State v. Buchanan, COA04-1089.
| Decision Date | 07 June 2005 |
| Docket Number | No. COA04-1089.,COA04-1089. |
| Citation | 613 S.E.2d 356 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Roy BUCHANAN, Defendant. |
Allen W. Boyer, Charlotte, for the defendant-appellant.
Recently, in Viar v. N.C. Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005),1 our Supreme Court admonished this Court to avoid applying Rule 2 of the Rules of Appellate Procedure even in instances where a party's "Rules violations did not impede comprehension of the issues on appeal or frustrate the appellate process." Defendant, recognizing that he has not preserved the grounds for his appeal from convictions of maintaining a dwelling to keep a controlled substance, manufacturing marijuana, and possession of drug paraphernalia, asks this Court to invoke Rule 2 to prevent a manifest injustice. Because we are constrained to follow the dictates of Viar, we must hold that Defendant's failure to comply with Rule 10(b) by failing to renew his Motion to Dismiss at the close of all evidence mandates a dismissal of this appeal.
Under Rule 10(b) of our Rules of Appellate Procedure as adopted by our Supreme Court:
In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party's request, objection or motion.
* * *
A defendant in a criminal case may not assign as error the insufficiency of the evidence to prove the crime charged unless he moves to dismiss the action, or for judgment as in case of nonsuit, at trial. If a defendant makes such a motion after the State has presented all its evidence and has rested its case and that motion is denied and the defendant then introduces evidence, his motion for dismissal or judgment in case of nonsuit made at the close of State's evidence is waived. Such a waiver precludes the defendant from urging the denial of such motion as a ground for appeal.
A defendant may make a motion to dismiss the action or judgment as in case of nonsuit at the conclusion of all the evidence, irrespective of whether he made an earlier such motion. If the motion at the close of all the evidence is denied, the defendant may urge as ground for appeal the denial of his motion made at the conclusion of all the evidence. However, if a defendant fails to move to dismiss the action or for judgment as in case of nonsuit at the close of all the evidence, he may not challenge on appeal the sufficiency of the evidence to prove the crime charged.
N.C. R.App. P. 10(b) (emphasis added); see also, e.g., State v. Richardson, 341 N.C. 658, 676-77, 462 S.E.2d 492, 504 (1995) )
Here, at the close of the State's evidence, defense counsel moved for a dismissal and directed verdict of acquittal based on the State's failure to make a prima facie showing. When asked by the trial court "Do you wish to be heard" on the motion, defense counsel stated "Nothing further, Judge." The motion was then denied. At the close of all evidence, the trial court expressly asked "Anything else for the defendant?" The response: "Nothing from the defendant, Your Honor." Thus, Defendant waived his motion to dismiss by presenting evidence after making such motion, and failing to make a motion to dismiss at the close of all evidence. Accordingly, Defendant is precluded from urging the denial of a motion to dismiss as the ground for his appeal.
Nonetheless, Defendant asks this Court to invoke Rule 2 of our Rules of Appellate Procedure to review this unpreserved issue. Rule 2 states:
To prevent manifest injustice to a party, or to expedite decision in the public interest, either court of the appellate division may, except as otherwise expressly provided by these rules, suspend or vary the requirements or provisions of any of these rules in a case pending before it upon application of a party or upon its own initiative, and may order proceedings in accordance with its directions.
N.C. R.App. P. 2. While we acknowledge that this Court and our Supreme Court have on many occasions invoked Rule 2 to allow a defendant access to our appellate process, two recent cases from our ...
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...though such violations neither impede our comprehension of the issues nor frustrate the appellate process." State v. Buchanan, 170 N.C.App. 692, 695, 613 S.E.2d 356, 357 (2005). In the case sub judice, plaintiff's violations are substantial. Specifically, plaintiff commits seven violations ......
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Jones v. Harrelson & Smith
...our comprehension of the issues nor frustrate the appellate process.'" Stann, 636 S.E.2d at 216 (quoting State v. Buchanan, 170 N.C.App. 692, 695, 613 S.E.2d 356, 357 (2005)). "[T]he lack of an . . . assignment of error addressed to the issue attempted to be raised is a fatal defect." State......
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