An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1572


Filed: 15 July 2003


         v.                        Forsyth County
                                No. 01 CRS 55801

    Appeal by defendant from judgment entered 24 July 2002 by Judge Ronald E. Spivey in Forsyth County Superior Court. Heard in the Court of Appeals 7 July 2003.

    Roy Cooper, Attorney General, by Sylvia Thibaut, Assistant Attorney General, for the State.

    William D. Auman for defendant appellant.

    STEELMAN, Judge.

    Defendant, Rodney Dale Yates, appeals a conviction of robbery with a dangerous weapon. He was sentenced within the presumptive range to a term of 117 to 150 months' imprisonment. For the reasons stated herein, we find no error.
    The State's evidence tended to show that in the early morning of 18 June 2001, a white male entered the Fast Track gas station on Clayton Forest Drive in Kernersville, North Carolina, wearing blue jeans and a purple shirt. He brandished “a long kitchen knife” at store clerk Ciatta Williams and stole $434 from the store's cash register. The man fled the store and ran through the parking lot, heading south toward Interstate 40. Kernersville Police OfficerGregory Hiatt responded to the scene and obtained Williams's description of the robber, which he broadcast to the other units within his patrol area. Forsyth County Sheriff's Deputy and certified K-9 handler G.D. Miller was called to the Fast Track at 3:14 a.m. He tracked the robber's flight from the store with his German Shephard, “Dingo.” The search led across I-40 and ended outside the 1300 building of Abbott's Creek Apartments. Based on other information, the officers knocked on the door of 1318 Abbot's Creek Apartments and found defendant inside. After obtaining permission to enter the apartment, police observed a pair of torn, grass-stained blue jeans on a foot locker. Behind the footlocker was a purple polo-style shirt. Defendant claimed he had been asleep in the apartment since 11:00 p.m., but agreed to walk outside to allow Williams to look at him. Approximately one hour after responding to the Fast Track, Hiatt drove Williams to 1300 Abbott's Creek Circle, where she positively identified defendant as the man who had robbed her. She also identified defendant in court as the robber. Defendant was subsequently convicted of robbery with a dangerous weapon. He appeals.
    In his first assignment of error, defendant argues the trial court erred by allowing into evidence complainant's show-up identification of defendant approximately seventy-five minutes after the robbery. Defendant allowed both Officer Hiatt and Williams to testify about the identification without objection. Although he now argues that the trial court should have intervened ex mero motu to exclude this evidence, he has neither assigned norargued plain error on appeal. See N.C.R. App. P. 10(b)(1), (c)(4). Defendant has not preserved this issue for our review. See., e.g., State v. Gainey, 355 N.C. 73, 97, 558 S.E.2d 463, 479, cert. denied, ___ U.S. ___, 154 L. Ed. 2d 165 (2002). This assignment of error is without merit.
    In his second assignment of error, defendant argues that the trial court erred by admitting Miller's testimony regarding Dingo's tracking of the robber from the Fast Track store to Abbott's Creek Apartments. We disagree.
    After a voir dire hearing, the court ruled the evidence admissible, finding “that the dog and the handler have received sufficient training and certification in the area of tracking and location” to allow their findings into evidence. The court separately determined that the probative value of the evidence outweighed the risk of unfair prejudice under N.C.R. Evid. 403. The court concluded that the concerns raised by defendant were “issues that go to the weight of the testimony . . . and not its admissibility.”
    In State v. McLeod, 196 N.C. 542, 545, 146 S.E. 409, 411 (1929), the Supreme Court established the following four-part foundation required for evidence of tracking by police dogs:
        (1) that the[ dogs] are of pure blood, and of a stock characterized by acuteness of scent and power of discrimination; (2) that they possess these qualities, and have been accustomed and trained to pursue the human track; (3) that they have been found by experience reliable in such pursuit; (4) and that in the particular case they were put on the trail of the guilty party, which was pursued and followed under such circumstancesand in such way as to afford substantial assurance, or permit a reasonable inference, of identification. (Citations omitted.)

Subsequent case law has refined this test so that “evidence of tracking by a dog is admissible where the dog is not a bloodhound as long as the final three foundation requirements quoted from McLeod, supra, are satisfied.” State v. Green, 76 N.C. App. 642, 334 S.E.2d 263, disc. rev. denied, 315 N.C. 187, 340 S.E.2d 751 (1985).
    Applying McLeod to the instant case, we find ample evidence of Dingo's training and abilities. Miller had been a certified K-9 handler since 1997, working exclusively with Dingo. Dingo was a pure-bred German Shepherd trained in Holland. Miller and Dingo were certified annually and bi-annually through the North American Police Work Dog Association and the Eastern States Police Work Dog Association. In addition to their initial month-long training period at Century K-9 in Yadkin County, Miller and Dingo trained together four hours per week.
    The State further established Dingo's specialized training and reliability in the tracking of humans. Miller explained that Dingo tracks the most recent disturbance in a given area. See also State v. Irick, 291 N.C. 480, 495, 231 S.E.2d 833, 843 (1977). The “disturbance” includes gases and odors from the ground, as well as tiny skin particles that constantly drop from the human body. As part of his certification, Dingo must successfully perform a disturbance track as follows:
        [A] person has to lay a track. . . . He's got to go through grass, through woods, and . . .asphalt or another type of surface. There ha[ve] to be at least two turns on the track. The track has to got to be at least . . . a half mile to a mile long . . . and there has got to be a cross track . . . to be sure the dog do[es]n't deviate onto the cross track.

