An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1046 NORTH CAROLINA COURT OF APPEALS
Filed: 15 April 2014
STATE OF NORTH CAROLINA
v. Forsyth County Nos. 11 CRS 62670, 72 JAVIER HERRERA MORAN
Appeal by Defendant from judgments entered 20 March 2013 by
Judge William Z. Wood, Jr. in Superior Court, Forsyth County.
Heard in the Court of Appeals 4 March 2014.
Attorney General Roy Cooper, by Assistant Attorney General Scott K. Beaver, for the State.
James N. Freeman, Jr. for Defendant.
McGEE, Judge.
Javier Herrera Moran (“Defendant”) was indicted on 4 June
2012 for four counts of assault with a deadly weapon with intent
to kill and discharging a weapon into an occupied vehicle. A
jury found Defendant guilty of all charges on 20 March 2013.
The facts relevant to the issues on appeal are discussed in the
analysis section of this opinion. Defendant appeals. -2- I. Motion to Dismiss
Defendant first argues the trial court erred in denying
Defendant’s motion to dismiss because “the State’s evidence was
insufficient to show [Defendant] was the perpetrator of the
alleged crimes[.]” We must first address the question of
whether Defendant has preserved this issue for our review.
A. Preservation
“In order to preserve an issue for appellate review, a
party must have presented to the trial court a timely request,
objection, or motion, stating the specific grounds for the
ruling the party desired the court to make if the specific
grounds were not apparent from the context.” N.C.R. App. P.
10(a)(1).
In State v. Jones, ___ N.C. App. ___, ___, 734 S.E.2d 617,
623 (2012), aff’d, ___ N.C. ___, ___ S.E.2d ___ (2014 WL 895626)
(7 March 2014), the defendant “merely asked that all charges
against him be dismissed without noting a specific basis” at the
close of all evidence. This Court concluded that the defendant,
“having failed to make the argument he now makes on appeal in
support of his motion to dismiss in the trial court, has not
preserved it for our review.” Id. (citing State v. Tellez, 200
N.C. App. 517, 521, 684 S.E.2d 733, 736 (2009)). -3- In the present case, at the close of the State’s evidence,
Defendant moved to dismiss. Defendant did not argue his motion.
He stated only: “Your Honor, at the end of the State’s evidence,
the defense would make a motion to dismiss, but does not wish to
be heard.” Defendant did not offer any evidence, but he did
renew his motion. He again failed to state a basis for the
motion, stating only: “I would like to let the Court know the
defense does not intend to put on any evidence and at the end of
resting, as it were, the defense would renew the motion. The
same, do not wish to be heard.”
The trial court denied Defendant’s motions. In denying
Defendant’s motions, the trial court stated: “I think there is
enough to take it to the jury.” Because it appears the trial
court denied Defendant’s motions on the basis of the sufficiency
of the evidence, we address the merits of Defendant’s argument.
B. Merits of the Issue on Appeal
Defendant contends the State presented insufficient
evidence that Defendant was the perpetrator of the offenses of
assault with a deadly weapon with intent to kill and discharging
a firearm into a motor vehicle. We disagree.
i. Standard of Review
We review the trial court’s denial of a motion to dismiss
de novo. State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, -4- 33 (2007). The “trial court must determine whether there is
substantial evidence (1) of each essential element of the
offense charged and (2) that defendant is the perpetrator of the
offense.” State v. Bradshaw, 366 N.C. 90, 93, 728 S.E.2d 345,
347 (2012) (internal quotation marks omitted). “Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id.
The “trial court must consider the evidence in the light
most favorable to the State, drawing all reasonable inferences
in the State’s favor.” Id. at 92, 728 S.E.2d at 347. “All
evidence, competent or incompetent, must be considered. Any
contradictions or conflicts in the evidence are resolved in
favor of the State, and evidence unfavorable to the State is not
considered.” Id. at 93, 728 S.E.2d at 347 (internal citations
and quotation marks omitted).
ii. Analysis
Defendant contends that the “only evidence linking
[Defendant] to the crimes in this case came from the adult
victim, Cidronio Paz Mayo[,]” and that this identification was
“inherently incredible,” citing State v. Miller, 270 N.C. 726,
154 S.E.2d 902 (1967).
“As a general rule, the credibility of witnesses and the
proper weight to be given their identification testimony is a -5- matter for jury determination.” State v. Turner, 305 N.C. 356,
362, 289 S.E.2d 368, 372 (1982). “An exception to this rule,
however, was set forth in the case of State v. Miller[.]” Id.
