State v. Stone, 847SC337

• Decision Date: 02 April 1985
• Docket Number: No. 847SC337,847SC337
• Citation: 73 N.C.App. 691,327 S.E.2d 644
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Gregory Thomas STONE.

Page 644

327 S.E.2d 644

73 N.C.App. 691

STATE of North Carolina v. Gregory Thomas STONE.

No. 847SC337.

Court of Appeals of North Carolina.

April 2, 1985.

Atty. Gen. Rufus Edmisten by Special Deputy Attorney General Charles J. Murray, Raleigh, for the State.

C. Ray Joyner, Rocky Mount, for defendant-appellant.

JOHNSON, Judge.

Defendant's initial contention is that the trial court erred in excluding evidence of specific acts committed by the victim which would have shown that the victim had a propensity for danger and violence. This assignment is not supported by an exception duly taken at trial and therefore presents no question for appellate review. State v. Green, 280 N.C. 431, 185 S.E.2d 872 (1972); Rule 10, Rules of Appellate Procedure. Nevertheless, upon examination of the record, we find the exclusion of defendant's evidence proper.

Defendant contends the trial court excluded evidence that the victim, on prior occassions, had violently knocked holes in the walls of his bedroom and had violent arguments with his girlfriend who was the defendant's sister. In a criminal prosecution for homicide, if there is a proper showing that the accused may have acted in self-defense or some comparable justification, evidence of specific acts of violence committed by the victim is admissible. State v. Johnson, 270 N.C. 215, 154 S.E.2d 48 (1967); 1 Brandis, N.C. Evidence sec 106 (rev. ed. 2d). However, as a condition precedent to the admissibility of such evidence, the defendant must first present viable evidence of the necessity of self-defense. State v. Allmond, 27 N.C.App. 29, 217 S.E.2d 734 (1975). This logically extends to defense of others, which was defendant's justification in the case sub judice. At the time defendant sought to elicit the excluded evidence, he had introduced no evidence as to the defense of others. No evidence having been presented, the court did not err in sustaining the objections to the inquiries in question. See State v. Green, 62 N.C.App. 1, 301 S.E.2d 920, affirmed; modified on other ground, 309 N.C. 623, 308 S.E.2d 326 (1983).

Defendant's second contention cites as error the trial court's denial of his motion to dismiss the charge of second degree murder. On a motion to dismiss, the evidence is considered in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn therefrom. State v. Simmons, 57 N.C.App. 548, 550, 291 S.E.2d 815, 817 (1982). Contradictions and discrepancies are for the jury to resolve and do not warrant dismissal. State v. Gray, 56 N.C.App. 667, 672, 289 S.E.2d 894, 897, disc. rev. denied, 306 N.C. 388, 294 S.E.2d 214 (1982).

When considered in light of the foregoing principles, we hold the State's evidence was sufficient to withstand a motion to dismiss. The State's evidence tended to show that the defendant was awakened by screaming and shouting by his sister and the victim in another room. Defendant then searched for his pistol in his bedroom, but not finding the pistol took down a rifle from a gun rack in the den. Defendant entered the bedroom of his sister and the victim with the gun in his possession. There was evidence that the victim was not in possession of a weapon when the gun in the possession of the defendant went off and killed the victim. Upon being questioned about the series of events, defendant responded, "I shot...