Appeal by defendant from judgment dated 16 October 2001 by
Judge J. Richard Parker in Chowan County Superior Court. Heard in
the Court of Appeals 4 March 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Joseph E. Herrin, for the State.
Holt York McDarris & High, L.L.P., by W. Hackney High, Jr.,
for defendant appellant.
BRYANT, Judge.
James Joseph Tomlin (defendant) appeals from a judgment dated
16 October 2001 entered consistent with a jury verdict finding him
guilty of common law robbery.
At trial, the State presented evidence tending to show a man
later identified as defendant entered Time Financing Service in
Edenton, North Carolina on 23 April 2001, sprayed a can of pepper
spray, and demanded cash from the two employees present in the
establishment. One of the employees handed defendant approximately
$733.00 in cash from her desk drawer. The two employees, who
recognized defendant as a former customer, watched defendant leave
in an older model faded blue-gray vehicle and wrote down thelicense plate number of the vehicle. The police subsequently
determined the plate number did not belong to the blue-gray vehicle
but to a different vehicle registered to defendant.
Sometime after the robbery, law enforcement officers stopped
a vehicle similar to the one described by the two employees.
Defendant, who had been driving the vehicle, was transported to the
police department, where the two employees identified him as the
perpetrator of the robbery. One of the employees testified that
when she was asked to look at defendant's vehicle, she saw “the
gray sweater jacket that [the perpetrator] had on” at the time of
the robbery. The investigating police officer (the officer)
corroborated this testimony and stated the employees had not only
identified the vehicle defendant was driving at the time of his
arrest as the getaway vehicle, but had identified a sweatshirt or
sweater jacket found in the vehicle as a garment worn by the
perpetrator. The trial court overruled defendant's objection to
the officer's testimony.
Defendant moved to dismiss the robbery charge, and the trial
court denied the motion.
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The issues are whether: (I) defendant has preserved for appeal
the issue of the constitutionality of the identification procedure
used during the investigation; (II) the officer's testimony
regarding the employees' identification of the sweatshirt was
inadmissible hearsay; (III) testimony that the license plate was
registered in defendant's name was inadmissible hearsay; and (IV)the trial court erred in denying defendant's motion to dismiss for
insufficiency of the evidence.
I
In his brief to this Court, defendant contends the trial court
erred in admitting the identification testimony of the two
employees because it was the product of unconstitutional
identification procedures. At trial, however, defendant failed to
make a motion to suppress or otherwise object to the admission of
the witnesses' identification testimony. As a constitutional issue
not raised in the trial court will not be considered for the first
time on appeal,
State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517,
519 (1988), we do not address this assignment of error.
II
Defendant next argues the officer “testified that a sweatshirt
found in the back of the automobile defendant was driving at the
time he was apprehended was the same sweatshirt worn by the person
who committed the robbery.” He asserts this testimony was
inadmissible hearsay because the officer was not an eyewitness to
the robbery and the testimony could therefore only be based on
third-party statements. Defendant also contends that although the
officer's testimony would have been admissible as corroborative
testimony of the eyewitnesses' identification testimony, neither of
the two employees testified at trial that the sweatshirt found in
the vehicle was the one worn by the perpetrator at the time of the
robbery.
Hearsay is an out-of-court declaration of another offered toprove the truth of the matter asserted. N.C.G.S. § 8C-1, Rule
801(c) (2001). If the declaration is offered for a purpose other
than to show the truth of the matter asserted, then it is not
hearsay.
State v. Call,
349 N.C. 382, 409, 508 S.E.2d 496, 513
(1998).
We first note that the officer never testified the sweatshirt
in defendant's vehicle was the one the perpetrator wore. Instead,
the officer stated he had brought the two employees to take a look
at defendant's impounded vehicle, at which time the employees had
identified both the vehicle as well as the sweatshirt lying visible
in the vehicle as items involved in the robbery. Furthermore, one
of the employees did in fact testify, without objection, that she
observed the sweatshirt worn by the perpetrator in the backseat of
defendant's impounded vehicle. As such, the officer's testimony
was admissible as corroborative evidence, and defendant's argument
is without merit.
See State v. Gilbert, 96 N.C. App. 363, 365, 385
S.E.2d 815, 816 (1989) (out-of-court statements offered for
corroboration are not hearsay).
III
Defendant next contends the trial court erred by allowing an
officer to testify that the license plate was registered in
defendant's name. He argues this evidence was also inadmissible
hearsay. Defendant, however, admitted during cross-examination
that the license plate belonged to a car of his which had been
repossessed only a month before the robbery. Thus, defendant
waived this issue for appeal.
See State v. Morgan, 315 N.C. 626,641, 340 S.E.2d 84, 94 (1986) (when similar evidence is admitted
without objection, the benefit of an objection is lost).
IV
Finally, defendant assigns as error the trial court's denial
of his motion to dismiss based on insufficient evidence. Such a
motion requires the trial court to determine whether substantial
evidence has been presented to establish each essential element of
the charged offense and to prove the defendant committed the
offense.
State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649,
651 (1982). The trial court is to consider the evidence in the
light most favorable to the State, giving it the benefit of every
reasonable inference that may be drawn.
State v. Powell, 299 N.C.
95, 99, 261 S.E.2d 114, 117 (1980). The charged offense of common
law robbery consists of “the felonious, non-consensual taking of
money or personal property from the person or presence of another
by means of violence or fear.”
State v. Smith, 305 N.C. 691, 700,
292 S.E.2d 264, 270 (1982).
In this case, defendant argues the evidence is insufficient to
show the victims were placed in fear. We disagree. When asked at
trial whether she had been scared of defendant, one employee
replied: “I was, but I don't like to show that emotion.” The other
employee testified, she was “shocked, scared, and . . . didn't know
what was [hiding] underneath [defendant's] jacket.” Thus, the
testimony of both employees established they were in fear, and the
trial court did not err in denying defendant's motion to dismiss.
No error. Judges HUNTER and ELMORE concur.
Report per Rule 30(e).
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