{ "id": 9495831, "name": "STATE OF NORTH CAROLINA v. ARTHUR EDWARD BALDWIN, JR.", "name_abbreviation": "State v. Baldwin", "decision_date": "2000-07-18", "docket_number": "No. COA99-767", "first_page": "65", "last_page": "75", "citations": [ { "type": "official", "cite": "139 N.C. App. 65" } ], "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": "493 S.E.2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "300", "parenthetical": "relying on Reeb to uphold the same aggravating factor in sentences for the non-malice crimes of attempted armed robbery and assault with a deadly weapon inflicting serious injury" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 677", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11799699 ], "year": 1997, "pin_cites": [ { "page": "683", "parenthetical": "relying on Reeb to uphold the same aggravating factor in sentences for the non-malice crimes of attempted armed robbery and assault with a deadly weapon inflicting serious injury" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0677-01" ] }, { "cite": "300 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "701" } ], "opinion_index": 0 }, { "cite": "307 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565300 ], "year": 1983, "pin_cites": [ { "page": "602" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0584-01" ] }, { "cite": "449 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "400" } ], "opinion_index": 0 }, { "cite": "338 N.C. 244", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2521132 ], "year": 1994, "pin_cites": [ { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0244-01" ] }, { "cite": "443 S.E.2d 740", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "743", "parenthetical": "evidence that defendant took a deadly weapon to victim's neighborhood was so closely connected to the evidence implying malice, it was error to consider the use of the pistol again in sentencing" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 92", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12122170 ], "year": 1994, "pin_cites": [ { "page": "97", "parenthetical": "evidence that defendant took a deadly weapon to victim's neighborhood was so closely connected to the evidence implying malice, it was error to consider the use of the pistol again in sentencing" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0092-01" ] }, { "cite": "353 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "384", "parenthetical": "conviction of involuntary manslaughter required finding that defendant was armed with and discharged a firearm, which in effect became an element of the offense, and the same evidence could not be considered as an aggravating factor for sentencing" } ], "opinion_index": 0 }, { "cite": "319 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4743860 ], "year": 1987, "pin_cites": [ { "page": "165", "parenthetical": "conviction of involuntary manslaughter required finding that defendant was armed with and discharged a firearm, which in effect became an element of the offense, and the same evidence could not be considered as an aggravating factor for sentencing" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0152-01" ] }, { "cite": "364 S.E.2d 743", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "746", "parenthetical": "although strictly speaking \"the use of a deadly weapon is not an essential element of voluntary manslaughter . . . our Supreme Court gave a broader meaning to the term 'element of the offense[.]' \"" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 659", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358916 ], "year": 1988, "pin_cites": [ { "page": "663", "parenthetical": "although strictly speaking \"the use of a deadly weapon is not an essential element of voluntary manslaughter . . . our Supreme Court gave a broader meaning to the term 'element of the offense[.]' \"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0659-01" ] }, { "cite": "306 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "786", "parenthetical": "the focus for aggravating a crime under the FSA is whether the facts of the case disclose \"excessive\" wickedness \"not normally present in that offense\"" }, { "page": "788", "parenthetical": "when evidence of use of deadly weapon is deemed necessary to prove malice, trial court is precluded from using it as aggravating factor at sentencing" } ], "opinion_index": 0 }, { "cite": "309 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761533 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "414", "parenthetical": "the focus for aggravating a crime under the FSA is whether the facts of the case disclose \"excessive\" wickedness \"not normally present in that offense\"" }, { "page": "417" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0410-01" ] }, { "cite": "179 N.E. 633", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1932, "pin_cites": [ { "parenthetical": "failure to render aid included among facts supporting murder conviction" } ], "opinion_index": 0 }, { "cite": "205 Ind. 141", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 78085 ], "year": 1932, "pin_cites": [ { "parenthetical": "failure to render aid included among facts supporting murder conviction" } ], "opinion_index": 0, "case_paths": [ "/ind/205/0141-01" ] }, { "cite": "425 S.E.2d 731", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "733" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 64", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524237 ], "year": 1993, "pin_cites": [ { "page": "67-68" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0064-01" ] }, { "cite": "439 S.E.2d 226", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "234", "parenthetical": "applying rule in Bates to second degree murder without discussion" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 427", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522810 ], "year": 1994, "pin_cites": [ { "page": "439", "parenthetical": "applying rule in Bates to second degree murder without discussion" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0427-01" ] }, { "cite": "309 S.E.2d 170", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "183" }, { "page": "182-83", "parenthetical": "\"In no other capital case among those in our proportionality pool did the defendant express concern for the victim's life or remorse for his action by attempting to secure immediate medical attention for the deceased.\"" } ], "opinion_index": 0 }, { "cite": "309 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761257 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "694" }, { "page": "694", "parenthetical": "\"In no other capital case among those in our proportionality pool did the defendant express concern for the victim's life or remorse for his action by attempting to secure immediate medical attention for the deceased.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0674-01" ] }, { "cite": "312 S.E.2d 437", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1984, "pin_cites": [ { "page": "441" }, { "page": "441", "parenthetical": "\"Inherent in most crimes is an unprovoked, uninvited and unwarranted attack on an unprepared, innocent victim[;] [s]uch is the very essence of violent crime[.]\"" } ], "opinion_index": 0 }, { "cite": "310 N.C. 418", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2393317 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "424" }, { "page": "424", "parenthetical": "\"Inherent in most crimes is an unprovoked, uninvited and unwarranted attack on an unprepared, innocent victim[;] [s]uch is the very essence of violent crime[.]\"" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0418-01" ] }, { "cite": "334 S.E.2d 73", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1985, "pin_cites": [ { "page": "74" }, { "page": "74" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 676", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527836 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "678" }, { "page": "678" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0676-01" ] }, { "cite": "415 S.E.2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1992, "pin_cites": [ { "page": "374" }, { "page": "374" }, { "page": "374" }, { "page": "375" }, { "page": "374" }, { "page": "374" } ], "opinion_index": 0 }, { "cite": "331 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497335 ], "weight": 5, "year": 1992, "pin_cites": [ { "page": "181" }, { "page": "181" }, { "page": "181" }, { "page": "181" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0159-01" ] }, { "cite": "394 S.E.2d 468", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "474", "parenthetical": "limiting this rule to only statutory mitigating factors" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 647", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524470 ], "year": 1990, "pin_cites": [ { "page": "657", "parenthetical": "limiting this rule to only statutory mitigating factors" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0647-01" ] }, { "cite": "347 S.E.2d 466", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "\"[I]t is improper to aggravate a defendant's sentence for his failure to perform an act when the doing of the act would support the finding of a factor in mitigation.\"" } ], "opinion_index": 0 }, { "cite": "318 N.C. 285", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4734657, 4738628, 4738438, 4738887, 4737874 ], "year": 1986, "pin_cites": [ { "parenthetical": "\"[I]t is improper to aggravate a defendant's sentence for his failure to perform an act when the doing of the act would support the finding of a factor in mitigation.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0285-03", "/nc/318/0285-02", "/nc/318/0285-04", "/nc/318/0285-01", "/nc/318/0285-05" ] }, { "cite": "341 S.E.2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "753", "parenthetical": "\"[I]t is improper to aggravate a defendant's sentence for his failure to perform an act when the doing of the act would support the finding of a factor in mitigation.\"" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 271", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523229 ], "year": 1986, "pin_cites": [ { "page": "276", "parenthetical": "\"[I]t is improper to aggravate a defendant's sentence for his failure to perform an act when the doing of the act would support the finding of a factor in mitigation.