An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 December 2005
STATE OF NORTH CAROLINA
v. Rockingham County
No. 04 CRS 51018
DAVID CLINTON DIVINIE
Appeal by defendant from judgment entered 9 November 2004 by
Judge James M. Webb in Rockingham County Superior Court. Heard in
the Court of Appeals 2 December 2005.
Attorney General Roy Cooper, by Special Deputy Attorney
General Donald R. Teeter, for the State.
Mercedes O. Chut, for defendant-appellant.
David Clinton Divinie (defendant) appeals from judgment
entered after a jury found him to be guilty of common law robbery.
We find no error.
The State's evidence tended to show that at approximately 9:00
p.m. on the evening of 26 March 2004 Ms. Wilma Coffey (Coffey)
and her friend, Ms. Lorraine French (French), left a restaurant
after eating dinner. As they walked down a sidewalk, a man
approached Coffey and asked for directions. The man snatched
Coffey's purse and ran to a waiting vehicle operated by another man
whom French identified in court as defendant. The purse contained
cash, checks, and a number of credit and bank cards, including aSam's Club/Wal-Mart Visa card.
Sammy Dickerson (Mr. Dickerson) testified that on 28 March
2004 he went outside his residence to feed his dogs and found
checks, credit cards, and other materials in or about the dog's
food bowl. He called Coffey, who informed him that her purse had
been stolen. Mr. Dickerson found the items near where defendant,
defendant's son, and daughter had parked their vehicle while
visiting his residence at approximately 10:30 p.m. on 26 March
2004, the day of the robbery. Mr. Dickerson testified that
defendant and his son acted very nervous, especially when they
heard sirens. His son also asked to borrow a shirt from Mr.
Dickerson saying they had just stolen a twelve-pack of beer from a
store and he had thrown his shirt away. Mr. Dickerson observed
that defendant's son did not bring any beer with him and that tape
covered the last two digits of the license plate of defendant's
vehicle. Defendant's son explained that he had covered the numbers
so the vehicle would not be traced after they ran from the store.
Kasey Goins Dickerson (Mrs. Dickerson), wife of Mr.
Dickerson, testified that defendant came to her residence on 26
March 2004 and returned to her residence the next day. Defendant
asked her whether a Sam's Club credit card could be used at a Wal-
Mart store. Defendant's son also gave her a change purse.
Coffey identified the change purse given to Mrs. Dickerson as
an item in her pocketbook which was stolen from her.
Defendant's son subsequently pled guilty to common law robbery
and testified as a defense witness. He confessed that he snatchedCoffey's purse. He identified the driver of the getaway car as a
guy named, Tommy, whom he had solicited to participate in the
crime. He did not know Tommy's surname or where he resided. He
did not give Tommy any of the money or other spoils from the
Defendant's daughter also testified that she and her father
watched television together while her brother was gone for about
forty-five minutes the evening of 26 March 2004. After her brother
returned, they all went to Mrs. Dickerson's residence.
On 7 June 2004,
defendant was charged with common law robbery.
On 9 November 2004, a jury found defendant to be guilty of common
law robbery and possession of property feloniously taken. The
trial court arrested judgment on the charge of possession of
property feloniously taken and sentenced defendant to a minimum
term of twenty-four months and a maximum term of twenty-nine months
for the common law robbery offense. Defendant appeals.
The issues on appeal are whether the trial court erred by:
(1) denying defendant's motion to dismiss the charges due to
insufficiency of the evidence; and (2) failing to suppress the in-
court identification of defendant by French, since the
identification was not reliable.
III. Motion to Dismiss
Defendant contends the trial court erred by denying his motion
to dismiss. In ruling upon a motion to dismiss, the trial
determines whether there is substantial evidence to establish eachelement of the offense charged and to identify the defendant as the
perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d
649, 651 (1982).
Defendant argues the evidence is insufficient to
identify him as the perpetrator of the offense. He submits that
none of the witnesses to the incident could describe the driver of
the vehicle with specificity and French even identified a person
other than defendant from a photograph lineup as the driver of the
In deciding a motion to dismiss, the trial
court must consider
the evidence in the light most favorable to the State giving it the
benefit of every reasonable inference that may be drawn from the
evidence. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587
(1984). Contradictions and discrepancies in the evidence are not
considered and are left for resolution by the jury. State v.
299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980)
the credibility of identification testimony is for the jury's
determination. State v. Guffey, 265 N.C. 331, 144 S.E.2d 14
(1965). This rule does not apply when the only evidence
identifying the defendant as the perpetrator of the offense is
inherently incredible because of undisputed facts, clearly
established by the state's evidence, as to the physical conditions
under which the alleged observation occurred. State v. Miller,
270 N.C. 726, 731, 154 S.E.2d 902, 905 (1967). If there is a
reasonable possibility of observation sufficient to permit
subsequent identification, the credibility of the witness'
identification of the defendant is for the jury, and the court'sdoubt upon the matter will not justify granting a motion for
judgment of nonsuit . . . . Id. at 732, 154 S.E.2d at 906.
The State's evidence tends to show that French had a
reasonable opportunity to observe the driver of the vehicle. She
testified that she looked at the driver's face for four to five
seconds from a distance of five feet. The evidence also showed
that the area was well-lit by street lights. French expressed no
doubt in her identification of defendant as the driver of the
vehicle. Under these circumstances, the court did not err by
denying defendant's motion to dismiss and submitting the
credibility of French's identification testimony for resolution by
the jury. This assignment of error is overruled.
IV. In-Court Identification of Defendant
By his remaining assignment of error, defendant contends the
court committed plain error by not suppressing the in-court
identification testimony of French. He argues her in-court
identification testimony was inherently incredible or unreliable
because she selected a photo of a different person as a possible
perpetrator, made the in-court identification eight months after
the event, and the description she gave of the driver did not state
that the driver had facial hair.
Plain error may be found
only in the exceptional case where, after
reviewing the entire record, it can be said
the claimed error is fundamental error,
something so basic, so prejudicial, so lacking
in its elements that justice cannot have been
done, or where [the error] is grave error
which amounts to a denial of a fundamental
right of the accused, or the error has'resulted in a miscarriage of justice or in
the denial to appellant of a fair trial' or
where the error is such as to seriously
affect the fairness, integrity or public
reputation of judicial proceedings or where
it can be fairly said the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.
1982)). As we have held that French's identification testimony was
not inherently incredible and that she had sufficient opportunity
to make an identification, we discern no plain error.
It was the
province of the jury to decide whether to accept or reject her
testimony. This assignment of error is overruled.
The trial court did not err by denying defendant's motion to
dismiss and submitting the credibility of French's identification
testimony for the jury's
. Defendant received a fair
trial free from prejudicial error.
Judges MCCULLOUGH and ELMORE concur.
Report per Rule 30(e).
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