An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-540 NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Lincoln County No. 11 CRS 51150 SIDNEY NOEL HOFFMAN
Appeal by defendant from judgment entered 3 August 2012 by
Judge Robert T. Sumner in Lincoln County Superior Court. Heard
in the Court of Appeals 31 March 2014.
Roy Cooper, Attorney General, by Amanda P. Little, Assistant Attorney General, for the State.
Leslie C. Rawls for defendant-appellant.
DAVIS, Judge.
Sidney Noel Hoffman (“Defendant”) appeals from his
conviction for robbery with a dangerous weapon. The charge
arose from an incident at First Citizens Bank where Defendant
informed a bank teller that she was being robbed and she
observed the tip of a gun in his sleeve during their
interaction. On appeal, he argues that the trial court erred by
(1) denying his motion to suppress; (2) denying his motion to -2- dismiss the charge of robbery with a dangerous weapon; and (3)
instructing the jury on the charge of robbery with a dangerous
weapon. After careful review, we conclude that Defendant
received a fair trial free from error.
Factual Background
On 18 April 2011, Defendant was charged with robbery with a
dangerous weapon. Defendant filed a pre-trial motion to
suppress (1) a gun and notebook seized at his residence; and (2)
a videotaped interview of Defendant. The trial court conducted
a suppression hearing on 30 July 2012.
Lieutenant Tim Johnson (“Lieutenant Johnson”) of the
Lincoln County Sheriff’s Office testified that after arresting
Defendant, he advised him of his Miranda rights and Defendant
declined to make a statement without an attorney. Defendant was
appointed counsel the next morning. Lieutenant Johnson
subsequently received Defendant’s inmate request form stating:
“Need to speak to Lieutenant Johnson from investigation
concerning my case against me.” Lieutenant Johnson met with
Defendant in an interview room. Defendant waived his Miranda
rights, and in the videotaped interview, he told Lieutenant
Johnson that he robbed the bank but did not have a gun.
Defendant also told Lieutenant Johnson where to find the clothes -3- he wore during the robbery and a notebook with bank robbery
“practice” notes that he created.
Lieutenant Johnson also testified at the suppression
hearing that the bank teller, Susan Fleming (“Ms. Fleming”),
gave a statement to a responding officer that she saw the tip of
a gun hidden in the robber’s shirt sleeve. On cross-
examination, Lieutenant Johnson admitted that “[t]here was no
description really of the gun.” At the conclusion of the
hearing, the trial court denied the motion and the case
proceeded to trial.
The State’s evidence at trial tended to show the following:
On 11 April 2011, Defendant entered a First Citizens Bank in
Denver, North Carolina, approached Ms. Fleming and handed her a
note that said: “You’re being robbed, I have a gun and I will
shoot you.” Ms. Fleming, who saw the tip of a gun inside
Defendant’s shirt cuff, handed Defendant money from her bank
drawer. Defendant left the bank and drove off in a silver
compact car. Ms. Fleming and other bank employees gave
statements to responding police officers.
After receiving a tip, officers went to the home Defendant
shared with his girlfriend, Louise Mazziotti (“Ms. Mazziotti”),
and observed a silver car in the carport. Police obtained -4- consent to search the home and found a gun, registered to Ms.
Mazziotti, on the living room table.
Defendant admitted that he entered the bank, gave a note to
the teller demanding money, and left with the money given to him
by her. Defendant, however, testified that he “never had a gun
at any time in First Citizens Bank.”
The trial court instructed the jury on robbery with a
dangerous weapon and common law robbery. The jury found
Defendant guilty of robbery with a dangerous weapon. The trial
court sentenced Defendant to a term of 75 to 99 months active
imprisonment. Defendant appealed to this Court.
Counsel appointed to represent Defendant has been unable to
identify any issue with sufficient merit to support a meaningful
argument for relief on appeal and asks that this Court conduct
its own review of the record for possible prejudicial error.
