Appeal by defendant from judgment entered 14 October 2003 by
Judge Marcus L. Johnson in Mecklenburg County Superior Court.
Heard in the Court of Appeals 13 January 2005.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General James A. Wellons, for the State.
Michael E. Casterline for defendant-appellant.
Henry Louis Nicholson (defendant) appeals from judgment
dated 14 October 2003 entered consistent with a jury verdict
finding him guilty of assault with a deadly weapon with intent to
kill inflicting serious injury. After careful review, we find no
error in the trial. However, we remand for resentencing based on
the trial court's erroneous finding of the aggravating factor of
taking advantage of a position of trust.
The evidence tends to show that on 13 October 2002 defendant
spent most of the day playing cards and drinking beer with Angela
McCray (McCray) and Addie Pittmon (Pittmon), McCray's mother,
at their apartment. Sometime that day, McCray's three non-
custodial children were brought to the apartment for a visit. That
evening, McCray, Pittmon, McCray's custodial daughter, the three
non-custodial children, and defendant got into defendant's truck,
driven by Pittmon, to return the non-custodial children to their
paternal grandmother's house. During the trip, McCray and
defendant began to argue, as was common between the two. The
argument continued throughout the trip and was still ongoing when
they arrived back at their apartment. Pittmon got out of the truck
and sat down on a small step in front of the apartment building to
smoke. Defendant exited the truck and ordered McCray to get out as
well. The two continued to argue in front of the truck.
Defendant grabbed McCray by her shirt and pulled her around
the corner of the apartment building, out of Pittmon's sight.
McCray attempted to escape defendant's grasp by slipping out of her
shirt. McCray cried out for Pittmon's help. Pittmon ran around tothe side of the apartment building where she found McCray sitting
on the ground. Pittmon saw defendant walking away along the fence
behind the apartment complex. McCray looked up at Pittmon and then
passed out. Pittmon saw blood gushing from stab wounds on McCray's
back and called out for help.
Evidence and testimony further show that Nicholas Lanier
(Lanier), while on his way to visit his girlfriend in a nearby
apartment, heard McCray scream out for Pittmon. When Lanier looked
in the direction of the scream, he saw a male kicking and punching
a female who was lying on the ground. Lanier testified that the
assailant stopped assaulting the female and walked away along the
fence at the back of the apartment complex when he saw Pittmon
coming towards him.
Paramedics arrived on the scene to transport McCray to the
hospital for immediate medical attention. Upon arrival, paramedics
believed McCray was dead based on the amount of blood at the scene
and the lack of pulse in McCray's wrist. During transport, McCray
ceased breathing, at which time she was considered clinically dead.
Upon arrival at the Emergency Department of the Carolinas Medical
Center, Chief Resident, Dr. Michael Fitch (Dr. Fitch), observed
five wounds during his examination, one on McCray's upper-right
chest below the collar bone, and four on the right side of her
back. Each of these wounds was approximately one centimeter in
length. Dr. Fitch testified, after being recognized as an expert
in emergency medicine, that it was his opinion that all five wounds
were life-threatening wounds, all made by a sharp instrument, suchas a knife. Dr. Fitch further testified that the prompt medical
attention was critical to McCray's survival.
Defendant was convicted by jury verdict of assault with a
deadly weapon with intent to kill inflicting serious injury and
attempted voluntary manslaughter. The trial court arrested
judgment on the attempted voluntary manslaughter charge, found
taking advantage of a position of trust as an aggravating factor,
found no mitigating factors, and sentenced defendant to 167 to 210
months on the assault with a deadly weapon with intent to kill
inflicting serious injury conviction. Defendant appeals.
The issues in this case are whether: (1) the trial court
erred in denying defendant's motion to dismiss the assault charge
based on insufficient evidence of the intent to kill element; (2)
the trial court erred in imposing an aggravated sentence upon the
defendant when the finding of an aggravating factor was not
supported by the record; and (3) the trial court improperly
sentenced defendant in the aggravated range when the aggravating
factor was neither alleged in an indictment nor submitted to a
 By his first assignment of error, defendant contends the
trial court erred in denying his motion to dismiss the assault
charge, as the evidence presented was insufficient to give rise to
an inference of intent to kill, based on the nature of the assault,
the manner in which it was made, the conduct of the parties, or
other relevant circumstances. We disagree. The standard to be applied in ruling on a motion to dismiss
for insufficiency of the evidence is whether there was substantial
evidence supporting each element of the offense charged. State v.
, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. State v. Smith
N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). An intent to kill is
a matter for the State to prove, and is ordinarily shown by proof
of facts from which an intent to kill may be reasonably inferred.
State v. Thacker
, 281 N.C. 447, 455, 189 S.E.2d 145, 150 (1972)
(citations omitted), disapproved on other grounds
, North Carolina
, 441 U.S. 369, 60 L. Ed. 2d 286 (1979). This inference
may be made from the nature of the assault, the manner in which the
assault was made, the conduct of the parties, or from any other
relevant circumstance. See State v. Revels
, 227 N.C. 34, 36, 40
S.E.2d 474, 475 (1946). In Thacker,
the Court found ample evidence
of intent to kill where the defendant repeatedly stabbed the victim
in vital areas of the body with a six-inch knife blade. Thacker
281 N.C. at 455, 189 S.E.2d at 150. In so finding, the Court
stated, [t]he viciousness of the assault and the deadly character
of the weapon used constitute [co]mpelling proof from which [the]
defendant's intent to kill may be inferred. Id.
Similar to the evidence in Thacker
, there is ample evidence in
the record from which a jury may reasonably infer that defendant
intended to kill McCray. See id.
