An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-641


Filed: 3 June 2003


         v.                        Guilford County
                                Nos. 01 CRS 23286-87,
RALEIGH LAWRENCE WILLIAMS                01 CRS 23305    

    Appeal by defendant from judgments entered 3 October 2001 by Judge Michael E. Helms in Guilford County Superior Court. Heard in the Court of Appeals 12 May 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Gerald K. Robbins, for the State

    Richard E. Jester for defendant appellant.


    Raleigh Lawrence Williams (“defendant”) appeals from his conviction of two counts of robbery with a dangerous weapon and one count of being an habitual felon. For the reasons that follow, we uphold defendant's convictions.
    The State presented evidence at trial tending to show the following: On 8 August 2000, Ruth Digennaro (“Ruth”) and her husband, Frank Digennaro (“Frank”), were returning to their home in Greensboro, North Carolina, after taking a trip to Cherokee, North Carolina. Upon entering their driveway, Frank exited their vehicle in order to let their dog outside. Frank then took the dog to a grassy patch next to their home. Shortly thereafter, Ruth exitedthe vehicle and heard voices. Ruth then noticed that Frank was “scuffling” with three men. One of the men ordered Frank to give him his wallet, and Frank refused. The men hit Frank, threw him to the ground, and removed his wallet. Defendant then pointed a firearm at Frank's head and asked Ruth where her purse was located. Ruth informed defendant that her purse was in her vehicle. Upon learning this information, defendant “ran around, jumped in the car and took off like a bullet.” The other men also fled the scene.     Defendant was convicted of two counts of robbery with a dangerous weapon and one count of being an habitual felon. Defendant was then sentenced to two consecutive terms of imprisonment, with 167 months as the minimum term and 210 months as the maximum term for each conviction. Defendant appeals.


    Defendant contends that the trial court erred by (1) proceeding with his trial when he was absent from court; and (2) failing to dismiss the case at the close of the evidence. In his final assignment of error, defendant contends that he received ineffective assistance of counsel. For the reasons set forth herein, we conclude that the trial court committed no error.
    In his first assignment of error, defendant argues that the trial court erred by holding a hearing in his absence. Defendant asserts that he was entitled to be present at all times during his trial and therefore he is entitled to a new trial. We disagree.
    “It is well-established that under both the federal and North Carolina constitutions a criminal defendant has the right to beconfronted by the witnesses against him and to be present in person at every stage of the trial.” State v. Braswell, 312 N.C. 553, 558, 324 S.E.2d 241, 246 (1985). “The right to be present at all critical stages of the prosecution is subject to harmless error analysis.” State v. Wise, 326 N.C. 421, 433, 390 S.E.2d 142, 149, cert. denied, 498 U.S. 853, 112 L. Ed. 2d 113 (1990).
    We find the facts in this case remarkably similar to the facts presented in Wise. In Wise, the defendant's counsel was present during the charge conference, and the trial court subsequently announced the proposed instructions on the record and gave defense counsel the opportunity to be heard. Id. at 433, 390 S.E.2d at 149-50. Furthermore, the defendant was present when the actual charge was given to the jury and did not object to its contents. See id. Based on these facts, the Court in Wise found that any error in excluding defendant from the charge conference was harmless. Id. at 433, 390 S.E.2d at 149. Likewise, in the case sub judice, the defendant was absent from a short discussion on instructions to be given to the jury, was present when the charge was read to the jury, and failed to object to the contents of the jury charge. Defendant has failed to show how he was prejudiced due to his absence from the charge conference. Therefore, this assignment of error is overruled.
    In his second assignment of error, defendant argues that there was insufficient evidence to convict him of robbery with a dangerous weapon. Defendant notes the following deficiencies in the State's case: (1) failure by the victim to identify thedefendant; (2) failure to provide a witness, other than a co- conspirator, to place defendant with his conspirators or the victims' vehicle; (3) the lack of physical evidence tending to show that defendant was in the victims' vehicle; and (4) evidence that defendant was forty miles away when the victims' vehicle was stolen. Finally, defendant notes that one of the witnesses testified that he had been coerced by the State to “say what the State wanted to hear, which included that [defendant] was involved.” We disagree.
    To survive a motion to dismiss, the State must present substantial evidence of each essential element of the charged offense. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434 (1997). “'Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'” Id. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)). Our Supreme Court has stated that:
        In considering a motion to dismiss, the trial court must analyze the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from the evidence. The trial court must also resolve any contradictions in the evidence in the State's favor. The trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness' credibility.

