State v. Jackson, 74 N.C. App. 92

74 N.C. App. 92

N.C. Ct. App.

1985

EAGLES, Judge.

Defendant first assigns as error the trial court’s denial of his motions to dismiss the charge of assault with a deadly weapon upon a law enforcement officer. We find no error.

It is well settled that upon a motion to dismiss in a criminal action, all the evidence admitted, whether competent or incompetent, must be considered by the trial judge in the light most favorable to the State, giving the State the benefit of every reasonable inference that might be drawn therefrom. Any con *95 tradictions or discrepancies in the evidence are for the jury to resolve. State v. Witherspoon, 293 N.C. 321, 237 S.E. 2d 822 (1977). The trial court must decide whether there is substantial evidence of each element of the offense charged. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. State v. Smith, 300 N.C. 71, 265 S.E. 2d 164 (1980). See State v. Brown, 310 N.C. 563, 313 S.E. 2d 585 (1984).

All the evidence at trial came from witnesses for the State. The evidence tended to show that defendant intentionally drove his truck toward Sgt. Laeng and his patrol car while he was performing a duty of his office, attempting to arrest defendant for numerous traffic violations. Sgt. Laeng was forced to take evasive action to avoid being struck in a collision. We note that a motor vehicle may be a deadly weapon if used in a dangerous and reckless manner. State v. Coffey, 43 N.C. App. 541, 259 S.E. 2d 356 (1979). Viewed in the light most favorable to the State, there was sufficient evidence from which a jury could conclude that defendant assaulted Sgt. Laeng with a deadly weapon while Sgt. Laeng was performing a duty of his office. G.S. 14-34.2.

Defendant next assigns as error the admission into evidence of the out-of-court and in-court identification of defendant. We find no error.

The basis of defendant’s assignment of error is the trial court’s apparent summary ruling that identification testimony based on photographs and in-court testimony was admissible. The record does not disclose findings of fact or conclusions of law although the trial court, after ruling the evidence admissible, ordered the prosecutor to “draw an order, make the appropriate findings of fact [and] conclusions of law.”

Generally, when the admissibility of an in-court identification is challenged on the grounds that it is tainted by an out-of-court identification made under constitutionally impermissible circumstances, the trial court must make findings of fact to determine whether the testimony meets the test of admissibility. When the facts so found are supported by competent evidence, they are conclusive on appeal. State v. Tuggle, 284 N.C. 515, 201 S.E. 2d *96 884 (1974); State v. Plowden, 65 N.C. App. 408, 308 S.E. 2d 918 (1983).

Here, the evidence consisted only of the unrefuted testimony of State’s witnesses. The trial court allowed the identification testimony into evidence after voir dire, but findings of fact and conclusions of law as to the admissibility of the evidence do not appear of record. We note, however, that “[i]f there is no material conflict in the evidence on voir dire, it is not error to admit the challenged evidence without making specific findings of fact, although it is always the better practice to find all facts upon which the admissibility of the evidence depends. [Citations omitted.] In that event, the necessary findings are implied from the admission of the challenged evidence.” State v. Phillips, 300 N.C. 678, 268 S.E. 2d 452 (1980). Here, defendant produced no evidence to refute the State’s evidence and the State’s evidence justified admissibility. Accordingly, it was not error for the trial court to admit the challenged identification evidence.

In the trial of this case we find no error. We have carefully examined the record and find defendant’s remaining assignments of error to be without merit.

No error.

Judges Arnold and Parker concur.