{ "id": 8525080, "name": "STATE OF NORTH CAROLINA v. JESSE DWIGHT MIXION", "name_abbreviation": "State v. Mixion", "decision_date": "1993-05-18", "docket_number": "No. 9121SC1043", "first_page": "138", "last_page": "154", "citations": [ { "type": "official", "cite": "110 N.C. App. 138" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "15 ALR4th 983", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "316 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "280" } ], "opinion_index": 0 }, { "cite": "311 N.C. 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4681330 ], "year": 1984, "pin_cites": [ { "page": "220" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0214-01" ] }, { "cite": "339 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "665-66" }, { "page": "665", "parenthetical": "no duress where victim not armed and did not initiate confrontation" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 440", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521310 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "442-43" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0440-01" ] }, { "cite": "122 L. Ed. 2d 136", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1993, "opinion_index": 0 }, { "cite": "113 S. Ct. 983", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1993, "opinion_index": 0 }, { "cite": "326 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306390 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0298-01" ] }, { "cite": "392 S.E.2d 346", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "349", "parenthetical": "testimony of niece that victim told her she was afraid of defendant admissible under Rule 803(3)" } ], "opinion_index": 0 }, { "cite": "326 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305505 ], "year": 1990, "pin_cites": [ { "page": "694", "parenthetical": "testimony of niece that victim told her she was afraid of defendant admissible under Rule 803(3)" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0689-01" ] }, { "cite": "393 S.E.2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "816" } ], "opinion_index": 0 }, { "cite": "327 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498848 ], "year": 1990, "pin_cites": [ { "page": "219" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0210-01" ] }, { "cite": "426 S.E.2d 710", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "although error to allow unlimited expert testimony on post-traumatic stress disorder, error was not prejudicial in light of other strong and convincing evidence" } ], "opinion_index": 0 }, { "cite": "333 N.C. 347", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2545059, 2550093, 2548975, 2548374, 2544791 ], "year": 1993, "pin_cites": [ { "parenthetical": "although error to allow unlimited expert testimony on post-traumatic stress disorder, error was not prejudicial in light of other strong and convincing evidence" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0347-02", "/nc/333/0347-04", "/nc/333/0347-03", "/nc/333/0347-01", "/nc/333/0347-05" ] }, { "cite": "418 S.E.2d 263", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "268" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 596", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5314447 ], "year": 1992, "pin_cites": [ { "page": "604" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0596-01" ] }, { "cite": "305 S.E.2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "538" } ], "opinion_index": 0 }, { "cite": "309 N.C. 158", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763016 ], "year": 1983, "pin_cites": [ { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0158-01" ] }, { "cite": "350 S.E.2d 347", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "351" } ], "opinion_index": 0 }, { "cite": "318 N.C. 614", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4735495 ], "year": 1986, "pin_cites": [ { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0614-01" ] }, { "cite": "329 S.E.2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 332", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718890, 4721809, 4722068, 4722901, 4719479 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0332-04", "/nc/313/0332-02", "/nc/313/0332-01", "/nc/313/0332-03", "/nc/313/0332-05" ] }, { "cite": "321 S.E.2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "582" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 227", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524951 ], "year": 1984, "pin_cites": [ { "page": "232" } ], "opinion_index": 0, "case_paths": [ "/nc-app/71/0227-01" ] }, { "cite": "423 S.E.2d 75", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "83" } ], "opinion_index": 0 }, { "cite": "332 N.C. 544", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2503217 ], "year": 1992, "pin_cites": [ { "page": "559" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0544-01" ] }, { "cite": "313 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "587" } ], "opinion_index": 0 }, { "cite": "310 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2395265 ], "year": 1984, "pin_cites": [ { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0563-01" ] }, { "cite": "368 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "382" } ], "opinion_index": 0 }, { "cite": "322 N.C. 349", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515495 ], "year": 1988, "pin_cites": [ { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0349-01" ] }, { "cite": "415 S.E.2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "752" } ], "opinion_index": 0 }, { "cite": "331 N.C. 122", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498297 ], "year": 1992, "pin_cites": [ { "page": "158" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0122-01" ] }, { "cite": "353 S.E.2d 115", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 106", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4740066, 4742246, 4746951, 4741192, 4744373 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0106-01", "/nc/319/0106-05", "/nc/319/0106-03", "/nc/319/0106-02", "/nc/319/0106-04" ] }, { "cite": "348 S.E.2d 826", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "829" }, { "page": "829" } ], "opinion_index": 