State v. Steelman , 62 N.C. App. 311 ( 1983 )

302 S.E.2d 637 (1983)

STATE of North Carolina
v.
Steve Allen STEELMAN.

No. 8223SC817.

Court of Appeals of North Carolina.

May 17, 1983.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. John R.B. Matthis and Associate Atty. Gen. Philip A. Telfer, Raleigh, for the State.

Vannoy, Moore & Colvard by J. Gary Vannoy, North Wilkesboro, for defendant-appellant.

WEBB, Judge.

The only question brought forward in this appeal is whether the court erred in denying defendant's motion to dismiss at the close of all the evidence. Defendant does not argue that the evidence was insufficient to show that the crimes were in fact committed. His sole contention is that the State failed to offer sufficient evidence to prove his identity as the driver of the vehicle at the time the offenses were committed. We do not agree.

We believe State v. Newton, 207 N.C. 323, 177 S.E. 184 (1934), supports the trial court's denial of defendant's motion. In Newton, two men, traveling toward Farmville in a Ford roadster with yellow wheels, struck and injured some children on the shoulder of the road and then drove on. A Ford roadster, with yellow wheels, was subsequently seen by a witness about ¼ mile away. Between the time the children were struck and the time this witness arrived at their location, no other cars passed. Apparently about ten minutes later, a Ford roadster, headed toward Farmville, was found wrecked on the same highway. The two defendants, who were near the car, indicated that they had been drinking and that they had had another wreck. The court found this evidence sufficient to go to the jury on the issue of whether the car which struck the children was under the control of the defendants.

In the present case, as in Newton, there was apparently a period of time when no one saw the car involved in the offenses. The defendant in this case theorizes that during that interval, the driver and passenger could have switched positions. This argument ignores the uncontroverted fact that Officer Parsons and the highway patrolman both described the driver as male and the passenger as female. The defendant also submits that some unknown third person could have got out from behind the wheel and let defendant drive. We recognize that there are numerous possibilities as to what might have happened on the logging road that night. For circumstantial evidence to be sufficient to overcome a motion to dismiss, it need not, however, point unerringly toward the defendant's guilt so as to exclude all other reasonable hypotheses. State v. Jones, 303 N.C. 500, 279 S.E.2d 835 (1981). The evidence is sufficient to go to the jury if it gives rise to "a reasonable inference of defendant's guilt." State v. Rowland, 263 N.C. 353, 358, 139 S.E.2d 661, 665 (1965). We have reviewed the evidence in the light most favorable to the State and find it sufficient to support a reasonable inference of defendant's guilt and hence withstand defendant's motion to dismiss.

Defendant also contends his motion to dismiss should have been allowed because the highway patrolman's testimony which identified defendant as the driver of the wrecked car was "inherently incredible as a matter of law." The highway patrolman, who had never seen defendant before, testified that he was approximately 30 feet away when the car doors opened and the driver and passenger ran. Although the sun had gone down, it was still light. The patrolman made his identification as he ran toward the side of the fleeing driver, and he was able to give other officers a description of this man. We believe there is a reasonable possibility that the patrolman had sufficient observation of the driver to permit him to subsequently identify the defendant. The credibility of his testimony was thus a matter for jury determination. State v. Miller, 270 N.C. 726, 154 S.E.2d 902 (1967).

No error.

BECTON and PHILLIPS, JJ., concur.