An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1459

NORTH CAROLINA COURT OF APPEALS

Filed: 18 November 2003

STATE OF NORTH CAROLINA

    v.                            Pitt County
                                Nos.    01 CRS 050406,
                                    050409, 050412 &
LIONEL SHORTES WHITE                    050420-25

    Appeal by defendant from judgments dated 28 May 2002 by Judge W. Russell Duke, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 28 August 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Jill B. Hickey, for the State.

    Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Katherine Jane Allen, for defendant-appellant.

    BRYANT, Judge.

    Lionel Shortes White (defendant) appeals from judgments dated 28 May 2002 entered consistent with a jury verdict finding him guilty of two counts of robbery with a firearm, one count of second-degree burglary, seven counts of second-degree kidnapping, and seven counts of assault by pointing a gun.
    At trial, the State's evidence indicated that on 4 January 2001, defendant and at least two other unknown perpetrators committed burglary, robbery, and other crimes at the home ofJeffrey Wright in Greenville, North Carolina.   (See footnote 1)  Except for defendant, all the perpetrators wore masks. Present during the invasion were Jeffrey, his wife Tanya, his son Jeffrey, II, his nephew, his sister Angela Cole, Cole's daughter Asya, Jeffrey's business partner Frankie Atkinson, and another guest, Sharon Raynor. The intrusion lasted for forty to forty-five minutes. Before leaving, the perpetrators took the following items: from the Wrights $4,000 in cash, jewelry, guns, a cellular phone, a pager, a watch, and a box of trinkets; from Atkinson a shirt, a wallet, a watch, and a checkbook; and from Raynor a cellular phone. Evidence at trial also included eyewitness identification of defendant as one of the perpetrators, testimony indicating defendant used his sister's car for the robbery, and testimony regarding the electronic tracking of the route of the two stolen cellular phones from Greenville to Wilson, North Carolina, where defendant's sister worked.
    During his opening statement, defendant, through counsel, asserted the State had no evidence of a confession from defendant. Meanwhile the State learned that Michael King, who was in jail facing unrelated charges, had information about the crimes anddefendant's involvement. On the second day of trial, the State interviewed King, who said defendant had admitted the robbery to him. That same day the State provided defendant with supplemental discovery detailing the substance of King's proposed testimony and disclosed that King was a “jailhouse snitch” but did not disclose his name. On the third day of trial, the State provided to defendant King's name and records of King's and defendant's previous locations in the jail. Thereafter, defendant conducted a voir dire examination of King outside the presence of the jury. Defendant made motions for exclusion of testimony, a continuance, and a mistrial, arguing King's testimony would violate defendant's due process rights and N.C. Gen. Stat. § 15A-903. The trial court denied the motions, finding no prejudice to defendant and no statutory violation.

_________________________

    The issues are whether the trial court erred in: (I) denying defendant's motions for a continuance and a mistrial; (II) questioning several State witnesses in the presence of the jury; (III) its instructions on reasonable doubt and direct and circumstantial evidence; (IV) finding as an aggravating factor that defendant “joined with more than one person in committing the offense[s]” of robbery and kidnapping; and (V) ordering restitution to the Wrights.
I

    Defendant first argues that the trial court's denial of his motions for a continuance and a mistrial violated his constitutional right to effective assistance of counsel.   (See footnote 2)  Defendant asserts that insufficient opportunity to investigate and prepare for cross-examining King resulted in the denial of effective assistance of counsel. In addition, defendant states he lost credibility with the jury when counsel noted the lack of a confession in opening statement. He claims that had either of the motions been granted, he would have been able to restrategize and remedy the error.
    “[W]hen a confession is challenged on . . . grounds which are not clearly brought to the attention of the trial judge, a specific objection or explanation pointing out the reason for the objection or motion to suppress is necessary.” State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982); see also N.C.R. App. P. 10(b)(1) (“to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the partydesired the court to make if the specific grounds were not apparent from the context”). Furthermore, “a constitutional question which is not raised and passed upon in the trial court will not ordinarily be considered on appeal.” Hunter, 305 N.C. at 112, 286 S.E.2d at 539.
    In the instant case, defendant's assignment of error based on the constitutional questions of ineffective assistance of counsel and violation of the Confrontation Clause is not reviewable on appeal. Though defendant asserted in conclusory fashion at trial the admission of King's testimony would violate his due process rights, defendant made no specific argument regarding due process and did not challenge the trial court's failure to rule on the claims. Therefore, as the constitutional claims were not ruled upon by the trial court, defendant is not permitted to raise them on appeal. See id.; N.C.R. App. P. 10(b)(1).
    Assuming arguendo defendant's constitutional claims were properly preserved. They are nevertheless without merit.
        To establish a constitutional violation, a defendant must show that he did not have ample time to confer with counsel and to investigate, prepare and present his defense. To demonstrate that the time allowed was inadequate, the defendant must show “how his case would have been better prepared had the continuance been granted or that he was materially prejudiced by the denial of his motion.”
State v. Tunstall, 334 N.C. 320, 329, 432 S.E.2d 331, 337 (1993) (citation omitted). In the instant case, defendant makes general allegations regarding “numerous areas of interest” he could have explored had he been allowed time for preparation. However, defendant is unable to show material prejudice, especially where the record indicates defendant conducted extensive and skillful cross-examination of King. This, along with significant evidence of guilt, mandates a conclusion of no material prejudice and no constitutional violation.
II

