State v. Stinson

ARNOLD, Judge.

Defendant claims that the two aggravating factors found by the court were, in effect, one factor, thereby requiring a new sentencing hearing. See State v. Ahearn, 307 N.C. 584, 300 S.E. 2d 689 (1983). We disagree. Defendant had a prior conviction for an offense punishable by more than 60 days. In addition, at the very time he committed the offense of first degree burglary and attempted second degree rape, he was under a suspended sentence for the prior felony conviction. These are two clearly distinct aggravating factors. We find that the trial judge properly considered them in sentencing defendant.

*573Moreover, defendant’s contention that the 25-year sentence is “clearly harsh, gross and abusive” is without merit. A trial judge has the authority to provide that two or more sentences imposed for separate offenses shall run consecutively. State v. Mosteller, 3 N.C. App. 67, 164 S.E. 2d 27 (1968). Furthermore, both sentences were within statutory limits and, therefore, did not constitute cruel and unusual punishment. See State v. Handsome, 300 N.C. 313, 266 S.E. 2d 670 (1980).

Defendant next contends that the trial court erred in admitting testimony over the objection of defendant regarding the lack of any evidence linking anyone other than defendant to the victim’s dorm room. During his cross-examination of Sgt. W. L. Arthur, defendant elicited the statement that “I found no physical evidence in her room, her suite hallway, or elsewhere linking Mr. Stinson to have been there that night.” On redirect examination, Sgt. Arthur was asked, over the defendant’s objection, “Did you find any evidence linking anyone else to that room?” The witness answered, “No sir, I didn’t.”

This evidence was not irrelevant and prejudicial, as defendant contends. It was brought out for the purpose of clarifying Sgt. Arthur’s earlier testimony on direct examination. 1 Brandis, N.C. Evidence, § 36 (2d Rev. 1982). We find the testimony was properly allowed.

Defendant also claims that the court erred in denying his motions for dismissal and for a directed verdict at the close of all the evidence and in denying his motion for judgment notwithstanding the verdict. The question presented by a defendant’s motion to dismiss in a criminal case is whether or not the evidence is sufficient to warrant its submission to the jury and to support a verdict of guilty of the offense charged in the indictment. State v. Cooper, 275 N.C. 283, 167 S.E. 2d 266 (1969). Where the evidence is sufficient to overrule a motion to dismiss, it will also be sufficient to overrule a motion for a directed verdict, since both motions have the same legal effect. State v. Glover, 270 N.C. 319, 154 S.E. 2d 305 (1967). Upon a motion to dismiss, “all of the evidence favorable to the State, whether competent or incompetent, must be considered, such evidence must be deemed true and considered in the light most favorable to the State, discrepancies and contradictions therein are disregarded and the State is entitled to *574every inference of fact which may be reasonably deduced therefrom.” State v. Witherspoon, 293 N.C. 321, 326, 237 S.E. 2d 822, 826 (1977).

In the case before us, it is clear that the State presented evidence of each and every element necessary to support a conviction of both first degree burglary and attempted second degree rape. Since all the evidence must be taken in the light most favorable to the State, we find that the trial court properly denied defendant’s motions for dismissal and for a directed verdict. In addition, we find that the trial judge did not abuse his discretion in denying defendant’s motion for judgment notwithstanding the verdict. See State v. Yancey, 291 N.C. 656, 231 S.E. 2d 637 (1976).

We have examined defendant’s remaining assignment of error and have found in it no merit.

No error.

Judge Hedrick concurs. Judge Becton dissents.