State v. Potts , 65 N.C. App. 101 ( 1983 )

308 S.E.2d 754 (1983)

STATE of North Carolina
v.
Glenn Junior POTTS.

No. 8317SC125.

Court of Appeals of North Carolina.

November 15, 1983.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Kaye R. Webb, Raleigh, for the State.

W. David White, Dobson, for defendant-appellant.

ARNOLD, Judge.

Defendant assigns as error the first two aggravating factors found by the court and the court's failure to find more than one mitigating factor. After careful examination of both the evidence introduced at the sentencing hearing and the recent application of the Fair Sentencing Act, we conclude that the sentence is supported by the evidence and must be affirmed.

Under the Fair Sentencing Act, the sentencing judge's discretion to impose a sentence greater or lesser than the presumptive term is bridled by the statutory requirement that he make written findings of aggravating and mitigating factors. The judge may consider such factors "that he finds are proved by the preponderance of the evidence, and that are reasonably related to the purpose of sentencing ...." G.S. 15A-1340.4(a). See State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983). "The trial judge should be permitted wide latitude in arriving at the truth as to the existence of aggravating and mitigating circumstances, for it is only he who observes the demeanor of the witnesses and hears the testimony." Id. at 596, 300 S.E.2d at 697. We find that this standard of review was properly applied in the case now before us.

Defendant argues that the court erred in finding as an aggravating factor that he took advantage of a position of trust and confidence to commit the offense. In making this finding the judge commented, "Your friend trusted you, he opened his hands to you and said, `Come on, kill me. I don't think you will do it.'" Defendant points out that our appellate courts have upheld a finding of this aggravating factor in one instance: where the defendant was charged with attempted rape of his ten year old stepdaughter. State v. Goforth, 59 N.C.App. 504, 297 S.E.2d 128 (1982), reversed and remanded for resentencing on other grounds, 307 N.C. 699, 307 S.E.2d 162 (1983). He argues that the fact that he and Tilley knew each other while serving time in prison and that Tilley urged defendant to kill him immediately before the shooting, is not sufficient evidence of a relationship which would inspire confidence or trust.

Throughout the sentencing hearing witnesses testified that defendant and Tilley were good friends. Bobby Beck referred to Tilley as one of defendant's "best friends." Brenda Gwen testified that minutes prior to the shooting Tilley told defendant, "I thought we were friends." Defendant responded that they were. Tilley then stated, "Well, we've been just like brothers. So why are you trying to mess over me?" Defendant's brother testified that after Tilley and defendant struggled over the shotgun, he asked Tilley to leave. Tilley indicated that he was going to stay because he knew defendant would not hurt him.

The foregoing evidence was sufficient for the court to find that because of the defendant's and Tilley's friendship, Tilley trusted defendant not to kill him. Defendant violated this position of trust.

Defendant next argues that the sentencing judge erred in finding as an aggravating factor that the victim was mentally infirm at the time he was killed. The judge noted that the preponderance of the evidence showed that Tilley was drunk and defendant knew it. Defendant, however, urges this Court to find that voluntary intoxication of the victim is not included within the definition of mental infirmity as it applies to G.S. 15A-1340.4(a)(1)j. The word "infirm" is not defined in this statute. Webster's New Collegiate Dictionary (1977) defines "infirm" as "weak of mind, will or character." The evidence presented comports with this definition.

The evidence at the sentencing hearing was that defendant and Tilley spent a short period of time drinking beer, wine and almost a fifth of vodka, smoking marijuana and taking quaaludes. During this time and while in defendant's presence, Tilley crushed a glass in his hand and smashed a chair against the wall. After Tilley and defendant began fighting, Tilley twice told defendant to shoot him. He refused to leave the trailer park after defendant obtained a shotgun. This evidence clearly shows that Tilley's capacity to recognize the danger of the situation, and to therefore remove himself, was weakened by his intoxication. It is also uncontradicted that defendant was aware of defendant's intoxicated condition.

Intoxication of the defendant has been recognized as a mitigating factor by the courts under G.S. 15A-1340.4(a)(2)d: "The defendant was suffering from a mental or physical condition that was insufficient to constitute a defense but significantly reduced his culpability for the offense." In fact, the sentencing judge here found this to be a mitigating factor. It would be both unreasonable and unfair to allow defendant's intoxication to be considered a mitigating factor but not to allow the victim's intoxication to be an aggravating factor. Clearly the Legislature did not intend this result.

Defendant's remaining assignments of error involve the failure of the sentencing judge to find that the victim was a voluntary participant in the crime; that defendant committed the crime under duress, threat or compulsion and which significantly reduced his culpability and that defendant's immaturity or limited mental capacity reduced his culpability. We find no merit to these assignments of error.

In a recent decision the North Carolina Supreme Court found that under the Fair Sentencing Act, the judge is required to find factors proved by uncontradicted and manifestly credible evidence. State v. Jones, 309 N.C. 214, 306 S.E.2d 451 (1983). Here, there is no such evidentiary support for a finding that the victim was a voluntary participant in the shooting. The evidence shows that Tilley was unarmed at all times. We also find no error in the court's refusal to find that defendant committed the murder under duress, coercion, threat or compulsion or that defendant's immaturity and limited mental capacity significantly reduced his culpability. The preponderance of the evidence shows and the judge found that defendant's culpability was reduced solely by his intoxicated condition.

Defendant has failed to show prejudicial error in his sentencing hearing, and the judgment is

Affirmed.

HILL and BRASWELL, JJ., concur.