An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-245


Filed: 17 January 2006


v .                         Nash County
                            No.    04 CRS 50615

    Appeal by defendant from judgment entered 13 September 2004 by Judge Jerry R. Tillett in Nash County Superior Court. Heard in the Court of Appeals 15 November 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Elizabeth L. Oxley, for the State.

    William D. Spence for defendant-appellant.

    JOHN, Judge.

    Tommy Lee Edwards (“defendant”) appeals the trial court's judgment entered upon his conviction by a jury of robbery with a dangerous weapon. For the reasons discussed herein, we hold defendant received a trial free of prejudicial error.
    The State's evidence presented at trial tends to show the following: On 19 December 2003, Rita Ross (“Ross”) was working as night auditor for the Red Roof Inn (“the Inn”) located in Nash County, North Carolina. At approximately 2:00 a.m., defendant approached the Inn and informed Ross he wanted to rent a room. Ross unlocked the outside door and allowed defendant to enter the lobby. Ross noticed defendant “had a toboggan, a crutch, [and] he had one shoe on and one shoe off[.]” As Ross returned to the frontcounter in the lobby, defendant drew a semi-automatic pistol and demanded that she “give [him] the money and put it in a brown paper bag.” Frightened and believing defendant might shoot her, Ross complied. As she was doing so, defendant “jumped over the counter” and told her to “go through the cabinets and open all the doors[.]” Unable to find additional money, defendant directed Ross to go to the office. As they proceeded, defendant picked up Ross' purse, which contained sixty dollars, and began rummaging through it. When Ross begged him not to take all her money, defendant left twenty dollars in the purse.
    Once the pair reached the office, Ross informed defendant she could not open the safe. After unsuccessfully attempting to break into the safe and “rambl[ing] through everything” in the office, defendant tied Ross to a chair, pulled the telephone cord from the wall, and told her to stay seated for two minutes. Defendant thereupon fled the Inn with approximately $220.00 in cash.
    Defendant was subsequently arrested and charged with two counts of robbery with a dangerous weapon and one count of second degree kidnapping. Prior to trial, the State dismissed the second degree kidnapping indictment as well as one of the robbery with a dangerous weapon indictments. The trial court denied defendant's pretrial motion to suppress the in-court identification testimony of Ross. At trial and over defendant's objection, Ross testified she was “sure” defendant had committed the robbery. On 13 September 2004, the jury found defendant guilty of robbery with a dangerous weapon. After determining defendant had fifteen priorrecord points and prior record level V, the trial court imposed an active sentence of 133 to 169 months imprisonment. Defendant appeals.

    The issues on appeal are whether the trial court erred in: (I) denying defendant's motion to suppress the identification testimony of Ross; (II) denying defendant's motion to dismiss the armed robbery charge; (III) responding to a question of the jury regarding unanimity of its verdict; and (IV) sentencing defendant at prior record level V.
    Defendant first challenges the trial court's denial of his motion to suppress. He maintains identification of him by Ross as perpetrator of the robbery should have been excluded as having been tainted by an impermissibly suggestive photo lineup shown to Ross by law enforcement officers. We do not agree.
    After hearing voir dire testimony from Ross and Rocky Mount Police Department Detective T.G. Seighman (“Detective Seighman”), the trial court denied defendant's motion to suppress Ross' identification, stating:
        The court determines that the out-of-court identification procedure was not so impermissibly suggestive as to give rise to any very substantial likelihood of irreparable identification, and in the alternative, the court specifically finds that the procedure and the photographs were not impermissibly suggestive. And in addition, that notwithstanding anything to the contrary and in the alternative, that from the totality of the circumstances, the identification both out of court and in court was inherently reliable and not unreliable.
Although “reserv[ing] the right to make complete findings of fact[] . . . and conclusions of law,” the court dictated the following into the record:
        [Detective Seighman] met with . . . [Ross] . . . . He made [a] photo lineup identification procedure on January 23rd, '04, approximately 39 days or so after the alleged date of the robbery. [Detective Seighman] had two photo lineups, one was prepared by another officer, Sergeant Revis, [in] reference to another unrelated incident. [Defendant's] photograph was included in both. The photographs showed different appearances or likenesses of [defendant] based on different hairstyles. [Detective Seighman] specifically informed [Ross] that the suspect was not necessarily in the lineup. [Detective Seighman] did not in any way confirm, corroborate, or attempt to indicate to the witness that an identification was correct or that she had identified a person even suspected of the commission of the robbery. [Detective Seighman] did not, based upon the totality of the circumstances and all the evidence, . . . did not show prior to identification from lineups any photograph representing the video [of the robbery].

