State v. Cooke , 87 N.C. App. 613 ( 1987 )

ORR, Judge.

On appeal defendant contends the trial court erred in finding as a factor in aggravation that he employed a deadly weapon during the commission of the crime.

Aggravating factors which are found must be supported by a preponderance of the evidence. State v. Teague, 60 N.C. App. 755, 300 S.E. 2d 7 (1983). Defendant does not challenge the admissibility or accuracy of the State’s narrative. He neither objected to nor contradicted any portion thereof. His sole contention is that the narrative was insufficient to support the trial court’s finding that the knife was a deadly weapon.

A knife may be, but is not always, a deadly weapon. See State v. Carson, 296 N.C. 31, 249 S.E. 2d 417 (1978). “[T]he evidence in each case determines whether a certain kind of knife is properly characterized as a lethal device as a matter of law . . . .” State v. Sturdivant, 304 N.C. 293, 301, 283 S.E. 2d 719, 726 (1981). N.C.G.S. § 15A-1334(b) sets forth the procedure at the sentencing hearing. There defendant and the prosecutor may present witnesses and arguments on facts relevant to the sentencing hearing. However, the “formal rules of evidence do not apply at the hearing.” Id.

In the case sub judice, the prosecutor chose to relate to the court a narrative of the testimony that the victim and Kenneth Cox would have given. Defendant chose to introduce three character witnesses. At no time did defendant challenge or question the prosecutor’s description of the knife or its use by defendant to threaten the victim and her companion.

Under N.C.G.S. § 15A-1340.4(a) the trial judge in considering aggravating and mitigating factors, must find that those factors exist “by the preponderance of the evidence . . . .” In this case all the evidence was uncontradicted that defendant used a knife, described by the victim as a “steak knife,” to threaten the victim and to facilitate the act of raping her. The trial court, taking into consideration the everyday use of the term “steak knife” and the utilization of the weapon by defendant, had adequate evidence upon which to base its factual determination that a deadly weapon was used in the commission of the crime.

This Court stated in State v. Parker, 7 N.C. App. 191, 171 S.E. 2d 665 (1970) that:

[t]he deadly character of the weapon depends sometimes more upon the manner of its use, and the condition of the person assaulted, than upon the intrinsic character of the weapon itself.

7 N.C. App. at 195, 171 S.E. 2d at 667.

Here the victim was threatened with her life at knife point at 3:30 a.m. in her own apartment by a man acting in what can reasonably be described as a drunken rage. He deliberately placed the knife against her throat to overcome her resistance. As a result, she submitted to his demands. We believe the manner of use, the description of the instrument as a “steak knife,” and the victim’s frightened condition permitted the trial court to reasonably find by a preponderance of the evidence that defendant employed a deadly weapon in the commission of the crime.

Affirmed.

Chief Judge HEDRICK and Judge ARNOLD concur.