An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-252


Filed: 1 March 2005


v .                         Avery County
                            Nos. 02 CRS 51200-01
                                03 CRS 247

    Appeal by defendant from judgments entered 12 September 2003 by Judge E. Penn Dameron, Jr., in Avery County Superior Court. Heard in the Court of Appeals 3 November 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Spurgeon Fields, III, for the State.

    Reita Pendry, for defendant-appellant.

    CALABRIA, Judge.

    Paul Brantley Lewis (“defendant”) appeals judgments entered on jury verdicts of guilty of first-degree sexual offense, felonious breaking or entering, and robbery with a dangerous weapon. We find no error.
    The State's evidence at trial indicates that during the early morning hours of 1 December 2002, Georgina Fields (the “victim”) was alone and asleep at her house when she was awakened by a knock at the door. The victim went to the door and opened it two to three inches to two males, the taller of which was defendant. Defendant told the victim that there had been an accident on a nearby roadway and, although they had attempted to get help from a neighbor, no one had come to the door. Defendant asked the victimif they could use her phone to call for help. The victim agreed and began to open the door further when defendant pushed the door in, causing the victim to fall to the floor. Both males entered the house and, while defendant demanded money, the other individual went throughout the house, taking, inter alia, pain medication, syringes, and currency in the house. Defendant, brandishing a knife, grabbed the victim by the hair, cut her gown off of her, and forced her to perform fellatio on him. During this time and afterwards when defendant pushed the victim away from him, the victim was cut by the knife on her arm and eyebrow. After the sexual assault, defendant kicked the victim in the diaphragm, and the victim could not recall what occurred during the remainder of the time the two intruders were in her house.
    When the victim revived, she was unable to pull herself up but was able to crawl through the living room to her life line unit, an electronic device commonly worn around the neck and connected to the telephone used to summon aid in an emergency. After help arrived, the victim was interviewed by local law enforcement authorities and described her assailant as tall, with dirty blonde, unkempt hair, weighing 175-185 pounds and approximately forty years of age. When the victim expressed a belief that she would be able to identify her assailant if shown a picture, Officer Derrick Roberts procured a picture of defendant. Officer Roberts met the victim at the hospital and told her he “was going to show her a photo of the person we thought might be her perpetrator[.]” The victim affirmed with ninety percent certainty that the picture ofdefendant depicted her assailant. A photographic lineup was performed a few days later with a different picture of defendant and six additional photographs, and the victim again identified defendant as her assailant.
    Defendant was arrested and indicted for the break-in and assault at the victim's house. Prior to trial, defendant moved to dismiss the first-degree sexual offense indictment on the grounds that it failed to adequately charge the offense. In addition, defendant moved to suppress all identification testimony by the victim on the grounds that the initial photographic identification by the victim was “irreparably tainted by the unnecessarily suggestive” use of a single photograph in violation of defendant's due process rights. The trial court allowed defendant to voir dire the victim and Officer Roberts, and, at the end of the voir dire, the trial court denied defendant's motion. The trial court made extensive findings of fact and concluded that the single photograph identification was “more suggestive than would be recommended by applicable North Carolina law” but was, nonetheless, “reliable and did not produce a substantial likelihood of misidentification given the totality of the circumstances.” At the end of the State's case-in-chief, the State offered, over defendant's objection, the photographs used in the single photograph and photographic lineup identification procedures, and the trial court admitted the pictures and allowed the jury to view them. Both at the close of the State's evidence and at the close of all the evidence, defendant moved to dismiss all charges against him. The trialcourt denied those motions with respect to the charges of first- degree sexual offense, felonious breaking or entering, and robbery with a dangerous weapon, and the jury returned verdicts of guilty on those charges. The trial court sentenced defendant to consecutive, active sentences of 307 to 378 months for the first- degree sexual offense conviction and 94 to 122 months for the robbery conviction. For breaking and entering, defendant received a sentence of 11 to 14 months, which was suspended with a term of supervised probation for 36 months, to commence at the expiration of the active sentences imposed. Defendant appeals.
    On appeal, defendant asserts the trial court erred by (I) denying his motion to suppress regarding the identification procedure, (II) permitting an arrest photograph to be admitted into evidence without redaction and displayed to the jury, (III) refusing to give his requested instruction concerning the identification procedure, and (IV) denying his motion to dismiss the indictment for first-degree sexual offense.
I. Motion to Suppress
    Defendant asserts the trial court erred in denying the motion to suppress the victim's identifications of defendant because the initial identification procedure using a single photograph was unduly suggestive and tainted all subsequent identifications. “Identification evidence must be excluded as violating due process where a pretrial identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” State v. Jones, 98 N.C. App. 342,345, 391 S.E.2d 52, 55 (1990). “Whether an identification procedure is unduly suggestive depends on the totality of the circumstances.” State v. Rogers, 355 N.C. 420, 432, 562 S.E.2d 859, 868 (2002). “A due process analysis requires a two-part inquiry” of (1) whether the identification procedure was impermissibly suggestive and, if so, (2) whether the suggestive procedure “created a substantial likelihood of irreparable misidentification.” Id. (citations and internal quotation marks omitted). Relevant factors to be considered in determining whether an identification procedure was impermissibly suggestive include “the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty shown by the witness, and the time between the offense and the identification.” Id.
    As “[o]ur courts have widely condemned the practice of showing suspects singly to persons for the purpose of identification[,]” see State v. Yancey, 291 N.C. 656, 661, 231 S.E.2d 637, 640 (1977), we summarily agree with the trial court's conclusion that, under these facts, the single photograph identification procedure in the instant case was “more suggestive than would be recommended by applicable North Carolina law.” Accordingly, we proceed to the second relevant determination, which we consider in light of the factors and evidence adduced at trial.