0 }, { "cite": "83 N.C. App. 37", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8357958 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "40-1" }, { "page": "41" } ], "opinion_index": 0, "case_paths": [ "/nc-app/83/0037-01" ] }, { "cite": "314 S.E.2d 805", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "807" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 272", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527021 ], "year": 1984, "pin_cites": [ { "page": "276" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0272-01" ] }, { "cite": "364 S.E.2d 410", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1988, "pin_cites": [ { "page": "413" }, { "parenthetical": "Court found extenuating relationship and also discussed existence of strong provocation" }, { "page": "524" }, { "page": "413-14" }, { "page": "524" }, { "page": "414" } ], "opinion_index": 0 }, { "cite": "321 N.C. 520", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566165 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "524" }, { "parenthetical": "Court found extenuating relationship and also discussed existence of strong provocation" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0520-01" ] }, { "cite": "306 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "454-56" } ], "opinion_index": 0 }, { "cite": "309 N.C. 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4762487 ], "year": 1983, "pin_cites": [ { "page": "218-20" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0214-01" ] }, { "cite": "377 S.E.2d 762", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 251", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2484836, 2488132, 2484134, 2485115, 2488252 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0251-01", "/nc/324/0251-03", "/nc/324/0251-02", "/nc/324/0251-04", "/nc/324/0251-05" ] }, { "cite": "376 S.E.2d 21", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "22" }, { "page": "22" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 752", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527656 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "753" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0752-01" ] }, { "cite": "308 S.E.2d 311", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "316" } ], "opinion_index": 0 }, { "cite": "309 N.C. 587", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761304 ], "year": 1983, "pin_cites": [ { "page": "593" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0587-01" ] }, { "cite": "419 S.E.2d 576", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "332 N.C. 150", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2504418, 2504101, 2503823, 2506550, 2507231 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/332/0150-01", "/nc/332/0150-05", "/nc/332/0150-04", "/nc/332/0150-02", "/nc/332/0150-03" ] }, { "cite": "414 S.E.2d 95", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "98" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 518", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524094 ], "year": 1992, "pin_cites": [ { "page": "523-24" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0518-01" ] }, { "cite": "253 S.E.2d 906", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1979, "pin_cites": [ { "page": "910" } ], "opinion_index": 0 }, { "cite": "297 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567263 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0151-01" ] }, { "cite": "392 S.E.2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5308707 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0676-01" ] }, { "cite": "389 S.E.2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "74" }, { "page": "74" } ], "opinion_index": 0 }, { "cite": "418 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "296-99" } ], "opinion_index": 1 }, { "cite": "106 N.C. App. 548", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5314103 ], "year": 1992, "pin_cites": [ { "page": "555-61" } ], "opinion_index": 1, "case_paths": [ "/nc-app/106/0548-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-33", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(b)(l)" }, { "page": "(b)(2)" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 1165, "char_count": 37158, "ocr_confidence": 0.766, "pagerank": { "raw": 3.3110326513597704e-07, "percentile": 0.8724587804153833 }, "sha256": "9788a90ba1548b8b8e4e45d05debe3f0161a3255a012120880b4b44f4c45aff8", "simhash": "1:8362d026362f0865", "word_count": 6132 }, "last_updated": "2023-07-14T20:46:54.224272+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge WELLS concurs.", "Judge COZORT concurs in part and dissents in part." ], "parties": [ "STATE OF NORTH CAROLINA v. JESSE DWIGHT MIXION" ], "opinions": [ { "text": "LEWIS, Judge.\nA Forsyth County Grand Jury indicted defendant for the murder of his wife Sylvia Mixion and the assault with a deadly weapon with intent to kill inflicting serious injury (hereinafter \u201cthe assault\u201d) upon his sister-in-law Toni Nelson. At trial the State pursued a second-degree murder conviction, and the jury found defendant guilty of second-degree murder and the assault. Judge Allen found aggravating and mitigating factors, and sentenced defendant to a total of 52 years imprisonment, 40 years for the murder and 12 years for the assault.\nWe begin with a recitation of the facts, including the discrepancies between the State\u2019s evidence and defendant\u2019s evidence. It is undisputed that Ms. Mixion and Ms. Nelson arrived at defendant\u2019s place of residence at about 10:30 p.m. on 5 July 1990. They entered the house and found defendant in the back bedroom. Ms. Mixion was angry with defendant, started to shout at him, and pulled out a pistol but never fired. The ensuing fight flowed to the front bedroom and then to the living room. At some point defendant picked up a gun. In the living room defendant fired two shots: one killed Ms. Mixion and the other injured Ms. Nelson.