An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-645 NORTH CAROLINA COURT OF APPEALS Filed: 15 April 2014 STATE OF NORTH CAROLINA
Columbus County v. No. 11 CRS 53760, 53725-27
RICKY LEVELL MITCHELL
Appeal by defendant from judgments entered 20 February 2013
by Judge D. Jack Hooks, Jr., in Columbus County Superior Court.
Heard in the Court of Appeals 21 November 2013.
Attorney General Roy Cooper, by Assistant Attorney General Scott A. Conklin, for the State.
Unti & Lumsden LLP, by Margaret C. Lumsden, for Defendant.
ERVIN, Judge.
Defendant Ricky Levell Mitchell appeals from judgments
sentencing him to a term of 64 to 86 months imprisonment based
upon his convictions for robbery with a dangerous weapon and
obtaining property by false pretenses and to a term of 6 to 8
months imprisonment based upon his convictions for uttering a
forged instrument. On appeal, Defendant argues that the trial
court erred by denying his motions to dismiss the robbery with a
dangerous weapon charge, by failing to instruct the jury
concerning the issue of his guilt of the lesser included offense -2- of common law robbery, by joining all of the charges that had
been lodged against him for trial, and by allowing the admission
of impermissible lay opinion testimony, and that he received
ineffective representation from his trial counsel given his
trial counsel’s failure to request that the jury be instructed
concerning the issue of his guilt of the lesser included offense
of common law robbery. After careful consideration of
Defendant’s challenges to the trial court’s judgments in light
of the record and the applicable law, we conclude that the trial
court’s judgments should remain undisturbed.
I. Factual Background
A. Substantive Facts
1. The Checks
Lee A. Walker, a resident of the Lake Waccamaw retirement
home, became friends with Defendant’s mother, Melinda Mitchell.
Ms. Mitchell, a nursing assistant at the retirement home, would
take Mr. Walker with her to church. Mr. Walker had his mail,
including financial information, sent to Ms. Mitchell’s address
because he did not trust the way in which the retirement home
handled his mail. In addition, Ms. Mitchell helped Mr. Walker
set up a checking account at the State Employees’ Credit Union.
Defendant often accompanied Ms. Mitchell and Mr. Walker to the
SECU. -3- After he received an order of checks that had been
delivered to Ms. Mitchell’s residence, Mr. Walker noticed that
the box containing the checks had been opened and that a pack of
checks was missing. Subsequently, Mr. Walker discovered that
three checks written on his account in the total amount of
$1,900 had been cashed on 7 October 2011, 10 October 2011, and
15 October 2011, respectively. Mr. Walker denied having written
the checks in question or authorizing anyone to access the
monies contained in his account.
After discovering that the checks had been cashed, Mr.
Walker spoke with Ms. Linda Cartrette, a SECU employee. After
Ms. Cartrette showed him photographs of an individual cashing
the checks, Mr. Walker identified Defendant as the person
depicted in those photographs and told Ms. Cartrette that he had
not given Defendant permission to engage in the transactions.
Upon comparing the signatures on the cashed checks with Mr.
Walker’s signature, Ms. Cartrette confirmed that the two
signatures did not match.
2. The Robbery
On 7 November 2011, Defendant, Tremayne Davis, and Kendrell
Robinson decided to arrange to sell some marijuana to Mr. Walker
as a pretext for robbing him. After speaking with Defendant by
telephone, Mr. Walker agreed to meet Defendant at the retirement
home. According to Mr. Davis, who testified for the State -4- pursuant to an agreement under which he was allowed to plead
guilty to common law robbery and receive a probationary
sentence, Mr. Walker was at the meeting place when the group
arrived. At that point, all three men got out of the car. As
Mr. Davis and Mr. Robinson, who was carrying a gun, approached
Mr. Walker and pointed the gun at Mr. Walker’s head, Mr. Davis
told Mr. Walker to “give it up,” grabbed the money that was in
Mr. Walker’s hands, and took his cell phone and a wallet
containing an ATM card before reentering the car with the rest
of the group and driving away.1
After the robbery, the three men drove to a grocery store
at which Defendant used Mr. Walker’s ATM card to obtain cash.
According to Mr. Walker, the PIN number associated with his ATM
card had been mailed to the residence of Defendant’s mother.
Subsequently, the three men drove to a second ATM and made
another effort to obtain cash using Mr. Walker’s ATM card.