        . . . .

        In addition, [Ross] indicated that she was absolutely certain as to the identity in two separate photo identifications, each one containing [defendant's] photograph. [Detective Seighman] testified that in State's Exhibit 1, all persons shown in the lineup were light skinned black males. Regarding PX 1, or the first lineup, [Ross] testified that all persons had different hairstyles and that all were light skin in her perception. Regarding State's Exhibit 2, she indicated that all had similar hair styles.

        On each occasion of identification from the photo lineups [Ross] indicated a high degree of certainty. [Detective Seighman] described this as one hundred percent sure. [Ross] immediately identified the suspect from State's Exhibit No. 1, which was the firstphotographic lineup consisting of six photographs. All were of similar appearance so as not to be impermissibly suggestive. [Ross] also immediately identified the suspect from State's Exhibit No. 2, a second photograph lineup, from which the suspect was immediately identified as well and that also contained six photographs of similarly appearing persons and not appearing impermissibly suggestive.

        In addition, [Ross], after the immediate identification from the first photo lineup, indicated the suspect, being [defendant], who is now identified as the defendant in open court, but she immediately responded that the suspect's hair was different before [Detective Seighman] showed her the second photographic lineup.

        In addition, the court finds that [Ross] had ample opportunity, more than ample opportunity to observe the suspect during the commission of the robbery in that he was the only person in the [Inn]. She had to open the door to allow the suspect to enter the premises. There was adequate and sufficient lighting whereupon she could identify the suspect and his face and note facial features, as well as hair and hands. That she was in the suspect's presence for approximately thirty minutes, and certainly the court finds that that is sufficient time for her to make an identification. And that during this period of time her attention was focused entirely on the suspect and therefore there was an adequate basis for her to make the identification.
    Our review of a trial court's denial of a motion to suppress is “strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982) (citations omitted). “Indeed, an appellate courtaccords great deference to the trial court in this respect because it is entrusted with the duty to hear testimony, weigh and resolve any conflicts in the evidence, find the facts, and, then based upon those findings, render a legal decision[.]” Id. at 134, 291 S.E.2d at 619-20. Notwithstanding, “the trial court's conclusions of law must be legally correct, reflecting a correct application of applicable legal principles to the facts found.” State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997) (citation omitted).
    In the case sub judice, defendant asserts the photographic lineups were impermissibly suggestive and resulted in an irreparable misidentification at trial. However, defendant proffers no challenge to the sufficiency of the evidence underlying the trial court's findings of fact nor does he assign error to those findings. Accordingly, our review is limited to the propriety of the trial court's ultimate conclusions of law. See id.; State v. Campbell, 359 N.C. 644, 662, 617 S.E.2d 1, 13 (2005) (where defendant does not assign error to findings of fact following a suppression hearing, “the findings of fact are not reviewable, and the only issue before [the appellate court] is whether the conclusions of law are supported by the findings, a question of law fully reviewable on appeal”).
    Defendant's arguments track the two-fold nature of appellate review of pretrial identification procedures:
        First, we must determine whether an impermissibly suggestive procedure was used in obtaining the out-of-court identification. If this question is answered in the negative, weneed inquire no further. If it is answered affirmatively, the second inquiry we must make is whether, under all the circumstances, the suggestive procedures employed gave rise to a substantial likelihood of irreparable misidentification.

