*1 224
State v. McLean offense, merely use of evidence inherent in the which is is proscribed. an of the offense which necessary prove element Abdullah, (1983); See, S.E. 100 309 306 State v. N.C. State (1982), Thobourne, 584, 297 disagreed S.E. 2d App. v. Ahearn, 307 grounds on other error for the trial court Accordingly, 2d 689 factor in ag as a use of defendant’s conviction sentencing. gravation stated, herein we find no error the reasons
For are of error without remaining Defendant’s assignments this case. merit. error.
No and Johnson concur. Judges Whichard v. EARL STATE NORTH OF CAROLINA McLEAN No. 8411SC771 (Filed 1985) April relating § to self-defense 1. Law 118.2— instructions —contentions Criminal sufficiently in a stated the conten- The trial court felonious assault case relating based on the evidence offered of defendant to self-defense tions defendant. improper finding § 2. Criminal Law 138— felonious assault — aggravating factor cruel deadly weapon inflicting imposing assault with a a sentence for injury, factor that the of- trial court erred in as the vic- atrocious or cruel on evidence that fense was fifty in one lost the tim received amnesia, did not show that defendant’s and had since the evidence any with a inherent assault was more brutal than that conduct bodily injury. weapon resulting in serious —prior § separate aggravating Law 138— convictions —defend- Criminal probation ant on separate aggravating find factors that could as The trial court sixty punishable more than for offenses defendant days pro- while under a imprisonment and that committed the crime 15A-1340.4(a). bationary sentence. G.S. COURT OF APPEALS *2 aggravating Criminal Law 138— on factors based same evidence improperly The trial court based two factors on the same evidence when it punishable by found that sixty days more imprisonment than and that defendant had a in- volving 15A-1340.4(a!(l); in excess of ten G.S. 15A-1340.4(a)(l)(o). G.S. Judge concurring dissenting and Arnold Appeal Smith, by defendant Judge. from Judgment entered Court, 4 January 1983 in Superior County. Heard Lee Court of Appeals 7 March 1985. Defendant, McLean, Earl was indicted 11 October assault with a weapon inflicting injury upon victim, Wayne Fredrick McLucas. Events giving rise to the indict- July ment occurred on 6 1982 at approximately 11:00 p.m. at the American Legion Post in Sanford.
McLucas his and wife arrived post parked front of the State’s to building. evidence tended show that defendant came over to McLucas’ car and slammed his hand the hood. Defendant was and had his shirt sweating off. McLucas knew defendant and testified that he had never before seen him such agitated state. McLucas offered to take to then hospital. Defendant accused McLucas of run trying to over him with his car and told him to out of his car. get Defendant opened the car door and closed it. McLucas McLucas reached down to release the car’s brake emergency so he and his wife could leave and defendant struck him across the face. Defendant then opened the door to the car and attempted get McLucas to out, attempting out. As he was get to defendant cut him with shiny. Defendant then something proceeded to strike blows McLucas’ back and head. managed get McLucas back into the wife while his called the As police. being McLucas was taken to the kill hospital, defendant threatened to him.