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0271-01" ] }, { "cite": "249 S.E.2d 371", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "374", "parenthetical": "evidence showing defendant intentionally inflicted a wound with a deadly weapon which caused death \"raises inferences of an unlawful killing with malice which are sufficient [to establish] murder in the second degree\"" } ], "opinion_index": 0 }, { "cite": "296 N.C. 66", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564608 ], "year": 1978, "pin_cites": [ { "page": "72", "parenthetical": "evidence showing defendant intentionally inflicted a wound with a deadly weapon which caused death \"raises inferences of an unlawful killing with malice which are sufficient [to establish] murder in the second degree\"" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0066-01" ] }, { "cite": "322 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "388", "parenthetical": "\"The intentional use of a deadly weapon gives rise to a presumption that the killing was unlawful and that it was done with malice.\"" } ], "opinion_index": 0 }, { "cite": "312 N.C. 129", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750010 ], "year": 1984, "pin_cites": [ { "page": "160", "parenthetical": "\"The intentional use of a deadly weapon gives rise to a presumption that the killing was unlawful and that it was done with malice.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0129-01" ] }, { "cite": "398 S.E.2d 314", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "318" } ], "opinion_index": 0 }, { "cite": "327 N.C. 599", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497579 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0599-01" ] }, { "cite": "321 S.E.2d 520", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "522", "parenthetical": "\"While we do not minimize the danger that a loaded rifle presents to the public, especially in a setting such as a metropolitan area courthouse square, we do not feel that a .30-.30 lever action rifle was a weapon contemplated by [the statute].\"" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 125", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524180 ], "year": 1984, "pin_cites": [ { "page": "129-30", "parenthetical": "\"While we do not minimize the danger that a loaded rifle presents to the public, especially in a setting such as a metropolitan area courthouse square, we do not feel that a .30-.30 lever action rifle was a weapon contemplated by [the statute].\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/71/0125-01" ] }, { "cite": "313 S.E.2d 507", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1984, "pin_cites": [ { "page": "517" }, { "page": "518" }, { "page": "517" }, { "page": "517-18" }, { "page": "516" }, { "page": "517" } ], "opinion_index": 0 }, { "cite": "310 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2401681 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "497-98" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0482-01" ] }, { "cite": "295 S.E.2d 482", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "discussing the discretionary task of weighing mitigating and aggravating factors" } ], "opinion_index": 0 }, { "cite": "306 N.C. 745", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574240, 8574275, 8574212, 8574223, 8574259 ], "year": 1982, "pin_cites": [ { "parenthetical": "discussing the discretionary task of weighing mitigating and aggravating factors" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0745-03", "/nc/306/0745-05", "/nc/306/0745-01", "/nc/306/0745-02", "/nc/306/0745-04" ] }, { "cite": "293 S.E.2d 658", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "660-61", "parenthetical": "discussing the discretionary task of weighing mitigating and aggravating factors" }, { "page": "661" } ], "opinion_index": 0 }, { "cite": "58 N.C. App. 330", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524882 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "333-34", "parenthetical": "discussing the discretionary task of weighing mitigating and aggravating factors" }, { "page": "334" } ], "opinion_index": 0, "case_paths": [ "/nc-app/58/0330-01" ] }, { "cite": "60 N.C. App. 757", "category": "reporters:state", "reporter": "N.C. App.", "opinion_index": 0 }, { "cite": "300 S.E.2d 7", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1983, "pin_cites": [ { "page": "8" }, { "page": "8-9", "parenthetical": "citations omitted" }, { "page": "8" }, { "page": "8" } ], "opinion_index": 0 }, { "cite": "60 N.C. App. 755", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523986 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "757" }, { "page": "757" } ], "opinion_index": 0, "case_paths": [ "/nc-app/60/0755-01" ] }, { "cite": "298 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "676" }, { "page": "678" }, { "page": "677", "parenthetical": "to prove second degree murder, \"the state must prove beyond a reasonable doubt only that the defendant unlawfully killed the deceased with malice\"" } ], "opinion_index": 0 }, { "cite": "307 N.C. 370", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562412 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "373" }, { "page": "377" }, { "page": "375" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0370-01" ] }, { "cite": "492 S.E.2d 354", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "347 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551150 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/347/0348-01" ] }, { "cite": "482 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "125 N.C. App. 530", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11869217 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc-app/125/0530-01" ] } ], "analysis": { "cardinality": 1110, "char_count": 25810, "ocr_confidence": 0.752, "pagerank": { "raw": 4.1852234767997344e-07, "percentile": 0.912703790838771 }, "sha256": "a7a8ef642c946fc4413cbd015a4f6bcf57d1e197a28f2bf4dd5ac8e55ce2adc7", "simhash": "1:833046ea24bc2e62", "word_count": 4374 }, "last_updated": "2023-07-14T19:40:43.899160+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and EDMUNDS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ARTHUR EDWARD BALDWIN, JR." ], "opinions": [ { "text": "McGEE, Judge.