State v. McMillian

Annotate this Case

399 S.E.2d 410 (1991)

101 N.C. App. 425

STATE of North Carolina v. John A. McMILLIAN.

No. 9012SC340.

Court of Appeals of North Carolina.

January 15, 1991.

*411 Attorney General Lacy H. Thornburg by Associate Atty. Gen. Valerie B. Spalding, for the State.

James R. Parish, for defendant-appellant.

WELLS, Judge.

I. Rape and Attempted First-Degree Sex Offense Convictions

Defendant was convicted of two counts of first degree rape and one count of attempted first degree sex offense. In his appeal, defendant has abandoned his challenge to the sufficiency of the evidence to support these convictions.

Under a separate assignment of error, defendant has challenged the testimony of one of the State's witnesses. We find defendant's argument to be entirely without merit and overrule that assignment of error.

II. Indecent Liberties Conviction

The North Carolina Rules of Appellate Procedure, Rule 4(b) states the requirements for giving proper notice of appeal in criminal cases:

Content of Notice of Appeal. The notice of appeal required to be filed and served by subdivision (a)(2) of this rule shall . . . designate the judgment or order from which appeal is taken. . . .

Appellate review is solely upon the record on appeal and the record in criminal actions must include a copy of the verdict and the judgment. North Carolina Rules of Appellate Procedure, Rule 9(a)(3)(g). Defendant gave proper notice of appeal from the judgments entered in 88CRS20907-first degree rape, 88CRS20909-attempted first degree sexual offense and 88CRS20910-first degree rape.

Consistent with an indictment, the jury returned a verdict of guilty for the offense of taking indecent liberties with children in violation of N.C.Gen.Stat. ยง 14-202.1(a)(1). Defendant attempts to argue in his brief that this judgment was in error. However, defendant failed to include such judgment for this offense as part of the record on appeal. In giving his notice of appeal, defendant also failed to include such judgment in his appellate entries. Because defendant has not perfected his appeal as to his conviction of taking indecent liberties, this Court is without jurisdiction to hear this appeal. State v. Gilliam, 33 N.C.App. 490, 235 S.E.2d 421 (1977).

As to the convictions for rape and attempted sex offense,

No error.

As to the purported appeal from the conviction of indecent liberties,

Appeal dismissed.

COZORT and LEWIS, JJ., concur.