An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-23

NORTH CAROLINA COURT OF APPEALS

Filed: 15 February 2005

STATE OF NORTH CAROLINA

v .                         Forsyth County
                            Nos.    02 CRS 36221
ANDRE CLIFTON MILLER,                 02 CRS 36756
                                 02 CRS 62124
        Defendant.                03 CRS 10606

    Appeal by defendant from judgment entered 21 August 2003 by Judge John O. Craig, III in Forsyth County Superior Court. Heard in the Court of Appeals 22 September 2004.

    Attorney General Roy Cooper, by Assistant Attorney General John P. Barkley, for the State.

    Winifred H. Dillon for defendant-appellant.

    ELMORE, Judge.

    Defendant assigns several points of error to a judgment entered upon the jury's verdict finding him guilty of burglary and kidnapping. We find no error in defendant's trial, but do remand for a correction on sentencing.
    The State's evidence tended to show that Andre Miller (defendant) and Claude Thomas (Thomas) went to the Ramirez family's house with the intention of getting drugs. Defendant and Thomas were made aware that Sylvester Ramirez-Noyola (Mr. Ramirez) had drugs because another man, Ahmed Brim, had set up a deal with Mr. Ramirez to purchase drugs from his house. When Mr. Ramirezanswered the door to find Brim, he let him in, but defendant and Thomas were with him and stormed in the house behind him.
    Both defendant and Thomas were wearing masks and carrying guns, defendant a handgun and Thomas a shotgun. Defendant held his gun to Mr. Ramirez's head while Thomas searched the house for drugs. Miranda Ramirez (Mrs. Ramirez) and her two children were in the room while this was happening and she was instructed to keep quiet and not interfere. When Thomas returned to the front room of the house where everyone else was, he reported that he could not find any drugs or money. Mr. Ramirez had already said there were no drugs in the house. Defendant then turned his gun on Mrs. Ramirez and asked her to tell him where the drugs were. She replied consistent with her husband and defendant was infuriated. He said that he and Thomas were not leaving the house empty handed.
    During the search, Mr. Ramirez had called his apparent drug supplier, Chimeno, and determined that he was not home. Defendant and Thomas decided to go to Chimeno's house, the location of which Mr. Ramirez knew, and steal the drugs from there. As Mrs. Ramirez testified, in order to keep her and the children from calling the police and in order to get the exact location of Chimeno's apartment from Mr. Ramirez, defendant and Thomas ordered that the family be taken in the car with them to Chimeno's apartment.
    Defendant drove Mrs. Ramirez's SUV with his gun on Mr. Ramirez who was seated in the rear seat behind the passenger. Thomas was in the passenger's seat with his shotgun aimed in the back seat where Mrs. Ramirez and the youngest child in a car seat werelocated. The older of the two children rode in the cargo area of the SUV.
    Upon arriving at Chimeno's apartment, which was across town, defendant ordered that Chimeno be called again to confirm he wasn't there. Mr. Ramirez did so and since they were speaking in Spanish, defendant ordered Mrs. Ramirez to translate. She did and told defendant that no indication was given as to their current location and also that Chimeno would not be returning home. Defendant then ordered Mr. Ramirez out of the car and up to the apartment in an apparent attempt to break in. Mr. Ramirez tried to kick in the door, but failed. Someone came to the door and opened it upon seeing Mr. Ramirez, but attempted to slam it shut when seeing defendant with a gun.
    At the car, Thomas, who was still keeping the rest of the family at bay, got agitated and began to drive off without defendant and Mr. Ramirez. However, before he could, defendant returned to the car and got in. The family was eventually taken back near their apartment and let out on the street. A passing officer picked them up shortly thereafter.
    Defendant first assigns error to Mrs. Ramirez's in-court identification of him as the person who carried the hand gun throughout the evening's events. Defendant argues 1) that Mrs. Ramirez's previous out-of-court positive identification of him from a photo line-up was unduly suggestive and, since her only view of defendant was his eyes and the bridge of his nose due to his mask, 2) that the in-court identification was tainted by the out-of-courtidentification, and 3) it would be impossible for an independent viewing of defendant's eyes from across the courtroom. We find these arguments without merit.
    We first note that any objection to the out-of-court identification was waived at trial when no objection was made to the admission of the photo line-up and Mrs. Ramirez's reconfirmation of her earlier choice. See State v. McCray, 342 N.C. 123, 126-28, 463 S.E.2d 176, 178-79 (1995). Defense counsel did properly object to Mrs. Ramirez's subsequent in-court identification of defendant, but stated “lack of foundation” as the basis. The trial court sustained the objection, and the district attorney drew out several more answers regarding the ability of Mrs. Ramirez to identify defendant. She testified that she “studied” defendant's eyes on many occasions throughout the hour and forty-five minutes they were together, and she also testified she vowed never to forget the eyes that had terrorized her family. After this testimony, the trial court admitted Mrs. Ramirez's in- court identification over defendant's second objection for lack of foundation.
    We find no error in this identification for two reasons. First, defendant did not object as Mrs. Ramirez continually referred to defendant as the gunman at trial. See State v. Williams, 355 N.C. 501, 548, 565 S.E.2d 609, 637 (2002) (defendant waived any error on in-court identification by failing to object at numerous times in victim's testimony where she identified him). This failure to object happened at least twice.         Ramirez: That's the ski mask he was wearing that night.

