State v Bush, (04-673) 01/04/2005

Appeal by defendant from judgment entered 10 February 2004 by Judge W. Robert Bell in Lincoln County Superior Court. Heard in the Court of Appeals 29 November 2004.

Attorney General Roy Cooper, by Assistant Attorney General John C. Evans, for the State.

Brannon Strickland, P.L.L.C., by Marlet M. Edwards for defendant-appellant.

ELMORE, Judge.

    On appeal, defendant challenges the trial court's denial of his motion to suppress, and the court's decision to sentence him in the presumptive range of sentences. However, we affirm the trial court's order denying defendant's motion to suppress and the judgment and commitment entered on defendant's guilty plea.
    Defendant was charged with obtaining property by false pretenses. Prior to trial, defendant moved to suppress certain out-of-court identification evidence and an inculpatory statement he made after his arrest. The evidence tended to show that a person identifying himself as Monty Thayer telephoned Green Line Turf and Tractor on 2 June 2003, and spoke with store owner,Shirley Sigmon, about purchasing a particular lawn mower. Sigmon told him that they did sell that mower and invited the caller to come to the store and take a look at it. On 3 June 2003, defendant entered Green Line Turf and Tractor and identified himself to the salesperson, Melvin Sayne, as Monty Thayer. Defendant told Sayne that he was interested in purchasing a John Deere Zero Turn lawn tractor. Sayne subsequently prepared the necessary paperwork for the purchase of the lawn tractor valued at $8,500.00, and defendant left the store. Defendant returned to the store on 4 June 2003 to pick up the lawn tractor, and identified himself to store owner, Shirley Sigmon, as Monty Thayer.
    On 27 June 2003, the actual Monty Thayer was alerted to a fraudulent purchase when he obtained a credit report indicating that a John Deere lawn tractor had been purchased on credit from Green Line Turf and Tractor, using his name and social security number. Incidentally, Conover North Carolina Police officers notified the Thayers that defendant had been arrested, and at the time of his arrest, defendant had been in possession of false identification and four credit cards issued in Monty Thayer's name. Mrs. Thayer later went to the Mecklenburg County Sheriff Department's website and printed out several photographs of defendant. She then faxed these photos to the Lincoln County Sheriff's Department.
    On 10 July 2003, Lincoln County Sheriff's Detective Lee Keller went to Green Line Turf and Tractor, where he showed Sigmon and Sayne the photos that Mrs. Thayer had faxed, and asked if theycould identify the person who professed to be Monty Thayer and purchased the lawn tractor from Green Line Turf and Tractor on 3 June 2003. Both Sigmon and Sayne identified defendant as that person. At trial, Sigmon and Sayne again identified defendant as the person who purported to be Monty Thayer in purchasing the lawn tractor on the date in question. They both denied being influenced in their in-court identification by the photographs shown to them by Detective Keller on 10 July 2003.
    After hearing the evidence and arguments of counsel as to the merits of defendant's motion to suppress, the trial court found and concluded that although the investigating officer used an impermissibly suggestive identification technique, that procedure did not give rise to a substantial likelihood of irreparable misidentification of defendant in court. The court, therefore, denied the motion and allowed the State to introduce into evidence defendant's inculpatory statement to the police.
    Defendant, thereafter, pled guilty and was sentenced as a prior record level V offender to a presumptive term of 12 to 15 months imprisonment. From the judgment entered, defendant appeals.
    Defendant first argues that the trial court erred by denying his motion to suppress. Defendant submits that the pretrial identification procedure prepared and used by the police caused irreparable misidentification and violated his due process rights. We disagree.
    It is well settled that identification evidence must be excluded on due process grounds if a pretrial identificationprocedure was “so suggestive as to create a very substantial likelihood of irreparable misidentification.” State v. Capps, 114 N.C. App. 156, 161-62, 441 S.E.2d 621, 624 (1994). In determining whether an identification procedure was so suggestive as to create a substantial likelihood of irreparable misidentification the court employs a two-step inquiry. State v. Fowler, 353 N.C. 599, 617, 548 S.E.2d 684, 698 (2001), cert. denied, 535 U.S. 939, 152 L. Ed. 2d 230 (2002). First, the court must inquire as to “whether the totality of the circumstances reveals a pretrial procedure so unnecessarily suggestive and conducive to irreparable mistaken identity as to offend fundamental standards of decency and justice.” Id. (quoting State v. Hannah, 312 N.C. 286, 290, 322 S.E.2d 148, 151 (1984)). Next, “if the procedures were impermissibly suggestive, the Court must then determine whether the procedures created a substantial likelihood of irreparable misidentification.” Id.
    In the event that a pretrial identification procedure is determined to be “impermissibly suggestive,” the identification evidence may, however, still be properly admitted if the trial court determines that viewing the totality of the circumstances, the pretrial identification did not create “substantial likelihood of irreparable misidentification.” Id., 353 N.C. at 617, 548 S.E.2d at 697-98. Factors to be considered in making this determination include the following:
        (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description ofthe criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation.