\nDefendant\u2019s evidence tends to show that defendant may have acted in self-defense when he shot his wife and injured his sister-in-law. Several of defendant\u2019s friends were in the house that night when Ms. Mixion and Ms. Nelson arrived. They testified that Ms. Mixion stormed into the house and attacked defendant as he was sitting peacefully in his bedroom. Ms. Mixion repeatedly hit defendant with a pistol as the fight progressed to the front bedroom and the living room. Although one friend, Larry Wilson, was standing in the doorway to the living room when the shooting occurred, he testified that he could \u201cnot exactly\u201d see the people in the room when the shot was fired, and that he \u201cdidn\u2019t know who had shot who at that time.\u201d The other friends had left the house before the shots were fired.\nDefendant himself testified that Ms. Mixion came into the bedroom, stuck her pistol in his face, cursed at him, and hit him with and without the pistol. According to defendant, they started fighting as he tried to leave the room. He picked up a gun. At one point Ms. Nelson jumped on top of him, hit him, and brought him to the floor. He alleges that when they got to the living room Ms. Mixion pushed him, raised her pistol, cocked it, pointed it at him and said \u201cI am going to kill you.\u201d When Ms. Nelson said \u201cshoot,\u201d defendant fired his gun twice.\nThe State\u2019s evidence, on the other hand, tends to show that defendant was not acting in self-defense. The State was permitted to introduce evidence of events which occurred prior to the night in question. This evidence indicated that defendant\u2019s wife and son had left him in October 1989. On a subsequent occasion defendant entered the family home, where his wife and son were living, and chopped up all of the furniture, and on another occasion he cut off their heat and electricity. In June 1990 he told his wife, and also his son, that he would kill his wife before he let her have the house. Defendant\u2019s son was permitted to testify that defendant had previously threatened his wife, fought with her, and cut her with a knife. Ms. Nelson testified that defendant had tried to run over his wife with his car in January 1990.\nThe State was also allowed to introduce the expert testimony of a psychiatrist, Dr. Nancy Gaby. Dr. Gaby testified that she had met with Ms. Mixion for 30 minutes on 26 February 1990. She testified that Ms. Mixion told her that defendant had been harassing and threatening her in \u201cnumerous\u201d and \u201cvicious\u201d ways, and that she had obtained a restraining order. Dr. Gaby testified that Ms. Mixion was neither suicidal nor homicidal. Ms. Mixion\u2019s divorce attorney, John Schramm, testified that she told him defendant had previously assaulted her and damaged her property.\nToni Nelson testified that on 5 July 1990 she and Ms. Mixion went to defendant\u2019s house and found defendant in the back bedroom. Ms. Mixion started shouting, cursing, and hitting defendant and became \u201creal irate.\u201d She pulled out a pistol, shook it at defendant, and then left the bedroom to go to the front bedroom. Ms. Nelson was still in the room with defendant when he produced a gun from under his mattress and followed Ms. Mixion. Ms. Nelson testified that she saw Ms. Mixion underneath defendant in the front room, and that he was \u201cpounding down\u201d on her. Ms. Nelson hit defendant on the head with a cordless drill. Ms. Nelson testified that she and Ms. Mixion were standing in the living room when defendant came out of the front bedroom. Neither of them said anything to defendant before he shot his gun twice, once at Ms. Mixion and once at her. Ms. Mixion fell to the floor and Ms. Nelson ran outside. Ms. Mixion\u2019s pistol, a Derringer, was found in the open position, with two unfired rounds on the floor, about two to three feet from her head. A pistol in the open position cannot be fired.\nOn appeal, defendant claims the court should have granted his motion to dismiss, because the evidence of malice was insufficient and in fact showed that he acted in imperfect self-defense. Defendant argues the trial court erroneously allowed the State to introduce various types of evidence at trial. Defendant challenges the admission of the psychiatrist\u2019s expert testimony, evidence of prior wrongs and acts, and hearsay evidence of prior wrongs and acts. Defendant argues that the trial court should have given his requested jury instruction on his rights to self-defense in his own home. Finally, defendant challenges the trial court\u2019s finding of the aggravating factor of prior convictions, and its failure to find as a mitigating factor an extenuating relationship with his wife and that he acted under duress or threat thereby reducing his culpability.\nI. Defendant\u2019s Motion to Dismiss\nDefendant first argues the trial court erred in denying his motion to dismiss at the close of all the evidence, because the evidence showed he acted in imperfect self-defense as a matter of law. He claims the evidence of malice was insufficient, and therefore he could only have been guilty of voluntary manslaughter and should not have been convicted of second degree murder.\nOn defendant\u2019s motion to dismiss in a criminal ease, the evidence must be viewed in the light most favorable to the State, allowing the State the benefit of every reasonable inference. State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 382 (1988). \u201cAny contradictions or discrepancies in the evidence are for resolution by the jury.\u201d State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).\nTo establish second-degree murder, the State must produce evidence that defendant committed \u201cthe unlawful killing of a human being with malice, but without premeditation and deliberation.\u201d State v. Thomas, 332 N.C. 544, 559, 423 S.E.2d 75, 83 (1992). The element of malice is rebuttably presumed when \u201can individual intentionally takes the life of another with a deadly weapon.\u201d State v. Deans, 71 N.C. App. 227, 232, 321 S.E.2d 579, 582 (1984), disc. rev. denied, 313 N.C. 332, 329 S.E.2d 386 (1985). The trial judge found as a matter of law that defendant\u2019s weapon, a .25 caliber Raven pistol, was a deadly weapon. The State\u2019s evidence also showed that defendant threatened his wife on prior occasions, damaged her property, and even said he would kill her before he let her live in the house. On the night in question, the State\u2019s evidence shows that neither Ms. Mixion nor Ms. Nelson said or did anything threatening towards defendant immediately prior to the shooting in the living room.