Thе sole issue raised in this appeal is the propriety of the sentencing judge’s finding that defendant’s second degree sexual offense was especially heinous, atrociоus, or cruel. See N.C. Gen. Stat. § 15A-1340.4(a)(l)f. We conclude there is no evidence to support this finding, reverse the decision of the Court of Appeals, and remand for a new sentencing hearing.
I.
On 21 May 1983 the victim retired for the evening to the bedroom in her apartment. At approximately 6:20 the next morning, she was awakened by the force of another person sitting down on the edge of her bed. As she began to scream, the intruder attempted to cover her mouth and told her that he would hurt her if she did not keep quiet. The two struggled briefly. The intruder eventually succeeded in turning the victim over onto her stomach. He placed a sheet over her and a pillow over the back of her head. He then engaged in anal intercourse with her and left. *274 After he left the victim went to the apartment of a neighbor who called the police.
At trial the victim identified defendant as her assailant. Defendant was conviсted by a jury of felonious breaking and entering and second degree sexual offense. Upon defendant’s conviction Judge Llewellyn sentenced him to two consecutive prison terms of eight and sixteen years for the breaking and entering and second degree sexual offenses respectively. The presumptive sentence for a second degree sex offense, a Class D felony, is twelve years. N.C. Gen. Stat. § 14-27.5(b) and 15A-1340.4(b).
On defendant’s appeal, the Court of Appeals found no error in either the guilt or sentencing phases of defеndant’s trial. Judge Eagles dissented, however, as to that court’s determination that the evidence supported the trial judge’s finding that the sex offense was especially heinous, atrоcious, or cruel. Defendant appeals the decision of the Court of Appeals on that issue as a matter of right. N.C. R. App. P. 16(b).
II.
We are again called upon to analyze the meaning and explicate the perimeters of the aggravating factor that an offense is especially heinous, atrocious, or cruel. We have previоusly explained that in an inquiry regarding the applicability of this aggravating factor, “the focus should be on whether the facts of the case disclose
excessive
brutality, or physical pain, рsychological suffering, or dehumanizing aspects
not normally present in that
offense.”
State v. Blackwelder,
For example, in determining whether a particular manslaughter is especially heinous, atrocious, or cruel, a sentencing court should compare the facts before it with facts “normally present” in other manslaughters. We have affirmed a trial court’s determination that the voluntary manslaughter of an infant was especially heinous, atrocious, or cruel when the victim “was beaten to death—struck against a bedpost with such force that it shattered his cast and crushed his skull. . . . His injuries were
*275
multiple, and death was not immediate.”
State v. Ahearn,
A person commits a second degree sexual offense by engaging in a sexual act with another person by force and against the will of that other person. N.C. Gen. Stat. § 14-27.5(a)(l). A sexual act “means cunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse [and] also means the penetration, however slight, by any objеct into the genital or anal opening of another person’s body [except] for accepted medical purposes.” N.C. Gen. Stat. § 14-27.1(4). In deciding whether a particulаr second degree sex offense is especially heinous, atrocious or cruel, the facts should be compared with facts which are normally present in any second degree sex offense, however the offense may be committed. But since anal intercourse, or any other sexual act specified in the statute, when it is relied on for conviction, constitutes an essential element of a second degree sex offense, it is clear that proof of such a sexual act forcibly committed, standing alone, is never enough to make a sex offense especially heinous, atrocious, or cruel. This is so because “[ejvidence necessary to prove an element of the offense may not be used to prove any factor in aggravation.” N.C. Gen. Stat. § 15A-1340.4(a)(l).
In the instant case, the jury convicted defendant of second degree sexual offensе based upon the victim’s testimony that defendant forcibly and against her will engaged in anal intercourse with her. Anal intercourse requires penetration of the anal opening of the victim by the penis of a male.
See State v. Lucas,
*276
The question is whether there are herе circumstances in evidence in addition to the fact of forcible anal penetration by defendant’s penis which would support the aggravating factor as it was defined in Blackwelder. A mаjority of the Court of Appeals characterized what it considered to be such circumstances as follows:
Unquestionably, the prosecutrix’s anus was mutilated as the record shows that the prosecutrix sustained several small fissures in the skin around her anus and one fairly large fissure at the posterior wall of the anus. The placement of the pillow ovеr the prosecutrix’s head, thereby adding to the prosecutrix’s ordeal, was an activity not normally present in a sexual offense. The prosecutrix could have smothered to death. Finally, the sentencing judge was best able to judge the demeanor of the victim.
State v. Atkins,
It is true that Dr. Robert L. Smith, the physician who examined the victim, testified: “The rectal examination showed several small fissures or breaks in the skin around the anus, with one fairly large fissure at the posterior wall of the anus. The rectal exam with the finger revealed no masses or internal trаuma.” But on cross-examination he concluded that it was possible for the fissures he observed to have been caused by the body’s natural waste elimination process. We view this concession as evidence that the fissures observed by Dr. Smith did not constitute significant injury. This was the only evidence characterizing the physical condition of the victim’s body after the attack. The Court of Appeals may have correctly observed that placing a pillow over the victim’s head is not an activity normally present in a sex offense case. But the victim’s testimony, which was the sole evidence on this issue, indicated that defendant used the pillow over the back of her head only to prevent her from observing him, not in аn effort to smother or otherwise harm her.
The anal fissures described by Dr. Smith are hardly more than evidence that the anal intercourse was forcible. Defendant did not use the pillow to further harm the victim but to shield *277 him from her sight. Although more serious anal injury even in an anal intercourse sex offense case or the use of a pillow or other device for the purpose of inflicting additional physical harm or psychological terror might call for a different result, we conclude the facts here do not “disclose excessive brutality, or physical pain, psychological suffering, or dehumanizing aspects not normally present in" second degree sex offenses within the meaning of the Blackwelder standard.
Finally, the Court of Appeals’ determination that “the sentencing judge was best able to judge the demeanor of the victim” is of no aid in determining whether this sexual offense could be found especially heinous, atrocious, or cruel. Accepting all of the state’s evidence as true, we are still unable to conclude that it was sufficient to support such a finding.
Our review of the entire record leads us to conclude that the trial judge erred in finding the second degree sexual offense here committed was especially heinous, atrocious, or cruel. We reverse the decision of the Court of Appeals on that issue and remand the matter to the Court of Appeals for further remand for resentencing to Wayne County Superior Court.
See State v. Ahearn,
Reversed and remanded.