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Criminal Practice — Non-Statutory Aggravating Factor – HIV Positive – Sexual Offense – Failure to Include in Indictment – Privacy Concerns

State v. Ortiz (Lawyers Weekly No. 15-07-0030, 15 pp.) (Lisa Bell, J.) Appealed from Buncombe County Superior Court (James Downs, J.) N.C. App.

Holding: According to G.S. § 15A-1340.16(a4), any non-statutory aggravating factors to be alleged against a defendant must be included in the indictment. Although, under G.S. § 130A-143, a person’s HIV-positive status may not be made public, since the indictment against defendant did not allege as a non-statutory aggravating factor the fact that defendant committed a sexual offense knowing that he was HIV positive, that factor could not be used against him in sentencing.

Remanded for resentencing.

Rather than including the non-statutory aggravating factor in the indictment, the state later moved to file notice of an aggravating factor under seal. While we commend the state’s attempt to protect defendant’s privacy and to comply with its understanding of § 130A-143, we do not agree with its methodology.

If the state was concerned that including the aggravating factor in the indictment would violate § 130A-143, it could have requested a court order in accordance with § 130A-143(6), which allows for the release of such identifying information “pursuant to [a] subpoena or court order.” Alternatively, the state could have sought to seal the indictment.

The plain language of § 15A-1340.16(a4) requires the non-statutory aggravating factor to be included in the indictment, and the state’s failure to do so rendered it unusable by the state in its prosecution. Simply providing notice in compliance with § 15A-1340.16(a6) was insufficient to allow the state to proceed on the non-statutory aggravating factor.

Defendant was convicted of both armed robbery and assault with a deadly weapon. He argues that assault with a deadly weapon is a lesser included offense of armed robbery.

However, defendant first used a knife to steal cash from the victim. Next, he began to make sexual comments to her and to remove items of her clothing. Then, when police knocked at the victim’s door, he forced the victim into the bathroom and held the knife to her throat and threatened to kill her. The jury could find that the acts necessary to convict defendant of armed robbery concluded before he committed the acts which constituted the offense of assault with a deadly weapon.

Remanded for resentencing.

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