An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-898


Filed: 3 May 2005


         v.                        Sampson County
                                No. 02 CRS 54238

    Appeal by defendant from judgment entered 18 February 2004 by Judge Benjamin G. Alford in Sampson County Superior Court. Heard in the Court of Appeals 25 April 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General A. Danielle Marquis, for the State.

    Nora Henry Hargrove, for defendant-appellant.

    CALABRIA, Judge.

    Robert J. Fennell (“defendant”) appeals his conviction for the first-degree murder of Algenion Carr (the “victim”). We find no error.
    On the night of 11 September 2002, Jodie Carr (“Carr”), who shared a house with his cousin, Daphney Edge (“Edge”) and her boyfriend, Nicholas Hinson (“Hinson”), was sitting on their porch drinking a beer, listening to music, and talking with the victim. While the victim and Carr sat on the porch, two men walked past on the sidewalk, approximately twenty-four feet from the porch. One man was short and stocky and wore a red shirt and baggy pants. The other man was tall and wore a dark blue or black shirt and jeans. Carr saw the men's faces as they walked underneath a street light next to the sidewalk. The victim called out to the men, “What's up?” The men asked, “Who's that?” The victim answered, “Alg.” The two men did not reply and kept walking.
    Fifteen minutes later, the stocky man in the red shirt returned and walked to the edge of Hinson's truck, which was parked in the front yard. The man pulled out a pistol, said, “What's up now?” and shot the victim six times. Carr, who was approximately five feet away from the shooter and approximately three feet away from the victim, felt the gun powder hit his face. The stocky man placed the pistol in his pocket, walked out of the yard, and ran down the road. After hearing five or six gunshots, Edge and Hinson went to the front door. Edge saw a man with a stocky build wearing a red shirt walking out of the front yard. Hinson saw a large man in a red shirt about forty feet away from the house, jogging away.
    The following day, police showed Jodie Carr forty-five photographs. Carr pointed to defendant's picture as a person who “look[s] like the shooter.” A month later, Carr picked out a more recent photograph of defendant from a photo array of six photographs. At trial, Carr identified defendant as the shooter. A jury found defendant guilty of first-degree murder. The trial court sentenced defendant to life imprisonment without parole. Defendant appeals.
     Defendant first asserts the trial court erred by denying his motion to dismiss based on insufficiency of the evidence. Specifically, defendant contends the State did not presentsubstantial evidence that he was the perpetrator of the crime. We disagree.
    The standard for ruling on a motion to dismiss “is 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). “'Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” State v. Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585 (1994) (citation omitted). In ruling on a motion to dismiss, the trial court must consider all of the evidence “in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence.” State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). “Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal.” State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996). “First-degree murder is the intentional and unlawful killing of a human being with malice and with premeditation and deliberation.” State v. Thomas, 350 N.C. 315, 346, 514 S.E.2d 486, 505 (1999).
    Viewed in the light most favorable to the State, the evidence tended to show that a stocky man in a red shirt and another male walked down the sidewalk, about twenty-four feet from the victim and Carr. The victim called out to them, “What's up?” and the men responded, “Who's that?” The victim responded, “Alg” and the mencontinued down the sidewalk. Fifteen minutes later, the stocky man in the red shirt returned, asked the victim, “What's up now?”, pointed a pistol at the victim and shot him six times. Carr, who sat less than five feet from the shooter, identified defendant as the shooter in a photo line-up after the shooting and at trial. Accordingly, we conclude there was substantial evidence upon which the jury could reasonably infer defendant was the perpetrator of the crime charged.
    Defendant next asserts the trial court erred in sustaining the State's objection to the following portion of the defense counsel's closing argument:
        DEFENSE COUNSEL: . . . Another piece of evidence that's missing is do you have any evidence before you, ladies and gentlemen, of an admission or confession? No.
        PROSECUTOR: Objection.
        THE COURT: Approach.
        . . .
        THE COURT: The objection is sustained. The jury will disregard the last argument of the defense counsel.

Specifically, defendant argues, by sustaining the State's objection, the trial court deprived him of his constitutional right to present a defense . We disagree.
    A defendant has a constitutional right to present a closing argument. State v. Fletcher, 354 N.C. 455, 474, 555 S.E.2d 534, 546 (2001). However, “[t]he scope and control of these arguments lies [primarily] within the discretion of the trial court.” State v. Carroll, 356 N.C. 526, 536, 573 S.E.2d 899, 906 (2002). Upon objection, it is the duty of the trial court to censor remarks not warranted by the law or the evidence. State v. Barden, 356 N.C.316, 354, 572 S.E.2d 108, 133 (2002). Our appellate courts “will not disturb the trial court's exercise of discretion over the latitude of counsel's argument absent any gross impropriety in the argument that would likely influence the jury's verdict.” State v. Cummings, 353 N.C. 281, 297, 543 S.E.2d 849, 859 (2001). Moreover, attorneys may not “make arguments on the basis of matters outside the record except for matters concerning which the court may take judicial notice.” N.C. Gen. Stat. § 15A-1230(a) (2003).
    The record shows that defendant made a pre-trial statement to police. However, this statement was not admitted into evidence. Because the statement was not in the record and the remainder of the defense counsel's closing argument was undisturbed, we hold the trial court did not abuse its discretion by sustaining the State's objection and directing the jury to disregard that portion of the defense counsel's argument concerning the absence of an admission or confession.
    Defendant finally asserts the “short-form” indictment for murder did not allege the elements of first-degree murder and, therefore, it was inadequate to charge him with first-degree murder under the United States Constitution and the Constitution of North Carolina. Defendant acknowledges our Supreme Court has held that short-form indictments, as authorized under N.C. Gen. Stat. § 15- 144, are sufficient to allege first-degree murder and are in compliance with the United States and North Carolina Constitutions. State v. Braxton, 352 N.C. 158, 174, 531 S.E.2d 428, 437 (2000). We are bound by our Supreme Court's holding and, accordingly,reject defendant's assertion that the short-form murder indictment violated his constitutional rights.
    We have carefully considered defendant's remaining arguments and consider them to be without merit. For the foregoing reasons, we hold defendant received a fair trial free from error.
    No error.
    Chief Judge MARTIN and Judge McCULLOUGH concur.
    Report per Rule 30(e).

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