\nAfter reviewing the evidence in the light most favorable to the State, we find sufficient evidence of malice to go to the jury. It was for the jury to resolve the discrepancies between the State\u2019s evidence of malice and defendant\u2019s evidence of imperfect self-defense. The trial court properly denied defendant\u2019s motion to dismiss.\nII. Expert Character Testimony\nDefendant argues the trial court erroneously admitted the expert testimony of psychiatrist Nancy Gaby. Dr. Gaby was permitted to read from her notes, taken during a February 1990 interview with Ms. Mixion, her conclusion that in her opinion Sylvia Mixion was not homicidal. Defendant claims this evidence was introduced to show that Ms. Mixion was not homicidal on the night in question and therefore defendant could not have been acting in self-defense. Thus, according to defendant, Dr. Gaby\u2019s testimony amounted to an improper expert opinion of defendant\u2019s guilt. See State v. Kim, 318 N.C. 614, 621, 350 S.E.2d 347, 351 (1986). Defendant argues this evidence was extremely prejudicial.\nIn North Carolina an expert may not express an opinion regarding the guilt or innocence of a defendant. See State v. Keen, 309 N.C. 158, 163, 305 S.E.2d 535, 538 (1983). According to Rule 405(a) of the North Carolina Rules of Evidence, \u201c[e]xpert testimony on character or a trait of character is not admissible as circumstantial evidence of behavior.\u201d N.C.G.S. \u00a7 8C-1, Rule 405(a) (1992).\nThe State argues the evidence was admissible under Rule 803 as a state of mind expression and as a statement for purposes of medical diagnosis and treatment. \u00a7 8C-1, Rule 803(3), -(4). However, Rule 803 only relates to the admissibility of Dr. Gaby\u2019s hearsay statements of what Ms. Mixion told her during their interview. Although Dr. Gaby\u2019s notes indicate that Ms. Mixion did in fact state that she was not suicidal or homicidal, defendant is objecting to the admission of Dr. Gaby\u2019s conclusion that Ms. Mixion was not homicidal. Rule 803 does not assist the State regarding the admissibility of Dr. Gaby\u2019s own opinion, and the State has presented no argument addressing the admissibility of Dr. Gaby\u2019s opinion.\nWe must conclude the trial court erred, under Rule 405(a), in admitting Dr. Gaby\u2019s opinion that Ms. Mixion was not homicidal. However, defendant has not shown that this amounted to prejudicial error under N.C.G.S. \u00a7 15A-1443(a) (1988) (if not a constitutional error defendant has burden to show prejudice and that a different result would have been reached). On cross-examination, defendant\u2019s attorney established that Dr. Gaby\u2019s interview with Ms. Mixion lasted only 30 minutes, and it occurred several months before the night in question. Dr. Gaby admitted she was not familiar with the victim\u2019s medical state in July 1990, when the shooting occurred. Furthermore, we note that the jury had heard detailed testimony from several witnesses concerning the night in question as well as testimony regarding the past relationship between defendant and Ms. Mixion. The jury knew that Ms. Mixion was armed from the time she entered defendant\u2019s house that night, and that she could have shot defendant if that had been her intention, instead of merely hitting him with her pistol. In light of the other evidence presented, we do not believe a different result would have been reached if Dr. Gaby\u2019s testimony, based upon a brief encounter several months earlier, had been excluded. See State v. Davis, 106 N.C. App. 596, 604, 418 S.E.2d 263, 268 (1992), disc. rev. denied, 333 N.C. 347, 426 S.E.2d 710 (1993) (although error to allow unlimited expert testimony on post-traumatic stress disorder, error was not prejudicial in light of other strong and convincing evidence).\nIII. Evidence of Prior Wrongs and Acts\nA. Character Evidence\nDefendant contends the trial court erroneously allowed non-hearsay evidence of prior wrongs and acts in violation of Rules 404 and 403. This evidence consisted of the testimony of various people that defendant had previously threatened and assaulted Ms. Mixion and damaged her property, and that she had taken legal action against him. Defendant claims this evidence was introduced to show his violent character and that he did not act in self-defense on 5 July 1990.\nAccording to Rule 404, \u201c[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.\u201d \u00a7 8C-1, Rule 404(b). However, defendant concedes in his brief that when one spouse is accused of killing the other, evidence of the accused\u2019s prior assaults and threats made during their marriage is admissible to prove malice and intent. State v. Lynch, 327 N.C. 210, 219, 393 S.E.2d 811, 816 (1990). The evidence was clearly admissible under this principle.\nB. Hearsay Evidence\nDefendant also objects to hearsay evidence of alleged prior wrongs and acts. He objects to testimony that Ms. Mixion told others that he had cut off the heat and electricity, that he had threatened to kill her, that he had been harassing her, that he was crazy, that the police had not been able to catch him for violating the restraining order, that he had assaulted her several times in the past, that he had damaged her furniture, and that he had tampered with the house. Defendant also argues that even if the evidence was admissible under the state of mind exception to the hearsay rules, it was not relevant to the case.\nRule 803(3) sets forth the state of mind exception to the hearsay rules: \u201c[a] statement of the declarant\u2019s then existing state of mind, emotion, sensation . . . but not including a statement of memory or belief to prove the fact remembered or believed ....\u201d\u00a7 8C-1, Rule 803(3). Defendant claims the evidence did not show state of mind, because Ms. Mixion did not express her emotional state or feelings. She did not state that she was fearful of defendant, but merely related facts and events that had transpired.