but see dissenting opinion by Eagles, J.
How later courts described this case
- but see dissenting opinion by Eagles, J.
Written by the judges who cited it.
The opinion
Judge Eagles
dissenting in part.
I dissent from the portions of the majority opinion which sanction the use of the statutory aggravating factor in G.S. 15A-1340.4(a)(l)m in this assault with a deadly weapon inflicting serious bodily injury case.
G.S. 15A-1340.4(a)(l)m reads: “The offense involved an attempted or actual taking of property of great monetary value or damage causing great monetary loss, or the offense involved an unusually large quantity of contraband.”
The language relied on by the majority is the “[t]he offense involved . . . damage causing great monetary loss, . . . .” The evidence which they contend supports this finding is the $5,000 hospital and medical expenses and approximately $1,100 in lost wages suffered by the victim.
Their logic is flawed in several respects. First, the statutory element deals with property taken or attempted to be taken, large amounts of contraband (again property) and “damage causing great monetary loss.” [Emphasis added.] The language chosen by the General Assembly was not “injury” or “personal injury” but “damage,” a term usually associated with harm to property rather than injury to people. The word “damage” is linked amid a series of other property-oriented criteria.
My research discloses no prior decisions of our appellate courts which sanction the use of the statutory aggravating factor at G.S. 15A-1340.4(a)(l)m when its only support is evidence of *70 hospitalization and medical expenses and lost wages of the victim or even evidence of serious bodily injury. On the contrary, in State v. Medlin, 62 N.C. App. 251 , 302 S.E. 2d 483 (1983), we held that the trial court erred in finding as a non-statutory aggravating factor “that the victim suffered very severe physical disability,” where the charge was, as in the instant case, assault with a deadly weapon with intent to kill inflicting serious injury.
The majority relies on State v. Nichols, 66 N.C. App. 318 , 311 S.E. 2d 38 , cert. denied, 311 N.C. 406 , 319 S.E. 2d 278 (1984) but it was a common law robbery case where serious injury to the victim was not an element of the offense, unlike the charge before us here.
Secondly, the evidence relied upon to justify the statutory aggravating factor chosen (15A-1340.4(a)(l)m) is also some of the evidence necessary to prove an element of the offense, infliction of serious injury.
Where the charge is assault with a deadly weapon inflicting serious injury, evidence of the gravity of the injury is important to establish an essential element, serious injury.
The sentencing statute expressly forbids the use of evidence necessary for proof of an element of the offense to also support a finding that an aggravating factor exists: “Evidence necessary to prove an element of the offense may not be used to prove any factor in aggravation. . . .” G.S. 15A-1340.4(a)(l).
While the absence of evidence of hospitalization is not fatal to proof of serious injury, State v. Rotenberry, 54 N.C. App. 504 , 284 S.E. 2d 197 (1981), cert. denied, 305 N.C. 306 , 290 S.E. 2d 705 (1982), its presence in a case like this is highly probative of the existence of serious injury.
For these reasons I respectfully dissent from the majority’s endorsement of a finding of a G.S. 15A-1340.4(a)(l)m aggravating factor based solely upon evidence of lost wages and substantial hospital and medical expenses.