NO. COA02-863

STATE OF NORTH CAROLINA

         v.                        New Hanover County
                                No. 01 CRS 50540
LINDSAY L. DINKINS,
    
        Defendant.

    Appeal by defendant from judgment entered 13 March 2002 by Judge W. Allen Cobb, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 24 March 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Judith Tillman, for the State.

    Terry W. Alford for defendant-appellant.

    ELMORE, Judge.

    Defendant Lindsay L. Dinkins was charged with robbery with a dangerous weapon. The State's evidence tended to show that on the early morning of 18 January 2001, Rebecca Johnson was managing the Wrightsboro Food Mart (“Food Mart”) at the BP station on Castle Hayne Road and Sheraton Drive. After Johnson made coffee for her customers and put a fresh tape into the store surveillance camera, she went behind the store counter. Johnson saw someone come into the store and she automatically said “hello.” As Johnson turned toward the cash register, a man with a knife jumped across the counter and told her he wanted money. The man's eyes were uncovered and Johnson could see the man was black. Johnson openedthe cash register and the man grabbed approximately seventy-five dollars ($75.00). Johnson waited until she heard the door chime, looked up, saw the man run in the direction of the store's dumpster, and called 911.
    New Hanover County Sheriff's Deputy Joseph Jewell was driving near the Food Mart at the time of the robbery and observed a black male with dark clothes running past the store's dumpster toward Sheraton Drive. Deputy Jewell drove his vehicle around to the front of the store, beeped his horn and waved to Johnson. Johnson pointed in the direction in which the man whom Deputy Jewell had just observed was running. Deputy Jewell pulled his vehicle onto Sheraton Drive and observed a white Ford truck coming down the road toward him. The driver was a black male with a dark shirt, who appeared to fit the description of the man he had seen run across the parking lot. Deputy Jewell stopped the truck, advised the driver that he needed to speak with him, and asked the driver to pull into the Food Mart parking lot. The driver was a black male, approximately five feet eight inches tall, wearing jeans and a dark blue shirt with a collar on top of another blue shirt. Deputy Jewell took the driver to the store and asked Johnson if she could identify him as the robber. Johnson was unable to identify the driver as the man who had robbed her, so Deputy Jewell released him.
    At the Sheriff's Department later that morning, Deputy Jewell viewed videotape from the Food Mart's security camera which had been recorded at the time of the robbery. Deputy Jewell recognizedthe man who came through the door and over the counter as “the gentleman [he] had in [his] hands earlier.” The man in the videotape was wearing the same collared shirt as the driver of the truck Deputy Jewell had stopped near the Food Mart. Later that afternoon, at the New Hanover County Courthouse, Deputy Jewell saw a man fitting the description of both the man he had observed in the store videotape and the driver of the truck he had stopped near the Food Mart. The man was wearing the same clothing worn by the man in the Food Mart videotape and by the driver of the truck whom Deputy Jewell had detained that morning near the Food Mart. The man was identified as defendant and charged with robbery with a dangerous weapon. Deputy Jewell identified defendant as the same man he picked up near the store and as the same man he viewed in the store videotape. Johnson viewed the store videotape at trial and testified that it was an accurate representation of the robbery.
    Defendant did not present any evidence. A jury found defendant guilty as charged. The trial court sentenced defendant to 117 to 150 months imprisonment. Defendant appeals.
    Defendant first contends the trial court erred by denying his motion to dismiss the charge against him on the grounds that he was deprived of a speedy trial. We disagree.
    In determining whether a defendant has been deprived of his right to a speedy trial, U.S. Const. amend. VI; N.C. Const. art. I, § 18, our courts consider “(1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his right toa speedy trial, and (4) whether the defendant has suffered prejudice as a result of the delay.” State v. Flowers, 347 N.C. 1, 27, 489 S.E.2d 391, 406 (1997) (citing Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101 (1972)), cert. denied, 522 U.S. 1135, 140 L. Ed. 2d 150 (1998). “No single factor is regarded as either a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial.” State v. McKoy, 294 N.C. 134, 140, 240 S.E.2d 383, 388 (1978). Instead, the factors and other circumstances are to be balanced by the court with an awareness that it is “dealing with a fundamental right of the accused” which is “specifically affirmed in the Constitution.” Id. The burden is, nonetheless, on the defendant to show that his constitutional rights have been violated and a defendant “who has caused or acquiesced in the delay will not be allowed to use it as a vehicle in which to escape justice.” Id. at 141, 240 S.E.2d at 388. Thus the defendant is required to show that the unreasonable delay in his trial was caused by the “neglect or wilfulness of the prosecution,” as the Constitution does not “outlaw good-faith delays which are reasonably necessary for the State to prepare and present its case.” Id.