\nIt is true that in many of the cases addressing this hearsay exception, the evidence allowed indicates that the declarant had actually expressed fear of the defendant. See State v. Meekins, 326 N.C. 689, 694, 392 S.E.2d 346, 349 (1990) (testimony of niece that victim told her she was afraid of defendant admissible under Rule 803(3)). However, we note that State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990), is similar to this case. In that case the trial court allowed hearsay evidence that the victim had stated defendant had previously beaten her and threatened her. The witnesses did not state that the victim had expressed any fear. The Supreme Court found no error, noting that the testimony was admissible under Rule 803(3), because \u201cthe scope of the conversation . . . related directly to [the victim\u2019s] existing state of mind and emotional condition.\u201d 326 N.C. at 313, 389 S.E.2d at 74. In State v. Faucette, 326 N.C. 676, 392 S.E.2d 71 (1990), the Supreme Court found that the victim\u2019s statements to her son that defendant had threatened her \u201crevealed her then-existing fear of the defendant . . . .\u201d Id. at 683, 392 S.E.2d at 74.\nWe find that the hearsay evidence of threats and harassment by the defendant related directly to Ms. Mixion\u2019s state of mind and was therefore admissible under Rule 803(3). We also find that her state of mind was relevant to the case. In Cummings, the Court stated that the victim\u2019s state of mind was \u201chighly relevant as it relates directly to the status of her relationship with defendant . . .\u201d 326 N.C. at 313, 389 S.E.2d at 74. Defendant\u2019s contention that the evidence did not bear sufficient indicia of reliability under the Sixth Amendment of the United States Constitution is entirely frivolous. The evidence falls squarely within one of the established hearsay exceptions.\nIV. Jury Instructions\nDefendant argues he is entitled to a new trial because the trial judge did not charge the jury with his requested jury instruction on his right to increase the amount of force used in self-defense in his own home, and that he was not required to retreat in his own home. At trial, defendant actually requested an instruction on defense of habitation, which the judge refused since the two women had already entered the house at the time of the shooting. Although the judge did instruct that defendant had no duty to retreat in his own home, the judge did not instruct that defendant had the right to increase his force.\nWe find the trial court properly instructed the jury according to Pattern Instruction '308.10 as follows: \u201cIf the defendant was not the aggressor and he was in his own home ... he could stand his ground and repel force with force regardless of the character of the assault being made upon him. However, the defendant would not be excused if he used excessive force . . . .\u201d This instruction is in accordance with State v. McCombs, 297 N.C. 151, 253 S.E.2d 906 (1979), wherein the Court stated,\nthe use of deadly force in defense of the habitation is justified only to prevent a forcible entry into the habitation . . . . Once the assailant has gained entry . . . the usual rules of self-defense replace the rules governing defense of habitation, with the exception that there is no duty to retreat ....\nId. at 156-57 , 253 S.E.2d at 910. See also State v. Marshall, 105 N.C. App. 518, 523-24, 414 S.E.2d 95, 98, disc. rev. denied, 332 N.C. 150, 419 S.E.2d 576 (1992). Defendant did not shoot to prevent entry into his home. He was therefore not entitled to an instruction on defense of habitation. We note the trial judge properly instructed on self-defense and imperfect self-defense.\nV. Aggravating Factor: Prior Convictions\nDefendant argues that the trial court\u2019s finding of the statutory aggravating factor of prior convictions is not supported by any competent record evidence. Defendant claims the alleged prior convictions were not proven by any acceptable method under the Fair Sentencing Act, N.C.G.S. \u00a7 15A-1340.4(e) (Cum. Supp. 1992), or by any other permissible method of proof.\nThe State relies on the fact that prior to trial and sentencing, it submitted a motion in which it referred to evidence of defendant\u2019s conviction for assaulting Ms. Mixion with a knife in 1985. With this motion the State filed a \u201cNotice of Intent to Use Record of Prior Convictions,\u201d attaching a list of convictions \u201cobtained from official records.\u201d The State points out that the trial court heard arguments on the pre-trial motions, and that at trial the prosecutor cross-examined defendant about several of the listed convictions. Thus, when the prosecutor referred to a prior conviction at the sentencing hearing, he was referring to competent evidence of record. The State therefore contends it met its burden of proving the prior convictions.\nThe State must prove by a preponderance of the evidence the existence of aggravating factors. \u00a7 15A-1340.4(a), -(b). Prior convictions may be proved \u201cby stipulation of the parties or by the original or a certified copy of the court record of the prior conviction.\u201d \u00a7 15A-1340.4(e). According to defendant, the State never introduced any court record of defendant\u2019s convictions, and the parties never stipulated to them. Defendant contends the State\u2019s only evidence consisted of the prosecutor\u2019s unsworn statement that defendant had some prior convictions.\nThe Supreme Court has stated that \u201cthe enumerated methods of proof of N.C. Gen. Stat. \u00a7 15A-1340.4(e) are permissive rather than mandatory.\u201d State v. Graham, 309 N.C. 587, 593, 308 S.E.2d 311, 316 (1983). In Graham, a deputy had advised the court of defendant\u2019s record from his own personal knowledge, and, more significantly, the defendant had admitted the prior convictions. Id. In State v. Williams, 92 N.C. App. 752, 376 S.E.2d 21, disc. rev. denied, 324 N.C. 251, 377 S.E.2d 762 (1989), the Court stated that \u201c[a] prosecutor\u2019s mere unsworn assertion that an aggravating factor exists is insufficient proof for the trial court to find it.