“Miller involved a trial court’s ruling on a motion for nonsuit
on the grounds that the identification evidence was inherently
incredible.” Id.
In Miller we held that the rule providing for jury assessment of the credibility of witnesses and weight of the evidence does not apply “where the only evidence identifying the defendant as the perpetrator of the offense is inherently incredible because of undisputed facts, clearly established by the state’s evidence, as to the physical conditions under which the alleged observation occurred.”
Id.; but see State v. Carpenter, ___ N.C. App. ___, ___, 754
S.E.2d 478, 484, slip op. at 14 (2014) (COA13-898) (challenge to
credibility of eyewitness identification has “no bearing on the
sufficiency of the evidence when considering a motion to
dismiss”).
In Miller, the identification “was based on the observation
by the state’s witness of a man at the scene of the crime.”
Turner, 305 N.C. at 362-63, 289 S.E.2d at 372. In Miller, the
testimony of the State’s witness “shows that he was never closer
than 286 feet from the man whom he saw running[.]” Miller, 270
N.C. at 732, 154 S.E.2d at 905. The State’s witness did not
then know the defendant. Id. “Thus, his testimony is not that -6- he recognized at that distance a man previously known to him,
but that he saw for the first time a stranger.” Id. “Some six
hours later, he saw [the defendant] in a police ‘lineup,’ so
arranged that the identification of [the defendant] with the man
seen earlier would naturally be suggested to the witness.” Id.
Our Supreme Court concluded in Miller that “the distance
was too great for an observer to note and store in memory
features which would enable him, six hours later, to identify a
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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. COA13-1046 NORTH CAROLINA COURT OF APPEALS
Filed: 15 April 2014
STATE OF NORTH CAROLINA
v. Forsyth County Nos. 11 CRS 62670, 72 JAVIER HERRERA MORAN
Appeal by Defendant from judgments entered 20 March 2013 by
Judge William Z. Wood, Jr. in Superior Court, Forsyth County.
Heard in the Court of Appeals 4 March 2014.
Attorney General Roy Cooper, by Assistant Attorney General Scott K. Beaver, for the State.
James N. Freeman, Jr. for Defendant.
McGEE, Judge.
Javier Herrera Moran (“Defendant”) was indicted on 4 June
2012 for four counts of assault with a deadly weapon with intent
to kill and discharging a weapon into an occupied vehicle. A
jury found Defendant guilty of all charges on 20 March 2013.
The facts relevant to the issues on appeal are discussed in the
analysis section of this opinion. Defendant appeals. -2- I. Motion to Dismiss
Defendant first argues the trial court erred in denying
Defendant’s motion to dismiss because “the State’s evidence was
insufficient to show [Defendant] was the perpetrator of the
alleged crimes[.]” We must first address the question of
whether Defendant has preserved this issue for our review.
A. Preservation
“In order to preserve an issue for appellate review, a
party must have presented to the trial court a timely request,
objection, or motion, stating the specific grounds for the
ruling the party desired the court to make if the specific
grounds were not apparent from the context.” N.C.R. App. P.
10(a)(1).
In State v. Jones, ___ N.C. App. ___, ___, 734 S.E.2d 617,
623 (2012), aff’d, ___ N.C. ___, ___ S.E.2d ___ (2014 WL 895626)
(7 March 2014), the defendant “merely asked that all charges
against him be dismissed without noting a specific basis” at the
close of all evidence. This Court concluded that the defendant,
“having failed to make the argument he now makes on appeal in
support of his motion to dismiss in the trial court, has not
preserved it for our review.” Id. (citing State v. Tellez, 200
N.C. App. 517, 521, 684 S.E.2d 733, 736 (2009)). -3- In the present case, at the close of the State’s evidence,
Defendant moved to dismiss. Defendant did not argue his motion.
He stated only: “Your Honor, at the end of the State’s evidence,
the defense would make a motion to dismiss, but does not wish to
be heard.” Defendant did not offer any evidence, but he did
renew his motion. He again failed to state a basis for the
motion, stating only: “I would like to let the Court know the
defense does not intend to put on any evidence and at the end of
resting, as it were, the defense would renew the motion. The
same, do not wish to be heard.”
