An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1146

NORTH CAROLINA COURT OF APPEALS

Filed: 1 June 2004

STATE OF NORTH CAROLINA

         v.                        Craven County
                                No. 02 CRS 53978
CLAY JEROME FRAZIER, JR.
    

    Appeal by defendant from judgment dated 23 April 2003 by Judge Russell J. Lanier, Jr. in Superior Court, Craven County. Heard in the Court of Appeals 10 May 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General Jeffrey B. Parsons, for the State.

    McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III and Terri W. Sharp, for defendant-appellant.

    McGEE, Judge.

    Clay Jerome Frazier, Jr. (defendant) was convicted of robbery with a dangerous weapon. The State's evidence at trial tended to show that Sean Cartwright (Cartwright) was driving home after work in his Geo Tracker (the vehicle) at around 11:30 p.m. on 1 July 2002. As he drove down Adams Creek Road in Craven County, Cartwright saw a truck stopped in his lane of traffic with its high beams shining in his direction. As he went around the truck, Cartwright saw "eight to ten people standing around" and he heard gunfire. Immediately thereafter, Generic Turner (Turner) was standing at the driver's door of Cartwright's vehicle with a gun pointed at Cartwright's head, telling Cartwright "to pull over tothe side of the road." Turner ordered Cartwright out of the vehicle. Turner and defendant demanded Cartwright's wallet, which Cartwright threw on the seat for them to pick up. As Turner held Cartwright at gunpoint, defendant attempted to remove the radio, amplifier and speakers from the vehicle but was unsuccessful.
    Turner took Cartwright's keys and ordered him into the front passenger's seat of the vehicle. A man, whom Cartwright believed to be defendant, climbed into the back seat and held a gun to Cartwright's head. Fearing he would be shot, Cartwright did not turn his head to see who was in the back seat. However, the person was of the "same shape and size" as defendant, and Cartwright had not seen anyone other than Turner and defendant approach his vehicle. At the intersection of Frazier Town Road and Adam's Creek Road, the person in the back seat exited the vehicle and handed Turner the gun through the window. Turner drove the vehicle recklessly as he taunted Cartwright. Eventually, Cartwright jumped from the moving vehicle and ran to the house of an acquaintance to call 911.
    Deputy James Teel (Deputy Teel) of the Craven County Sheriff's Department responded to the scene at approximately 12:15 a.m. on 2 July 2002. Cartwright stated that he recognized his assailants and would contact the deputies once he had looked at his high school yearbook to determine their names. Cartwright identified the man in the driver's seat of his vehicle as Generic Frazier. Deputy Teel asked Cartwright if he meant Generic Frazier or Generic Turner and Cartwright replied that he would have to consult his yearbook. Later that morning, Deputy Teel located the vehicle in a ditch on Thomas Bell Jay Road and called Cartwright.
    Cartwright looked in his yearbook and found pictures of the two men who had robbed him. When Cartwright saw defendant's picture, he "automatically said that was the other guy." When Cartwright went to retrieve his vehicle, he confirmed the driver's name as Generic Turner. Cartwright's wallet was found in the vehicle, but his money was gone.
    Deputy John Whitfield (Deputy Whitfield) of the Craven County Sheriff's Department contacted Cartwright on the afternoon of 2 July 2002. Cartwright identified defendant by name as the second assailant. Based on this identification, Deputy Whitfield obtained a warrant on 2 July 2002 for defendant's arrest, and defendant was arrested the following day. On 8 July 2002, Deputy Whitfield presented Cartwright with two photographic lineups, one of which included defendant, in order "to corroborate his story." Cartwright selected defendant's photograph from the first line-up and Turner's photograph from the second.
    Turner testified that he, defendant, and Jermaine Brown (Brown) ran up to Cartwright's vehicle and told him to stop. Turner ordered Cartwright out of the vehicle. According to Turner, defendant "brought me the gun around the jeep and I put it on [Cartwright]." Turner demanded and took Cartwright's wallet while defendant was "trying to get the speakers and the box out of the back of the trunk." After ordering Cartwright into the passenger's seat, Turner sat in the driver's seat and "let [Brown] in the backseat" before driving down Frazier Town Road.
    Defendant first argues the trial court erred in denying his motion to suppress Cartwright's identification of defendant as one of Cartwright's two assailants. In support of his claim, defendant contends the photographic line-up presented to Cartwright by Deputy Whitfield on 8 July 2002 was unduly suggestive. At the hearing on the motion to suppress, Deputy Whitfield recounted Cartwright's prior familiarity with defendant and Cartwright's naming of defendant as one of the robbers after consulting his high school yearbook. Deputy Whitfield described his telephone conversation with Cartwright on 2 July 2002 as follows:
        [Cartwright] named two in particular, Generic Turner and Clay Frazier. He named your client because he said he recognized him the night of the robbery. He didn't remember his name but he went home and looked in his [a]nnual, because he rode the school bus with him, and picked him out of his annual that way.

