State v. Rhyne

• Decision Date: 02 January 1979
• Docket Number: No. 789SC734,789SC734
• Citation: 39 N.C.App. 319,250 S.E.2d 102
• Parties: STATE of North Carolina v. Jane Cooper RHYNE.
• Court: North Carolina Court of Appeals

Page 102

250 S.E.2d 102

39 N.C.App. 319

STATE of North Carolina v. Jane Cooper RHYNE.

No. 789SC734.

Court of Appeals of North Carolina.

Jan. 2, 1979.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Thomas H. Davis, Jr., Raleigh, for the State.

J. Henry Banks, Henderson, for defendant-appellant.

MITCHELL, Judge.

The defendant first assigns as error the admission into evidence of a knife marked and identified as State's Exhibit 1. In support of this assignment, the defendant contends that the State's evidence failed to associate the knife with a crime charged. This assignment is without merit.

Generally, weapons may be admitted into evidence when testimony or other evidence tends to show that they were used in the commission of a crime. State v. Miller, 288 N.C. 582, 220 S.E.2d 326 (1975); State v. Simmons, 286 N.C. 681, 213 S.E.2d 280 (1975); State v. Patterson, 284 N.C. 190, 200 S.E.2d 16 (1973). The defendant's mother testified that a knife was used in the commission of the crimes charged and that State's Exhibit 1 could have been that knife. Martha Inscoe's father testified that he sold the knife identified as State's Exhibit 1 to the defendant on the date of the crimes charged. He later found the knife under a kitchen cabinet and turned it over to law enforcement authorities. The knife was examined by a forensic serologist employed by the State Bureau of Investigation. This examination revealed the presence of blood on the knife. Testimony was also admitted tending to show that holes in the clothes of the defendant's mother could have been caused by the knife. Any lack of certainty by the defendant's mother in identifying the knife went to the weight and credibility to be given the State's evidence rather than to its admissibility. State's Exhibit 1 was relevant evidence amply identified. State v. Cousins, 289 N.C. 540, 223 S.E.2d 338 (1976). The trial court correctly admitted the knife into evidence.

The defendant next assigns as error the denial of her motion for judgment as in the case of nonsuit made at the close of the State's evidence. After the denial of this motion, the defendant presented evidence in her own behalf. No additional motion was made by the defendant at the close of all of the evidence. When the defendant introduced evidence, she waived her prior motion for judgment as in the case of nonsuit. G.S. 15-173; State v. Fikes, 270 N.C. 780, 155 S.E.2d 277 (1967); State v. Howell, 261 N.C. 657, 135 S.E.2d 625 (1964). Therefore, the defendant has established no basis upon which to appeal the denial of her motion.

However, we note that, on appeal of these cases to this Court, the defendant could have asserted the insufficiency of all of the evidence without regard to whether a motion was made at trial. G.S. 15A-1227(d); G.S. 15A-1446(d)(5). Although the defendant did not properly assert her assignment of error with regard to the sufficiency of the evidence, we choose to review it ex mero motu.

The crime of conspiracy need not be proven through direct evidence, and only rarely will direct evidence of a conspiracy be available. State v. Bindyke, 288 N.C. 608, 220 S.E.2d 521 (1975); State v. Puryear, 30 N.C.App. 719, 228 S.E.2d 536, Appeal dismissed, 291 N.C. 325, 230 S.E.2d 678 (1976). Generally, a conspiracy is established by a number of indefinite acts, each of which, standing alone, might have little weight, but, taken collectively, they point unerringly to the existence of a conspiracy. . . . (T)he results accomplished, the divergence of those results from the course which would ordinarily be expected, the situation of the parties and their antecedent relations to each other, together with the surrounding circumstances, and the inferences legitimately deducible therefrom, furnish, in the absence of direct proof, and often in the teeth of positive testimony to the contrary, ample ground for concluding that a conspiracy exists.

State v. Whiteside, 204 N.C. 710, 712-13, 169 S.E. 711, 712 (1933) (citations omitted). When taken in the light most favorable to the State, we find the evidence introduced was sufficient to sustain the defendant's conviction for conspiracy.

There was also sufficient evidence from which the jury could determine that the defendant assaulted her sister with a lamp and figurines which were used as deadly weapons and that, at the time of the assault, the defendant intended to kill her sister. Whether the defendant inflicted "serious injury" by such an assault is not susceptible to answer by the application of a broad general rule. Instead, this issue must be resolved by looking to the peculiar facts of the case on appeal. State v. Jones, 258 N.C. 89, 128 S.E.2d 1 (1962). In the present case, a medical doctor testified that the defendant's sister suffered multiple cuts of the face, two lacerations on the back of the scalp, two or three small lacerations of the right hand and an injury to the base of the nose. We find this sufficient evidence from which the jury could determine that the defendant inflicted "serious injury" upon her sister. The State's evidence was sufficient to sustain both convictions of the defendant.

The defendant contends that the trial court erred in its charge to the jury by allowing the jury to find that a figurine was the deadly weapon used by the defendant to assault her sister, and not a lamp as alleged in the bill of indictment. During its charge, the trial court stated that, prior to returning a verdict of guilty on the assault charge, the jury must find that the State had proven that the defendant used a deadly weapon. The trial court further stated to the jury that either a figurine or a lamp could be a deadly weapon and that the jury must find that the defendant assaulted the victim with figurines And a lamp before returning a verdict of guilty. It is possible, therefore, that the jury based its verdict of guilty upon finding that one of the figurines was a deadly weapon but the lamp was not and that the victim was assaulted with both the figurines and the lamp. If this conclusion was reached by the jury, and for purposes of this appeal we must assume arguendo that it was, the conviction was based upon the use of a deadly weapon other than that described in the bill of indictment.

There was no defect in the bill of indictment itself, as it contained all of the information required by G.S. 15A-924. Nor was there a fatal variance between the...