However, this attempt failed because the card had been
deactivated. According to Mr. Davis, Defendant had Mr. Walker’s
card reactivated by phone and made another withdrawal.
After being dispatched to the scene of the robbery, Officer
Adam Sellers of the Lake Waccamaw Police Department spoke with
Mr. Walker and made arrangements to have Mr. Walker’s ATM card 1 Mr. Walker could not identify the individuals involved in the robbery and simply recalled that two men got out of the car and approached him while another person remained in the car. -5- permanently deactivated. While speaking with Officer Sellers,
Mr. Walker mentioned Defendant as a potential suspect and
described the car that had been used to facilitate the robbery.
Later that night, law enforcement stopped the vehicle in which
Defendant was riding based on outstanding warrants that had been
issued as a result of the unauthorized cashing of checks drawn
on Mr. Walker’s account. Although Defendant denied having had
any involvement in the robbery of Mr. Walker, Officer Sellers
testified that the sweatshirt that Defendant was wearing at the
time that he was taken into custody matched the sweatshirt worn
by an individual photographed using an ATM that night.
B. Procedural History
On 7 November 2011, warrants for arrest charging Defendant
with three counts of forgery and uttering were issued. On 10
November 2011, a warrant for arrest charging Defendant with
robbery with a dangerous weapon and obtaining property by false
pretenses was issued. On 9 May 2012, the Columbus County grand
jury returned a bill of indictment charging Defendant with
robbery with a dangerous weapon and obtaining property by false
pretenses. On 8 August 2012, the Columbus County grand jury
returned bills of indictment charging Defendant with three
counts of forgery and uttering. On 6 September 2012, the
Columbus County grand jury returned superseding indictments in
two of the three forgery and uttering cases. -6- The charges against Defendant came on for trial before the
trial court and a jury at the 18 February 2013 criminal session
of the Columbus County Superior Court. At the beginning of the
trial proceedings, the trial court allowed the State’s motion to
join all of the charges that had been lodged against Defendant
for trial. At the conclusion of the State’s evidence, the trial
court granted Defendant’s motion to dismiss the forgery charges
for insufficiency of the evidence. On 20 February 2013, the
jury returned a verdict convicting Defendant of robbery with a
dangerous weapon, obtaining property by false pretenses, and
three counts of uttering a forged instrument. At the conclusion
of the ensuing sentencing hearing, the trial court consolidated
Defendant’s robbery with a dangerous weapon and obtaining
property by false pretenses convictions for judgment and entered
a judgment sentencing Defendant to a term of 64 to 86 months
imprisonment and consolidated Defendant’s convictions for
uttering a forged instrument for judgment and entered a judgment
sentencing Defendant to a term of 6 to 8 months imprisonment.
Although Defendant contends that his trial counsel intended
to give oral notice of appeal in open court after the entry of
judgment, the record is completely devoid of any indication that
Defendant’s appeal from the trial court’s judgments was ever
noted either orally or in writing. On 5 August 2013 and 26
August 2013, respectively, Defendant filed a petition and an -7- amended petition seeking the issuance of a writ of certiorari
authorizing appellate review of the 20 February 2013 judgments.
As a result of the fact that “[t]he writ of certiorari may be
issued in appropriate circumstances by either appellate court to
permit review of the judgments and orders of trial tribunals
when the right to prosecute an appeal has been lost by failure
to take timely action,” N.C.R. App. P. 21(a), and our belief
that Defendant should not lose the right to appellate review of
the trial court’s judgments based upon the apparent failure of
his trial counsel to note an appeal from the trial court’s
judgments in a timely manner, we elect, in the exercise of our
discretion, to grant Defendant’s certiorari petition.2
II. Substantive Legal Analysis
A. Sufficiency of the Evidence of Robbery
In his initial challenge to the trial court’s judgments,
Defendant contends that the trial court erred by denying his
motion to dismiss the robbery charge for insufficiency of the
evidence. More specifically, Defendant argues that the trial
court should have granted Defendant’s dismissal motion because 2 N.C.R. App. P. 9(b)(1) states that “[t]he items constituting the record on appeal should be arranged, so far as practicable, in the order in which they occurred or were filed in the trial tribunal.” However, the record on appeal in this case was arranged, to a considerable extent, by grouping items on the basis of the file number assigned to those items in the court below. We urge counsel representing parties on appeal to comply with the chronological presentation requirement mandated by N.C.R. App. P. 9(b)(1). -8- the record contained no indication that he possessed a firearm
during the robbery. Defendant’s argument lacks merit.
