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. The dynamics of that relationship were thus off limits to prove the position-of-trust aggravating factor.

On the other hand, sometimes the prohibition does not apply even when it seems like it might. Take State v. Edgerton, __ N.C. App. __, 774 S.E.2d 927 (2015), another case involving the position-of-trust aggravating factor. In *Edgerton*, the defendant was convicted of violating a protective order and sentenced in the aggravated range based on the statutory aggravating factor that he “took advantage of a position of trust or confidence, including a domestic relationship, to commit the offense.” The argument against applying the aggravator makes some sense—you can’t have a DVPO without a personal relationship, and so the evidence of that relationship is, at least indirectly, incorporated into an element of the conviction offense. The court of appeals nonetheless rejected the argument, concluding that the definition of a “personal relationship” in G.S. 50B-1 does not actually include any specific notion of trust or confidence between the parties. Because the crime can be proved without any particular showing of a position of trust, it can properly be aggravated based on those facts.

Sometimes there is some overlap between the evidence used to prove an aggravating factor and the evidence used to prove an element of the offense. A literal reading of the evidence-necessary rule might suggest that any overlapping evidence would be off limits to prove an aggravator if an element could not be shown without it. However, the cases show that some overlap is allowed as long as *additional evidence* beyond that which is necessary to prove an element is needed to prove the aggravator. In State v. Thompson, 309 N.C. 421 (1983), for example, the supreme court upheld the application of the “taking property of great monetary value” aggravator to an underlying conviction for larceny, reasoning that evidence of “great monetary value” was not needed to prove an element of felony larceny, which required only proof of value greater than $1,000. *See also* State v. Jones, 158 N.C. App. 498 (2003) (“permanent and debilitating injury” aggravator properly applied to kidnapping and AWDWIKISI convictions, which required proof of mere “serious injury” as elements).

I understand the “additional evidence” rule to a point, but sometimes it leaves me scratching my head. In State v. Facyson, 367 N.C. 454 (2014), the supreme court upheld the application of the “joined with more than one other person in committing the offense” aggravating factor to an underlying crime proved under an acting in concert theory. The court reasoned that the aggravating factor requires proof that the defendant joined with “more than one”—i.e., *two or more*—people in committing the offense, whereas the acting in concert doctrine may be proved with evidence of only *one* other person. Some additional evidence (one additional person) is needed to prove the aggravator that is not needed to prove the underlying offense, and so, the court concluded, the factor may be applied under the “additional evidence” rule.

But if a defendant acted with only two other people, the evidence of one of them is needed to show the acting in concert necessary to prove the underlying offense. Doesn’t the literal language of G.S. 15A-1340.16(d) therefore forbid using the evidence of that person when proving the aggravator? If so, it leaves you with evidence of only one other person for purposes of the aggravator—and that’s not enough, because the aggravator requires two or more. Applying the rule “backwards,” by reference to what *additional* things the aggravator requires that aren’t necessary to prove an underlying element, arguably bypasses the language of the rule itself.

An additional wrinkle related to the evidence-necessary rule bears mention. If a murder conviction is obtained based on the inference of malice that arises as a matter of law from the defendant’s use of a deadly weapon, then evidence of that weapon is deemed necessary to prove the malice element, and therefore prohibited from being used to prove an aggravating factor. The court has established this as a “bright-line rule.” State v. Blackwelder, 309 N.C. 410 (1983).

Finally, it is important to note that this rule is conviction-specific. Just because evidence might bar application of an aggravating factor for one conviction doesn’t mean that it will be barred for another conviction in the case. State v. Tucker, 357 N.C. 633, 636–38 (2003) (“[W]here two or more offenses [are] joined for judgment, one offense could be properly aggravated by evidence needed to prove a separate joined offense.”). *Cf. *John Rubin & Alyson Grine, North Carolina Defender Manual, Vol. 1, Pretrial (2d ed. 2013), at 6-10 (discussing whether the gravamen of a contemporaneous conviction may be used as an aggravating factor for the sentencing of a joined offense).

*Former School of Government Summer Law Clerk Michelle Weiner provided research assistance for this post.*

What about a situation where the evidence to prove the aggravating factor is more specific then the evidence used to support the underlying crime. I am thinking of the scenario in Blackwelder above, but the deadly weapon used is a firearm, and thr Firearm Enhancement comes into play. The inferred malice is supportrd by the evidence that the firearm is a deadly weapon, the firearm enhancement is supported by the fact that a firearm was used. Somewhat like the Blockburger different element test, each theory had a different requirement not included by the other, that is supported by the same evidence.