{ "id": 8553368, "name": "STATE OF NORTH CAROLINA v. WILLIAM \"BILLY\" HESTER", "name_abbreviation": "State v. Hester", "decision_date": "1978-08-01", "docket_number": "No. 7810SC240", "first_page": "448", "last_page": "452", "citations": [ { "type": "official", "cite": "37 N.C. App. 448" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "200 S.E. 2d 656", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "284 N.C. 256", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561344, 8561413, 8561388, 8561329, 8561363 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0256-02", "/nc/284/0256-05", "/nc/284/0256-04", "/nc/284/0256-01", "/nc/284/0256-03" ] }, { "cite": "199 S.E. 2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "19 N.C. App. 401", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553912, 8553873 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/19/0401-02", "/nc-app/19/0401-01" ] }, { "cite": "148 S.E. 2d 613", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "267 N.C. 653", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560291 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/267/0653-01" ] }, { "cite": "217 S.E. 2d 675", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 251", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567649, 8567523, 8567691, 8567578, 8567614 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0251-04", "/nc/288/0251-01", "/nc/288/0251-05", "/nc/288/0251-02", "/nc/288/0251-03" ] }, { "cite": "215 S.E. 2d 157", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "26 N.C. App. 45", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549209 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc-app/26/0045-01" ] }, { "cite": "219 S.E. 2d 568", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "27 N.C. App. 502", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554695 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc-app/27/0502-01" ] }, { "cite": "126 S.E. 2d 126", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "257 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567591 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/257/0326-01" ] }, { "cite": "241 S.E. 2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "67" } ], "opinion_index": 0 }, { "cite": "294 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572384 ], "year": 1978, "pin_cites": [ { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0210-01" ] }, { "cite": "155 S.E. 2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "271 N.C. 130", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562687 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/271/0130-01" ] }, { "cite": "239 S.E. 2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567044 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0702-01" ] }, { "cite": "191 S.E. 2d 358", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 761", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8577000, 8576941, 8576974, 8577013, 8576957 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0761-04", "/nc/281/0761-01", "/nc/281/0761-03", "/nc/281/0761-05", "/nc/281/0761-02" ] }, { "cite": "189 S.E. 2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "15 N.C. App. 51", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547482 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/15/0051-01" ] }, { "cite": "231 S.E. 2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "291 N.C. 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558753 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/291/0505-01" ] }, { "cite": "189 S.E. 2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "241" } ], "opinion_index": 0 }, { "cite": "281 N.C. 415", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575271 ], "year": 1972, "pin_cites": [ { "page": "424" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0415-01" ] }, { "cite": "226 S.E. 2d 325", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "290 N.C. 485", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561808 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0485-01" ] }, { "cite": "85 S.E. 2d 133", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "241 N.C. 226", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8606351 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/241/0226-01" ] } ], "analysis": { "cardinality": 497, "char_count": 8179, "ocr_confidence": 0.819, "pagerank": { "raw": 5.347597070707327e-08, "percentile": 0.33616766846252427 }, "sha256": "b8058b4b91dd7043c35e14b15ecb2fe171e01987399af87ef5e51f675918c056", "simhash": "1:c7ec5e271c1d2c7f", "word_count": 1344 }, "last_updated": "2023-07-14T22:58:37.287571+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Parker and Clark concur." ], "parties": [ "STATE OF NORTH CAROLINA v. WILLIAM \u201cBILLY\u201d HESTER" ], "opinions": [ { "text": "ERWIN, Judge.\nDefendant contends that the trial court erred in defining \u201creasonable doubt\u201d as follows in its charge:\n\u201cA 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.\nProof beyond a reasonable doubt is proof that fully satisfies or entirely convinces you of the defendant\u2019s guilt.\u201d\nRelying 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 \u201csatisfied to a moral certainty\u201d in the charge. However, a definition of \u201creasonable doubt\u201d 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.\nDefendant observes that State\u2019s 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 \u201c[t]he variance between the two crucial State\u2019s witnesses . . . was sufficient to entitle the defendant to the Motion to Dismiss.\u201d We do not agree.