STATE of North Carolina
v.
John Lee ABEE, and Darrell Ray Jones.
No. 8225SC465.
Court of Appeals of North Carolina.
December 21, 1982.*186 Atty. Gen. Rufus L. Edmisten, by Asst. Atty. Gen. Steven F. Bryant, Raleigh, for the State.
Ellis L. Aycock, Morganton, for defendant Jones.
Byrd, Triggs, Mull & Ledford by John R. Mull, Morganton, for defendant Abee.
ARNOLD, Judge.
All of the assignments of error by both defendants attack their sentences, which were greater than the presumptive sentence under G.S. 15A-1340.4(f). We consider the appeals separately to avoid confusion of the issues.
ABEE'S APPEAL
Abee attacks the trial court's finding of six of the eight aggravating factors. He first argues that the elements of second-degree sexual offense were considered as aggravating factors in violation of G.S. 15A-1340.4. Abee points to the court's finding as an aggravating factor that the offense was "especially heinous, atrocious, or cruel."
We reject this argument because this factor is not an element of second-degree sexual offense under G.S. 14-27.5, which requires "a sexual act with another person ... [b]y force and against the will of the other person...." In addition, the facts of this case support a finding by the trial judge that the offense was "especially heinous, atrocious, or cruel."
There are sufficient facts in the record to support the aggravating factors that the offense occurred "during a course of conduct wherein the victim was repeatedly beaten," and that the conduct was "equivalent to terrorizing the victim" and that he was restrained and removed "from one place to another." We find that these three aggravating factors are "proved by the preponderance of the evidence and ... are reasonably related to the purposes of sentencing," as G.S. 15A-1340.4 requires.
It should be noted that the statute does not require a specific fact finding on each factor to be considered in sentencing, as Abee argues in his second assignment of error. All that is necessary is that the record support the factor by a "preponderance of the evidence."
Defendant is correct that the aggravating factors of repeated acts of fellatio and that Abee inserted his finger into the victim's rectum were improperly considered. G.S. 15A-1340.4 prohibits using "evidence necessary to prove an element of the offense... to prove any factor in aggravation...."
In this case, second-degree sexual offense requires a "sexual act." G.S. 14-27.5(a). G.S. 14-27.1(4) includes in the definition of "sexual act" the acts of "fellatio" and "the penetration ... by any object into the ... anal opening of another person's body." Thus, the very evidence required to prove the offense that Abee pled guilty to was also considered as a factor in aggravation, as prohibited by the statute. We do not find it important that more than one act of fellatio occurred while G.S. 14-27.5(a) only requires one "sexual act." The same evidence was still used in a prohibited manner.
But we do not find this error to require a remand. As was held in State v. Ahearn, 59 N.C.App. 44, 295 S.E.2d 621 (1982), defendant must show both prejudice and that a different result would have occurred if the factors had been properly considered. Even though the trial judge in Ahearn considered some aggravating factors not supported by the evidence, the court found no grounds for a reversal. It relied on G.S. 15A-1442(6), which requires a showing of prejudice before reversal, and G.S. 15A-1443(a), which defines prejudice as a reasonable possibility that the result would have been different had the error not been committed. We agree with the rationale of Ahearn and find no reversible error here.
Abee's assignments of error three and four attack the sentence as not being the result of a proper weighing of factors. He argues in essence that because the mitigating factors are greater in number that the sentence should have been lower than the statutory presumption of twelve years.
*187 We reject this argument because G.S. 15A-1340.4 does not remove all discretion in sentencing from trial judges. Just because the number of mitigating factors was greater than the aggravating ones does not preclude the trial judge from finding that the aggravating factors outweigh the mitigating ones.
The discretionary task of weighing mitigating and aggravating factors is not a simple matter of mathematics.... The number of factors found is only one consideration in determining which factors outweigh others.... The balance struck by the trial judge will not be disturbed if there is support in the record for his determination.
State v. Davis, 58 N.C.App. 330, 333-34, 293 S.E.2d 658, 661 (1982).
Abee's final attack is on the finding by the trial judge that he would not benefit from sentencing as a committed youthful offender. G.S. 148-49.14 allows a court in its discretion to sentence as committed youthful offenders those under twenty-one who have been convicted of an offense punishable by imprisonment. The statute requires that a "no benefit" finding be made on the record before sentence is imposed.
We hold that marking the box beside the statement "that the defendant will not benefit from being sentenced as a youthful offender" on the sentencing form is sufficient to comply with the statute. All cases on this point cited by both parties were decided before the 1 July 1981 effective date of the Fair Sentencing Act and the use of the new sentencing form. As a result, they are distinguishable on the facts. It should be pointed out, however, that G.S. 148-49.14 has been interpreted not to require "any specific language in order for the `no benefit' finding to be effective." State v. White, 37 N.C.App. 394, 399, 246 S.E.2d 71, 74 (1978).
After consideration of the arguments discussed above, we find no abuse of discretion in the denial of Abee's motion for appropriate relief and no error on his appeal.
No error.
JONES' APPEAL
Jones contends that there is no evidence that he inserted his finger or any object into the victim's anus. As a result, he argues that it was error for the trial judge to find this as an aggravating factor.
We do not find this to be error for two reasons. First, the aggravating factor that Jones points to states in full:
The offense was committed during a course of conduct wherein the victim was repeatedly beaten with fists, resulting in bodily injury and abused, by fingers inserted in his rectum; ....
When the trial judge listed aggravating factors in Abee's case, a semicolon was put between the bodily injury factor and the abuse factor. We interpret the lack of such a punctuation mark in Jones' case to mean that the entire phrase was one aggravating factor. This aggravating factor is supported by competent evidence.
Second, the ability of Jones to show prejudice from this factor is weakened because his sentence was two years shorter than Abee. This is especially true given the fact that the aggravating factors listed for both defendants were identical except for the one difference in punctuation in this aggravating factor.
Ten of Jones' eleven assignments of error are substantially similar to Abee's arguments and do not warrant discussion. After a careful consideration of Jones' arguments on those ten alleged mistakes, we find no error for the reasons stated above.
No error.
HILL, J., concurs.
JOHNSON, J., dissents.
JOHNSON, Judge, dissenting.
Although the majority finds that the trial court erred by considering in aggravation "evidence necessary to prove an element of the offense," it holds that the error is not prejudicial unless the defendants show that a different result would have been reached had the court not erroneously considered *188 the evidence. The situation presented in State v. Ahearn, supra, relied upon by the majority, is distinguishable. The issue in the case under discussion does not relate to either (1) consideration of some aggravating factors not supported by the evidence or (2) the discretionary task of weighing mitigating and aggravating factors to increase or reduce sentences from the presumptive term. The trial court has no discretion to even consider evidence necessary to prove an element of the offense in aggravation according to the clear terms of G.S. 15A-1340.4. Therefore, the rationale of Ahearn is inapplicable to the question presented in this case. I would hold that consideration of evidence necessary to prove an element of the offense to prove any factor in aggravation violates the intent and spirit of basic fairness of the Fair Sentencing Act and is therefore, reversible per se. See Judge Wells' dissenting opinion in State v. Ahearn, supra.
It is my opinion that the cases should be remanded for a new hearing to determine an appropriate sentence.