\u201d 92 N.C. App. at 753, 376 S.E.2d at 22. In that case, although the prosecutor was reading from official records, he did not offer them into evidence and defendant did not stipulate to them. For these reasons this Court remanded the matter for a new sentencing hearing, at which the Court noted the prior convictions would most likely be properly established. Id. at 753-54, 376 S.E.2d at 22.\nIn the case at hand, defendant did admit that he had been convicted of assaulting Ms. Mixion in 1982. However, there was no evidence indicating whether this conviction was for a simple assault or some form of aggravated assault. To be admissible, the prior conviction must have been for an offense punishable by more than 60 days imprisonment. \u00a7 15A-1340.4(a)(l)o. A simple assault is punishable by a fine or imprisonment for \u201cnot more than 30 days.\u201d N.C.G.S. \u00a7 14-33(a) (Cum. Supp. 1992). Without further information, defendant\u2019s admission that he was convicted of an assault cannot support a finding of the aggravating factor of a prior conviction.\nWe find there was insufficient evidence of defendant\u2019s prior convictions. The prior convictions were not proven by any acceptable methods, statutory or otherwise. The list of convictions submitted with the State\u2019s \u201cNotice of Intent to Use Record of Prior Convictions\u201d is a computer printout apparently obtained from the Winston-Salem police department. Although the prosecutor referred to the list during his cross-examination of defendant at trial, he never offered the list as evidence, and defendant never stipulated to it. We must remand for a new sentencing hearing, at which the State will have the opportunity to prove defendant\u2019s convictions by appropriate methods.\nVI. Mitigating Factors: Extenuating Relationship; Duress or Threat\nFinally, defendant contends the trial court erred in failing to find the statutory mitigating sentencing factors of an extenuating relationship between defendant and the victim, \u00a7 15A-1340.4(a)(2)i, and that defendant was acting under duress or threat which reduced his culpability. \u00a7 15A-1340.4(a)(2)b. A trial judge\u2019s failure to consider a statutory mitigating sentencing factor must be reversed on appeal if that factor is supported by uncontradicted, substantial, and credible evidence. State v. Jones, 309 N.C. 214, 218-20, 306 S.E.2d 451, 454-56 (1983). In order to find error in a judge\u2019s failure to find a mitigating factor, \u201cthe evidence must show conclusively that this mitigating factor exists, [and that] no other reasonable inferences can be drawn from the evidence.\u201d State v. Canty, 321 N.C. 520, 524, 364 S.E.2d 410, 413 (1988).\nSection 15A-1340.4(a)(2) includes the following two mitigating factors:\nb. The defendant committed the offense under duress, coercion, threat, or compulsion which was insufficient to constitute a defense but significantly reduced his culpability ....\ni. The defendant acted under strong provocation, or the relationship between the defendant and the victim was otherwise extenuating.\nA. Extenuating Relationship\nAn extenuating relationship should be found if circumstances show that part of the fault for a crime can be \u201cmorally shifted\u201d from defendant to the victim. State v. Martin, 68 N.C. App. 272, 276, 314 S.E.2d 805, 807 (1984). Defendant claims his relationship with Ms. Mixion was \u201cmutually stormy and difficult.\u201d Their son testified that neither defendant nor his mother were free from fault. Defendant also points to uncontradicted evidence that Ms. Mixion apparently shot a gun at defendant during their marriage, falsely accused defendant of having venereal disease, and threatened to shoot defendant in January and July 1990. Also, on the night in question Ms. Mixion was the initial aggressor. Thus, defendant claims at least part of the moral fault should be shifted to Ms. Mixion.\nThe State responds that the court did in fact find this mitigating factor when it stated that \u201c[t]he Court finds as a mitigating factor that the defendant acted under strong provocation.\u201d Since strong provocation is a factor listed in the same statutory subsection as an alternative to an extenuating relationship, the State essentially argues it has the same effect as finding the factor of an extenuating relationship.\nWe must reject the State\u2019s argument that it is unnecessary to consider the existence of an extenuating relationship in addition to strong provocation. In State v. Crandall, 83 N.C. App. 37, 348 S.E.2d 826 (1986), disc. rev. denied, 319 N.C. 106, 353 S.E.2d 115 (1987), this Court stated that proof of both types of conduct set forth in the alternative in a subsection of statutory sentencing factors would support the finding of two separate mitigating factors \u201cso as to reflect the defendant\u2019s lesser culpability.\u201d 83 N.C. App. at 40-1, 348 S.E.2d at 829. See State v. Canty, 321 N.C. 520, 364 S.E.2d 410 (1988) (Court found extenuating relationship and also discussed existence of strong provocation).\nThus, we must determine if the defendant has shown uncontradicted, substantial evidence of an extenuating relationship. Past difficulties in a marital relationship are not sufficient to support a finding of an extenuating relationship. State v. Hudson, 331 N.C. 122, 158, 415 S.E.2d 732, 752 (1992), cert. denied, 113 S. Ct. 983, 122 L. Ed. 2d 136 (1993). In State v. Bullard, 79 N.C. App. 440, 339 S.E.2d 664 (1986), the Court stated that although the defendant and victim had been arguing over an extended period of time, this evidence did not compel a finding that they had an extenuating relationship, because this evidence did not \u201cnecessarily lessen the seriousness of the crime committed.\u201d Id. at 443, 339 S.E.2d at 665-66 (quoting State v. Michael, 311 N.C. 214, 220, 316 S.E.2d 276, 280 (1984)).\nIn light of these principles, we cannot conclusively determine that this mitigating factor exists. The trial court could have considered the evidence and properly concluded that this factor was not supported by uncontradicted and substantial evidence.