (1983) (“We also agree . . . that the prosecuting
attorney's statement concerning a prior conviction . . .
constituted insufficient evidence to support a finding of that
prior conviction”). Cf. State v. Shea, 80 N.C. App. 705, 707, 343
S.E.2d 437, 439 (where defendant made the opposite argument--i.e.,
that statements made by the prosecutor established mitigating
factors, the court held that “[t]hese statements . . . were not
competent evidence, and the trial court, therefore, did not err in
failing to find these mitigating factors”), cert. denied, 317 N.C.713, 347 S.E.2d 452 (1986); State v. Swimm, 316 N.C. 24, 32, 340
S.E.2d 65, 71 (1986) (“absent a stipulation by the prosecution,
statements made by defense counsel during argument at the
sentencing hearing do not constitute evidence [that] would support
a finding of nonstatutory mitigating factors”).
Here, the trial court concluded, in essence, that the victim
was psychologically injured by defendant, that the injury was
debilitating, and that, as a result of defendant's conduct, the
victim was in ongoing psychological counseling. These findings
were based on the court asking the prosecutor whether the State had
“any evidence of any psychological testing that has been done as to
the young woman involved.” After conferring with the victim's
mother, the prosecutor informed the court that the victim was
“currently engaged with counseling with Burke Family Resources,
your Honor. But I have not seen any of the testing or summary
reports on that.” There was no other evidence of the victim's
symptoms or of the nature or time frame of the counseling.
As in Brown and Jones, the prosecutor here tendered no
evidence about the victim's psychological injuries other than his
own statement. He offered no reports, no bills, no forms. The
victim did not testify, nor did her mother; their only
participation came when the prosecutor conferred with the victim's
mother before informing the court about the counseling. Defendant
did not stipulate to the statement. See Swimm, 316 N.C. at 32, 340
S.E.2d at 71 (“Such statements may, of course, constitute adequate
evidence of the existence of aggravating or mitigating factors ifthe opposing party so stipulates.”). Further, even though
defendant did not contest the information, “[w]e do not feel that
a defendant's silence while the prosecuting attorney makes a
statement should support an inference that the defendant consented
to the statement.” Canady, 330 N.C. at 400, 410 S.E.2d at 877.
And, even if we were to consider the prosecutor's declaration
as evidence that the victim's psychological injuries were
debilitating to an extent that required counseling, the prosecutor
made no statement and presented no evidence to the effect that
defendant's conduct resulted in the need for the ongoing
psychological counseling. Certainly such a correlation
is logical,
but the record provides no basis for such a finding. As the cases
cited above reflect, the evidentiary link must consist of more than
a bald assertion by the prosecutor. Because we hold that the
record does not adequately support the nonstatutory aggravating
circumstance found by the trial court here, defendant is entitled
to a new sentencing hearing. Ahearn, 307 N.C. at 602, 300 S.E.2d
at 701.
Remanded for resentencing.
Judges TIMMONS-GOODSON and CAMPBELL concur.
Judge Campbell concurred prior to 1/1/03.
Footnote: 1
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