1. Standard of Review
In reviewing the denial of a defendant’s motion to dismiss,
“‘the question for the Court is whether there is substantial
evidence (1) of each 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, 121 S. Ct.
213, 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, 115 S. Ct. 2565, 132 L. Ed. 2d 818
(1995).
2. Sufficiency of the Evidence to Support Robbery Conviction -9- The elements of the crime 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 a firearm or other dangerous weapon, and (3)
the creation of a danger or threat to the life of the victim.
N.C. Gen. Stat. § 14-87(a); State v. Joyner, 295 N.C. 55, 63,
243 S.E.2d 367, 373 (1978). “Under the theory of acting in
concert, if two or more persons join in a purpose to commit a
crime, each person is responsible for all unlawful acts
committed by the other persons as long as those acts are
committed in furtherance of the crime’s common purpose.” State
v. Hill, 182 N.C. App. 88, 92-93, 641 S.E.2d 380, 385 (2007)
(citing State v. Erlewine, 328 N.C. 626, 637, 403 S.E.2d 280,
286 (1991)). As a result, in order to establish a defendant’s
guilt of the crime of robbery with a dangerous weapon, “the
State need not present evidence that defendant actually
possessed the dangerous weapon” and “must only show that
defendant ‘acted in concert to commit robbery and that his co-
defendant used the dangerous weapon in pursuance of that common
purpose to commit robbery.’” Hill, 182 N.C. App. at 93, 641
S.E.2d at 385 (quoting State v. Johnson, 164 N.C. App. 1, 13,
595 S.E.2d 176, 183, disc. review denied, 359 N.C. 194, 607
S.E.2d 658 (2004)). -10- The record, when viewed in the light most favorable to the
State, contains evidence tending to show that Defendant, Mr.
Davis, and Mr. Robinson acted in concert for the purpose of
robbing Mr. Walker of his money, wallet, and cell phone; that a
gun was used during the commission of this criminal offense; and
that Mr. Walker felt that his life was endangered during the
robbery. The fact that the robbery indictment returned against
Defendant did not allege that he acted as an accomplice or aided
and abetted Mr. Davis and Mr. Robinson simply has no bearing on
the proper resolution of this issue. As a result, the record
contains ample evidence tending to show Defendant’s guilt of
robbery with a dangerous weapon on the grounds that he acted in
concert to commit that offense with Mr. Davis and Mr. Robinson,
a fact that establishes that the trial court correctly denied
Defendant’s motion to dismiss the robbery with a dangerous
weapon charge.
B. Common Law Robbery Instruction
Secondly, Defendant contends that the trial court erred by
failing to instruct the jury concerning the issue of his guilt
of the lesser included offense of common law robbery. According
to Defendant, the jury should have been allowed to consider the
issue of his guilt of common law robbery on the grounds that the
record contains evidence tending to show that he did not use a -11- weapon during the robbery of Mr. Walker. We do not find
Defendant’s argument persuasive.
“[A] trial judge must instruct the jury on all lesser
included offenses that are supported by the evidence, even in
the absence of a special request for such an instruction,” with
“the failure to do so [constituting] reversible error which is
not cured by a verdict finding the defendant guilty of the
greater offense.” State v. Montgomery, 341 N.C. 553, 567, 461
S.E.2d 732, 739 (1995). “The trial court may refrain from
submitting the lesser offense to the jury only where the
‘evidence is clear and positive as to each element of the
offense charged’ and no evidence supports a lesser-included
offense.” State v. Lawrence, 352 N.C. 1, 19, 530 S.E.2d 807,
819 (2000) (quoting State v. Peacock, 313 N.C. 554, 558, 330
S.E.2d 190, 193 (1985)), cert. denied, 531 U.S. 1083, 121 S. Ct.
789, 148 L. Ed. 2d 684 (2001). As a result, the ultimate issue
raised by Defendant’s challenge to the trial court’s failure to
submit the issue of his guilt of the lesser included offense of
common law robbery for the jury’s consideration is whether the
record contains sufficient evidence from which the jury could
have reasonably concluded that Defendant was guilty of that
offense.
