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North Carolina v. Davy11/6/1990
Defendant argues that the trial court's refusal to grant his motion to dismiss at the end of the presentation of all the evidence constituted reversible error. In order to overcome a motion to dismiss, the State must introduce more than a scintilla of evidence of each essential element of the offense and that the defendant was the perpetrator of the offense. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). The evidence must be considered in the light most favorable to the State in determining its sufficiency, and the State is entitled to each and every reasonable inference to be drawn therefrom. Id. State v. Jackson, 309 N.C. 26, 40, 305 S.E.2d 703, 714 (1983). The weight and credibility of the evidence presented are matters for the jury to determine and are not considered on a motion to dismiss or for nonsuit. State v. McNeil, 280 N.C. 159, 162, 185 S.E.2d 156, 157 (1971).
Defendant argues that there is insufficient evidence of the defendant's identity as being the perpetrator of the crime to allow the jury to deliberate. We disagree. The victim testified that she glimpsed her attacker as he pulled the afghan over her head and she was able to tell that he was a large, strong, dark-complected black man. Within seconds after the incident, she observed a truck which she later positively identified as the vehicle that drove away from her home down Maplehurst Road. Tire impressions identical to the tread on defendant's truck were found on the ground outside the trailer window. The State also produced evidence that tended to show that the defendant knew that the victim was married and that her husband was away on military duty. Hairs and fibers consistent to those found on the victim were found on the defendant. These facts present sufficient evidence to go to the jury as to the defendant's identity as the perpetrator. The defendant has pointed out in his brief a number of inconsistencies in the State's evidence; however, these discrepancies were for the jury to weigh and consider. This assignment of error is overruled.
Defendant next argues that the trial court committed reversible error when it denied his motion to suppress the hair and fiber
evidence recovered from his pants. Defendant argues that this evidence should have been suppressed because he did not voluntarily give his consent to the search and seizure of the hairs and fibers on his pants. The test for determining the validity of a consent search is whether, under the totality of the circumstances, the consent was induced by duress or coercion or was voluntary. State v. Powell, 297 N.C. 419, 426, 255 S.E.2d 154, 158 (1979); Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 2047-48, 36 L. Ed. 2d 854, 862-63 (1973). When a defendant seeks to suppress evidence on grounds his consent to search was involuntary, the trial court must conduct a voir dire to determine whether consent was, in fact, given without compulsion. State v. Washington, 86 N.C. App. 235, 238-39, 357 S.E.2d 419, 422, disc. rev. denied, 322 N.C. 485, 370 S.E.2d 235 (1988). These findings are conclusive on appeal if supported by competent evidence. Id.
In the present case, defendant argues that because he previously had requested to speak to a lawyer, his consent to the rolling of his trousers with a lint brush was coerced and his consent was not freely and voluntarily given. We disagree. Defendant admits
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