State v. Oliver , 82 N.C. App. 135 ( 1986 )

345 S.E.2d 697 (1986)

STATE of North Carolina
v.
Langston OLIVER.

No. 8617SC88.

Court of Appeals of North Carolina.

July 15, 1986.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Barbara Peters Riley, Raleigh, for the State.

W. Osmond Smith, III, Yanceyville, and Mark Galloway, Roxboro, for defendant-appellant.

PHILLIPS, Judge.

The first of two questions raised by defendant's appeal is whether the trial court erred in refusing to submit the lesser included offense of misdemeanor breaking and entering to the jury. Defendant argues that since the State's evidence shows that he fled without further ado when she resisted his advances the jury could have found that he entered the apartment with the non-felonious intent to have sex with Ms. Rashed but only if she was agreeable. Assuming arguendo that the jury could have found from the State's evidence (the defendant's evidence being that he was not even there) that so far as sex was concerned his entry was without a felonious intent, the failure to submit such an issue to the jury did not prejudice the defendant in our opinion. For the defendant's felony conviction is not based upon his intentions concerning sex, it is based upon his intent to commit larceny and it is most unlikely, we think, that he would not have been convicted of that offense if the issue requested had been submitted. State v. Ray, 299 N.C. 151, 261 S.E.2d 789 (1980).

The other question presented is whether defendant's motion to suppress Ms. Rashed's in-court testimony identifying him as the burglarious intruder should have been granted. In his assignment of error defendant contended that the testimony should have been suppressed because it was irretrievably tainted by the impermissible suggestiveness of the pre-arrest photographic identification procedure. In his brief, however, this contention is neither argued nor supported and we deem it to have been abandoned. Rule 28(a), N.C. Rules of Appellate Procedure. The contention that is made, for the first time, and argued is that the findings of fact made by the court on the suppression-admissibility issue were inadequate. Though the contention is not properly before us we nevertheless have considered it and determined that it is also without merit. When the in-court identification of defendant by Ms. Rashed was challenged, a voir dire was conducted in the absence of the jury, as the law requires. Based on the evidence presented the trial judge determined that the proffered in-court identification testimony was of independent origin and was not tainted by the impermissible photographic line-up. That determination is supported by detailed findings of fact, all of which are supported by competent evidence. These findings are therefore binding upon us. State v. Tuggle, 284 N.C. 515, 201 S.E.2d 884 (1974). The inadequacy in the court's findings that defendant now points to is that they do not recite that they are based on "clear, strong and convincing evidence," as he apparently understands State v. Yancey, 291 N.C. 656, 231 S.E.2d 637 (1977), State v. Jacobs, 277 N.C. 151, 176 S.E.2d 744 (1970), and State v. Accor, 277 N.C. 65, 175 S.E.2d 583 (1970) to require. While those decisions do require the trial judge to apply the clear and convincing evidentiary standard in determining that identification testimony was of independent origin, they do not require the judge to declare in writing that the standard was applied. Our review of the record indicates that the judge followed the law in ruling on the challenged testimony and the assignment of error is overruled.

No error.

MARTIN and PARKER, JJ., concur.