State v. Brinson , 337 N.C. 764 ( 1994 )

Justice Webb

dissenting.

I dissent from that part of the majority opinion which holds the superior court did not commit error by using evidence necessary to prove an element of the offense to prove an aggravating factor. One element of the offense was that the defendant inflicted serious injury upon the victim.

In order to prove the serious injury element, the State introduced evidence that the victim’s neck was broken and he was paralyzed below the chest. After considering the evidence, the jury found the victim suffered serious injury. We cannot say what part of the evidence the jury used to reach its verdict, but I believe we should say it considered all of it.

The majority says that the evidence of the broken neck was sufficient to find the victim was seriously injured, which left the court free to use the evidence of paralysis to find as an aggravating factor that the victim sustained “extremely severe and permanent injuries.” The State, when presenting its case in chief, offered all the evidence it could to prove the serious injury. The paralysis was relevant and competent to prove this element. I believe we are perverting the statute by allowing the State now to use this evidence to prove an aggravating factor. By our decision today, we have adopted a rule that after the State has used what evidence it feels is necessary to convict a defendant, it may then decide what of that evidence was necessary to convict and reuse the other evidence to prove an aggravating factor. I believe we should hold that all the evidence was necessary to prove the element of the crime. The State must have thought so or it would not have used it.

I vote to affirm the Court of Appeals in its holding that it was error to consider the evidence of paralysis in finding an aggravating factor. I agree with the majority opinion as to the first issue in this appeal.