2. Common Law Robbery -12- Common law robbery, which is “the non-consensual taking of
money or personal property from another by means of violence or
fear,” State v. White, 142 N.C. App. 201, 204, 542 S.E.2d 265,
267 (2001), is “a lesser included offense of armed robbery or
robbery with a firearm or other dangerous weapon,” so that “an
indictment for armed robbery will support a conviction of common
law robbery.” State v. Tarrant, 70 N.C. App. 449, 451, 320
S.E.2d 291, 293-94 (1984). “The critical difference between
armed robbery and common law robbery is that the former is
accomplished by the use or threatened use of a dangerous weapon
whereby the life of a person is endangered or threatened” while
“[t]he use or threatened use of a dangerous weapon is not an
essential element of common law robbery.” Peacock, 313 N.C. at
562-63, 330 S.E.2d at 195 (citations omitted). “[T]he trial
judge is not required to instruct on common law robbery when the
defendant is indicted for armed robbery if the uncontradicted
evidence indicates that the robbery, if perpetrated, was
accomplished by the use of what appeared to be a dangerous
weapon.” Tarrant, 70 N.C. App. at 451-52, 320 S.E.2d at 294
(citing State v. Porter, 303 N.C. 680, 686-87, 281 S.E.2d 377,
382 (1980)).
As the uncontroverted evidence contained in the present
record tends to show, the robbery of Mr. Walker was committed
with the threatened use of a firearm. More specifically, both -13- Mr. Walker and Mr. Davis testified that a gun was used during
the robbery. The record contains absolutely no evidence tending
to contradict this aspect of the testimony presented by Mr.
Walker and Mr. Davis. For that reason, we have no hesitation in
concluding that all of the evidence tends to show that
Defendant, Mr. Davis, and Mr. Robinson, who were acting in
concert, took Mr. Walker’s property while using a firearm, a
fact that establishes the existence of the elements necessary to
support Defendant’s conviction for robbery with a dangerous
weapon. Joyner, 295 N.C. at 63, 243 S.E.2d at 373. The fact
that Defendant did not actually possess the firearm used during
the robbery of Mr. Walker simply does not, contrary to
Defendant’s contention, have any bearing on the proper
resolution of this issue. As a result, the trial court did not
err by failing to instruct the jury concerning the issue of
Defendant’s guilt of the lesser included offense of common law
robbery.
C. Ineffective Assistance of Counsel
Thirdly, Defendant contends that he received
constitutionally deficient representation from his trial counsel
as the result of his trial counsel’s failure to request the
trial court to instruct the jury concerning the issue of his
guilt of the lesser included offense of common law robbery.
Defendant’s argument lacks merit. -14- “To prevail on a claim of ineffective assistance of
counsel, a defendant must first show that his counsel’s
performance was deficient and then that counsel’s deficient
performance prejudiced his defense.” State v. Allen, 360 N.C.
297, 316, 626 S.E.2d 271, 286 (citing Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693
(1984)), cert. denied, 549 U.S. 867, 127 S. Ct. 164, 166 L. Ed.
2d 116 (2006). “Counsel’s performance is deficient when it
falls ‘below an objective standard of reasonableness.’” State
v. Waring, 364 N.C. 443, 502, 701 S.E.2d 615, 652 (2010)
(quoting Strickland, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L.
Ed. 2d at 693), cert. denied, __ U.S. __, 132 S. Ct. 132, 181 L.
Ed. 2d 53 (2011). A defendant is prejudiced by such deficient
performance when “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different,” with such a “reasonable
probability” being “a probability sufficient to undermine
confidence in the outcome.” Allen, 360 N.C. at 316, 626 S.E.2d
at 286 (citations and quotation marks omitted).
In his brief, Defendant contends that the representation
that he received from his trial counsel was deficient given his
trial counsel’s alleged failure to request the trial court to
instruct the jury concerning the issue of his guilt of the
lesser included offense of common law robbery. The first -15- problem with this argument is that Defendant’s trial counsel
did, in fact, unsuccessfully request that the jury be allowed to
consider the issue of his guilt of common law robbery. In
addition, given the absence of any evidence tending to show that
Defendant was guilty of common law robbery, any deficient
representation that Defendant might have received from his trial
counsel did not prejudice his chances for a more favorable
outcome at trial. As a result, Defendant is not entitled to
relief from the trial court’s judgments based upon this
ineffective assistance of counsel claim.
