{
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  "name": "STATE OF NORTH CAROLINA v. TOMMY LEE BYNUM",
  "name_abbreviation": "State v. Bynum",
  "decision_date": "1984-01-03",
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  "provenance": {
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  "casebody": {
    "judges": [
      "Judges Webb and Wells concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. TOMMY LEE BYNUM"
    ],
    "opinions": [
      {
        "text": "WHICHARD, Judge.\nGuilt Phase\nDefendant contends the court erred in denying his request for an instruction that identity of the contraband as heroin was an element of the offense which the State was required to prove beyond a reasonable doubt. The request was made orally at the end of the charge in response to the court\u2019s inquiry regarding objections or further requests for instructions. It thus was not timely, and whether to grant it was for the court\u2019s discretion. G.S. 15A-1231(a); State v. Coward, 296 N.C. 719, 725, 252 S.E. 2d 712, 716 (1979). The court had instructed on the substance of the request, which is all it was required to do. State v. Sledge, 297 N.C. 227, 235, 254 S.E. 2d 579, 584 (1979). We thus find no abuse of discretion in the refusal to give the tendered instruction.\nSentencing Phase\nDefendant contends the evidence was inadequate to prove the aggravating factor of prior convictions. The prosecuting attorney represented to the court, on the basis of an F.B.I. printout, that defendant had several prior convictions punishable by more than sixty days confinement. Defense counsel responded: \u201c[W]e don\u2019t object to that. I believe that is an accurate representation of what his record is. He does have a number of prior records, and he served time on several of them.\u201d Defendant did not, at the sentencing hearing, object to the finding of fact as to prior convictions, nor did he tender any proposed findings of fact. See State v. Davis, 58 N.C. App. 330, 334, 293 S.E. 2d 658, 661, disc. rev. denied, 306 N.C. 745, 295 S.E. 2d 482 (1982). He did not object to the method used to establish his record, or challenge in any way the accuracy of the record as represented. See State v. Massey, 59 N.C. App. 704, 705-06, 298 S.E. 2d 63, 65 (1982). On the contrary, he stated through counsel that he believed the representation to be accurate, and that he did not object to it. Under these circumstances it was not error for the court to find that the aggravating factor of prior convictions had been proven \u201cby the preponderance of the evidence,\u201d G.S. 15A-1340.4(a).\nDefendant contends the court erred in finding the aggravating factor of prior convictions without finding whether he was indigent, represented by counsel, or waived counsel at the time. He did not sustain his burden of initially raising the issue at trial, however, and this contention is thus without merit. State v. Thompson, 309 N.C. 421, 425-28, 307 S.E. 2d 156, 158-61 (1983).\nDefendant contends the court erred in failing to find as a mitigating factor that he was a heroin addict. He argues that this should have been found pursuant to G.S. 15A-1340.4(a)(2)b., which establishes as a mitigating factor that \u201c[t]he defendant committed the offense under duress ... or compulsion which was insufficient to constitute a defense but significantly reduced his culpability\u201d; or pursuant to G.S. 15A-1340.4(a)(2)d., which establishes as a mitigating factor that \u201c[t]he defendant was suffering from a mental or physical condition that was insufficient to constitute a defense but significantly reduced his culpability.\u201d\nDrug addiction is not per se a statutorily enumerated mitigating factor. It could perhaps be found to mitigate the offense, either under the rubric of the above stated enumerated factors, or otherwise as being \u201creasonably related to the purposes of sentencing.\u201d G.S. 15A-1340.4(a). The evidence at the sentencing hearing here would have permitted such a finding, but in our view it did not compel it. We thus hold this contention without merit.\nNo error.\nJudges Webb and Wells concur.",
        "type": "majority",
        "author": "WHICHARD, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Assistant Attorney General Elaine J. Guth, for the State.",
      "Appellate Defender Adam Stein, by Assistant Appellate Defender James H. Gold, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. TOMMY LEE BYNUM\nNo. 8326SC445\n(Filed 3 January 1984)\n1. Criminal Law \u00a7 119\u2014 refusal to give requested instruction\nThe trial court in a prosecution for possession of heroin did not err in denying defendant\u2019s request for an instruction that identity of the contraband as heroin was an element of the offense which the State was required to prove beyond a reasonable doubt where the request was made orally at the end of the charge and thus was not timely, and where the court had instructed on the substance of the request.\n2. Criminal Law \u00a7 138\u2014 prior convictions as aggravating factor \u2014sufficiency of proof\nThe trial court properly found that the aggravating factor of prior convictions had been proven by a preponderance of the evidence where the prosecuting attorney represented to the court, on the basis of an FBI printout, that defendant had several prior convictions punishable by more than 60 days\u2019 confinement, and defendant stated through counsel that he believed the representation to be accurate and that he did not object to it. G.S. 15A-1340.4(a).\n3. Criminal Law \u00a7 138\u2014 prior convictions as aggravating factor \u2014 indigency and representation by counsel\nThe trial court did not err in finding the aggravating factor of prior convictions without finding whether defendant was indigent and was represented by counsel at the time of such convictions where defendant did not sustain his burden of initially raising the issue at trial.\n4. Criminal Law \u00a7 138\u2014 possession of heroin \u2014heroin addiction as mitigating factor-insufficient evidence\nWhile heroin addiction could perhaps be considered as a mitigating factor in imposing a sentence for possession of heroin, the evidence in this case did not require the trial court to make such a finding. G.S. 15A-1340.4(a)(2)b and (d).\nAPPEAL by defendant from Sitton, Judge. Judgment entered 5 October 1982 in Superior Court, MECKLENBURG County. Heard in the Court of Appeals 2 December 1983.\nDefendant appeals from a judgment of imprisonment entered upon his conviction of possession of heroin.\nAttorney General Edmisten, by Assistant Attorney General Elaine J. Guth, for the State.\nAppellate Defender Adam Stein, by Assistant Appellate Defender James H. Gold, for defendant appellant."
  },
  "file_name": "0813-01",
  "first_page_order": 845,
  "last_page_order": 847
}