{ "id": 8522297, "name": "STATE OF NORTH CAROLINA v. FELIX TORRES and TIMOTHY WAYNE FORSYTH", "name_abbreviation": "State v. Torres", "decision_date": "1985-10-15", "docket_number": "No. 8414SC1167", "first_page": "345", "last_page": "352", "citations": [ { "type": "official", "cite": "77 N.C. App. 345" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "320 S.E. 2d 688", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 70", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4754130 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0070-01" ] }, { "cite": "270 S.E. 2d 115", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563906, 8563875, 8563814, 8563847, 8563928 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0561-04", "/nc/300/0561-03", "/nc/300/0561-01", "/nc/300/0561-02", "/nc/300/0561-05" ] }, { "cite": "263 S.E. 2d 846", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "45 N.C. App. 661", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550762 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/45/0661-01" ] }, { "cite": "276 S.E. 2d 482", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "51 N.C. App. 324", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2643241 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/51/0324-01" ] }, { "cite": "313 S.E. 2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 541", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2402840 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0541-01" ] }, { "cite": "302 S.E. 2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 196", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4708380 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0196-01" ] }, { "cite": "316 S.E. 2d 197", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4679881 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0001-01" ] }, { "cite": "223 S.E. 2d 311", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 531", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571014 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0531-01" ] }, { "cite": "252 S.E. 2d 720", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 623", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569846 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0623-01" ] } ], "analysis": { "cardinality": 706, "char_count": 15845, "ocr_confidence": 0.809, "pagerank": { "raw": 5.298132930532853e-08, "percentile": 0.3342395637737953 }, "sha256": "51877acaa5c0968e3e0acf4d1562992dad60fd684adb82b6bb63bfd56e9b242c", "simhash": "1:77b4c24a7c8f4dba", "word_count": 2662 }, "last_updated": "2023-07-14T21:22:01.691260+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Johnson and Eagles concur." ], "parties": [ "STATE OF NORTH CAROLINA v. FELIX TORRES and TIMOTHY WAYNE FORSYTH" ], "opinions": [ { "text": "PARKER, Judge.\nIn their first and second assignments of error defendants argue that the trial court abused its discretion and committed prejudicial error in denying their motions in limine which sought to prevent introduction into evidence of rings purchased by defendant Torres after the incident and in admitting the rings into evidence at trial. We disagree.\n\u201cGenerally, a motion in limine seeks to secure in advance of trial the exclusion of prejudicial matter. ... In those jurisdictions which recognize the motion . . . the uniform rule appears to be that the decision whether to grant the motion is addressed to the trial judge\u2019s discretion.\u201d State v. Rouf, 296 N.C. 623, 252 S.E. 2d 720 (1979).\nIn this case, we discern no prejudice resulting from the trial judge\u2019s failure to grant defendant\u2019s motion in limine. Additionally, defendants failed to object when the rings were introduced into evidence at trial. See, State v. Wilson, 289 N.C. 531, 223 S.E. 2d 311 (1976), holding that notwithstanding a pretrial motion to suppress objectionable evidence, the failure to object in apt time at trial to objectionable testimony results in a waiver of the objection so that admission of the evidence will not be reviewed on appeal. These assignments of error are overruled.\nNext, defendants assert the trial court erred in permitting cross-examination of defendants concerning their prior convictions. Having failed to object to these questions at trial, defendants are precluded from raising the issue on appeal. Rule 10, Rules of Appellate Procedure.\nNext, defendant Forsyth contends that the trial court erred in allowing the prosecutor over defense objections to hold a pellet gun up to view to the jury during his closing arguments and to make occasional references to the gun when the gun had not been admitted into evidence. We agree the court erred in this regard, but we do not believe this error constituted prejudicial error.