State v. PattonAnnotate this Case
263 S.E.2d 796 (1980)
STATE of North Carolina v. Jessie Virgil PATTON.
Court of Appeals of North Carolina.
March 18, 1980.
*798 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Thomas G. Meacham, Jr., Raleigh, for the State.
Public Defender Peter L. Roda, Twenty-eighth Judicial Dist. by Asst. Public Defender Lawrence C. Stoker, Asheville, for defendant-appellant.
On appeal, defendant presents six assignments of error. We do not find error.
Defendant contends: "The court committed error in allowing the in-court identification of the defendant by the State's witness Mabel Ramsey."
Based upon competent evidence, the trial court found that the witness had ample opportunity to observe the person (defendant) at or about 4:00 a. m. on 19 December 1978 and that there was sufficient light to permit the witness to make an identification of the person (defendant) she observed. The trial court also found that there is nothing in the photographic identification procedures suggestive or conducive to mistaken identification and that the in-court identification is of independent origin based solely on what the witness saw at the time and does not result from any out-of-court confrontation. The evidence presented supports the findings of fact and conclusions drawn therefrom and are conclusive and binding upon appeal. State v. Tuggle, 284 N.C. 515, 201 S.E.2d 884 (1974); State v. Morris, 279 N.C. 477, 183 S.E.2d 634 (1971); State v. Stephens, 35 N.C.App. 335, 241 S.E.2d 382 (1978). This assignment of error is without merit.
Defendant next contends that the trial court erred by allowing the State to introduce photographs into evidence which had been altered since the voir dire hearing. The trial court found,"1. That most of the photographs contain an identification number on the chest or lower portion of each subject's body. 2. That the prosecuting witness did not use such identification numbers to identify either the Defendant or the Exhibit itself. 3. That the Defendant does not contend that the photographs were not a true likeness of the Defendant."
and concluded the following:"BASED UPON THE FOREGOING FINDINGS OF FACT the Court concludes as a matter of law that the numbers on the photographs have been obliterated for the reason that they contain identification numbers, including a photograph of a change [sic] board or something of this nature around the persons depicted in the photographs body, and that the obliteration of these identification numbers could in no way prejudice the Defendant; and that the alteration of the photographs is not of sufficient character to justify their exclusion from this trial. BASED UPON THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS the objection of the Defendant to the admissibility of the photographic albums is overruled."
We do not find a distinction in the case sub judice from State v. Hatcher, 277 N.C. 380, 177 S.E.2d 892 (1970), wherein our Supreme Court, when faced with a similar situation, held that the photograph, with inscription and date deleted, was properly admitted for illustrative purposes on the question of identity. We find no error.
Next, defendant contends that the court committed error in allowing into evidence a photographic reconstruction of the alleged crime. The record shows that State Exhibits Nos. 6, 7, and 8 were introduced into evidence without objection. Defendant did object to the introduction of State Exhibit No. 9. This picture shows a man standing in the door facing Mrs. Ramsey with a top of a chair showing in the lounge of the rest home. The picture was admitted into evidence followed by appropriate instructions from the court that the picture *799 was not substantive evidence and that it was to be considered for the limited purpose of illustrating the testimony. Mrs. Ramsey testified that she was present when the picture was made by Mr. Smith of the Asheville Police Department and that she was standing where she was "standing at the time I have been testifying to.""Q. Mr. Smith I believe you said was standing at the door, is that correct? A. In thepartly in the hallway. Just a little in the door, just like the Defendant was."
"A witness may use a photograph to illustrate his testimony and make it more intelligible to the court and jury." State v. Lentz, 270 N.C. 122, 125, 153 S.E.2d 864, 867 (1967), cert. denied, 389 U.S. 866, 88 S. Ct. 133, 19 L. Ed. 2d 139 (1967). The record does not reveal whether or not State Exhibit No. 9 was shown to the jury after it was admitted into evidence during the course of the trial.
To warrant a new trial, defendant must show the ruling complained of was material and prejudicial to his rights, State v. Jones, 278 N.C. 259, 179 S.E.2d 433 (1971), and that a different result would likely have ensued. State v. Sanders, 276 N.C. 598, 174 S.E.2d 487 (1970), reversed on other grounds, 403 U.S. 948, 91 S. Ct. 2290, 29 L. Ed. 2d 680 (1971). Defendant has not shown prejudicial error.
We do not find any error in the charge of the court in failing to instruct the jury on the lesser included offense of assault with intent to commit rape. It is the duty of the trial court in instructing the jury to "declare and explain the law arising on the evidence." G.S. 15A-1232; State v. Hopper, 292 N.C. 580, 234 S.E.2d 580 (1977). It is also well settled in this State that the trial court is not required to submit lesser included offenses to the jury unless there is evidence before the jury to support them. State v. Williams, 275 N.C. 77, 165 S.E.2d 481 (1969); 4 Strong's N.C. Index 3d, Criminal Law, § 115, pp. 610-11. The prosecutrix testified that defendant "proceeded to rape me. His private parts entered my private parts." Defendant's evidence was that he was not present at the rest home. There was not any evidence to support an instruction on the lesser offense.
A pretrial court order provided "that. . . defendant . . . subject his person to further identification procedures, namely submission of his head hair, pubic hair, blood, saliva, fingernail scrapings. . ." Defendant contends that his attorney had a right to argue that had the results of the order been positive, then the results would have been presented to the jury. The order was a part of the record in the case, although it was not introduced into evidence. This argument was not allowed.
"The general rule is that counsel may argue all the evidence to the jury, with such inferences as may be drawn therefrom; but he may not `travel outside of the record' and inject into his argument facts of his own knowledge or other facts not included in the evidence." (Citations omitted.) Crutcher v. Noel, 284 N.C. 568, 572, 201 S.E.2d 855, 857 (1974). In the instant case, neither the court order nor the results argued by counsel were introduced into evidence at trial and therefore, were not proper subjects of argument. Thus, this case is distinguishable from State v. Williams, 295 N.C. 655, 249 S.E.2d 709 (1978), where the court order had been introduced into evidence. We find no error.
Defendant has not shown prejudicial error in his trial, and we find
ROBERT M. MARTIN and WELLS, JJ., concur.