An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-552


Filed: 21 February 2006


     v .                          Mecklenburg County
                                 Nos. 01 CRS 002156-57

    Appeal by defendant from judgments entered 6 September 2001 by Judge L. Oliver Noble in Mecklenburg County Superior Court. Heard in the Court of Appeals 11 January 2006.

    Attorney General Roy Cooper, by Special Deputy Attorney General Robert R. Gelblum, for the State.

    Anne Bleyman for defendant appellant.

    MCCULLOUGH, Judge.

    Defendant appeals from judgments entered 6 September 2001 after jury verdicts of guilty of conspiracy to commit robbery with a dangerous weapon and robbery with a firearm charges. We find no error.

    On 5 February 2001 a Mecklenburg County grand jury indicted defendant on the charges of conspiracy to commit robbery with a dangerous weapon against Sisay Zerihun and robbery with a dangerous weapon of Sisay Zerihun. A motion to suppress the pretrial identification of defendant was filed 3 May 2001 which was later denied by the court. The case against defendant proceeded to trial on 4 September 2001.    The evidence presented at trial by the State tended to show the following: On 21 December 2000 three young men entered a convenience store, Five Points Discount Beverage, Inc., owned by Mr. Sisayshe Zerihua (Mr. Zerihua) and Gedewon Kansa (Mr. Kansa) located in Charlotte, North Carolina. Mr. Zerihua was working that day and recognized two of the three men as regular customers. After idling in the store for a few minutes, Corey Davis (defendant) pulled a rifle from his jacket, pointed the rifle at Mr. Zerihua and stated, “Give me the money.” Defendant continued to point the rifle at Mr. Zerihua while the other two perpetrators, Maurice Polk and Charles Edward Toney (Mr. Toney), proceeded behind the store counter and demanded that he open the register. The two perpetrators behind the counter searched Mr. Zerihua and took the wallet from his pocket and $680.00 in cash from the store register. The entire time that the two perpetrators were behind the counter, defendant was pointing the rifle at Mr. Zerihua. After taking the money out of the register and the wallet, the three men fled the store. Mr. Zerihua then pressed the panic button and called the police.
    Shortly after the robbery occurred, police officers responding to the call observed someone run from behind a store and jump onto an unstopped bus in the vicinity of the convenience store. Officer Simpson followed the bus until the person he observed boarding the bus exited. When the man exited, Officer Simpson determined that he matched the description of one of the robbers and immediately arrested him. Mr. Zerihua was taken to view the person in custodyand upon seeing him stated, “'That is the guy that was behind the counter.'” The apprehended person was later identified as Mr. Toney. Officer Simpson testified at trial that at the time of apprehension Mr. Toney was searched and was found carrying loose bills in his pocket; however, Officer Simpson was unable to remember the amount of money or the denomination of the bills.
    In the ensuing days after the robbery, Mr. Zerihua questioned customers in order to obtain the names of two of the robbers whom he recognized as regular patrons of the convenient store. Mr. Zerihua inquired with customers familiarly associated with the suspects as to the suspect's names and was given the names Corey Davis and Maurice Polk. Detective Ledford found a person by the name of Corey Davis in the arrest database and prepared a photographic lineup which was shown to Mr. Zerihua on 5 January 2001. Mr. Zerihua immediately identified defendant, Corey Davis, as the person holding the rifle in the robbery. Mr. Zerihua also identified defendant at trial as the assailant who pointed the rifle at him during the robbery.
    At trial, defendant made a motion to suppress the pretrial identification by Mr. Zerihua on the basis that the pretrial identification was in violation of defendant's constitutional rights as it was based solely on hearsay. The motion to suppress was denied by the court. At trial, Mr. Zerihua testified as to his conversations with customers regarding the names of the robbers.
    At the close of the State's evidence, counsel for defendant made a motion to dismiss the charges; however, counsel fordefendant failed to make a motion to dismiss at the close of all the evidence. During deliberations, the jury submitted a note to the court asking the court what was the approximate amount of money found on Mr. Toney when he was arrested. After conferring with counsel, the trial judge brought the jury in and gave the following instructions:
            Members of the jury, I cannot answer that question for you. It is an evidentiary question which is a matter of evidence for you to recall. If there is any evidence about that matter, it is your duty to recall the evidence as it was presented. If there is no evidence about that matter, it is your duty to decide the case based upon the evidence that has been presented. That is all I can tell you about it, so you may be returned to your jury room to continue your deliberations.

