STATE OF NORTH CAROLINA
v
.
Mecklenburg County
No. 01 CRS 13082, 13083
ASA JARRAH SHANNON,
Defendant
Roy Cooper, Attorney General, by George K. Hurst, Assistant
Attorney General, for the State.
L. Jayne Stowers for defendant-appellant.
STEELMAN, Judge.
Defendant, Asa Jarrah Shannon, appeals convictions for assault
with a deadly weapon with intent to kill inflicting serious injury
and robbery with a dangerous weapon. For the reasons discussed
herein, we find no error.
The State's evidence tended to show that on 18 January 2001,
between 7:30 p.m. and 8:00 p.m., Debra Brannon (“Brannon”) and her
sister, Sarah Johnson, observed a young black man sitting on a
bicycle outside of Beauty World, which is located right next to R
& L Bingo on Wilkinson Boulevard in Charlotte, North Carolina. The
man was wearing a toboggan and had gold upper front teeth. Brannon
and her sister intended to go into R & L Bingo, but they wereafraid to get out of the car because the young man on the bicycle
looked at them in a strange manner.
Brannon and her sister remained in the car, observing the
young man, for approximately five to ten minutes until an employee
of R & L Bingo came outside. At that time, they went inside and
played bingo. Brannon noticed that it was a very cold night, that
it was near closing time, and that there was no one outside other
than the young man on the bicycle and the worker from the bingo
parlor.
Bruce Johnson (“Johnson”), the janitor at R & L Bingo,
testified that he went to Church's Chicken across Wilkinson
Boulevard between 7:00 p.m. and 7:30 p.m. on 18 January 2001.
While outside, he observed a man standing by the bingo parlor. He
made an in-court identification of defendant as the person he
observed standing by the bingo parlor that evening. Johnson stated
he had previously seen defendant on a couple of occasions riding
his bicycle near the bingo parlor. He described the bicycle as a
red ten-speed with straight handlebars and black whitewall tires
that were “skinny with nozzles.” While walking back from Church's
Chicken, Johnson saw Pyong Sok Kim, the owner of Beauty World,
lying on the ground outside Beauty World. Johnson also observed
defendant riding away on his bicycle behind the Park and Shop,
which is located across the street from R & L Bingo and Beauty
World.
Beauty World is owned and operated by Pyong Sok Kim and his
wife Keum Sok Kim. On 18 January 2001, while no customers were inthe store, Mr. and Mrs. Kim were in the back of the store. At
approximately 8:00 p.m., they heard someone come into the store.
The person was an African-American man, who was wearing a mask and
pointing a gun. The man demanded money, and Mr. Kim and Mrs. Kim
both gave him money out of their pockets. When the robber demanded
more money, Mr. Kim went with him to the front of the store and
took money out of the cash register. The robber attempted to shoot
Mr. Kim, but the gun misfired. The robber fired a second shot
which hit Mr. Kim in the leg, and a third shot went into the wall.
Mr. Kim went out the front of the store and collapsed in front
of the bingo parlor. The robber subsequently fled the scene.
Brannon, who was inside the bingo parlor, testified that she
heard gunshots. She saw Mrs. Kim outside. Mrs. Kim was screaming,
and her hands were bloody. Brannon went outside and saw Mr. Kim
lying on the ground with a gunshot wound to the leg. Brannon went
into Beauty World to retrieve a scarf to use as a tourniquet for
Mr. Kim.
Both Mr. and Mrs. Kim observed the robber leave the store and
escape on his bicycle, removing his mask as he left. Mrs. Kim
testified that the robber was an African-American male, that she
saw his nose, mouth, and eyes, and that he was wearing blue jeans
and a dark-blue spring jacket. Mr. Kim testified that the robber
was an African-American man, approximately 5'11” in height, that he
was wearing blue jeans and a dark spring running jacket, and that
his face was very clean-shaven. Neither Mr. Kim nor Mrs. Kim made
an in-court identification of defendant as the robber. Mr. Kim testified that around 7:00 p.m. on 18 January 2001,
prior to the robbery, he confronted a black male who had parked his
bicycle in front of the store. Mr. Kim asked him to move the
bicycle because it would be bothersome to customers. He testified
that this man was wearing the same clothing as the man who later
robbed his store, except that the man who committed the robbery was
also wearing a mask and carrying a gun. Furthermore, Mr. Kim
testified that he saw the robber ride away on the same bicycle that
he saw earlier in front of his store.