The trial court denied Defendant’s motions. In denying
Defendant’s motions, the trial court stated: “I think there is
enough to take it to the jury.” Because it appears the trial
court denied Defendant’s motions on the basis of the sufficiency
of the evidence, we address the merits of Defendant’s argument.
B. Merits of the Issue on Appeal
Defendant contends the State presented insufficient
evidence that Defendant was the perpetrator of the offenses of
assault with a deadly weapon with intent to kill and discharging
a firearm into a motor vehicle. We disagree.
i. Standard of Review
We review the trial court’s denial of a motion to dismiss
de novo. State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, -4- 33 (2007). The “trial court must determine whether there is
substantial evidence (1) of each essential element of the
offense charged and (2) that defendant is the perpetrator of the
offense.” State v. Bradshaw, 366 N.C. 90, 93, 728 S.E.2d 345,
347 (2012) (internal quotation marks omitted). “Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id.
The “trial court must consider the evidence in the light
most favorable to the State, drawing all reasonable inferences
in the State’s favor.” Id. at 92, 728 S.E.2d at 347. “All
evidence, competent or incompetent, must be considered. Any
contradictions or conflicts in the evidence are resolved in
favor of the State, and evidence unfavorable to the State is not
considered.” Id. at 93, 728 S.E.2d at 347 (internal citations
and quotation marks omitted).
ii. Analysis
Defendant contends that the “only evidence linking
[Defendant] to the crimes in this case came from the adult
victim, Cidronio Paz Mayo[,]” and that this identification was
“inherently incredible,” citing State v. Miller, 270 N.C. 726,
154 S.E.2d 902 (1967).
“As a general rule, the credibility of witnesses and the
proper weight to be given their identification testimony is a -5- matter for jury determination.” State v. Turner, 305 N.C. 356,
362, 289 S.E.2d 368, 372 (1982). “An exception to this rule,
however, was set forth in the case of State v. Miller[.]” Id.
“Miller involved a trial court’s ruling on a motion for nonsuit
on the grounds that the identification evidence was inherently
incredible.” Id.
In Miller we held that the rule providing for jury assessment of the credibility of witnesses and weight of the evidence does not apply “where the only evidence identifying the defendant as the perpetrator of the offense is inherently incredible because of undisputed facts, clearly established by the state’s evidence, as to the physical conditions under which the alleged observation occurred.”
Id.; but see State v. Carpenter, ___ N.C. App. ___, ___, 754
S.E.2d 478, 484, slip op. at 14 (2014) (COA13-898) (challenge to
credibility of eyewitness identification has “no bearing on the
sufficiency of the evidence when considering a motion to
dismiss”).
In Miller, the identification “was based on the observation
by the state’s witness of a man at the scene of the crime.”
Turner, 305 N.C. at 362-63, 289 S.E.2d at 372. In Miller, the
testimony of the State’s witness “shows that he was never closer
than 286 feet from the man whom he saw running[.]” Miller, 270
N.C. at 732, 154 S.E.2d at 905. The State’s witness did not
then know the defendant. Id. “Thus, his testimony is not that -6- he recognized at that distance a man previously known to him,
but that he saw for the first time a stranger.” Id. “Some six
hours later, he saw [the defendant] in a police ‘lineup,’ so
arranged that the identification of [the defendant] with the man
seen earlier would naturally be suggested to the witness.” Id.
Our Supreme Court concluded in Miller that “the distance
was too great for an observer to note and store in memory
features which would enable him, six hours later, to identify a
complete stranger with the degree of certainty which would
justify the submission of the guilt of such person to the jury.”
Id. Our Supreme Court held that the trial court erred in
denying the motion for nonsuit. Id. at 732, 154 S.E.2d at 906.
“According to Miller, the test to be employed to determine
whether the identification evidence is inherently incredible is
whether ‘there is a reasonable possibility of observation
sufficient to permit subsequent identification.’” Turner, 305
N.C. at 363, 289 S.E.2d at 372 (quoting Miller, 270 N.C. at 732,
154 S.E.2d at 906). “Where such a possibility exists, the
credibility of the witness’ identification and the weight given
his testimony is for the jury to decide.” Id.
In Turner, the State’s witness recognized the defendant and
knew the defendant by sight and name because they lived in the
same neighborhood. Turner, 305 N.C. at 363, 289 S.E.2d at 373. -7- The State’s witness testified that the defendant passed “two to
three feet” from where the witness was hiding. Id. Our Supreme
Court held that the evidence showed that the witness “had a
reasonable possibility of observation of the defendant
sufficient to permit subsequent identification.” Id.
