An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-686


Filed: 19 April 2005


v .                         Mecklenburg County
                            Nos. 02CRS233127-28

    Appeal by defendant from judgments entered 8 January 2004 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 12 January 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Neil Dalton, for the State.

    Carlton Rhodes and Carlton, by Gary C. Rhodes, for defendant- appellant.

    ELMORE, Judge.

    Ernest Lightner (defendant) was convicted of robbery with a firearm and assault with a dangerous weapon. The trial court arrested judgment on the conviction for assault with a dangerous weapon and sentenced defendant to 146 to 185 months imprisonment for the robbery with a firearm conviction. Defendant appeals.
    The State's evidence at trial tended to show that around 5:30 a.m. on 31 May 2002 Jessie Kennedy was delivering newspapers on his regular route along Dundeen Street in Charlotte. Mr. Kennedy noticed a dark-colored van parked at three different locations along his route that morning, and this same van pulled up behind his truck as he was finishing his route. Mr. Kennedy testifiedthat defendant jumped out of the van and waved a gun in his face, and then defendant and three other men surrounded him. One of these men was holding a shotgun pointed at Mr. Kennedy. Defendant demanded money, ordering Mr. Kennedy to “give it up.” Mr. Kennedy recognized the faces of the men robbing him, including defendant, because he had seen them in the Dundeen Street area several times before. When Mr. Kennedy told the group of men that he knew them, a fifth person stepped out of the van. At this point, defendant took Mr. Kennedy's necklace and bracelet. All of the men got into the van and drove away.
    As he watched the van drive off, Mr. Kennedy observed that it had a South Carolina license plate. About ten minutes later, Mr. Kennedy reported the robbery to an officer of the Charlotte Mecklenburg Police Department (CMPD). Following the day of the robbery, Mr. Kennedy did not see the van again until 4 July 2002 and defendant until a few days after that.
    During July 2002, Mr. Kennedy spoke with Detective Hulsey of the CMPD on the phone and informed her that the person who robbed him was known as “T-Bone.” Based upon the physical description and this nickname that Mr. Kennedy provided, Detective Hulsey compiled a photographic lineup. Detective Hulsey showed the photographic lineup to Mr. Kennedy, who identified defendant as the man who robbed him. Mr. Kennedy testified that he had seen defendant three or four times a week during the three years prior to the robbery and that he knew defendant's nickname from hearing people in the neighborhood call defendant by this name. He further testified that he was able to see the faces of all of the men who robbed him.     The trial court denied defendant's motion to dismiss at the close of all evidence, and the jury returned guilty verdicts on 8 January 2004. Defendant gave notice of appeal in open court.
    By his first assignment of error, defendant challenges the trial court's ruling on his motion in limine. Defendant sought to exclude (1) any testimony by Mr. Kennedy that, subsequent to the robbery, he heard on the street defendant's nickname in connection with the robbery; and (2) the photographic lineup based upon Mr. Kennedy's mention to Detective Hulsey of defendant's street nickname. The trial court denied the motion in part, ruling that the photographic lineup was admissible but that the testimony by Mr. Kennedy would not be allowed into evidence.
    First, defendant contends that his motion was in substance a motion to suppress and that the court should have held a voir dire hearing. To the contrary, defendant did not allege any constitutional violations in the motion. Additionally, defendant's motion was not accompanied by an affidavit reciting facts to support the motion. See N.C. Gen. Stat. § 15A-977(a) (2004). In order to be treated as a motion to suppress, the motion submitted must be in compliance with the procedural requirements of N.C. Gen. Stat. § 15A-971 et seq. governing such motions. See State v. Harris, 71 N.C. App. 141, 143, 321 S.E.2d 480, 482 (1984) (motion to suppress not accompanied by affidavit is not proper in form and may be summarily dismissed); State v. Conard, 54 N.C. App. 243,245, 282 S.E.2d 501, 503 (1981) (burden is on defendant to show he has met procedural requirements of 15A-971 et seq.). The trial court was not required to hold a voir dire hearing, and defendant was not deprived of the opportunity to testify at such a hearing. Cf. State v. Battle, 136 N.C. App. 781, 786-87, 525 S.E.2d 850, 853-54 (2000) (when defendant makes motion to suppress in proper form, trial court must give defendant opportunity to argue basis for the motion); State v. Pike, 273 N.C. 102, 107, 159 S.E.2d 334, 338 (1968) (where State witnesses testified on voir dire regarding motion to suppress, trial judge erred in refusing to allow defendant to testify). Here, the trial court heard arguments from both parties before ruling on defendant's motion.
    Defendant next contends that the court erred in admitting the photographic lineup into evidence. Similar to his argument before the trial court, defendant asserts on appeal that the photographic lineup itself was generated based solely upon hearsay testimony. However, defendant provides no argument in support of this assignment of error. “Assignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.” N.C.R. App. P. 28(b)(6). Accordingly, we do not consider this assignment of error.
