State v. Young , 16 N.C. App. 101 ( 1972 )

191 S.E.2d 369 (1972) 16 N.C. App. 101

STATE of North Carolina
v.
Jerry Alonzo YOUNG, alias Jerry Allen.

No. 7218SC631.

Court of Appeals of North Carolina.

September 20, 1972.

Atty. Gen. Robert Morgan and Deputy Atty. Gen. Andrew A. Vanore, Jr., for the State.

D. Lamar Dowda, Asst. Public Defender, for defendant appellant.

HEDRICK, Judge.

Defendant first contends that the court erred "in finding as fact and concluding as law that the prosecuting witness's identification of defendant was not tainted and independent of any influence other than her observations on the night of the alleged crime". This contention is without merit.

When the defendant challenged the testimony of Mrs. Kaufman, identifying the defendant as her assailant, the able trial judge followed precisely the procedure set out by Chief Justice Bobbitt in State v. Moore and State v. Accor, 277 N. C. 65, 175 S.E.2d 583 (1970) by having a voir dire hearing in the absence of the jury; where, after hearing the testimony of Mrs. Kaufman, the court made detailed findings of fact as to any out of court confrontation between the witness and the defendant, and as to what the witness observed during and immediately after the assault. There was competent, clear and convincing evidence to support the court's positive findings that the in-court identification of the defendant by Mrs. Kaufman was of independent origin, based solely on what she observed during and immediately after the assault, and did not result from any out of court confrontation or from any pre-trial identification procedure suggestive of and conducive to mistaken identification. Such findings when supported by competent evidence are conclusive on appellate courts, both State and Federal. State v. McVay and State v. Simmons, 279 N.C. 428, 183 S.E.2d 652 (1971); State v. Blackwell, 276 N.C. 714, 174 S.E.2d 534, cert. denied 400 U.S. 946, 91 S. Ct. 253, 27 L. Ed. 2d 252 (1970); State v. Hinton, 14 N.C.App. 253, 188 S.E.2d 17 (1972); State v. Sneed, 14 N.C.App. 468, 188 S.E.2d 537 (1972).

Defendant's second contention is that the court erred in allowing the State to examine State's witness, Jenny Ferree, about two rings (State's exhibits 2 and 3) when the court had earlier sustained an objection to their introduction into evidence.

The record reveals that Mrs. Kaufman identified at the trial exhibits 2 and 3 as being the rings taken from her by the defendant. After Mrs. Kaufman had identified exhibits 2 and 3, Jenny Ferree was allowed to testify over defendant's objection, that the defendant had offered to sell to her exhibits 2 and 3 for $100. After Jenny Ferree's testimony, exhibits 2 and 3 were admitted into evidence.

In North Carolina, any object which has a relevant connection with a case is admissible. Stansbury, North Carolina Evidence 265 § 118 (2d ed. 1963). Clearly exhibits 2 and 3 have a relevant connection with the case and after Mrs. Kaufman had identified the rings, it was not error to allow Mrs. Ferree to testify that the defendant offered to sell her these rings. This assignment of error is overruled.

Defendant next contends that the court erred in not conducting a voir dire examination as to the "reliability of a confidential informant". This assignment of error is based on an exception to the court's allowing police officer Lawrence Graves to testify, over defendant's objection, that ". . . as a result of information I received from a confidential informer I called Mrs. Ferree". There was no reason for the court to conduct a voir dire examination as to the reliability of the informant. The officer merely testified that he called Mrs. Ferree as a result of information he received from the informant. This assignment of error is overruled.

Defendant's next assignment of error challenges the court's findings and conclusion that probable cause existed for the arrest of the defendant for common law robbery. This assignment of error does not relate to the admission or exclusion of any evidence at defendant's trial. The trial court, on its own initiative, conducted a voir dire examination to determine whether probable cause existed for the issuance of the arrest warrant. The voir dire hearing was conducted out of the presence of the jury and we cannot perceive how the defendant could have been prejudiced by either the hearing or the court's findings and conclusions made thereafter. This assignment of error has no merit.

Defendant's fifth assignment of error is based on the court's allowing the State to offer into evidence, over defendant's objection, defendant's purported confession to Officer Collins. Upon defendant's objection, the court held a voir dire examination as to the facts and circumstances surrounding defendant's purported confession to Officer Collins, wherein Officer Graves, Officer Collins and the defendant, all testified that the defendant had been advised of his constitutional rights. After the voir dire examination, the court made findings and concluded that "the defendant fully understood and freely, knowingly, voluntarily, and affirmatively waived each of those rights before making any statement to Officer Collins about the case against him". We have reviewed all of the evidence on voir dire examination and find that the evidence supports the court's findings and conclusions. Findings on voir dire, when supported by competent evidence, are conclusive on appeal. This assignment of error is overruled.

The defendant next assigns as error the court's denial of his motion for judgment as of nonsuit. There was plenary, competent evidence to require the submission of this case to the jury and to support the verdict. This assignment of error is overruled.

The defendant, by his seventh assignment of error, contends that the court failed "to adequately define the crime of common law robbery". In State v. Bailey, 278 N.C. 80, 85, 178 S.E.2d 809, 812 (1971), it is stated, "Robbery is the taking, with intent to steal, of personal property of another, from his person or in his presence, without his consent or against his will, by violence or intimidation." We have carefully reviewed the court's instructions as they relate to this assignment of error and find that the court correctly, fairly and adequately declared and explained the law as it relates to the charge of common law robbery. This assignment of error is without merit.

Defendant's eighth assignment of error alleges that the court erred "in reviewing for the jury the elements of the capital crime of rape, when defendant was not charged with rape".

It was not prejudicial error for the court to describe elements of the crime of rape in defining the crime with which defendant was charged, assault with intent to commit rape. The trial judge has great discretion in the manner in which he charges the jury, but he must explain every essential element of the offense charged. State v. Mundy, 265 N.C. 528, 144 S.E.2d 572 (1965). To constitute an assault with intent to commit rape, there must be both an assault and an intent on the part of the defendant to gratify his passion notwithstanding any resistance by the victim. State v. Gammons, 260 N.C. 753, 133 S.E.2d 649 (1963). Rape is the carnal knowledge of a female forcibly and against her will. State v. Crawford, 260 N.C. 548, 133 S.E.2d 232 (1963). Thus, assault with intent to commit rape is a lesser included offense of the crime of rape, State v. Birckhead, 256 N.C. 494, 124 S.E.2d 838 (1962), and a definition of rape aids in the explanation of the offense of assault with intent to commit rape. This assignment of error is overruled.

We have carefully considered all of defendant's assignments of error and find that defendant had a fair trial free from prejudicial error.

No error.

BROCK and MORRIS, JJ., concur.