    Defendant also claims the trial court expressed impermissible opinions to the jury during its questioning of four witnesses. Specifically, defendant claims the trial court attempted to strengthen the testimony of two witnesses concerning defendant's identification and attempted to rehabilitate the testimony of two other witnesses. We disagree.
    “[A] trial judge must not express any opinion as to the weight to be given to or credibility of any competent evidence presented before the jury.” State v. Harris, 308 N.C. 159, 167, 301 S.E.2d 91, 97 (1981). However, a trial judge may question a witness to clarify or to promote a better understanding of the witness's testimony. State v. Whittington, 318 N.C. 114, 125, 347 S.E.2d 403, 409 (1986). In the present case, the trial court's questionsto the four witnesses are as follow:
Tanya

    After the redirect examination of Tanya and upon defense counsel's declination to conduct re-cross-examination, the trial court asked the witness:
        Court:    [Y]ou testified that the light was on in the dining room?

        Witness:    Yes, sir.

        Court:    Did that light in any way illuminate any part of the living room?

        Witness:    No sir. The living room was dark but when the light is on in the dining room, it lights the whole dining room and somewhat part of the back foyer area.

    Defendant argues the identification of the perpetrators is a crucial part of the case and the trial court's questions are a “clear effort to strengthen” Tanya's identification of defendant.
Jeffrey

    After the cross-examination of Jeffrey, the trial court asked him several questions. Again, defendant argues the trial court's questions to Jeffrey were intended to buttress his identification of defendant.
        Court:    And I believe [defense counsel] asked you if you had an opportunity to look at anybody's face and your answer was no. Did you ever _ did you get a clear look at thedefendant?

        Witness:    I got a clear look at . . . defendant but the other guy I couldn't see because the other guy rushed in with the gun and immediately ordered me to get down, but [defendant] was just standing in the foyer right where he was when all this was happening.

        Court:    When did you see him?

        Witness:    When I walked out of the bedroom and when that guy came rushing in, I turned and looked. [Defendant] was still there, and this guy busted in the door behind him. That's how the hinges got broke on my screen door. They yanked the door open and he was still standing and the other guy rushed in behind him.

Moore

    Wally Moore, a crime scene investigator, testified that after analyzing all the physical evidence gathered from the crime scene and finding nothing inculpatory, he destroyed the evidence. Following cross-examination, the trial court asked Moore: “[A]s to each item that you examined and that is not now available, please explain to the jury the reason for its destruction or unavailability or the reason that you didn't make any further examination of that particular item?” Defendant argues the trial court attempted to rehabilitate Moore's testimony through this question.

King

    Defendant claims during cross-examination of King, defense counsel raised doubt on the possibility of interaction between King, a juvenile offender, and defendant in the jail. After the cross-examination, the trial court asked King several questions. Defendant argues the trial court attempted to rehabilitate King's testimony through these questions.
        Court:    So the jury will be clear, tell us [,] are the adults allowed to intermingle with the juveniles?

        Witness:    Yes, sir. We can.

        Court:    But are you in the same area at that time?

        Witness:    Yes, sir.

        Court:    Is there anything separating you from the adults?

        Witness:    The only thing separating us is a door _ the door that _ there's different cells in the dorms and the only [sic] separating us is the door, but there's an opening in the door, a trap, and sometimes we'll play checkers on the trap or play cards.

        Court:    But you couldn't sit on the bed of an adult, could you?

        Witness:    No, sir.

        Court:    So you're not allowed to be able to actually be in the same area like we are here? There's a separation?
        Witness:    There's a door between us but we can still touch each other if we want to through a trap.

    In reviewing the trial court's questions of the four witnesses and the context of those questions, we hold the trial court's actions were entirely proper. The trial court did not interfere with the examinations of the witnesses and questioned the witnesses only after the State and defendant completed their respective examinations. The fact that the trial court's questions sought to clarify testimony regarding circumstances surrounding identification of defendant and destruction of evidence does not necessarily suggest an attempt to buttress or rehabilitate witness testimony. On the contrary, the trial court's questions to the witnesses were clearly intended to clarify confusing testimony for the benefit of the jury. See State v. Freeman, 280 N.C. 622, 627, 187 S.E.2d 59, 63 (1973) (as judges “preside over the courts as . . . essential and active factors or agencies in the due and orderly administration of justice[, i]t is entirely proper, and sometimes necessary, that they ask questions of a witness so that the 'truth, the whole truth, and nothing but the truth' be laid before the jury”) (citations omitted).
III