Counsel has also shown to the satisfaction of this Court that
she has complied with the requirements of Anders v. California,
386 U.S. 738, 18 L.Ed.2d 493 (1967), and State v. Kinch, 314
N.C. 99, 331 S.E.2d 665 (1985), by advising Defendant of his
right to file written arguments with this Court and providing
him with the documents necessary for him to do so. Defendant
filed written arguments with this Court on 12 August 2013. -5- Analysis
First, Defendant claims the trial court erred by denying
his motion to suppress the gun and his videotaped statement.
Our review of a trial court’s denial of a motion to suppress is
“strictly limited to determining whether the trial judge’s
underlying findings of fact are supported by competent evidence,
in which event they are conclusively binding on appeal, and
whether those factual findings in turn support the judge’s
ultimate conclusions of law.” State v. Cooke, 306 N.C. 132,
134, 291 S.E.2d 618, 619 (1982). “The trial court’s conclusions
of law . . . are fully reviewable on appeal.” State v. Hughes,
353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).
Defendant asserts the trial court erred in not suppressing
the gun because the trial court’s Finding of Fact 10 is not
supported by the evidence. Finding of Fact 10 states that “a
bank teller-witness at the time of the robbery gave a statement
to the investigating officer that she saw the tip of a gun in
the sleeve of the Defendant’s shirt but could not otherwise
describe the gun.” Lieutenant Johnson testified that Ms.
Fleming told Detective William Pitts (“Detective Pitts”) of the
Lincoln County Sheriff’s Office that she saw the tip of a gun in
Defendant’s sleeve. Lieutenant Johnson admitted there was no -6- other description of the gun. We believe the foregoing
testimony is sufficient to support the challenged finding of
fact.
Defendant also contends the trial court erred in not
suppressing the videotaped statement because “his will was
overcome to contact the Lt. to discuss his case.” Evidence
presented at the suppression hearing shows that Defendant
checked and initialed the following paragraph of his second
Miranda warning on 13 April 2011: “I contacted Lieutenant Tim
Johnson and also . . . Lincoln County Sheriff’s Office in
reference to this case. No promises or threats have been made
to me, no pressure or coercion of any kind has been used against
me.” This evidence is sufficient to support the trial court’s
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-540 NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Lincoln County No. 11 CRS 51150 SIDNEY NOEL HOFFMAN
Appeal by defendant from judgment entered 3 August 2012 by
Judge Robert T. Sumner in Lincoln County Superior Court. Heard
in the Court of Appeals 31 March 2014.
Roy Cooper, Attorney General, by Amanda P. Little, Assistant Attorney General, for the State.
Leslie C. Rawls for defendant-appellant.
DAVIS, Judge.
Sidney Noel Hoffman (“Defendant”) appeals from his
conviction for robbery with a dangerous weapon. The charge
arose from an incident at First Citizens Bank where Defendant
informed a bank teller that she was being robbed and she
observed the tip of a gun in his sleeve during their
interaction. On appeal, he argues that the trial court erred by
(1) denying his motion to suppress; (2) denying his motion to -2- dismiss the charge of robbery with a dangerous weapon; and (3)
instructing the jury on the charge of robbery with a dangerous
weapon. After careful review, we conclude that Defendant
received a fair trial free from error.
Factual Background
On 18 April 2011, Defendant was charged with robbery with a
dangerous weapon. Defendant filed a pre-trial motion to
suppress (1) a gun and notebook seized at his residence; and (2)
a videotaped interview of Defendant. The trial court conducted
a suppression hearing on 30 July 2012.
Lieutenant Tim Johnson (“Lieutenant Johnson”) of the
Lincoln County Sheriff’s Office testified that after arresting
Defendant, he advised him of his Miranda rights and Defendant
declined to make a statement without an attorney. Defendant was
appointed counsel the next morning. Lieutenant Johnson
subsequently received Defendant’s inmate request form stating:
“Need to speak to Lieutenant Johnson from investigation
concerning my case against me.” Lieutenant Johnson met with
Defendant in an interview room. Defendant waived his Miranda
rights, and in the videotaped interview, he told Lieutenant
Johnson that he robbed the bank but did not have a gun.