Only after defendant's arrest did Deputy Whitfield present Cartwright with the photographic line-up as another way "to corroborate his story."
    In denying the motion to suppress, the trial court found that "the victim knew the Defendant by face, not necessarily by name[,]" and that he "discovered the Defendant's name by looking through the high school yearbook and notified the officers." The trial court found that the photographic line-up "was not improperly suggestive, nor really was it a causative factor in the arrest of the Defendant, as the Defendant had already previously been identified by the victim and had previously been arrested." As fordefendant's claim that it was Brown, not defendant, who rode in the back seat of the vehicle with Turner and Cartwright, the trial court stated, "I don't see that you've got any grounds to suppress. You've got a whole lot of stuff to argue to a jury about."
    
Identification of a suspect by a witness will be excluded from evidence if the procedures leading to the identification were "so impermissibly suggestive that there is a very substantial likelihood of irreparable misidentification." State v. Williams, 69 N.C. App. 126, 128, 316 S.E.2d 322, 324 (1984). In this case, we find no possibility that the photographic line-up led Cartwright to mistakenly identify defendant as one of his assailants. Rather, it was Cartwright's independent identification of defendant on 2 July 2002 that led Deputy Whitfield to prepare the photographic line-up on 8 July 2002. As found by the trial court, the evidence conclusively shows that Cartwright's identification of defendant on 2 July 2002 was based on Cartwright's observations at the crime scene and his prior familiarity with defendant, and not on the 8 July 2002 photographic line-up or on his knowledge of defendant's arrest. Cf. State v. Butler, 331 N.C. 227, 237, 415 S.E.2d 719, 724-25 (1992) (holding that the trial court's failure to conduct a voir dire regarding a photographic line-up was harmless, in light of the "clear and convincing evidence that the witness knew and was familiar with the defendant, that the witness had ample and clear opportunity to observe the defendant as he committed the crime, and that the witness consistently identified the defendant as the perpetrator"). The trial court did not err in denying defendant's motion to dismiss.
    Defendant also challenges the admission into evidence of the photographic line-up and defendant's high school yearbook photograph, arguing they were unfairly prejudicial under N.C. Gen. Stat. § 8C-1, Rule 403. Having examined the exhibits in question, we find no error by the trial court. The photographs were admissible, within the trial court's discretion, for the purpose of illustrating the witnesses' testimony. They were not inflammatory nor unduly prejudicial to defendant. See State v. Walters, 357 N.C. 68, 97, 588 S.E.2d 344, 361, cert. denied, ___ U.S.___, 157 L. Ed. 2d 320 (2003).
    Defendant next contends the trial court erred in allowing the State to amend the indictment just prior to trial to change the date of the alleged armed robbery from "on or about the 2nd day of July, 2002" to "on or about July 1 through July 2" of 2002. The State's evidence showed the robbery occurred between 11:30 p.m. on 1 July 2002 and 12:15 a.m. on 2 July 2002. Although the original language of the indictment was sufficient to sustain defendant's conviction, the alteration permitted by the trial court did not affect any necessary or essential fact of the charge or hinder the defense in any way. See State v. Cameron, 83 N.C. App. 69, 72, 349 S.E.2d 327, 329-30 (1986). Accordingly, this assignment of error is overruled.
    Defendant also challenges the amendment of a second portion of the indictment charging him with larceny of a motor vehicle. However, the trial court dismissed this charge at the conclusion of the evidence, precluding any possible prejudice to defendant.
    Defendant next argues the trial court erred in instructing the jury on the doctrine of concerted action. Citing Turner's testimony that Brown rode in the back seat of the vehicle with Turner and Cartwright, defendant asserts that Turner and Brown committed the kidnapping and armed robbery. Defendant states his own participation in the incident was limited to "attempting to steal the stereo from Cartwright's vehicle, which was not accomplished."
    We have previously defined the doctrine of concerted action as follows:
            To act in concert means to act in conjunction with another according to a common plan or purpose. It is unnecessary to show that defendant committed "any particular act constituting at least part of a crime in order to be convicted of that crime under the concerted action principle so long as he is present at the scene of the crime and the evidence is sufficient to show he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime."

