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State v. Ruff11/4/1997
y convicted of assault with a deadly weapon, we cannot conclude here that the credibility of defendant's evidence is "manifest as a matter of law." Like the evidence presented by the defendant in Freeman, the evidence brought forth by defendant in the instant case cannot be said to so clearly establish defendant's good character and reputation that no reasonable inferences to the contrary can be drawn. As the court observed in Freeman, "good character, as the term is used in the Fair Sentencing Act, means something more than the mere absence of bad character." Undoubtedly, it also means something more than being a person who has a good worth ethic, as was testified to by many of defendant's witnesses. For this reason, we find no error in the trial court's refusal to find, as a mitigating factor, that defendant was a person of good character and reputation in his community.
III.
By his third assignment of error, defendant contends that the trial court erred by failing to find that a recent brain surgery he underwent and his need to take seizure-preventing medication were mental conditions which mitigated his culpability for the kidnaping and rape the female. Again, we disagree.
N.C. Gen. Stat. § 15A-1340.16(e)(3) allows a trial court to reduce a defendant's sentence upon a showing that, at the time of the offenses committed, the "defendant was suffering from a mental or physical condition that was insufficient to constitute a defense but significantly reduced culpability for the offense." However, as with all showings he must make regarding mitigating factors, the defendant has the burden of showing the existence of the mental defect and its effects upon his conduct by a preponderance of the evidence.
In the instant case, defendant has clearly failed to meet his burden. The only evidence of defendant's mental conditions came from defendant himself, his wife and the sister of his wife's ex-husband. There was no medical or expert testimony presented concerning the existence of any of defendant's alleged mental conditions. More importantly, there was absolutely no evidence that either defendant's recent brain surgery or the medication he was taking to prevent him from having seizures had a significant effect, or any effect for that matter, on his actions at the time he kidnaped and raped the female. Accordingly, we hold that the trial court did not err in failing to find that defendant's recent brain surgery and his need to take medication were mental conditions which reduced his culpability for the offenses committed.
IV.
Lastly, defendant contends that the trial court erred by adding a 60 month firearm enhancement to his second-degree kidnaping conviction. With this contention, we agree.
In State v. Westmoreland, our Supreme Court stated that a trial court, in sentencing a defendant for a crime, could not aggravate that sentence with acts of the defendant "which formed the gravamen of contemporaneous convictions of joined offenses." In the instant case, defendant was convicted of first degree rape based upon his use of a dangerous weapon, and convicted, although not sentenced, of first-degree kidnaping based upon the commission of a sexual assault. The court, however, arrested judgment on the first-degree kidnaping conviction and instead sentenced defendant to second-degree kidnaping. It then increased defendant's kidnaping sentence by the 60 months proscribed under N.C. Gen. Stat. § 15A-1340.16A, North Carolina's firearm enhancement statute, because it found that a firearm was used in the commission of the offenses. Based upon these circumstances, defendant argues that the use of a firearm was the "gravamen" of his first-
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