83 N.C. App. 37 | N.C. Ct. App. | 1986
Defendant’s sole contention is that the court should have found as an additional statutory mitigating factor that he played a minor role in the commission of the Hudson break-in. We disagree.
[enumerated in G.S. § 15A-1340.4(a)(2) are the statutory factors which must be considered by the sentencing judge. The mitigating factor urged here is included. ... A duty is placed upon the judge to examine the evidence to determine if it would support any of the statutory factors even absent a request by counsel. State v. Gardner, 312 N.C. 70, 320 S.E. 2d 688 (1984). The sentencing judge is required to find a statutory factor when the evidence in support of it is uncontradict-ed, substantial, and manifestly credible. State v. Jones, 309 N.C. 214, 306 S.E. 2d 451 (1983). Failure to find a statutory factor so supported is reversible error. See State v. Spears, 314 N.C. 319, 333 S.E. 2d 242 (1985).
State v. Cameron, 314 N.C. 516, 335 S.E. 2d 9 (1985).
Citing State v. San Miguel, 74 N.C. App. 276, 328 S.E. 2d 326 (1985), defendant contends the court should have found both that defendant was a passive participant and that he played a minor role in the commission of the offense even though these factors are listed in the same statutory subsection.
In San Miguel, the court found as factors in aggravation that defendants induced another to participate in the commission of the offense and that defendants occupied a position of leadership or dominance of other participants in the commission of the offense. Defendants contended that the court impermissibly divided the statutory aggravating factor in N.C. Gen. Stat. § 15A-1340.4 (a)(1)(a) into two parts and found each part as a separate factor. The Court disagreed and held that “if evidence is presented showing that a defendant induced another or others to participate . . . and separate evidence is presented showing that the defendant also led or dominated . . ., the court may find two separate aggravating factors.” San Miguel, supra. The Court reasoned:
The conduct referred to is of two types — first, inducing others and, second, leading or dominating others. The words used are not generally synonymous. See Black’s Law Dictionary 697 (rev. 5th ed. 1979) (“induce”); Webster’s New Collegiate Dictionary 653 (1977) (“lead”); see also Black’s Law Dictionary, supra, at 436 (“dominate”). Since G.S. 15A-1340.4 (a)(1)(a) is stated in the disjunctive, proof of either type of*40 conduct, by the preponderance of the evidence, is sufficient to support the finding of an aggravating factor. See In re Duckett, 271 N.C. 430, 437, 156 S.E. 2d 838, 844 (1967) (“the disjunctive . . . ‘or’ is used to indicate a clear alternative”); Davis v. Granite Corporation, 259 N.C. 672, 675, 131 S.E. 2d 335, 337 (1963); see also G.S. 15A-1340.4(a).
. . . One of the primary purposes of sentencing is to impose punishment commensurate with the injury caused, taking into account the factors which diminish or increase the offender’s culpability. See G.S. 15A-1340.3. Both inducing others to commit an offense and leading others during the commission of an offense constitute conduct which increases a defendant’s culpability. Since proof of either type of conduct, by the preponderance of the evidence, is sufficient to support the finding of an aggravating factor, proof of both types of conduct should suffice to support the finding of two aggravating factors so as to reflect the defendant’s greater culpability.
San Miguel, supra.
The factors here are less easily distinguished than those in San Miguel. A passive participant can be defined as one who has an inactive part in the commission of an offense. See Black’s Law Dictionary (rev. 5th ed., 1979) and Webster’s Third New International Dictionary (1976). A minor role can be defined as one in which the individual performs a comparatively unimportant function in the commission of an offense. See id. Despite the closeness of these definitions, they still can refer to separate types of conduct. Since N.C. Gen. Stat. § 15A-1340.4(a)(2)(c) is stated in the disjunctive, proof of either type of conduct is sufficient to support the finding of a mitigating factor. See San Miguel, supra.
We recognize that a defendant certainly can play an inactive part and perform a comparatively unimportant function in the commission of an offense. In fact, these types of conduct may overlap. See State v. Brown, 314 N.C. 588, 336 S.E. 2d 388 (1985) (evidence tended to show that far from being a passive participant, defendant played a major role in the commission of the crime). Following the rationale of San Miguel, since proof of either passive participation or performance of a minor role, by the preponderance of the evidence, is sufficient to support the finding of a mitigating factor, proof of both types of conduct
However, the San Miguel Court further held that the two subsections of N.C. Gen. Stat. § 15A-1340.4(a)(l)(a) could be found as two separate aggravating factors only if there was separate evidence supporting each. This requirement comports with N.C. Gen. Stat. § 15A-1340.4(a)(l) which stipulates that the same evidence may not be used to support more than one aggravating factor. There is no statutory counterpart to this provision of N.C. Gen. Stat. § 15A-1340.4(a)(l) for mitigating factors. However, consistent with the Fair Sentencing Act’s requirement of separate evidence to support each aggravating factor, we hold that the same evidence may not be used to find more than one mitigating factor; each mitigating factor can be found only if there is separate evidence supporting it.
Applying the foregoing principles to the evidence here, we hold that the court was not required to find as an additional statutory mitigating factor that defendant played a minor role in the commission of the offense because defendant presented insufficient separate evidence of this factor. Defendant’s evidence showed that he was highly intoxicated and was “passing out” during the break-in and was not aware of what was happening. He remained in the car except to stand by a ditch momentarily and later helped place some bags in the car.
This evidence clearly supports a finding that defendant was a passive participant. Arguably, it also suggests that defendant played a minor role in the commission of the crime as well. In this regard, this case demonstrates how the same evidence can give rise to both of these factors. A sentencing judge confronted with this situation must decide which factor best characterizes defendant’s conduct under the circumstances. The predominant feature of defendant’s conduct here is inactivity and the court thus properly found that defendant was a passive participant. Since the record reveals no additional separate evidence that defendant also played a minor role in the commission of the crime, the court was not required to find this additional statutory factor. We note that, even if defendant had presented separate evidence that he played a minor role, the court still would not have been required
For the foregoing reasons, defendant’s sentence in No. 82CRS14923 (Hudson break-in) is
Affirmed.