    Regarding the victim's opportunity to view the criminal at the time of the crime, the victim testified daylight was breaking atthe time she went to her door with additional light coming from streetlights and a light in her hallway. The conversation at the front door lasted approximately a minute, and during that time, the victim focused mostly on defendant's face at a distance of eight to ten inches. After defendant entered the victim's house but before the sexual assault, the victim again was able to see defendant from a short distance for approximately thirty seconds. The victim also testified that both during the sexual assault and after defendant pushed her away from him, she was able to observe defendant from a short distance. Given the lighting, distance, and duration of the encounter, the victim had ample opportunity to observe defendant during the criminal acts.
    In addition, the victim's degree of attention supports a determination that she adequately observed defendant during the relevant time period. The victim specifically stated that she “focused” on defendant's face prior to initially admitting him into her house. She again noted that she “focused on his face” after he had forced the door open and she had fallen to the ground. After she was pulled to her knees, the victim again “focused on his face[.]” Throughout the encounter, the victim reiterated that she focused her attention on defendant's face.
    The victim described defendant as being tall, with dirty blonde, unkempt hair, weighing 175-185 pounds and approximately forty years of age. The testimony at trial indicated defendant was at least six feet six inches, and Officer Roberts estimated his weight, as of 1 December, to be “roughly 190 pounds.” Defendantargues the victim's description omitted certain “details of appearance,” but this Court has never enumerated any required amount of detail. While a greater degree of detail certainly lends itself to reliability when the provided details accurately set forth the defendant's appearance, the description in the instant case was sufficiently robust to provide indicia of reliability. Likewise unavailing are defendant's arguments concerning (1) whether the victim should have described defendant as “extremely tall” instead of merely “tall” and (2) whether the victim's description of defendant's weight accurately reflected his weight at trial as opposed to the time of the incident. These arguments are summarily rejected.
    Regarding the last two relevant factors, we note the victim's viewing of the single photograph allowed her to say, with ninety percent certainty, that defendant was her assailant. While not unequivocal, the victim's high degree of certainty argues in favor of the reliability of the identification. Likewise, the time between the offense and the identification was, as defendant concedes, “only a few hours.” Given the totality of the circumstances, we hold the trial court properly denied defendant's motion to suppress the identifications made by the victim.
II. Admission of Arrest Photograph
    In his second assignment of error, defendant asserts the trial court erred in admitting, over defendant's objection, an unredacted “mug shot” of defendant resulting in prejudice “in that it alerted the jury that [defendant] had a prior criminal record [despite thefact that defendant] did not testify [and] was not impeached with any prior criminal acts.” Defendant contends the “only evidence of his prior bad character came through this mug shot,” entitling him to a new trial as a result. Despite defendant's assertion to the contrary, this Court's analysis in State v. Foster is instructive. Foster, 63 N.C. App. 531, 306 S.E.2d 126 (1983).     
    In Foster, this Court reiterated that “the State cannot offer evidence of [a defendant's] bad character, including his previous criminal record [or a 'mug shot']” if the defendant “does not take the stand as a witness and does not offer evidence of his good character[.]” Id., 63 N.C. App. at 535, 306 S.E.2d at 128. Nonetheless, this Court went on to note that where a defendant raises the issue as to the propriety of pre-arrest identification procedures, a “mug shot” of the defendant is admissible as competent evidence relating to that issue. Id., 63 N.C. App. at 535, 306 S.E.2d at 129. See also State v. Fulcher, 294 N.C. 503, 513, 243 S.E.2d 338, 346 (1978) (finding “no prejudicial error in permitting the State to show the jury the photographs” used in pre- arrest identification procedures where a defendant “by his previous cross-examination of the State's witnesses, br[ings] into question, before the jury, the propriety of [those] procedures”). In such situations, a defendant “is entitled, upon request, to have the jury instructed to consider it only for the purposes for which it is competent.” Foster, 63 N.C. App. at 536, 306 S.E.2d at 129. Accordingly, in the instant case, the “mug shot” was admissible as relating to the issue of the propriety of the pre-arrestidentification procedure, and the trial court properly admitted the photograph. Had defendant wished for a limiting instruction regarding improper use of the photograph as character evidence, defendant could, but did not, request one.
    Moreover, we note that, even if we agreed with defendant that the trial court erred in admitting into evidence the photograph without redaction, any such error would be harmless. See N.C. Gen. Stat. § 15A-1443(a) (2004). In the instant case, the victim provided eyewitness testimony after ample opportunity to observe defendant and identified defendant with ninety per cent certainty. Accordingly, defendant has not shown “a reasonable possibility that, had the error in question not been committed, a different result would have been reached” at trial. Id. Finally, to the extent defendant's argument is directed to what specific words or images on the photograph should have been redacted, it is deemed abandoned under our Appellate Rules because defendant (1) has not presented the photograph to this Court on appeal, (2) has not presented any argument pertaining to particular words or images other than those indicating the photograph was a “mug shot,” and (3) has not argued any specific prejudice which resulted, other than his general argument that the photograph constituted evidence of prior criminal acts. This assignment of error is overruled.
III. Jury Instruction
    Defendant asserts in his third assignment of error that the trial court erred in refusing to give his requested jury instruction regarding identification, patterned after the holdingof the United States Court of Appeals for the Fourth Circuit in United States v. Holley, 502 F.2d 273 (4th Cir. 1974). Specifically, this expanded identification jury instruction sets forth (1) that the State bears the burden of proving the identity of the defendant as the perpetrator of the crime beyond a reasonable doubt, (2) the relevant factors concerning a witness' ability to make a reliable identification, and (3) the credibility of the identification witness.
    A trial court is not required to repeat, verbatim, the charge requested by a defendant so long as the charge given “conveys the substance of the requested instruction[.]” State v. Smith, 311 N.C. 287, 290, 316 S.E.2d 73, 75 (1984). Where the trial court so instructs, the charge is sufficient for purposes of appellate review. Id. In the instant case, the trial court gave the criminal pattern jury instruction regarding the State's burden of proving defendant's identity:
        I instruct you that the State has the burden of proving the identity of the Defend        ant as the perpetrator of the crimes charged beyond a reasonable doubt. This means that you, the Jury, must be satisfied beyond a reasonable doubt that the Defendant was the perpetrator of the crimes charged before you may return a verdict of guilty.

