An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1530


Filed: 2 August 2005


         v.                        Forsyth County
                                No. 03 CRS 6139

    Appeal by defendant from judgment entered 19 August 2003 by Judge Lindsay R. Davis in Forsyth County Superior Court. Heard in the Court of Appeals 18 July 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Elizabeth Leonard McKay, for the State.

    The Kelly Law Firm, by George E. Kelly, III, for defendant- appellant.

    MARTIN, Chief Judge.

    Defendant appeals his conviction for robbery with a dangerous weapon. At his trial, the State adduced evidence tending to show that on the morning of 2 February 2003, Carla Richardson Harritos went shopping at a Wal-Mart store in Kernersville, North Carolina. As she was loading her purchases into the trunk of her car, a man approached her from behind and removed her purse from her shopping cart. Among the items in Harritos' purse were cash, credit cards, a hearing aid, and a Hallmark Preferred Member Points card bearing the name “Carla R. Harritos.” Wanting “to get a description of this guy,” Harritos followed him. As she came within three feet of the man, he stopped, looked directly at her and displayed a semi-automatic handgun in his hand. Unwilling to confront “a six-foot man with a gun[,]” Harritos watched him get into his car with her purse and drive away. She then contacted the Kernersville Police Department.
    Having looked at the man for “about ten seconds” as he brandished the gun, she described him as follows:
        . . . I said he was about 6[ feet to 6 feet, 2 inches tall], 200 to 220 pounds white male, and in his mid 30's. He had several days growth of beard. Had on [] dark clothing, and a cap. Had a kind of flat-crown cap, ball- type cap, but flatter cap with bill with sun glasses.

Harritos identified defendant in court as the robber.
    On the night of 9 February 2003, officers investigating a report of a robbery observed an off-white Chrysler sedan traveling southbound on Interstate 85 toward High Point, North Carolina. The car's license plate bore the number RMP 5172, and its registered owner was defendant's mother, Irene Sechrist. The officers followed the vehicle to a Travel Lane Express motel, where they saw defendant emerge from the vehicle and walk into the motel's breezeway. After confirming that defendant was registered in room 202, police obtained a search warrant and entered the room, finding defendant alone inside. They then searched the Chrysler sedan and found Harritos' Hallmark Preferred Member Points card under the front passenger's side floormat.
    On 2 March 2003, Kernersville Police Officer Charles Tucker presented a photographic line-up to Harritos, and she selected defendant's photograph as depicting the man who stole her purse inthe Wal-Mart parking lot on 2 February 2003.
    On appeal, defendant claims “the trial court erred, and committed plain error, in admitting evidence of the photo line-up identification[.]” He argues that the line-up was “impermissibly suggestive,” in that it “contained only two pictures of men with dark facial hair, a characteristic that Ms. Harritos used to describe her assailant.” He further avers the circumstances surrounding the robbery and photographic identification lacked sufficient indicia of reliability.
    As suggested by his assignment of both error and plain error, defendant failed to preserve his challenge to Harritos' out-of- court identification for review on appeal, having offered no timely objection to this evidence at trial. In the course of her testimony, Harritos first identified defendant as the man who robbed her. Defendant did not object to her in-court identification. The prosecutor then showed Harritos a photographic line-up, marked as Exhibit 2, and asked her whether she had seen it before. Without objection, Harritos affirmed that she had previously seen the line-up, whereupon the prosecutor elicited from Harritos the circumstances under which police had shown the line-up to her. Upon further questioning by the prosecutor, Harritos testified, again with no objection from defendant, that (1) she selected a photograph from the line-up, (2) the photograph she selected was “Number 3[,]" and (3) the person depicted in photograph Number 3 was “the person that [she] identified as the person [who] had robbed [her] on February 2nd, 2003.” AfterHarritos testified about her out-of-court identification of the robber, the prosecutor sought to introduce the photographic line-up into evidence, which led to the following exchange:
        [PROSECUTOR]: Ask State's Exhibit No. 2 be admitted into evidence, your Honor.

        [DEFENSE COUNSEL]: I object to that, your Honor.

        THE COURT: I will sustain at this point.
Thus, while defendant objected to the introduction of the exhibit, he did not object to Harritos' testimony regarding her out-of-court identification of defendant.
    Likewise, during Officer Tucker's testimony, defendant raised no objection to the officer's detailed account of Harritos' out-of- court identification:
        [PROSECUTOR]: Did you show [Harritos] the line-up after you read that form to her?

        [TUCKER]: Yes, sir. . . .

