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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. ROBERT AMOS FARMER
Filed: 6 June 2006
1. Appeal and Error_preservation of issues--motion to dismiss_not renewed at end of
Failure to renew a motion to dismiss at the end of all the evidence resulted in waiver of
the right to challenge the sufficiency of the evidence on appeal.
2. Evidence_attempted bribe by defendant_door opened by defendant
An assault victim's testimony that defendant tried to bribe him was properly admitted.
Defendant opened the door on cross-examination by asking the victim about conversations with
defendant; the State was entitled to chase the rabbit released by defendant.
3. Evidence_identification of defendant_in-court identification not tainted by single
There was no plain error in an in-court identification of defendant where the witness had
made a out-of-court identification based on a single photograph. Her identification of defendant
before being shown the photograph was sufficiently reliable.
Appeal by defendant from judgment entered 3 June 2005 by Judge
Nathaniel J. Poovey in Catawba County Superior Court. Heard in the
Court of Appeals 18 May 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Harriet F. Worley, for the State.
William D. Auman, for defendant-appellant.
Robert Amos Farmer (defendant) appeals from judgment entered
after a jury found him to be guilty of felonious assault with a
deadly weapon with intent to kill and discharging a weapon into
occupied property. We find no error.
A. State's Evidence
Shananda Crockett (Crockett) testified she and Demarcus
Powell (Powell) went to a convenience store to buy gasoline just
before midnight on 8 October 2004. After Powell entered the store,
Crockett observed defendant standing outside the store talking with
a woman and standing next to a small tan pickup truck. Powell
exited the store and began talking with defendant. Powell asked
defendant about something that had happened about his girlfriend
getting tied up and him getting robbed. Defendant denied he was
Powell testified he had a conversation with defendant outside
of the convenience store, and defendant identified himself by name.
Following the conversation, Powell drove his vehicle out of the
parking lot. Crockett sat in the front passenger seat of Powell's
vehicle. Powell stopped his vehicle at a stoplight immediately
after he turned left out of the convenience store's parking lot.
Powell intended to make a right turn to go to his aunt's home.
Crockett and Powell testified defendant drove a tan pickup
truck along beside the driver's side of Powell's vehicle and fired
shots into Powell's vehicle. One of the bullets struck Powell in
the back of his neck. The gunshots also shattered the rear
driver's side window of Powell's vehicle and left a bullet hole in
the driver's headrest. Crockett testified that after she heard the
gunshot, she moved into the floorboard of the vehicle, but later
sat back in the passenger's seat and saw defendant put the gun down
and drive away from the scene. Powell drove his vehicle into a nearby parking lot. Crockett
drove Powell to a hospital to seek medical assistance. Later that
evening, Crockett and Powell spoke with law enforcement officials
about the shooting. Crockett described the assailant as a short
white male, heavyset, and they knew him as Rob. Powell told the
officer the man who shot him was a man named, Rob, who was a
short, chubby, white male.
Crockett testified she knew defendant's name because one of
her friends went to school with him and had told her his name. She
also testified that approximately one week before the shooting she
and one of her friends had observed defendant at the convenience
store standing outside in the parking lot with guns.
Crockett told a police officer, whom she knew, that defendant
was the person who had shot into Powell's car. Crockett also told
police officers she thought she knew where defendant lived.
Crockett had driven by a house and saw defendant playing with some
children. She provided police officers general directions to
defendant's home where he lived with his girlfriend and his
Lieutenant Dale Lafone (Lieutenant Lafone) testified
Crockett described the assailant and the assault. Lieutenant
Lafone stated, with the address confirmed by Officer Cox at 330
South Cline Avenue, I felt I knew the Rob she was talking about,
the Rob being Robert Farmer, that lived, that stayed at that
address on Cline Avenue. Lieutenant Lafone showed Crockett a
photograph of defendant. Crockett identified defendant as theassailant. Powell also reviewed the photograph and identified
defendant as the assailant.
On cross-examination and re-direct, Powell testified defendant
contacted him in December 2004 and asked him if there were some
things that could be done about him shooting. Defendant told
Powell that he would talk to him later. Powell contacted defendant
a few days later and was asked by defendant how much money it would
take for Powell not to testify. Powell gave defendant the figure
of $15,000.00. Defendant responded he was uncertain whether he
could provide Powell with that amount of money. Powell never heard
from defendant again.
B. Defendant's Evidence
Defendant's mother, Lisa Ellison (Ellison), testified that
on 8 October 2004, the day of the shooting, she went to a house
located at 330 Cline Street and met with her son. Ellison drove
defendant to the Lake Norman Motel and the Landing Restaurant and
rented him a room for the night so he could spend time with
friends. Ellison left defendant at the hotel without a vehicle.
John Paul Genaro (Genaro) testified his family owns and he
was employed at the Lake Norman Motel and the Landing Restaurant.