D. Joinder
Fourthly, Defendant contends that the trial court
erroneously joined all of the offenses with which he had been
charged for trial. More specifically, Defendant argues that the
uttering charges should not have been joined for trial with the
robbery and false pretenses charges given the absence of a
transactional connection between these two sets of offenses. We
are not persuaded by Defendant’s contention.
N.C. Gen. Stat. § 15A-926(a) provides that “[t]wo or more
offenses may be joined . . . for trial when the offenses . . .
are based on the same act or transaction or on a series of acts
or transactions connected together or constituting parts of a
single scheme or plan.” N.C. Gen. Stat. § 15A-926(a). “A
motion to consolidate charges for trial is addressed to the -16- sound discretion of the trial judge and that ruling will not be
disturbed on appeal absent an abuse of discretion.” State v.
Silva, 304 N.C. 122, 126, 282 S.E.2d 449, 452 (1981). “If,
however, the charges consolidated for trial possess no
transactional connection, then the consolidation is improper as
a matter of law.” Id. “In considering whether a transactional
connection exists among offenses, our courts have taken into
consideration such factors as the nature of the offenses
charged, commonality of facts, the lapse of time between
offenses, and the unique circumstances of each case.” State v.
Herring, 74 N.C. App. 269, 273, 328 S.E.2d 23, 26 (1985)
(citations and internal quotation marks omitted), aff’d, 316
N.C. 188, 340 S.E.2d 105 (1986). In resolving the issues raised
by a joinder motion, the trial court must also consider whether
a decision to allow that motion would hinder the defendant’s
ability to present a defense or deprive him or her of a fair
trial. State v. Greene, 294 N.C. 418, 421, 241 S.E.2d 662, 664
(1978). As a result, “[t]he question is whether the offenses
are so separate in time and place and so distinct in
circumstances as to render a consolidation unjust and
prejudicial to defendant.” Id. at 423, 241 S.E.2d at 665.
All of the charges that have been lodged against Defendant
in this case stem from a series of acts which were committed
against Mr. Walker and arose from Defendant’s relationship with -17- Mr. Walker and which were facilitated by Defendant’s familiarity
with Mr. Walker’s financial situation. As a result of the
relationship between his mother and Mr. Walker, Defendant had
access to Mr. Walker’s checks and to information relating to his
SECU account, including the ATM PIN number associated with that
account. According to the evidence presented at trial,
Defendant used the information to which he had access in order
to cash checks drawn on Mr. Walker’s SECU account and to
withdraw money from Mr. Walker’s SECU account using the ATM card
that was stolen during the robbery. According to Mr. Davis, he,
Mr. Robinson, and Defendant decided to rob Mr. Walker in light
of Defendant’s statement to the effect that he knew someone with
money. Thus, since the record shows the existence of a
transactional relationship between the charges that the trial
court allowed to be joined for trial and since we are unable to
see how Defendant was deprived of a fair trial by the trial
court’s decision to join the uttering charges with the robbery
and false pretenses charges, the trial court did not abuse its
discretion by allowing the State’s joinder motion. Silva, 304
N.C. at 126, 282 S.E.2d at 452.3
3 In attempting to persuade us to reach a different result, Defendant cites several cases in which this Court held that a trial court erroneously joined a number of offenses for trial. The cases upon which Defendant relies are easily distinguishable from the instant case, however, given that the cases upon which Defendant relies involved offenses committed against multiple -18- E. Lay Witness Testimony
Finally, Defendant argues that the trial court erred by
allowing the admission of impermissible lay opinion testimony.
More specifically, Defendant contends that the trial court erred
by allowing Ms. Cartrette to describe the differences between
Mr. Walker’s signature and that found on the forged checks,
allowing Officer Sellers to compare the sweatshirt that
Defendant was wearing at the time that he was taken into custody
with the sweatshirt worn by the individual depicted in the ATM
photograph, and by allowing Ms. Cartrette to identify the
individual depicted in the ATM photograph. Defendant is not
entitled to relief from the trial court’s judgments based upon
this series of contentions.
