State v. Gaynor

VAUGHN, Chief Judge. Defendant’s appeal, pursuant to G.S. 15A-1444(al), is limited to the issue of whether her sentence is supported by the evidence introduced at the sentencing hearing. State v. Davis, 58 N.C. App. 330, 293 S.E. 2d 658 (1982). She contends that the trial court erred in finding each of the aggravating factors and in concluding that the aggravating factors outweighed the mitigating factors. Defendant argues that the court erred in finding, as an aggravating factor, that she used a deadly weapon. We agree. “Evidence necessary to prove an element of the offense may not be used to prove any factor in aggravation. . . .” G.S. 15A-1340.4 (a)(1). In this case the offense was second degree murder which was committed by defendant shooting her victim with a rifle. Murder in the second degree is “the unlawful killing of a human being with malice, but without premeditation and deliberation.” State v. Foust, 258 N.C. 453, 458, 128 S.E. 2d 889, 892 (1963). “The intentional use of a deadly weapon as a weapon, when death proximately results from such use, gives rise to the presumptions that (1) the killing was unlawful and (2) done with malice, and an unlawful killing with malice is murder in the second degree.” State v. Duboise, 279 N.C. 73, 81, 181 S.E. 2d 393, 398 (1971). In this case, the intentional use of the rifle, resulting in the victim’s death, composed the elements of second degree murder. On these facts the rifle was evidence necessary to prove an element of the offense, and cannot be used to prove any factor in aggravation. Defendant’s next argument is that the trial judge erred in finding, as an aggravating factor, that the victim was very old. Defendant contends that this finding was not supported by any *131 evidence. The psychiatric evaluation contained evidence, however, that defendant was thirty-seven years old, and the seventh of eight children, which indicates that the victim was very old. Every aggravating factor, however, must be “reasonably related to the purposes of sentencing.” G.S. 15A-1340.4(a). The purposes of sentencing are as follows: The primary purposes of sentencing a person convicted of a crime are to impose a punishment commensurate with the injury the offense has caused, taking into account factors that may diminish or increase the offender’s culpability; to protect the public by restraining offenders; to assist the offender toward rehabilitation and restoration to the community as a lawful citizen; and to provide a general deterrent to criminal behavior. G.S. 15A-1340.3. Under some circumstances the extreme old age or extreme youthfulness of the victim may increase the offender’s culpability. This is primarily because of the victim’s relative defenselessness; for example, assaulting a frail, elderly person may be more blameworthy than assaulting a strong young man. In this case, however, where the victim was shot with a rifle, we fail to see how the victim’s old age increased defendant’s culpability. Regardless of the age or strength of the victim, defendant’s single shot would have killed her in the same way. For this reason, we hold that the trial judge incorrectly found the victim’s age to be an aggravating factor. Defendant next contends that the trial judge erred in finding, as an aggravating factor, that the attack on her mother was premeditated. She argues that the same evidence, the rifle, was used to prove two factors in aggravation: the use of a deadly weapon and premeditation. Even if we had not found that the use of a deadly weapon should not have been an aggravating factor, defendant’s assignment of error is without merit. While it is true that “the same item of evidence may not be used to prove more than one factor in aggravation,” G.S. 15A-1340.4(a)(l), this aggravating factor was not based solely on the rifle, but was based on defendant’s actions in removing the rifle from its hiding place and, without any provocation, fatally wounding her mother in a planned assault. Moreover, defendant’s plea bargain for murder in the second degree does not preclude the trial judge from review *132 ing all the circumstances surrounding the offense in finding aggravating factors. State v. Melton, --- N.C. ---, --- S.E. 2d --- (417A82) (filed 11 January 1982). The aggravating factor of premeditation, when proven by a preponderance of the evidence, is reasonably related to the purposes of sentencing when a defendant pleads guilty to second degree murder. State v. Melton, supra. Defendant assigns as error the trial judge’s conclusion that the aggravating factors outweighed the mitigating factors. Although the weighing of the aggravating and mitigating factors is a matter within the sound discretion of the trial judge, State v. Davis, supra, in this situation, where two of the three aggravating factors were incorrect, we fail to see how the trial judge could have properly balanced the aggravating and mitigating factors. For the reasons stated, defendant’s sentence must be vacated, and the case remanded for resentencing. Vacated and remanded. Judges Wells and Whichard concur.