\nB. Duress or Threat\nDefendant argues that since all of the evidence shows that Ms. Mixion initiated the fight and used \u201cgross physical force\u201d on defendant, the trial court should have found the defendant committed the crime under duress or threat. We note that even the State\u2019s evidence showed that the victim was armed and assaulted defendant with a pistol immediately prior to the shooting.\nIn State v. Canty, 321 N.C. 520, 364 S.E.2d 410 (1988), evidence that the victim had stabbed defendant 48 hours before defendant killed the victim was not sufficient to establish that defendant acted under duress. Id. at 524, 364 S.E.2d at 413-14. The Court noted that at the time of the shooting the victim did not display a weapon and did not initiate the confrontation. Id. at 524, 364 S.E.2d at 414. See also Bullard, 79 N.C. App. at 442-43, 339 S.E.2d at 665 (no duress where victim not armed and did not initiate confrontation).\nAlthough the evidence in the case at hand would probably support a finding of duress since the victim was armed and had initiated the confrontation, we are constrained by the fact that the same evidence may not support more than one mitigating factor. Crandall, 83 N.C. App. at 41, 348 S.E.2d at 829. This evidence appears to be the basis for the trial judge\u2019s finding of strong provocation. The judge summarily stated the finding of strong provocation in response to defense attorney\u2019s plea for that factor because \u201c[defendant] was in his home where, regardless of who it is, entered with a deadly weapon and an assault ensues . . . and because \u201cof the method and manner of the attack upon [the defendant].\u201d Since the same evidence may not support a finding of strong provocation and duress, we find no error in the judge\u2019s failure to find duress.\nWe must remand this case for a new sentencing hearing for proper documentation of defendant\u2019s prior convictions.\nIn the trial, no error.\nRemanded for new sentencing.\nJudge WELLS concurs.\nJudge COZORT concurs in part and dissents in part.", "type": "majority", "author": "LEWIS, Judge." }, { "text": "Judge COZORT\ndissenting.\nI concur with all of the majority opinion except that portion which concludes that the matter must be remanded for resentenc-ing. I find the trial court\u2019s finding of the aggravating factor of prior conviction is supported by evidence properly before the trial court, and I vote no error.\nAt the beginning of the trial, on 1 April 1991, the State filed with the court a notice to the defendant that the State intended to use defendant\u2019s record of prior convictions during cross-examination if the defendant took the stand, and in its case in chief if any prior conviction involved Sylvia Mixion. Attached to the notice was a printout of defendant\u2019s record. The printout showed that defendant was convicted on 21 January 1986 of assault with a deadly weapon, a knife, in violation of N.C. Gen. Stat. \u00a7 14-33. N.C. Gen. Stat. \u00a7 14-33(b)(l) (Cum. Supp. 1992) defines that offense as a misdemeanor punishable by imprisonment for not more than two years. The printout also revealed that defendant was convicted on 24 August 1982 of assault on a female, in violation of N.C. Gen. Stat. \u00a7 14-33(b)(2). A conviction under that section also subjects the defendant to imprisonment for not more than two years. As the majority points out, the defendant admitted the 1982 conviction, which, as a matter of law, satisfies the \u201cmore than 60 days\u2019 confinement\u201d requirement of N.C. Gen. Stat. \u00a7 15A-1340.4(l)o. (Cum. Supp. 1992).\nI also observe that the defendant made no objection when the State offered and argued the prior convictions at the sentencing hearing. The State\u2019s attorney stated: \u201cThe State, I believe, may have tendered a copy of the record. I believe it\u2019s been recited in evidence for the court.\u201d The State\u2019s attorney then made specific reference to the assault with a deadly weapon and the assault on a female, as well as a trespass conviction. Defendant should not now be permitted to argue that it is unclear whether the assault was simple or aggravated. See State v. Quick, 106 N.C. App. 548, 555-61, 418 S.E.2d 291, 296-99 (1992).\nIt would be a waste of our already overburdened judicial resources to remand this case for a resentencing hearing when all that would be produced is exactly the same information which was properly before the trial court two years ago.\nI respectfully dissent.", "type": "dissent", "author": "Judge COZORT" } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Associate Attorney General John G. Barnwell, for the State.", "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JESSE DWIGHT MIXION\nNo. 9121SC1043\n(Filed 18 May 1993)\n1. Homicide \u00a7 313 (NCI4th)\u2014 second degree murder \u2014evidence of self-defense \u2014 sufficient evidence of malice\nThe State presented sufficient evidence of malice for submission to the jury of a charge against defendant for the second degree murder of his estranged wife, although defendant presented evidence that he acted in imperfect self-defense, where the State\u2019s evidence tended to show that defendant intentionally shot his wife and his sister-in-law with a .25 caliber pistol; defendant had threatened his wife on prior occasions, damaged her property, and said that he would kill her before he let her live in the family home; and on the night in question, neither the wife nor the sister-in-law said or did anything threatening toward defendant immediately prior to the shooting. Discrepancies between the State\u2019s evidence of malice and defendant\u2019s evidence of imperfect self-defense were for the jury to resolve.\nAm Jur 2d, Homicide \u00a7\u00a7 50, 51, 139-169, 274.