An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-633


Filed: 1 February 2005


         v.                            New Hanover County
                                    No. 03CRS000669

    Appeal by defendant from judgment entered 3 December 2003 by Judge Ernest B. Fullwood in New Hanover County Superior Court. Heard in the Court of Appeals 17 January 2005.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Margaret Eagles, for the State.

    Jeffrey Evan Noecker, for defendant-appellant.

    HUNTER, Judge.

    Paul Dewayne Cummings (“defendant”) was found guilty of robbery with a dangerous weapon and was sentenced to an active term of a minimum of 77 months and a maximum of 102 months.
    The State presented evidence tending to show that between midnight and 12:30 a.m. on 31 August 2002, Eula Caldwell (“Ms. Caldwell”), a driver for Port City Taxi, picked up a male passenger at the El Berta Motor Lodge on Market Street in Wilmington. The passenger directed her to drive to 202 Dogwood Circle, located in Dogwood Trailer Park. Upon arriving at this destination, the male passenger slid behind Ms. Caldwell, put his arm around her neck, held a sharp object against her throat and demanded all of her money. The man grabbed cash from Ms. Caldwell and removed theearrings she was wearing. The man exited the vehicle and ran into a wooded area.
    Ms. Caldwell gave a description of the male passenger to the police. She viewed a large number of police mug shots but could not make an identification. On 6 October 2002, Ms. Caldwell saw a photograph of defendant in a newspaper and recognized this person as the man who robbed her. She notified the police and on 5 December 2002, she viewed another police lineup which included the same photograph of defendant that appeared in the newspaper. She selected defendant's photograph as the person who robbed her. She also identified defendant in court as the robber.
    By the first assignment of error presented in his brief, defendant contends the court erred by denying his motion to suppress Ms. Caldwell's identification testimony. He argues her identification was tainted by an impermissibly suggestive identification procedure. He argues Ms. Caldwell selected the photo because it was the same photo she had seen in the newspaper.
    “Even though a pretrial identification procedure may be suggestive, it will be impermissibly suggestive only if all the circumstances indicate that the procedure resulted in a very substantial likelihood of irreparable misidentification.” State v. Harris, 308 N.C. 159, 164, 301 S.E.2d 91, 95 (1983) (emphasis omitted). Relevant factors to be considered in determining whether or not irreparable misidentification is likely include: (1) the opportunity of the witness to view the perpetrator at the time of the incident; (2) the degree of attention paid by the witness; (3)the accuracy of the witness' prior description of the perpetrator; (4) the level of certainty demonstrated by the witness at the time of the identification; and (5) the length of time between the event and the making of the identification. State v. Powell, 321 N.C. 364, 369, 364 S.E.2d 332, 335, cert. denied, 488 U.S. 830, 102 L. Ed. 2d 60 (1988).
    Ms. Caldwell testified on voir dire that when she arrived at the motel, the lights of the motel were illuminated and the awaiting passenger was sitting in a chair in front of the motel. After the passenger boarded her vehicle, she turned on the light inside her cab and turned around to look at the passenger as she does with all of her customers, especially males late at night or early morning, to get a look at him and to ask him where he was going. She looked at him directly for thirty seconds to a minute, at a distance of two feet away. At the time she picked up the passenger she had been talking on a cellular telephone to a fellow driver. Because she had an “odd feeling” about the passenger, she asked the other driver to stay on the telephone with her. After arriving at the passenger's destination, she parked the vehicle under a street light, turned on her vehicle dome light, and turned around to tell the passenger how much he owed her. When she talked to police after the incident, she described her assailant as a white male approximately nineteen years old, wearing a white tee shirt, having “buzzed” hair, and standing approximately 5'7” to 5'8” inches tall. On 6 October 2002, she came into the dispatch room of her employer and observed a newspaper on a counter. Shesaw a photograph of defendant in the newspaper and, without reading the story or article and without any doubt in her mind, identified him as the person who robbed her five weeks earlier. She notified the police and on 5 December 2002, she selected defendant's photograph from a lineup. She based her selection upon her recollection of his face after seeing him in her taxicab on 31 August 2002.
    Officer William Griffith Craig, Jr. of the Wilmington Police Department testified that he showed Ms. Caldwell photographs of approximately 2,100 white males on the computer and that defendant's photograph did not appear in the array because he is a Lumbee Indian and was not classified in their system as white. He also viewed a videotape provided by the motel of a man getting into a taxicab during the early morning of 31 August 2002. Although he could not identify the man, he could see that he was wearing a white tee shirt, blue jeans and short hair consistent with the description given by Ms. Caldwell. When he subsequently showed Ms. Caldwell a photograph lineup consisting of six photographs, including one of defendant, Ms. Caldwell without any hesitation selected the photograph of defendant.
    The court made findings of fact consistent with the foregoing evidence and concluded that Ms. Caldwell had ample opportunity to observe her assailant at the time of the incident, her degree of attention was strong, her description was accurate, her level of certainty was firm and unequivocal, and the time lapse between the incident and her identification was not so long as to significantlydiminish her ability to make an identification. The court concluded that the pretrial identification procedure did not taint the ability of the witness to give an in-court identification of independent origin.
    The court's findings of fact in ruling upon a motion to suppress identification testimony are binding on appeal when they are supported by competent evidence. State v. Hannah, 312 N.C. 286, 291, 322 S.E.2d 148, 151-52 (1984). The evidence we have recited above provides ample support for the court's findings of fact. These facts support a conclusion there was not a substantial likelihood of misidentification by Ms. Caldwell. This assignment of error is overruled.
    By his remaining assignment of error, defendant contends that the court erred by determining that he had three prior record level points. He argues the court erred by allocating one point for a prior misdemeanor conviction of hit and run.
    Defendant is correct in stating that only the following three Chapter 20 traffic misdemeanors may be counted in determining one's prior record level for felony sentencing purposes: (1) impaired driving; (2) impaired driving in a commercial vehicle; and (3) misdemeanor death by vehicle. N.C. Gen. Stat. § 15A-1340.14(b)(5) (2003). The court therefore erred by including the prior conviction of hit and run in the count of prior record level points. However, the error is harmless. The court found that defendant has three prior record level points and that his prior record level is level II. The point range to fall within priorrecord level II is “[a]t least 1, but not more than 4 points.” N.C. Gen. Stat. § 15A-1340.14(c)(2). Deduction of one point for the erroneously counted conviction leaves defendant with two points, which is still within the point range for prior record level II. See State v. Lowe, 154 N.C. App. 607, 610-11, 572 S.E.2d 850, 853-854 (2002) (harmless error to include a point when the total points still remained within the same prior record level).
    No error.
    Judges ELMORE and STEELMAN concur.
    Report per Rule 30(e).

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