Genaro stated defendant spent the evening of 8 October 2004 playing
pool in the back of the restaurant. Genaro observed defendant go
to his room at approximately 1:00 a.m., and also observed Bucky
Bolden (Bolden), one of the restaurant's cooks, enter defendant's
room. Bolden testified he is one of defendant's friends and works at
the Lake Norman Motel and the Landing Restaurant as a cook. After
Bolden finished cleaning the kitchen, he and defendant went to
defendant's motel room. Bolden stayed with defendant for
approximately two hours before going home.
Defendant was convicted of felonious assault with a deadly
weapon with intent to kill and discharging a weapon into occupied
property. Defendant received an active sentence within the
presumptive range of not less than thirty-four and no more than
fifty months imprisonment. Defendant appeals.
Defendant argues the trial court erred by: (1) failing to
dismiss the charges against him due to insufficiency of the
evidence; (2) allowing Powell to testify that defendant offered to
bribe him; and (3) allowing Crockett to make an in-court
identification of him as the assailant.
III. Sufficiency of the Evidence
 Defendant argues the trial court should have dismissed the
charges due to insufficiency of the evidence. Defendant's
assignment of error references only his motion to dismiss at the
close of the State's evidence. Defendant presented evidence
through testimony by his mother and two friends. Defendant failed
to renew his motion to dismiss at the end of all the evidence and
waived his right to challenge the sufficiency of the evidence on
N.C. R. App. P. 10(b)(3) (2006) provides, [i]f a defendant makes such a motion after the
State has presented all its evidence and has
rested its case and that motion is denied and
the defendant then introduces evidence, his
motion for dismissal or judgment in case of
nonsuit made at the close of State's evidence
is waived. Such a waiver precludes the
defendant from urging the denial of such
motion as a ground for appeal.
This assignment of error is dismissed.
IV. Powell's Testimony
 Defendant argues the trial court should not have allowed
Powell to testify that defendant offered to bribe him.
N.C. Gen. Stat. § 15A-903, as amended in 2004, provides the
State, upon motion by a defendant, must make the State's complete
files, including all witness statements, available to the
defendant. N.C. Gen. Stat. § 15A-903 (2005).
N.C. Gen. Stat. § 15A-910 (2005) provides:
(a) If at any time during the course of the
proceedings the court determines that a party
has failed to comply with this Article or with
an order issued pursuant to this Article, the
court in addition to exercising its contempt
(1) Order the party to permit the
discovery or inspection, or
(2) Grant a continuance or recess, or
(3) Prohibit the party from introducing
evidence not disclosed, or
(3a) Declare a mistrial, or
(3b) Dismiss the charge, with or
without prejudice, or
(4) Enter other appropriate orders.
(b) Prior to finding any sanctions
appropriate, the court shall consider both themateriality of the subject matter and the
totality of the circumstances surrounding an
alleged failure to comply with this Article or
an order issued pursuant to this Article.
Defendant filed motions for discovery and for affirmation of
discovery compliance. Defendant argues the State has both a
constitutional and statutory duty to disclose material evidence,
and [n]o one would dispute that [defendant's] alleged bribe was in
fact material, particularly with this being an alibi defense case.
During cross-examination, defense counsel asked Powell if he
had spoken with defendant after the alleged incident. Powell
answered, Yes. On re-direct, the State asked Powell about the
substance of that conversation. Defendant objected, and the judge
excused the jury.
A voir dire
examination of Powell was conducted, including
questions by the State, defense counsel, and the trial judge.
Powell testified during voir dire
, defendant had asked him not to
testify against him and whether Powell could forget everything
that happened. Powell also testified he had not told the State
about these conversations with defendant. The trial court
overruled defendant's objection and allowed Powell to testify
regarding the conversation. The trial court noted Crockett had
made a similar allegation that defendant offered to pay her not to
testify, and the State had promptly given defense counsel that
information. The court concluded, it would make no sense for [the
District Attorney] to tell you about one and not tell you about the
other if he's going to tell you about any. In State v
, our Supreme Court held the trial court did
not err when it admitted a witness's testimony that he had received
a telephone call from the defendant who confessed to the witness
that he had murdered the victim. 336 N.C. 499, 507, 444 S.E.2d
206, 210 (1994). The defendant objected to the admission of the
testimony under a previous version of N.C. Gen. Stat. § 15A-903.
. at 506, 444 S.E.2d at 210. The State is required to make known
to the defendant oral statements made by the defendant that the
State intended to offer into evidence, which were known to the
State prior to or during the course of trial. Id
. The State
argued, the substance of this statement was consistent with other
statements made by defendant provided in discovery, and the
witness had not previously revealed this information to the State.
The Court held:
The State cannot reasonably be expected to
relate a statement to defendant which it has
no knowledge of such as in the case at hand.
Under these circumstances, we find that the
State did not violate the discovery rules of
N.C.G.S. § 15A-903(a); thus, the trial court
did not err in allowing this testimony.
. at 507, 444 S.E.2d at 210.
