State v. Blalock

334 S.E.2d 441 (1985)

STATE of North Carolina v. Zeb Jackson BLALOCK.

No. 8514SC80.

Court of Appeals of North Carolina.

October 1, 1985.

*443 Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. William N. Farrell, Jr., Raleigh, for the State.

Clayton, Myrick, & McClanahan by Jerry B. Clayton and Ronald G. Coulter, Durham, for defendant-appellant.

WHICHARD, Judge.

Defendant contends the court erred in admitting evidence of his prior acts of violence against the victim and other members of his family. He argues that this evidence was irrelevant and highly prejudicial and that it did not fall within any of the recognized exceptions to the general rule excluding evidence of unrelated offenses in a prosecution for a particular offense.

The general rule is that evidence of other unrelated offenses is not admissible to prove the character of a defendant in order to show that he acted in conformity therewith. N.C.Gen.Stat. 8C-1, Rule 404(b); see State v. McClain, 240 N.C. 171, 174, 81 S.E.2d 364, 365-66 (1954) (pre-Rules). Such evidence may be admissible for other purposes, however, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident." N.C.Gen.Stat. 8C-1, Rule 404(b); see McClain at 175-76, 81 S.E.2d at 366-67; State v. Smith, 61 N.C.App. 52, 57, 300 S.E.2d 403, 407 (1983) ("proof of independent crimes is competent to show quo animo, intent, design, guilty knowledge or scienter, or to make out the res gestae ").

Here the evidence of defendant's prior assaults on the victim and other members of his family was relevant and competent to show his intent or motive. The evidence of ill will between the victim and defendant was relevant and competent to rebut defendant's testimony that the victim was the aggressor and that he stabbed the victim in self-defense. We thus hold that the evidence was properly admitted.

Defendant contends the court erred in finding as an aggravating factor that the offense was especially heinous, atrocious, or cruel. See N.C.Gen.Stat. 15A-1340.4(a)(1)(f). He argues (1) that the evidence used to prove this factor was necessary to prove an element of the offense, (2) that the torture or excessive brutality necessary to render the offense especially heinous, atrocious or cruel was not shown, and (3) that the finding of this factor resulted in a *444 sentence based on non-statutory and impermissible factors.

"Evidence necessary to prove an element of the offense may not be used to prove any factor in aggravation...." N.C. Gen.Stat. 15A-1340.4(a)(1); see State v. Massey, 62 N.C.App. 66, 69, 302 S.E.2d 262, 264, modified and affirmed, 309 N.C. 625, 308 S.E.2d 332 (1983). One act constituting an offense suffices to sustain a conviction, however, and repeated instances of the offense may properly be considered an aggravating circumstance. State v. Abee, 308 N.C. 379, 381, 302 S.E.2d 230, 231 (1983). "Where proof of one act constituting an offense is sufficient to sustain a defendant's conviction, multiple acts of the same offense are relevant to the question of sentencing, including whether the offense charged was especially heinous, atrocious, or cruel." State v. Blackwelder, 309 N.C. 410, 413 n. 1, 306 S.E.2d 783, 786 n. 1 (1983); see also State v. Thompson, 309 N.C. 421, 422 n. 1, 307 S.E.2d 156, 158 n. 1 (1983).

Here evidence of the first and near fatal wound to the victim's abdomen was sufficient to sustain the conviction for assault with a deadly weapon inflicting serious injury. The evidence that defendant inflicted two additional wounds upon the victim, one of which could have been fatal, was not evidence necessary to prove an element of the offense. It thus could be considered in sentencing without violating the proscription against use of evidence necessary to prove an element of the offense. Blackwelder, supra; Thompson, supra.

In determining whether an offense is especially heinous, atrocious, or cruel, "the focus should be on whether the facts ... disclose excessive brutality, or physical pain, psychological suffering, or dehumanizing aspects not normally present in that offense." Blackwelder 309 N.C. at 414, 306 S.E.2d at 786. The presence of multiple acts of the same offense is relevant in determining the question. Id. at 413 n. 1, 306 S.E.2d at 786 n. 1.

The perpetrator of the offense here was the victim's father. This in itself rendered the offense dehumanizing beyond the normal. In addition the victim was stabbed with a large knife two times more than necessary to constitute the offense. As a result he lost a considerable amount of blood and underwent surgery, during which his blood pressure dropped and his pulse stopped on two occasions. Partial paralysis which probably will be permanent resulted from one of the wounds. We hold these facts sufficient to establish brutality, pain, suffering and dehumanization beyond the norm for the offense.

The final prong of this argument, viz, that the finding of this factor resulted in a sentence based on non-statutory and impermissible factors, is also without merit. That an offense "was especially heinous, atrocious, or cruel" is a statutory aggravating factor, N.C.Gen.Stat. 15A-1340.4(a)(1)(f); application of the foregoing authorities to the evidence presented establishes that it was permissibly found here.

No error.

WELLS and PHILLIPS, JJ., concur.