State Ex Rel. Gilchrist v. Cogdill

327 S.E.2d 647 (1985)

STATE of North Carolina, on Relation of Peter GILCHRIST, District Attorney for the 26th Judicial District v. James Everett COGDILL.

No. 8426SC512.

Court of Appeals of North Carolina.

April 2, 1985.

*649 Paul L. Whitfield, P.A. by Paul L. Whitfield and Thomas H. Ainsworth, III, Charlotte, for plaintiff-appellee.

Keith M. Stroud, Charlotte, for defendant-appellant.

PARKER, Judge.

In his first assignment of error defendant contends that the trial court erred in denying his motion for a new trial after counsel for the State, in his opening statement, said defendant had been arrested or convicted of the crime of soliciting for prostitution. Under G.S. § 1A-1, Rule 59, a new trial may be granted for, among other reasons, "[a]ny irregularity by which any party was prevented from having a fair trial" and "[m]isconduct of the jury or prevailing party." A trial court's discretionary order, pursuant to Rule 59, for or against a new trial upon any ground may be reversed on appeal only when abuse of discretion is clearly shown. Worthington v. Bynum, 305 N.C. 478, 290 S.E.2d 599 (1982). Evidence of defendant's conviction is admissible at trial under G.S. § 19-3(b) which provides, in pertinent part:

[A]n admission or finding of guilt of any person under the criminal laws against lewdness, assignation, prostitution ... at any such place, is admissible for the purpose of proving the existence of said nuisance, and is evidence of such nuisance and of knowledge of, and of acquiescence and participation therein, on the part of the person charged with maintaining said nuisance.

We find no abuse of discretion; defendant's assignment of error is overruled.

In his second assignment of error defendant contends that the trial court erred in adopting the referee's report. Defendant argues that the referee's report did not specify what amounts of money were received from sale of books and magazines before entry of the preliminary injunction. Defendant, however, was present at the hearing and had the opportunity to offer evidence as to the amount of gross receipts from the sale of books and magazines. Moreover, defendant did not object to the report and note exceptions as provided in G.S. § 1A-1, Rule 53(g)(2). In the absence of exceptions to the factual findings of the referee, the findings are conclusive, and where no exceptions are filed the case is to be determined upon the referee's findings. State of North Carolina, on Relation of Peter Gilchrist v. Hurley, 48 N.C.App. 433, 269 S.E.2d 646 (1980), review denied, 301 N.C. 720, 274 S.E.2d 233 (1981). Defendant's assignment of error is overruled.

In his last assignment of error defendant contends that the trial court erred in allowing the clerk of superior court to read the pleadings and orders from a prior case to the jury. The pleadings and orders read to the jury consisted of an earlier nuisance action against defendant, in which he was perpetually enjoined from operating a nuisance at this same location, and the violation of which resulted in the case sub judice. Under G.S. § 19-3(b) the prior order was admissible for the purpose of proving the existence of the nuisance and defendant's knowledge, acquiescence and participation.

For the reasons stated, we find

No Error.

ARNOLD and WELLS, JJ., concur.