State v. Thompson

• Decision Date: 07 October 1986
• Docket Number: No. 142A86,142A86
• Citation: 348 S.E.2d 798,318 N.C. 395
• Parties: STATE of North Carolina v. William E. THOMPSON.
• Court: North Carolina Supreme Court

Page 798

348 S.E.2d 798

318 N.C. 395

STATE of North Carolina v. William E. THOMPSON.

No. 142A86.

Supreme Court of North Carolina.

Oct. 7, 1986.

Lacy H. Thornburg, Atty. Gen. by Eugene A. Smith, Sr. Deputy Atty. Gen., Raleigh, for the State.

James R. Parish, Fayetteville, for defendant-appellant.

MEYER, Justice.

At the 26 June 1984 Criminal Session of Superior Court, Cumberland County, defendant pled guilty to first-degree burglary, felony breaking or entering, and felony larceny. He was sentenced by Bailey, J., to life imprisonment for burglary and two ten-year terms, one each for the breaking or entering and the larceny, these to run concurrently with the life sentence. On appeal to this Court, the defendant argued that there was insufficient evidence of three aggravating factors. We agreed as to two factors and remanded the case for resentencing. State v. Thompson, 314 N.C. 618, 336 S.E.2d 78 (1985). The resentencing hearing was held at the 7 February 1986 Criminal Session of the Superior Court for Cumberland County, E. Lynn Johnson, judge presiding. After hearing evidence and arguments, Judge Johnson found three aggravating factors and imposed a life sentence for the burglary count, consolidated with the breaking or entering count, and a consecutive eight-year term for the larceny. Defendant appeals the life sentence to this Court as a matter of right pursuant to Rule 4(d) of the North Carolina Rules of Appellate Procedure, as authorized by N.C.G.S. § 15A-1444(a1) and (d) (1983). Leave was granted to bypass the Court of Appeals on the larceny count on 19 March 1986.

The charges against defendant resulted from events occurring at the home of Ms. Mary McQueen on the evening of 28 December 1983. On that evening, the defendant, together with Benny Jackson, broke into Ms. McQueen's house, tied her up, and took money and several items of personal property. As the defendant was loading the car with these items, Jackson raped Ms. McQueen. At the original sentencing hearing, Judge Bailey found that the crimes to which defendant pled guilty were aggravated by three factors: the victim was very old, the victim was physically infirm, and the property taken was of great monetary value. Judge Bailey found that these aggravating factors outweighed the mitigating factors found and sentenced defendant to terms beyond the presumptive sentences. On his first appeal to this Court, the defendant successfully argued that there was insufficient evidence of the victim's old age or infirmity. Accordingly, we remanded the case for resentencing.

At the second sentencing hearing, the State presented additional evidence of Ms. McQueen's age and physical infirmity in the form of written statements from Ms. McQueen. These statements, stipulated to by the defendant, described not only the events of the evening of 28 December but also Ms. McQueen's physical problems, including angina and arthritis. The statement also indicated that, at the time of the crimes, Ms. McQueen was seventy-nine years old. The defendant presented several witnesses and testified in his own behalf. On cross-examination, the defendant conceded that he was aware that Ms. McQueen was an "old lady," although he contended that he and Jackson had selected her as a victim because they believed she would be away from the house. After hearing the evidence and arguments of counsel, Judge Johnson found that the victim was "very old," that she was physically infirm, and that the property taken was of great monetary value.

It is well established that the State bears the burden of proof to establish the existence of aggravating factors if it seeks a term of imprisonment greater than the presumptive sentence. State v. Jones, 309 N.C. 214, 306 S.E.2d 451 (1983). The existence of such factors must be proved by a preponderance of the evidence. N.C.G.S. § 15A-1340.4(a) (1983). We find that the evidence presented by the State at the defendant's resentencing hearing met this standard with regard to the aggravating circumstances of age and infirmity.

The defendant first assigns as error Judge Johnson's finding that the crimes were aggravated because Ms. McQueen was seventy-nine years old at the time of the crimes. N.C.G.S. § 15A-1340.4(a)(1)(j) (1983). On his appeal from the first sentencing hearing, the defendant contended that there was no competent evidence of Ms. McQueen's age. We agreed and ordered the case remanded for resentencing. On this appeal, the defendant apparently concedes that there was sufficient evidence that Ms. McQueen was seventy-nine years old when the crimes were committed and that seventy-nine years is "very old" for the purposes of this aggravating factor. We agree and so hold. It is now his contention, however, that, in order for this aggravating factor to apply, age must have been a reason for the selection of the victim.

The purpose of applying the aggravating factors is to punish more severely those defendants who have acted with culpability beyond that necessary to commit the crimes of which they stand convicted. It is for this reason that no element of the crime itself may be used in aggravation. State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983). In order to be appropriately considered, the "very old" factor must relate to the purposes of sentencing.

Defendant cites State v. Eason, 67 N.C.App. 460, 313 S.E.2d 221 (1984), for the proposition that " 'the underlying policy of ... [N.C.G.S. § 15A-1340.4(a)(1)(j) ] is to discourage wrongdoers from taking advantage of a victim because of the victim's young or old age or infirmity.' " Id. at 463, 313 S.E.2d at 223 (quoting State v. Mitchell, 62 N.C.App. 21, 29, 302 S.E.2d 265, 270 (1983)). We agree. See State v. Barts, 316 N.C. 666, 343 S.E.2d 828 (1986). However, defendant goes on to argue that, in order to comport with this policy, aggravation must be reserved for those crimes where the victim is "targeted" because of age....