Defendant's mother testified that on the morning of 18 January
2001, she called the police because defendant threatened to shoot
her with an assault rifle. The police interviewed defendant around
6:30 a.m. at a school bus stop. When the police arrived at the
home, the mother requested the officers search the attic. The
search revealed a box of .22 caliber ammunition, allegedly
belonging to defendant. Defendant's mother also told the police
that she found a handgun in his room a couple of weeks earlier and
disposed of it.
Detective Randy Carroll testified that, pursuant to a search
warrant for defendant's home, the officers found a box containing
forty-one, nine millimeter bullets. The officers also found
another box that contained nine silver nine-millimeter bullets.
The police search of the crime scene immediately after the shooting
revealed a nine-millimeter shell casing, but it was a different
brand from the ones found at defendant's home. Detective Carroll
also testified that the five usable latent fingerprints that weredeveloped at the scene could not be matched to defendant nor to
another suspect the police investigated.
Defendant presented two alibi witnesses who claimed that he
was with them the evening of the robbery and shooting.
In his first assignment of error, defendant argues the trial
court erred in denying defendant's motion to dismiss the charges at
the close of all the evidence. We disagree.
In considering a motion to dismiss, the only issue for the
trial court is whether there is substantial evidence of each
essential element of the charged offense and of the defendant being
the perpetrator. State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d
920, 925 (1996). Substantial evidence is such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.
State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995).
The court must consider the evidence in the light most favorable to
the State and give the State the benefit of every reasonable
inference from that evidence. State v. Jaynes, 342 N.C. 249, 274,
464 S.E.2d 448, 463 (1995), cert. denied, 518 U.S. 1024, 135 L. Ed.
2d 1080 (1996). Contradictions and discrepancies in the evidence
are for the jury to resolve and do not warrant dismissal. State v.
Gibson, 342 N.C. 142, 150, 463 S.E.2d 193, 199 (1995). The State's
evidence must be existing and real, not merely seeming or
imaginary. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117
(1980). If the evidence is sufficient only to raise a suspicion or
conjecture as to either the commission of the offense or the
identity of the defendant as the perpetrator, the motion should begranted. Id. at 98, 261 S.E.2d at 117. However, the trial court
is not to consider the weight of the evidence, but only whether it
is sufficient to carry the case to the jury. Id. at 99, 261 S.E.2d
at 117. The test is the same whether the evidence is direct or
circumstantial. Id.
Defendant argues the State's evidence merely raised a
suspicion that defendant was the perpetrator of the crime charged.
The record shows, however, that the State presented sufficient
evidence to raise more than a mere suspicion of defendant's
identity as the perpetrator. Mr. Kim testified that the man who
robbed his store was wearing the same clothing as the man who had
earlier parked his bicycle in front of the store. Bruce Johnson
made an in-court identification of defendant as the man he saw
standing outside the bingo parlor near Beauty World between 7:00
p.m. and 7:30 p.m on 18 January 2001 and riding his bicycle near
Beauty World just after the time of the robbery. Debra Brannon
also testified that she observed a young man sitting on a bicycle
between the bingo parlor and Beauty World, sometime between 7:30
p.m. and 8:00 p.m. Although Brannon did not make an in-court
identification of defendant, she testified that the robber's
clothing in the still pictures taken from the surveillance
videotape matched the clothing of the person she saw outside the
store on the bicycle. Both Johnson and Brannon testified that the
person they saw had gold upper front teeth, and both gave
consistent descriptions of the person's bicycle. Additionally,
their descriptions of the man's clothing were similar todescriptions of the robber's clothing given by Mr. and Mrs. Kim.
