Appeal by defendant from judgment entered 16 July 1996 by Judge Stafford G. Bullock in Wake County Superior Court. Heard in the Court of Appeals 6 January 1997.
Judges Wynn and Walker concur.
Defendant was convicted of second degree rape, first degree burglary, and robbery with a dangerous weapon. He was sentenced to a minimum of 101 months and a maximum of 131 months for the first degree burglary and robbery with a dangerous weapon and a minimum sentence of 115 months and a maximum sentence of 147 months for the second degree rape charge.
At trial the evidence tended to show that on 22 September 1995, Ann Green was alone in her apartment in Raleigh. Around 2:30 a.m., she was in bed when defendant jumped on her. The victim felt coarse hair on the defendant's head and gloves on his hands. After a brief struggle, defendant covered the victim's head with a pillow. Defendant told her that if she resisted he would shoot her. Defendant then knocked the victim onto the floor and put a T-shirt over her head. Defendant asked the victim for money. The victim told defendant that there was money in her jeans pocket and in a greeting card sent to the victim by her mother. The card was located in a dresser drawer. The victim testified that she heard the defendant fumbling around in the dresser drawer and when she checked later the money in her pocket as well as in the greeting card was gone.
The victim also testified that during the attack she had the opportunity to feel defendant's hands and that at some point he had removed the gloves. After the victim heard defendant fumbling around in the dresser drawer, the defendant removed the victim's pajama bottoms, unbuckled his belt and raped the victim. The defendant then heard a noise and left the apartment.
Sidney Johnson, a Deputy Sheriff with the City County Bureau of Identification, processed the apartment for latent fingerprints. Deputy Johnson found a latent fingerprint on a greeting card on top of the dresser in the victim's room. Marty Ludas, a latent print examiner with the City County Bureau of Identification, and Haywood R. Starling, a fingerprint identification expert and former director of the North Carolina State Bureau of Investigation, each testified that in his expert opinion, the latent fingerprint was made by the defendant's finger. The State then rested. Upon the defendant's motion to dismiss the charges, the trial court dismissed the first degree rape charge. The State proceeded on second degree rape, robbery with a dangerous weapon, and first degree burglary. Defendant introduced the laboratory report from the rape kit into evidence. The report indicated that there was no semen, hair or blood exchanged. The defendant rested. After beginning deliberations, the jury requested they be allowed to look at the fingerprint card. Both the State and the defense objected to the publication of the fingerprint card. The trial court overruled both objections and allowed the jury to examine the fingerprint card in the courtroom. The jury returned a guilty verdict as to all charges. Defendant appeals.
Attorney General Michael F. Easley, by Assistant Attorney General Daniel D. Addison, for the State.
John T. Hall for defendant-appellant.
EAGLES, Judge. We first consider whether the trial court erred in permitting the jury, at its request, to view the fingerprint card containing fingerprints obtained at the scene of the crime. Defendant argues that the trial court erred by allowing the jury, after beginning their deliberation, to examine State's Exhibit number one, a fingerprint card containing the latent print obtained from the greeting card found in the apartment of the victim, Ms. Green. We disagree.
If a jury after retiring requests to review the evidence, the Judge in his discretion, after notice to the prosecutor and defendant, may permit the jury to examine in open court any requested materials which have been admitted into evidence. G.S. 15A-1233(a). By contrast, G.S. 15A-1233(b) provides: "Upon request by the jury and with the consent of all parties, the Judge may in his discretion permit the jury to take to the jury room exhibits and writings which have been received into evidence." In order for the trial Judge to allow the jury to take the requested evidence into the deliberation room, the Judge must have consent from both the State and the defendant. However, if the Judge simply lets the jury examine the requested evidence in open court but does not allow the jury to take it into the jury room, there is no necessity for obtaining the consent of the parties.
Here, the Judge permitted the jury, as it requested, to view in open court the fingerprint card containing the defendant's latent fingerprint. The Judge specifically denied the jury's request to take the fingerprint card back into the jury room. Accordingly, this assignment of error fails.
In order to show that the trial Judge erred in permitting the jury, without consent of the State and the defendant, to view the evidence in the courtroom, defendant must show that the trial court abused its discretion. G.S. 15A-1233(b). To show an abuse of discretion, "defendant must demonstrate that the trial court's action was so arbitrary that it could not have been the result of a reasoned decision." State v. Cannon, 341 N.C. 79, 87, 459 S.E.2d 238, 243 (1995) (quoting State v. Weddington, 329 N.C. 202, 209, 404 S.E.2d 671, 676 (1991) (quoting State v. Wilson, 313 N.C. 516, 538, 330 S.E.2d 450, 465 (1985)).
Here, the trial Judge's decision was based on the fact that the fingerprint card had been admitted into evidence and that there was no eyewitness identification of defendant. Given the significance of the fingerprint identification evidence, the trial Judge's decision is a reasoned one. Accordingly, we conclude the trial court did not abuse its discretion and this assignment of error is overruled.
We next consider whether the trial court erred in denying defendant's motion to dismiss. Defendant asserts that the evidence introduced at trial was insufficient to support the charges and convictions. Defendant argues that the victim was unable to identify him as the perpetrator.
Concerning defendant's motion to dismiss the charge of robbery with a dangerous weapon, defendant argues that there was insufficient evidence that defendant had a firearm at the time of the robbery. Defendant argues that because the trial Judge dismissed the first degree rape charge for insufficient evidence of a firearm, the ...