State v. Davis , 101 N.C. App. 409 ( 1991 )

399 S.E.2d 371 (1991) 101 N.C. App. 409

STATE of North Carolina
v.
James R. DAVIS.

No. 9030SC239.

Court of Appeals of North Carolina.

January 15, 1991.

Atty. Gen. Lacy H. Thornburg by Associate Atty. Gen. Patsy Smith Morgan, Raleigh, for the State.

Samuel C. Briegel, Franklin, for defendant-appellant.

ORR, Judge.

Defendant assigns three errors on appeal. For the reasons below, we find that the trial court did not err.

Defendant first argues that the trial court erred in denying defendant's motion to dismiss the charges at the close of the State's evidence. We disagree.

At the close of the State's evidence in the present case, defendant stated that he would not offer any evidence and moved for dismissal based upon alleged insufficiency of the State's evidence. The trial court denied defendant's motion.

The trial court then admitted Exhibits 3 and 3-A over defendant's objection. Defendant requested a recess to consider the impact of the admission of these exhibits. After the recess, defendant withdrew his decision not to present any evidence, and defendant testified. At the close of the evidence, defendant again renewed his motion to dismiss.

Under Rule 10(b)(3) of the N.C. Rules of Appellate Procedure,

Sufficiency of the Evidence. A defendant in a criminal case may not assign as error the insufficiency of the evidence to prove the crime charged unless he moves to dismiss the action, or for judgment as in case of nonsuit, at trial. If a defendant makes such a motion and that motion is denied and the defendant then introduces evidence, his motion for dismissal or judgment in case of nonsuit made at the close of State's evidence is waived. Such a waiver precludes the defendant from urging the denial of such motion as a ground for appeal.

N.C.R.App.P. 10(b)(3).

Our courts have consistently held that when a defendant presents evidence at trial, he waives his right on appeal to assert the trial court's error in denying the motion to dismiss at the close of the State's evidence. State v. Upright, 72 N.C.App. 94, 99, 323 S.E.2d 479, 483 (1984), disc. review denied, 313 N.C. 513, 329 S.E.2d 400, cert. denied, 313 N.C. 610, 332 S.E.2d 82 (1985) (citation omitted). In the case before us, defendant presented evidence at trial. Therefore, under the rule, defendant waived his right to appeal the trial court's decision to deny his motion to dismiss at the close of the State's evidence.

Defendant next maintains that the trial court erred in admitting State's Exhibits 3 and 3-A into evidence after the State rested its case. Defendant cites no authority for his argument in violation of Rule 28(b)(5) of the N.C. Rules of Appellate Procedure. Under this rule, assignments of error "in support of which no reason or argument is stated or authority cited, will be taken as abandoned." N.C.R.App.P. 28(b)(5) (emphasis added). We have, however, reviewed this assignment of error and find it without merit.

Defendant's remaining assignment of error concerns whether the trial court erred in admitting into evidence State's Exhibits 3-B and 3-C. We find no error.

Defendant argues that these exhibits were irrelevant and prejudicial and should have been excluded under Rules 401 and 402 of the N.C.Rules of Evidence. Exhibits 3-B and 3-C are copies of a motion to dismiss an appeal and order dismissing the appeal of defendant's prior conviction for driving under the influence of alcohol. It was defendant's conviction for this offense which resulted in the revocation of his license. We find that these exhibits are evidence of the finality of the judgment, and therefore, evidence of defendant's knowledge of the revocation of his license at the time of the offense in the case sub judice.

We agree with defendant that these exhibits are prejudicial. However, their probative value outweighs their prejudicial effect, and therefore, they are admissible under Rule 403 of the N.C.Rules of Evidence. We also note that defendant testified to the facts contained in these exhibits, thereby diminishing their prejudicial impact of admission into evidence.

For the above reasons, we find no error.

No error.

PHILLIPS and GREENE, JJ., concur.