State v. Leggett, 305 N.C. 213, 220, 287 S.E.2d 832, 837 (1982) (citation omitted).
    Noting he “was the only one who appeared in both” photo lineups, defendant insists that “[c]onsciously or subconsciously the image of defendant appearing in both [photo lineups] signaled to [] Ross that [defendant] was the person law enforcement believed” committed the crime. However, in determining whether a pretrial identification procedure was impermissible, “[t]he proper test is whether in the totality of the circumstances [the] procedure [wa]s so unnecessarily suggestive and conducive to irreparable misidentification that it offends fundamental standards of decency and justice.” State v. Freeman, 313 N.C. 539, 544, 330 S.E.2d 465, 471 (1985) (citation omitted). Thus, “[t]he fact that a defendant's photograph is the only one common to two groups of photographs shown a victim is not sufficient, standing alone, to support a determination that pretrial photographic identification was conducted in an impermissibly suggestive manner.” Leggett, 305 N.C. at 222, 287 S.E.2d at 838.
    Examining the trial court's findings, we conclude that the totality of the pretrial identification procedures reflected therein “clearly indicates that the procedures were not impermissibly suggestive.” Id. First, both State's Exhibit 1 and State's Exhibit 2, the photographic lineup cards presented to Ross,contain photographs of six African-American males. Next, the individuals in State's Exhibit 2 are “similar appearing” and all have the same length and style of hair, while those in State's Exhibit 1, while also “similar appearing,” have differing hairstyles and lengths. Further, although defendant's photograph appears in both exhibits, Ross was shown State's Exhibit 2 only after “immediately” identifying defendant positively in State's Exhibit 1. Finally, as in Leggett, “[n]o suggestion was made to [Ross] that she pick any of the photographs.” Id. Indeed, Detective Seighman explicitly informed Ross “that the suspect was not necessarily in the lineup.” In light of these uncontested and binding findings, we hold the trial court did not err in concluding that the identification procedures used in the instant case were not impermissibly suggestive. See Cooke, 306 N.C. at 134, 291 S.E.2d at 619.   (See footnote 1) 
    Ordinarily, such a decision would end our inquiry. See Leggett, 305 N.C. at 220, 287 S.E.2d at 837. Addressing defendant's second argument, however, and assuming arguendo the trial court's findings were somehow inadequate to support its conclusion or that the identification procedures were in somerespect impermissibly suggestive, we do not believe that, “under all the circumstances, [any] suggestive procedures [which may have been] employed gave rise to a substantial likelihood of irreparable misidentification,” id., at trial. Our Supreme Court has held that
        [f]actors to be considered in making this determination are (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of the witness' prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and confrontation.

State v. Powell, 321 N.C. 364, 369, 364 S.E.2d 332, 335 (citations omitted), cert. denied, 488 U.S. 830, 102 L. Ed. 2d 60 (1988).
    In the case sub judice, when asked at trial whether she was “able to get a good look at” the perpetrator's face “during th[e] time that [she] w[as] dealing with him[,]” Ross answered, “Oh, yeah,” explaining she and the perpetrator “were very close together, and in the office, there is full light in the office.” After identifying defendant as the perpetrator of the crime, Ross testified she was “sure” of her identification and that there was no “question in [her] mind whatsoever.” When questioned regarding her identification of defendant from the photo lineup, Ross testified that “[a]s soon as [she] saw it, [she] knew who it was.” On cross-examination, Ross indicated defendant was “in [her] presence” for “30 minutes” during the robbery, and that “[i]t seemed like forever.” Although conceding she “c[ould]n't estimate” how many customers she might see during a single day in her job, Ross emphasized that defendant's “whole face stayed in [her] mind”following the robbery, and noted that “[o]nce you've been violated, you don't forget.”
    During the suppression hearing, Ross recounted that the robbery lasted “no more than thirty minutes” and that she was “able to notice the features of the person when he was in [her] presence[.]” Ross stated that it was “light enough” inside the Inn for her to see the suspect, and that the “lobby area [of the Inn] was all lit.” Ross further related that her attention was focused “[e]ntirely” upon the perpetrator during the robbery, and that she “could see his face, his hands, everything.” When asked “how far away was this person, this suspect, from you when this robbery was taking place[,]” Ross replied, “Well, I let him in the front door.” Further, Ross recalled she was “certain” defendant was the individual who robbed her when she picked his photographs from the photographic lineups. Finally, when asked to quantify the degree of certainty regarding her in-court identification of defendant, Ross replied, “[o]ne hundred percent.”
    In light of the foregoing, even assuming arguendo the identification procedures were in some respect “impermissibly suggestive,” any assertion by defendant that “irreparable misidentification” arose at trial must fail. See id. In sum, defendant's assignments of error regarding rejection of his motion to suppress are unavailing.
    Defendant next assigns error to the trial court's denial of his motion to dismiss the charge of robbery with a dangerous weapon. Although conceding a robbery occurred at the Inn on thedate in question, defendant insists the State offered insufficient evidence to sustain his conviction. Defendant's argument is unfounded.
    “In ruling on a motion to dismiss based on the insufficiency of the evidence, the trial court must determine whether there is substantial evidence of each element of the crime charged and that [the] defendant was the perpetrator.” State v. Roddey, 110 N.C. App. 810, 812, 431 S.E.2d 245, 247 (1993) (citation omitted). In determining whether “substantial evidence” exists, the trial court considers whether the State has produced “the amount of relevant evidence a reasonable mind might accept as adequate to support a conclusion.” Id. (citation omitted).
        [T]he trial court must view the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from it. If there is substantial evidence -- whether direct, circumstantial, or both -- to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.

