An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-600


Filed: 15 April 2003


v .                             Mecklenburg County
                                No. 98 CRS 39717

    Appeal by defendant from judgment entered 4 April 2001 by Judge Marcus L. Johnson in Mecklenburg County Superior Court. Heard in the Court of Appeals 19 February 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Rudy E. Renfer, for the State.

    Public Defender Isabel Scott Day, by Assistant Public Defender Julie Ramseur Lewis, for defendant.

    LEVINSON, Judge.

    On 4 April 2001, defendant was found guilty of attempted robbery with a dangerous weapon. He was subsequently sentenced to a minimum of 62 months and a maximum of 84 months in prison.

    The State's evidence tended to show the following: On 8 October 1998, Steven Rhoads was working for BancTec West, Inc. for which he replenished ATM money supplies. At approximately 3:30 p.m. Rhoads began servicing an ATM at the Beatties Ford Road Wachovia in Charlotte. He entered the machine's kiosk, replenished the machine, which took approximately one hour, and then exited the kiosk. A man later identified as defendant approached Rhoads and stated, “give me all your money.” Defendant repeated the statementand pulled out a pistol, which appeared to Rhoads to be a .357 revolver. In response, Rhoads shook his head “no” and grabbed defendant's arms. He threw defendant against a nearby street light, whereupon defendant's pistol discharged. Fearing he had been shot, Rhoads released defendant and ran between his van and the kiosk. After discovering he had not been shot, only that he had powder burns, Rhoads drew his own pistol and walked to the other side of the kiosk, where he had last seen defendant. Then, seeing defendant, Rhoads fired at him approximately four times as defendant ran away. While fleeing, defendant fell, got up, brushed his face, and examined his hand. Rhoads then returned to the kiosk and called 911.
    Shortly thereafter, police officers and investigators arrived. Rhoads relayed the events to them and gave them a description of the perpetrator. He described the perpetrator as a slender “black male” “between six one and six two, slender”, wearing blue “dickey type work pants, a matching jacket, and a black t-shirt.” Rhoads also told the officers that the perpetrator wore a knit cap and that he had fired at the perpetrator, possibly injuring him.
    Arthur Rivers was across the street from the ATM when the incident occurred. He heard loud talking and yelling, followed by gunfire. He then saw two men fighting. Then, a black male wearing dark clothing ran away and a white male began shooting at the black male. The black male fell down, got up, and continued to run away. Rivers described the man to officers as a black male, 5'9" to 5'11", weighing about 150 pounds, possibly with braided hair, andwearing a knitted cap. Later, at the police station, Rivers was shown defendant and he stated that “based on the clothes” he “believed that was him.”
    Sergeant David Minnich received information about the incident at approximately 4:30 p.m. He then began patrolling nearby neighborhoods. At approximately 5:00 p.m. Sergeant Minnich saw defendant, who was wearing a black t-shirt and blue “BU type” pants. He described defendant as “very tall,” slender, and as having a “large white bandage on his hand.” Sergeant Minnich questioned defendant about his injured hand. Defendant replied that its nature was “personal” and he “didn't want to share that information with [the officer].” Sergeant Minnich explained the incident to defendant and told him that he matched the description of the perpetrator. When Sergeant Minnich asked defendant to go back to the scene of the crime in an effort to resolve the matter, defendant refused.
    Because defendant would not go with Sergeant Minnich to the scene of the crime, Officer Kimbell and Investigator Ledford then brought Rhoads to the address where defendant was located. On the way to defendant's location, Investigator Ledford informed Rhoads that they were going to conduct a “show-up,” but he “should not assume that the subject who [was] detained was the person who had robbed him simply because he was being detained by the police.” As they arrived, Investigator Ledford was attempting to tell Rhoads to direct his attention to a porch where defendant was sitting; however, before the Investigator could finish, Rhoads identifieddefendant as the man who tried to rob him. He identified defendant by his clothes and his face. Rhoads testified that defendant's face was “emblazoned” in his memory. Investigator Ledford informed Sergeant Minnich of the positive identification, and defendant was arrested.
    First, defendant contends the trial court erred in denying his motion to dismiss because there was insufficient evidence presented for a rational trier of fact to find each and every element beyond a reasonable doubt. In considering a defendant's motion to dismiss for insufficiency of the evidence, a court must determine whether there is substantial evidence to support a finding (1) of each essential element of the offense charged and (2) that the defendant committed the offense. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). “Substantial evidence” is the amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion. State v. Porter, 303 N.C. 680, 685, 281 S.E.2d 377, 381 (1981). Evidence is not substantial if it merely arouses a suspicion about the fact to be proven. State v. Malloy, 309 N.C. 176, 305 S.E.2d 718 (1983). In measuring the sufficiency of the evidence, the evidence is to be considered in the light most favorable to the State, and the State is to be afforded every reasonable inference to be drawn therefrom. State v. Robbins, 309 N.C. 771, 309 S.E.2d 188 (1983). This standard applies regardless of “whether the state's evidence is direct, circumstantial, or acombination of the two.” Porter, 303 N.C. at 686, 281 S.E.2d at 382.
    The offense of attempted robbery with a dangerous weapon occurs when a person (1) with the specific intent to unlawfully deprive another (2) of personal property (3) by endangering or threatening his or her life (4) with a dangerous weapon (5) does some overt act calculated to bring about that result. N.C.G.S. § 14-87 (2001); State v. Allison, 319 N.C. 92, 352 S.E.2d 420 (1987).
    Defendant argues the State failed to present substantial evidence that defendant was the perpetrator of the crime. Defendant relies upon three theories to support this argument. First, he contends Rhoads' identification of defendant was not substantial evidence that defendant was the perpetrator. Second, he argues the description of the clothing worn by the robber did not match defendant's clothing. Lastly, he argues that Rhoads' opportunity to view the robber was insufficient to provide a valid identification.

