An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1187


Filed: 1 July 2003


v .                         Pasquotank County
                            No. 96 CRS 5138

    Appeal by defendant from judgment entered 4 November 1997 by Judge Jerry R. Tillett in Pasquotank County Superior Court. Heard in the Court of Appeals 10 June 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Lisa Granberry Corbett, for the State.

    Everett & Hite, L.L.P., by Kimberly A. Swank, for defendant.

    TYSON, Judge.

Ricky Lee McPherson (“defendant”) petitioned for and received a writ of certiorari from judgment entered upon a guilty plea to first-degree rape. Defendant was sentenced to a term of 420 to 513 months confinement for first-degree rape. Defendant received a concurrent sentence for first-degree burglary committed at the time of the rape.

I. Background
    In the early morning hours of 16 November 1996, seventy-two year-old Kathleen Gaskins (“victim”) was awakened from her sleep inher home by a noise. Victim visited the restroom, returned to her bedroom, sat on her bed, and smoked a cigarette. Victim looked up to see defendant standing in her bedroom. Victim knew defendant because his mother dated victim's son. Defendant had stayed in victim's home on occasion. Victim did not scream out, but informed defendant that his mother was sleeping upstairs with victim's son. Defendant asked victim for a cigarette. She gave him a cigarette and he smoked it. Defendant asked for another cigarette to smoke later, and victim gave him one.
    As victim arose from the bed, defendant grabbed her by the neck, pulled a knife, and threatened her. Defendant raped victim vaginally and anally with his penis and fingers. Defendant beat victim around her face, spraining her neck and knee. Victim blacked out as defendant tried to smother victim with a pillow. Defendant was ejaculating when she regained consciousness. Victim ran out of the house to the home of her neighbor, Ms. Freshwater. Ms. Freshwater testified that she had heard screams coming from victim's home.
    The police were called, arrived at victim's house, and discovered victim's TV was missing. A witness on the street stated that he saw defendant leave with a TV. Officers found the TV at the home of Pig Eason, who told police that defendant had sold him the TV. The police searched a vacant house where defendant stayedon occasion and found many of victim's personal items. Defendant was apprehended, and charged with and pled guilty to first-degree rape and first-degree burglary.
II. Issues
    The issues are (1) whether the imposition of an aggravated sentence was error due to insufficient evidence that (a) defendant took advantage of a position of trust or confidence or (b) victim was physically infirm or handicapped, (2) whether the trial court erred by failing to find statutory mitigating factors after evidence was presented, and (3) whether the trial court erred by failing to credit defendant for time served.
III. Aggravated Sentence Factors
A. Position of Trust or Confidence
    Defendant contends that insufficient evidence was submitted for the trial court to find the aggravating factor that defendant “took advantage of a position of trust or confidence to commit the offense.” The State bears the burden of proving by a preponderance of the evidence the existence of each and every factor found in the aggravation of a defendant's sentence. N.C.G.S. § 15A-1340.16(a) (2002). The evidence presented must establish a relationship between the victim and the defendant that was “generally conducive to reliance of one upon the other.” State v. Daniel, 319 N.C. 308, 311, 354 S.E.2d 216, 218 (1987).    “'[O]ur courts have upheld a finding of the 'trust or confidence' factor in very limited factual circumstances.'” State v. Marecek, 152 N.C. App. 479, 514, 568 S.E.2d 237, 259 (2002)(quoting State v. Mann, 355 N.C. 294, 319, 560 S.E.2d 776, 791, cert. denied, __ U.S. __, 154 L. Ed. 2d 403 (2002)). Marecek held that the relationship of husband and wife does not per se support a finding of trust or confidence. Id. at 514, 568 S.E.2d at 259.
    Cases upholding a finding of trust or confidence require more than a victim's knowledge of or acquaintance with the defendant.
        See, e.g., State v. Farlow, 336 N.C. 534, 444 S.E.2d 913 (1994) (factor properly found where nine-year-old victim spent great deal of time in adult defendant's home and essentially lived with defendant while mother, a long-distance truck driver, was away); State v. Arnold, 329 N.C. 128, 404 S.E.2d 822 (1991) (factor properly found in husband-wife relationship); State v. Potts, 65 N.C. App. 101, 308 S.E.2d 754 (1983), disc. review denied, 311 N.C. 406, 319 S.E.2d 278 (1984) (factor properly found where defendant shot best friend who thought of defendant as a brother); State v. Baucom, 66 N.C. App. 298, 311 S.E.2d 73 (1984) (factor properly found where adult defendant sexually assaulted his ten-year-old brother); State v. Stanley, 74 N.C. App. 178, 327 S.E.2d 902, disc. review denied, 314 N.C. 546, 335 S.E.2d 318 (1985) (factor properly found where defendant raped nineteen-year-old mentally retarded female who lived with defendant's family and who testified that she trusted and obeyed defendant as an authority figure).