Miller further testified that Dingo had successfully performed between 400 to 500 disturbance tracks. See State v. Taylor, 337 N.C. 597, 610-11, 447 S.E.2d 360, 368-69 (1994), cert. denied, ___ N.C. ___, 533 S.E.2d 475 (1999). Dingo tracks until he either finds the subject or “runs out of a track[,]” at which point he stops. As mentioned above, Dingo was also trained to stay on the initial track and to ignore any “cross tracks” in his path.
    Turning to the fourth element of McLeod, we believe the State adequately demonstrated the reliability of Dingo's tracking on the morning of 18 June 2001. Miller testified that Dingo began tracking between 3:14 a.m. and 3:30 a.m., approximately one-half hour after police learned of the robbery. The officers had established a perimeter around the store to prevent contamination of the crime scene. No other persons were observed at the store following the robbery. Miller placed Dingo just outside of the store's front door, where the robber had been observed. See State v. Irick, 291 N.C. 480, 495, 231 S.E.2d 833, 843 (1977) (“Where the guilty party is unknown, it is sufficient if the dog is laid on the trail 'at a point where the circumstances tend clearly to show that the guilty party has been . . .'”) (quoting State v. Norman, 153 N.C. 591, 593, 68 S.E. 917, 918 (1910)). Dingo picked up a disturbance and tracked it from the store through a field, over a low fence to the edge of I-40. For safety reasons, Miller ledDingo across the interstate in a straight line. Dingo picked up the disturbance on the other side of the interstate and tracked it to the apartment building. When asked how he knew Dingo maintained the same track after crossing the highway, Miller responded, “He was on the most current disturbance track and it was right in line with the track that we were running.” Having worked and trained with Dingo for several years, Miller could tell by his behavior that Dingo followed a single track to Abbot's Creek Circle. Miller explained that Dingo likely lost the scent at the apartment building due to the large amount of foot traffic and other activity in the area.
    We conclude the trial court properly admitted Miller's testimony. Although defendant notes that Dingo did not signal to his apartment door, the evidence of a track “does not have to result in a positive identification. So long as a reasonable inference as to defendant's guilt arises on the facts, the evidence is for the jury.” Irick, 291 N.C. at 495, 231 S.E.2d at 843. We further find no abuse of the trial court's discretion under N.C.R. Evid. 403 in finding that the probative value of the evidence outweighed the risk of unfair prejudice arising therefrom. See generally State v. Grooms, 353 N.C. 50, 72, 540 S.E.2d 713, 727 (2000), cert. denied, 534 U.S. 838, 151 L. Ed. 2d 54 (2001). This assignment of error is without merit.
    In his third assignment of error, defendant argues that the trial court erred in denying his motion to dismiss at the conclusion of the State's case, absent substantial evidence of hisidentity as the perpetrator of the armed robbery. We disagree.
    Williams's eyewitness identification of defendant both on the morning of the robbery and in court was sufficient to withstand a motion to dismiss and send the case to the jury. See State v. Jordan, 321 N.C. 714, 717, 365 S.E.2d 617, 619-20 (1988) (citing State v. Miller, 270 N.C. 726, 154 S.E.2d 902 (1967)). Williams observed defendant in the Fast Track store twice on the morning of the robbery. Having viewed her assailant at close range, Williams's in-court identification of defendant was not inherently incredible. Moreover, we cannot say that the procedures used at the show-up made it physically impossible for Williams to make an accurate identification. Officer Hiatt fixed his patrol car's lights on defendant and allowed Williams to view him through binoculars from a distance of between forty and ninety feet. Williams testified she “knew directly” that defendant was the man who had robbed the Fast Track. Under these circumstances, the weight and credibility of her testimony were “matters solely within the province of the jury.” Id. (citing State v. Orr, 260 N.C. 177, 132 S.E.2d 334 (1963)).
    We note that Williams's testimony was corroborated by Dingo's tracking of the robber to defendant's apartment building and by the jeans and purple shirt found in defendant's apartment by police. Other witnesses contradicted defendant's claim to police that he had been asleep in his apartment since 11:00 p.m. on 17 June 2001. Vernon Jay Britt, the clerk at a Quality Mart across I-40 from the Fast Track, spoke with defendant in the Quality Mart at 10:30 p.m.on 17 June 2001, and between 1:00 a.m. and at 2:00 a.m. on 18 June 2001. Kernersville Police Officer D.W. Watson saw defendant at a payphone outside the Quality Mart at 1:00 a.m. on 18 June 2001. Finally, Jewell Tilly testified that defendant knocked on her door at 1317 Abbott's Creek Apartments at 2:30 a.m. on 18 June 2001, looking for her boyfriend. Thus, this assignment of error is without merit.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

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