As a general proposition, lay witnesses are permitted to
offer “opinions or inferences which are (a) rationally based on
the perception of the witness and (b) helpful to a clear
understanding of his testimony or the determination of a fact in
issue.” N.C. Gen. Stat. § 8C–1, Rule 701. “[W]hether a lay
witness may testify as to an opinion is reviewed for abuse of
discretion.” State v. Washington, 141 N.C. App. 354, 362, 540
alleged victims while this case involves multiple offenses committed against the same individual stemming from Defendant’s familiarity with and access to that individual’s financial information. -19- S.E.2d 388, 395 (2000), disc. review denied, 353 N.C. 396, 547
S.E.2d 427 (2001). An “[a]buse of discretion results where the
court’s ruling is manifestly unsupported by reason or is so
arbitrary that it could not have been the result of a reasoned
decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523,
527 (1988).
2. Analysis of Specific Instances of Lay Opinion Testimony
a. Testimony Regarding Mr. Walker’s Signature
In discussing the differences between Mr. Walker’s
signature and the signatures that appeared on the forged checks
that Defendant presented for payment, Ms. Cartrette described
Mr. Walker’s signature as “a little bit of scribbling, it’s not
really smooth handwriting,” and described the signatures on the
forged checks as “tend[ing] to be smooth.” Although Defendant
argues that the jury should not have been allowed to hear Ms.
Cartrette’s comments, we believe that her testimony describing
the signatures was “rationally based on [her] perception” of the
differences between those signatures and was helpful in
determining whether the checks that Defendant presented for
payment had been forged. N.C. Gen. Stat. § 8C-1, Rule 701. As
a result, the trial court’s decision to allow the admission of
this portion of Ms. Cartrette’s testimony was not “so arbitrary
that it could not have been the result of a reasoned decision.”
Hennis, 323 N.C. at 285, 372 S.E.2d at 527. -20- Moreover, “[e]videntiary error does not necessitate a new
trial unless the erroneous admission was prejudicial.” State v.
Wilkerson, 363 N.C. 382, 415, 683 S.E.2d 174, 194 (2009), cert.
denied, 559 U.S. 1074, 130 S. Ct. 2104, 176 L. Ed. 2d 734
(2010). Even if the trial court erred by allowing Ms. Cartrette
to comment upon the differences between Mr. Walker’s signature
and the signatures appearing on the checks that Defendant
presented for payment, any such error was clearly harmless. “A
defendant is prejudiced by evidentiary error ‘when there is a
reasonable possibility that, had the error in question not been
committed, a different result would have been reached at the
trial out of which the appeal arises.’” Id. (quoting N.C. Gen.
Stat. § 15A-1443(a)). At trial, Mr. Walker testified that he
had not written the checks that Defendant presented for payment
and that his handwriting, rather than being smooth, was like
“chicken scratch” as the result of a prior stroke. Similarly,
another SECU employee named Natalie Frazier testified that Mr.
Walker had difficulty signing his name and that his signature
was “somewhat jagged.” As a result, since “substantially the
same evidence [was elicited] through other witnesses,” State v.
Richardson, 341 N.C. 658, 671, 462 S.E.2d 492, 501 (1995), we
hold that, even if the trial court erroneously admitted Ms.
Cartrette’s testimony concerning the differences between Mr.
Walker’s signature and those found on the checks that Defendant -21- presented for payment, there is not “a reasonable possibility
that, had the error in question not been committed, a different
result would have been reached at the trial.” N.C. Gen. Stat. §
15A-1443(a).
b. Testimony Regarding Defendant’s Sweatshirt
At trial, Officer Sellers testified that the sweatshirt
that he observed Defendant wearing at the time that he was taken
into custody on the night of the robbery was the same as the
sweatshirt worn by an individual depicted in ATM photographs
taken that same evening. Although Defendant contends that the
trial court should have excluded this portion of Officer
Sellers’ testimony, we conclude, as we have in similar cases,
that the challenged testimony was rationally based upon Officer
Sellers’ personal observation of the sweatshirt that Defendant
was wearing on the night of the robbery and was helpful in
identifying the individual depicted in the ATM photograph. See
State v. Mewborn, 131 N.C. App. 495, 499, 507 S.E.2d 906, 909
(1998) (holding that the trial court did not err by admitting an
officer’s testimony that the markings on the defendant’s shoes
were consistent with the markings shown on shoes worn by the
perpetrator depicted in a video of a robbery in light of the
fact that this testimony was based upon the officer’s personal
observation of the defendant’s shoes when he was brought in for
questioning). As a result, the trial court did not err by -22- allowing Officer Sellers to testify concerning the resemblance
between the sweatshirt that Defendant was wearing when he was
taken into custody and the sweatshirt worn by an individual
depicted in an ATM photograph taken that same night.
c. Testimony Identifying Defendant as Depicted in Certain Photographs
Finally Defendant argues that the trial court erred by
allowing Ms. Cartrette to identify him as the individual
depicted in the ATM photographs.4 Defendant did not, however,
object to the admission of Ms. Cartrette’s testimony identifying
Defendant as the individual depicted in certain photographs
admitted into evidence at trial. As a result, our review of
Defendant’s challenge to the admission of this portion of Ms.
