State v. Barrow, 216 N.C. App. 436 (Nov. 1, 2011)

In a case in which the defendant was charged with killing his infant son, the trial court erred by failing to instruct the jury, as provided in G.S. 15A-1340.16(d), that evidence necessary to prove an element of the offense may not be used to prove a factor in aggravation. After the jury found the defendant guilty of second-degree murder, the trial court submitted two aggravating factors to the jury: that the victim was young and physically infirm and that the defendant took advantage of a position of trust. The jury found both factors and the defendant was sentenced in the aggravated range. With respect to the first factor, the court noted that the State's theory relied almost exclusively on the fact that because of the vulnerability of the young victim, shaking him was a reckless act indicating a total disregard of human life (the showing necessary for malice). Because this theory of malice is virtually identical to the rationale underlying submission of the aggravating factor, there is a reasonable possibility that the jury relied on the victim’s age in finding both malice and the aggravating factor. The court came to a different conclusion as to the other aggravating factor. One judge dissented on a different issue.