    Next, defendant argues that the court erred in failing to strike from the record certain testimony by Mr. Kennedy about his knowledge of defendant's nickname. At the conclusion of the hearing on defendant's motion in limine, the trial court ruled thatany statement that the victim, Mr. Kennedy, heard on the street that “T-Bone” was involved in the robbery would be excluded. The court specified that only this particular statement, allegedly made by the victim to police officers, would be excluded. At trial, Mr. Kennedy testified that he knew defendant's name because he knew defendant well, but that he learned “through the streets” the names of the other men present during the robbery. Defense counsel objected to “what [Mr. Kennedy] learned through the streets” and moved to strike this statement, but the court overruled the objection and motion.
    After reviewing the record, we find that defendant has failed to preserve this issue for appeal. See N.C.R. App. 10(b)(1) (“In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make . . . .”). The statement admitted by the court established that Mr. Kennedy already knew defendant and his nickname, whereas he had to learn the identity of the other men involved from outside sources. Defendant did not object to the admission of testimony that Mr. Kennedy was acquainted with defendant and knew defendant's nickname prior to and apart from the robbery. Rather, defendant objected only to any statement about Mr. Kennedy learning of defendant's nickname in connection with the robbery. As defendant has failed to preserve the issue, we overrule this assignment of error.     Next, defendant asserts that the court erred in allowing defendant to appear before the jury during jury selection in a prison uniform. After reviewing the record before us, we discern no error on the part of the trial court. The trial judge notified defendant of his right to wear street clothes and asked defendant several times, before any jurors were called into the courtroom, whether defendant wanted to change clothes. Defendant responded in the negative each time. Where a defendant refuses the court's offer to change attire for trial, the fact that defendant appeared before the jury in prison clothes and any alleged prejudice therefrom is the result of his own choice. State v. Westry, 15 N.C. App. 1, 13, 189 S.E.2d 618, 625-26, cert. denied, 281 N.C. 763, 191 S.E.2d 360 (1972). Defendant's assignment of error is without merit.
    Defendant next assigns error to the court's denial of his motion to dismiss for insufficiency of the evidence. In considering a motion to dismiss, the trial court determines “whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense.” State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). The court must view the evidence in the light most favorable to the State and may not consider defendant's evidence if it conflicts with the State's evidence. State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652-53 (1982). This is because “contradictions and discrepancies do not warrant dismissal of the case _ they are for the jury to resolve.” Id.     Here, the State presented the testimony of Mr. Kennedy to establish defendant as the perpetrator of the crimes charged. Defendant challenges the credibility of this witness's identification testimony, pointing out that other evidence conflicted with Mr. Kennedy's physical description of defendant. Although Mr. Kennedy described defendant as having brown skin, defendant's sister testified that defendant was a dark-skinned black male. However, this evidence is not favorable to the State and thus could not be considered on a motion to dismiss. See id.
    Next, defendant contends that the court committed reversible error in its response to a request from the jury that the court re- read testimony previously given in the trial. We note that defendant cites no legal authority in support of this assignment of error, and we could deem it abandoned pursuant to N.C.R. App. P. 28(b)(6). Even assuming that defendant properly presented an argument on this issue, we find the assignment of error to be without merit. The decision of “[w]hether to allow a jury's request that previously admitted testimony be read to it lies solely within the discretion of the trial court.” State v. Weddington, 329 N.C. 202, 207, 404 S.E.2d 671, 675 (1991). Here, the jury foreperson asked the court if Detective Hulsey indicated a date upon which she first learned that Mr. Kennedy knew defendant from before the robbery. The court reporter reviewed the testimony of Detective Hulsey and advised the court that there was no specific date mentioned on which Detective Hulsey received this information. After consulting with the parties, the courtinstructed the jury that it was their duty to recall the evidence presented. Defendant has failed to show that the trial court's decision was an abuse of its discretion.
    We have reviewed the remaining assignments of error and find that they are without merit.
    No error.
    Judges McCULLOUGH and LEVINSON concur.
    Report per Rule 30(e).

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