STATE of North Carolina
v.
Barry Dean LINDLEY.
No. 110.
Supreme Court of North Carolina.
December 11, 1974.*209 James H. Carson, Jr., Atty. Gen., H. A. Cole, Jr., and Thomas B. Wood, Asst. Attys. Gen., for the State of North Carolina.
Phil S. Edwards, Dark & Edwards, Siler City, for defendant-appellant.
HUSKINS, Justice:
Defendant contends the court erred in allowing Officer R. L. Thompson, a lay witness, to testify that after observing defendant at the time of his arrest and on the way to jail he formed an opinion satisfactory to himself that defendant was under the influence of some drug. Admission of such testimony over objection constitutes defendant's first assignment of error.
Opinion evidence is generally inadmissible "whenever the witness can relate the facts so that the jury will have an adequate understanding of them and the jury is as well qualified as the witness to draw inferences and conclusions from the facts. If either of these conditions is absent, the evidence is admissible." Stansbury, North Carolina Evidence, § 124 (Brandis Rev.1973). Accord, Beanblossom v. Thomas, 266 N.C. 181, 146 S.E.2d 36 (1966); Wood v. Insurance Co., 243 N.C. 158, 90 S.E.2d 310 (1955); State v. Cuthrell, 233 N.C. 274, 63 S.E.2d 549 (1951).
Although a lay witness is usually restricted to facts within his knowledge, "if by reason of opportunities for observation he is in a position to judge of the facts more accurately than those who have not had such opportunities, his testimony will not be excluded on the ground that it is a mere expression of opinion. McKelvey on Evidence, 172, 231; Greensboro v. Garrison, 190 N.C. 577, 130 S.E. 203 (1925); Hill v. R.R., 186 N.C. 475, 119 S.E. 884 (1923); Shepherd v. Sellers, 182 N.C. 701, 109 S.E. 847 (1921); Marshall v. Telephone Co., 181 N.C. 292, 106 S.E. 818 (1921)." State v. Brodie, 190 N.C. 554, 130 S.E. 205 (1925).
It is a familiar rule of evidence in this jurisdiction that a lay witness who has personally observed a person may give his opinion as to whether that person was under the influence of intoxicants. State v. Flinchem, 247 N.C. 118, 100 S.E.2d 206 (1957); State v. Warren, 236 N.C. 358, 72 S.E.2d 763 (1952); State v. Harris, 213 N.C. 648, 197 S.E. 142 (1938). Likewise, we have *210 held in recent cases that a lay witness may state his opinion as to whether a person is under the influence of drugs when he has observed the person and such testimony is relevant to the issue being tried. State v. Fletcher and State v. St. Arnold, 279 N.C. 85, 181 S.E.2d 405 (1971); State v. Cook, 273 N.C. 377, 160 S.E.2d 49 (1968); see 31 Am. Jur.2d, Expert and Opinion Evidence § 102 (1967).
In this case Officer Thompson observed the erratic manner in which defendant operated his car, observed his personal demeanor, the white substance on his lips, his pinpoint pupils, the absence of alcohol on his breath, his lack of muscular coordination, his mental stupor, and the way he walked, acted and talked. He observed that the other occupants of the car, two boys and a girl, were in the same condition. Especially significant is the fact that Officer Thompson, by interrogating defendant, eliminated many other causes which might have accounted for defendant's condition. By such interrogation he ascertained that defendant was not a diabetic, had no physical defects, was not sick, did not limp, had not been injured, had not seen a doctor or dentist lately, and had not been taking any kind of medication. Possessed of that knowledge, Officer Thompson concluded that defendant was under the influence of some drug. We hold that under these facts a patrol officer with five years' experience in enforcement of the motor vehicle laws, including the statutes condemning operation of a motor vehicle while under the influence of either intoxicants or drugs, is competent to express an opinion, based on the conditions he observed and on the knowledge gained from interrogation of defendant, that defendant was under the influence of some drug. Officer Thompson was better qualified than the jury to draw inferences and conclusions from what he saw and heard. Stansbury, North Carolina Evidence, § 124 (Brandis Rev. 1973).
Defendant contends the State's evidence was insufficient to be submitted to the jury. Denial of his motion to nonsuit constitutes his second assignment of error. When considering a nonsuit motion the trial court is required to view the evidence in the light most favorable to the State, take it as true, and give the State the benefit of every reasonable inference to be drawn therefrom. State v. Vincent, 278 N.C. 63, 178 S.E.2d 608 (1971). Furthermore, all evidence actually admitted, whether competent or not, which is favorable to the State must be taken into account and considered by the court in ruling upon the nonsuit motion. State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967). Whether the evidence is direct, circumstantial, or both, if there is evidence from which a jury could find that the offense charged has been committed and that defendant committed it, the motion to nonsuit should be overruled. State v. Goines, 273 N.C. 509, 160 S.E.2d 469 (1968); State v. Norggins, 215 N.C. 220, 1 S.E.2d 533 (1939). This assignment is overruled.
Finally, defendant assigns as error the denial of his motions to set aside the verdict and in arrest of judgment.
Motions to set aside the verdict are addressed to the discretion of the trial court and refusal to grant them is not reviewable in the absence of abuse of discretion. State v. Downey, 253 N.C. 348, 117 S.E.2d 39 (1960); State v. Reddick, 222 N.C. 520, 23 S.E.2d 909 (1943).
Motions in arrest of judgment are ordinarily made after verdict to prevent entry of judgment and are based upon the insufficiency of the indictment or some other fatal defect appearing on the face of the record. State v. McCollum, 216 N.C. 737, 6 S.E.2d 503 (1940). Unless some fatal error or defect appears on the face of the record proper, judgment may not be arrested. State v. Higgins, 266 N.C. 589, 146 S.E.2d 681 (1966). Review is ordinarily limited to a determination of whether error of law appears on the face of the record and whether the judgment is regular in form. *211 State v. Mallory, 266 N.C. 31, 145 S.E.2d 335 (1965). When error does not appear on the face of the record proper, the judgment will be affirmed. Seibold v. Kinston, 268 N.C. 615, 151 S.E.2d 654 (1966). The evidence in a case is no part of the record proper, and defects appearing only by the aid of evidence cannot be the subject of a motion in arrest of judgment. State v. Gaston, 236 N.C. 499, 73 S.E.2d 311 (1952).
Application of the foregoing rules regulating practice and procedure in criminal actions impels the conclusion that defendant's motion in arrest of judgment was properly denied. No error appears on the face of the record proper. The judgment is regular in form and must therefore be sustained. State v. McNeil, 280 N.C. 159, 185 S.E.2d 156 (1971).
For the reasons stated the decision of the Court of Appeals finding no error in the judgment appealed from is
Affirmed.