State v. Norris

Dec 6, 1983

No. 8313SC352

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Before:: Hill

HILL, Judge.

In this appeal defendant’s numerous assignments of error relate primarily to denial of his motion for directed verdict, denial of his motions fоr a change of venue and a sequestered voir dire of jurors, suppression of pre-trial identification, and the sentencing phasе of his trial. We find the assignments to be without merit and find no error in defendant’s trial.

The defendant assigns as error the trial court’s denial of his motion for directed verdict made at the close of the State’s evidence and renewed at the close of all the evidence. The dеfendant contends the evidence was insufficient as a matter of law to sustain his first degree burglary conviction. We disagree.

To support a verdict of guilty of first degree burglary, evidence must exist from which a jury could find that defendant broke and entered a dwelling ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍house at nighttime, with the intеnt to commit a felony therein. State v. Wells, 290 N.C. 485, 226 S.E. 2d 325 (1976); State v. Rushing, 61 N.C. App. 62, 300 S.E. 2d 445 (1983). The intent to commit a felony must exist at the time of entry, but it is not necessary that defendant retain that intent throughout the intrusion. State v. Wilson, 293 N.C. 47, 235 S.E. 2d 219 (1977); State v. Rushing, supra. The State chose to indict the defendant for breaking and entering with the intent to commit rape. Therefore, the State became obligated to furnish sufficient evidence of the specific felonious intent to commit rape, as alleged, ie., that at the time dеfendant entered the house of the prosecutrix, he intended to have sexual intercourse with the prosecutrix by force and against her will. State v. Dawkins, 305 N.C. 289, 287 S.E. 2d 885 (1982); State v. Rushing, supra; see G.S. 14-27.2; see also G.S. 14-27.3.

The State’s evidence was sufficient to permit a rational trier of fact to conclude that the defendant broke into the hоuse of the prosecutrix with ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the intent to commit the felony of rape therein. The evidence relevant to the element of intent accrues from the testimony of the prosecutrix:

I started to close the door and the man pushed the door open, came in, stаrted kissing me and pushing me toward the bedroom. He got me on the floor and began feeling my breasts. My son awoke and started crying. He told me if I didn’t wаnt my son hurt, to do as he said. He asked me if anyone else was in the house. Then he grabbed me in one arm and Nicholas [the child] in the other and started walking back through the house. I escaped and ran to the neighbor’s house.

This testimony concerning defendant’s acts bespeaks a nonconsen-sual sexual purpose and an intended forcible sexual gratification. Therefore, the State has provided а sufficient foundation to permit a trier of fact to infer that defendant intended to commit rape once he broke into the housе. This assignment of error is overruled.

Defendant also assigns as error the trial court’s denial of his motions for a change of venue and a sequestered voir dire of jurors. These motions were based on the grounds that inflammatory publicity from the news media would prevent a fair trial and that inquiry concerning specific newspaper articles could not be accomplished without making all jurors aware of prejudicial material, thereby rendering it impossible to select a fair and impartial jury.

Defendant supports his motion by attaching five newspaper articles appearing in various newspapers before the time of defendant’s trial. These newspaper accounts were mostly factual accounts of the evidence ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍uncovered by investigating law enforcement officials and appеar to be no more inflammatory or prejudicial than any coverage likely to be found in any jurisdiction to which the trial might be moved. See State v. Parton, 303 N.C. 55, 277 S.E. 2d 410 (1981); State v. Harrill, 289 N.C. 186, 221 S.E. 2d 325, death sentence vacated, 428 U.S. 904, 96 S.Ct. 3212, 49 L.Ed. 2d 1211 (1976). In addition, since defendant failed to include in the record the voir dire examination of the jury, the record does not reveal that the defendant exhausted his peremptory challenges, that he had to accept an objectionable juror, or that any juror was made aware of prejudicial material. Under these circumstances, neither abuse of discretion nor prejudice has been shown. Mоtions for change of venue and the allowance of individual voir dire and sequestration of jurors are vested in the sound discretion of thе trial judge and, absent abuse of discretion, his ruling will not be disturbed on appeal. State v. Johnson, 298 N.C. 355, 259 S.E. 2d 752 (1979); State v. Brower, 289 N.C. 644, 224 S.E. 2d 551 (1976). This assignment of error is overruled.

Defendant’s next assignment of error relates to the trial court’s ruling on his motion to suppress the pre-trial identification of defendant by the prosecutrix. The voir dire testimony of the prosecutrix reveals that she identified the defendant by choosing his picture from photographic line-ups shown her on 16 May 1982 and 17 May 1982. Defendant contends thаt the photographic lineups were constitutionally remiss because the defendant was the only person included in the second line-up who was also included in the first line-up. Following the hearing the trial court entered findings of fact and conclusions of law and denied the mоtion. Applying the standard of setting aside a conviction only if the photographic identification procedure was so impermissibly suggеstive as to give rise to a very substantial likelihood of irreparable misidentification to the case under review, we find that the denial of defendant’s motion was proper. Simmons v. United States, 390 U.S. 377, 19 L.Ed. 2d 1247, 88 S.Ct. 967 (1968); State v. Billups, 301 N.C. 607, 272 S.E. 2d 842 (1981).

The trial court’s findings of fact recite that there was sufficient lighting in the house to enable the prosecutrix to observe the facial features of her assailant for a period of approximately five minutes, and that the in-court ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍idеntification of the defendant by the prosecutrix was based solely on her observations on the morning of the intrusion. The trial court’s findings of fact are supported by the evidence and are therefore binding on appeal. State v. Tuggle, 284 N.C. 515, 201 S.E. 2d 884 (1973); State v. Walker, 54 N.C. App. 652, 284 S.E. 2d 155 (1981). Based on the trial court’s findings of fact the trial сourt properly concluded that the out-of-court identification of defendant did not reveal unnecessarily suggestive procedures conducive to mistaken identification and that the in-court identification of defendant was of independent origin. This assignment of error is overruled.

Defendant’s final assignment of error addresses the trial court’s reliance on defendant’s prior criminal record as an aggravating factor during sentencing. Defendant contends the trial court’s failure to make a finding concerning whether defendant was indigent at the prior proceeding, and if so, whether he was represented by counsel was error. We disagree. Defendant stipulated to his criminal record, but the record is silent concerning indigency or representation by counsel at any of his prior trials. Pursuant to G.S. 15A-1340.4(e), the initial burden оf raising the issue of indigency and lack of assistance of counsel on a prior conviction is on the defendant. State v. Thompson, 309 N.C. 421, 307 S.E. 2d 156 (1983). Defendant has failеd to satisfy this burden; thus, this assignment of error is overruled.

We have carefully examined defendant’s other contentions and we find no basis for ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍reversal. Defendant Norris received a fair trial, free of prejudicial error.

No error.

Judges Arnold and Braswell concur.