4/2/2024 0 Comments Motion to vacate dismissal![]() The prosecutor should be very specific in his or her response, and point out exactly what evidence establishes that element, remembering that all the evidence is viewed in the light most favorable to the state and with all inconsistencies resolved in the state’s favor. For example, the defense might argue that the state offered insufficient evidence to show that the defendant used a weapon, so the jury should only be charged on common law robbery instead of armed robbery. One specific element: Alternatively, the defense may argue that the state failed to offer sufficient proof as to one specific fact or detail, and try to use that to limit the charges that can go to the jury. The state’s response to such a motion can be fairly short as well, but the prosecutor should still briefly summarize the favorable evidence that supports the elements of the offense, and ask that the case be submitted to the jury.Ģ. The attorney may even acknowledge that he or she is just making the motion “for the record” and “we don’t need to be heard further.” This type of general motion is usually sufficient for appellate purposes. General motion: Defense attorneys often make a blanket assertion that “the state has not met its burden in the case” without offering specific reasons. The specific basis for a defendant’s motion to dismiss will obviously depend on the unique facts of each case, but most of them tend to fall into two categories:ġ. The same standard for evaluating a motion to dismiss for insufficient evidence applies regardless of when the motion is made, and regardless of the type of evidence (i.e., direct or circumstantial) offered by the state. The ultimate question for the judge is “whether a reasonable inference of defendant’s guilt may be drawn from the circumstances.” State v. ![]() ![]() Furthermore, the court should only evaluate whether sufficient evidence exists for the jury to consider the charge, not the weight of the evidence. The court should consider all the evidence actually admitted, whether competent or not, that is favorable to the state.Any contradictions or discrepancies in the evidence are left to the jury to resolve and.Evaluated without regard to the defendant’s evidence (unless that evidence is favorable to the state).The evidence must be viewed in the light most favorable to the state, and giving the state the benefit of all reasonable inferences. As long as there is substantial evidence as to both issues, the motion to dismiss should be denied if the evidence only raises a suspicion or conjecture as to either or both elements, the motion should be granted. “Substantial evidence” has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Upon a defense motion to dismiss for insufficient evidence, the question to be decided by the judge is whether there is “substantial evidence” of: (i) each essential element of the offense (or lesser-included offense) and (ii) the identity of the defendant as the perpetrator of that offense. Regardless of whether it is styled as a motion to dismiss, motion for nonsuit, or motion for directed verdict, the legal effect is substantially the same. 15A-1414 (motion to dismiss after verdict or set aside verdict). There is little or no practical difference between the two. 15-173 (“Demurrer to the evidence,” allowing defendant to “move to dismiss the action, or for judgment as in case of nonsuit” after the state has rested its evidence). 15A-1227 is fundamentally the same as the motion described in G.S. The judge “must rule on a motion to dismiss for insufficiency of the evidence before the trial may proceed.” G.S. Failure to make a motion to dismiss at the close of the state’s evidence or at the close of all the evidence does not bar the defense from making a motion at either of the other two later times. This motion can be made: (i) at the close of the state’s evidence (ii) at the close of all the evidence (iii) after a guilty verdict has been returned and before the court enters judgment or (iv) after discharging the jury without a verdict and before the end of the court session. 15A-1227, the defendant may make a motion to dismiss the case on the grounds that there is insufficient evidence to sustain a conviction.
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