The “Evidence Necessary to Prove an Element” Limitation on Aggravating Factors

Under G.S. 15A-1340.16(d), “[e]vidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation.” The general idea behind that rule is to prevent the defendant from getting extra punishment via an aggravating factor for something that is inherent in the crime of conviction. A similar prohibition existed under Fair Sentencing, so we have a relatively large body of case law that helps us understand the rule. In some cases the rule is easy to apply. If the defendant is convicted of robbery with a dangerous weapon, the “armed with or used a deadly weapon” aggravating factor is off limits. State v. Thompson, 62 N.C. App. 38 (1983). Evidence of a weapon is needed to prove an element of the crime, and it is thus off limits to prove the aggravator that says basically the same thing. Sometimes the prohibition is more subtle and kicks in even when it’s not immediately obvious that it should. That’s because the prohibition is based not on the bare elements of the conviction offense, but rather on the evidence necessary to prove them. For instance, the court of appeals found the “position of trust” aggravating factor was improperly applied to a defendant’s conviction for second-degree sexual offense against his young stepdaughter. State v. Corbett, 154 N.C. App. 713 (2002). The defendant’s parent-child relationship with his stepdaughter from the time she was 12 to 16 years old was essential to establishing the constructive force necessary to prove the crime. [...]