\nArthur Edward Baldwin, Jr. (defendant) was charged with first degree murder of Debbie Dawn Burnette (Burnette) in a juvenile petition filed 11 July 1994 and was indicted for her murder by a grand jury on 30 January 1995. Defendant was tried during the 30 October 1995 session of Forsyth County Superior Court when the jury was unable to agree upon a unanimous verdict, whereupon the trial court granted defendant\u2019s motion for mistrial. During defendant\u2019s second trial at the 14 December 1995 session, the State presented eyewitness testimony from Craig Woods (Woods) of the 28 June 1994 murder of Burnette. Woods testified that he had been a friend of Burnette\u2019s for approximately nine months before Burnette was killed. At around 8:00 p.m. on the evening before the murder, Burnette and a mutual friend, Todd Culler (Culler), stopped at Woods\u2019s house in Winston-Salem to pick him up. Culler drove Burnette and Woods to a sports bar and shortly thereafter to a BP station, where Culler purchased a six-pack of beer. They drove to the Knights Inn, arriving shortly after 9:00 p.m., and spent the night in a room on the second floor. Woods testified that he, Culler, and Burnette drank beer and used cocaine. Burnette and Culler left the room at around 2:00 a.m. for approximately ten minutes to purchase cigarettes, and Culler left for home at around 2:30 a.m. Woods and Burnette remained in the room watching television with the lights off and the front door ajar. Woods sat in a chair in the far right comer of the room and Burnette sat on the bed with her back against the headboard. They heard voices outside at around 3:30 a.m., and Woods went to the door. He saw two black men in the parking lot, one of whom asked Woods \u201cfor a light.\u201d Woods tossed his lighter to the person, who lit his cigarette and tossed the lighter back up to Woods. Woods then returned to his chair, and the door to the room was \u201call the way open.\u201d\nAgain Woods and Burnette heard voices, and Woods again went to the door. He saw one of the same men from the parking lot on the breezeway which connected the two buildings of the Knights Inn at the top of the steps. After Woods returned to his chair in the room, the person he had seen on the breezeway tapped on the door and asked to use the phone. Woods testified that \u201cit was [Burnette\u2019s] room,\u201d so he asked her if this person could use the telephone, and she gave permission. Woods said this person, who was wearing a ball cap, dialed some numbers and then said, \u201cGive me the police.\u201d\nWoods then saw the other man from the parking lot walking up the steps arguing with the person wearing the ball cap inside the room. This second man also entered the room, told the person on the telephone to hang it up and hand over his valuables, and revealed \u201ca sawed-off shotgun with a pistol grip\u201d that was \u201c[a]round two and a half feet\u201d in length. The person wearing the ball cap \u201creache [d] from in his pocket and hand[ed] him something\u201d that Woods could not identify, and told the gunman, \u201cMan, somebody is going to see you[.]\u201d The gunman went to the door, pushed it shut, and pointed the gun at Woods and demanded his valuables. Woods was sitting in a chair with his hands up and replied that he had nothing. The person wearing the ball cap at first had his hands up but at this time was sitting on the edge of the bed closest to Woods. Burnette, who was still sitting with her back against the headboard of the bed, now had her hands up.\nThe gunman told Woods he was lying about not having anything to give, and then pointed the shotgun at Burnette, repeating his demands and adding, \u201c[g]ive me anything you got.\u201d When Burnette was silent, the gunman pointed the shotgun back at Woods, and Burnette \u201cgot up and started down the side of the bed [to about the end of the wall].\u201d Using profanity, the gunman forcefully told her to sit back down. Burnette returned to her previous position on the bed when the gunman pointed the shotgun at her, and the weapon discharged.\nWoods testified that when the shotgun fired, the gunman was approximately four feet away from Burnette. The gunman then \u201cwent to the door, looked out, walked back over toward the bed and then took off out the door.\u201d The person wearing the ball cap exclaimed a profanity, went to the door and shouted to the gunman that he knew who he was, and then \u201ctook off\u2019 while Woods dialed 911.\nDefendant was convicted of first degree felony murder on 19 December 1995 and was sentenced to a mandatory sentence of life imprisonment. On appeal to our Court in 1996, defendant argued the trial court erred in not allowing him to cross-examine a police detective and in excluding certain expert psychiatric testimony. We agreed with defendant as to his first argument, and thus reversed and remanded for a new trial in State v. Baldwin, 125 N.C. App. 530, 482 S.E.2d 1 (1997). Our Supreme Court allowed the State\u2019s petition for discretionary review but later determined it had been improvidently allowed. State v. Baldwin, 347 N.C. 348, 492 S.E.2d 354 (1997).