Such evidence includes the
repeated stabbings of McCray, once in the chest and four times inthe back, as well as the continued punching and kicking of McCray
by defendant after the stabbings. The nature of the assault, as
evidenced by both the fighting between defendant and McCray and her
attempts to disengage from the argument and escape the grasp of
defendant, as well as the deadly character of the weapon used in
the attack constitute sufficient proof from which defendant's
intent to kill may be reasonably inferred.
As sufficient evidence was offered to permit a reasonable
inference of defendant's intent to kill, we therefore find the
trial court committed no error in denying defendant's motion to
dismiss for insufficient evidence.
 Defendant next contends the trial court erred in imposing
an aggravated sentence when the finding of an aggravating factor is
not supported in the record. We agree. However, defendant failed
to object at trial to the enhancement of his sentence and properly
preserve this issue for appellate review pursuant to Rule 10 of the
North Carolina Rules of Appellate Procedure. N.C.R. App. P. 10(b).
Nonetheless, in the interest of justice, we will consider the
merits of this assignment of error pursuant to Rule 2 of the Rules
of Appellate Procedure. N.C.R. App. P. 2.
N.C. Gen. Stat. . 15A-1340.16(d)(15) (2003) permits the
imposition of an aggravated sentence during the sentencing phase of
a trial if it is found that defendant took advantage of a position
of trust or confidence, including a domestic relationship, to
commit the offense. Id.
A finding of the position of trustaggravating factor depends on the existence of a relationship
generally conducive to reliance of one upon the other. See State
, 319 N.C. 308, 311, 354 S.E.2d 216, 218 (1987). [T]he
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. Distance
163 N.C. App. 711, 718, 594 S.E.2d 221, 226 (2004) (citation
Here, the trial court found evidence of the aggravating factor
based on the relationship that existed between Pittmon and
defendant. The trial court stated:
[T]he mother of the victim, under the
circumstances of this case, it appears that
she certainly would have intervened, but for
the fact that the defendant was a son of her
boyfriend; and, a friend of her daughter.
That is, she saw her daughter being
dragged, behind the apartments, after getting
out of the car, following an argument. But,
nevertheless, with the defendant being a
friend of her boyfriend and having dated her
daughter, she didn't feel sufficiently
alarmed, that she should try to intervene.
And, under these circumstances, had it
been a stranger, or some acquaintance of no
relationship or confidence, then, under these
facts, it appears quite certain that she would
have jumped out of that truck and run, when
she saw her daughter being pulled behind those
Our courts have found a position of trust in very limited
circumstances. See State v. Mann
, 355 N.C. 294, 319, 560 S.E.2d
776, 791 (2002). In Mann,
the relationship between the defendant
and his co-worker victim was found to show an amicable workingrelationship, at most a friendship. Mann
, 355 N.C. at 319-20, 560
S.E.2d at 792. The finding of a position of trust as an
aggravating factor based on this amicable working relationship was
found to be error, as such a relationship was found to be
insufficient to establish a position of trust. Id
. A similar
relationship to that seen in Mann
existed between Pittmon and
defendant. See id.
The evidence shows an amicable but causal
relationship between the parties, who were connected by mutual
acquaintances, the victim, and Pittmon's boyfriend, who was
The State contends that a position of trust existed between
Pittmon and defendant due to Pittmon's parental relationship with
the victim. While this Court has recognized a position of trust
aggravating factor in familial relationships when the child in
question is a minor, there is no precedent for such a finding where
the child in question is an adult. See State v. Daniel
, 319 N.C.
308, 354 S.E.2d 216 (finding a violation of a position of trust by
the mother of a newborn child); see also State v. Farlow
, 336 N.C.
534, 444 S.E.2d 913 (1994) (finding a violation of a position of
trust by defendant with a nine-year-old victim). In Daniel
Court's finding of a violation of a position of trust as an
aggravating factor was based on the dependency of the infant on its
mother and the mother's singular responsibility for the child's
, 319 N.C. at 311, 354 S.E.2d at 218. The
dependency of a child on its mother prior to reaching the age of
majority serves as the basis for the court's statement that thefinding of an aggravating factor depends . . . upon the existence
of a relationship between the defendant and victim generally
conducive to reliance of one upon the other. Id
As McCray is not a minor child, the dependency of the
relationship between a minor child and parent is not at issue
(See footnote 1)
Thus, as the dependency aspect of the parental relationship
is not present, the evidence of record fails to establish that a
position of trust existed which defendant took advantage of in the
commission of the crime.
Furthermore, assuming arguendo
a position of trust did exist,
the evidence fails to show defendant abused the position of trust
in order to commit the assault. See State v. Marecek
, 152 N.C.
App. 479, 514, 568 S.E.2d 237, 259 (2002) (defendant husband not
found to have abused his position of trust in order to murder his
wife, where wife distrusted and feared him); see contra State v.
329 N.C. 128, 143-44, 404 S.E.2d 822, 831-32 (1991)
(defendant wife found to have abused her position of trust in order
to carry out the conspiracy to have her husband murdered, where
husband believed wife had come to her senses and ended her affair).
In no way were defendant's actions a result of his having taken
advantage of the relationship he had with Pittmon. To thecontrary, the evidence tends to show that defendant's actions were
accomplished as a result of the use of force alone. Defendant and
McCray were arguing when defendant grabbed McCray by her shirt and
pulled her around the building. McCray responded to this use of
force by scratching and clawing at defendant in an attempt to free
herself. This evidence fails to support a finding that defendant
used and abused an assumed position of trust with Pittmon in order
to commit the assault on McCray.
For the reasons stated herein, we find no error in the trial.
However, as we find the trial court erred in its finding and
application of the aggravating factor of abuse of a position of
trust, we remand the case for resentencing consistent with this
No error in trial; remanded for resentencing.
Judges BRYANT and JACKSON concur.