State v. Simpson, (02-1519) 11/18/2003

Appeal by defendant from judgment entered 3 July 2002 by Judge Thomas D. Haigwood in Martin County Superior Court. Heard in the Court of Appeals 6 October 2003.

Attorney General Roy Cooper, by Assistant Attorney General Tina Lloyd Hlabse, for the State.

Angela Humes Brown, for defendant-appellant.

GEER, Judge.

    Defendant Nathaniel Lee Simpson pled guilty to first degree burglary, felonious larceny, felony breaking and entering a motor vehicle, and habitual felon status. Defendant's sole argument on appeal is that the trial court erred in finding, for purposes of sentencing, the aggravating factor that the victim was physically infirm. Because defendant chose as his victim an 86-year-old woman in a nursing home, who could only walk short distances without a wheelchair, we find no error.
    With regard to the first degree burglary and felonious larceny charges, the summary of the evidence presented by the prosecutor shows that at approximately 1:00 a.m. on 31 March 2001, defendant entered the room of Ms. Margaret Duncan, a resident of the VintageInn Nursing Home. Upon awakening and observing defendant rummaging through a box of her personal items, Ms. Duncan asked defendant what he was doing. He told Ms. Duncan that he was fixing her something to eat and that her husband had sent him to check on her. Because her husband had passed away many years before, Ms. Duncan rang her bedside buzzer for assistance. Defendant fled from the room. The police subsequently found a necklace and change that belonged to Ms. Duncan at defendant's residence.
    The defense indicated that had the case gone to trial, the evidence would have shown that defendant was meeting a friend at the nursing home and, while waiting for his friend, he began chatting with Ms. Duncan in her room. While she was not looking, defendant took her necklace.
    The court consolidated the offenses and sentenced defendant within the aggravated range to a minimum of 190 months and a maximum of 237 months. As the sole aggravating factor, the court found that the victim was physically infirm. Defendant assigns error to the finding of this aggravating factor.
    When error is assigned to the imposition of a sentence, the appellate court is required to determine whether the sentence imposed by the trial court is supported by evidence introduced at the trial or sentencing hearing. State v. Deese, 127 N.C. App. 536, 540, 491 S.E.2d 682, 685 (1997). To vary from the presumptive term, the trial court must find the existence of one or more of the aggravating and mitigating factors listed in N.C. Gen. Stat. § 15A- 1340.16 (2001). State v. Hilbert, 145 N.C. App. 440, 442, 549S.E.2d 882, 884 (2001). The decision whether to depart from the presumptive range of sentences and to impose a sentence within the aggravated or mitigated range is within the discretion of the trial judge. N.C. Gen. Stat. § 15A-1340.16(a).
    The purpose of aggravating factors "is to punish more severely those defendants who have acted with culpability beyond that necessary to commit the crimes of which they stand convicted." State v. Thompson, 318 N.C. 395, 397-98, 348 S.E.2d 798, 800 (1986). Certain aggravating factors are established by statute, including the factor that "[t]he victim was very young, or very old, or mentally or physically infirm, or handicapped." N.C. Gen. Stat. § 15A-1340.16(d)(11). The defendant is considered more culpable or blameworthy because of the victim's increased vulnerability. State v. Hines, 314 N.C. 522, 525, 335 S.E.2d 6, 8 (1985). The policy underlying these aggravating factors is to deter wrongdoers from targeting victims because of their age or mental or physical infirmity and resulting inability to defend, flee, or prevent the crime. Deese, 127 N.C. App. at 540, 491 S.E.2d at 685.
    Defendant argues that the evidence is insufficient to show that Ms. Duncan's physical infirmity inhibited her ability to flee, fend off an attack, or otherwise avoid being victimized. We disagree.
    Defendant knew that he was victimizing a nursing home resident. Nursing home residents are generally elderly and infirm and less able to defend themselves from attack or victimization. Indeed, the victim in this case, Ms. Duncan, was 86 years old and was primarily confined to a wheelchair, thereby making her less able to flee, defend herself, or deter commission of the crime. Under these circumstances, defendant was more culpable and blameworthy and the trial court properly made the finding of the aggravating factor. We find no abuse of discretion.

    No error.
    Judges McGEE and HUDSON concur.
    Report per Rule 30(e).

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