    The length of the delay is not per se determinative of whether the defendant has been deprived of the right to a speedy trial. Flowers, 347 N.C. at 27, 489 S.E.2d at 406. “The United States Supreme Court has found post-accusation delay 'presumptively prejudicial' as it approaches one year. However, [this] . . .simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry.” Id. (citations omitted).
    In the case sub judice, a period of over fourteen months passed from defendant's indictment to his trial. We therefore consider the remaining Barker factors in determining whether defendant's right to a speedy trial has been denied.

    “The defendant has the burden of showing that the reason for the delay was the neglect or willfulness of the prosecution.” State v. Webster, 337 N.C. 674, 679, 447 S.E.2d 349, 351 (1994). Here, defendant does not assert neglect or willfulness of the prosecution and the record does not reveal that the delay was due to prosecutorial negligence or willfulness. Rather, the record indicates that one reason for the delay was that the parties were trying to “reach an agreement[.]” Accordingly, defendant has not shown that the delay was caused by the neglect or wilfulness of the prosecution.

    A criminal defendant is not required to demand that the State commence his prosecution to avail himself of the constitutional right to a speedy trial; however, the failure to timely assert this right weighs against his contention that it has been denied. Flowers, 347 N.C. at 28, 489 S.E.2d at 407. In the instant case, it does not appear that defendant requested a speedy trial, but only asked the State “to look into it, to the matters . . . for several weeks well before that year period[.]”

    A speedy trial serves to: (1) prevent oppressive pretrial incarceration; (2) minimize anxiety and concern of the defendant; and (3) limit the possibility that the defense will be impaired. Flowers, 347 N.C. at 28, 489 S.E.2d at 407. Here, defendant made no showing that his defense was impaired due to the delay of his trial. In addition, for a portion of the time that defendant was in pretrial incarceration for this crime, he was also in pretrial incarceration on another charge, which was not directly related to the charges at issue in this case. Thus, defendant would have been jailed in connection with those charges even if this case had moved forward more expeditiously.
    After considering the above factors, we hold that defendant's constitutional right to a speedy trial was not violated under the circumstances of this case.
    Defendant next contends the trial court erred by denying his motion to dismiss based on insufficiency of the evidence. Defendant argues the State failed to present sufficient evidence that he was the perpetrator because the store clerk did not identify him as the robber. We disagree.
    The standard for ruling on a motion to dismiss “is 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. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion.State v. Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585 (1994). In ruling on a motion to dismiss, the trial court must consider all of the evidence in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence. State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). “Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal.” State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996).
    In the instant case, the store clerk viewed Food Mart's surveillance videotape recording of the robbery during the trial and testified that it was an accurate representation of the robbery. Deputy Jewell identified defendant as the same person he had picked up near the store on the morning of the robbery, the same person he viewed on the store surveillance videotape recording of the robbery, and the same person he saw in the New Hanover County Courthouse later on the day of the robbery. Deputy Jewell noted that defendant was wearing the same clothing at the courthouse that he had worn during the robbery earlier that day. When viewed in the light most favorable to the State, we hold this evidence is sufficient to withstand defendant's motion to dismiss, as it clearly supports a reasonable inference that the defendant was the perpetrator of the robbery. Accordingly, the trial court properly denied defendant's motion to dismiss based on insufficiency of the evidence.
    Defendant also contends the trial court committed plain errorby failing to advise him of his right to testify. Following the close of the State's evidence, defense counsel informed the trial court that the defense elected not to present any evidence. Defendant has failed to cite any authority for the proposition that the trial court must “inquire of the defendant whether he had been properly advised of his right to testify,” and he has likewise failed to show that he was prejudiced in any way.
    No error.
    Judges HUNTER and BRYANT concur.
    Report per Rule 30(e).

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