State v. Mooneyhan , 104 N.C. App. 477 ( 1991 )

409 S.E.2d 700 (1991) 104 N.C. App. 477

STATE of North Carolina
v.
Johnny Ray MOONEYHAN.

No. 907SC1101.

Court of Appeals of North Carolina.

November 5, 1991.

Atty. Gen., Lacy H. Thornburg, by Asst. Atty. Gen., Linda Anne Morris, Raleigh, for the State.

Farris & Farris, P.A., by Robert A. Farris, Jr., Wilson, and Thomas J. Farris, Raleigh, for defendant, appellant.

HEDRICK, Chief Judge.

Defendant's first assignment of error is that the trial court erred by denying defendant's motion to dismiss at the close of all evidence because the evidence was insufficient as a matter of law to support all the elements necessary for a conviction. Defendant argues that the State failed to prove that he was driving the motor vehicle when the accident occurred.

In ruling on a motion to dismiss for insufficiency of evidence in a criminal case, all evidence admitted, whether competent or incompetent, must be considered in the light most favorable to the State. The State is entitled to every reasonable inference therefrom, and inconsistencies or contradictions are disregarded. The credibility of the witnesses and the weight to be given their testimony is exclusively a matter for the jury. State v. Scott, 323 N.C. 350, 372 S.E.2d 572 (1988). The motion for dismissal presents to the court the questions of whether there is substantial evidence of each essential element of the crime charged or of a lesser included offense, and whether the defendant was the perpetrator of the offense. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. If there is such substantial evidence, the motion for dismissal should be denied. State v. Williams, 307 N.C. 452, 298 S.E.2d 372 (1983).

In this case, evidence by the State tended to show that on the evening of 25 January 1990, defendant drove his red and white pickup truck to a nightclub around 5:30 p.m. A witness at the club estimates that defendant drank three beers in the hour and a half that he was at the club. Defendant then drove his truck approximately one mile to the Tarboro Moose Lodge, where he had dinner, and drank approximately four more beers over the course of about three hours. At around 10:00 p.m., a witness saw defendant preparing to leave the lodge, and warned him not to drive home because of the weather and his consumption of alcohol during the evening. Defendant told the witness: "I can make it. I am leaving." The witness further testified that defendant then left the lodge by himself.

Shortly after defendant left the lodge, his truck was involved in the accident which resulted in the death of Deputy Cone. Deputy Sewell, who was at the scene of the accident when it occurred, testified that defendant was the only one in the red and white pickup truck immediately following the collision, that the passenger door of the truck was closed when he approached, and that the driver's door was jammed and could not be opened. Sewell testified that he did not see anyone outside of any of the vehicles involved at the time. Other witnesses who later appeared on the scene testified that only those persons mentioned above who were involved in the collision were present at the scene of the accident.

When this evidence is viewed in the light most favorable to the State, the testimony of the witnesses constitutes substantial evidence that defendant was the perpetrator of the offense, in that a reasonable mind might accept this evidence as adequate to support that conclusion. We hold the trial court properly denied defendant's motion to dismiss for insufficiency of evidence to show he was the driver of the pickup truck.

Defendant's final two arguments are that the judgment should be arrested because the indictment 90CRS8259 fails to charge an offense because "nowhere in this indictment is the defendant informed of the time and place of the alleged offense," and that the trial court committed plain error in its charge to the jury "by failing to submit the lesser included offenses to the jury and by misstating the law of the case and particularly North Carolina Pattern Jury Instructions 206.32." We find after careful review of defendant's contentions that both of these arguments are meritless.

We hold defendant had a fair trial free from prejudicial error.

No error.

EAGLES and GREENE, JJ., concur.