State v. Vance, 98 N.C. App. 105

State v. Vance

98 N.C. App. 105 | N.C. Ct. App. | 1990

HEDRICK, Chief Judge.

Defendant assigns as error the denial of his motions to dismiss at the close of the evidence. He argues that “the evidence was insufficient, as a matter of law, to support all of the elements necessary to a conviction” for second degree murder. Defendant claims the evidence presented at trial was legally insufficient to 1) prove that defendant was driving the Chevrolet Nova at the time of the accident, 2) prove that defendant was at fault in causing the collision, and 3) give rise to a legitimate inference of malice. We disagree.

*109In ruling on a motion to dismiss for insufficiency of the evidence in a criminal action, “all of the evidence favorable to the State ... must be deemed true and considered in the light most favorable.” State v. Witherspoon, 293 N.C. 321, 326, 237 S.E.2d 822, 826 (1977). Furthermore, any “discrepancies and contradictions therein are disregarded and the State is entitled to every inference of fact which may be reasonably deduced therefrom.” Id. Evidence presented in the case before us tends to show 1) the car involved in the accident was defendant’s car to drive, 2) defendant was driving the car when he and Bobby Caddell left Bobby Lee Jarvis’ house only 15 minutes before the collision occurred, and 3) the passenger side of the Nova had the most extensive damage and Bobby Caddell, rather than defendant, was thrown from the vehicle and died from injuries sustained in the crash. Such evidence was sufficient to give rise to an inference that defendant was driving the Nova at the time of the collision. Evidence in the record also supports the inference that defendant was at fault regarding the collision in that 1) his blood alcohol level was still over the legal limit two and one-half hours after the time of the accident, 2) the point of impact was in the westbound lane where defendant had been traveling east, and 3) there was a strong smell of alcohol noticed on defendant’s breath at the scene of the accident. With respect to the existence of malice in the present case, defendant’s argument again has no merit. In legal terms, “malice is not restricted to spite or enmity toward a particular person. It also denotes a wrongful act intentionally done without just cause or excuse [which demonstrates] ... a willful disregard of the' rights of others.” State v. Wilkerson, 295 N.C. 559, 578, 247 S.E.2d 905, 916 (1978) (iquoting State v. Wrenn, 279 N.C. 676, 686, 185 S.E.2d 129, 135 (1971) (Sharp, J., dissenting)). The evidence presented suggests that defendant drove his vehicle while intoxicated, at night, and at a high rate of speed. Such evidence is sufficient to support the inference that defendant acted with a “willful disregard of the rights of others.”

Defendant next argues that the common law “year and a day rule” required dismissal of the case against him. He relies on State v. Hefler, 310 N.C. 135, 310 S.E.2d 310 (1984), as support for the proposition that the “year and a day rule” still applies to murder cases. The Court in Hefler declined to extend the rule to bar prosecution for manslaughter but expressed no opinion as to its application in murder prosecutions. Defendant therefore concludes *110that the rule still applies in cases like the one now before this Court. The common law “year and a day rule” purports to bar a prosecution for a person’s death where death actually occurs more than a year and a day after the time of the injuries inflicted by the defendant. The rationale for this rule was that causation was less certain when the victim’s death occurred so long after the defendant’s act or omission. Id. In the present case, however, there was sufficient evidence to support the conclusion that Lanny Lee Bradley’s death was the proximate result of injuries he received in the collision on 11 March 1987. Consequently, defendant’s assignment of error is overruled.

Defendant further contends that the trial court erred “in instructing the jury on flight, because the instruction was not supported by the evidence and constituted an improper and prejudicial expression of opinion regarding the evidence.” Nevertheless, defendant did not object to the instruction at trial. Thus, he cannot now raise the question for the first time on appeal. This assignment of error has no merit.

Defendant also complains the trial court erred at sentencing by “aggravating defendant’s sentence on the basis of prior convictions . . . for joinable offenses for which defendant had been sentenced previously and offenses which did not tend to increase defendant’s culpability for this crime.” We disagree. At the sentencing hearing, the Assistant District Attorney, while addressing the subject of aggravating factors, informed the trial judge that defendant had been convicted and sentenced for the deaths of Nancy Bradley and Bobby Caddell. Nevertheless, “it is presumed that a trial judge, when sitting as a fact finder, is able to and does sift through the evidence presented, considering only that which is competent, and discarding the rest.” Ayden Tractors v. Gaskins, 61 N.C. App. 654, 661-62, 301 S.E.2d 523, 528 (1983). In addition to the convictions for joinable offenses, defendant had prior convictions for breaking and entering, larceny, carrying a concealed weapon, and possession of stolen goods. These convictions support the trial judge’s finding of an aggravating factor for sentencing purposes. Consequently, defendant’s argument has no merit.

Finally, defendant argues that the trial court considered improper factors in sentencing defendant to greater than the presumptive term for second degree murder. The record, however, does not support defendant’s contention. Although the trial judge ex*111pressed his frustration with the difficulty of arriving at a just sentence, he properly found one aggravating factor and no mitigating factors. He then imposed a sentence only five years greater than the presumptive term but 30 years less than the maximum term for second degree murder. The record discloses no evidence that the trial judge relied on any factor other than the one he specifically found in sentencing defendant. We therefore conclude that the court considered only competent evidence at the sentencing hearing.

Defendant had a fair trial free from prejudicial error.

No error.

Judges Phillips and Eagles concur.