        DIST. ATT: Who was wearing?

        Ramirez: The one with the handgun, Mr. Miller.

        DIST. ATT: The defendant?

        Ramirez: Yes, ma'am.

        . . .

        Ramirez: This is a gun that the one in the ski mask was carrying.

        DIST. ATT: And the ski mask was being worn by whom?

        Ramirez: Mr. Miller

        DIST. ATT: The Defendant here?

        Ramirez: Yes, ma'am.

Accordingly, we could find that the error has been abandoned. Id.
    
Second, and alternatively, there was an independent basis for the admissibility of Mrs. Ramirez's in-court identification. See State v. Rogers, 355 N.C. 420, 433-34, 562 S.E.2d 859, 869 (2002). She had seen defendant's eyes for quite an extended period of time in a car, when he was holding a gun on her, and in a lighted house. And, we disagree that across a courtroom it is impossible to identify a person based mainly on their eyes after previously spending almost two hours studying solely that feature. Having the ability to identify defendant mainly from his eyes does not make her identification inadmissible, and defendant properly spent time on cross-examination exploring Mrs. Ramirez's ability to see; as such there was no error. See State v. Parker, 350 N.C. 411, 432, 516 S.E.2d 106, 121 (1999) (“where there is a 'reasonablepossibility of observation sufficient to permit subsequent identification,' it is for the jury to decide the credibility of and the weight to be given the witness' testimony.” (internal citations omitted)); State v. Ricks, 308 N.C. 522, 528, 302 S.E.2d 770, 773 (1983); State v. Marion, 126 N.C. App. 58, 62-63, 483 S.E.2d 447, 449 (1997).
    By his second assignment of error, defendant contends the trial court committed plain error by charging the jury that an element of the kidnapping charge was that defendant removed, confined, or restrained the victims for the purpose of facilitating flight from the commission of a felony. This stated purpose was not contained within the indictment for the kidnapping charge. We hold that this variance between the indictment, evidence, and jury charge was not fatal, nor did it prejudice defendant.
    When reviewing jury instructions for plain error, this Court “must examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt.” State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378-79 (1983) (citing United States v. Jackson, 569 F. 2d 1003, 1010 (7th Cir.), cert. denied, 437 U.S. 907, 57 L. Ed. 2d 1137 (1978)). For a reversal of the judgment to be warranted on plain error, “the error in the trial court's jury instructions must be 'so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.'” State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193(1993) (quoting State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988)).
    Defendant's four counts of second-degree kidnapping were all premised on similarly worded indictments which charged that defendant's purpose in “confining, and restraining, and unlawfully removing” each victim was to “faciliat[e] the commission of a felony . . .” However, the trial court instructed that the jury could find defendant guilty if “the Defendant confined, restrained or removed the person for the purpose of facilitating his commission of or flight after committing first-degree burglary or robbery with a firearm.”
    Defendant not only contends that this slight variance in the purpose of the indictment and the jury charge would have resulted in a different verdict, but that any variance in the stated purpose is plain error per se. We do not agree. We do not read State v. Brown, 312 N.C. 237, 321 S.E.2d 856 (1984), and State v. Odom, 316 N.C. 306, 341 S.E.2d 332 (1986), to stand for the proposition that even without a showing of prejudice, it is plain error for this type of variance to exist. To the contrary, our Supreme Court has “long held 'that it is error, generally prejudicial, for the trial judge to permit a jury to convict upon some abstract theory not supported by the bill of indictment.'” State v. Lucas, 353 N.C. 568, 586, 548 S.E.2d 712, 725 (2001) (emphasis added) (quoting State v. Taylor, 301 N.C. 164, 170, 270 S.E.2d 409, 413 (1980)). Accordingly, defendant is correct in pointing out the error, but claiming this error always results in a new trial is inaccurate. Implicit within plain error review is an inquiry to further determine if any error “tilted the scales against [defendant].” Id. at 584, 548 S.E.2d at 723.
