State v. Smith

309 S.E.2d 1, 65 N.C. App. 420, 1983 N.C. App. LEXIS 3482

Opinion

HEDRICK, Judge.

Defendant first assigns error to “the trial court’s failure to find as a mitigating factor that the defendant committed the offense under duress or compulsion which significantly reduced his culpability.” We note that defendant neither objected to the court’s findings of fact nor tendered proposed findings of fact to the court. Where the court’s failure to find a mitigating factor is raised for the first time on appeal, this Court will find error only on a showing that the trial court abused its discretion. State v. Davis, 58 N.C. App. 330, 293 S.E. 2d 658, disc. rev. denied, 306 N.C. 745, 295 S.E. 2d 482 (1982). Where the evidence supporting a mitigating factor is uncontradicted and of manifest credibility, however, the court’s failure to find the existence of such factor is error. State v. Graham, 61 N.C. App. 271, 300 S.E. 2d 716 (1983). In determining whether the evidence compels a finding of the existence of a particular mitigating factor, the defendant bears the burden of showing that “ ‘the evidence so clearly establishes the fact in issue that no reasonable inferences to the contrary can be drawn,’ and that the credibility of the evidence ‘is manifest as a matter of law.’ ” State v. Jones, 309 N.C. 214, 220, 306 S.E. 2d 451, 455 (1983) (quoting Bank v. Burnette, 297 N.C. 524, 536, 256 S.E. 2d 388, 395 (1979)).

In the instant case, defendant contends that uncontroverted evidence established that his crime was motivated by economic necessity, and that this is equivalent to “duress or compulsion” under N.C. Gen. Stat. Sec. 15A-1340.4(a)(2)(b). Assuming arguendo that economic necessity could under any circumstances amount to “duress or compulsion” under the statute, it is clear that the evidence of economic necessity proffered by defendant falls far short of so clearly establishing duress “that no reasonable inferences to the contrary can be drawn.” Nor can it be said that the credibility of defendant’s evidence “is manifest as a matter of law.” Indeed, the only evidence pertaining to defendant’s reasons for breaking and entering derives from his testimony that he encountered difficulty in finding employment because of his status as a prison escapee, and that his crime was an attempt “to do something on [his family’s] behalf.” Defendant’s contentions in this regard border on the frivolous.

Defendant next assigns as error the trial court’s finding as an aggravating factor that defendant had prior convictions punishable by more than sixty days imprisonment. Defendant contends that there was no evidence, and that the judge made no finding, about defendant’s indigency or representation by counsel at the time of his prior convictions. This assignment of error is without merit under the recent decision of our Supreme Court in State v. Thompson, 309 N.C. 421, 307 S.E. 2d 156 (1983).

Affirmed.

Judges Braswell and Eagles concur.