State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 382-83 (1988) (citations omitted).
    According to defendant, the State failed to meet its burden at trial because it produced no physical evidence connecting defendant to the crime, but relied entirely upon the “fatally corrupted” and uncorroborated identification testimony of Ross. However, our courts have consistently applied “[t]he general rule . . . that the testimony of a single witness, if it embraces all elements of a crime or cause of action, is legally sufficient to take a case tothe jury.” 1 Brandis and Broun on North Carolina Evidence § 17 (6th ed. 2003). In Roddey, for example, this Court found the testimony and identification of the defendant by an armed robbery victim “clearly adequate to present substantial evidence that [the] defendant was the perpetrator” of the crime, 110 N.C. App. at 814, 431 S.E.2d at 248, notwithstanding inconsistencies in the victim's statement and “[t]he fact that no physical evidence was found.” Id. at 813, 431 S.E.2d at 248.
    The ruling in Roddey was consistent with prior decisions of our Supreme Court, which has observed that “'[w]here the commission of the crime is admitted or established, the testimony of the prosecuting witness, or of one witness, identifying [the] defendant as the perpetrator, carries the case to the jury regardless of the questionable character of the witness[.]'” State v. Shaw, 284 N.C. 366, 371, 200 S.E.2d 585, 588 (1973) (quoting 2 Strong's N.C. Index 2d, Criminal Law § 106, p. 658)); see also State v. Hanes, 268 N.C. 335, 339, 150 S.E.2d 489, 492 (1966) (evidence sufficient to submit charge of robbery to jury where “[n]o pocketbook was traced to defendant[,] [n]o money was traced to defendant[,]” and, except for the victim's uncorroborated testimony, no evidence was presented placing the defendant outside his home on the night of the crime); compare State v. Miller, 270 N.C. 726, 731, 154 S.E.2d 902, 905 (1967) (rule that credibility of witnesses is matter for the jury inapplicable “where 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, asto the physical conditions under which the alleged observation occurred”).
    Defendant neither claims nor does the record suggest an “inherently incredible,” id., identification by Ross, and thus the general rule is applicable to the facts of this case. Although no law enforcement official recovered the weapon allegedly used or the money obtained during the robbery, the description by Ross of the events of 19 December 2003 satisfied the State's burden in withstanding a motion to dismiss. Ross testified that an individual stole approximately $180.00 from the Inn and $40.00 from her, brandished a semi-automatic weapon while doing so, and pointed the weapon at her and forced her to give him the money. See Roddey, 110 N.C. App. at 813, 431 S.E.2d at 247 (“The elements of robbery include: (1) an unlawful taking or an attempt to take personal property from the person or in the presence of another, (2) by use or threatened use of a firearm or other dangerous weapon and (3) whereby the life of a person is endangered or threatened.”). Although Ross identified him at trial as the individual who committed these acts, defendant, in advancing this assignment of error, appears to be “ask[ing] that we disregard the time-honored tradition of the jury to serve as the trier of fact and to determine the credibility of the witnesses.” Id. at 814, 431 S.E.2d at 248. However, having determined supra that admission of the in-court identification of defendant by Ross was not error and that there was no argument or record evidence categorizing her identification of defendant as “inherently incredible,” see Miller,270 N.C. at 731, 154 S.E.2d at 905, we conclude her credibility was a question for the jury. See Shaw, 284 N.C. at 371, 200 S.E.2d at 588. Therefore, the trial court did not err by denying defendant's motion to dismiss the charge of robbery with a dangerous weapon.
    Defendant next assigns error to the trial court's response to a jury question regarding unanimity of its verdict. However, because review of the record reveals defendant failed to object at trial to the court's statement and has not asserted plain error in his appellate brief, we hold defendant has not properly preserved this issue for appeal.
    Fifteen minutes after the jury began its deliberations, the following colloquy occurred in open court:
        THE COURT: I've received a paperwriting indicating, “Question: Do all twelve of us have to agree guilty or not guilty?” Is this the question of the jury, so say you all, yes or no?