In State v. Taylor, our Supreme Court stated:
A major purpose of the discovery procedures of
Chapter 15A is to protect the defendant from
unfair surprise. When the defendant does not
inform the trial court of any potential unfair
surprise, the defendant cannot properly
contend that the trial court's failure to
impose sanctions is an abuse of discretion.
332 N.C. 372, 384, 420 S.E.2d 414, 421 (1992) (internal quotations
and citations omitted).
Although Godwin was decided prior to the 2004 amendment to
N.C. Gen. Stat. § 15A-903, the amendment does not alter the
applicability of the Court's reasoning to the issue before us.
Powell testified he had never revealed the contents of his
telephone conversation with defendant to the State. The State was
unaware of this conversation but had provided defendant with a
similar statement from Crockett alleging defendant's attempt to
Defendant opened the door on cross-examination by asking
Powell about later conversations between he and Powell. The State
was entitled to chase the rabbit after defendant let it loose.
Defendant knew the State had evidence that he had attempted to
bribe Crockett and should not have been surprised when Powell
testified defendant had attempted to bribe him. Defendant cannot
now reasonably complain that Powell's testimony amounted to unfair
surprise. Id. This assignment of error is overruled.
V. Identification of Defendant
Defendant argues the trial court erred when it allowed
Crockett to make an in-court identification of him. Defendant
asks this Court to review the trial court's failure to suppress
Crockett's identification of defendant under a plain error standard
because defendant withdrew his objection to the identification.
Defense counsel filed a motion to suppress the challenged
identification by Crockett, based on an unduly suggestive out-of-court identification procedure. When Crockett testified,
defendant's objection to her identification was overruled, and
defense counsel withdrew his motion.
Plain error is applied cautiously and only in
exceptional cases when after reviewing the
entire record, it can be said the claimed
error is a 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. Under this standard, a defendant
is entitled to a new trial only if the error
was so fundamental that, absent the error, the
jury probably would have reached a different
, 359 N.C. 709, 717, 616 S.E.2d 515, 523 (2005)
(internal quotations and citations omitted).
Lieutenant Lafone showed defendant's photograph to Crockett
while she was at the hospital with Powell. Lieutenant Lafone did
not show Crockett any other photographs. Crockett identified
defendant as the assailant and told Lieutenant Lafone his name was
Rob. Defendant argues, given the circumstances, showing only
one photo to a prospective witness would be overly suggestive.
Defendant acknowledges, the identification of [defendant] via the
'show up' must be excluded unless it is first determined by the
trial court that the in-court identification has an independent
origin of the invalid pretrial procedure. Regarding pretrial identifications, our Supreme Court has
Pretrial showup identifications, though they
are suggestive and unnecessary, are not,
however, per se
violative of a defendant's due
process rights. The primary evil to be
avoided is the substantial likelihood of
misidentification. Whether there is a
substantial likelihood of misidentification
depends on the totality of the circumstances.
The factors to be considered . . . include the
opportunity of the witness to view the
criminal at the time of the crime, the
witness' degree of attention, the accuracy of
his prior description of the criminal, the
level of certainty demonstrated at the
confrontation, and the time between the crime
and the confrontation. Against these factors
is to be weighed the corrupting effect of the
suggestive identification itself.
If under the totality of the circumstances
there is no substantial likelihood of
misidentification, then evidence of pretrial
identification derived from unnecessarily
suggestive pretrial procedures may be
State v. Flowers, 318 N.C. 208, 220, 347 S.E.2d 773, 781 (1986)
(internal quotations and citations omitted).
The State argues, Crockett's identification of defendant
prior to being shown the picture was sufficiently reliable that
admission of her identification of defendant at trial was not a
fundamental error so prejudicial that justice cannot have been
done. We agree.
Prior to seeing defendant's photograph, Crockett: (1) gave an
accurate physical description of defendant as a short, white,
heavyset male; (2) correctly identified defendant's first name; (3)gave an accurate description of defendant's residence, which was
corroborated by defendant's mother; and (4) told police she knew
of defendant and had seen him at the same convenience store in
possession of guns one week prior to the shooting. Crockett was
able to view the criminal [before and] at the time of the crime
and testified she saw defendant lower the gun after Powell was shot
and drive away from the scene. Id. Lieutenant Lafone showed
Crockett the picture of defendant on the night of the shooting,
while she was at the hospital with Powell. [T]he time between the
crime and the confrontation was short. Id. Under plain error
review, this assignment of error is overruled.
Defendant failed to preserve for appellate review his
assignment of error regarding the sufficiency of the evidence by
failing to renew his motion to dismiss after offering evidence.
N.C. R. App. P. Rule 10(b)(3). The trial court properly allowed
Powell to testify that defendant allegedly bribed him and properly
admitted Crockett's in-court identification of defendant.
Defendant received a fair trial, free from prejudicial errors
he preserved, assigned, and argued. We find no error in the
judgment and sentence imposed.
Judges MCCULLOUGH and HUDSON concur.
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