State v. O'Neal, 8416SC1311

• Decision Date: 05 November 1985
• Docket Number: No. 8416SC1311,8416SC1311
• Citation: 335 S.E.2d 920,77 N.C.App. 600
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Edward James O'NEAL.

Page 920

335 S.E.2d 920

77 N.C.App. 600

STATE of North Carolina v. Edward James O'NEAL.

No. 8416SC1311.

Court of Appeals of North Carolina.

Nov. 5, 1985.

Atty. Gen. Lacy Thornburg by Sp. Deputy Atty. Gen. James C. Gulick, Raleigh, for the State.

William B. Crumpler, Raleigh, for defendant-appellant.

JOHNSON, Judge.

At trial defendant waived his right to counsel and proceeded pro se. Evidence for the State tended to show the following:

Carolyn Emmanuel was employed as Health Director of the Lumbee Medical Center in Pembroke, North Carolina. Ms. Emmanuel and defendant had a dating relationship from 1976 until January 1982 when the relationship took a turn for the worse, leading to arguments that involved some profane and threatening language by defendant. On 11 October 1983, someone broke a window at the Lumbee Medical Center and placed a smoke grenade on the inside window sill of Ms. Emmanuel's office. The smoke grenade caused extensive smoke damage and charred the window sill. Blood of the same type as defendant's blood was found on the glass broken from the window. Evidence further tended to show defendant suffered cuts on his hand on or about 11 October 1983. On 24 October 1983, another window at the Center was broken and a smoke grenade was found in a chair in the waiting room. The seat of the chair was burned and considerable smoke damage was done. Again, on 4 November 1983, another window in Ms. Emmanuel's office was broken and a smoke grenade was found on the floor about one foot from the window. A five to eight inch hole was burned in the carpet and again considerable smoke damage incurred. A smoke grenade was also tossed in Ms. Emmanuel's driveway around this same time period. Each time a smoke grenade was found in the Center, defendant called Ms. Emmanuel at the Center while the damage was being cleaned to ask her how things were going.

In December 1983, defendant was observed cutting the tires on Ms. Emmanuel's vehicle while it was parked at the Center. On 8 December 1983, when defendant was arrested a smoke grenade was found near defendant in the vehicle he was occupying. In late December 1983, when Ms. Emmanuel confronted defendant about the various incidents of property damage, defendant stated, "Hey, you know I did this stuff." Defendant also told her that he was the one who vandalized her automobile and apartment in 1981.

The State's evidence further tended to show that defendant was extremely familiar with smoke grenades, having used them extensively during his twenty and one half years in the military; that although the smoke grenade produces extreme heat it is not a true pyrotechnic in that it is not a flame producing device, nor used for incendiary purposes.

Defendant's evidence tended to show that he was at home or visiting friends when the incidents were alleged to have occurred; he had no involvement in the acts; he cut his hand while working on a car; that the smoke grenade found in the car when he was arrested belonged to his brother; and that he told Ms. Emmanuel that he committed the acts so she would leave him alone.

By this appeal defendant seeks to challenge the sufficiency of the evidence used to prove the crimes charged. In order for a defendant to challenge on appeal the sufficiency of the evidence, the defendant must comply with the requirements of Rule 10(b)(3) of the Rules of Appellate Procedure, which provides in pertinent part that:

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.

Defendant concedes that he failed to preserve any assignments of error for review pursuant to the requirements of Rule 10(b). However, defendant contends he may challenge the sufficiency of the evidence under the provisions of G.S. 15A-1227(d) and G.S. 15A-1446(d)(5). G.S. 15A-1227(d) provides in pertinent part that "[t]he sufficiency of all evidence introduced in a criminal case is reviewable on appeal without regard to whether a motion has been made during trial." G.S. 15A-1446(d)(5) states in pertinent part that errors based upon the ground that the evidence was insufficient as a matter of law may be the subject of appellate review even though no objection, exception or motion has been made in the trial division. We hold that our review in this case is expressly limited by the Rules of Appellate Procedure.

The North Carolina Constitution grants our Supreme Court the exclusive authority to make rules of practice and procedure for the Appellate Division. N.C. Const. Art. IV, sec. 13(2). Pursuant to said constitutional authority our Supreme Court promulgated the Appellate Rules of Procedure. See State v. Elam, 302 N.C. 157, 273 S.E.2d 661 (1981).

Where there have been conflicts between subsections of G.S. 15A-1446 and Rule 10, the North Carolina Supreme Court has unequivocably stated that the Rules of Appellate Procedure should control. Elam, supra, at 160, 273 S.E.2d at 664. In Elam, the Court upheld this Court's refusal to review defendant's assignments of error raised pursuant to G.S. 15A-1446(d)(6), because "[t]he General Assembly was without authority to enact G.S. 15A-1446(d)(6). It violates our Constitution." Id. Consistent with our position upheld by the Supreme Court in Elam, we decline in this case to review the sufficiency of the evidence pursuant to G.S. 15A-1227(d) and 15A-1446(d)(5) as urged by defendant. However, we have chosen to consider the appeal on its merits pursuant to Rule 2 of the Rules of Appellate Procedure.

In judging the sufficiency of the evidence in a criminal case the test is whether considering the evidence in the light most favorable to the State, there is substantial evidence of all material elements of the offense from which a jury might reasonably find defendant guilty beyond a reasonable doubt. State v. Locklear, 304 N.C. 534, 284 S.E.2d 500 (1981).

Defendant argues that the evidence is insufficient (1) to identify him as the perpetrator of the offenses charged, (2) to establish a breaking or entering as a matter of law, and (3) to show an intent to burn the building.

Evidence which merely discloses motive and opportunity for defendant to have committed the offense charged is insufficient to take to the jury the question of the defendant's identity as the perpetrator of the crime charged. State v. Jones, 215 N.C. 660, 2 S.E.2d 867 (1939). However, evidence of motive and an opportunity, together with other incriminating circumstances, may be sufficient to take the case to the jury, although each single circumstance, when standing alone, is insufficient. State v. Moses, 207 N.C. 139, 176 S.E. 267 (1934); State v. Smith, 34 N.C.App. 671, 239 S.E.2d 610 (1977), dis. rev. denied, 294 N.C. 186, 241 S.E.2d 73 (1978).

In the case sub judice, the following evidence taken as a whole is sufficient to establish defendant's identity as the perpetrator of the crimes charged: Defendant's long relationship with Ms. Emmanuel had turned for the worse, leading to arguments that involved profane and threatening language by defendant; defendant lived in the general area; defendant was very familiar with the...