majority">HEDRICK, Judge.

Defendant contends that the trial court erred in denying his motions to dismiss the charges against him, arguing that the evidence presented at trial “was insufficient to submit the case to the jury.”

*298N.C. Gen. Stat. Sec. 14-49.1 provides: “Any person who willfully and maliciously damages or attempts to damage any real or personal property of any kind or nature, being at the time occupied by another, by the use of any explosive or incendiary device or material is guilty of a felony punishable as a Class C felony.”

It is elementary that “proof of every crime consists of: (1) Proof that the crime charged has been committed by someone; and (2) proof that the defendant is the perpetrator of the crime.” State v. Bass, 253 N.C. 318, 321, 116 S.E. 2d 772, 774 (1960) (citation omitted). See also State v. Bryant, 50 N.C. App. 139, 272 S.E. 2d 916 (1980). There is in this record substantial evidence that on 15 August 1982 a plastic jug containing flammable material was hurled into an occupied dwelling and that the device ignited, causing a fire. There is also substantial evidence that defendant, on that date, possessed a plastic container of gasoline, that he had on the same evening threatened one of the occupants of the house, that he was apprehended near the scene shortly after the crime occurred, that he smelled of “a flammable-like material” at the time of apprehension, and that a glass sliver found on his arm “could have had a common origin” with glass taken from a broken window of the dwelling in question. We think it clear that the State’s evidence was sufficient to permit submission of the case to the jury. These assignments of error are without merit.

By Assignment of Error No. 8 defendant argues that the court erred when it allowed the State “to cross examine the defendant concerning the defendant’s failure to talk to the officers at the time of his arrest concerning his account of his activities during the early morning hours of August 15, 1982.” Defendant contends that introduction of evidence concerning his “custodial silence” constitutes a violation of his constitutional rights. We agree. The record shows that Deputy Small informed defendant of his constitutional rights immediately after asking defendant to accompany him to the police department. At trial, defendant was subjected to a detailed cross-examination about his failure to relate his account of his activities on 15 August to Deputy Small and other officers. We think the issue here presented is controlled by the decision of the United States Supreme Court in Doyle v. Ohio, 426 U.S. 610, 618-19, 49 L.Ed. 2d 91, 98, 96 S.Ct. 2240, 2245 (1976), in which the Court said:

*299[W]hile it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial. . . . We hold that the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.

See also 2 H. Brandis, Brandis on North Carolina Evidence Sec. 179 (2d rev. ed. 1982). Because we believe the court committed prejudicial error in allowing into evidence defendant’s failure to recount to police officers his story of the events of 15 August, we hold that defendant is entitled to a new trial.

While defendant argues other alleged errors going to the court’s conduct of his trial, we believe such alleged errors are unlikely to occur at defendant’s next trial, and so we decline to discuss them. We do wish, however, to discuss defendant’s sole assignment of error going to the sentencing phase of the proceedings, and to that aspect we now turn our attention.

The record discloses that defendant was sentenced to a term exceeding the presumptive based on the court’s finding of the following factors in aggravation:

7. The defendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person.

15. The defendant has a prior conviction or convictions for criminal offenses punishable by more than 60 days’ confinement, and the defendant either Waived Counsel or was represented by Counsel in Court during trial of the same.

The court found no mitigating factors.

Defendant assigns error to the court’s finding of Factor No. 7, arguing that the same evidence was used to prove an element of the offense and to establish the factor in aggravation, in violation of N.C. Gen. Stat. Sec. 15A-1340.4(a)(l). We agree.

*300N.C. Gen. Stat. Sec. 15A-1340.4(a)(l) in pertinent part provides: “Evidence necessary to prove an element of the offense may not be used to prove any factor in aggravation. . . .” N.C. Gen. Stat. Sec. 14-49.1, the statute pursuant to which defendant was convicted, sets out as an element of the offense of malicious damage by explosives “the use of any explosive or incendiary device or material.” The statutory aggravating factor found by the trial judge requires a showing that the defendant employed “a weapon or device which would normally be hazardous to the lives of more than one person.” Our examination of the record reveals that the State impermissibly relied on the same evidence to show an element of the offense and to prove a factor in aggravation.

Because of the error already discussed, we hold that defendant is entitled to a new trial.

New trial.

Judges HILL and JOHNSON concur.

Citation profile

Relationships

How this case has been treated — in progress