An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA02-311

NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2003

STATE OF NORTH CAROLINA

v .                         Pitt County
                            No. 01 CRS 57744
WILSON FLOYD MURPHY, JR.

    Appeal by defendant from judgment entered 10 October 2001 by Judge Dwight L. Cranford in Superior Court, Pitt County. Heard in the Court of Appeals 13 November 2002.

    Attorney General Roy Cooper, by Assistant Attorney General Linda Kimbell, for the State.

    Benjamin M. Turnage, for defendant-appellant.

    McGEE, Judge.

    Wilson Floyd Murphy, Jr. (defendant) was indicted for common law robbery and first degree kidnapping. Evidence for the State at trial tended to show the following. Carolyn Daniels (Daniels), a clerk at The Pantry convenience store in Ayden, North Carolina, testified she saw defendant, Ray Maxwell (Maxwell), and an unidentified man enter The Pantry at approximately 2:00 a.m. on 25 June 2001. After making a purchase, the men briefly stood outside The Pantry and then left the area. The same men reentered The Pantry about an hour later, bought a drink, and again left.
    Eugene Moore (Moore), a sixty-three-year-old man, testified he arrived at The Pantry between 3:00 a.m. and 4:00 a.m. and saw several people standing outside. As Moore entered The Pantry, "acouple" of the men standing outside the store asked him for change for a hundred dollars. Moore replied that he did not have change and went inside The Pantry. Moore recognized the men and later identified defendant in court as one of those men.
    A few minutes later, the same men motioned to Moore and told him that a tire on his truck was "going down." Moore testified that while he was outside attempting to put air in his tire, one of the men grabbed him from behind and dragged him from beside his truck to a darker area. One man held Moore while the other man broke the chain attached to Moore's wallet. The men took the wallet and ran down the street. Moore entered The Pantry and told Daniels he had been robbed and asked her to call the police.
    Detective Richard McLawhorn of the Ayden Police Department testified he received a call between 3:45 a.m. and 4:00 a.m. reporting a robbery at The Pantry. When Detective McLawhorn arrived at The Pantry, he spoke with Moore who told him that when Moore had arrived at The Pantry he saw three men standing outside. Detective McLawhorn further testified that Moore said a "short and stocky" man told Moore that his tire was slack. Moore also stated to McLawhorn that while Moore was fixing the tire, one of the three men, who was "short with dreads," grabbed Moore from behind and dragged him around the corner of The Pantry where the other men took Moore's wallet and ran away. Moore told Detective McLawhorn that he recognized the men and would be able to pick them out of a photographic lineup.
    Detective McLawhorn further testified that Daniels told himthat one of the men was "light-skinned with dreadlocks" and was "the Maxwell boy," and the other man was "Donna Murphy's husband." Daniels also said she saw defendant speaking with Moore before the robbery.
    Detective McLawhorn presented two photographic lineups to Moore the next morning. Each lineup included a photograph of one of the suspects, along with photographs of five other men with similar physical characteristics. Detective McLawhorn testified that Moore picked out the photographs of defendant and Maxwell without hesitation.
    Detective McLawhorn testified that defendant first denied being at The Pantry with Maxwell on 25 June 2001. However, when Detective McLawhorn informed defendant that there was a video surveillance tape, defendant then said he had arrived at The Pantry around 4:45 a.m. and saw several men already there. Defendant told Detective McLawhorn that while Moore was checking the air in Moore's tire, a man named "Don" grabbed Moore, and Maxwell took Moore's wallet. Defendant said he did not touch or speak to Moore.
    The video surveillance tape showed that defendant, Maxwell, an unknown man, and Daniels were in The Pantry at 3:07 a.m. on 25 June 2001. The video surveillance tape also showed Moore was in The Pantry at 3:22 a.m. and entered again at 3:44 a.m.
    Moore testified that prior to 25 June 2001, the tires on his truck were new and were all right. Moore later discovered two of his tires had been punctured with a sharp object.
    Maxwell, a co-defendant who was tried separately fromdefendant on the same charges, was called as a witness by the State. He testified to being with defendant during the robbery. He also claimed that defendant grabbed Moore from the back, "picked him up and moved him against the dumpster," and then "grabbed his wallet . . . and ran." Maxwell testified that he was present but did not participate in the robbery.
    Defendant's witness, Kevin Bell (Bell), testified that he used to be a crack dealer and he identified Moore as a man named "Trickdaddy." He said he knew Moore from "the streets." Bell stated he took Moore over to the house where defendant's wife lived for Moore to look at photographs of defendant. Defendant's wife testified and also identified Moore as "Trickdaddy." She stated that Moore used to buy crack from defendant. She said that when she showed photographs of defendant to Moore, that Moore said defendant was not one of the men who robbed him.
    The jury found defendant guilty of common law robbery and not guilty of kidnapping. Defendant appeals his conviction.

