State v Smith, (04-1331) 01/03/2006

Appeal by defendant from judgments entered 1 June 2004 by Judge W. Allen Cobb, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 20 September 2005.

Attorney General Roy Cooper, by Special Deputy Attorney General Gary R. Govert, for the State.

Richard B. Glazier for defendant-appellant.

    CALABRIA, Judge.

    Dennis Maurice Smith (“defendant”) appeals from judgments entered on jury verdicts finding him guilty of three counts of robbery with a dangerous weapon and one count of attempted robbery with a dangerous weapon. We find no error.
    Defendant was indicted and tried on eleven counts of robbery with a dangerous weapon (“armed robbery”) and one count of attempted robbery with a dangerous weapon. The indictments related to three separate robberies that were joined for trial. The first robbery occurred on 23 December 2002 at Michael Anthony's restaurant in Wilmington, North Carolina, and the second robbery occurred on 24 December 2002 at a nearby Domino's Pizza restaurant. The third robbery occurred on 31 December 2002 at a Wilmington branch of the Southeastern Community Credit Union. At trial, at the close of the evidence, the court dismissed one count of armed robbery and sent the remaining counts to the jury. The jury acquitted defendant of all counts relating to the Michael Anthony's restaurant robbery but found him guilty of three counts of armed robbery relating to the Domino's Pizza robbery and one count of attempted armed robbery of the credit union. The trial court subsequently sentenced defendant to four consecutive sentences of 94 to 122 months in the North Carolina Department of Correction. Defendant appeals.
    We initially note that although defendant raised seven assignments of error on appeal, he argued only two of those assignments of error in his brief. Accordingly, we deem those assignments of error not argued on appeal abandoned pursuant to N.C. R. App. P. 28(b)(6) (2005), and we limit our review to the two assignments of error that defendant argued in his brief.
I.    Admissibility of Officer's Testimony regarding Defendant's Truthfulness

    Defendant first argues “the trial court committed reversible error” and “violat[ed] [his] sixth and fourteenth amendment rights as well as his rights under Article I, sections 19, 23, and 27 of the North Carolina Constitution and N.C. R. Evid. 401-403.” However, defendant's substantive argument addresses whether the trial court erred in allowing a police officer to testify regarding defendant's truthfulness under the North Carolina Rules of Evidence. Because defendant failed to argue any constitutionalviolations arising from admission of the evidence at issue, we deem these portions of his assignment of error abandoned. See N.C. R. App. P. 28(b)(6).
    We next consider defendant's argument regarding alleged violations of the North Carolina Rules of Evidence. At trial, the court allowed a state witness, Detective Craig (“Craig”), to testify regarding his belief as to whether defendant's videotaped statement was truthful:
        Q.    Is it your experience, Detective, that suspects are not always fully cooperative regarding the details of an incident?
        A.    Yes, sir.
        Q.    Do you feel like Dennis Smith was fully truthful about his knowledge of the Domino's incident?
            MR. SULLIVAN: Objection.
            THE COURT: Overruled.
        A.    No, sir.
        Q.    What about the bank incident?
        A.    No, sir.
        Q.    What about his participation in Michael Anthony's?
            MR. SULLIVAN: Objection.
            THE COURT: Sustained.
        Q.    Well, he was asked about the Michael Anthony's, wasn't he?
        A.    Yes, sir, he was. I made a mistake earlier about that. When you asked me earlier about Michael Anthony's and the interview, yes, he was asked about Michael Anthony's.
        Q.    Did he make any admissions?
        A.    No, sir.
        Q.    Do you feel like he was being truthful?
            MR. SULLIVAN: Objection.
            THE COURT: Overruled.
        Q.    You can answer.
        A.    No, sir.

Defendant properly assigned as error that Craig's testimony was irrelevant and unfairly prejudicial. See N.C. R. Evid. 401-403 (2003). Defendant argues that the testimony was especially prejudicial in light of his argument to the jury that he onlyconfessed because “somebody called [his friend Pete's phone] saying that if [defendant said] anything or [did not] take these charges, something was going to happen to [defendant's] daughter or . . . somebody in [his] family.” We reject this assignment of error because, even assuming arguendo that the trial court erred in allowing this lay opinion testimony, defendant can only show harmless error. See N.C. Gen. Stat. § 15A-1443 (2003) (stating, “a defendant is prejudiced by error relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at [trial].”)     Defendant has not met his burden under N.C. Gen. Stat. § 15A-1443(a) for the following reasons. Defendant was acquitted of his involvement in the Michael Anthony's robbery, and the State presented convincing evidence of defendant's involvement in the other robberies. This evidence included: videotaped confessions of defendant's involvement in both the Domino's robbery and the credit union robbery, corroborating physical evidence including a yellow raincoat and mace from the credit union holdup that were found in defendant's car, and Craig's testimony that jail records failed to show any telephone calls to or from defendant in which defendant could have received information about a threat to his daughter that took place prior to defendant's videotaped confession. Based on this evidence, defendant cannot show a different result would have been reached at trial, and we reject this assignment of error.II.    Denial of Motion to Dismiss
    Defendant next argues that
        the trial court committed reversible error in denying defendant's motions to dismiss the charges against him . . . where the evidence was insufficient to convince a rational trier of fact of the defendant's guilt . . . beyond a reasonable doubt in violation of the defendant's fifth, sixth, eighth, and fourteenth amendment rights as well as his rights under Article I, sections 19, 23, and 27 of the North Carolina Constitution.

    Our review of a motion to dismiss is limited to ascertaining whether there is substantial evidence of each element of the crimes charged and of defendant's participation in the crimes. State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002). “Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion.” Id., 356 N.C. at 597, 573 S.E.2d at 869 (citations omitted). Moreover, “[i]n reviewing challenges to the sufficiency of the evidence, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences.” Id., 356 N.C. at 596, 573 S.E.2d at 869.
    The State presented a videotaped confession of defendant in which he admitted his involvement in the Domino's robbery and the attempted robbery of the credit union. Even without other physical evidence such as the yellow raincoat and mace from the credit union holdup found in defendant's car, defendant's admission, viewed in the light most favorable to the State, is sufficient to support his conviction. See, e.g., State v. Corbett, 339 N.C. 313, 334, 451 S.E.2d 252, 263 (1994) (standing for the proposition that aconfession will serve to support a trial court's denial of a motion to dismiss so long as there is extrinsic evidence showing that the crime charged actually occurred.) Accordingly, the trial court neither erred in rejecting defendant's motion to dismiss nor, in so doing, violated his constitutional rights.
    No error.
    Judges WYNN and LEVINSON concur.
    Report per Rule 30(e).

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