State v. Cheek

Annotate this Case

229 S.E.2d 227 (1976)

STATE of North Carolina v. Walter CHEEK.

No. 7619SC388.

Court of Appeals of North Carolina.

November 3, 1976.

*228 Atty. Gen. Rufus L. Edmisten, by Associate Atty. Alan S. Hirsch, Raleigh, for the State.

Bell & Ogburn, P. A., by Deane F. Bell and William H. Heafner, Asheboro, for defendant-appellant.

MORRIS, Judge.

Defendant assigns as error the court's allowing into evidence, over defendant's objections, testimony with respect to prior assaults on prosecuting witness Betty Jordan by defendant. This testimony, of course, is relative to the assault charge as to which defendant was found guilty and the court continued prayer for judgment. In State v. Bryant, 23 N.C.App. 373, 374, 208 S.E.2d 723 (1974), Judge Britt, speaking for the Court, said: "It is well established that a `prayer for judgment continued' is not a final judgment, therefore, it is not appealable." However, the rule is different where conditions are imposed upon the continuation of the entry of judgment.

"When the prayer for judgment is continued there is no judgmentonly a motion or prayer by the prosecuting officer for judgment. And when the court enters an order continuing the prayer for judgment and at the same time imposes conditions amounting to punishment (fine or imprisonment) the order is in the nature of a final judgment, from which the defendant may appeal. Punishment having been once inflicted, the court has exhausted its power and cannot thereafter impose additional punishment." State v. Griffin, 246 N.C. 680, 683, 100 S.E.2d 49, 51 (1957).

We cannot say that the conditions imposed here amounted to punishment. Certainly no fine or term of imprisonment was imposed. Defendant was required to refrain from attempting to escape and to refrain from breaking any state or federal law. These are requirements to obey the law, an obligation which he already had as a citizen. Therefore, it appears that the judgment entered on the guilty verdict as to the assault charge is not appealable, and the question raised by defendant is not before us. However, if it were, we would, upon the clear law in this State, find no error in the court's rulings.

*229 Defendant's only valid assignment of error is to the failure of the trial court to grant his motion to dismiss at the close of State's evidence. In ruling upon such a motion in a criminal prosecution, the trial court is required to consider the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn therefrom. State v. Caron, 288 N.C. 467, 219 S.E.2d 68 (1975); State v. Widemon, 26 N.C.App. 245, 215 S.E.2d 826 (1975); 2 Strong, N.C. Index 2d, Criminal Law, ยง 104, pp. 648-49 and cases cited therein. The evidence, taken in the light most favorable to the State, tends to show that defendant threatened to kill both Jordan, whom he had previously assaulted, and Patterson; that immediately thereafter Patterson also pulled a gun and an exchange of gunfire ensued; that defendant fired first, the bullet striking beneath Jordan's right foot; that a total of eight shots were fired; and that Patterson was found thereafter suffering from severe gunshot wounds. Both parties stipulated that death was a result of gunshot wounds. Defendant argues that his motion should have been granted because there was no direct evidence that defendant's shots were those which caused Patterson's death and because there was an absence of blood within 100 yards of the scene of the shooting. Defendant suggests that another person intervened between the time Patterson was first shot and the time of death. However, the possibility of such an intervening factor is a matter for the determination of the jury and is irrelevant to the issue before the court on a motion to dismiss as in nonsuit. "Regardless of whether the evidence is direct, circumstantial, or both, if there is evidence from which the jury could find that the offense charged has been committed and that defendant committed it, the motion to nonsuit should be overruled." State v. Caron, supra, 288 N.C. at 469, 219 S.E.2d at 69. The evidence was sufficient to overcome defendant's motion.

No error.

HEDRICK and ARNOLD, JJ., concur.