\nPrior to what would have been his third trial, defendant pled guilty to second degree murder on 10 December 1998. The same day the trial court found by a preponderance of the evidence three aggravating factors and four mitigating factors. The aggravating factors were that defendant (1) knowingly created a great risk of death to more than one person by means of a weapon or device which would normally endanger several persons at once; (2) committed murder during a planned robbery with a motive for pecuniary gain; and (3) failed to render any assistance to the victim and thus showed no mercy. The mitigating factors were that defendant (1) had no record of criminal convictions; (2) demonstrated an immaturity at the time of the murder that significantly reduced his culpability; (3) gave a statement to law enforcement officers; and (4) was induced to participate in the crime by a co-defendant who provided him with the shotgun. The transcript of the sentencing hearing shows the trial court determined the aggravating factors outweighed the mitigating factors. Therefore, in its judgment and commitment dated 15 December 1998, the trial court sentenced defendant in excess of the fifteen-year presumptive term for second degree murder to forty years\u2019 imprisonment, with a credit of 1,626 days already served. See State v. Melton, 307 N.C. 370, 373, 298 S.E.2d 673, 676 (1983). Defendant appeals.\nDefendant argues the trial court erred in sentencing by finding aggravating factors that \u201cwere either not supported by the evidence or were not proper factors in aggravation.\u201d The Fair Sentencing Act (FSA), which has since been repealed and replaced by structured sentencing, applies to this case as the crime occurred prior to 1 October 1994. See N.C. Gen. Stat. \u00a7 15A-1340.10 (1999) (structured sentencing applies to certain criminal offenses that occur on or after 1 October 1994). Under the FSA, the trial court \u201cmust impose the statutorily set presumptive sentence unless [it] properly makes written findings of aggravating or mitigating factors and then finds that one set of factors outweighs the other.\u201d State v. Teague, 60 N.C. App. 755, 757, 300 S.E.2d 7, 8 (1983). This is true even where defendant has pled guilty to the crime for which he is sentenced. \u201cThe mere fact that a guilty plea has been accepted pursuant to a plea bargain does not preclude the sentencing court from reviewing all of the circumstances surrounding the admitted offense in determining the presence of aggravating or mitigating factors.\u201d Melton, 307 N.C. at 377, 298 S.E.2d at 678.\nOur Court has examined in detail the procedure for a trial court to find aggravating and mitigating factors under the FSA:\nAs long as they are not essential to the establishment of elements of the offense, all circumstances that are both transactionally related to the offense and reasonably related to the purposes of sentencing must be considered by the sentencing judge. The trial judge may consider aggravating and mitigating factors supported by evidence not used to prove an essential element as long as those factors are reasonably related to the purposes of sentencing. The factors found must be supported by a preponderance of the evidence. The balancing of the properly found factors in aggravation and mitigation is left to the sound discretion of the trial judge.\nTeague, 60 N.C. App. 757-58, 300 S.E.2d at 8-9 (citations omitted) (emphasis in original); see also State v. Davis, 58 N.C. App. 330, 333-34, 293 S.E.2d 658, 660-61, disc. review denied, 306 N.C. 745, 295 S.E.2d 482 (1982) (discussing the discretionary task of weighing mitigating and aggravating factors).\nDefendant first contends \u201c[t]he trial court\u2019s finding that defendant created a great risk of death to more than one person is not supported by the evidence.\u201d In State v. Moose, 310 N.C. 482, 313 S.E.2d 507 (1984), our Supreme Court stated that this statutory aggravating factor \u201caddresses essentially two considerations: a great risk of death knowingly created and the weapon by which it is created.\u201d Id. at 497, 313 S.E.2d at 517. The Moose Court \u201ch[e]ld that a shotgun falls within the category of weapon envisioned [by the statute],\u201d id. at 498, 313 S.E.2d at 518, primarily for the reason that \u201cit is capable of firing more than one, and in fact, many projectiles in a pattern over a wide impact area rather than a specifically aimed single projectile such as from a rifle or pistol,\u201d id. at 497, 313 S.E.2d at 517. But see State v. Bethea, 71 N.C. App. 125, 129-30, 321 S.E.2d 520, 522 (1984) (\u201cWhile we do not minimize the danger that a loaded rifle presents to the public, especially in a setting such as a metropolitan area courthouse square, we do not feel that a .30-.30 lever action rifle was a weapon contemplated by [the statute].\u201d). Defendant in this case used a sawed-off shotgun during the crime, and a shotgun has the \u201cdestructive capabilities\u201d to be a qualifying weapon under this aggravating factor. Moose, 310 N.C. at 497-98, 313 S.E.2d at 517-18.