State v. Phillips

245 S.E.2d 587 (1978)

37 N.C. App. 202

STATE of North Carolina v. Rodell PHILLIPS.

No. 788SC95.

Court of Appeals of North Carolina.

July 11, 1978.

*588 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. James Wallace, Jr., Raleigh, for the State.

Donald M. Wright, Goldsboro, for defendant-appellant.

ERWIN, Judge.

Defendant contends that the trial court erred in denying his motion to suppress the evidence of a pair of red shorts, known as State's Exhibit No. 3, on the grounds that the consent given by defendant was insufficient and invalid. We do not agree.

The rule is well settled in this State that findings of fact made by the trial judge, and conclusions drawn therefrom on the voir dire examination, are binding on the appellate courts if supported by evidence. State v. Austin, 276 N.C. 391, 172 S.E.2d 507 (1970), cert. denied, 400 U.S. 842, 91 S. Ct. 85, 27 L. Ed. 2d 78 (1970); State v. Wright, 274 N.C. 380, 163 S.E.2d 897 (1968); State v. Wilson, 262 N.C. 419, 137 S.E.2d 109 (1964). The trial judge entered his findings as follows:

"However, in this particular case, the Court finds as a fact that the search of *589 the front room of the defendant Phillips' house was in all respects a legal and valid search in that it was made by Officer Jones after a free and voluntary consent on the part of the defendant which was made without coercion or duress or fraud and that the State is allowed to offer the evidence the red underclothes, State's Exhibit 3, as evidence in this case. To the ruling of the Court, the State will be allowed to offer the testimony, the facts surrounding the finding of said red pants, State's Exhibit Number 3."

Keith Peten testified on voir dire examination:

"... While I was at Mr. Phillips' house I did not leave all my underclothes there but just my bottom underclothes I had my undershirt on. * * * * * * I am a hundred percent sure those are the same shorts I was wearing. I wear size 14 to 16 shorts, and those are my shorts because they have the same tag on it."

Sergeant Jones of the Goldsboro Police Department testified on voir dire that after defendant received his Miranda warnings from him:

"...I asked Mr. Phillips if I could have permission to go to his residence and look in the front room of his house and I told him I wanted to look for some evidence that was supposely (sic) had been left there. I told him that he could refuse or allow me to do this, and I told him it was up to him that he could authorize me to go and not to go. He stood there for a minute and sat down and thought for a minute and he said that he didn't have anything to hide and that I had his permission to go; at that point he was sitting in the detective office and Sergeant Spain was in the presence of both him and I and at that point I asked Sergeant Spain if he would sit with Mr. Phillips while I went to the residence."

Defendant testified on voir dire examination as follows:

"When I went in the room he told me to sit down and have a seat and he went and got a bluecoat man and came back. When he brought the bluecoat man back he asked me could he go to my house. I did not kill James Buckram on June 7, 1952. That is the first thing he said and I told him he could go to my house, but I don't know why he wanted to go to my house. I didn't hear him say he wanted to go inside the house; he said that he wanted to go in the house; that is, he just said could he go to the house.

The findings and conclusions of the trial court are supported by the evidence in the record before us, and they are conclusive on appeal and must be upheld. State v. Tuggle, 284 N.C. 515, 201 S.E.2d 884 (1974).

Defendant contends that the trial court committed error in permitting Sergeant Spain of the Goldsboro Police Department to testify to a conversation he had with defendant on the grounds that Sergeant Spain did not know whether or not the defendant had been given his Miranda warnings. Sergeant Spain testified on voir dire examination:

"At the time I was with Mr. Phillips I had a firearm upon my person and it was in full view of Mr. Phillips. I asked Mr. Phillips if he knew what was going on and he said that Sergeant Jones was going to his house to search his house. I did not personally give the defendant any Miranda warnings and I did not have any personal knowledge that the Miranda warnings had been given to the defendant."

We hold this question, "what was going on" does not constitute custodial interrogation. State v. Fletcher and State v. St. Arnold, 279 N.C. 85, 181 S.E.2d 405 (1971).

From the evidence presented at the trial of the case, the trial judge correctly overruled defendant's motion for judgment as of nonsuit on the charges of "Crime Against Nature" and "Taking Indecent Liberties with a Minor." Upon motion for judgment as of nonsuit, the evidence must be considered in the light most favorable to the State, giving the State the benefit *590 of every reasonable inference to be drawn therefrom. Where there is sufficient evidence, direct or circumstantial, by which a jury could find the defendant had committed the offenses charged, then the motion should be denied. State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976), 4 Strong's N.C. Index 3d, Criminal Law, § 106 at 547. We hold that the evidence in this case was sufficient to submit the charges to the jury and sufficient for the conviction of such charges. In the trial below, the defendant has failed to show prejudicial error.

No error.

BRITT and ARNOLD, JJ., concur.