State v. McLean

EAGLES, Judge.

I

Defendant first assigns as error the trial court’s omission of his evidence of self-defense from the jury charge. We find no error.

The basis of defendant’s assignment of error is that in the trial court’s summary of the evidence to the jury, the trial court omitted mentioning that McLucas was exchanging blows with defendant and that McLucas had a metal object in his hand as they struggled. The trial court’s summary stated, inter alia, that McLucas “reached either under the dash or under the seat and that he got some type of metal object and that defendant then hit or struck . . . McLucas.”

We note that the trial court must declare and explain the law arising on the evidence, state the evidence to the extent necessary to explain the application of the law thereto, and refrain from expression of an opinion whether a fact has been proved. G.S. 15A-1232. The trial court is not required to fully recapitulate all the evidence. The trial court complies with G.S. 15A-1232 by presenting the principal features of the evidence relied on by the prosecution and the defense. State v. Thompson, 257 N.C. 452, 126 S.E. 2d 58, cert. denied 371 U.S. 921 (1962); State v. Spicer, 299 N.C. 309, 261 S.E. 2d 893 (1980). We believe, based on our examination of the record, that the trial court correctly stated the contentions of defendant based on the evidence offered by defendant. As to whether or not McLucas struck defendant, the following testimony of defendant is pertinent:

Q: What happened after the door hit you?
A: I fell back against a car, I staggered against a car that was parked behind me and he jumped out of his car and I seen something in his hand, I don’t know what it was.
Q: Describe what you saw.
*228A: It was some kind of a piece of metal, I don’t know what kind of metal it was, but when I was up against the car, my hand was up like that. When he swung at me, he came down on me and I caught his hand and I pushed it back and I hit him.
Q: What did you hit him with?
A: I hit him with my fist.

This testimony is consistent with the trial court’s summary that McLucas “got some type of metal object and that defendant hit or struck . . . McLucas.” The jury heard the evidence and was fully advised by the trial court that the court did not purport to charge on all the evidence. The trial court’s summary of defendant’s contentions was sufficient to bring to the jury’s attention his claim that he acted in self-defense.

We also note that there is no indication in the record that defendant presented requested instructions to the trial court or that he called the purported errors to the trial court’s attention as is required by Rule 10(b)(2), Rules of Appellate Procedure. Even though this assignment of error is not properly before us, our examination of the entire record reveals no prejudicial error.

II

Defendant next assigns as error the trial court’s finding as a factor in aggravation that the offense was especially heinous, atrocious and cruel and the trial court’s finding of two non-statutory factors in aggravation: defendant committed this offense while under a probationary sentence for assault with a deadly weapon and that defendant has a prior record involving the use of violence covering a span in excess of 10 years. We agree that there is error.

As to whether an offense is committed in an especially heinous, atrocious and cruel manner, the trial court at sentencing must determine the appropriateness of finding this factor in aggravation focusing on “whether the facts of the case disclose excessive brutality, physical pain, psychological suffering, or dehumanizing aspects not normally present in that offense.” State v. Blackwelder, 309 N.C. 410, 414, 306 S.E. 2d 783, 786 (1983).

*229Here, the record disclosed that defendant’s conduct was not any more brutal than the brutality inherent in any assault with a deadly weapon which results in serious injury. In State v. Medlin, 62 N.C. App. 251, 302 S.E. 2d 483 (1983) we held that defendant’s conduct, hitting his wife and then shooting her five times, was not especially heinous, atrocious or cruel for sentencing purposes, despite the fact that victim there was hospitalized for 10 weeks, her face was partially paralyzed, she could not hear out of one ear, could no longer drive a car and was out of work for months. Similarly we find no evidence in the record before us to indicate that where the victim received 50 stitches, was hospitalized for two weeks, lost the sight in one eye and had some amnesia, the conduct of defendant was any more brutal than that inherent in any assault with a deadly weapon resulting in serious bodily injury. Accordingly, it was error for the trial court to find as a factor in aggravation that the offense was especially heinous, atrocious or cruel.

Defendant next argues that the trial court used defendant’s past convictions as the basis to find three separate aggravating factors, i.e., that defendant had convictions for offenses punishable by more than 60 days imprisonment, that defendant committed the offense charged while on probation for assault with a deadly weapon and that defendant has a prior record involving the use of violence covering a span of 10 years. The basis of defendant’s argument is that since defendant had convictions for offenses punishable by more than 60 days imprisonment as a properly found factor in aggravation, it was error to base the finding of two non-statutory factors in aggravation upon those convictions. We agree in part and disagree in part. Defendant was in fact on probation for a prior conviction of assault with a deadly weapon. This fact is unrefuted. Accordingly, it is not error for the trial court to base a factor in aggravation upon evidence that defendant is in fact on probation as long as the finding of such a factor in aggravation is reasonably related to sentencing. G.S. 15A-1340.4(a).

However, the fact that defendant has prior convictions for criminal offenses punishable by more than 60 days imprisonment and that defendant has a prior record involving the use of violence covering a span in excess of 10 years are too similar, the latter being based upon the former, to be considered as separate *230factors for purposes of sentencing. G.S. 15A-1340.4, by its terms, prohibits the use of the same item of evidence to prove more than one factor in aggravation. While the legislature obviously intended that a person’s past record could be used to aggravate a sentence (G.S. 15A-1340.4(a)(l)(o)), the legislature only intended that the past record be used once (G.S. 15A-1340.4(a)(l)). For these reasons, it was error for the trial court to find as a factor in aggravation that defendant has a prior record involving the use of violence covering a span in excess of 10 years.

In the trial of this action we find no error. Because there was error in the sentencing phase, defendant is entitled to a new sentencing hearing. State v. Ahearn, 307 N.C. 584, 300 S.E. 2d 689 (1983).

Remanded for resentencing.

Judge Parker concurs. Judge Arnold concurs in part and dissents in part.