An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-343


Filed: 03 February 2004


v .                         Mecklenburg County
                            No. 01 CRS 13082, 13083

    Appeal by defendant from judgment entered 18 September 2002 by Judge Robert P. Johnston in Mecklenburg County Superior Court. Heard in the Court of Appeals 4 December 2003.

    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).
    Judges HUDSON and TYSON concur.
    Report per Rule 30(e).

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