\nAlthough it is well-established that \u201c[a] prosecutor in a criminal case is entitled to argue vigorously all of the facts in evidence, any reasonable inference that can be drawn from those facts and the law that is relevant to the issues raised by the testimony,\u201d State v. Maynard, 311 N.C. 1, 316 S.E. 2d 197 (1984), it is equally well-established that he may not argue facts not present in the record, State v. Kirkley, 308 N.C. 196, 302 S.E. 2d 144 (1983), or facts not in evidence. State v. Murray, 310 N.C. 541, 313 S.E. 2d 523 (1984).\nA review of the transcript reveals the jury was excused from the courtroom so the court could hear arguments and rule on defendant Forsyth\u2019s motion \u201cto not have them [the State] put the gun in evidence.\u201d After argument, the court overruled the objection, and brought the jury back into the courtroom. The transcript reveals the following during examination of Akers:\nGun is marked State\u2019s Exhibit No. 1.\nMr. Stephens: It is a BB gun.\nCourt: It is a fake gun.\nQ. Let me show you what has been marked previously State\u2019s Exhibit No. 1 and ask you if this looks in all respects like the weapon you saw that day?\nA. Yes, sir, it does.\nQ. Can you describe the manner in which it was held or being used?\nObjection by Mr. Vann; Overruled.\nQ. Can I go ahead?\nQ. Yes, Sir.\nA. It was pointed at me like a regular gun would be pointed at me.\nAt the close of the State\u2019s evidence, the following transpired:\nMr. Stephens: That is going to be the evidence for the State. I believe all the exhibits that we intended to introduce are in, and the State will rest.\nMr. Vann: Objection to No. 1.\nMr. Stephens: We never officially \u2014 we would not offer that.\nCourt: My notes show that No. 1 was not offered, therefore, it is not in evidence, and my notes indicate that the others were.\nBecause State\u2019s Exhibit No. 1, the gun, was neither offered nor admitted into evidence, we believe it was error to allow the prosecutor to present this gun to the jury during his closing arguments. However, we do not believe that this constituted prejudicial error because defendant was charged with using \u201cmetal, raised-design rings on his fingers, deadly weapons, to assault and inflict serious injury. . . .\u201d Defendant Forsyth was not charged with assault through the use of a firearm. In our view, whether defendant Forsyth possessed a firearm during this transaction would not affect the jury\u2019s deliberations on whether defendant Forsyth assaulted Thurman with deadly metal rings. The assignment of error is overruled.\nIn defendants\u2019 fifth assignment of error, defendant Forsyth contends that the trial court erred in entering judgment on the verdict for the reason that the evidence did not support a verdict that the rings worn at the time of the fight were deadly weapons. After the jury returned its verdict, defendant moved to set aside the verdict as contrary to the weight of the evidence; this motion was denied. This motion was in essence a motion for appropriate relief under G.S. 15A-1414(b)(2). A motion to set aside the verdict is addressed to the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. State v. Jacobs, 51 N.C. App. 324, 276 S.E. 2d 482 (1981); State v. Watkins, 45 N.C. App. 661, 263 S.E. 2d 846, cert. denied, 300 N.C. 561, 270 S.E. 2d 115 (1980). We find no such abuse and this assignment of error is overruled.\nDefendant Torres next assigns error to the trial judge\u2019s admonishment to defendant Torres\u2019 attorney: \u201cYour comments, Mrs. Sides, your comments are not necessary. Keep them to yourself.\u201d Counsel for defendant had been improperly remarking on the witness\u2019 testimony, rather than asking a question, and the trial judge was properly exercising his control over the cross-examination of the witness.\nIn their seventh assignment of error defendants argue that the trial judge erred in failing to consider and find as a factor in mitigation that defendants\u2019 mental condition significantly reduced their culpability because they had been drinking before the incident. Defendants did not, however, request that the trial judge find, as a factor in mitigation, that they were suffering from \u201ca mental or physical condition that was insufficient to constitute a defense but significantly reduced [their] culpability for the offense.\u201d G.S. 15A-1340.4(a)(2)(d). The trial judge only has a duty to find a statutory mitigating factor that was not submitted by defendant when the evidence offered at the sentencing hearing in support of the factor in mitigation is both uncontradicted and manifestly credible. State v. Gardner, 312 N.C. 70, 320 S.E. 2d 688 (1984). In addition to their evidence that they were intoxicated, defendants must also satisfy the trial judge by the preponderance of the evidence that their mental or physical condition, i.e., intoxication, significantly reduced their culpability for the offense. In describing his physical condition at the time of the incident, defendant Torres testified that he was \u201cfeeling sick already because [he] had been high like three days and didn\u2019t have much to eat.