State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001) (citations omitted).
    Defendant was charged with two counts of robbery with a dangerous weapon. The essential elements of robbery with adangerous weapon are: “(1) an unlawful taking or an attempt to take personal property from the person or in the presence of another, (2) by use or threatened use of a firearm or other dangerous weapon, (3) whereby the life of a person is endangered or threatened.” State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1998).
    In the present case, several witnesses testified to defendant's involvement in the robbery. Ruth testified that she and Frank were robbed by three assailants, one of whom pointed a firearm at Frank's head, took her purse, and drove away in her vehicle. Courtney Watlington, who admitted to taking part in the robbery, testified that defendant pointed a firearm at Frank while attempting to rob him and removed Frank's wallet. Asaac Walker, who was also at the robbery, testified that he saw defendant with a firearm. Thus, the State presented sufficient evidence for a jury to find that defendant used a firearm to rob Frank and Ruth. Although defendant cites evidence tending to contradict the State's witnesses, as well as inconsistencies in the State's evidence, “'contradictions and inconsistencies do not warrant dismissal; the trial court is not to be concerned with the weight of the evidence.'” State v. Williams, 355 N.C. 501, 579, 565 S.E.2d 609, 654 (2002) (quoting State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998)). Accordingly, in viewing the evidence in the light most favorable to the State, a reasonable mind could infer from the evidence that defendant committed the offense of robbery with a dangerous weapon. This assignment of error is overruled.    In his final assignment of error, defendant argues that he received ineffective assistance of counsel when his counsel (1) failed to call witnesses who could have testified as to defendant's alibi; (2) failed to present any arguments to support his motion to dismiss; (3) neglected to inform defendant of the contents of a hearing held in his absence; (4) failed to exploit witnesses inconsistencies during cross-examination; and (5) failed to adequately prepare for trial.
    “The accepted practice is to raise claims of ineffective assistance of counsel in post-conviction proceedings, rather than direct appeal.” State v. Dockery, 78 N.C. App. 190, 192, 336 S.E.2d 719, 721 (1985). This Court will review a defendant's ineffective assistance of counsel claims “brought on direct review [only] when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing.” State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001).
    Here, defendant's claim of ineffective assistance of counsel cannot be determined without further development of the record. There is an insufficient showing in the record as to the contents of the testimony which would have been provided by defendant's witnesses. Accordingly, the best course of action is for defendant to make a motion for appropriate relief and a hearing held on whether he received effective assistance of counsel. Once there is a record developed, this Court can review it by way of a petitionfor writ of certiorari.    
    We finally note that the trial court erred in sentencing defendant. Defendant was sentenced to two consecutive terms of imprisonment, with 167 months as the minimum term and 210 months as the maximum term for each conviction. In both judgments, the trial court determined that defendant should be sentenced from the aggravated range of punishment. However, defendant's sentence for robbery with a dangerous weapon is outside the aggravated range of punishment for a Class D, Level IV felony. There appears to be no error in sentencing in defendant's other judgment, 01 CRS 23286, because the robbery with a dangerous weapon charge was enhanced by defendant's status as a habitual felon. In that judgment, defendant was sentenced as a Class C, Level IV felon, and defendant's sentence was within the aggravated range of punishment for that class and level of offense. Accordingly, the sentence is vacated in 01 CRS 23287 and remanded for resentencing.    
    No error in part; vacated in part; and remanded for resentencing in part.
    Judges TYSON and BRYANT concur.
    Report per Rule 30(e).

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