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North Carolina v. Evans

Filed: October 3, 1979.

STATE OF NORTH CAROLINA
v.
JAMES EARL EVANS



Appeal by defendant from judgments of Rouse, J., entered at the 4 December 1978 Criminal Session of Pitt Superior Court.

Britt, Justice. Justice Brock took no part in the consideration or decision of this case.

Britt

By his first assignment of error defendant contends the trial court expressed an opinion on the evidence in violation of G.S. 15A-1232 (formerly G.S. 1-180). There is no merit in this assignment.

This contention relates to the testimony given by S.B.I. Agent Glenn Bozarth and Identification Officer Pat Bundy, Jr., of the Greenville Police Department. Mr. Bozarth testified that state's exhibits 9 and 10 were cards bearing latent fingerprints which he lifted from impressions on the windowsill of the kitchen in question; and that exhibits 11 and 12 were cards bearing latent fingerprints which he lifted from a bottle of perfume in said kitchen. Thereafter the trial judge asked the witness if exhibits 9, 10, 11 and 12 were true and accurate representations of the print impressions "as you observed them and found them in the top inside

of the kitchen windowsill and [on] the bottle of Chantilly perfume". The witness gave an affirmative answer to the question.

Mr. Bundy testified that state's exhibit 4 had on it the inked impressions of the fingers and palms of defendant which he (Mr. Bundy) had taken. Thereafter, the court asked the witness if "the fingerprint and palm print impressions which appear on State's #4 truly and accurately portray the fingerprint and palm print impressions of the defendant in this case." The witness answered in the affirmative.

"It is elementary that it is error for the trial judge to express or imply, in the presence of the jury, any opinion as to the guilt or innocence of the defendant, or as to any other fact to be determined by the jury, or as to the credibility of any witness. It is immaterial how such opinion is expressed or implied, whether in the charge of the court, in the examination of a witness, in the rulings upon objections to evidence or in any other manner. . . . (Citations.)" State v. Freeman, 280 N.C. 622, 626-27, 187 S.E.2d 59 (1972). However, it is also clear that the trial judge may direct questions to a witness for the purpose of clarifying his testimony and promoting a better understanding of it. State v. Freeman, supra; State v. Colson, 274 N.C. 295, 163 S.E.2d 376 (1968), cert. denied, 393 U.S. 1087 (1969).

While it would have been more appropriate for the district attorney to have asked the questions complained of here, we hold that the trial judge did not err in asking them under the circumstances of this case. The questions were appropriate to clarify the testimony of the witnesses and to promote a better understanding of the testimony.

In the other two assignments of error argued in his brief, defendant contends that the trial court erred (1) in denying his motions for nonsuit and (2) in submitting assault on a female as an alternative verdict in the assault case. These contentions have no merit.

Burglary in the first degree is the breaking and entering during the nighttime of an occupied dwelling or sleeping apartment with intent to commit a felony therein. State v. Bell, 285 N.C. 746, 208 S.E.2d 506 (1974); G.S. 14-51. The evidence presented in this case and reviewed above was sufficient to prove every element of the offense of burglary in the first degree.

With respect to the assault charge, defendant argues that while the jury in effect found him not guilty of assault with intent to commit rape, it found him guilty of assault on a female; that one of the elements of assault on a female is that the offender be a male person more than 18 ...


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