State v. Sams, 148 N.C. App. 141, 145, 557 S.E.2d 638, 641 (2001), disc. review denied, 355 N.C. 352, 562 S.E.2d 429 (2002) (citation omitted) (quoting State v. Joyner, 297 N.C. 349, 357, 255 S.E.2d 390, 395 (1979)). In the case before us, the State offered evidence that defendant assisted Turner in stopping Cartwright's vehicle and handed Turner a gun, which Turner used to take Cartwright's wallet while defendant attempted to steal Cartwright's stereo. This testimony supported an instruction on concertedaction, inasmuch as it tended to show defendant's actual presence during the armed robbery and his action "together, in harmony or in conjunction . . . with [Turner] pursuant to a common plan or purpose." Joyner, 297 N.C. at 356, 255 S.E.2d at 395. To the extent defendant challenges this instruction as it pertained to the kidnapping charge, his acquittal rendered any error harmless.
    In his final argument, defendant claims the trial court erred in denying his motion to dismiss at the conclusion of the evidence and his motions to set aside the verdict and for a new trial. He argues the evidence was insufficient to show that he took Cartwright's property using a dangerous weapon or that he joined with Turner in doing so. Defendant repeats his assertion that Turner and Brown were in the vehicle with Cartwright when the wallet was stolen. While acknowledging the evidence that Turner used defendant's gun to commit the robbery, defendant insists "there is no evidence that once [the gun] was given to Generic Turner that defendant Frazier had anything to do with the armed robbery, kidnapping, or taking of the vehicle."
    In reviewing the sufficiency of the evidence in a criminal trial, this Court must examine the evidence in the light most favorable to the State to determine if it would allow a reasonable fact-finder to find defendant guilty of each essential element of the offense beyond a reasonable doubt. See State v. McDowell, 329 N.C. 363, 389, 407 S.E.2d 200, 214-15 (1991); State v. Sumpter, 318 N.C. 102, 107-08, 347 S.E.2d 396, 399 (1986).
        The essential elements of robbery with a dangerous weapon are: "(1) an unlawful takingor an attempt to take personal property from the person or in the presence of another, (2) by use or threatened use of a firearm or other dangerous weapon, (3) whereby the life of a person is endangered or threatened."

State v. Haselden, 357 N.C. 1, 17, 577 S.E.2d 594, 605, cert. denied, ___ U.S. ___, 157 L. Ed. 2d 382 (2003) (quoting State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1998)).
    As set forth above, we find substantial evidence that defendant and Turner acted in concert to rob Cartwright of his wallet with a handgun. "The action of both defendants created one orchestrated sequence of events," which culminated in the robbery. State v. Williams, 299 N.C. 652, 657, 263 S.E.2d 774, 778 (1980). Defendant's contemporaneous efforts to steal the stereo components from Cartwright's vehicle further showed defendant's and Turner's attempted larceny.
    Defendant's focus on the identity of the person who sat in the back seat of the vehicle while Turner drove Cartwright up and down Frazier Town Road is inapposite as to the robbery charge. Cartwright testified that the theft of his wallet occurred at the beginning of the incident, just after he stopped his vehicle and before Turner transported him to Frazier Town Road:
        [STATE]:    At some point when those individuals were standing around your Tracker, did they take anything from you?

        [CARTWRIGHT]:    Yes, ma'am, they demanded my wallet.

        [DEFENSE COUNSEL]:    OBJECTION, MOTION TO STRIKE.

        COURT:    OVERRULED.
        . . .

        [CARTWRIGHT:]    They demanded my wallet as we first pulled over, so I gave [defendant] my wallet and actually I kind of threw it on the seat and they picked it up, and it had about sixty dollars in there and a Texaco credit card and driver's license.

Similarly, Turner's testimony confirmed that he and defendant took Cartwright's wallet just after they stopped Cartwright. According to Turner, he, defendant and Brown ran up to the vehicle and told Cartwright to stop. While Turner ordered Cartwright out of the vehicle, defendant opened the rear door and attempted to remove the stereo speakers. Turner described the course of the robbery as follows:
        [STATE]: At that point did you see anybody with a gun?

        . . .

        [TURNER]:    [Defendant] brought me the gun around the jeep and I put it on [Cartwright].

        . . .

        [TURNER]:    I held the gun on [Cartwright] while [defendant] was in the back looking for the speakers and I told him to give me his wallet.

        . . .

        [STATE]:    What happened after that?

        [TURNER]:    After that I got [Cartwright's] wallet, we told him to put his car on the side of the road. He moved, got out and got in the passenger. I got in the driver. I let Jermaine Brown in the back seat and we rode down Frazier Town.

For purposes of our review, it is immaterial whether defendant or Brown rode in the vehicle with Turner.    Defendant expressly abandons his remaining assignment of error.
    No error.
    Chief Judge MARTIN and Judge BRYANT concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***