State v. Powell , 91 N.C. App. 441 ( 1988 )

HEDRICK, Chief Judge.

Defendant, by his Assignment of Error No. 5, contends the trial court erred in not arresting judgment on defendant’s conviction of felonious larceny. He argues that since there was a mistrial as to the breaking or entering charge, the jury could not find him guilty of felony larceny pursuant to breaking or entering. “A motion in arrest of judgment is directed to some fatal defect appearing on the face of the record.” State v. Goss, 293 N.C. 147, 150, 235 S.E. 2d 844, 847 (1977). “When error does not appear on the face of the record proper, the judgment will be affirmed.” State v. Lindley, 286 N.C. 255, 259, 210 S.E. 2d 207, 211 (1974). The bill of indictment, the verdict, and the judgment all conform. There is no defect on the face of the record. This assignment of error has no merit.

- Defendant, by his Assignment of Error No. 3, contends the trial court erred in instructing the jury that it could return a verdict on the charge of felonious larceny pursuant to breaking or entering. Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure provides: “No party may assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection. . . .” Defendant failed to object before the jury retired to that portion of the judge’s instructions to the jury to which he now takes exception, although the court gave him opportunities to object. Lacking a properly-preserved exception, this assignment of error has no merit.

Finally, defendant contends the trial court erred by denying defendant’s motion “to dismiss the jury’s verdict of felonious larceny for insufficiency of evidence to sustain a conviction.” Under this assignment of error, defendant merely incorporates the arguments advanced under Assignments of Error No. 5 and No. 3. In reviewing the denial of a motion to dismiss, we must consider the evidence “in the light most favorable to the State to determine if there is substantial evidence of every essential element of the crime.” State v. McKinnon, 306 N.C. 288, 298, 293 S.E. 2d 118, 125 (1982). We have reviewed the evidence in the record and find it was sufficient to show that defendant took the goods, and the goods had a value in excess of $400.00. This assignment of error has no merit.

Defendant had a fair trial free from prejudicial error.

No error.

Judges ARNOLD and Wells concur.