\u201d Defendant Forsyth testified that he was drunk and \u201chigh\u201d and did not remember exactly what he was doing. There was no showing that defendants\u2019 condition reduced their culpability or that this evidence was manifestly credible. We hold that the trial judge did not err in failing to find that defendants\u2019 intoxication reduced their culpability.\nFinally, in the last assignment of error defendant Torres asserts that the trial judge erred in failing to find as a statutory mitigating factor that defendant Torres\u2019 immaturity or limited mental capacity significantly reduced his culpability. The basis for this assignment is defense counsel\u2019s statement to the court that defendant Torres was a \u201cWillie M child\u201d who never received treatment. However, there was no sworn testimony as to defendant Torres\u2019 condition and no showing that this condition reduced defendant Torres\u2019 culpability. On the authority of Gardner, supra, this assignment of error is overruled.\nWe have carefully considered all defendants\u2019 assignments of error and find\nNo error.\nJudges Johnson and Eagles concur.", "type": "majority", "author": "PARKER, Judge." } ], "attorneys": [ "Attorney General Thornburg by Assistant Attorney General Robert R. Reilly for the State.", "Arthur Vann for defendant-appellant Forsyth.", "R. Marie Sides for defendant-appellant Torres." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. FELIX TORRES and TIMOTHY WAYNE FORSYTH\nNo. 8414SC1167\n(Filed 15 October 1985)\n1. Criminal Law \u00a7 162\u2014 denial of motion in limine \u2014 necessity for objection to evidence at trial\nEven though the trial court denied defendants\u2019 motion in limine to prevent the admission of certain rings, defendants\u2019 failure to object to the introduction of the rings at trial constituted a waiver of the objection so that admission of the rings will not be reviewed on appeal.\n2. Criminal Law \u00a7 102.6\u2014 jury argument \u2014 gun not admitted into evidence\u2014 harmless error\nThe trial court erred in allowing the prosecutor over defense objections to hold a pellet gun up to the view of the jury during his closing arguments and to refer to the gun when the gun had not been offered or admitted into evidence, but such error was not prejudicial because defendant was charged with assaulting the victim with metal rings rather than with a gun.\n3. Assault and Battery \u00a7 17\u2014 felonious assault \u2014 rings as deadly weapons \u2014 refusal to set verdict aside\nThe trial court did not abuse its discretion in refusing to set aside a verdict of guilty of assault with a deadly weapon inflicting serious injury on the ground that large metal rings worn by defendants were not deadly weapons.\n4. Criminal Law \u00a7 99.5\u2014 admonishment of counsel \u2014no error\nThe trial court did not err in admonishing defendant\u2019s attorney to keep her comments to herself when the attorney improperly remarked on a witness\u2019s testimony.\n5. Criminal Law \u00a7 138\u2014 intoxication reducing culpability \u2014 failure to find as mitigating factor\nThe trial judge did not err in failing to find as a mitigating factor for assault with a deadly weapon inflicting serious injury that defendants\u2019 intoxication reduced their culpability for the crime on the basis of testimony by one defendant that he was feeling sick because he had been high for three days and didn\u2019t have much to eat, and testimony by the second defendant that he was drunk and high and did not remember exactly what he was doing, since there was no showing that defendants\u2019 condition reduced their culpability or that defendants\u2019 evidence was manifestly credible. G.S. 15A-1340.4(a)(2)(d).\n6. Criminal Law \u00a7 138\u2014 limited mental capacity reducing culpability \u2014 failure to find as mitigating factor\nThe trial court did not err in failing to find as a mitigating factor that defendant\u2019s immaturity or limited mental capacity significantly reduced his culpability for the crime on the basis of a statement by defense counsel that defendant was a \u201cWillie M child\u201d who never received treatment.\nAppeal by defendants from Bailey, Judge. Judgment entered 18 July 1984 in Superior Court, DURHAM County. Heard in the Court of Appeals 23 August 1985.\nDefendants were charged in proper indictments with assault with a deadly weapon inflicting serious injury and injury to personal property.