\nThe remaining question concerns \u201cthe risk element,\u201d requiring that the defendant \u201cknowingly created a great risk of death to more than one person\u201d in using the weapon. Id. at 496-97, 313 S.E.2d at 516. In Moose, the Court found there was a great risk of death knowingly created where the shotgun was fired into a vehicle occupied by two persons. Id. at 497, 313 S.E.2d at 517. Similarly in State v. Rose, 327 N.C. 599, 398 S.E.2d 314 (1990), our Supreme Court made the same finding where the defendant fired a shotgun at a victim who was sitting on a couch with two other people. Id. at 606, 398 S.E.2d at 318.\nAlthough the facts in this case are even closer than in Moose and Rose, the risk element is satisfied where defendant brandished a sawed-off shotgun and deliberately pointed it at both Woods and Burnette in a hotel that, according to the testimony of a city police identification technician, had dimensions of approximately 12-Vi by 13-/4 feet. Furthermore, according to Woods\u2019s testimony, the man wearing the ball cap was sitting on the same bed as Burnette when she was shot. We note that the proximity of all persons in the room was questioned in great detail by the trial court during sentencing. Also, a forensic pathologist testified the approximate distance between defendant and Burnette at only \u201cfive to six feet\u201d when she was shot and Woods thought the distance was around four feet. The shotgun had a pistol grip and the barrel was sawed off. Finally, evidence introduced to the effect that the shooting was accidental suggests that a discharge could have occurred when the gun was pointed near other persons. For these reasons, we hold that defendant \u201cknowingly created a great risk of death to more than one person\u201d with the shotgun, and the trial court did not abuse its discretion in finding this aggravating factor.\nDefendant next argues the trial court erroneously found the aggravating factor that the murder was committed in the course of a robbery and was motivated by pecuniary gain, for defendant contends \u201crobbery was an essential element of this felony murder case\u201d and evidence necessary to prove an element of the offense may not be used to prove any factor in aggravation. This argument is without merit for the reason that defendant pled guilty to and was sentenced for second degree murder, which does not require robbery as an element. See Melton, 307 N.C. at 375, 298 S.E.2d at 677 (to prove second degree murder, \u201cthe state must prove beyond a reasonable doubt only that the defendant unlawfully killed the deceased with malice\u201d). The facts of this case support second degree murder wholly independent of any attempted robbery or other felony. See, e.g., State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 388 (1984) (\u201cThe intentional use of a deadly weapon gives rise to a presumption that the killing was unlawful and that it was done with malice.\u201d); State v. Hodges, 296 N.C. 66, 72, 249 S.E.2d 371, 374 (1978) (evidence showing defendant intentionally inflicted a wound with a deadly weapon which caused death \u201craises inferences of an unlawful killing with malice which are sufficient [to establish] murder in the second degree\u201d).\nFinally, defendant argues the trial court erred in finding a non-statutory aggravating factor in \u201cfailing to render aid to the victim, as this is not a factor properly used to distinguish defendant from others convicted of second degree murder [and it improperly uses evidence to prove the offense].\u201d The trial court made the following finding of this factor in aggravation:\nThe court would find that after discharging the weapon into the female victim as far as it being the same transaction was suspended without mercy and left the victim who at that time was bleeding profusely. He did so without rendering any assistance to her. The court would note for the record that even though others were present that the gravity of the aggravating factor which the court finds is not that the victim did not later receive assistance promptly, but instead by leaving, that the defendant showed no mercy. He left, himself, without rendering aid.\nUnder the FSA, the trial court was permitted to increase a presumptive sentence in accordance with its written findings of non-statutory aggravating factors, provided the factors were (1) supported by a preponderance of the evidence, see Davis, 58 N.C. App. at 334, 293 S.E.2d at 661; (2) \u201cnot essential to the establishment of elements of the offense,\u201d see Teague, 60 N.C. App. at 757, 300 S.E.2d at 8; (3) \u201creasonably related to the purposes of sentencing,\u201d see id. at 758, 300 S.E.2d at 8; and (4) not based upon the failure to perform a statutory mitigating factor, see State v. Coleman, 80 N.C. App. 271, 276, 341 S.E.2d 750, 753, disc. review denied, 318 N.C. 285, 347 S.E.2d 466 (1986) (\u201c[I]t is improper to aggravate a defendant\u2019s sentence for his failure to perform an act when the doing of the act would support the finding of a factor in mitigation.\u201d); State v. Church, 99 N.C. App. 647, 657, 394 S.E.2d 468, 474 (1990) (limiting this rule to only statutory mitigating factors). Defendant contends the trial court\u2019s finding cannot be an aggravating factor.