An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-793
                
                                          &nb sp; 
NORTH CAROLINA COURT OF APPEALS
        
                                          &nb sp; 
Filed: 15 April 2003

STATE OF NORTH CAROLINA

         v.                        Forsyth County
                                Nos. 01 CRS 9998; 15454;
GERROD DAYVON WILLIAMS,                    20284
    Defendant-Appellant
    

    Appeal by defendant from judgment entered 10 January 2002 by Judge William Z. Wood, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 7 April 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Robert O. Crawford, III, for the State.

    Maitri Klinkosum for defendant-appellant.

    MARTIN, Judge.

    Defendant was indicted upon charges of possession with intent to manufacture, sell and deliver cocaine, carrying a concealed weapon, carrying a concealed gun, and murder. Pursuant to a plea arrangement, defendant pled guilty on 10 January 2002 to charges of second degree murder, possession with intent to manufacture, sell and deliver cocaine, carrying a concealed weapon and carrying a concealed gun.
    After counsel for defendant stipulated to a factual basis for the charges, the State summarized the evidence against defendant. Counsel for defendant and the State then presented sentencing arguments. The trial court found as an aggravating factor in opencourt that defendant committed the offense while on pretrial release, G.S. § 15A-1340.16(d)(12), but subsequently marked box twelve (“defendant involved a person under the age of 16 in the commission of the crime”) on the AOC form for findings of aggravating factors. The trial court also found as a nonstatutory mitigating factor that defendant was seventeen years old at the time of the offense. After finding that the aggravating factor outweighed the mitigating factor, the trial court consolidated the charges for judgment and imposed a sentence of 196 to 245 months imprisonment. Defendant appeals from the judgment.

______________________

    Defendant first contends the trial court erred by failing to find one nonstatutory and five statutory mitigating factors. Defendant's arguments are not persuasive.
    “Where evidence in support of a mitigating factor is uncontradicted, substantial and inherently credible, it is error for the trial court to fail to find that mitigating factor. . . . The defendant has the burden of establishing mitigating factors by a preponderance of the evidence.” State v. Grier, 70 N.C. App. 40, 48, 318 S.E.2d 889, 894-95 (1984) (citation omitted), cert. denied, 318 N.C. 698, 350 S.E.2d 860 (1986). However, “statements made by defense counsel during argument at the sentencing hearing do not constitute evidence in support of statutory mitigating factors.” State v. Swimm, 316 N.C. 24, 32, 340 S.E.2d 65, 71 (1986) . The State did not stipulate to the statements by counsel for defendant, therefore those statements were insufficient to support findings ofmitigating factors. See id. “Finding that a mitigating factor exists is within the trial judge's discretion and will not be disturbed on appeal absent a showing that the court's ruling was so arbitrary that it could not be the result of a reasoned decision.” State v. Kinney, 92 N.C. App. 671, 678, 375 S.E.2d 692, 696 (1989). Because defendant failed to meet his burden of establishing the existence of the six mitigating factors, the trial court did not abuse its discretion in refusing to find those mitigating factors.
    Defendant next contends the trial court erred by finding as an aggravating factor that he committed the murder while on pretrial release for another felony. See N.C. Gen. Stat. § 15A- 1340.16(d)(12) (2001). He argues the State produced no documentary or testimonial proof to support the trial court's finding of this aggravating factor. In a separate argument, defendant argues the trial court erred in finding as an aggravating factor that he had involved a person under the age of sixteen in the commission of the offense. See N.C. Gen. Stat. § 15A-1340.16(d)(13) (2001).
    “The State bears the burden of proving by a preponderance of the evidence that an aggravating factor exists,” G.S.§ 15A- 1340.16(a), and the trial court's finding of “an aggravating factor must be supported by sufficient evidence to allow a reasonable judge to find its existence by a preponderance of the evidence.” State v. Hayes , 102 N.C. App. 777, 781, 404 S.E.2d 12, 15 (1991). Here, the file before the trial court contained documentary evidence in the form of arrest warrants, indictments and transcripts of plea which indicate defendant was arrested on 28March 2001 for possession with intent to manufacture, sell or deliver cocaine. Those documents show defendant was released on a secured bond, and he was subsequently arrested for murder on 6 May 2001. Ample evidence supports the trial court's finding in open court that defendant committed the offense while on pretrial release, and this assignment of error is overruled.
    The State produced no evidence, and the trial court made no finding in open court that defendant had involved a person under the age of sixteen in the commission of the crime. We note that this aggravating factor is box number twelve on the AOC felony judgment sheet, whereas committing an offense while on pretrial release is number twelve in the statutory listing of aggravating factors. See N.C. Gen. Stat. § 15A-1340.16(d) (12). We therefore remand the judgment to the trial court to correct this clerical error such that the AOC felony judgment sheet properly reflects the trial court's finding that “defendant committed the offense while on pretrial release on another felony charge.” See id.
    In his remaining argument, defendant contends the trial court erred in finding that the aggravating factor outweighed the mitigating factor. He relies primarily upon his earlier argument that the trial court erred by not finding six additional mitigating factors. As previously discussed, the trial court properly did not find those additional mitigating factors. The weighing of aggravating and mitigating factors by the trial court is discretionary. See State v. Wampler, 145 N.C. App. 127, 549 S.E.2d 563 (2001). Upon our review of the transcript and the record onappeal, the trial court did not abuse its discretion by finding that the one aggravating factor outweighed the one mitigating factor. Because defendant has neither cited any authority nor stated any reason or argument in support of his remaining assignment of error, it is deemed abandoned. N.C.R. App. P. 28(b)(6) (2001).
    Affirmed; Remanded for correction of clerical error.
    Judges McCULLOUGH and CALABRIA concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***