State v. Nelson

317 S.E.2d 70, 69 N.C. App. 455, 1984 N.C. App. LEXIS 3480
CourtCourt of Appeals of North Carolina
DecidedJuly 3, 1984
DocketNo. 8311SC646
StatusPublished
Cited by2 cases

This text of 317 S.E.2d 70 (State v. Nelson) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Nelson, 317 S.E.2d 70, 69 N.C. App. 455, 1984 N.C. App. LEXIS 3480 (N.C. Ct. App. 1984).

Opinion

JOHNSON, Judge.

The State offered evidence tending to show that Cleveland Thomas and defendant lived with defendant’s mother in Dunn, North Carolina. Cleveland Thomas testified that on 22 June 1982, between 10 p.m. and 11 p.m., he and defendant were returning home in an automobile driven by Thomas. As they approached the Dunn Chapel Church, defendant recognized a tall and slim elderly black man walking across the street. The man was carrying some items in his arms. Defendant directed Thomas to stop the automobile, stating that the man always carried money. When he [457]*457stopped the car, defendant jumped out and approached the man as if he was going to talk to him, but instead, grabbed the man by the arm and from the back. The man dropped the items he was carrying as defendant grabbed him and yelled, “stop, don’t do it, I’ll give you anything if you don’t do it.” Defendant then dragged the man between the church and another building. A short while later, defendant ran back to the car, jumped in and stated that he “got it” and told Thomas to drive off. Defendant was counting approximately $130.00 in paper money as he got back into the car, and again stated that the man always had money on him. Defendant also stated that the man was carrying some cabbage. Finally, defendant told Thomas not to tell anyone and gave Thomas $20.00 of the money.

The State’s evidence further showed that on 22 June 1982, the victim, William H. Evans, was 77 years of age, lived with his great-granddaughter, Elaine Jones, at 612 East Harnett Street, behind the Dunn Chapel Church. Mr. Evans left the house at about 8 p.m. wearing a hat and a blue and white striped shirt. At about 9 p.m., Ms. Jones discovered Mr. Evans on his knees on the outside of their house. He was trying to get up onto the porch and was asking for help. The right side of his face was swollen, his jawbone was crushed and he was bleeding from the ears and nose. He was treated at the emergency room of the hospital and admitted on 23 June 1982, where he remained until his death on 18 July 1982. At or about 11:15 p.m., 22 June 1982, Mr. Evans’ hat, a torn part of his shirt, a receipt bearing his name, some cabbage, squash and blood were found in the alley beside Dunn Chapel Church. Ms. Jones testified further that between 22 June and 18 July 1982, the deceased received no injuries in addition to the ones he received 22 June.

Dr. John Mann was tendered and received as an expert in the field of general medicine. He testified that he examined and admitted Mr. Evans to the hospital on 23 June 1982. Mr. Evans remained hospitalized and Dr. Mann treated him from 23 June until his death on 18 July 1982. An examination of Mr. Evans on the 23rd revealed that the entire left side of his face was depressed from multiple facial bone fractures, that he had suffered a fractured nose, a bruised chest wall, abdominal pain and had poor respiratory effort. Dr. Mann further testified that he was knowledgeable concerning Mr. Evans’ pre-existing condition and that he [458]*458was of the opinion that Mr. Evans died as a result of the injuries he received on 22 June 1982.

Defendant offered evidence which tended to show that he had known the deceased for several years preceding 22 June 1982; that on 22 June 1982 he lived two blocks from 612 East Harnett Street where Ms. Jones and the deceased were living; and that he did not assault or rob the deceased and never saw the deceased on 22 June 1982. Defendant’s further evidence tended to show that the deceased had a long history of respiratory problems and that an autopsy was never performed on the body of the deceased to determine the cause of death.

Defendant assigns error to the court’s denial of his motions to dismiss at the close of the State’s evidence and at the close of all the evidence and denial of his motion to set aside the verdict as contrary to the weight of evidence.

Defendant argues that the evidence is insufficient to show that the person Cleveland Thomas testified that defendant assaulted was in fact William H. Evans or that the money Thomas testified that defendant was counting was taken from William H. Evans or that William H. Evans died as a result of any injuries received in the assault.

Defendant, by introducing evidence in his behalf, waived his right to argue on appeal the denial of his motion to dismiss made at the close of the State’s evidence. G.S. 15-173; State v. Hough, 299 N.C. 245, 262 S.E. 2d 268 (1980). Therefore, only his motion made at the close of all the evidence may be considered on appeal. State v. Mendez, 42 N.C. App. 141, 256 S.E. 2d 405 (1979). When ruling on a motion to dismiss, the question for the court is whether substantial evidence to support a reasonable inference of the defendant’s guilt has been introduced. In deciding this question, the trial court must consider the evidence in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom; contradictions and discrepancies are for the jury to resolve; and all of the evidence actually admitted, whether competent or incompetent, which is favorable to the State is considered by the court in ruling upon the motion. State v. Thomas, 52 N.C. App. 186, 278 S.E. 2d 535, cert. denied, 305 N.C. 591, 292 S.E. 2d 16 (1982).

[459]*459When the motion calls into question the sufficiency of circumstantial evidence, the question for the court is whether a reasonable inference of defendant’s guilt may be drawn from the circumstances. If so, it is for the jury to decide whether the facts, taken singly or together, satisfy them beyond a reasonable doubt that the defendant is guilty. State v. Mapp, 45 N.C. App. 574, 264 S.E. 2d 348 (1980).

When the evidence is viewed in the light most favorable to the State and when contradictions and discrepancies are left to the jury to resolve, State v. Thomas, supra, there is sufficient evidence to support a reasonable inference of defendant’s guilt of each offense. A jury could find that Mr. Evans was the individual defendant recognized, grabbed and dragged to a location beside the Dunn Chapel Church, where he was assaulted and from whom defendant took the money he was counting when he returned to the car. Further, the jury could find from the evidence presented that Mr. Evans died as a result of the injuries he sustained in that assault and robbery. Therefore, the court properly denied defendant’s motions to dismiss.

A motion to set aside the verdict as being contrary to the greater weight of the evidence is addressed to the discretion of the trial court and is not reviewable on appeal in the absence of abuse of that discretion. State v. Boykin, 298 N.C. 687, 259 S.E. 2d 883 (1979), cert. denied, 446 U.S. 911, 100 S.Ct. 1841, 64 L.Ed. 2d 264 (1980). Where there is sufficient evidence to support the verdict, the trial court acts within its discretion in denying defendant’s motion. Boykin, supra; State v. Leigh, 278 N.C. 243, 179 S.E. 2d 708 (1971). Here, the evidence is sufficient to support the jury’s verdict in each case. Consequently, the court properly denied defendant’s motion.

Defendant contends the trial court erred in allowing Dr. Mann to state his opinion as to the cause of Mr. Evans’ death. Defendant argues that there was an insufficient foundation for Dr. Mann’s opinion and a lack of competent evidence upon which to base that opinion.

Dr. Mann was tendered and received as an expert in the field of general medicine.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Styles
379 S.E.2d 255 (Court of Appeals of North Carolina, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
317 S.E.2d 70, 69 N.C. App. 455, 1984 N.C. App. LEXIS 3480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-nelson-ncctapp-1984.