\nDefendant maintains that the trial court\u2019s finding relies upon evidence necessary to prove second degree murder because malice necessarily denotes an absence of mercy and an unwillingness to render aid. In State v. Reeb, 331 N.C. 159, 415 S.E.2d 362 (1992), two defendants were convicted of assault with a deadly weapon with intent to kill inflicting serious injury and were sentenced to the maximum of twenty years rather than the presumptive six-year term based upon an aggravating factor that they \u201cmercilessly left the victim who was then bleeding and in great pain, without rendering any type of assistance to her.\u201d Id. at 180, 415 S.E.2d at 374. The Reeb Court allowed the aggravating factor in that it \u201cwas not necessary to prove an element of the assault charge.\u201d Id. at 181, 415 S.E.2d at 374. See also State v. Applewhite, 127 N.C. App. 677, 683, 493 S.E.2d 297, 300 (1997) (relying on Reeb to uphold the same aggravating factor in sentences for the non-malice crimes of attempted armed robbery and assault with a deadly weapon inflicting serious injury). According to the Court in Reeb, \u201crefusing to help a victim after the crime of assault is complete is not an inherent part of the crime,\u201d but \u201cmakes the assault more reprehensible\u201d and \u201cmay be some evidence of intent to kill.\u201d Reeb, 331 N.C. at 181, 415 S.E.2d at 374. Defendant distinguishes Reeb on the basis that the crime in that case did not require malice.\nIn State v. Bates, 76 N.C. App. 676, 334 S.E.2d 73 (1985), the victim stabbed the defendant in the back during an argument, after which the defendant beat, stabbed, and shot the victim, causing his death. The defendant, who was found on someone\u2019s front porch with serious injuries, pled guilty to voluntary manslaughter. The trial court found among three aggravating factors, which outweighed the mitigating factors, that \u201c[t]he defendant left the victim dying in a field and did not seek to have help sent to him.\u201d Bates, 76 N.C. App. at 678, 334 S.E.2d at 74. Our Court stated \u201c[i]t is error for an aggravating factor to be based on circumstances which are part of \u2018the very essence\u2019 of a crime because \u2018it can be presumed that the Legislature was guided by this unfortunate fact when it established [the FSA].\u2019 \u201d Id. (quoting State v. Higson, 310 N.C. 418, 424, 312 S.E.2d 437, 441 (1984)). We continued that \u201c[t]he exceptional nature of a defendant\u2019s] \u2018attempting to secure immediate medical attention for [his victim]\u2019 has been noted by the Supreme Court.\u201d Id. (quoting State v. Bondurant, 309 N.C. 674, 694, 309 S.E.2d 170, 183 (1983)). Our Court in Bates concluded the trial court had erred in finding as an aggravating factor the defendant\u2019s failure to aid his victim. Id.; State v. Irby, 113 N.C. App. 427, 439, 439 S.E.2d 226, 234 (1994) (applying rule in Bates to second degree murder without discussion). By contrast, the Reeb decision, which allowed the aggravating factor, distinguished Bates on the basis that the defendant in Reeb was not severely injured at the time he could have rendered aid to the victim. See Reeb, 331 N.C. at 181, 415 S.E.2d at 375.\nIn this case, defendant was sentenced for second degree murder, and our question is whether failing to aid the victim is \u201cpart of \u2018the very essence\u2019 of [second degree murder,]\u201d Bates, 76 N.C. App. at 678, 334 S.E.2d at 74, or simply makes the crime \u201cmore reprehensible,\u201d Reeb, 331 N.C. at 181, 415 S.E.2d at 374. As previously stated, second degree murder is the unlawful killing of a human being with malice, and North Carolina recognizes three kinds of malice. First is where the defendant exhibits \u201ca positive concept of express hatred, ill-will or spite.\u201d State v. McBride, 109 N.C. App. 64, 67-68, 425 S.E.2d 731, 733 (1993). Second is when an act committed by defendant is \u201cinherently dangerous to human life [and] is done so recklessly and wantonly as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief.\u201d Id. The third kind is where the defendant possesses a \u201ccondition of mind which prompts a person to take the life of another intentionally [and] without just cause, excuse, or justification.\u201d Id\nLooking to the three definitions of malice, it is clearly unlikely that a person evincing the first kind, one who hates or has ill-will or spite for the victim, would offer assistance after inflicting a fatal injury. Next, by definition it is impossible that a person could demonstrate the second kind of malice and also render assistance to the victim, for such aid necessarily shows some \u201cregard for human life and social duty.\u201d Finally, as to the third kind of malice, we believe it to be inconsistent with human nature that a person would intentionally take the life of another without just cause, excuse, or justification, and then immediately conjure the opposite intent, being to intentionally save that same life. See State v. Bondurant, 309 N.C. 674, 694, 309 S.E.2d 170, 182-83 (1983) (\u201cIn no other capital case among those in our proportionality pool did the defendant express concern for the victim\u2019s life or remorse for his action by attempting to secure immediate medical attention for the deceased.\u201d). Accordingly, we agree with defendant that not helping to save a victim is within the essence of malice, and therefore is inherent in this malice crime of second degree murder. Gf. State v. Lewis, 2000 Tenn. Crim. App. LEXIS 253 (failure to render aid to victim tends to show premeditation); Stephenson v. State, 205 Ind. 141, 179 N.E. 633 (1932) (failure to render aid included among facts supporting murder conviction).