    I.
    Defendant first argues that the trial court erred by denying his motion to suppress Moore's in-court identification of defendant in violation of his right to due process. Although defendant objected to Moore's in-court identification during Moore's testimony, defendant failed to file a pre-trial motion to suppress the identification, as required by N.C. Gen. Stat. § 15A-975(a) (2001). A "'defendant may move to suppress evidence only prior to trial,' unless he falls within certain exceptions." State v.Maccia, 311 N.C. 222, 227, 316 S.E.2d 241, 244 (1984) (quoting N.C.G.S. § 15A-975). Defendant may move to suppress evidence in the absence of a pre-trial motion only if: (1) there was not reasonable opportunity before trial to do so; (2) the State did not provide sufficient notice of the intent to admit evidence of a statement by defendant, evidence obtained during a search without a search warrant, or evidence obtained during a search pursuant to a search warrant if defendant was not present during the search; or (3) additional facts pertinent to the motion could only have been reasonably discovered after the requisite time for filing the motion. N.C.G.S. § 15A-975; see State v. Satterfield, 300 N.C. 621, 625, 268 S.E.2d 510, 514 (1980).
    The record does not show that defendant met any of the special statutory exceptions that would have permitted him to seek suppression of the in-court identification without filing a pre- trial motion to suppress. When a defendant fails to meet the burden of showing that his case falls within an exception to the rule that a motion to suppress must be made through a pre-trial motion, such a failure is considered a waiver of the right to contest the admissibility of the evidence on constitutional grounds. Maccia, 311 N.C. 227-28, 316 S.E.2d at 244 (citing State v. Detter, 298 N.C. 604, 260 S.E.2d 567 (1979)). An assessment of the competency of the State's evidence through voir dire was therefore not required. However, the trial court conducted a voir dire in its discretion and overruled defendant's objection to the admission of Moore's in-court identification.     Although defendant failed to object to the admission of the pre-trial photographic lineup identification, defendant argues that the pre-trial identification procedure used was so suggestive as to cause a substantial likelihood of irreparable misidentification, thereby tainting the validity of Moore's in-court identification. See State v. Simpson, 327 N.C. 178, 186, 393 S.E.2d 771, 776 (1990) (citation omitted). In view of the evidence presented by defendant during voir dire, defendant's argument is without merit.
    Defendant argues that the pre-trial identification was impermissibly suggestive due to the manner in which Detective McLawhorn determined that defendant was a suspect. Defendant challenges Detective McLawhorn's reasons for including defendant's picture in the photographic lineup. The constitutionality of a pre-trial photographic identification is generally determined by assessing the suggestive nature of the procedure used to identify the suspect. See Satterfield, 300 N.C. at 628-29, 268 S.E.2d at 516 (1980); State v. Rogers, 355 N.C. 420, 431-33, 562 S.E.2d 859, 868-69 (2002); State v. Cole, 147 N.C. App. 637, 645, 556 S.E.2d 666, 671-72 (2001), appeal dismissed and cert. denied, 356 N.C. 169, 568 W.E.2d 619 (2002). Defendant cites no case law to support his argument that his constitutional rights were violated due to McLawhorn's reasoning for including the suspect's photograph within the photographic lineup. Therefore, the trial court did not err in determining that the procedure used during the pre-trial photographic identification was not unduly suggestive.
    The record does not reveal that the procedure used byDetective McLawhorn to identify defendant was unduly suggestive. The information provided by the video surveillance tape and Daniels' identification of defendant as "Donna Murphy's husband," led Detective McLawhorn to develop a separate photographic lineup for both defendant and Maxwell. Each one included photographs of men who were similar to the respective suspects in height, complexion, facial characteristics and hairstyle. Detective McLawhorn displayed each picture individually and asked Moore if he saw anyone in either lineup who had committed the crime. McLawhorn never suggested that Moore pick any one photograph out of either lineup, nor did he tell Moore the names of the men in the photographs, nor did he reveal that any of the men in the photographic lineups were seen on the video surveillance tape. Nonetheless, Moore almost immediately selected defendant's photograph from the lineup and identified him as one of the robbers. Defendant's contention that the in-court identification was tainted due to the impermissibly suggestive nature of the pre- trial photographic lineup is without merit and this assignment of error is overruled.