    Defendant correctly argues that “identification of a criminal defendant may be so inherently impossible or in conflict with indisputable physical facts or laws of nature as to be insufficient to take that defendant's case to the jury.” State v. Buckom, 126 N.C. App. 368, 375, 485 S.E.2d 319, 324 (citing State v. Miller, 270 N.C. 726, 731-32, 154 S.E.2d 902, 905-06 (1967)), cert. denied, 522 U.S. 973, 139 L. Ed. 2d 326 (1997). Defendant's argument is based, in large measure, on Miller.     In Miller, the identification of the defendant was based on the observation by a man at the scene of the crime. Miller, 270 N.C. at 731, 154 S.E.2d at 905. The observation was made at night and at a distance of 286 feet. Id. Prior to the incident the witness had never seen defendant. Id. Furthermore, the description he gave police was different from the defendant's actual appearance. Id. That identification was the only evidence the State presented tending to show defendant's guilt. Id. at 732, 154 S.E.2d at 905. Under such circumstances, our Supreme Court held that the motion to dismiss should have been granted. Id.
    The case sub judice is starkly different from Miller. First, while the record contains no evidence of the precise time Rhoads had to observe defendant, he and defendant stood within mere feet or even inches when defendant repeatedly demanded money from Rhoads, when they struggled outside the ATM kiosk, and when Rhoads chased after and fired at defendant. Second, the incident happened at 3:30 p.m., not in the dark of night. Finally, viewing the evidence in the light most favorable to the State, Rhoads' description given to police accurately described the appearance of defendant. This description was corroborated by another witness to the attempted robbery, Rivers. Here, the identification of defendant was not inherently impossible or in conflict with indisputable physical facts or laws of nature. Buckom, 126 N.C. App. at 375, 485 S.E.2d at 324; see also State v. Coffey, 326 N.C. 268, 389 S.E.2d 48 (1990).
    Second, defendant contends that a possible contradiction in Rhoad's testimony concerning the description of defendant's clothes required the trial court to grant his motion to dismiss. At trial Rhoads testified that he told the officers at the crime scene that the robber wore a knit cap, dark blue “dickey type” work pants, a matching jacket, and a black t-shirt. Although defendant admits his clothes were of the same dark colors, he contends that the pants he was wearing were blue nylon pants, not cotton work pants. Additionally, defendant contends that his pants were not muddy or stained, and because there were slip marks in the grass near the scene of the attempted robbery, the robber's pants must have been grass-stained or muddy. He further argues that his shirt, although black, had a white picture on the front. Based on these perceived discrepancies, defendant contends the trial court was required to grant his motion to dismiss.
    Even assuming defendant's contentions amount to contradictions, such discrepancies are for the jury to resolve and do not necessitate dismissal. State v. McKinney, 288 N.C. 113, 215 S.E.2d 578 (1975). Moreover, Rhoads' and River's testimonies were sufficient evidence that defendant was the perpetrator of the attempted robbery to overcome defendant's motion to dismiss. Id. Rhoads specifically identified defendant as the perpetrator and stated his face was “emblazoned” upon his memory. Furthermore, Rivers also identified defendant as the perpetrator based in largemeasure by his clothes. Any contradictions in Rhoads' description of defendant's clothes do not mandate dismissal.