Capps, 114 N.C. App. at 162, 441 S.E.2d at 624-25 (quoting State v. Harris, 308 N.C. 159, 164, 301 S.E.2d 91, 95 (1983)).
    “Our review of a ruling on a motion to suppress is limited to whether the trial court's findings are supported by competent evidence and whether those findings support its ultimate conclusions.” State v. McHone, 158 N.C. App. 117, 120, 580 S.E.2d 80, 83 (2003). In this case, our review is further limited, however, by defendant's failure to assign error to any of the trial court's findings of fact. Therefore, the trial court's findings are presumed correct and are binding on this Court on appeal. See Okwara v. Dillard Dep't Stores, Inc., 136 N.C. App. 587, 591, 525 S.E.2d 481, 484 (2000) (“Where findings of fact are challenged on appeal, each contested finding of fact must be separately assigned as error, and the failure to do so results in a waiver of the right to challenge the sufficiency of the evidence to support the finding.”). To that end, our review is confined to a determination as to whether the trial court's findings support its conclusions of law.
     Employing the factors to be used in making the determination of whether the pretrial identification procedure created “a substantial likelihood of irreparable misidentification,” the trial court made the following pertinent findings:
        5.    On June 2, 2002, Defendant telephoned Green Line Turf and Tractor, a John Deer dealership, located in Lincoln County NC,and inquired of Shirley Sigmon about purchasing a John Deere Zero Turn Power Mower. Defendant identified himself as Monty Thayer.

        6.    On June 3, 2002, Defendant presented himself to salesman Melvin Sayne at Green Line Turf and Tractor and identified himself as Monty Thayer.

        7.    Melvin Sayne spent approximately 45 minutes working directly with Defendant in Green Line Turf and Tractor. Defendant and Mr. Sayne prepared financing forms and sales agreements. Defendant signed all documents in the presence of Sayne as Monty Thayer.

        . . .

        9.    The store was well-lighted and Defendant and Mr. Sayne were in close physical proximity to one another during the 45 minutes they spent together.

        10.    The witness, Melvin Sayne, was able to recall and identify the clothing the Defendant was wearing on June 3, 2002.

        11.    Melvin Sayne sold only one Zero Turn Mower on the 3rd day of June 2002 and that was to the Defendant.

        12.     Shirley Sigmon spent about five minutes with the Defendant in Green Line Turf and Tractor on June 3, 2002 [sic], during the time that he was purchasing the lawn mower because she remembered him calling [on 2 June 2002] and wanted to introduce herself to him.

        13.    Defendant returned to Green Line Turf and Tractor on June 4, 2002, to take possession of the mower.

            . . .