        THE JURY: Yes.

        THE COURT: The answer to that question is yes, you must agree unanimously. All twelve jurors must agree guilty or not guilty.

        . . . .

        FOREPERSON: So it's now our job to try to convince one another so all twelve of us think that either it's guilty or not guilty?

        THE COURT: Is this the question of the jury, so say you all?

        THE JURY: Yes.

        THE COURT: The answer to that question is also yes. Return to the jury room and await further instructions. Mr. Bailiff, collect the verdict sheet as the foreperson goes by.
        (The jury is not present in the courtroom)

        THE COURT: In light of these instructions, anything further from either party, request for additional instructions?

        DEFENSE COUNSEL: No, sir.

        THE STATE: No, Your Honor.

        THE COURT: Knock on the door and instruct the jurors to continue deliberations and return the verdict sheet.

Defense counsel thereafter interposed no objection to the trial court's instructions.
    Defendant's lack of objection to the additional instructions given by the trial court in response to the jury's inquiry constitutes a waiver of any contended error therein. See N.C.R. App. P. 10(b)(2) (2005) (“A party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto . . . , stating distinctly that to which he objects and the grounds of his objection[.]”).
    However, although failing to object to a jury instruction during a criminal trial, the defendant may also gain appellate review thereof by asserting plain error on appeal. N.C.R. App. P. 10(c)(4). In the latter instance, however, the defendant “must specifically and distinctly allege that the trial court's action amounted to plain error in order to have the error reviewed on appeal.” State v. Alston, 131 N.C. App. 514, 517, 508 S.E.2d 315, 318 (1998); N.C.R. App. P. 10(c)(4). In the case sub judice, defendant has not asserted plain error on appeal, nor does his appellate brief contain any attempt to satisfy his “burden ofshowing that the error constituted plain error, that is, (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) (citations omitted).
    In short, because defendant neither objected at trial to the alleged instructional error nor “specifically and distinctly,” Alston, 131 N.C. App. at 517, 508 S.E.2d at 318, alleged and contended plain error on appeal, we conclude this assignment of error has been waived. See N.C.R. App. P. 10(c)(4).
    Finally, defendant argues the trial court erred by sentencing him at prior record level V. Defendant claims entitlement to a new sentencing hearing based upon the alleged insufficiency of the evidence regarding his prior convictions. Defendant is mistaken.
    Before imposing a felony sentence, the trial court must first determine a defendant's prior record level by calculating the sum of the points assigned to the defendant's prior convictions. N.C. Gen. Stat. § 15A-1340.14(a) (2003). “There is no question that a worksheet, prepared and submitted by the State, purporting to list a defendant's prior convictions is, without more, insufficient to satisfy the State's burden in establishing proof of prior convictions.” State v. Eubanks, 151 N.C. App. 499, 505, 565 S.E.2d 738, 742 (2002) (citation omitted). However, a prior conviction may be proven by any of the following methods:
        (1) Stipulation of the parties.
        (2) An original or copy of the court record of the prior conviction.

        (3) A copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts.

        (4) Any other method found by the court to be reliable.

N.C.G.S. § 15A-1340.14(f). “The State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists.” Id.
    The following exchange occurred during sentencing:
        THE COURT: Is the State ready to pray judgment?

        THE STATE: Yes, Your Honor. His sentence worksheet is in another file in my office just down the hall.

