State v. Evans , 298 N.C. 263 ( 1979 )

258 S.E.2d 354 (1979) 298 N.C. 263

STATE of North Carolina
v.
James Earl EVANS.

No. 32.

Supreme Court of North Carolina.

October 3, 1979.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Isham B. Hudson, Jr., Raleigh, for the state.

Dallas Clark, Jr., Greenville, for defendant-appellant.

BRITT, Justice.

By his first assignment of error defendant contends the trial court expressed an opinion on the evidence in violation of G.S. 15A-1232 (formerly G.S. 1-180). There is no merit in this assignment.

This contention relates to testimony given by S.B.I. Agent Glenn Bozarth and Identification Officer Pat Bundy, Jr., of the Greenville Police Department. Mr. Bozarth testified that state's exhibits 9 and 10 were cards bearing latent fingerprints which he lifted from impressions on the windowsill of the kitchen in question; and that exhibits 11 and 12 were cards bearing latent fingerprints which he lifted from a bottle of perfume in said kitchen. Thereafter the trial judge asked the witness if exhibits 9, 10, 11 and 12 were true and accurate representations of the print impressions "as you observed them and found them in the top inside of the kitchen windowsill and [on] the bottle of Chantilly perfume". The witness gave an affirmative answer to the question.

Mr. Bundy testified that state's exhibit 4 had on it the inked impressions of the fingers and palms of defendant which he (Mr. Bundy) had taken. Thereafter, the court asked the witness if "the fingerprint and palm print impressions which appear on State's # 4 truly and accurately portray the fingerprint and palm print impressions of the defendant in this case". The witness answered in the affirmative.

"It is elementary that it is error for the trial judge to express or imply, in the presence of the jury, any opinion as to the guilt or innocence of the defendant, or as to any other fact to be determined by the jury, or as to the credibility of any witness. It is immaterial how such opinion is expressed or implied, whether in the charge of the court, in the examination of a witness, in the rulings upon objections to evidence or in any other manner. . . . (Citations.)" State v. Freeman, 280 N.C. 622, 626-27, 187 S.E.2d 59, 62-63 (1972). However, it is also clear that the trial judge may direct questions to a witness for the purpose of clarifying his testimony and promoting a better understanding of it. State v. Freeman, supra; State v. Colson, 274 N.C. 295, 163 S.E.2d 376 (1968), cert. denied, 393 U.S. 1087, 89 S. Ct. 876, 21 L. Ed. 2d 780 (1969).

While it would have been more appropriate for the district attorney to have asked the questions complained of here, we hold that the trial judge did not err in asking them under the circumstances of this case. The questions were appropriate to clarify the testimony of the witnesses and to promote a better understanding of the testimony.

In the other two assignments of error argued in his brief, defendant contends that the trial court erred (1) in denying his motions for nonsuit and (2) in submitting assault on a female as an alternative verdict in the assault case. These contentions have no merit.

Burglary in the first degree is the breaking and entering during the nighttime of an occupied dwelling or sleeping apartment with intent to commit a felony therein. State v. Bell, 285 N.C. 746, 208 S.E.2d 506 (1974); G.S. 14-51. The evidence presented in this case and reviewed above was sufficient to prove every element of the offense of burglary in the first degree.

With respect to the assault charge, defendant argues that while the jury in effect found him not guilty of assault with intent to commit rape, it found him guilty of assault on a female; that one of the elements of assault on a female is that the offender be a male person more than 18 years of age; and that there was no evidence that he was over the age of 18.

A charge of assault with intent to commit rape includes the lesser offense of assault on a female. State v. Gammons, 260 N.C. 753, 133 S.E.2d 649 (1963); State v. Beam, 255 N.C. 347, 121 S.E.2d 558 (1961). While it is true that one of the elements of assault on a female is that the defendant be more than 18 years old, the jury may look upon a person and estimate his age. State v. McNair, 93 N.C. 628 (1885); 1 Stansbury's N.C. Evidence (Brandis Rev.) § 119. The jury had ample opportunity to view the defendant in this case and estimate his age.

Furthermore, any error that might have been committed by the trial court relative to the assault charge was harmless. The judgments did not provide that either of the sentences imposed would begin at the expiration of the sentence in the other; therefore, the sentences will run concurrently. 4 Strong's N.C. Index 3d, Criminal Law § 140.1. It is well settled that where concurrent sentences are imposed on counts of equal gravity, or concurrent sentences of equal length are imposed, any error in the charge relating to one count only is harmless. Id. § 171.2. Clearly, this principle would apply to the case at hand where the two-year sentence imposed for assault will run concurrently with the life sentence imposed for first-degree burglary.

Defendant received a fair trial free from prejudicial error.

No error.

BROCK, J., took no part in the consideration or decision of this case.