State v Matthews, (03-1354) 09/07/2004

On writ of certiorari to review judgment entered 6 October 2000 by Judge L. Oliver Noble in Mecklenburg County Superior Court. Heard in the Court of Appeals 5 July 2004.

Attorney General Roy Cooper, by Assistant Attorney General Douglas W. Corkhill, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendant-appellant.

STEELMAN, Judge.

    Defendant Tahashi Tarine Matthews was charged with attempted robbery with a dangerous weapon which occurred on 18 May 1999, and a second degree kidnapping and robbery with a dangerous weapon, both of which occurred on 1 June 1999. The cases were joined for trial.
    At trial, the State presented the testimony of investigating officers and the victims of each of the offenses. Defendant has not brought forth any argument regarding his convictions of the 1 June 1999 offenses, and we, therefore, do not discuss the evidence in those cases. The State presented evidence as to the 18 May 1999 attempted armed robbery of Kathy Belopolskaya which tended to show: On the evening of 18 May 1999, Belopolskaya and William Hinnant were outside of an apartment located at 3425 N. Sharon Amity in Charlotte, North Carolina, when two African-American men, later identified as defendant and Nathan Stinson, came around the side of the apartment building and pointed guns at them. In a statement made to police after the incident, Belopolskaya said that the men demanded her and Hinnant's money while ordering them to go upstairs to the apartment of Brad Parrish and Shannon Page. While defendant held a gun to Hinnant's head and gained entry into the apartment and robbed its occupants, Stinson remained outside with Belopolskaya. Stinson told Belopolskaya to empty her purse, whereupon she dumped the contents of her purse on the ground. She had no money, and there was nothing taken from her. Belopolskaya subsequently identified defendant as one of the men who attempted to rob her on 18 May 1999 from a photographic lineup and again at trial.
    Defendant presented the testimony of co-defendant, Nathan Stinson, who had already pled guilty to and was serving his sentences for the 1 June 1999 robbery committed by he and defendant. Stinson testified in great part consistent with the State's evidence. He, however, denied ever going to the apartment of Parrish and Page with defendant.
    Defendant also presented the testimony of his friend James Massey, Jr., who testified that he went along with defendant and Stinson to buy marijuana from Parrish on 18 May 1999. Massey stated that he stayed in the car while defendant and Stinson wentup to Parrish's apartment. Massey did not see a weapon in defendant's possession before he went up to Parrish's apartment on the evening of 18 May 1999. Further, Massey did not observe any large sums of money in defendant's possession on that evening after leaving Parrish's apartment.
    After hearing the evidence and arguments of counsel, the jury found defendant guilty as charged. The trial court made findings in mitigation, none in aggravation, and sentenced defendant to a sentence in the mitigated range of 52-72 months for the 18 May 1999 attempted armed robbery. This Court subsequently granted defendant's petition for writ of certiorari allowing a belated appeal.
    By his sole assignment of error brought forward on appeal, defendant argues that the trial court erred in denying his motion to dismiss the attempted armed robbery charge because there was insufficient evidence that he committed the crime charged. We disagree.
    A motion to dismiss based upon insufficient evidence is properly denied if in the light most favorable to the State and giving the State the benefit of every reasonable inference to be derived therefrom, there is substantial evidence-- whether direct or circumstantial or both-- to show that defendant committed the offense charged. State v. Santiago, 148 N.C. App. 62, 68, 557 S.E.2d 601, 606 (2001). Substantial evidence has been defined as that amount of evidence from which a reasonable mind might accept to support a conclusion. State v. Craycraft, 152 N.C. App. 211,213, 567 S.E.2d 206, 208 (2002). Contradictions and discrepancies in the evidence are matters for the jury and do not warrant dismissal. State v. Gibson, 342 N.C. 142, 150, 463 S.E.2d 193, 199 (1995).
    Attempted armed robbery under N.C. Gen. Stat. § 14-87, is defined as follows: (1) the unlawful attempted taking of personal property from the person or in the presence of another, (2) by use or threatened use of firearms or other dangerous weapon, implement or means, (3) whereby the life of a person is endangered or threatened. N.C. Gen. Stat. § 14-87 (2003); see State v. Jarrett, 137 N.C. App. 256, 262, 527 S.E.2d 693, 698, disc. review denied, 352 N.C. 152, 544 S.E.2d 233 (2000). To be convicted of the attempted armed robbery, the State must show that the defendant had the intent to commit the substantive offense, and that there was some overt act done for the purpose which goes beyond mere preparation, but falls short of the completed offense. State v. Haynesworth, 146 N.C. App. 523, 527, 553 S.E.2d 103, 107 (2001). This Court recently reiterated, “'Intent is an attitude or emotion of the mind and is seldom, if ever, susceptible of proof by direct evidence[;] it must ordinarily be proven by circumstantial evidence, i.e., by facts and circumstances from which it may be inferred.'” State v. Mangum, 158 N.C. App. 187, 192, 580 S.E.2d 750, 754 (quoting State v. Banks, 295 N.C. 399, 412, 245 S.E.2d 743, 752 (1978)(citations and quotations omitted)), disc. review denied, 357 N.C. 510, 588 S.E.2d 378 (2003).
    Defendant argues that there was insufficient evidence that he“intended or attempted to rob” Kathy Belopolskaya. Contrary to defendant's argument, viewing the evidence in the light most favorable to the State, we conclude that there was sufficient evidence to survive defendant's motion to dismiss.
    Belopolskaya testified that two men wielding guns approached her while she stood outside of a Charlotte, North Carolina apartment on 18 May 1999. In a statement subsequently made to police officers, which she identified as her own and attested to as being true at trial, Belopolskaya stated two men approached her and pointed guns at her, and demanded money, ordered her upstairs, and that defendant was the person that did most of the talking. Belopolskaya identified defendant in court as one of the two men who pointed a gun at her on the night in question.
    Belopolskaya identified her statement without objection from defendant. The investigating officer read the statement to the jury without objection from defendant. The statement was offered and received into evidence by the court without objection from defendant.
    Defendant now contends that Belopolskaya's statement was improperly admitted at trial, and cannot be considered by this Court in determining whether the State presented sufficient evidence to withstand defendant's motion to dismiss. We find that the defendant's failure to object to the statement operated as a waiver of this issue.
        In order to preserve a question for appellate review, a party must have presented the trial court with a timely request, objection or motion, stating the specific grounds for theruling sought if the specific grounds are not apparent. N.C.R. App. P. 10(b)(1). . . . This Court will not consider arguments based upon matters not presented to or adjudicated by the trial tribunal.

