State v. Witherspoon ( 1977 )

237 S.E.2d 822 (1977) 293 N.C. 321

STATE of North Carolina
v.
Robert Lee WITHERSPOON.

No. 15.

Supreme Court of North Carolina.

October 11, 1977.

Rufus L. Edmisten, Atty. Gen. by David S. Crump, Asst. Atty. Gen., Raleigh, for the State.

Fred Stokes, Albemarle, for defendant.

LAKE, Justice.

The defendant's brief brings forward only his Assignment of Error No. 8. Consequently, Assignments 1 through 7 are deemed abandoned. Rule 28(a) of the Rules of Appellate Procedure, 287 N.C. 741. However, due to the serious nature of the offense and the sentence of the defendant to life imprisonment, we have, nevertheless, reviewed the entire record and considered all of the assignments of error. We find no merit whatever in any of them.

It is elementary that, upon a motion for judgment of nonsuit in a criminal action, all of the evidence favorable to the State, whether competent or incompetent, must be considered, such evidence must be deemed true and considered in the light most favorable to the State, discrepancies and contradictions therein are disregarded and the State is entitled to every inference of fact which may be reasonably deduced therefrom. State v. Poole, 285 N.C. 108, 203 S.E.2d 786 (1974); State v. Davis, 284 N.C. 701, 719, 202 S.E.2d 770 (1974), cert. den., 419 U.S. 857, 95 S. Ct. 104, 42 L. Ed. 2d 91 (1974); State v. Holton, 284 N.C. 391, 200 S.E.2d 612 (1973); State v. Rankin, 284 N.C. 219, 200 S.E.2d 182 (1973); State v. Everette, 284 N.C. 81, 199 S.E.2d 462 (1973); Strong's N.C. Index 3d, Criminal Law, § 104. In the present case, the evidence introduced by the State, so considered, is ample to show the commission of the offense of rape in the second degree and that the defendant was the perpetrator of the crime. Thus the motions to dismiss and for nonsuit were properly denied. State v. Poole, supra; State v. Goines, 273 N.C. 509, 160 S.E.2d 469 (1968).

Upon objection by the defendant to the admission of testimony of the prosecuting witness identifying the defendant as the perpetrator of the offense, the trial court properly excused the jury from the courtroom and, in its absence, conducted a voir dire to determine the admissibility of such proposed evidence. The evidence taken upon the voir dire fully supports the findings of fact made by the trial court and disclosed no impropriety whatever in the pretrial lineup at which the prosecuting witness picked the defendant as her assailant. The court's findings of fact, so supported by the evidence on the voir dire, are conclusive. Strong's N.C. Index 3d, Criminal Law, § 66.20. These findings fully support the ruling that the in-court identification of the defendant by the prosecuting witness was competent. There was no objection to the testimony by this witness before the jury that she had identified the defendant as her assailant at the pretrial lineup. Had such objection been interposed, it would have been without merit in view of the evidence with reference to such lineup taken at the said voir dire and the findings of the court.

The defendant's motion to set aside the verdict on the ground that it was contrary to the weight of the evidence was addressed to the sound discretion of the trial judge whose ruling is not reviewable on appeal in absence of manifest abuse of discretion. State v. Britt, 285 N.C. 256, 204 S.E.2d 817 (1974); State v. Mason, 279 N.C. 435, 183 S.E.2d 661 (1971); State v. Massey, 273 N.C. 721, 161 S.E.2d 103 (1968); State v. Bridgers, 267 N.C. 121, 147 S.E.2d 555 (1966); Strong's N.C. Index 3d, Criminal Law, § 132. Obviously, there was no such abuse of discretion in the present case.

There was no error in denying the defendant's motion for judgment notwithstanding the verdict. The Court of Appeals, in State v. Brown, 9 N.C.App. 534, 176 S.E.2d 907 (1970), has said a motion for judgment notwithstanding the verdict is not proper in a criminal action. Even if it be, its allowance is governed by the same considerations as apply to a motion for a directed verdict and a motion for judgment of nonsuit. Huff v. Thornton, 287 N.C. 1, 213 S.E.2d 198 (1975); Dickinson v. Pake, 284 N.C. 576, 201 S.E.2d 897 (1974). As above noted, the evidence for the State is ample to survive such a motion.

The judgment of the court is supported by the verdict and the sentence imposed is within the limits prescribed by the statute. G.S. 14-21.

Assignment of Error No. 8 is also without merit. At the conclusion of the voir dire, the court clearly stated its ruling that the objection of the defendant to the proposed in-court identification by the prosecuting witness was overruled. At that time, the court stated that it would enter written findings of fact and its order in accord with the ruling orally announced. The record indicates that such findings were entered during the course of the trial. In this there was no error. State v. Bass, 280 N.C. 435, 186 S.E.2d 384 (1972). Strong's N.C. Index 3d, Criminal Law, § 66.20.

NO ERROR.