STATE OF NORTH CAROLINA
v. Pitt County
Nos. 00 CRS 51444-46
DEMETRIUS TELFAIR
Attorney General Roy Cooper, by Special Deputy Attorney
General Roy A. Giles, Jr., for the State.
Brian Michael Aus for defendant-appellant.
WYNN, Judge.
Following his convictions for robbery with a dangerous weapon
of a Burger King restaurant and two counts of kidnapping of its
employees, defendant presents two issues on appeal: (1) Did the
trial court err by denying his motion to dismiss the charges
against him due to insufficient evidence, and (2) Did the trial
court err by allowing the State to ask leading questions during the
examination of one of its witnesses. We dismiss the first issue
because defendant failed to preserve it, and uphold the trial
court's decision on the second issue. Accordingly, we uphold
defendant's conviction and concurrent sentences of 80 to 105 months
on the consolidated kidnapping charges and 61 to 83 months on therobbery charge.
Defendant first argues that the trial court erred by denying
his motion to dismiss because there was insufficient evidence
identifying him as the perpetrator of the robbery and kidnapping.
However, we decline to review the assignment of error. Defendant
moved to dismiss the case at the close of the State's evidence but
after it was denied, presented his own evidence. “Appellate Rule
10(b)(3) states when defendant presents evidence at trial, he
waives his right on appeal to assert the trial court's error in
denying the motion to dismiss at the close of the State's
evidence.” State v. Barfield, 127 N.C. App. 399, 401, 489 S.E.2d
905, 907 (1997). Furthermore, defendant failed to renew his motion
to dismiss at the close of the evidence. “[A] defendant who fails
to make a motion to dismiss at the close of all the evidence may
not attack on appeal the sufficiency of the evidence at trial.”
State v. Spaugh, 321 N.C. 550, 552, 364 S.E.2d 368, 370 (1988).
Accordingly, this assignment of error is dismissed.
Defendant next argues the trial court committed plain error by
permitting the State to propound leading questions to Laura Hines,
who was an employee at the Burger King during the robbery. Hines
had seen a television report on the robbery in which defendant's
picture was shown, and testified that when she saw the picture,
“that's when it dawned on me. I said I felt - - you know, it was
like I couldn't believe it was somebody I knew, you know.” The
State then asked Hines:
do you remember telling Detective Candler that
you worked with [defendant] for six monthsside by side, and that you recognized him by
his eyes; and you said there was no doubt in
your mind that it was [defendant] who robbed
you?
Hines answered, “Yes.” The State then asked if Hines “believe[d]
that [defendant] was the tall man in the Burger King with you?”
Hines replied, “I do.” Defendant contends that the leading
questions were impermissible and “shifted Hines' opinion of the
defendant's identity as the perpetrator from at best questionable
to absolute certainty.”
After careful review of the record, we decline to review
defendant's assignment of error. First, defendant did not object
to the State's question or move to strike. Thus, he waived his
right to assign error on appeal. State v. Walston, 67 N.C. App.
110, 113, 312 S.E.2d 676, 678 (1984). Furthermore, even if
defendant had objected, defendant subsequently elicited the same
testimony from Hines on cross-examination. Thus, again, any
purported error was waived. See State v. Hunt, 325 N.C. 187, 196,
381 S.E.2d 453, 459 (1989)(benefit of objection lost when same or
similar evidence has been admitted or is later admitted without
objection); State v. Moses, 316 N.C. 356, 362, 341 S.E.2d 551, 555
(1986) (benefit of defendant's objection to introduction of letter
lost when defendant later read from letter). Accordingly, we find
no error.
Dismissed in part, no error in part.
Judges McGEE and CAMPBELL concur.
Report per Rule 30(e).
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