State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991).

    “Nor has defendant preserved the issue for plain error review by 'specifically and distinctly' contending plain error in his assignments of error as required by N.C.R. App. P. 10(C.E.M.)(4). 'Where a defendant fails to assert plain error in his assignments of error . . . he has waived even plain error review.' State v. Gary, 348 N.C. 510, 518, 501 S.E.2d 57, 63 (1998).” State v. Moore, 132 N.C. App. 197, 201, 511 S.E.2d 22, 25 (1999). Having made no assignment of plain error to this Court, defendant cannot now raise this issue as a part of a broad-based assignment of error contesting the sufficiency of the State's evidence in the case.
    We hold that the State presented sufficient evidence to withstand defendant's motion to dismiss, in that a reasonable fact-finder could infer that defendant intended to rob the victim at gunpoint, and that some overt act, beyond mere preparation, was done in that regard, but the offense was not completed. Accordingly, the trial court did not err in denying defendant's motion to dismiss the attempted armed robbery charge, and this assignment of error is overruled.
    Defendant has failed to bring forth his remaining assignments of error on appeal and they are deemed abandoned. N.C.R. App. P. 28(b)(6). In light of all of the foregoing, we hold that defendant received a fair trial, free from prejudicial error.
    NO ERROR.
    Judges HUDSON and THORNBURG concur.
    Report per Rule 30(e).

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