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North Carolina v. Ragland5/6/1986
973 was not forbidden by statute, it was incumbent upon defendant to timely object in order to present the question of its admissibility for review on appeal. Defendant's failure to object constitutes a waiver of the right to do so, and its admission is not a proper basis for appeal. See State v. Gurley, 283 N.C. 541, 196 S.E.2d 725 (1973); State v. Warren, 236 N.C. 358, 72 S.E.2d 763 (1952); State Bar v. Combs, 44 N.C. App. 447,
261 S.E.2d 207 (1980); 1 Strong's N.C. Index 3d, supra. Defendant's first Assignment of Error is not properly before us.
By his second and final Assignment of Error defendant contends the court erred in sentencing him on the hit and run personal injury charge to a term in excess of the presumptive sentence of two years. Specifically, defendant contends the court erred for failure to find the statutory mitigating factor that defendant was suffering from a physical condition that was insufficient to constitute a defense, but significantly reduced his culpability. The court must find a particular mitigating factor when the supporting evidence is uncontradicted, substantial and manifestly credible. State v. Jones, 309 N.C. 214, 218-19, 306 S.E.2d 451, 455 (1983). Defendant maintains the record contains uncontradicted and credible evidence to show that defendant suffers from alcoholism. Defendant points to the following evidence in the record in support of the allegation that defendant suffers from alcoholism: defendant was convicted of driving while intoxicated in 1972; defendant was convicted of driving while impaired in 1983; and several witnesses, including defendant himself, testified that defendant either appeared "highly intoxicated" on 10 December 1983, the day the offense occurred, or was known to have consumed alcohol on 10 December 1983.
We note that evidence of prior convictions for driving under the influence could have been properly considered as an aggravating factor in sentencing defendant for hit and run personal injury , impairment not being an element of the offense. See State v. Mitchell, 62 N.C. App. 21, 29-30, 302 S.E.2d 265, 271 (1983). We hold the evidence in the record is insufficient to support a finding that defendant suffers from the disease of alcoholism. Assuming arguendo the evidence was sufficient to establish that defendant suffers from alcoholism, the court would not have committed reversible error by failing to find the statutory mitigating factor as maintained by defendant. In State v. Bynum, 65 N.C. App. 813, 310 S.E.2d 388 (1984), the defendant asserted that he was a heroin addict and that this addiction established as a mitigating factor that defendant was suffering from a physical condition that was insufficient to constitute a defense, but significantly reduced his culpability. The court concluded that " rug addiction is not per se a statutorily enumerated mitigating factor" and although it "could perhaps be found to mitigate the offense" under the rubric
of the enumerated factor, the evidence did not compel such a finding. Id. at 815, 310 S.E.2d at 390. Applying Bynum, we conclude that although substantial evidence of alcoholism could support the above mitigating factor, it does not compel such a finding.
No error.
Disposition
No error.
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