Heard in the Court of Appeals January 8, 2015
Attorney General Roy Cooper, by Assistant Attorney General Amy Kunstling Irene, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, for Defendant.
STEPHENS, Judge. Judges GEER and DILLON concur.
Appeal by Defendant from judgment entered 16 July
2013 by Judge Edwin G. Wilson in Forsyth County Superior Court, Nos. 09 CRS
In February 2013, Defendant Sylvester Saunders, Jr., was tried in the Forsyth County Superior Court on charges of first-degree rape, second-degree kidnapping, and first-degree burglary. After the jury deadlocked, the trial court declared a mistrial. Defendant was retried before a jury in July 2013. The evidence at the second trial tended to show the following: The victim was an 82-year-old woman who lived alone in her house in Winston-Salem. In the early morning hours of 1 August 2009, a man entered the victim's home, grabbed her around the neck in a choke hold, and demanded money. The victim gave the man all of the money in her purse as well as two checks, but he still forced her into her living room, threw her onto a loveseat, and raped her. The victim attempted to fight back, but the man was too strong. During the rape, the man told the victim to raise her right leg. She explained that she could not do so because of her arthritis. The man forced the victim's leg up anyway. The victim asked the man why he would choose an old woman to attack, and he responded that he " like[d] old people." After completing the rape, the man told the victim he was hungry and took her to the kitchen in a choke hold, where she gave him two ice cream cones. Once the man left, the victim called the police.
That same day, after a fingerprint at the victim's home was identified as belonging to Defendant, a warrant was issued for his arrest. Defendant was taken into custody on 2 August 2009 while standing next to his car. Following his arrest, the two checks taken from the victim were discovered underneath Defendant's car. A print matching Defendant's left palm was discovered on one of the checks. Other evidence linking Defendant to the crimes included a dishtowel from the victim's kitchen which was found in the trunk
of Defendant's car, as well as hair and fingerprint evidence from inside and outside the victim's home that was matched to Defendant.
At trial, the victim testified that, after the rape and burglary, she felt angry, upset, stressed out, and uncomfortable in social situations. She limited her public activities and worried that people around her knew about the rape. The victim had installed an alarm system and kept a gun in her home. Her family and associates testified that she seemed depressed and withdrawn since the incident. Defendant presented no evidence. The jury found Defendant guilty of each charge and returned verdicts finding three aggravating factors. The trial court imposed an aggravated sentence of life in prison without the possibility of parole.
From the judgment entered upon his convictions, Defendant appeals, raising a single issue: that the trial court erred in failing to instruct the jury that it could not use the same evidence to find both the element of mental injury for first-degree rape and the aggravating factor that the victim was very old. Specifically, Defendant contends the jury may have relied on evidence about ongoing emotional suffering and behavioral changes which the victim experienced after the rape to find both an element of the offense and the aggravating factor. We find no error.
One of the aggravating factors submitted to and found by the jury was that the victim was very old. See N.C. Gen. Stat. § 15A-1340.16(d)(11) (2013) (providing that it is an aggravating factor if " [t]he victim [of a crime] was very young, or very old, or mentally or physically infirm, or handicapped" ). " Evidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation, and the same item of evidence shall not be used to prove more than one factor in aggravation." N.C. Gen. Stat. § 15A-1340.16(d). Defendant acknowledges that he did not request a specific instruction on this ...