{ "id": 4686499, "name": "STATE OF NORTH CAROLINA v. MARK A. SPEARS", "name_abbreviation": "State v. Spears", "decision_date": "1985-08-13", "docket_number": "No. 622A84", "first_page": "319", "last_page": "324", "citations": [ { "type": "official", "cite": "314 N.C. 319" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "309 S.E. 2d 170", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "182" } ], "opinion_index": 0 }, { "cite": "309 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761257 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0674-01" ] }, { "cite": "320 S.E. 2d 688", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1984, "pin_cites": [ { "page": "690" } ], "opinion_index": 0 }, { "cite": "312 N.C. 70", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4754130 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0070-01" ] }, { "cite": "306 S.E. 2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1983, "pin_cites": [ { "page": "456" } ], "opinion_index": 0 }, { "cite": "309 N.C. 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4762487 ], "weight": 3, "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0214-01" ] } ], "analysis": { "cardinality": 563, "char_count": 11931, "ocr_confidence": 0.81, "pagerank": { "raw": 3.9039713985329914e-07, "percentile": 0.9018579847705407 }, "sha256": "928fa792121d2bea871facdea8e20430a492c037c8d8fedb8c72526579b6282a", "simhash": "1:811dc1230615a8fb", "word_count": 1943 }, "last_updated": "2023-07-14T18:20:08.801916+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. MARK A. SPEARS" ], "opinions": [ { "text": "MEYER, Justice.\nThe sole question presented for review is whether defendant is entitled to a new sentencing hearing by virtue of the trial judge\u2019s failure to find as a non-statutory mitigating factor that the defendant rendered aid to his victim. Because defendant has not demonstrated that the trial judge abused his discretion in failing to find this non-statutory factor in mitigation of defendant\u2019s sentence, we find no error.\nAt trial, the witnesses for both the State and the defense testified that the defendant and two female companions, Kathy Williams and Judy Gibson, drove around together on the afternoon of 19 November 1982, drinking beer and smoking marijuana. After riding for awhile, the three went to a wooded area in order to continue these activities. The State\u2019s witnesses testified that as they were preparing to leave the wooded area, the defendant pulled out a shotgun and attempted to sexually assault one of the women. Both women testified that as they tried to run away, the defendant shot Judy Gibson and then struck her with the shotgun. Defendant, on the other hand, testified that the gun went off during a struggle with Ms. Gibson, that Ms. Gibson then came at him with a knife, that he hit her hard with the butt of the gun, and that she fell to the ground. Defendant then placed Gibson in his truck and took her to the Urgent Care Center. Defendant placed Ms. Gibson by the door, knocked on it, and left.\nDr. Menno Pennink testified that the victim was found on the steps of the Urgent Care Center. The medical records indicated that the victim was found bleeding from the head and was in hypovolemic shock. Because of the extent of her injuries Ms. Gibson was transported to the emergency room of Cape Fear Valley Hospital and underwent surgery for skull fractures and extensive scalp lacerations. After the verdict, defense counsel requested that the trial judge find as a factor in mitigation of sentence that after the assault, defendant took Ms. Gibson from the woods to the Clinic for treatment of her injuries. The trial judge refused to find the mitigating factor submitted by the defendant.\nThe presumptive sentence for assault with a deadly weapon inflicting serious injury, a Class H felony, is three years. N.C.G.S. \u00a7 15A-1340.4(f)(6). At the sentencing hearing, the trial judge found one aggravating factor (prior convictions punishable by more than sixty days\u2019 confinement) and no mitigating factors. After concluding that the aggravating factors outweighed the mitigating factors, N.C.G.S. \u00a7 15A-1340.4(b), the trial judge sentenced defendant to the maximum ten year prison term. N.C.G.S. \u00a7 14-l.l(a)(8).\nIn order for the trial court to impose a sentence greater than the presumptive term, the trial judge must make written findings of aggravating and mitigating factors. N.C.G.S. \u00a7 15A-1340.4(b). The trial judge must specifically list in the record each matter in aggravation or mitigation that he finds proved by a preponderance of the evidence. Id.