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North Carolina v. Vance4/3/1990
dant'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 expressed
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.
Disposition
No error.
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