Defendant also told Lieutenant Johnson where to find the clothes -3- he wore during the robbery and a notebook with bank robbery
“practice” notes that he created.
Lieutenant Johnson also testified at the suppression
hearing that the bank teller, Susan Fleming (“Ms. Fleming”),
gave a statement to a responding officer that she saw the tip of
a gun hidden in the robber’s shirt sleeve. On cross-
examination, Lieutenant Johnson admitted that “[t]here was no
description really of the gun.” At the conclusion of the
hearing, the trial court denied the motion and the case
proceeded to trial.
The State’s evidence at trial tended to show the following:
On 11 April 2011, Defendant entered a First Citizens Bank in
Denver, North Carolina, approached Ms. Fleming and handed her a
note that said: “You’re being robbed, I have a gun and I will
shoot you.” Ms. Fleming, who saw the tip of a gun inside
Defendant’s shirt cuff, handed Defendant money from her bank
drawer. Defendant left the bank and drove off in a silver
compact car. Ms. Fleming and other bank employees gave
statements to responding police officers.
After receiving a tip, officers went to the home Defendant
shared with his girlfriend, Louise Mazziotti (“Ms. Mazziotti”),
and observed a silver car in the carport. Police obtained -4- consent to search the home and found a gun, registered to Ms.
Mazziotti, on the living room table.
Defendant admitted that he entered the bank, gave a note to
the teller demanding money, and left with the money given to him
by her. Defendant, however, testified that he “never had a gun
at any time in First Citizens Bank.”
The trial court instructed the jury on robbery with a
dangerous weapon and common law robbery. The jury found
Defendant guilty of robbery with a dangerous weapon. The trial
court sentenced Defendant to a term of 75 to 99 months active
imprisonment. Defendant appealed to this Court.
Counsel appointed to represent Defendant has been unable to
identify any issue with sufficient merit to support a meaningful
argument for relief on appeal and asks that this Court conduct
its own review of the record for possible prejudicial error.
Counsel has also shown to the satisfaction of this Court that
she has complied with the requirements of Anders v. California,
386 U.S. 738, 18 L.Ed.2d 493 (1967), and State v. Kinch, 314
N.C. 99, 331 S.E.2d 665 (1985), by advising Defendant of his
right to file written arguments with this Court and providing
him with the documents necessary for him to do so. Defendant
filed written arguments with this Court on 12 August 2013. -5- Analysis
First, Defendant claims the trial court erred by denying
his motion to suppress the gun and his videotaped statement.
Our review of a trial court’s denial of a motion to suppress is
“strictly limited to determining whether the trial judge’s
underlying findings of fact are supported by competent evidence,
in which event they are conclusively binding on appeal, and
whether those factual findings in turn support the judge’s
ultimate conclusions of law.” State v. Cooke, 306 N.C. 132,
134, 291 S.E.2d 618, 619 (1982). “The trial court’s conclusions
of law . . . are fully reviewable on appeal.” State v. Hughes,
353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).
Defendant asserts the trial court erred in not suppressing
the gun because the trial court’s Finding of Fact 10 is not
supported by the evidence. Finding of Fact 10 states that “a
bank teller-witness at the time of the robbery gave a statement
to the investigating officer that she saw the tip of a gun in
the sleeve of the Defendant’s shirt but could not otherwise
describe the gun.” Lieutenant Johnson testified that Ms.
Fleming told Detective William Pitts (“Detective Pitts”) of the
Lincoln County Sheriff’s Office that she saw the tip of a gun in
Defendant’s sleeve. Lieutenant Johnson admitted there was no -6- other description of the gun. We believe the foregoing
testimony is sufficient to support the challenged finding of
fact.