    Finally, defendant argues Rhoads' opportunity to view the perpetrator was inadequate to produce a valid identification. Defendant argues this contention at length. He makes the following supporting arguments: (1) Rhoads must have focused on the robber's weapon, not his face, during the attempted robbery; (2) because Rhoads is white and the robber is black, the problems associated with cross-racial identification were too great to allow valid identification; (3) Rhoads must have felt pressure and fear to make a positive identification; and (4) Rhoads' level of confidence was so great that the jury may have “overbelieve[d]” him. Defendant is unable to cite any persuasive North Carolina authority to support these arguments. While Rhoads may have observed defendant for only a few seconds, this “'limited opportunity for observation goes to the weight the jury might place upon [his] identification rather than its admissibility.'” State v. Parker, 350 N.C. 411, 433, 516 S.E.2d 106, 121 (1999) (quoting State v. Ricks, 308 N.C. 522, 528, 302 S.E.2d 770, 773 (1983)), cert. denied, 528 U.S. 1084, 145 L. Ed. 2d 681 (2000).
    In summary, we find there was sufficient evidence to support the trial court's denial of defendant's motion to dismiss. Defendant's assignment of error is, therefore, overruled.
    Next, defendant contends the trial court erred in denying his pretrial motion to suppress Rhoads' identification testimony because that testimony was based upon improper pretrial identification procedures. We need not address the merits of this argument because defendant failed to object to the admission of this evidence at the time it was offered at trial. State v. Tate, 300 N.C. 180, 265 S.E.2d 223 (1980); State v. Gaither, 148 N.C. App. 534, 559 S.E.2d 212 (2002) (although defendant made a motion in limine to exclude the identification, he failed to object at trial and thus, failed to preserve the issue for appeal).
    Because defendant's motion was made pretrial, it is considered a motion in limine. Tate, 300 N.C. at 182, 265 S.E.2d at 225. Our Court in Gaither stated in pertinent part:
        Rulings by a trial court on motions in limine “are merely preliminary and subject to change during the course of trial, depending upon the actual evidence offered at trial.” . . . Furthermore, an objection to an order granting or denying a motion in limine “is insufficient to preserve for appeal the question of the admissibility of evidence.” In order to preserve the issue for appeal, “[a] party objecting to an order granting or denying a motion in limine . . . is required to object to the evidence at the time it is offered at the trial (where the motion was denied) or attempt to introduce the evidence at the trial (where the motion was granted).” Thus, when a party purports to appeal the granting or denying of a motion in limine following the entry of a final judgment, the issue on appeal is not actually whether the granting or denying of the motion in limine was error, as that issue is not appealable, but instead “whether the evidentiary rulings of the trial court, made during the trial, are error.”
Gaither, 148 N.C. App. at 539, 559 S.E.2d at 215-216 (quoting State v. Locklear, 145 N.C. App. 447, 452, 551 S.E.2d 196, 198-99 (2001)) (citations omitted). Because defendant failed to object during trial to the admission of evidence concerning the out-of-court identification, defendant has failed to preserve the issue of whether this evidence was properly admitted at trial. Therefore, defendant's assignment of error is overruled.
    No error.
    Judges WYNN and TIMMONS-GOODSON concur.
    Report per Rule 30(e).    

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