\nFurthermore, we cannot say the act of leaving without providing aid to a victim makes murder \u201cmore reprehensible,\u201d compare Reeb, 331 N.C. at 181, 415 S.E.2d at 374, for murder is a violent crime involving the endangerment, not the preservation, of life. See State v. Higson, 310 N.C. 418, 424, 312 S.E.2d 437, 441 (1984) (\u201cInherent in most crimes is an unprovoked, uninvited and unwarranted attack on an unprepared, innocent victim[;] [s]uch is the very essence of violent crime[.]\u201d); State v. Blackwelder, 309 N.C. 410, 414, 306 S.E.2d 783, 786 (1983) (the focus for aggravating a crime under the FSA is whether the facts of the case disclose \u201cexcessive\u201d wickedness \u201cnot normally present in that offense\u201d).\nWe therefore hold the trial court\u2019s finding as an aggravating factor that defendant left without rendering aid and showed no mercy violates the proscription against aggravating a sentence with evidence \u201cused to prove an essential element\u201d of the crime, namely malice. Cf. State v. McKinney, 88 N.C. App. 659, 663, 364 S.E.2d 743, 746 (1988) (although strictly speaking \u201cthe use of a deadly weapon is not an essential element of voluntary manslaughter . . . our Supreme Court gave a broader meaning to the term \u2018element of the offense[.]\u2019 \u201d); State v. Evangelista, 319 N.C. 152, 165, 353 S.E.2d 375, 384 (1987) (conviction of involuntary manslaughter required finding that defendant was armed with and discharged a firearm, which in effect became an element of the offense, and the same evidence could not be considered as an aggravating factor for sentencing); State v. Swann, 115 N.C. App. 92, 97, 443 S.E.2d 740, 743 (1994) (evidence that defendant took a deadly weapon to victim\u2019s neighborhood was so closely connected to the evidence implying malice, it was error to consider the use of the pistol again in sentencing); Blackwelder, 309 N.C. at 417, 306 S.E.2d at 788 (when evidence of use of deadly weapon is deemed necessary to prove malice, trial court is precluded from using it as aggravating factor at sentencing). We do not reach the questions of whether the trial court\u2019s finding was based upon the failure to perform a statutory mitigating factor or was reasonably related to the purposes of sentencing.\n\u201cWhen the trial judge errs in finding an aggravating factor and imposes a sentence in excess of the presumptive term, the case must be remanded for a new sentencing hearing.\u201d State v. Wilson, 338 N.C. 244, 259, 449 S.E.2d 391, 400 (1994). Resentencing is mandatory even if a single factor in aggravation is improperly applied. State v. Ahearn, 307 N.C. 584, 602, 300 S.E.2d 689, 701 (1983). We therefore remand this case for resentencing by the trial court.\nRemanded for resentencing.\nJudges GREENE and EDMUNDS concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Associate Attorney General Christopher W. Brooks, for the State.", "J. Clark Fischer for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ARTHUR EDWARD BALDWIN, JR.\nNo. COA99-767\n(Filed 18 July 2000)\n1. Sentencing\u2014 second-degree murder \u2014 aggravating factor\u2014 creating a great risk of death to more than one person\nThe trial court did not err in a second-degree murder case by finding as an aggravating factor that defendant created a great risk of death to more than one person because: (1) defendant used a sawed-off shotgun during this crime, and a shotgun has the destructive capabilities to be a qualifying weapon under this aggravating factor; (2) defendant deliberately pointed the sawed-off shotgun at both the victim and another individual sitting on the same bed in a small hotel room; and (3) evidence that the shooting was accidental suggests that a discharge could have occurred when the gun was pointed near other persons.\n2. Sentencing\u2014 second-degree murder \u2014 aggravating factor\u2014 murder committed in course of robbery \u2014 motivated by pecuniary gain\nThe trial court did not err by finding as an aggravating factor that the murder was committed in the course of a robbery and was motivated by pecuniary gain, even though defendant contends that robbery was an essential element of this felony murder case, because defendant pled guilty and was sentenced for second-degree murder, which does not require robbery as an element.\n3. Sentencing\u2014 second-degree murder \u2014 aggravating factor\u2014 failing to render aid to victim \u2014 essence of the crime\nThe trial court erred in a second-degree murder case by finding as a nonstatutory aggravating factor that defendant failed to render aid to the victim, and the case must be remanded for a new sentencing hearing, because: (1) an aggravating factor cannot be based on circumstances which are part of the very essence of a crime; and (2) not helping to save a victim is withing the essence of malice, and therefore, is inherent in the malice crime of second-degree murder.\nAppeal by defendant from judgment entered 10 December 1998 by Judge Thomas W. Ross in Forsyth County Superior Court. Heard in the Court of Appeals 25 April 2000.\nAttorney General Michael F. Easley, by Associate Attorney General Christopher W. Brooks, for the State.\nJ. Clark Fischer for defendant." }, "file_name": "0065-01", "first_page_order": 97, "last_page_order": 107 }