Defendant also contends the trial court erred in not
suppressing the videotaped statement because “his will was
overcome to contact the Lt. to discuss his case.” Evidence
presented at the suppression hearing shows that Defendant
checked and initialed the following paragraph of his second
Miranda warning on 13 April 2011: “I contacted Lieutenant Tim
Johnson and also . . . Lincoln County Sheriff’s Office in
reference to this case. No promises or threats have been made
to me, no pressure or coercion of any kind has been used against
me.” This evidence is sufficient to support the trial court’s
finding and conclusion that Defendant’s statement given to
Lieutenant Johnson was voluntarily and knowingly made.
Accordingly, the trial court properly denied Defendant’s motion
to suppress.
Defendant next contends that the trial court erred in
denying his motion to dismiss because the State failed to
present sufficient evidence of robbery with a dangerous weapon.
“‘Upon defendant’s motion for dismissal, the question for the
Court is whether there is substantial evidence (1) of each -7- essential element of the offense charged, or of a lesser offense
included therein, and (2) of defendant’s being the perpetrator
of such offense. If so, the motion is properly denied.’” State
v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting
State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)),
cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000).
“Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” State
v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). “In
making its determination, the trial court must consider all
evidence admitted, whether competent or incompetent, in the
light most favorable to the State, giving the State the benefit
of every reasonable inference and resolving any contradictions
in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d
211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L.Ed.2d 818
(1995).
“[T]he essential elements of robbery with a dangerous
weapon are: ‘(1) the unlawful taking or attempted taking of
personal property from another, (2) the possession, use or
threatened use of firearms or other dangerous weapon, implement
or means, and (3) danger or threat to the life of the victim.’”
State v. Allred, 131 N.C. App. 11, 19, 505 S.E.2d 153, 158 -8- (1998) (quoting State v. Donnell, 117 N.C. App. 184, 188, 450
S.E.2d 533, 536 (1994)). Defendant asserts the State failed to
present evidence of elements two and three, pointing to evidence
indicating that Ms. Fleming’s testimony was inconsistent with
her written statements to responding officers.
Here, Ms. Fleming testified that (1) when Defendant
approached her teller window, he gave her a note that said:
“You’re being robbed, I have a gun and I will shoot you;” (2)
she saw the tip of a gun inside Defendant’s right-arm shirt
cuff; and (3) she complied with Defendant’s demand by handing
him money from her bank drawer because “[she] was scared.”
Further, Ms. Fleming’s testimony at trial is consistent with the
statement she gave to Detective Pitts on the day of the robbery.
Any discrepancy in the evidence was for the jury to resolve.
See State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595
(1992). Therefore, we conclude that the trial court properly
denied Defendant’s motion to dismiss.
Finally, Defendant contends the trial court erred in
instructing the jury on the charge of robbery with a dangerous
weapon. Defendant asserts there was insufficient evidence to
support the instruction and that the instruction was misleading.
Defendant acknowledges that because he failed to object to this -9- instruction at trial, our standard of review is limited to
reviewing for plain error. Plain error only arises when the
error is “so basic, so prejudicial, so lacking in its elements
that justice cannot have been done[.]” State v. Lawrence, 365
N.C. 506, 516-17, 723 S.E.2d 326, 333 (2012) (citation and
quotation marks omitted). We have reviewed the trial court’s
instructions in their entirety and find no plain error.
Conclusion
In accordance with Anders, we have fully examined the
record to determine whether any issues of arguable merit appear
therefrom or whether Defendant’s appeal is wholly frivolous.
Because Defendant has raised only issues which are meritless, we
conclude his appeal is wholly frivolous. Furthermore, we have
examined the record for possible prejudicial error against
Defendant and found none.
NO ERROR.
Judges McGEE and ELMORE concur.
Report per Rule 30(e).