II.
    Defendant next argues the trial court erred by instructing the jury on the theory of acting in concert in the charge of common law robbery. Defendant contends that there was insufficient evidence linking defendant to the crime to support the instruction of acting in concert. "An instruction of acting in concert is proper when the State presents evidence tending to show [a] defendant waspresent at the scene of the crime and 'acted together with another who did acts necessary to constitute the crime.'" State v. Cody, 135 N.C. App. 722, 728, 522 S.E.2d 777, 781 (1999) (quoting State v. Robinson, 83 N.C. App. 146, 148, 349 S.E.2d 317, 319 (1986)). In determining whether an instruction of acting in concert should be given, the trial court must consider whether a rational trier of fact would find any evidence in the record to convict the defendant. See State v. Moore, 75 N.C. App. 543, 546, 331 S.E.2d 251, 252, disc. review denied, 315 N.C. 188, 337 S.E.2d 862 (1985). In making this determination, the trial court considers solely the sufficiency of the evidence, as the credibility of the evidence presented is reserved for the jury. State v. Ataei-Kachuei, 68 N.C. App. 209, 212, 314 S.E.2d 751, 753, disc. review denied, 311 N.C. 763, 321 S.E.2d 146 (1984) (citing State v. Watkins, 283 N.C. 504, 196 S.E.2d 750 (1973)).
    The State presented sufficient evidence for a reasonable juror to believe that defendant participated in the robbery of Moore. The store clerk, Daniels, described defendant as "Donna Murphy's husband" and stated defendant was present outside The Pantry immediately prior to the robbery and was no longer visible during the robbery and thereafter. Daniels also said that she had seen defendant speaking with Moore. Moore identified defendant in a photographic lineup the day after the crime and identified defendant again during trial. Assuming the identifications and other witness statements are credible, see id., there is more than sufficient evidence for a reasonable juror to determine defendantcommitted the crime. Therefore, the trial court did not err in its jury instruction. This assignment of error is overruled.    
III.
    Defendant also argues that the trial court erred by failing to dismiss the charge of common law robbery based on insufficiency of the evidence. N.C.R. App. P. 10(b)(3) states:
            A defendant in a criminal case may not assign as error the insufficiency of the evidence to prove the crime charged unless he moves to dismiss the action, or for judgment as in case of nonsuit, at trial. If a defendant makes such a motion after the State has presented all its evidence and has rested its case and that motion is denied and the defendant then introduces evidence, his motion for dismissal or judgment in case of nonsuit made at the close of State's evidence is waived. Such a waiver precludes the defendant from urging the denial of such motion as a ground for appeal.

            A defendant may make a motion to dismiss the action or judgment as in case of nonsuit at the conclusion of all the evidence, irrespective of whether he made an earlier such motion. If the motion at the close of all the evidence is denied, the defendant may urge as ground for appeal the denial of his motion made at the conclusion of all the evidence. However, if a defendant fails to move to dismiss the action or for judgment as in case of nonsuit at the close of all the evidence, he may not challenge on appeal the sufficiency of the evidence to prove the crime charged.

    Defendant made a motion to dismiss based on insufficiency of the evidence at the close of the State's evidence, which was denied by the trial court. Defendant then presented evidence, thus waiving his right to appeal that denial by the trial court. N.C.R. App. P. 10(b)(3). At the close of defendant's evidence, the trialcourt asked if there was anything further to be submitted by the State or by defendant before the jury instruction conference. At that time, defendant did not renew his motion to dismiss for insufficiency of the evidence. Defendant did not renew the motion during the charge conference or at any time thereafter before the entry of judgment. Accordingly, defendant waived the right to appeal the denial of his motion to dismiss and may not now challenge the sufficiency of the evidence on appeal. Id. This assignment of error is overruled.
    No error.
    Chief Judge EAGLES and Judge HUDSON concur.
    Report per Rule 30(e).

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