Appeal by defendant from judgment entered 9 May 2005 by Judge
Richard Doughton in Gaston County Superior Court. Heard in the
Court of Appeals 11 September 2006.
Attorney General Roy Cooper, by Assistant Attorney General Amy
Y. Bason, for the State.
Haral E. Carlin for defendant-appellant.
Defendant Joshua Douglas Gilbert appeals his convictions for
attempted robbery with a dangerous weapon, possession of a firearm
by a felon, and possession of marijuana. On appeal, defendant
primarily argues that the trial court erred by admitting into
evidence a show-up identification that was impermissibly
suggestive. Based on the witness' opportunity to view defendant,
the witness' degree of attention, the accuracy of the initial
description, the level of the witness' certainty, and the shortness
of the time between the crime and the identification, we hold that
the trial court properly denied the motion to suppress.
The State's evidence tended to show the following facts. On13 December 2004, James Scarborough, a cab driver for AAA Taxi, was
dispatched between 7:30 a.m. and 8:00 a.m. to a residence on Old
Mill Road in Gaston County. When Scarborough arrived, he saw a
young white male, whom he later described as being between 5'6" and
5'7" tall and weighing between 150 and 170 pounds, waiting in the
driveway wearing an orange pullover, blue jeans, silver-rimmed
sunglasses, and a dark blue or black toboggan. The man had a
"five-day growth" of facial hair.
After sitting down beside Scarborough in the front passenger's
seat of the cab, the man pointed a nickel-plated handgun at
Scarborough and told him to "give it up." When Scarborough said
that he had no money because this was his first fare of the
morning, the gunman apologized, exited the cab, and walked across
the street. Scarborough followed the assailant in his car until he
lost sight of him and then called the AAA dispatcher to report the
incident. He estimated the man was in his cab for five minutes.
Gaston County Police Sergeant Dean Henderson responded to the
scene within ten minutes. After hearing Scarborough's description
of his assailant, Henderson took him to 4633 Old Mill Road to view
a potential suspect, Chad Funderburk, who lived at that address.
Upon seeing Funderburk, Scarborough told Henderson that he was not
the gunman. Funderburk suggested to Henderson another possible
suspect, who lived at 4707 Misty Hill Lane. That address was
approximately 100 yards from the crime scene and in the same
direction that the assailant had walked.
The police took Scarborough to that address. Defendant'smother, Beverly Gilbert ("Gilbert"), answered the door and said
that defendant was not at home. She nevertheless allowed the
officers to enter the residence to look for her son. In
defendant's bedroom, Henderson observed an open gun case and "a box
of Winchester .45 automatic 230 grain bullets" sitting on a chest
of drawers. Henderson then discovered defendant in Gilbert's
bedroom on the upper level of the residence. While patting
defendant down for weapons, Henderson found a bag of marijuana in
his front left pocket.
With defendant seated in the living room, Henderson asked to
have Scarborough brought into the room "to see if it was or was not
the gentleman that robbed him." Scarborough immediately recognized
defendant and identified him to the police as the person who had
attempted to rob him. In addition, he identified the toboggan and
sunglasses lying on a living room table as the ones worn by
defendant during the robbery attempt. Later, Scarborough also
identified defendant as the robber in open court.
In the course of a subsequent search of Gilbert's residence,
police also found an orange fleece-type pullover jacket on the
floor of a closet near defendant's bedroom. The jacket matched the
description of defendant's clothing given by Scarborough. In a
dresser drawer of Gilbert's upstairs bedroom, where defendant had
been discovered, police also found a loaded chrome Taurus .45
caliber semiautomatic handgun. The gun closely resembled the gun
Scarborough had said his assailant used. In addition, following
his arrest on the day of the crime, defendant asked Officer SandraFisher on three separate occasions "how could he be charged with
armed robbery when he didn't get nothing; shouldn't it be attempted
Defendant was indicted on 7 February 2005 for attempted
robbery with a dangerous weapon, marijuana possession, and
possession of a firearm by a felon. On 15 April 2005, a jury
convicted defendant on all charges, and the trial judge sentenced
defendant to a term of 103 to 133 months imprisonment.