State v. Rogers, __ N.C. App. __, __, __ S.E.2d __, __ (2003).
    The evidence at bar shows victim knew defendant through his mother's relationship with victim's son. Defendant had stayed at victim's home prior to the incident because of his mother's involvement with victim's son. While the victim knew defendant, no evidence of record indicates a relationship of trust and confidence existed. The trial court erred in finding this aggravating factor.
B. Infirmness or Handicap of Victim
    Defendant contends that the trial court erred in finding that the victim's infirmness or handicap aggravated his sentence for first-degree rape. The victim's vulnerability is the most important element of the aggravating factor of physical infirmity or handicap. State v. Handy, 331 N.C. 515, 534, 419 S.E.2d 545, 555 (1992). The State must show by a preponderance of the evidence
        (1) that at the time of the offense, the victim was suffering from a physical infirmity that impeded the victim's ability to flee, fend off the attack, recover from the effects of the attack, or otherwise avoid being victimized; and (2) that the defendant either targeted the victim because of the victim's infirmity or took advantage of the victim's infirmity during the actual commission of a crime, knowing that the victim by reason of his infirmity, would be unlikely to intervene or defend himself effectively.

Id. at 534, 419 S.E.2d at 555.
    The State presented evidence that victim's physical conditionmade it difficult for her to escape from defendant. Evidence showed the seventy-two year-old victim suffered impaired hearing in one ear, walked with an impaired gait, was 5'4" tall, and weighed approximately 150 pounds. Defendant contends that: (1) no evidence was offered to show that the victim was more vulnerable due to her physical condition; and, (2) the victim's partial deafness was irrelevant and insufficient to aggravate the rape conviction due to physical infirmity. Presuming without deciding victim's partial deafness in one ear was irrelevant to her ability to prevent the rape, evidence of the victim's impaired gait and infirmity due to age and overall physical condition were sufficient for the court to find the aggravating factor. This assignment of error is overruled.
IV. Mitigating Factors
    Defendant contends that the trial court erred by not finding statutory mitigating factors by uncontradicted evidence that (1) defendant has a support system in the community and, (2) defendant is gainfully employed or has a positive employment history. The trial court must find the existence of a mitigating factor where the evidence offered in support of the factor is uncontradicted and substantial. State v. Jones, 309 N.C. 214, 218-19, 306 S.E.2d 451, 454 (1983).
    Defendant submitted no evidence to support the factor duringthe sentencing hearing, but elicited, through his counsel's summary, that: (1) defendant's brother, mother, sister-in-law, and other family members and friends were present and supported the defendant; and, (2) defendant was employed prior to his arrest as a house framer. During the sentencing hearing, the State presented evidence that defendant was practically homeless and had exchanged victim's television for drugs. We find the State's evidence presented during the sentencing hearing sufficiently rebuts the general statements of defendant's counsel. The trial court did not commit error in failing to find those mitigating factors.
V. Credit for Time Served
    Defendant assigns error to the trial court's failure to credit defendant for his time served prior to sentencing on the first- degree rape judgment. The trial court credited defendant with 353 days for time spent in confinement on the burglary charge. The State concedes the trial court's error. “Each concurrent sentence shall be credited with so much of the time as was spent in custody due to the offense resulting in the sentence.” N.C.G.S. § 15-196.2 (2001). The State requests that defendant should not be credited for any days he spent eluding law enforcement after escaping from the mental hospital. This issue may be addressed by the trial court upon remand for correction of the sentence.
VI. Conclusion
    The trial court erred in finding the aggravating factor of abuse of trust and confidence. Generally, a finding “that the judge erred in a finding or findings in aggravation and imposed a sentence beyond the presumptive term, the case must be remanded for a new sentencing hearing.” State v. Ahearn, 307 N.C. 584, 602, 300 S.E.2d 689, 701 (1983). Here, the trial court made an additional non-statutory aggravating factor the defendant did not appeal from and found:
        [t]hat each and every one of the aggravating factors is alone, in and of itself a sufficient basis for imposing the sentence imposed and the basis for aggravating the sentence imposed and each aggravating factor, in and of itself, outweighs all mitigating factors.

    In so finding, the trial court has shown on the record how it viewed the evidence and balanced the factors. This Court's opinion in State v. Norman, 151 N.C. App. 100, 564 S.E.2d 630 (2002) held that making such finding eliminated remand for a re-sentencing hearing.
        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.

Norman, 151 N.C. App. at 104, 564 S.E.2d at 633. Based upon this precedent, we find the error in the trial court's finding of one aggravating factor to be harmless where other supported aggravatingfactors were found. The trial court need not re-weigh the evidence on remand.
    On remand, the trial court should calculate the credit for time served by subtracting the total 353 days between arrest and trial, and credit these days to defendant's sentence for first- degree rape, unless the State proves a lesser credit is due to defendant.
Remanded for correction of sentence.
    Chief Judge EAGLES and Judge STEELMAN concur.
    Report per Rule 30(e).

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