This evidence, although circumstantial, allows for a reasonable
inference that defendant was the perpetrator. Thus, the trial
court properly denied defendant's motion to dismiss. This
assignment of error is without merit.
In his second assignment of error, defendant contends the
trial court erred in allowing Johnson and Brannon to testify that
they identified someone from a photographic line-up without further
testifying as to whom they identified. Defendant also argues that
it was error for the trial court to allow Detective Carroll to
testify that Johnson picked defendant from the line-up. We
disagree.
Defendant contends that the testimony of Johnson and Brannon
was admitted without proper foundation. Defendant's only objection
to this evidence at trial was during Brannon's testimony, when
defendant objected to there being “no evidence about any foundation
for her saying whether or not she picked somebody out of the
lineup.”
Brannon testified that she talked with Detective Carroll, who
showed her photos of different young men. She stated that he lined
up the photographs and told her to identify the person she saw on
the bicycle. This testimony laid the proper foundation for
Brannon's statement that she was able to pick someone from the
lineup. Thus, defendant's objection at trial was correctly
overruled by the trial court. Defendant also argues that Detective Carroll's testimony
regarding whom Johnson identified from the line-up was inadmissible
hearsay. Hearsay is a statement, made by someone other than the
declarant while testifying, which is offered in evidence to prove
the truth of the matter asserted. N.C. Gen. Stat. § 8C-1, Rule
801(c) (2003). A statement is any oral or written assertion or
nonverbal conduct intended as an assertion. N.C. Gen. Stat. § 8C-
1, Rule 801(a). Hearsay is inadmissible except as otherwise
provided by statute. N.C. Gen. Stat. § 8C-1, Rule 802. Present
sense impressions are within the hearsay exceptions. N.C. Gen.
Stat. § 8C-1, Rule 803(1). A present sense impression is a
statement describing or explaining an event or condition, made
while the declarant was perceiving the event or condition or
immediately thereafter. Id.
Detective Carroll testified that Johnson identified defendant
from a photographic line-up. Johnson's identification of defendant
was a statement about the line-up, made while Johnson perceived
the line-up. Johnson further identified defendant in the
courtroom. Thus, Detective Carroll's testimony was correctly
admitted under the hearsay exception for present sense impressions.
This assignment of error is without merit.
In his third assignment of error, defendant argues the trial
court erred in admitting evidence that defendant had previously
possessed a handgun and that ammunition of the caliber used in the
shooting was found in defendant's home. We disagree. In this case, the State was allowed to introduce evidence that
on the morning of the robbery, defendant's mother called the police
to her home. The police found a box of .22 caliber ammunition,
allegedly belonging to defendant. The State also introduced
testimony that a few weeks earlier, defendant's mother had found
and disposed of a handgun belonging to defendant. The trial court
also allowed the introduction of nine millimeter ammunition which
was found at defendant's home after the robbery. However, the
court excluded evidence that the police were called to defendant's
house because defendant had threatened to shoot his mother with an
assault rifle. The court also excluded the assault rifle found
during execution of the search warrant.
Defendant argues that all this evidence should have been
excluded under Rule 404(b) of the North Carolina Rules of Evidence.
Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b). However, Rule 404(b) is
inapplicable to the controverted evidence in this case, because
neither the nine millimeter ammunition found by the police nor the
firearm found by defendant's mother is evidence of “other crimes,
wrongs, or acts” by defendant.
Defendant also argues the evidence should have been excluded
pursuant to Rule 403 of the Rules of Civil Procedure. Under Rule403, otherwise relevant evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice. See N.C. Gen. Stat. § 8C-1, Rule 403 (2001). However,
the balancing of these factors is a matter of the trial court's
discretion, and the trial court's ruling should not be overturned
unless the ruling was “manifestly unsupported by reason or [was] so
arbitrary that it could not have been the result of a reasoned
decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527
(1988).
