STATE v. FLETCHER No. 138.

272 S.E.2d 859 (1981)

STATE of North Carolina v. Mark Duane FLETCHER.

Supreme Court of North Carolina.
January 6, 1981.
Richard S. James, Jacksonville, for defendant.
Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Alfred N. Salley, Asheville, for the State.

COPELAND, Justice.

By his sole assignment of error, defendant contends that the trial court erred in refusing to grant defendant's motion to dismiss on the grounds that the evidence was insufficient to sustain the conviction and in failing to set aside the verdict as being against the greater weight of the evidence. We have carefully reviewed defendant's assignment of error and find it without merit.

In ruling upon defendant's motion to dismiss, the trial court is required to interpret the evidence in the light most favorable to the State, and all reasonable inferences favorable to the State must be drawn therefrom. State v. King, 299 N.C. 707, 264 S.E.2d 40 (1980); State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). As stated by Justice Ervin in State v. Bowman, 232 N.C. 374, 376, 61 S.E.2d 107, 109 (1950),

"[i]n ruling on such motion, the Court does not pass upon the credibility of the witnesses for the prosecution, or take into account any evidence contradicting them offered by the defense. The court merely considers the testimony favorable to the State, assumes it to be true, and determines its legal sufficiency to sustain the allegations of the indictment. Whether the testimony is true or false, and what it proves if it be true are matters for the jury."

Upon defendant's motion to dismiss for insufficiency of the evidence, the trial court must determine as a question of law whether the State has offered substantial evidence against defendant of every essential element of the crime charged. "Substantial evidence" is that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion. State v. Smith, 300 N.C. 71, 265 S.E.2d 164 (1980); State v. Powell, supra. After considering the evidence in this case in the light most favorable to the State, we find that there was substantial evidence presented of defendant's guilt on each material element of second degree murder; i. e., the unlawful killing of a human being with malice. State v. Rogers, 299 N.C. 597, 264 S.E.2d 89 (1980); State v. Jones, 299 N.C. 103, 261 S.E.2d 1 (1979); State v. Cates, 293 N.C. 462, 238 S.E.2d 465 (1977). The determination of defendant's guilt or innocence was therefore a question to be answered by the jury, and the trial court did not err in denying defendant's motion to dismiss for insufficiency of the evidence.

A motion to set aside the verdict as being against the greater weight of the evidence is addressed to the discretion of the trial court, and is not reviewable on appeal absent an abuse of that discretion. State v. Hamm, 299 N.C. 519, 263 S.E.2d 556 (1980); State v. Pearce, 296 N.C. 281, 250 S.E.2d 640 (1979). We find no abuse of discretion by the trial judge in this case, therefore defendant's motion was properly denied.

After careful examination of the entire record before us on appeal, we hold that defendant received a fair trial free from prejudicial error.

NO ERROR.


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