\nN.C.G.S. \u00a7 15A-1340.4(a) specifically provides that, in determining factors in aggravation and mitigation, the trial judge \u201cmust consider\u201d certain factors enumerated in that statute which are commonly referred to as \u201cstatutory factors.\u201d This Court has clearly established that the sentencing judge has a duty to find a statutory mitigating factor when the evidence in support of a factor is uncontradicted, substantial and manifestly credible. State v. Jones, 309 N.C. 214, 306 S.E. 2d 451 (1983). Even in the absence of a specific request by counsel, the sentencing judge has a duty to examine the evidence to determine if it would support one of the statutorily enumerated factors. State v. Gardner, 312 N.C. 70, 320 S.E. 2d 688 (1984).\nIn contrast, N.C.G.S. \u00a7 15A-1340.4(a) provides that the judge \u201cmay consider any aggravating and mitigating factors that he finds are proved by the preponderance of the evidence, and that are reasonably related to the purposes of sentencing, whether or not such aggravating or mitigating factors are set forth herein. . . .\u201d (Emphasis added.)\nRendering aid to the victim is not a statutory mitigating factor. However, defendant requested that the trial judge make such a finding in mitigation. Defendant argues that once counsel requests that a non-statutory mitigating factor be considered by the trial judge, it should be subject to the same requirements as the statutory factors. That is, if the evidence meets the standards for proof of statutory sentencing factors enunciated by this Court in State v. Jones, 309 N.C. 214, 306 S.E. 2d 451 (uncontradicted, substantial and manifestly credible), the trial judge would be required to find the requested non-statutory mitigating factor, and failure to do so would be error requiring resentencing. We do not agree.\nThe language of N.C.G.S. \u00a7 15A-1340.4(a) clearly differentiates between the mandatory consideration of the statutory factors and the permissive consideration of other non-enumerated factors. In State v. Jones, 309 N.C. 214, 306 S.E. 2d 451, we recognized the permissive nature of this directive and stated that although the defendant had failed to show that he testified truthfully against another felon for the prosecution, the fact that he agreed to testify as part of his plea bargain \u201cmay be of some mitigating value should the trial court consider it to be such as he is permitted hut not required to do under N.C.G.S. \u00a7 15A-1340.4 (a).\u201d Id. at 222, 306 S.E. 2d at 456. (Emphasis added.) In addition, in State v. Gardner, 312 N.C. 70, 320 S.E. 2d 688, we alluded to the discretionary nature of the non-statutory mitigating factors, noting that unlike the statutory factors, the trial judge is not required to consider whether the evidence supports the existence of such factors in the absence of specific requests by defense counsel. Id. at 73, 320 S.E. 2d at 690. (Emphasis added.)\nTherefore, we hold that although failure to find a statutory mitigating factor supported by uncontradicted, substantial and manifestly credible evidence is reversible error, a trial judge\u2019s consideration of a non-statutory factor which is (1) requested by the defendant, (2) proven by uncontradicted, substantial and manifestly credible evidence, and (3) mitigating in effect, is a matter entrusted to the sound discretion of the sentencing judge under N.C.G.S. \u00a7 15A-1340.4(a). Thus, his failure to find such a non-statutory mitigating factor will not be disturbed on appeal absent a showing of abuse of discretion.\nTurning next to the question of whether the trial judge abused his discretion in failing to find that defendant\u2019s rendering of aid to the victim was a factor in mitigation of his sentence, we find no such abuse demonstrated in the record in this case.\nAlthough we agree with defendant that rendering aid to the victim of the assault has mitigating value, see State v. Bondurant, 309 N.C. 674, 309 S.E. 2d 170 (1983), we do not agree with his further assertion that the evidence as to defendant\u2019s conduct in this case was such that the trial judge abused his discretion in failing to find such conduct as a mitigating factor. It is noteworthy that in Bondurant, a case involving sentencing for a capital offense, we stated that an important factor in finding that the defendant\u2019s death sentence was disproportionate was the fact that the defendant had expressed concern for the victim\u2019s life or remorse for his action by attempting to secure immediate medical attention for the deceased. Id. at 694, 309 S.E. 2d at 182.