The record shows that the trial court carefully evaluated the
challenged evidence during voir dire, and admitted only that
evidence which was relevant and not unfairly prejudicial. The
evidence regarding the firearm and ammunition found in defendant's
home was probative of defendant's knowledge of the use of firearms
as well as his opportunity to use a firearm, including the type of
firearm used to shoot Mr. Kim. Thus, this evidence was offered for
a relevant purpose. Further, defendant has not shown that the
trial court abused its discretion in concluding that the evidence
was more probative than prejudicial. This assignment of error is
without merit.
In his fourth assignment of error, defendant argues that the
trial court erred in allowing the State to question Bruce Johnson
about his prior testimony as to the identity of the person he saw
leaving the scene of the crime. We disagree.
Defendant contends the State was permitted to misstate a
crucial part of Johnson's testimony regarding his identification ofdefendant. Because defendant did not object to this question and
answer at trial, this Court is limited to a plain error review.
N.C. R. App. P. 10(c)(4) (2003); State v. Davis, 353 N.C. 1, 19,
539 S.E.2d 243, 256 (2000), cert. denied, 534 U.S. 839, 151 L. Ed.
2d 55 (2001).
The plain error rule must be applied cautiously and is limited
to exceptional cases. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d
375, 378 (1983); State v. Black, 308 N.C. 736, 740, 303 S.E.2d 804,
806 (1983). In order to prevail under a plain error review,
defendant must establish “not only that there was error, but that
absent the error, the jury probably would have reached a different
result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697
(1993).
Near the end of the day on 10 September 2002, Bruce Johnson
testified for the State. Johnson said that he saw defendant
standing outside the bingo parlor with a bicycle on 18 January
2002, and made an in-court identification of defendant. He
testified that he went across the street to get something to eat,
and when he returned, he saw Mr. Kim laying outside and someone
riding away on the bicycle he had seen defendant with earlier.
Thereafter, court recessed for the evening. When court resumed on
the morning of 11 September 2002, the State resumed its examination
of Johnson with the following question:
[State]: At that point I think where we left
off I think that's when you said you had seen
the defendant, Mr. Shannon, go off on the
bicycle when you saw the victim on the ground?
[Johnson]: Yes.On cross-examination, the following exchange occurred between
defendant's counsel and Johnson:
[Counsel]: Now, you said at some point you
said you saw an individual and you say it was
Asa Shannon, you saw him riding away, is that
right?
[Johnson]: I seen him earlier.
[Counsel]: My question was did you see him
riding away?
[Johnson]: Yes, sir.
On re-direct examination, the State asked Johnson the following,
without objection by defendant:
[State]: You know that the defendant, you have
seen him before out there?
[Johnson]: Yes.
[State]: You're sure that is the man that was
out there on the bicycle before and after the
shooting?
[Johnson]: Yes.
“It is well established that the admission of evidence without
objection waives prior or subsequent objection to the admission of
evidence of a similar character.” State v. Campbell, 296 N.C. 394,
399, 250 S.E.2d 228, 231 (1979). As the trial transcript shows,
evidence consistent with the State's summary of Johnson's testimony
was offered on cross examination by defendant and on re-direct
examination without objection. Thus, defendant has waived his
objection to the admission of the prior testimony. Moreover,
defendant has not established that the jury would likely have
reached a different result but for the trial court allowing the
State to summarize Johnson's prior testimony. Therefore, defendantcannot prevail on plain error review. This assignment of error is
without merit.
In the record on appeal, defendant specified six assignments
of error. However, defendant failed to argue assignments of error
numbers five and six in his brief. Therefore, these two final
assignments of error have been abandoned. N.C. R. App. P., Rule
28(a) (2003).
NO ERROR.
Judges HUDSON and TYSON concur.
Report per Rule 30(e).
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