State v Pestrikoff, (02-1380) 07/01/2003

Appeal by defendant from judgment entered 15 May 2002 by Judge William Z. Wood, Jr. in Superior Court, Forsyth County. Heard in the Court of Appeals 23 June 2003.

Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State.

Gilda C. Rodriguez for defendant-appellant.

WYNN, Judge.

    Defendant entered Alford pleas of guilty to charges of second- degree murder of his four-year-old son and felony child abuse. See North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162 (1970). On appeal, defendant assigns error to the trial court's (1) finding of an aggravating factor, (2) failure to find statutory and non- statutory mitigating factors, and (3) the trial court's conclusion that the aggravating factors outweighed the mitigating factors. After carefully reviewing the record, we find no error.
    On 8 October 2001, the Forsyth County grand jury charged defendant with first-degree murder for the 30 March 2001 death of his four-year-old son. The grand jury returned a supersedingindictment on 1 April 2002 which charged defendant with felony child abuse. Defendant filed a motion to suppress his taped interview with police, which was denied by the trial court prior to entry of his Alford pleas of guilty on 13 May 2002.
    At the plea hearing and the sentencing hearing, the State summarized the evidence as follows: After midnight on 30 March 2001, defendant awakened and found his four-year-old son touching his two-year-old half-sister inappropriately. Defendant became angry and yelled for his son to put on his overalls. Defendant then grabbed the shoulder strap of the overalls and threw the child into his bedroom. The child hit the corner of the bed. Defendant then returned to his bedroom and turned up the television so that he would not hear the child's crying. At 6:30 a.m., defendant discovered the child was barely breathing and had a very thin pulse. Despite emergency medical treatment, the child was declared brain dead at 4:30 p.m. Defendant gave a statement to police consistent with the preceding facts.
    The trial court consolidated the offenses for judgment and found two aggravating factors for the offense of second degree murder: (1) that the victim was very young, and (2) that defendant took advantage of a position of trust or confidence to commit the offense. The trial court then found two mitigating factors: (1) that defendant voluntarily acknowledged wrongdoing to a law enforcement officer at an early stage of the criminal process, and (2) that defendant supports his family. After finding that the aggravating factors outweighed the mitigating factors, the trialcourt imposed an aggravated sentence of 237 to 294 months imprisonment. From the trial court's judgment, defendant appeals.
    Defendant first contends the trial court erred by finding as an aggravating factor that he had taken advantage of a position of trust or confidence. He argues the finding is contrary to N.C. Gen. Stat. § 15A-1340.16(d) (2002) which prohibits the use of evidence needed to prove an offense from being used to aggravate a defendant's sentence. We disagree.
    While “[e]vidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation,” N.C. Gen. Stat. § 15A-1340.16(d), “[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. Crockett, 138 N.C. App. 109, 119, 530 S.E.2d 359, 365 (2000). Here, the trial court used evidence of defendant's relationship to the victim, which was an element of felony child abuse, to prove an aggravating factor for second degree murder. However, the trial court made no findings of aggravating factors as to the felony child abuse. The trial court's findings of aggravating and mitigating factors were clearly used to aggravate the sentence imposed for the offense of second degree murder. See N.C. Gen. Stat. § 14-7 (2002); see also N.C. Gen. Stat. § 15A-1340.17(c) (2002). Accordingly, this assignment of error is overruled.
    Defendant next contends the trial court erred by failing to find three statutory mitigating factors and by concluding the aggravating factors outweighed the mitigating factors. He arguesthe trial court should have found that: (1) he accepted responsibility for his conduct; (2) he had a positive employment history or was gainfully employed; and (3) he could not reasonably foresee that his conduct would cause or threaten serious bodily harm or fear. We disagree.
    Although the trial court did not find that defendant accepted responsibility for his conduct, the transcript shows defendant had filed a motion to suppress his statement to officers. By moving to suppress his statement, defendant repudiated it and is not entitled to use that evidence to prove this mitigating factor. See State v. Davis, 124 N.C. App. 93, 100, 476 S.E.2d 453, 457-58 (1996), disc. review denied, 345 N.C. 349, 483 S.E.2d 181 (1997). We note the trial court did, nevertheless, find as a mitigating factor that “defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer . . . at an early stage of the criminal process.”
    Next, in arguing that the trial court's failure to find he had a positive employment history or was gainfully employed is at odds with its finding that he supports his family, defendant asserts that he “had to have been gainfully employed” in order to support his family. However, “the same evidence may not support more than one mitigating factor.” State v. Mixion, 110 N.C. App. 138, 153, 429 S.E.2d 363, 372, disc. review denied, 334 N.C. 437, 433 S.E.2d 183 (1993). Accordingly, the trial court did not err by not finding this mitigating factor.
    Defendant also argues his actions were not premeditated andthat he “lost his ability to think clearly and threw his son across the room.” He asserts that the trial court should have found as a mitigating factor that he could not reasonably foresee that his conduct would cause or threaten serious bodily harm or fear. However, “[t]his mitigating factor is available only when a defendant exercises caution to prevent or cannot reasonably foresee harm that actually occurs.” State v. Kornegay, 70 N.C. App. 579, 583, 320 S.E.2d 421, 423 (1984). After throwing his four-year-old child into the bedroom in such a manner that the child hit the corner of the bed, defendant returned to his bedroom and did not check on the child until five and a half to six and a half hours later. Upon our review of the record, the trial court properly declined to find this mitigating factor.
    As for the nonstatutory mitigating factors which defendant contends the trial court chose to ignore, “a trial judge's failure to find a nonstatutory mitigating factor, even when that factor is (1) requested by defendant; (2) proven by uncontradicted, substantial, and manifestly credible evidence; and (3) mitigating in effect, will not be disturbed absent a showing of abuse of discretion.” State v. Swimm, 316 N.C. 24, 29, 340 S.E.2d 65, 69 (1986). Such a discretionary ruling “will be upset on appeal only when defendant shows that the ruling could not have been the result of a reasoned decision.” State v. Hayes, 323 N.C. 306, 317, 372 S.E.2d 704, 710 (1988); see also State v. Wampler, 145 N.C. App. 127, 132-33, 549 S.E.2d 563, 568 (2001). Upon our review of the record and of the trial court's findings of statutory mitigatingfactors, we find no abuse of discretion.
    Although defendant failed to present any argument in support of his contention that the trial court erred in concluding the aggravating factors outweighed the mitigating factors, see N.C. R. App. P. 28(b)(6), we note, nevertheless, that the weighing of those factors by the trial court is discretionary. Wampler, 145 N.C. App. at 132-33, 549 S.E.2d at 568. Having reviewed the two aggravating factors and two mitigating factors found by the trial court, no abuse of discretion is evident.
    No error.
    Judges TYSON and STEELMAN concur.
    Report per Rule 30(e).

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