        Q. Did she pick anybody out?

        A. Without hesitation, she picked somebody out.

        Q. Who did she pick out?

        A. Four, No. 4.

        Q. Who['s] photographed in No. 4?

        A. Mr. Skipper.

        Q. The defendant in this case?

        A. Yes, sir?

        Q. Did you have her sign and date that form?

        A. Yes, I did. . . .
        Q. What was the date of . . . the photographic line-up?

        A. March the 2nd of this year.

        Q. You observed her sign that document?

        A. Yes, sir.

        Q. Is it noted on [the exhibit] what photograph she picked out?

        A. Yes, sir.

        Q. What photograph is noted on [the exhibit]?

        A. Number 3.
Only when the State again moved to introduce the actual line-up exhibit into evidence did defendant object.
    Under our Rules of Evidence, “[e]rror may not be predicated upon a ruling which admits . . . evidence unless . . . a timely objection or motion to strike appears of record.” N.C.R. Evid. 103(a)(1); see also N.C.R. App. P. 10(b)(1). Where a defendant would challenge identification testimony, “[a] motion to strike an incompetent answer must be made when the answer is given.” State v. McCray, 342 N.C. 123, 127, 463 S.E.2d 176, 179 (1995) (citing State v. Banks, 295 N.C. 399, 408, 245 S.E.2d 743, 749-50 (1978), overruled on other grounds by State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993)). “A motion to strike will therefore be deemed untimely if the witness answers the question and the opposing party does not move to strike the response until after further questions are asked of the witness.” Id.
    Having allowed Harritos and Tucker to testify to her out-of- court identification without objecting or moving to strike theirtestimony, defendant waived any objection thereto. See State v. Wilson, 289 N.C. 531, 536-37, 223 S.E.2d 311, 314 (1976). To the extent defendant objected to the admission of the line-up itself, the witnesses' identification of State's Exhibit 2 as the line-up shown by Tucker to Harritos on 2 March 2003 was sufficient to authenticate the object. See generally State v. Oliver, 302 N.C. 28, 52, 274 S.E.2d 183, 198 (1981) (quoting 1 Stansbury's North Carolina Evidence § 26 (Brandis rev. 1973)). Moreover, defendant has raised no challenge to Harritos' in-court identification, either at trial or on appeal. See State v. Gaither, 148 N.C. App. 534, 539-40, 559 S.E.2d 212, 215-16 (2002).
    Defendant also assigns plain error to the admission of Harritos' out-of-court identification. “In criminal cases, a question which was not preserved by objection noted at trial . . . nevertheless may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error.” N.C.R. App. P. 10(c)(4). However, defendant has not articulated the plain error standard or presented any argument or analysis thereunder in his brief to this Court. See N.C.R. App. P. 28(a) and (b)(6). “'By simply relying on the use of the words “plain error” as the extent of his argument in support of plain error, defendant has effectively failed to argue plain error and has thereby waived appellate review.'” State v. Daniels, 164 N.C. App. 558, 563, 596 S.E.2d 256, 259 (2004) (quoting State v. Cummings, 352 N.C. 600, 637, 536 S.E.2d 36, 61 (2000), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001)).     In any event, the record discloses no plain error. To establish plain error, a defendant must show “(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.” State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997). Here, we find no probability of a more favorable outcome at trial but for the error claimed by defendant. Absent the challenged evidence, the jury would have been left to consider Harritos' in-court identification of defendant as well as evidence that police found Harritos' Hallmark Preferred Member Points card on the floorboard of the car defendant was driving seven days after the robbery. Nor did the admission of the pretrial identification undermine the fundamental fairness of the proceedings. The evidence showed Harritos had ample opportunity to observe her assailant at close range in broad daylight and consciously pursued him in order “to get a description of this guy[.]” See State v. Parker, 350 N.C. 411, 432, 516 S.E.2d 106, 121 (1999) (allowing identification evidence “where there is a reasonable possibility of observation sufficient to permit subsequent identification” (citations omitted)), cert. denied, 528 U.S. 1084, 145 L. Ed. 2d 681 (2000). Moreover, we find no merit to the claim that the photographic line-up was “so impermissibly suggestive that there is a very substantial likelihood of irreparable misidentification.” State v. Barnett, 307 N.C. 608, 627, 300 S.E.2d 340, 350 (1983)(quoting State v. White, 307 N.C. 42, 45-46, 296 S.E.2d 267, 269 (1982)). As found by the trialjudge, the line-up shows six suspects with facial hair of slightly varying shades. Furthermore, contrary to defendant's assertion at trial, Harritos did not describe her assailant as “somebody with a black beard[,]” testifying only that he had “several days growth of beard[.]” At least two of the six suspects arrayed in the line-up have darker facial hair than defendant.
    Defendant next asserts the trial court committed plain error in admitting Officer Tucker's testimony regarding Harritos' out-of- court statement on 2 March 2003, identifying defendant's photograph as that of the robber. He argues that Harritos' statement to Tucker was hearsay, and that its admission violated his rights under the Confrontation Clause. This claim is also not properly before this Court. Defendant did not object to Tucker's testimony at trial and makes no argument of plain error beyond the mere invocation of the term. See Cummings, 352 N.C. at 636-37, 536 S.E.2d at 60. Moreover, inasmuch as Harritos testified and was subject to cross-examination, defendant's right to confrontation was not infringed. Her prior statement to Tucker was admissible to corroborate her testimony identifying defendant as her assailant. See State v. Chapman, 359 N.C. 328, 358, 611 S.E.2d 794, 818 (2005) (citing State v. Gell, 351 N.C. 192, 204, 524 S.E.2d 332, 340, cert. denied, 531 U.S. 867, 148 L. Ed. 2d 110 (2000)).
    No error.
    Judges HUNTER and STEELMAN concur.
    Report per Rule 30(e).

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