\nAt trial the victim Douglas Wayne Thurman, age seventeen, testified that on 15 May 1984 he was a senior at Northern High School. He drove to school, parked his car and walked up to the school with his friend Thomas Swain. Defendant Torres called him, and Thurman turned around and walked towards Torres to find out what he wanted. Defendant Torres punched Thurman in the chin. Thurman fell down between two cars. Defendant For-syth joined Torres and both defendants started hitting Thurman in the face. Defendant Torres had a knife in his belt and four large silver rings on his hand. One of the defendants had a gun. After the beating, Thurman was taken to the hospital and treated for a broken jaw.\nOn cross-examination Thurman said that he did not know if defendant Forsyth hit him, and he did not know if defendant For-syth was wearing any rings.\nThomas Swain, Jr., testified that defendant Torres hit Thurman first and knocked Thurman to the ground. Thurman tried to get away. Then defendant Forsyth joined Torres in hitting Thurman.\nWilliam Roger Akers, Jr., who was a senior at Northern High School on 15 May 1984, testified:\nA. Well, I arrived at school about eight o\u2019clock, and I started walking up to school, and I heard something behind me. I turned around and there was Doug standing behind me covered with blood, and I looked over and I saw Mr. Torres jump up on the car with a knife in his hand, and then I looked over at Mr. Forsyth and he pointed a gun at me and asked me if I wanted some too.\nMr. VANN: Motion to strike.\nCOURT: Motion denied.\nA. I said, \u201cDoug, watch out, he has a gun, he has got a gun,\u201d and we jumped behind a car and we went on up to the school.\nAkers said the gun looked like a .45 caliber automatic.\nKimberly Ann Bailey testified that on 15 May 1984 she drove her 1976 Honda Accord to school and at 11:00 a.m. she went out to the parking lot and saw that the roof of her car was caved in, there was a dent over the windshield, and there were blood and barefoot prints on the roof.\nMatthew Grady Sandy testified that he was with both defendants the night of 14 May 1984 and they drank two cases of beer. The morning of the 15th, Sandy drove defendants to Northern High School. Defendant Torres was barefooted. Defendants called out: \u201cHey boy, come here\u201d to Thurman; then Thurman and defendants disappeared between the cars. Sandy did not watch the fight. Sandy said that Defendant Torres was wearing very large skull head rings which stuck out \u201c[a]s a brass knuckle would.\u201d Defendant Torres also had a BB pistol. Sandy heard Thurman yell, \u201cLeave me alone, I can\u2019t take it anymore,\u201d and he heard glass shatter. Then defendants jumped into Sandy\u2019s car, and they drove away. They stopped at a store, and defendant Torres bought four cases of beer and a box of rings. Both defendants were covered in blood. On cross-examination Sandy said that he was testifying pursuant to a plea bargain agreement in which he would plead guilty to misdemeanor assault inflicting serious injury for which the State would recommend a two year suspended sentence.\nWhen defendants were arrested, they both were wearing rings which were about the size of a quarter and were in the shape of skulls, eagles and pirate heads. The rings on defendant Torres\u2019 right hand were covered in blood.\nDefendant Forsyth testified that the night of 14 May 1984 he, Sandy and defendant Torres stayed up all night drinking. When they went to Northern High School the morning of 15 May 1984, defendant Torres got out of the car to vomit. Then defendant For-syth heard a noise, got out of the car and saw that defendant Torres and Thurman were fighting. He tried to break up the fight. On cross-examination defendant Forsyth said that before he went to Northern High School he assaulted someone at Southern High School and was charged with assault with a deadly weapon inflicting serious injury and entered a plea of guilty to simple assault.\nDefendant Torres testified that at Northern High School he was vomiting in the parking lot when Thurman approached him. He hit Thurman, and Thurman hit him back. Then he got back in the car. He denied jumping onto the Honda Accord.\nThe trial judge submitted the possible verdicts of assault with a deadly weapon inflicting serious injury, and the lesser included offense of assault inflicting serious injury, and injury to personal property, a Honda automobile, as to each defendant. The jury found both defendants guilty of assault with a deadly weapon inflicting serious injury and defendant Torres guilty of injury to personal property. Defendants received the maximum sentences for the offenses. Defendants appeal.\nAttorney General Thornburg by Assistant Attorney General Robert R. Reilly for the State.\nArthur Vann for defendant-appellant Forsyth.\nR. Marie Sides for defendant-appellant Torres." }, "file_name": "0345-01", "first_page_order": 377, "last_page_order": 384 }