State v. Drayton

WEBB, Justice.

The defendant assigns error to the finding of the aggravating factor that “The victim was physically infirm because he had an alcohol concentration of .29%.” The defendant contends that because a person has a blood alcohol content of .29 percent does not prove he is physically infirm. He argues further that if Mr. Wilson was physically infirm, there is no proof that he was tar*514geted for the crime because of his physical infirmity or the defendant took advantage of the infirmity in committing the crime.

The gravamen of the aggravating factor that the victim is physically infirm is vulnerability. If some disability “impedes a victim from fleeing, fending off attack, recovering from its effect, or otherwise avoid being victimized,” such disability is a physical infirmity. State v. Vaught, 318 N.C. 480, 349 S.E. 2d 583 (1986). If the evidence shows the victim was targeted because of a physical infirmity or that the defendant took advantage of the infirmity, the aggravating factor is properly found. State v. Thompson, 318 N.C. 395, 348 S.E. 2d 798 (1986).

We hold that evidence that a person has a blood alcohol content of .29 percent may be used to prove that the person has a physical disability. If a person has a blood alcohol content of .10 percent while operating a motor vehicle on a street or highway in this state, he may be found guilty of impaired driving. N.C.G.S. § 20-138.1 (1983). We believe proof of a blood alcohol content of almost three times this amount supports a finding that a person’s ability to flee, fend off an attack, or otherwise avoid being victimized is impaired.

In this case the perpetrators of the crime were in the “drink house” with the victim. It may be inferred from the evidence that he had a blood alcohol content of .29 percent that they knew he was under the influence of alcohol. The court could conclude from this that the defendant and his confederates targeted him for this reason. If the victim was not targeted for being under the influence of alcohol, we believe it is evident that when the attack on him began the attackers took advantage of his physical infirmity. The dissent contends that because of the sudden and powerful nature of the attack the victim’s physical condition did not impede his ability to flee or fend off the attack. We believe it is evident that a person who was as much under the influence of alcohol as the victim in this case would have difficulty in seeing the attack develop or defending himself from it. This supports a conclusion that the victim’s condition impeded him from fleeing or fending off the attack. This aggravating factor was properly found.

Affirmed.