Renewing An Argument at the Close of All the Evidence
In State v. Boyd, 162 N.C. App. 159, 595 S.E.2d 697 (2004), the defendant was charged with Conspiracy to Sell a Controlled Substance, Sale of a Controlled Substance, Contributing to the Delinquency of a Minor, and Employing and Using a Minor to Commit a Controlled Substance Offense. Id. at 161, 595 S.E.2d at 698.
At the close of the State's evidence, the defense counsel stated to the trial court: "I think, taking the evidence in the light most favorable to the State, their strongest case seems to be for conspiracy.
And so, I don't care to be heard on that . . . I'll ask you to dismiss the sale, at the close of evidence." Id. at 161, 595 S.E.2d at 698.
At the close of all the evidence, the defense counsel stated that the defense "would rest and renew our motions to dismiss." Id. at 162, 595 S.E.2d at 699.
The Court concluded that the defendant had not preserved his sufficiency challenge for appellate review:
At the close of all the evidence, defense counsel renewed his argument that he "didn't care to be heard" on the conspiracy charge because "their strongest evidence seems to be for conspiracy." Defense counsel did not avail himself of his opportunity to move to dismiss the conspiracy charge at the close of the State's evidence, and thus, he could not renew a nonexistent motion at the close of all evidence. Accordingly, we are precluded from reviewing the merits of Defendant's argument. Id.