State v. Lewis

• Decision Date: 20 July 1982
• Docket Number: No. 8124SC987,8124SC987
• Citation: 293 S.E.2d 638,58 N.C.App. 348
• Parties: STATE of North Carolina v. Neil Stanley LEWIS.
• Court: North Carolina Court of Appeals

Page 638

293 S.E.2d 638

58 N.C.App. 348

STATE of North Carolina v. Neil Stanley LEWIS.

No. 8124SC987.

Court of Appeals of North Carolina.

July 20, 1982.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Grayson G. Kelley, Raleigh, for the State.

Snyder, Leonard, Biggers & Dodd by Keith S. Snyder and William T. Biggers, Asheville, for defendant-appellant.

MORRIS, Chief Judge.

Defendant argues, by his first assignment of error, that the court erred by admitting into evidence a television news film and two human skulls. He contends that the evidence was not authenticated, and that it was irrelevant and inflammatory in light of the fact that the disturbance of the graves was stipulated.

The trial judge instructed the jury that the film was "offered and admitted for the sole purpose of illustrating or explaining the testimony of this or other witnesses who may appear before you .... It may not be considered by you for any other purpose." Sheriff E. Y. Ponder testified that he went to the cemetery on 19 June. The film was then shown over defense counsel's objection on the grounds of relevancy. When asked if the film accurately portrayed what he found at the cemetery, Sheriff Ponder replied in the affirmative. "Photographs are admissible in this State to illustrate the testimony of a witness, and their admission for that purpose under proper limiting instructions is not error." State v. Crowder, 285 N.C. 42, 49, 203 S.E.2d 38, 43 (1974). Motion pictures are admissible under the rules applicable to still photographs. State v. Strickland, 276 N.C 253, 173 S.E.2d 129 (1970). We hold that the sheriff sufficiently authenticated the film as an accurate portrayal of conditions he observed at the scene of the crime, and that it was properly admitted to illustrate the sheriff's testimony. See State v. Thomas, 294 N.C. 105, 240 S.E.2d 426 (1978). The sheriff further stated that he found two or three "heads" or skulls to be missing from bodies, and indicated that they were, at the time of trial, in the custody of Dr. Page Hudson, Chief Medical Examiner. Dr. Hudson testified that the skulls were in his possession, Sheriff Ponder having delivered them to him on 6 December. The skulls were then offered into evidence, again over defense counsel's objection. With regard to real evidence, "the trial judge possesses and must exercise a sound discretion in determining the standard of certainty required to show that the object offered is the same as the object involved in the incident giving rise to the trial and that the object is in an unchanged condition." State v. Harbison, 293 N.C. 474, 484, 238 S.E.2d 449, 454 (1977). We are not inclined to disturb the judge's ruling of admissibility in the case at bar. We must also reject defendant's contention that the admission of the film and skulls was inflammatory and the evidence irrelevant in light of the fact that the disturbance of the graves was stipulated. The stipulation that the graves had been disturbed did not preclude the state's introduction of this evidence. State v. Cutshall, 278 N.C. 334, 180 S.E.2d 745 (1971).

Defendant argues by his second assignment that the court erred by denying his motion for acquittal on all counts, maintaining that the state failed to meet its burden of proof. It is the court's duty in ruling upon such a motion, to consider all of the evidence in the light most favorable to the state and to determine if there is sufficient evidence to submit the case to the jury. State v. Price, 280 N.C. 154, 184 S.E.2d 866 (1971). The motion is properly denied if there is any substantial evidence of the offense charged. State v. Cooper, 275 N.C. 283, 167 S.E.2d 266 (1969). Defendant was charged with being an accessory before and after the fact to the crime of disturbing a grave. The testimony of Sams and Aikens that defendant encouraged them to commit the crime; told them he would melt down and dispose of any gold they could thieve; advised them what implements to take to the graveyard; helped Aikens and Sams, at his own home, remove gold from teeth taken from the bodies, and denied to the sheriff knowing anything about the robbery; was clearly sufficient to allow the jury to find that defendant knew of the crime and rendered the principals assistance in escaping detection, arrest, and punishment. We note, in response to defendant's argument that he feared for his life and did not intend to give advantage to the perpetrators, that the jury was charged that if it found that defendant feared for his life if he disclosed information about the crime, and for that reason reasonably failed to divulge the information, that he should be found not guilty.

Defendant next contends that the trial court erred in omitting Louis Bollo's name from a portion of its instructions to the jury. We find any such error to be nonprejudicial. Defendant was charged with being an accessory to a crime committed by three other named men. In its charge, the court named only two of the men identified in the indictments, obviously because there was no evidence linking Bollo and defendant. "If an averment in an indictment is not necessary in charging the offense, it may be disregarded." State v. Dixon, 8 N.C.App. 37, 39, 173 S.E.2d 540, 541 (1970). The evidence otherwise supports the finding that defendant was an accessory to crimes committed by Aikens and Sams, so Bollo's name may be considered surplusage and its omission from the...