        THE COURT: All right. Have you seen the worksheet, [defense counsel]? Have you seen it?


        THE COURT: Do you wish to be heard, [defense counsel]?

        DEFENSE COUNSEL: Just briefly, Judge. . . . I would ask the court to consider in light of the evidence that you heard, Judge, to consider the minimum presumptive sentence that the court can give in its discretion.

        . . . .

        THE COURT: Take this judgment, please. Let him stand.

        THE STATE: Your Honor, is there any question about his prior sentencing record?


        THE STATE: This is a Class D, it's a Level Vwith 15 prior record points, the defendant has stipulated to that record.

Defense counsel said nothing further at that point and the trial court proceeded to enter judgment. Defendant now contends the foregoing exchange did not establish a stipulation “to [his] prior convictions.” Defendant is mistaken.
    “[D]uring sentencing, a defendant need not make an affirmative statement to stipulate to his or her prior record level . . ., particularly if defense counsel had an opportunity to object to the stipulation in question but failed to do so.” State v. Alexander, 359 N.C. 824, 829, 616 S.E.2d 914, 918 (2005). Further, “counsel need not affirmatively state what a defendant's prior record level is for a stipulation with respect to that defendant's prior record level to occur.” Id. at 830, 616 S.E.2d at 918 (citations omitted). Rather, depending upon the circumstances, defense counsel's statements during sentencing may indeed constitute a stipulation to the defendant's prior record level even though failing to include that precise terminology. See, e.g., id. (defendant stipulated to convictions listed on State's worksheet where defense counsel “specifically directed the trial court to refer to the worksheet to establish that defendant had no prior felony convictions” and made statements indicating “not only that [he] was cognizant of the contents of the worksheet, but also that he had no objections to it”); State v. Mullican, 329 N.C. 683, 686, 406 S.E.2d 854, 855 (1991) (defendant stipulated to finding of aggravating factors where defense counsel “made a statement which was consistent with the statement of the prosecuting attorney” anddeclined “invitation . . . to object” when “the prosecuting attorney said he would summarize the State's evidence with the permission of the defendant”).
    Defendant herein contests neither the existence of the convictions contained on the State's “sentence worksheet” nor the propriety of the trial court's calculation of his record level. He elects instead to challenge the record as inadequate to establish a stipulation to the convictions set forth in the worksheet. However, as detailed above, defense counsel at sentencing acknowledged having seen the State's “sentence worksheet,” and responded in the negative when specifically asked whether “there [was] any question about [defendant's] prior sentencing record[.]” Further, counsel made no argument regarding the convictions listed on the sheet advanced by the State, and interjected no objection when the trial court stated “[t]his is a Class D, it's a Level V with 15 prior record points, the defendant has stipulated to that record.” Under the foregoing circumstances and the authorities cited above, defense counsel's conduct at sentencing “may reasonably be construed,” Eubanks, 151 N.C. App. at 506, 565 S.E.2d at 743, to “constitute[] a stipulation of [defendant's] prior record level pursuant to N.C. Gen. Stat. § 15A-1340.14(f)(1).” See Alexander, 359 N.C. at 830, 616 S.E.2d at 918. Accordingly, the trial court did not err in sentencing defendant as a prior record level V offender, and defendant's final argument is unavailing.
    In sum, we hold defendant received a trial free of prejudicial error.    No error.
    Judges WYNN and STEELMAN concur.
    Report per Rule 30(e).

Footnote: 1
    1 We acknowledge the trial court's order recites that it “specifically finds” the pretrial procedures were not impermissibly suggestive, and makes no reference to so concluding as a matter of law. Nonetheless, we treat the statement as a conclusion of law. See State v. Taylor, 155 N.C. App. 251, 260, 574 S.E.2d 58, 65 (2002) (conclusions of law reviewed de novo regardless of label applied by trial court), cert. denied, 357 N.C. 65, 579 S.E.2d 572 (2003); State v. Rogers, 52 N.C. App. 676, 681-82, 279 S.E.2d 881, 885 (1981) (“[f]indings of fact that are essentially conclusions of law will be treated as such upon review,” and will be “upheld where there are other findings upon which they are based”).

*** Converted from WordPerfect ***