The jury returned a verdict of guilty on the charges of conspiracy to commit robbery with a dangerous weapon and robbery with a firearm.
    Defendant now appeals.
    Defendant first contends on appeal that the trial court erred in denying the motion to suppress the pretrial identification by Mr. Zerihua where it was based on hearsay evidence and further allowing testimony regarding the pretrial identification. We disagree.
    A trial court is deemed to have discretion in determining whether to grant a motion in limine and absent an abuse of that discretion, the decision of the trial court will not be overturned.State v. Hightower, 340 N.C. 735, 746-47, 459 S.E.2d 739, 745 (1995). Defendant contends that the trial court abused its discretion in basing the following finding on hearsay evidence:
        [U]pon being shown the six pictures in State's Exhibit A, Mr. Zerihua identified immediately the Defendant in this case. That identification _ the inclusion of that photograph came as a result of Mr. Zerihua's somewhat zealous investigation within the community to identify the name of the person who robbed him. The face of the person who robbed him was well known to Mr. Zerihua, but he did not know the name. He worked hard to find out the name and he called the police and told them the name of this Defendant, Corey Davis. He had earlier told the police the name of Decorey Davis. The Detective found a picture of Corey Davis and put it in the line- up. He went directly to Mr. Zerihua who identified the Defendant, Corey Davis, from the six pictures presented.
    Defendant's argument is unpersuasive. First and foremost, a photographic lineup is an acceptable method by which to obtain a pretrial identification and is admissible as long as it is not so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377, 19 L. Ed. 2d 1247 (1968). Defendant does not contend though that the pretrial identification was impermissibly suggestive; instead defendant contends that it improperly rested on hearsay testimony. However, the policy of disallowing hearsay in a trial is to prevent the jury from hearing such evidence, not to disallow pretrial identifications from being based on such evidence. We note that the very essence of a pretrial motion is to prevent the jury from hearing potentially prejudicial evidence.Hightower, 340 N.C. at 746-47, 459 S.E.2d at 745. We decline to find that the rules prohibiting hearsay evidence at trial have any bearing on the methods by which a pretrial identification is made. Therefore, this assignment of error is overruled.
    Defendant further contends that it was error for the court to allow testimony at trial regarding the pretrial identification. This Court has held that a pretrial motion to suppress is not sufficient to preserve for appellate review the admissibility of evidence and therefore an objection must have been made at the time the evidence was offered at trial. State v. Golphin, 352 N.C. 364, 405, 533 S.E.2d 168, 198 (2000), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001), cert. denied, 358 N.C. 157, 593 S.E.2d 84 (2004). Even assuming that the objection was properly preserved for appellate review, there was no error in the admission of testimony regarding the pretrial identification.
    “'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2005). If an out-of-court statement is offered for a purpose other than to prove the truth of the matter asserted, then it is not hearsay and is admissible for the purpose offered. State v. Call, 349 N.C. 382, 409, 508 S.E.2d 496, 513 (1998), cert. denied, 534 U.S. 1046, 151 L. Ed. 2d 548 (2001). One such situation is when the statement explains the subsequent conduct of the person to which the statement is directed. State v.Coffey, 326 N.C. 268, 282, 389 S.E.2d 48, 56 (1990), cert. denied, 421 S.E.2d 360 (1992).
    In the instant case, the evidence was offered to explain the subsequent conduct of the police in placing defendant's picture in a photographic lineup. Though this issue is not raised on appeal and was not requested by defendant at trial, the trial court should have offered a limiting instruction to the jury in order to explain the purpose for which the evidence was offered. (“The admission of evidence which is competent for a restricted purpose without limiting instructions will not be held to be error in the absence of a request by the defendant for such limiting instructions.” Coffey, 326 N.C. at 286, 389 S.E.2d at 59 (1990)). However, there was no error in admitting the testimony for a purpose sanctioned under the Rules of Evidence and this Court. Therefore, this assignment of error is overruled.
    Next, defendant contends that the trial court erred in failing to find that there was a fatal variance in the indictment because the victim was improperly identified. We disagree.
    We note that while defendant did not raise this issue at trial, we nevertheless consider defendant's argument because “where it appears from the face of the indictment that the conviction and sentence are void, this Court will, of its own motion, arrest judgment.” Call, 349 N.C. at 424, 508 S.E.2d at 522 (1998). Where a variance exists between the name of a victim as it appears in the indictment and as substantiated by the evidence presented at trial,our Supreme Court has stated that “'[w]here an indictment charges the defendant with a crime against someone other than the actual victim, such a variance is fatal.'” Id. (citation omitted). However, in State v. Cameron, this Court held that where the record reveals that the victim's name as alleged in the indictment is “sufficiently similar” to the victim's name as evidenced at trial, and the proof at trial matched the indictment's allegations in all other respects, “defendant was not surprised or placed at any disadvantage in preparing his defense to the crimes charged in the indictment.” State v. Cameron, 73 N.C. App. 89, 92, 325 S.E.2d 635, 637 (1985), disc. review denied, 315 N.C. 592, 341 S.E.2d 31 (1986). Further, under the rule of idem sonans, meaning sounds the same, absolute accuracy in the spelling of names in connection with legal proceedings, even in felony indictments, is not required. State v. Wilson, 135 N.C. App. 504, 508, 521 S.E.2d 263, 265 (1999). Names are mere conduits to identify people and if the spelling used adequately identifies the victim and the defendant is not misled to his prejudice, he has no complaint. Id.