\nOur Supreme Court stated in State v. Bolin, 281 N.C. 415, 424, 189 S.E. 2d 235, 241 (1972):\n\u201cOn 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\u2019s evidence, are matters for the jury and do not warrant nonsuit.\u201d\nSee also State v. Smith, 291 N.C. 505, 231 S.E. 2d 663 (1977). This assignment of error is without merit.\nFinally, 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\u2019s stated consideration of \u201cstudies I have seen [which] indicate that at the point that an individual accumulates this much record, that the likelihood of rehabilitation is very small,\u201d his failure to consider defendant\u2019s good work record, and the disparity between his sentences and that given to Rivers make his sentences \u201coffensive to the public sense of \u2018fair play.\u2019 \u201d\nAlthough not conclusively so, it is presumed that a sentence within statutory limits is valid. 4 Strong\u2019s N.C. Index 3d, Criminal Law, \u00a7 138.\nClearly, the trial court acted within its discretion in considering defendant\u2019s 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\u2019s good work record, even assuming it had to; in fact, the trial court recommended defendant for the \u201cWork Release Program.\u201d\nNor does defendant\u2019s contention relating to the sentence disparity between Rivers and himself have merit. The trial court merely was taking cognizance of defendant\u2019s criminal record. There is nothing in the record to indicate that the sentences imposed herein were the result of defendant\u2019s 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.\nThe 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): \u201cIt 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.\u201d See also State v. Pope, 257 N.C. 326, 126 S.E. 2d 126 (1962).\nThe 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.\nTrial 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).\nIn the trial below, we find\nNo error.\nJudges Parker and Clark concur.", "type": "majority", "author": "ERWIN, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General John C. Daniel, Jr., for the State.", "C. D. Heidgerd, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WILLIAM \u201cBILLY\u201d HESTER\nNo. 7810SC240\n(Filed 1 August 1978)\n1. Criminal Law \u00a7 112.1\u2014 charge on reasonable doubt\nThe trial court\u2019s charge on reasonable doubt was not insufficient in failing to include the words \u201csatisfied to a moral certainty.\u201d\n2. Criminal Law \u00a7 104\u2014 discrepancies in State\u2019s evidence \u2014 nonsuit\nDismissal of breaking and entering and larceny charges was not required because one State\u2019s witness testified the break-in occurred on the night of 30 March and another State\u2019s witness testified that it occurred on the night of 31 March, since discrepancies in the State\u2019s evidence do not warrant nonsuit.\n3. Criminal Law \u00a7\u00a7 138.1, 138.7\u2014 severity of punishment \u2014 criminal record \u2014 work record \u2014 more severe sentence than accomplice\nSentences imposed on defendant for breaking and entering and larceny were not improper because of the trial judge\u2019s statement that he had seen studies which \u201cindicate that at the point that an individual accumulates this much record, that the likelihood of rehabilitation is very small,\u201d the trial judge\u2019s failure to consider defendant\u2019s good work record, or the disparity between sentences given to defendant and sentences given to an accomplice, since (1) the trial judge acted within his discretion in considering defendant\u2019s criminal record; (2) assuming the judge was required to consider defendant\u2019s work record, it cannot be concluded that he failed to do so inasmuch as he recommended defendant for work release; and (3) the disparity in sentences resulted from the court\u2019s consideration of defendant\u2019s criminal record.\nAPPEAL by defendant from Brewer, Judge. Judgment entered 12 January 1978 in Superior Court, WAKE County. Heard in the Court of Appeals 28 June 1978.\nDefendant was indicted for breaking and entering and larceny, convicted by a jury, and sentenced to consecutive terms of ten years and four to ten years respectively.\nRonald Rivers testified for the State that: he knew defendant and they worked together; he and defendant got together after work on 31 March 1977, drank, and went to various clubs; they then drove to an apartment complex and broke into an apartment, stealing stereo equipment which he later sold; and he had pleaded guilty to the offenses. Iona Smith testified that she was Johnny McKinley\u2019s mother-in-law and lived near his apartment. She testified that she observed two people breaking into McKinley\u2019s house and \u201ccoming out toting stuff\u201d about 12:30 or 1:00 a.m. on the night of 31 March 1977 and that she called McKinley. Finally, the State presented McKinley, who testified that he left certain sterqo equipment in the apartment about 11:30 on the evening of 30 March and that the equipment was missing when he returned at about 7:00 the following morning.\nDefendant testified that he was elsewhere on the night of 30-31 March and presented two alibi witnesses, his girlfriend and his mother.\nBefore the Court imposed sentence, defendant\u2019s attorney urged it to consider the fact that Rivers had not received an active sentence. The district attorney presented defendant\u2019s criminal record, which was a substantial one. The trial court imposed the sentences stated above. Defendant appealed.\nAttorney General Edmisten, by Assistant Attorney General John C. Daniel, Jr., for the State.\nC. D. Heidgerd, for defendant appellant." }, "file_name": "0448-01", "first_page_order": 476, "last_page_order": 480 }