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North Carolina v. Earnhardt

Filed: April 20, 1982.

STATE OF NORTH CAROLINA
v.
VICKIE ANN EARNHARDT AND WILLIAM CARL KELLER



Appeal by defendant from Walker, Judge. Judgment pronounced 19 February 1981 in Superior Court, Rowan County. Heard in the Court of Appeals 9 December 1981.

Morris, Chief Judge. Judge Martin (Robert M.) concurs.

Morris

North Carolina Appellate Rule 9(b)(3) stipulates that "the record on appeal in criminal actions shall contain: . . . (vii) copies of the verdict and of the judgment, order, or other determination from which appeal is taken, (viii) a copy of the notice of appeal, or of the appeal entry showing appeal taken orally . . ." Defendant has failed to include copies of either the verdict, judgment, notice of appeal, or appeal entry, although the information contained in those documents does appear in the Record in various places. We call appellant's attention to the requirements of the rule. The rule is a practical one. In addition to insuring that the procedures at trial are presented to the court accurately, it also results in presenting the record to the Court chronologically, without the necessity of the Court's having to search the Record for necessary components. The case is technically subject to dismissal. Because of the severity of the charges against defendant, we have elected to consider the appeal on its merits.

Defendant brings forth three assignments of error. He first contends that the trial court erred in denying his motions to dismiss at the end of the State's evidence and at the end of all the evidence, because, he says, the evidence fails to show that defendant knew Lagree had committed voluntary manslaughter.

In order to prove a person to be an accessory after the fact, it must be shown (1) that the felony was committed, (2) that the accused knew the felony had been committed by the person assisted, and (3) that the accessory personally rendered assistance to the felon. State v. Potter, 221 N.C. 153, 19 S.E.2d 257 (1942). State v. Martin, 30 N.C. App. 166, 226 S.E.2d 682 (1976). Defendant contends that the evidence fails to show that he knew the offense had been committed, or that he even knew the victim was in the road. On the contrary, the evidence, according to defendant, shows that he thought Basinger was in the ditch on the far side of the road. We hold that there was sufficient evidence to survive defendant's motions. As the state's brief points out, it makes no difference that defendant may not have actually seen the victim in the road before the automobile struck him. Testimony indicated that defendant knew, before proposing the false story to be told the authorities, that Basinger, Horne, and Lagree were fighting, that Basinger was left very near to or on

the road, and that he had been struck and killed by an automobile. The evidence is, therefore, sufficient, when considered in the light most favorable to the state, to satisfy each element of the offense of accessory after the fact. Indeed, it shows that defendant knew a felony had been committed by Horne or Lagree before he concocted the tale, engineered cooperation among those present, and related the story to Deputy Douglas.

Defendant asserts that the trial court erred in allowing the district attorney to state in his closing argument, with reference to those present at defendant's house, that "they were acting like a pack of wolves." We hold, however, that this characterization did not torture the sense of the record so as to mislead the jury or deprive defendant of a fair trial. The evidence presented showed that defendant and four other persons were drinking at defendant's house; that Clarence Basinger cut his wife; that Lagree and Horne, armed with a belt and knife, viciously beat and kicked Basinger in the presence of the others; that the fighting spilled from the front porch to the yard and into the road; and that the victim was left in the road to be struck by an automobile. This evidence supports the argument of the district attorney.

[W]hen the prosecuting attorney does not go outside of the record and his characterizations of the defendant are supported by the evidence, the defendant is not entitled to a new trial by reason of being characterized in uncomplimentary terms in the argument.

State v. Westbrook, 279 N.C. 18, 39, 181 S.E.2d 572, 584 (1971); sentence vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761 (1972). Moreover, we are unable to determine from the record whether the trial judge abused his discretion in controlling the jury argument as the only portion of the district attorney's remarks set forth in the record on appeal is the sentence which is the subject of Exception No. 3A. When a portion of the argument is omitted from the record, the argument is presumed proper. State v. Hunt, 37 N.C. App. 315, 246 S.E.2d 159 (1978).

Defendant argues by his final assignment of error that the trial court erred in several instances in its charge to the jury. Defendant first asserts that the instruction regarding state's witness Lagree's plea bargain for a reduction of charges in exchange

for his testimony improperly allowed the jury to decide why the witness testified. There is no merit in this contention. The instruction explicitly reminds the jurors that Lagree was an interested witness testifying in accordance with a plea bargain agreement, and warns them to "examine the ...


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