21 N.C. App. 188 | N.C. Ct. App. | 1974
Defendant assigns error to the denial of his motion for continuance based upon the unavailability of the witness Mary Helen Allen. This Court has held continually that such a motion may be granted or denied in the sound discretion of the trial court. State v. Willis, 20 N.C. App. 365, 201 S.E. 2d 588 (1974); State v. Howes, 19 N.C. App. 155, 198 S.E. 2d 86 (1973); State v. Fountain, 14 N.C. App. 82, 187 S.E. 2d 493 (1972). Counsel for defendant concedes that he was aware of the contents of the conversations between defendant and Mary Helen Allen at the time of his conference with defendant in mid June 1973. He filed a written motion for disclosure of identity on 31 August 1973, which was allowed by the court. The case was continued from 10 September to 13 September at defendant’s instance in order that he be able to locate said witness. On 13 September, defendant’s motion for a further continuance was denied, with the court finding that Mary Helen Allen had been served with a subpoena but had failed to appear. Defendant has shown neither prejudice nor abuse of discretion.
Defendant assigns error to the trial court’s sustaining State’s objection to questions pertaining to the conception and planning of the crime. Although he lists this purported assignment of error as a question presented, defendant fails to offer argument or authority in support of this position, and the assignment is deemed abandoned. Rule 28, Rules of Practice in the Court of Appeals. For the same reason, defendant is deemed to have abandoned his assignment of error to the sustaining of the State’s objections to questions regarding whether the
There is no error in the court’s denying defendant’s motion to suppress the currency seized during the search for the marijuana.
“It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” Harris v. U.S., 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed. 2d 1067 (1968).
Since defendant concedes that the search was legal as to the marijuana, the only question presented is whether the currency was in plain view of the officers. The findings of the court previously referred to are based upon competent evidence on voir dire — although there is evidence to the contrary — and the findings of fact support the conclusion of the court that the currency was in plain view. Findings of fact made on voir dire will not be disturbed when based upon competent evidence, even though there is contrary evidence. State v. Brooks, 225 N.C. 662, 36 S.E. 2d 238 (1945).
Defendant assigns error to the denial of his motion for nonsuit made at the close of State’s evidence. Since defendant presented evidence, his assignment of error presents for review the sufficiency of the evidence on the entire record to go to the jury. State v. McWilliams, 277 N.C. 680, 178 S.E. 2d 476 (1971). The evidence considered in the light most favorable to the State, giving the State the benefit of all reasonable inferences, and resolving all doubts in favor of the State is ample to establish defendant’s guilt. State v. McNeil, 280 N.C. 159, 185 S.E. 2d 156 (1971). The nonsuit was properly denied.
In his final assignment of error, defendant contends that he is entitled to have the law of entrapment applied to the evidence. This contention is untenable in light of the testimony. The trial court in a criminal case must not only properly instruct the jury on the law of a particular defense, but it must also apply the law to defendant’s evidence. State v. Lovedahl, 2 N.C. App. 513, 163 S.E. 2d 413 (1968). Defendant is correct in his position that the court’s instructions are devoid of testimony concerning entrapment. However, defendant has in fact presented no testimony before the jury on which such a
No error.