McLucas received on his approximately stitches face as result of the two cuts inflicted defendant. He was lost in one amnesia. developed At the time trial McLucas was treatment undergoing still memory. regain his OF APPEALS
State McLean Legion Post he was at the American Defendant testified on the sidewalk standing and was question on the date he saw stated that area. Defendant foot in the parking one up onto stepped and that he parking area into pull McLucas car, one put McLucas stopped sidewalk. When allegedly then area. McLucas parking back down onto the foot leg. struck defendant on moved forward and started his him with the car hitting Defendant accused McLucas he would do it informed defendant allegedly McLucas whereupon again. *3 Cameron, and told bystander, came
A Charles if he hit to a hospital would take defendant him that McLucas attempted get that he with his car. Defendant testified on defendant’s but he slammed the car door McLucas’ into get something down to allegedly leaned hand. McLucas then striking and kicked the car door open the seat of the car under his out of got Defendant testified that McLucas defendant. defendant in the cheek. a metal and struck holding piece pipe merely a weapon stated that he did not have Defendant hand, hit him. Defend- it back and then caught pushed McLucas’ to kill he was drunk or that he had threatened ant denied that wife. his hospital Defendant was taken to McLucas. a The returned a of assault with jury verdict inflicting court as factors sentencing hearing At the the trial found atrocious and the offense aggravation cruel; by more punishable that defendant had days that defendant committed the crime than imprisonment; sentence; a probationary while and that defendant charged under had a use mitigation of 10 The trial court found as factors in excess highly that defendant was intoxicated at time of the offense employed and that defendant had been full time. The gainfully outweighed trial then that factors fac- court found years defendant to 10 mitigation imprison- tors ment, sentenced H felony. the maximum allowable for Class Defendant appeals. Edmisten, General
Attorney Attorney Assistant General Smith, James Peeler the State.
Nora Henry Hargrove, defendant-appellant.
EAGLES, Judge. Defendant first assigns as error the trial court’s omission of evidence of self-defense from the We find charge. no er
ror.
The basis of assignment defendant’s of error is that summary trial court’s of the to the jury, the trial court mentioning omitted that McLucas was blows with exchanging de- fendant and object that McLucas they had metal his hand as stated, alia, struggled. summary court’s inter McLucas “reached either under the dash or under seat and that he got type object metal then hit . . or struck . McLucas.” We note that the trial court must declare and explain law evidence,
arising on the
state the evidence to the extent neces
thereto,
sary
explain
the application of the law
and refrain
from
of an
expression
opinion whether a fact
proved.
has been
*4
G.S. 15A-1232.
fully
The trial
is
required
court
not
to
recapitulate
all the evidence. The trial
complies
court
G.S. 15A-1232 by
presenting the principal
by
features of the evidence relied on
the
452,
prosecution and
defense.
Thompson,
(1962);
S.E. 2d
cert. denied
Q: happened you? What after door hit car, A: I fell I against back staggered against a car that was behind parked me and he jumped out of his I car and hand, seen I something don’t know what it was. Q: you Describe what saw. OF APPEALS metal, know I don’t what piece
A: was some kind of It was, I against when was up kind of metal me, he came swung like that. When he my up hand I his hand and it back caught pushed on me and down I hit him. and
Q: you What did hit with? my
A: fist. I hit him with summary trial testimony This is consistent with the court’s that hit or object of metal that defendant “got type McLucas fully . heard the evidence and was struck . . McLucas.” trial that court did purport charge advised court summary of defendant’s con- on all the evidence. The court’s jury’s bring was sufficient to the attention his claim tentions that he in self-defense. acted that also note that there no indication record
We the trial court or requested instructions presented errors to the trial court’s attention purported that he called 10(b)(2), Rules of Procedure. Appellate as is Rule required us, Even this error is before though assignment reveals no error. prejudicial our the entire record examination
II as error the trial court’s as a assigns finding Defendant next the offense factor of two non- finding and cruel and trial court’s of- defendant committed this aggravation: sentence for assault with a probationary fense while under a defendant has a We excess of agree that there error. As to atrocious and cruel whether an offense is committed manner, the trial court in an especially at sentencing this factor in ag appropriateness
must determine the
*5
“whether
facts
the case disclose ex
focusing on
gravation
or
brutality,
suffering,
pain, psychological
cessive
physical
offense.”
normally present
in that
dehumanizing aspects
410, 414,
Blackwelder,
COURT OF APPEALS
Here, the record disclosed that defendant’s conduct
was
any more brutal than
brutality
in any
inherent
assault with a
deadly
which
Medlin,
results in
In State v.
