98 N.C. App. 105 | N.C. Ct. App. | 1990
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.
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
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
Defendant had a fair trial free from prejudicial error.
No error.