\nIn contrast, here defendant\u2019s evidence showed, at best, a motivation for rendering aid to his victim, which could be interpreted in two ways: (1) either as concern for his victim\u2019s life; or (2) as a purely selfish concern about the effect of her possible death on his ultimate punishment. In explanation of his conduct in taking Ms. Gibson to the Urgent Care Center, defendant testified that following the assault, \u201cI got scared and I thought I had done and killed the girl.\u201d He stated further that \u201c[t]hings happened so fast; and once I realized I hurt her that bad, I thought she was going to die and I was scared for myself just as much as for her because, like I say, I\u2019m on probation, and I feel like she was going to die and I wouldn\u2019t be able to tell what my story was against her story. . . .\u201d\nThus, while rendering aid to the victim could, in the appropriate case, be considered as a mitigating factor in the sound exercise of the trial judge\u2019s discretion, the trial judge in this case did not abuse his discretion in rejecting the submitted factor. The general purposes of sentencing to be considered by the trial judge include giving the defendant the benefit of any factors which tend to \u201cdiminish his culpability.\u201d N.C.G.S. \u00a7 15A-1340.4. The defendant\u2019s testimony in this case unequivocally shows that remorse played little role in his decision to aid Ms. Gibson and that his concern was for his own self-interest. Therefore, although defendant\u2019s objective conduct in bringing Ms. Gibson to the Urgent Care Center was commendable, the evidence of his motivation supports the trial judge\u2019s discretionary decision not to find in this conduct evidence of diminished culpability on the part of the defendant sufficient to mitigate his sentence.\nWe note that the legislature has made several additions to the list of statutory factors in mitigation at different times since the Act was established in 1979. See 1981 N.C. Sess. Laws ch. 179, sec. 1 (voluntary acknowledgment of wrongdoing), 1983 N.C. Sess. Laws ch. 606, sec. 1 (honorable military discharge). We agree with the dissenting judge on the Court of Appeals that as a policy matter, actions by a defendant in rendering aid to his victim should be encouraged, and that legislative consideration of making such circumstances a statutory mitigating factor would be appropriate. We decline to reach this goal under the guise of judicial construction.\nFor the foregoing reasons, the Court of Appeals is\nAffirmed.", "type": "majority", "author": "MEYER, Justice." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Michael Smith, Associate Attorney, for the State.", "Adam Stein, Appellate Defender, by Robin E. Hudson, Assistant Appellate Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MARK A. SPEARS\nNo. 622A84\n(Filed 13 August 1985)\n1. Criminal Law \u00a7 138.42\u2014 sentencing \u2014 necessity for finding non-statutory mitigating factor\nAlthough failure to find a statutory mitigating factor supported by uncontradicted, substantial and manifestly credible evidence is reversible error, a trial judge\u2019s consideration of a non-statutory factor which is (1) requested by defendant, (2) proven by uncontradicted, substantial and manifestly credible evidence, and (3) mitigating in effect is a matter entrusted to the sound discretion of the sentencing judge under G.S. 15A-1340.4(a), and his failure to find such a non-statutory mitigating factor will not be disturbed on appeal absent a showing of abuse of discretion.\n2. Criminal Law \u00a7 138.42\u2014 defendant\u2019s aid to victim \u2014 failure to find as mitigating factor\nIn sentencing defendant for assault with a deadly weapon inflicting serious injury, the trial court did not abuse its discretion in failing to find as a non-statutory mitigating factor that defendant rendered aid to his victim where defendant\u2019s testimony unequivocally showed that defendant\u2019s decision to take the victim to a medical facility was motivated by a purely selfish concern about the effect of her possible death on his ultimate punishment and that remorse played little role in his decision to aid the victim.\nBEFORE Britt, J., at the 5 October 1983 Session of Superior Court, Cumberland County, defendant was convicted of assault with a deadly weapon inflicting serious injury and was sentenced to ten years imprisonment. Defendant appeals as of right from the decision of the Court of Appeals, one judge dissenting, affirming his conviction and sentence. N.C.G.S. \u00a7 7A-27(a).\nLacy H. Thornburg, Attorney General, by Michael Smith, Associate Attorney, for the State.\nAdam Stein, Appellate Defender, by Robin E. Hudson, Assistant Appellate Defender, for defendant-appellant." }, "file_name": "0319-01", "first_page_order": 363, "last_page_order": 368 }