{
  "id": 8524550,
  "name": "STATE OF NORTH CAROLINA v. LARRY E. SMITH",
  "name_abbreviation": "State v. Smith",
  "decision_date": "1983-12-06",
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  "casebody": {
    "judges": [
      "Judges Braswell and Eagles concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. LARRY E. SMITH"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nDefendant first assigns error to \u201cthe trial court\u2019s failure to find as a mitigating factor that the defendant committed the offense under duress or compulsion which significantly reduced his culpability.\u201d We note that defendant neither objected to the court\u2019s findings of fact nor tendered proposed findings of fact to the court. Where the court\u2019s failure to find a mitigating factor is raised for the first time on appeal, this Court will find error only on a showing that the trial court abused its discretion. State v. Davis, 58 N.C. App. 330, 293 S.E. 2d 658, disc. rev. denied, 306 N.C. 745, 295 S.E. 2d 482 (1982). Where the evidence supporting a mitigating factor is uncontradicted and of manifest credibility, however, the court\u2019s failure to find the existence of such factor is error. State v. Graham, 61 N.C. App. 271, 300 S.E. 2d 716 (1983). In determining whether the evidence compels a finding of the existence of a particular mitigating factor, the defendant bears the burden of showing that \u201c \u2018the evidence so clearly establishes the fact in issue that no reasonable inferences to the contrary can be drawn,\u2019 and that the credibility of the evidence \u2018is manifest as a matter of law.\u2019 \u201d State v. Jones, 309 N.C. 214, 220, 306 S.E. 2d 451, 455 (1983) (quoting Bank v. Burnette, 297 N.C. 524, 536, 256 S.E. 2d 388, 395 (1979)).\nIn the instant case, defendant contends that uncontroverted evidence established that his crime was motivated by economic necessity, and that this is equivalent to \u201cduress or compulsion\u201d under N.C. Gen. Stat. Sec. 15A-1340.4(a)(2)(b). Assuming arguendo that economic necessity could under any circumstances amount to \u201cduress or compulsion\u201d under the statute, it is clear that the evidence of economic necessity proffered by defendant falls far short of so clearly establishing duress \u201cthat no reasonable inferences to the contrary can be drawn.\u201d Nor can it be said that the credibility of defendant\u2019s evidence \u201cis manifest as a matter of law.\u201d Indeed, the only evidence pertaining to defendant\u2019s reasons for breaking and entering derives from his testimony that he encountered difficulty in finding employment because of his status as a prison escapee, and that his crime was an attempt \u201cto do something on [his family\u2019s] behalf.\u201d Defendant\u2019s contentions in this regard border on the frivolous.\nDefendant next assigns as error the trial court\u2019s finding as an aggravating factor that defendant had prior convictions punishable by more than sixty days imprisonment. Defendant contends that there was no evidence, and that the judge made no finding, about defendant\u2019s indigency or representation by counsel at the time of his prior convictions. This assignment of error is without merit under the recent decision of our Supreme Court in State v. Thompson, 309 N.C. 421, 307 S.E. 2d 156 (1983).\nAffirmed.\nJudges Braswell and Eagles concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Rufus L. Edmisten, by Associate Attorney William H. Borden, for the State.",
      "Appellate Defender Adam Stein, by Assistant Appellate Defender James H. Gold, for the defendant, appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. LARRY E. SMITH\nNo. 8318SC373\n(Filed 6 December 1983)\n1. Criminal Law \u00a7 138\u2014 failure to find mitigating factor \u2014 issue raised for first time on appeal\nWhere the court\u2019s failure to find a mitigating factor is raised for the first time on appeal, the appellate court will find error only on a showing that the trial court abused its discretion.\n2. Criminal Law \u00a7 138\u2014 mitigating factor \u2014 uncontradicted evidence\nWhere the evidence supporting a mitigating factor is uncontradicted and of manifest credibility, the court\u2019s failure to find the existence of such factor is error.\n3. Criminal Law \u00a7 138\u2014 mitigating factor \u2014 burden of proof\nIn determining whether the evidence compels a finding of the existence of a particular mitigating factor, the defendant bears the burden of showing that the evidence so clearly establishes the fact in issue that no reasonable inferences to the contrary can be drawn and that the credibility of the evidence is manifest as a matter of law.\n4. Criminal Law 8 138\u2014 duress or compulsion mitigating factor \u2014 economic necessity\nEven if economic necessity could constitute the \u201cduress or compulsion\u201d mitigating circumstance under G.S. 15A-l340.4(a)(2)(b), defendant\u2019s evidence did not compel the trial court to find such mitigating circumstance where it tended to show that defendant committed the crime of felonious breaking and entering because his status as a prison escapee made it difficult for him to find employment and that his crime was an attempt to do something on his family's behalf.\n5. Criminal Law \u00a7 138\u2014 prior convictions as aggravating factor \u2014 absence of findings as to indigency and counsel\nThe trial judge did not err in considering defendant\u2019s prior convictions as an aggravating factor in imposing sentence without making findings concerning defendant\u2019s indigency and representation by counsel at the time of his prior convictions.\nAppeal by defendant from Freeman, Judge. Judgment entered 2 December 1982 in Superior Court, Guilford County. Heard in the Court of Appeals 29 November 1983.\nDefendant was charged in a proper bill of indictment with felonious breaking or entering and felonious larceny. Pursuant to a plea arrangement, the defendant pleaded guilty to felonious breaking or entering and the State took a voluntary dismissal on the larceny charge. Following a sentencing hearing, the court found the following aggravating factor: \u201c[t]he defendant has a prior conviction or convictions for criminal offenses punishable by more than 60 days confinement.\u201d The court found no mitigating factors. Upon finding that the factors in aggravation outweighed the factors in mitigation the court imposed a sentence, greater than the presumptive term, of four years. Pursuant to N.C. Gen. Stat. Sec. 15A-1444(al) defendant appealed.\nAttorney General Rufus L. Edmisten, by Associate Attorney William H. Borden, for the State.\nAppellate Defender Adam Stein, by Assistant Appellate Defender James H. Gold, for the defendant, appellant."
  },
  "file_name": "0420-01",
  "first_page_order": 452,
  "last_page_order": 454
}