    Defendant next contends the jury instructions on reasonable doubt and direct and circumstantial evidence read togetherconstituted error and violated defendant's constitutional right to a fair trial. Particularly, defendant asserts the instructions did not define the clause “beyond a reasonable doubt” and did not contain the requirement that the jury had to acquit defendant if it was not convinced of his guilt beyond a reasonable doubt.
    Defendant cites no authority, as required by N.C.R. App. P. 28(b)(6), to support his proposition that the jury instructions read together constituted error and violated defendant's constitutional right to a fair trial. Moreover, defendant did not object to the instructions before the jury retired to consider the verdict and failed to allege specifically and distinctly plain error in his assignment of error. See State v. Hunt, 339 N.C. 622, 650, 457 S.E.2d 276, 292 (1994) (absent an objection, the assignment of error is considered under the plain error standard of review); N.C.R. App. P. 10(c)(4) (assignment of error not preserved where the judicial action questioned is not specifically and distinctly contended to amount to plain error). Accordingly, this assignment of error was not preserved for appellate review and is overruled.
IV

    Defendant further claims the trial court erred in finding as an aggravating factor that defendant “joined with more than one other person in committing the offense and was not charged withcommitting a conspiracy,” see N.C.G.S. § 15A-1340.16(d)(2) (2001), for the robbery with a firearm of Jeffrey and Atkinson and the second-degree kidnapping of Jeffrey, Jeffrey, II, Atkinson, Cole, and Asya. According to a defendant, joining with more than one other person in committing the offense is an element of both robbery and kidnapping and thus cannot be used as an aggravating factor. We disagree.
    “Evidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation . . . .” N.C.G.S. § 15A-1340.16(d) (2001). The elements of robbery with a dangerous weapon are: (1) taking or attempting to take the property from the person of another or in that person's presence; (2) by threat; (3) through the use of a dangerous weapon. In re Stowe, 118 N.C. App. 662, 664, 456 S.E.2d 336, 337 (1995); N.C.G.S. § 14-87(a) (2001). The elements for second-degree kidnapping are: (1) unlawfully confining; (2) another; (3) without consent; (4) for the purpose of facilitating the commission of a felony; and (5) the person kidnapped is released in a safe place and is not seriously injured or sexually assaulted. State v. Allred, 131 N.C. App. 11, 19-20, 505 S.E.2d 153, 158-59 (1998); N.C.G.S. § 14-39(a)-(b) (2001). That defendant joined with more than one person in committing the offense is not an element of either of these crimes.
    Here, defendant joined with at least two others in committingthe charged offenses. Even though this fact was used to prove defendant's culpability under the theory of acting in concert, our Supreme Court has stated that the statutory aggravating factors “contemplate a duplication in proof without violating the proscription that 'evidence necessary to prove an element of the offense may not be used to prove any factor in aggravation.'” State v. Bruton, 344 N.C. 381, 394, 474 S.E.2d 336, 345 (1996) (citing State v. Thompson, 309 N.C. 421, 422 n.1, 307 S.E.2d 156, 158 n.1 (1983)). Accordingly, this assignment is overruled.
    Defendant also assigns error to the trial court's finding of the aggravating factor of committing a crime in furtherance of a criminal street gang (factor 2a) for the second-degree kidnapping of Raynor. The trial transcript indicates that for this offense, the trial court found only the aggravating factor of joining with more than one other person in committing the offense (factor 2). It appears, therefore, that checking the “factor 2a” box on defendant's criminal record was a clerical error. We remand as to the offense of second-degree kidnapping of Raynor for correction of this clerical error.
V

    Finally, defendant alleges the trial court's restitution order for the Wrights' loss of jewelry, cellular phone, and pager is not supported by the evidence. To preserve a question for appellatereview, a party must timely object to the trial court's ruling by stating the specific grounds for the desired ruling. N.C.R. App. P. 10(b)(1). In this case, when the State requested restitution in open court, defendant through counsel stated that he did not want to be heard on the restitution issue. When the trial court announced the restitution payments and asked whether anyone had any questions about the judgment, defendant objected to the finding of aggravating factors only. Under these circumstances, defendant failed to preserve the restitution issue for appellate review. See State v. Applewhite, 127 N.C. App. 677, 684-85, 493 S.E.2d 297, 301 (1997) (holding that the defendant failed to preserve the restitution issue for appeal by not objecting to the trial court's restitution order issued under similar circumstances). As a result, we do not address this issue.
    No error at trial.
    Remanded for correction of clerical error.
    Judges McGEE and GEER concur.
    Report per Rule 30(e).


Footnote: 1
    Trial testimony was conflicting among the victims as to the total number of perpetrators. However, the evidence clearly established that defendant and at least two masked men, one with dreadlocks, participated in the invasion of Jeffrey Wright's home.
Footnote: 2
    In his assignment of error, defendant also alleges the trial court erred in denying his motion to exclude King's testimony and thus violated state law, presumably N.C. Gen. Stat. § 15A-903. However, defendant does not address the motion to exclude or any statutory violation in his brief. Therefore, the issues are deemed abandoned. See N.C.R. App. P. 28(a).

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