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Aggravating Factors

Nov 5, 2021

Elements of crime couldn’t be aggravating factors 

The North Carolina Court of Appeals has vacated the sentence of a man who pleaded guilty to felony death by motor vehicle, finding that the trial court erroneously used elements of the crime to support the aggravating factors used in his sentencing.  Barrod Heggs killed another motorist when he crashed into their vehicle at nearly 100 […]

Aug 11, 2015

Criminal Practice — DWI – Sentencing – Aggravating Factors – Insufficient Proof – Jury Question

State v. Keel (Lawyers Weekly No. 15-16-0788, 10 pp.) (Lucy Inman, J.) Appealed from Pitt County Superior Court (Arnold Jones II, J.) N.C. App. Unpub. Holding: Upon defendant’s conviction of driving while impaired, the state sought two grossly aggravating factors: that defendant had a previous DWI within seven years of his current DWI and that, […]

Mar 19, 2015

Criminal Practice — 1989 Child Rape – Mother’s Testimony – iPad Note-taking Instructions – Sentencing

State v. Pace (Lawyers Weekly No. 15-07-0243, 17 pp.) (Chris Dillon, J.) Appealed from Forsyth County Superior Court (A. Moses Massey, J.) N.C. App. Holding: Even if the trial court erred when it allowed the victim’s mother to testify that, when she took her daughter to counseling, she was told, “Something violent has happened to […]

Feb 18, 2015

Criminal Practice — Felony Child Abuse – Jury Instructions – Aggravating Factors – Heinous, Atrocious & Cruel

State v. Houser (Lawyers Weekly No. 15-07-0165, 23 pp.) (Lucy Inman, J.) Appealed from Union County Superior Court (Tanya Wallace, J.) N.C. App. Holding: Even though the trial court plainly erred when it failed to give an adapted version of the pattern jury instruction on the especially heinous, atrocious and cruel (EHAC) aggravating factor (adapted […]

Jan 27, 2015

Privacy concern thwarts sentence in rape case

A recent case presented a conundrum for Buncombe County prosecutors who wanted to use a sexual offender’s HIV-positive status as an aggravating factor to prolong the length of his sentence. North Carolina criminal law requires such sentence-enhancers to be set out in an indictment, which is a public record — but another state law provides […]

Dec 18, 2014

Criminal Practice — Second-Degree Murder – Guilty Plea – Aggravating Factors – Unsupported

State v. Myers (Lawyers Weekly No. 14-07-1178, 13 pp.) (Linda McGee, Ch. J.) Appealed from Caswell County Superior Court (Donald Stephens, J.) N.C. App. Holding: Although it appears that the victim suffered several defensive wounds to her face and hands shortly before she was fatally shot, this is not sufficient to support the aggravating factor […]

Jul 25, 2014

Charge conference is a must, appeals court rules

Failure to hold a charge conference before jury instructions on sentencing can lead to a vacation of the sentence, according to a recent state Court of Appeals decision. In State v. Hill, Jerrod Hill was found guilty at trial of attempted robbery with a firearm and assault with a deadly weapon inflicting serious injury. During sentencing, […]

Dec 9, 2011

Criminal Practice – Guilty Plea – Aggravating Factors – Aggravated Sentence – Restitution – Vacated

State v. Rico Even though the parties’ plea agreement included a sentence in the aggravated range, defendant’s original aggravated sentence was invalid as a matter of law because the trial judge imposed the sentence simply because it was called for by the plea agreement. The judge failed to make any findings as to aggravating factors and failed to exercise his discretion in determinin[...]

Oct 20, 2011

Criminal Practice – Attempted Murder – Constitutional – Confrontation Clause – Unavailable Witness – Probable Cause Hearing Testimony – Intent to Kill – Serious Injury – Sentencing – Aggravating Factors

State v. Ross At the probable cause hearing, defendant was represented by counsel (who was one of his trial counsel), he had the same motive to cross-examine victim Besies as at trial, and his counsel did in fact cross-examine Besies; therefore, defendant had an adequate opportunity to cross-examine Besies. Since Besies was unavailable to testify at trial, the trial court did not violate [...]

Jul 21, 2011

Criminal Practice – Speeding to Elude Arrest – Jury Unanimity — Aggravating Factors – Reckless Driving – Undefined

State v. Banks In order to elevate operation of a motor vehicle to elude arrest from a misdemeanor to a felony, the jury must find two of the eight aggravating factors listed in G.S. § 20-141.5(b). The state presented evidence of three of those factors, and the trial court’s instructions did not require the jury to be unanimous with regard to which two factors were present. Nevertheles[...]

Jun 24, 2011

Criminal Practice – Sentencing – Aggravating Factor – Law Enforcement Victim – Defendant’s Knowledge – Second Degree Murder – Miranda – Batson

State v. Carter The aggravating factor set out in G.S. § 15A-1340.16(d)(6) applies when the offense is committed against a law enforcement officer “engaged in the performance of that person’s official duties or because of the exercise of that person’s official duties.” Since the state proved that the victim was engaged in the performance of his duties as a law enforcement officer[...]

May 19, 2011

Criminal Practice – Speeding to Elude Arrest – Felony – Aggravating Factors – Recklessness – Weaving Through Traffic – Double Yellow Line

State v. Jackson Even though Trooper Robertson lost sight of defendant on Hicone Road, the trooper's testimony showed that defendant was speeding recklessly: the trooper testified that Hicone Road is a two-lane road divided by a solid double yellow line and that, based on the amount of traffic on Hicone Road at the time he was pursuing defendant, defendant would have had "to go around tha[...]

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