    The variance here is not that the jury instructions and the indictment did not contain the same language, but that the instructions to the jury went further than the indictment. The indictment limited the purpose of the kidnapping to commission of a felony, whereas the jury instructions were disjunctive, providing that the purpose could be commission of a felony or flight after committing a felony. Defendant argues there was no evidence presented that would support a flight instruction, but the record reflects Mrs. Ramirez testified the gunmen were 1) bringing she and the children along to prevent them from calling the police, and 2) bringing Mr. Ramirez along with them so that he could instruct them on which apartment was Chimeno's. There was evidence provided to support either or both of the purposes in the charge.
    The evidentiary support here creates the distinction between this case and that of Brown. In determining that plain error did occur in Brown due to a variance in the indictment and jury instructions, our Supreme Court noted that no evidence was presented that defendant's purpose in restraining the victim was to terrorize her, as the charge to the jury required. Brown, at 246- 49, 321 S.E.2d at 861-63. Instead the indictment had stated the purpose of the removal was to facilitate the commission of a felony, and the evidence was more consistent with this theory. Id. The trial court in Brown had also made multiple other errors in thecharge on kidnapping and there was evidence of potential prejudice since the jury repeatedly asked for clarifications of the instructions. Id. Based on our review of the record, the trial court here did commit error in varying the instructions to the jury from the stated purpose of the removal in the indictment, but that error was not prejudicial since there was substantial evidence presented which conformed to both the indictment and the jury charge.
    Lastly, on appeal, defendant notes that his judgment and commitment forms inaccurately reflect which sentences were to run concurrently and which were to run consecutively. The court's judgment at sentencing is clear and undisputed; however, the State agrees that there is a clerical error in the judgment and commitment form for 02 CRS 62124. At sentencing the judge announced that he was first imposing a 120-153 month sentence for the burglary charge (count III of 02 CRS 62124), then a consecutive sentence of 120-153 months for the possession of a firearm by a felon charge (02 CRS 36756). The judge then sentenced defendant on the four charges of kidnapping: three terms of 120-153 months served consecutively at the completion of 02 CRS 36756_the firearm charge_and one term of 120-153 months to run concurrent with one of the three other terms for kidnapping. As to the succession of the kidnapping terms: following the completion of the term for 02 CRS 36756, the term for count I of 02 CRS 62124 would begin, then count II of 02 CRS 10606, and finally count III of 02 CRS 10606. Count I of 02 CRS 10606 may presumptively run concurrently with any ofthese other counts for kidnapping. The forms do not properly represent this timing and we remand to have the forms properly conform to the announcement at sentencing.
    We do not address defendant's other assignments of error because they are without merit. We find that defendant's trial occurred without error, but remand for correction of clerical error in sentencing forms consistent with the judgment announced at sentencing.
    No trial error, remand for sentencing.
    Judges McGEE and McCULLOUGH concur.
    Report per Rule 30(e).

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