In the instant case, the indictment incorrectly identified the victim as Sisay Zerihun and it was later determined at trial that the correct name of the victim was Sisayshe Zerihua. The two spellings are sufficiently similar to identify the victim of the crime. See State v. Isom, 65 N.C. App. 223, 226, 309 S.E.2d 283, 285 (1983) (holding that the names “'Eldred,'” “'Elred,'” and “'Elton'” were sufficiently similar to fall within the doctrine of idem sonans and that the variance between the indictment and theproof at trial was wholly immaterial). Further, it was clear from the evidence at trial that the person alleged in the indictment was in fact the victim in this case. Mr. Zerihua testified that he is a co-owner of Five Points Discount Beverage, Inc., which was the store in which the robbery occurred, and moreover that he was working as store clerk at the time of the incident. He testified that defendant pointed a gun at him while the other two accomplices took his wallet and the money from the register. Mr. Zerihua identified defendant in the photographic lineup shown to him by police officers and further identified defendant as one of the perpetrators at trial. Where defendant and the jury were certain of the identity of the victim, the variance between the indictment and the evidence at trial is immaterial and therefore this assignment of error is overruled.
    Defendant further contends that the trial court erred in failing to exercise discretion as required by N.C. Gen. Stat § 15A- 1233(a) in responding to a jury request to review evidence during deliberations. We disagree.
The decision to grant or deny a jury request for a review of evidence is committed to the discretion of the trial court. N.C. Gen. Stat. § 15A-1233(a) (2005). We have held that the trial court errs where it does not exercise its discretion in determining whether the jury should be allowed to review the evidence introduced at trial. State v. Ashe, 314 N.C. 28, 331 S.E.2d 652(1985). However, we conclude that this principle has no applicability here.
    In the instant case, the trial judge received a request from the jury during deliberations asking the court what amount of money was found on Mr. Toney when he was arrested. The trial judge responded, “I cannot answer this question for you.” The judge further instructed the jury that this was a matter of evidence which they themselves must recall and required that they rely on their own recollection of the evidence and apply it properly. It cannot be said that this was error. See, e.g., State v. Lawrence, 352 N.C. 1, 27-28, 530 S.E.2d 807, 824 (2000) (concluding that the trial court did not impermissibly deny the jury's request to review certain testimony based solely on the unavailability of the transcript where the trial court instructed the jury as follows: “[M]embers of the jury, it is your duty to recall the evidence as the evidence was presented. So you may retire and resume your deliberation.”), cert. denied, 531 U.S. 1083, 148 L. Ed. 2d 684 (2001).
    The transcript is devoid of any testimony as to the amount of money found on Mr. Toney when he was arrested. Officer Simpson could not recall the amount during his testimony and the State was unable to refresh his recollection. Therefore, the jury's question related to a point for which no direct evidence had been introduced. Assuming that the jury's request was, in effect, a request to review the arresting officer's testimony, the trial court did not abuse its discretion as to whether to allow the juryto review evidence on a point, when no such evidence was in the record. State v. Porter, 340 N.C. 320, 329-30, 457 S.E.2d 716, 720-21 (1995). Therefore, this assignment of error is without merit.
    Lastly, defendant contends that he received ineffective assistance of counsel where his attorney failed to make a motion to dismiss at the close of all the evidence. We disagree.
    “A defendant's right to counsel includes the right to the effective assistance of counsel.” State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247 (1985) (citation omitted). When a defendant attacks his conviction on the basis that counsel was ineffective, he must show that his counsel's conduct fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, reh'g denied, 467 U.S. 1267, 82 L. Ed. 2d 864 (1984). In order to meet this burden defendant must satisfy a two-part test.
            “First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”

Braswell, 312 N.C. at 562, 324 S.E.2d at 248 (citation omitted). “Thus, if a reviewing court can determine at the outset that there is no reasonable probability that in the absence of counsel'salleged errors the result of the proceeding would have been different, then the court need not determine whether counsel's performance was actually deficient.” Braswell, 312 N.C. at 563, 324 S.E.2d at 249. After examining the record we conclude that there is no reasonable probability that any of the alleged errors of defendant's counsel affected the outcome of the trial.
    Counsel for defendant made a motion to dismiss at the close of the State's evidence which was denied by the trial court. There is no evidence that any probability exists that the trial court would have granted the same motion to dismiss at the close of all the evidence, as the State had presented substantial evidence on all elements of the crimes charged. Therefore, this assignment is without merit.
    Accordingly, the trial court did not err in denying the motion to suppress the pretrial identification of defendant, in finding no fatal variance in the indictment, or in instructing the jury after a request to review evidence. Further, defendant did not receive ineffective assistance of counsel where counsel failed to renew the motion to dismiss at the close of all the evidence.
    No error.
    Judges ELMORE and LEVINSON concur.
    Report per Rule 30(e).

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