In addition, the trial court instructed the jury as follows:
        Now you are the sole judges of the creditability, and that is the believability, of each witness. You must decide for yourselves whether to believe the testimony of any witness. You may believe all, or part of or none of what any witness has said on the witness stand. In determining whether to believe any witness, you should apply the same test of truthfulness which you apply in youreveryday affairs. As it applies to this trial these tests may include the opportunity of a witness to see, hear, know, or remember the facts or occurrences about which that witness has testified[,] [t]he manner and appearance of the witness, [and] any interest, bias, or prejudice that any witness may have[.]

We hold the language of this charge adequately sets forth the State's burden of proof, the victim's ability to see and remember relevant facts, including those that would result in a reliable identification, and the credibility of the witness. This assignment of error is overruled.
IV. Motion to Dismiss the Indictment
    Finally, defendant asserts the trial court erred in failing to dismiss the indictment charging first-degree sexual offense on the grounds that the indictment did not conform with the statutory short-form indictment as required by N.C. Gen. Stat. § 15-144.2 (2003). Specifically, defendant contends the indictment was insufficient because it did not contain the averment “with force and arms.” However, the indictment does aver the offense was committed “by force and against [the] victim's will[,]” and defendant concedes this Court has held such language to be sufficient. State v. Smith, 110 N.C. App. 119, 429 S.E.2d 425 (1993). Since Smith is dispositive of this issue, defendant's assignment of error, while preserved for further appellate review, is overruled.
    Judges HUNTER and LEVINSON concur.
    Report per Rule 30(e).

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