        19.    On or about July 10, 2002, Detective Lee Keller of the Lincoln County Sheriff's Department, tasked with investigating the fraudulent mower purchase, presented a single faxed copy of a photograph of theDefendant to Shirley Sigmon and Melvin Sayne. (Neither was in the presence of the other nor knew of the other's response when the picture was shown.) In response to Detective Keller's query, “Is this the man who purchased the mower?” both responded, “Yes.”

        20.    Neither Shirley Sigmon nor Melvin Sayne laid eyes on the Defendant again until they appeared in the Lincoln County courtroom this date for this Motion to Suppress the Identification of the Defendant.

        21.    Shirley Sigmon identified Defendant in open court as being the man in her store on June 3, 2002 [sic], purchasing the John Deere mower.

        22.    Shirley Sigmon would have been able to identify Defendant in open court even if she had not been shown the single faxed copy of a photograph of Defendant by Detective Keller.

        23.    Shirley Sigmon was absolutely certain of her identification of the Defendant and of her ability to identify him even if she had not been shown the single faxed copy of a photograph by Detective Keller.

        24.    Melvin Sayne identified Defendant in open court as being the man in his store on June 3, 2002, purchasing the John Deere mower.

        25.    Melvin Sayne was absolutely certain of his identification of the Defendant and of his ability to identify him even if he had not been shown the single faxed copy of a photograph by Detective Keller.

        26.    Both Shirley Sigmon and Melvin Sayne had independent recall of the identity of the Defendant as being the individual who purchased the John Deere mower in their store on June 3, 2002, and said recall was separate and apart from any photograph of the Defendant shown them by Detective Lee Keller.    Based upon these findings, the Court concluded pertinently,
        2.    That . . . notwithstanding [the fact that the pretrial identification procedure was impermissibly suggestive], . . . [the] procedure used does not give rise to a substantial likelihood of irreparable misidentification of the Defendant, in court, by either Ms. Sigmon or Mr. Sayne. The Court arrives at this conclusion after having considered the opportunity of the witnesses to view the Defendant at the time they first saw him, the degree of attention the witnesses had towards the Defendant at that time, the length of time they were with the Defendant, and the degree of certainty they demonstrated when identifying the Defendant in court today.
        3.    The Court further concludes that in-court identification of the Defendant by witnesses Sigmon and Sayne was independent of the impermissibly suggestive pre-trial procedure.
    Upon thorough review of the record evidence, we conclude that the trial court's findings, which are presumed correct, support its conclusions of law. We further conclude that the court's findings support its conclusions of law that the impermissibly suggestive pretrial identification procedure did not result in irreparable misidentification of defendant. Accordingly, the trial court did not err in denying defendant's motion to suppress.
    Defendant next argues that the trial court erred in sentencing him in the presumptive range of sentences. Again, we disagree. It is well settled that the trial court is only required to make findings in aggravation or mitigation if it departs from the presumptive range of sentences. State v. Caldwell, 125 N.C. App. 161, 162, 479 S.E.2d 282, 283 (1997). Thus, even when there isuncontradicted evidence of mitigating factors, the trial court is not required to make any findings justifying a sentence within the presumptive range. State v. Campbell, 133 N.C. App. 531, 542, 515 S.E.2d 732, 739, disc. review denied, 351 N.C. 111, 540 S.E.2d 370 (1999).
    Here, defendant was sentenced as a Class H felon, having a prior record level of V, to a presumptive sentence of 12 to 15 months imprisonment. See N.C. Gen. Stat. § 15A-1340.17(c)(2003). Since the trial court sentenced defendant in the presumptive range, the court was not required to take into account any mitigating or aggravating evidence_uncontradicted or otherwise. Defendant's argument to the contrary fails.
    Having so concluded, the order denying his motion to suppress and the judgment of the trial court entered on defendant's guilty plea are affirmed.
    Affirmed.
    Judges HUNTER and STEELMAN concur.
    Report per Rule 30(e).

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