State v. Hester , 37 N.C. App. 448 ( 1978 )

246 S.E.2d 83 (1978) 37 N.C. App. 448

STATE of North Carolina
v.
William "Billy" HESTER.

No. 7810SC240.

Court of Appeals of North Carolina.

August 1, 1978.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. John C. Daniel, Jr., Raleigh, for the State.

C. D. Heidgerd, Raleigh, for defendant-appellant.

ERWIN, Judge.

Defendant contends that the trial court erred in defining "reasonable doubt" as follows in its charge:

"A reasonable doubt is a doubt based on reason and common sense arising out of some or all of the evidence that has been presented or a lack or insufficiency of the evidence as the case may be.

Proof beyond a reasonable doubt is proof that fully satisfies or entirely convinces you of the defendant's guilt."

Relying on State v. Hammonds, 241 N.C. 226, 85 S.E.2d 133 (1954), defendant maintains that the trial court erred in failing to include ". . . satisfied to a moral certainty" in the charge. However, a definition of "reasonable doubt" identical to the one given herein was approved by our Supreme Court in State v. Wells, 290 N.C. 485, 226 S.E.2d 325 (1976). Therefore, this assignment of error is overruled.

Defendant observes that State's witness Rivers testified that the break-in occurred on the night of 31 March 1977, while McKinley indicated that it took place on the night of 30 March 1977. He argues that "The variance between the two crucial State's witnesses . . . was sufficient to entitle the defendant to the Motion to Dismiss." We do not agree.

Our Supreme Court stated in State v. Bolin, 281 N.C. 415, 424, 189 S.E.2d 235, 241 (1972):

"On a motion for judgment as in case of nonsuit, the evidence must be considered in the light most favorable to the State. Contradictions and discrepancies, even in the State's evidence, are matters for the jury and do not warrant nonsuit."

See also State v. Smith, 291 N.C. 505, 231 S.E.2d 663 (1977). This assignment of error is without merit.

Finally, although acknowledging that his sentences are within statutory limits, defendant contends that they should be vacated, because the trial court considered improper matters and abused its discretion in imposing the sentences. Specifically, he argues that the trial judge's stated consideration of "studies I have seen [which] indicate that at the point that an individual accumulates this much record, that the likelihood of rehabilitation is very small," his failure to consider defendant's good work record, and the disparity between his sentences and that given to Rivers make his sentences "offensive to the public sense of ``fair play.'"

Although not conclusively so, it is presumed that a sentence within statutory limits is valid. 4 Strong's N.C. Index 3d, Criminal Law, § 138.

Clearly, the trial court acted within its discretion in considering defendant's criminal record. State v. Hegler, 15 N.C. App. 51, 189 S.E.2d 596 (1972), cert. denied, 281 N.C. 761, 191 S.E.2d 358 (1972). Further, we cannot conclude that the trial court failed to consider defendant's good work record, even assuming it had to; in fact, the trial court recommended defendant for the "Work Release Program."

Nor does defendant's contention relating to the sentence disparity between Rivers and himself have merit. The trial court merely was taking cognizance of defendant's criminal record. There is nothing in the record to indicate that the sentences imposed herein were the result of defendant's plea of not guilty; therefore, State v. Boone, 293 N.C. 702, 239 S.E.2d 459 (1977), relied upon by defendant, is not controlling.

The presumption of sentence regularity may be overcome, however, if the record reveals that the trial court considered irrelevant and improper matters. See State v. Swinney, 271 N.C. 130, 155 S.E.2d 545 (1967). Such does not appear on this record. Our Supreme Court observed in State v. Locklear, 294 N.C. 210, 213, 241 S.E.2d 65, 67 (1978): "It suffices to say that trial judges have a broad discretion, and properly so, in making a judgment as to proper punishment. They must not be hampered in the performance of that duty by unwise restrictive procedures." See also State v. Pope, 257 N.C. 326, 126 S.E.2d 126 (1962).

The other cases relied upon by defendant, State v. Swinney, supra, State v. Hodge, 27 N.C.App. 502, 219 S.E.2d 568 (1975), and State v. Snowden, 26 N.C.App. 45, 215 S.E.2d 157 (1975), cert. denied, 288 N.C. 251, 217 S.E.2d 675 (1975), are not controlling. In Swinney, the sentence was vacated because it appeared that the trial court was influenced by legal conduct by defendant, but which it considered improper. Both Hodge and Snowden involved a misapprehension as to the parole process, the trial judge believing that parole was automatic upon the expiration of one-fourth of the sentence.

Trial judges in this State are encouraged to seek out information to assist them in wisely fixing sentences. See State v. Thompson, 267 N.C. 653, 148 S.E.2d 613 (1966), State v. Grant, 19 N.C.App. 401, 199 S.E.2d 14 (1973), cert. denied and appeal dismissed, 284 N.C. 256, 200 S.E.2d 656 (1973).

In the trial below, we find

No error.

PARKER and CLARK, JJ., concur.