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North Carolina v. Davy11/6/1990
duties and that the defendant was specifically aware of this vulnerability and made a calculative decision to proceed with the commission of this offense."
We find that the trial court properly aggravated the defendant's sentence based upon a finding that the defendant knew that the victim's husband was away on military duty and proceeded to target her because of this knowledge. See State v. Drayton, supra. Hattie Kent testified that she told the defendant that the victim's husband was away on military duty on the evening of the rape. The trial court properly concluded that the victim was more vulnerable because her husband was away on deployment and that the defendant targeted her because of his actual knowledge of this fact.
Conclusion
The trial court properly aggravated the defendant's sentence based upon his findings that the victim was asleep; that there were two young children present; and that she was specifically targeted because her husband was away at the time of the attack. The trial court erred in concluding that the victim was more vulnerable because she was on her menstrual cycle at the time of the attack and therefore more vulnerable to her attacker. "When an aggravating factor is incorrect, the trial judge cannot properly balance the aggravating and mitigating factors, and therefore the case must be remanded for resentencing." State v. Taylor, 74 N.C. App. 326, 328, 328 S.E.2d 27, 29, disc. rev. denied, 314 N.C. 547, 335 S.E.2d 319 (1985).
The defendant has also appealed the denial of his motion for the return of his truck, exclusive of any storage lien. At the time of his arrest, the defendant's 1977 Ford truck was seized and stored at a privately-owned local storage facility in Jacksonville, North Carolina. There is a local county storage facility, but the defendant's truck was not stored there. The storage fees now amount to more than the value of the truck. Defendant acknowledges that the truck was subject to impoundment as an item of evidence under G.S. § 15-11.1, and under the circumstances of this case, a lien for storage fees attached to the car by virtue of G.S. § 44A-2. However, defendant asks us
to create a judicial exception to N.C.G.S. sec. 44A-1 et seq. and hold that when property is seized by a law enforcement agency who thereafter directs the local storage facility to store and retain said property at their direction . . . the lawful owner is entitled to immediate possession of said property and the law enforcement agency is thereafter held accountable for all storage liens.
We decline.
The judgment of conviction in the trial court is affirmed. We remand the cause for resentencing due to the fact that the trial judge erroneously found the aggravating factor that the victim was particularly and especially vulnerable because she was on her menstrual cycle.
No error in the trial.
Remanded for sentencing.
Disposition
No error in the trial. Remanded for sentencing.
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