State v. Lilly

232 S.E.2d 495 (1977) 32 N.C. App. 467

STATE of North Carolina
v.
Danny LILLY.

No. 7612SC721.

Court of Appeals of North Carolina.

March 2, 1977.

Atty. Gen. Rufus L. Edmisten, by Associate Atty. James E. Scarbrough, Raleigh, for the State.

Asst. Public Defender Pinkney J. Moses, Fayetteville, for the defendant.

MARTIN, Judge.

The defendant first contends that the trial court erred in denying his motion, which was made only at the close of the State's evidence, for nonsuit of the armed robbery charge. He argues that the State's evidence does not sufficiently show that the weapon was used at the precise time the robbery occurred. Instead, he contends, the evidence indicates that both the intent to rob and the actual robbery occurred only after the assault of Jones was terminated. Thus, as his argument goes, the use of the crowbar was part of the assault charge and not a part of the armed robbery charge. We disagree.

The defendant introduced evidence in his own defense following the trial court's denial of his nonsuit motion. Our courts have uniformly established that a defendant, by introducing evidence at trial, waives his right to except on appeal to the denial of his motion for nonsuit at the close of the State's evidence. State v. McWilliams, 277 N.C. 680, 178 S.E.2d 476 (1971); State v. Logan, 25 N.C.App. 49, 212 S.E.2d 236 (1975); G.S. 15-173. In the instant case, the defendant did not renew his motion for nonsuit at the close of all the evidence. Nevertheless, pursuant to G.S. 15-173.1, we have reviewed the sufficiency of the State's evidence and conclude that the trial court properly denied defendant's motion for nonsuit.

While the defendant contends there was no evidence to indicate that he intended to rob the victim at the time the crowbar was used in the assault, he ignores the fact that the State's evidence shows that the transactions all occurred as one continuous series of events. Numerous decisions by this Court have concluded that the exact time relationship, in armed robbery cases, between the violence and the actual taking is unimportant as long as there is one continuing transaction amounting to armed robbery with the elements of violence and of taking so joined in time and circumstances as to be inseparable. See State v. Dunn, 26 N.C.App. 475, 216 S.E.2d 412 (1975); State v. Reid, 5 N.C.App. 424, 168 S.E.2d 511 (1969).

Defendant's first argument also ignores the fact that the State's evidence shows that the defendant held a dangerous weapon in his hand at the time he assaulted the victim; that he still had the weapon hanging from his arm at the time he went into the kitchen to take food from the refrigerator; and that it was no longer necessary for him to use or threaten to use the weapon at the time of the robbery since he had already injured and subdued the victim. Viewing this evidence in the light most favorable to the State, as we are required to do, we conclude that there was sufficient evidence to submit the charge of armed robbery to the jury and that the trial court properly denied the defendant's motion for nonsuit as to that charge. State v. Rigsbee, 285 N.C. 708, 208 S.E.2d 656 (1974).

The defendant next contends that the trial court erred in sustaining the State's objection to defendant's question pertaining to the character of the victim. At trial, the defendant testified that he ". . . didn't know he [Jones] was that type of man." When asked what type of man he meant, the State objected and the objection was sustained. The record does not, however, reveal how the witness would have answered this question and, hence, we are unable to ascertain whether the court's ruling was prejudicial. State v. Little, 286 N.C. 185, 209 S.E.2d 749 (1974); State v. Nelson, 23 N.C.App. 458, 209 S.E.2d 355 (1974), app. dismd. 286 N.C. 340, 211 S.E.2d 216 (1974). The defendant has therefore failed to show any prejudicial error as a result of the exclusion.

We conclude that the defendant had a fair trial free of prejudicial error.

No error.

MORRIS and VAUGHN, JJ., concur.