\n2. Evidence and Witnesses \u00a7 267 (NCI4th)\u2014 psychiatric testimony \u2014opinion that victim not homicidal \u2014admission as harmless error\nA psychiatrist\u2019s opinion formed during an interview of a murder victim several months before the murder, that the victim was not homicidal was inadmissible under Rule of Evidence 405(a) to show that the victim was not homicidal on the night in question and that defendant could not have been acting in self-defense when he shot the victim. However, the admission of this testimony was not prejudicial error where the psychiatrist testified on cross-examination that the interview lasted only thirty minutes and that she was not familiar with the victim\u2019s medical state on the date of the killing; the jury knew that the victim was armed with a pistol when she entered defendant\u2019s house the night of the killing and that she could have shot defendant if that was her intention rather than merely hitting him with her pistol; and a different result would not have been reached if the psychiatrist\u2019s opinion had been excluded.\nAm Jur 2d, Expert and Opinion Evidence \u00a7\u00a7 190, 193.\n3. Evidence and Witnesses \u00a7 339 (NCI4th)\u2014 prior threats, assaults, damage to property \u2014 admissibility to show malice and intent\nIn a prosecution of defendant for the murder of his estranged wife, nonhearsay testimony that defendant had previously threatened and assaulted his wife and damaged her property and that she had taken legal action against him was admissible to prove defendant\u2019s malice and intent. N.C.G.S. \u00a7 8C-1, Rule 404(b).\nAm Jur 2d, Homicide \u00a7\u00a7 280, 282, 283, 359, 360.\n4. Evidence and Witnesses \u00a7 876 (NCI4th)\u2014 threats and harassment \u2014hearsay statements of murder victim \u2014state of mind exception\nHearsay testimony that a murder victim had told others that defendant had cut off her heat and electricity, threatened to kill her, harassed her, assaulted her several times, damaged her furniture, and tampered with her house, that he was crazy, and that the police had been unable to catch him for violating a restraining order was admissible under the state of mind exception to the hearsay rule set forth in Rule of Evidence 803(3).\nAm Jur 2d, Evidence \u00a7\u00a7 496, 497, 650.\n5. Homicide \u00a7 629 (NCI4th)\u2014 self-defense in home \u2014amount of force \u2014 instructions\nThe trial court in a prosecution for second degree murder and felonious assault did not err in failing to give defendant\u2019s requested instruction on defendant\u2019s right to increase the amount of force used in self-defense in his own home where defendant actually requested an instruction on defense of habitation; defendant did not shoot the victims to prevent entry into his home and was thus not entitled to an instruction on defense of habitation; and the court properly instructed the jury that if defendant was not the aggressor and was in his own home, he could stand his ground and repel force with force regardless of the character of the assault being made upon him, but that defendant would not be excused if he used excessive force.\nAm Jur 2d, Homicide \u00a7\u00a7 174 et seq., 496.\nAccused\u2019s right, in homicide case, to have jury instructed as to both unintentional shooting and self-defense. 15 ALR4th 983.\n6. Criminal Law \u00a7 1184 (NCI4th)\u2014 aggravating factor \u2014prior convictions \u2014insufficient record evidence\nThe trial court\u2019s finding of the statutory aggravating factor of prior convictions was not supported by competent record evidence where the State filed a notice to defendant of intent to use defendant\u2019s record of prior convictions at trial, a computer printout of defendant\u2019s record of prior convictions was attached to the notice, the prosecutor cross-examined defendant at trial about several of the listed convictions, defendant admitted he had been convicted of assaulting his wife in 1982, and the prosecutor referred to defendant\u2019s prior convictions at the sentencing hearing, but there was no evidence indicating whether the assault conviction was for a simple or an aggravated assault and thus whether the offense was punishable by imprisonment for more than 60 days, the prosecutor never offered the printout list of convictions as evidence, and defendant never stipulated to these convictions. N.C.G.S. \u00a7 15A-1340.4(e).\nAm Jur 2d, Homicide \u00a7\u00a7 310-314.\n7. Criminal Law \u00a7 1238 (NCI4th)\u2014 strong provocation \u2014 extenuating relationship \u2014separate mitigating factors\nAlthough strong provocation and an extenuating relationship are listed in the same statutory subsection, N.C.G.S. \u00a7 15A-1340.4(a)(2)i, they are separate mitigating factors, and the trial court\u2019s finding of the strong provocation factor does not have the same effect as finding the factor of an extenuating relationship.\nAm Jur 2d, Homicide \u00a7\u00a7 274, 290, 291, 575.\n8. Criminal Law \u00a7 1245 (NCI4th)\u2014 mitigating factor \u2014 extenuating relationship \u2014insufficient evidence to require finding\nEvidence of past difficulties and a stormy relationship between defendant and his estranged wife for which both were at fault did not require the trial court to find an extenuating relationship as a mitigating factor for defendant\u2019s second degree murder of his wife.\nAm Jur 2d, Homicide \u00a7\u00a7 274, 290, 291, 575.\n9. Criminal Law \u00a7 1216 (NCI4th)\u2014 mitigating factors \u2014 duress \u2014 strong provocation \u2014failure to find duress not error\nAlthough evidence that a murder victim was armed with a pistol and initiated the confrontation with defendant would support a finding of duress as a mitigating factor for defendant\u2019s second degree murder of the victim, the trial court did not err in failing to find duress where this same evidence was the basis for the trial court\u2019s finding of strong provocation as a mitigating factor.\nAm Jur 2d, Homicide \u00a7\u00a7 119, 274, 290, 291, 575.\nJudge COZORT dissenting.\nAppeal by defendant from judgments and commitments entered 5 April 1991 by Judge W. Steven Allen in Forsyth County Superior Court. Heard in the Court of Appeals 13 January 1993.\nAttorney General Lacy H. Thornburg, by Associate Attorney General John G. Barnwell, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant." }, "file_name": "0138-01", "first_page_order": 168, "last_page_order": 184 }