Cartrette’s testimony is limited to determining whether he is
entitled to appellate relief on plain error grounds. State v.
Mendoza, 206 N.C. App. 391, 395, 698 S.E.2d 170, 174 (2010) 4 As a preliminary matter, we note that different sets of photographs were discussed during the course of Ms. Cartrette’s testimony and that Defendant has not clearly identified the photographs relating to the testimony that he seeks to challenge in his brief. The first set of photographs discussed in Ms. Cartrette’s testimony depict an individual whom Ms. Cartrette identified as Defendant cashing the stolen checks. A second set of photographs discussed in Ms. Cartrette’s testimony depict an individual using Mr. Walker’s stolen ATM card to make a withdrawal. Although this individual is wearing a sweatshirt, his or her face cannot be seen. Ms. Cartrette did not identify Defendant as the individual depicted in this second set of photographs. As a result, we conclude that Defendant’s argument is directed toward Ms. Cartrette’s testimony relating to the first, rather than the second, set of photographs discussed in her testimony. -23- (stating that, since defendant “did not [ ] object to the
admission of any of this testimony at trial,” “we, therefore,
review the admission of the testimony only for plain error”).
“In criminal cases, an issue that was not preserved by
objection noted at trial and that is not deemed preserved by
rule or law without any such action nevertheless may be made the
basis of an issue presented on appeal when the judicial action
questioned is specifically and distinctly contended to amount to
plain error.” N.C.R. App. P. 10(a)(4). An error rises to the
level of plain error in the event that the error in question is
“so fundamental that it undermines the fairness of the trial, or
[has] a probable impact on the guilty verdict.” State v. Floyd,
148 N.C. App. 290, 295, 558 S.E.2d 237, 240 (2002). For that
reason, in order to obtain relief on plain error grounds, a
convicted criminal defendant must show “(i) that a different
result probably would have been reached but for the error or
(ii) that the error was so fundamental as to result in a
miscarriage of justice or denial of a fair trial.” State v.
Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997) (citations
omitted).
Aside from the fact that Defendant has failed to
specifically contend in his brief that the admission of the
challenged portion of Ms. Cartrette’s testimony constituted
plain error, we conclude that Defendant’s contention has no -24- merit as a substantive matter. The evidence presented at trial
identifying Defendant as the perpetrator of the offenses at
issue in this case separate and apart from the challenged
portion of Ms. Cartrette’s testimony was very strong. Defendant
had access to and possessed considerable information about Mr.
Walker’s finances. As we have already noted, Mr. Walker
identified Defendant in the photographs taken at the SECU as the
individual who presented the checks wrongfully drawn on his
account for payments. Similarly, Officer Sellers testified that
the sweatshirt worn by the individual captured in the ATM
photographs matched the sweatshirt that Defendant was wearing on
the night of the robbery. Finally, Mr. Davis clearly described
Defendant’s involvement in the robbery of Mr. Walker and the use
of Mr. Walker’s ATM card to obtain cash. As a result, even if
the trial court erred by admitting Ms. Cartrette’s testimony
identifying him as the individual depicted in the photographs,
Defendant has not shown that “a different result probably would
have been reached but for the error” or “that the error was so
fundamental as to result in a miscarriage of justice or denial
of a fair trial” so as to rise to the level of plain error.
Bishop, 346 N.C. at 385, 488 S.E.2d at 779. As a result,
Defendant is not entitled to relief from the trial court’s
judgments based upon the admission of the challenged portion of
Ms. Cartrette’s testimony. -25- III. Conclusion
Thus, for the reasons set forth above, we conclude that
none of Defendant’s challenges to the trial court’s judgments
have merit. As a result, the trial court’s judgments should,
and hereby do, remain undisturbed.
NO ERROR.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).