(1983)
App.
could longer drive a was out of work for months. Similarly we find no evidence in the record before us to indicate where the victim received 50 for lost the in amnesia, one eye and had some conduct of any more brutal than that inherent any assault with a deadly weapon resulting serious bodily in- jury. it Accordingly, was error the trial court to find as a fac- tor in aggravation the offense was especially cruel. [3] Defendant next argues that the trial court used defendant’s past convictions as the to find basis three separate aggravating factors, i.e., that defendant had offenses punish able more days than 60 imprisonment, that defendant commit ted the offense charged probation while for assault with a deadly weapon and that defendant a prior has record involving the use violence covering span a of 10 The basis of argument defendant’s is that since defendant had convictions for punishable by offenses days more than 60 imprisonment as a found factor in aggravation, it was error base the finding non-statutory of two factors in aggravation upon those convictions. We agree disagree Defendant was probation fact on for a conviction of assault with prior weapon. This fact is Accordingly, unrefuted. is not error for the trial court to base a factor in aggravation upon evidence that defendant is in fact on as the probation long as of such a factor in aggravation reasonably to sentencing. related G.S. 15A-1340.4(a). However, the fact that has convictions for criminal offenses punishable by days imprisonment more than 60 has use of similar, years of 10 too excess are former, being upon separate latter be considered as *6 APPEALS OF
230 terms, 15A-1340.4, by its sentencing. G.S. purposes prove more than of evidence use of the same item prohibits obviously intend- legislature While the aggravation. in one factor aggravate could be used to record past that a person’s ed (G.S. 15A-1340.4(a)(l)(o)), only intended legislature sentence 15A-1340.4(a)(l)). (G.S. For be used once record past that reasons, in trial court to find as a factor was error these has a that defendant in excess of no there was we find error. Because the trial of this action is entitled to new sentencing phase, error 584, Ahearn, S.E. 307 N.C. v. sentencing hearing. State resentencing. Remanded for concurs.
Judge Parker in part. concurs and dissents Judge part Arnold dissenting concurring Judge Arnold judge the trial erred agree majority with the that do not 15A-1340.4(a)(l)(f), factor G.S. in an atro- committed offense or cruel manner. cious with a found defendant of assault The evidence which tended
weapon inflicting Mr. McLucas that verdict was that defendant first struck support face, shiny object, pro- then cut him with a and then across severi- and head. The repeatedly to strike the back ceeded McLucas received attack is reflected in the fact that ty of the fifty on his from the two cuts inflicted stitches face approximately (McLucas) defendant, he for two eye developed one amnesia. sight and that he lost shiny that defendant cut McLucas twice with a The evidence injury fifty sup- sufficient object, causing requiring charged. on the crime Evidence that jury’s verdict port face, repeatedly on the head and caus- struck McLucas Atwell Atwell and loss of ing surely amnesia one strong Blackwelder, brutality,” of “excessive State v. 309 *7 I believe that the legislature intended that cases where found of assault with injury which results in serious the crime can aggravated be punishment increased when offense is in a committed manner goes beyond which justify what needed to conviction and can be described as especially atrocious or The cruel. fact that legislature provided a maximum sentence did restrict the application of this fac- tor are indications good of that intent. case, present believe that a preponderance of evi-
dence the conclusion supports that defendant committed the of- fense in a cruel manner. The trial court did err this making finding.
BETTY ATWELL YOUNG v. GARY HUGH ATWELL
No. 8426DC525 (Filed 1985) April Alimony § 1. Divorce support findings parties’ 24.9— child income order — —insufficient support trial court erred in its award child in that the order con- findings tained insufficient factual parties as to the income of the in that the court found that the wife per only $800 income of month when the month, of her showing per income was her $650 affidavit and the finding addressing the husband’s income took projected into account his earn- ings in addition earnings. to his actual Alimony § support Divorce and 24.9— child par- order—insufficient ties’ estates awarding support An order findings child did not contain sufficient as to parties’ only estates where parties the court found that the owned a house $25,000 value, equity only did not find the fair market and found family obligations there were substantial par- reflected in the affidavits ties.