In the present case, the identification came from Cidronio
Paz Mayo (“Mr. Mayo”), who testified that he had known Defendant
and Defendant’s brother all his life. Mr. Mayo saw Defendant on
24 December 2011, the date of the alleged offenses, between 5:00
and 6:00 p.m. Mr. Mayo testified it was not yet dark outside
and that he saw Defendant in the front passenger seat of a
“brownish burgundy” Explorer. He further testified that
Defendant’s brother was the driver of the vehicle.
Mr. Mayo identified Defendant and Defendant’s brother as
“they were coming towards [Mr. Mayo] and then when [Defendant]
got out through the door through the window to start shooting at
[Mr. Mayo] from the waist up.” When the shooting started, the
vehicles “were at a distance of about 10 meters.” Mr. Mayo
testified that he was a “hundred percent” confident that
Defendant was the perpetrator.
The facts in the present case are analogous to Turner. Mr.
Mayo had known Defendant since childhood. Prior to the date of
the offense, Mr. Mayo had not seen Defendant or Defendant’s -8- brother for “perhaps four or five years[.]” However, Mr. Mayo
was only approximately ten meters away from the vehicle in which
Defendant was a passenger. Furthermore, Mr. Mayo saw Defendant
lean out of the vehicle, in daylight, to shoot at the vehicle
carrying Mr. Mayo and his children. The evidence showed that
Mr. Mayo “had a reasonable possibility of observation of the
defendant sufficient to permit subsequent identification.”
Turner, 305 N.C. at 363, 289 S.E.2d at 373. The trial court did
not err in denying Defendant’s motion to dismiss.
II. Failure To Procure An Expert Witness
Defendant next argues the “trial counsel’s failure to
procure an expert witness . . . suggests ineffective assistance
of counsel[.]” This claim is better addressed through a motion
for appropriate relief, and not on direct appeal. See, e.g.,
State v. Stroud, 147 N.C. App. 549, 554, 557 S.E.2d 544, 547
(2001) (“we stress this Court is limited to reviewing this
assignment of error only on the record before us”). Defendant’s
argument is dismissed without prejudice to Defendant’s right to
file a motion for appropriate relief in superior court and
request a hearing to determine whether he received ineffective
assistance of counsel. See State v. Fair, 354 N.C. 131, 166-67,
557 S.E.2d 500, 524-25 (2001); State v. Foster, 193 N.C. App.
733, 738, 668 S.E.2d 630, 633 (2008). -9- III. Mitigating Factors
Defendant next argues the trial court erred in not finding
certain mitigating factors. The trial court, based on the
jury’s finding beyond a reasonable doubt of the existence of an
aggravating factor, imposed an aggravated sentence for one of
Defendant’s convictions for assault with a deadly weapon with
intent to kill. Defendant presented evidence of mitigating
factors, but the trial court made no findings of the existence
of mitigating factors.
Defendant “bears the burden of proving by a preponderance
of the evidence that a mitigating factor exists.” N.C. Gen.
Stat. § 15A-1340.16(a) (2013). “The court shall consider
evidence of aggravating or mitigating factors present in the
offense that make an aggravated or mitigated sentence
appropriate, but the decision to depart from the presumptive
range is in the discretion of the court.” Id.
“Our Supreme Court has explained that uncontradicted
evidence is not necessarily sufficient to meet the defendant’s
burden of proof[.]” State v. Marecek, 152 N.C. App. 479, 513,
568 S.E.2d 237, 259 (2002).
[U]ncontradicted, quantitatively substantial, and credible evidence may simply fail to establish, by a preponderance of the evidence, any given factor in aggravation or mitigation. While evidence may not be ignored, it can be properly -10- rejected if it fails to prove, as a matter of law, the existence of the mitigating factor.
Id.
Defendant contends the trial court erred in failing to make
findings as to certain mitigating factors. However, Defendant
does not show that the trial court failed to consider the
evidence of the mitigating factors that Defendant presented.
Defendant has not shown that the trial court erred by rejecting
evidence of certain mitigating factors. Furthermore, Defendant
has not shown, even had the trial court made findings of certain
mitigating factors, that the trial court abused its discretion
in sentencing Defendant.
No error in part; dismissed in part.
Judges STEELMAN and ERVIN concur.
Report per Rule 30(e).