An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-864


Filed: 18 March 2003


    v.                            Chowan County
                                No. 01 CRS 353

    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.


    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.

    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.

    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).

    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).

    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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