Motion to Suppress
On appeal, defendant first challenges the trial court's denial
of his motion to suppress Scarborough's identification testimony,
arguing that the "show-up" conducted in Gilbert's living room was
impermissibly suggestive. Although the police's display of a
single suspect to an eyewitness is generally disfavored, such
procedures "are not per se
violative of a defendant's due process
rights." State v. Turner
, 305 N.C. 356, 364, 289 S.E.2d 368, 373
In evaluating the propriety of a show-up identification under
the Due Process Clause, this Court must determine if the totality
of the surrounding circumstances created a "substantial likelihood
of irreparable misidentification" by the witness. Id.
unnecessarily suggestive show-up identification does not create a
substantial likelihood of misidentification where under the
totality of the circumstances surrounding the crime, the
identification possesses sufficient aspects of reliability." Id.
The reliability of a show-up identification is determined byexamining the following five factors:
(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, cert.
, 488 U.S. 830, 102 L. Ed. 2d 60, 109 S. Ct. 83 (1988).
An examination of the circumstances of Scarborough's
identification of defendant indicates no significant likelihood of
misidentification under Powell
. With respect to the first factor,
the evidence showed Scarborough had ample opportunity to observe
his assailant. He saw the young man standing in the driveway when
he arrived at Old Mill Road and then was seated next to him in the
front seat of the cab for approximately five minutes while
defendant was attempting to rob him. See State v. Lawson
, 159 N.C.
App. 534, 538, 583 S.E.2d 354, 357-58 (2003) (upholding
identification where store clerk observed defendant's face while
being held at gunpoint for approximately twenty-five seconds).
Scarborough also heard his voice and watched him as he ran from the
cab. See State v. Capps
, 114 N.C. App. 156, 163, 441 S.E.2d 621,
625 (1994) (upholding a challenged identification in which the
witness pursued the perpetrator).
The second criteria, degree of attention, is met by
Scarborough's testimony that during the five minutes when the
assailant was in the cab, the assailant was turned toward
Scarborough holding a semi-automatic handgun, and Scarborough waslooking at the assailant and his gun. Further, Scarborough pursued
the assailant through the neighborhood. This evidence suggests
that, during his observations of defendant, Scarborough's attention
was directly focused on his assailant.
Turning to the third Powell
factor, while Scarborough's
description of his assailant was fairly general in providing his
sex, race, and approximate height and weight, he also included
distinctive details about defendant's clothing, gun, and facial
hair. Inasmuch as Scarborough's overall description substantially
matched defendant, we deem it sufficiently reliable to support the
identification. See State v. Richardson
, 328 N.C. 505, 512, 402
S.E.2d 401, 405 (1991) (admitting identification when witness
description included clothing and approximate height and weight of
Scarborough's certainty in identifying defendant _ the fourth
criteria _ also weighs in favor of reliability. We find it
significant that, prior to identifying defendant, Scarborough
exonerated the first suspect developed by police at a similarly-
conducted show-up at the Funderburk house. Moreover, we note that
defendant was not displayed to Scarborough in handcuffs, in the
back of a patrol car, or in any other manner suggestive of his
guilt. Finally, with respect to the fifth criteria, the
performance of the show-up less than one hour after the crime
further bolsters the reliability of the identification. See id.
(upholding admission of an identification that occurred within
three hours of the initial sighting). In sum, we hold that the totality of the circumstances
indicate that Scarborough's identification possessed sufficient
reliability that there is not a substantial likelihood of
misidentification. Accordingly, we hold that the trial court did
not err by denying defendant's motion to suppress and admitting
Scarborough's identification of defendant into evidence.
Amendment of Indictment
Defendant next contends that the trial court erred by allowing
the prosecutor to amend the indictment charging him with possession
of a firearm by a convicted felon under N.C. Gen. Stat. § 14-415.1
(2005). The indictment in this case originally alleged that
defendant was a felon based on a prior conviction on 28 February
2001 in Gaston County Superior Court for the Class F felony of
assault inflicting serious bodily injury committed on 20 June 1999.
The conviction was further identified by Superior Court file number
99 CRS 20646. At trial, over defendant's objection, the State
sought to amend the indictment to allege that the prior conviction
occurred on 17 October 2002 and was for the Class E felony of
assault with a deadly weapon inflicting serious injury. The
amendment did not change the date that the prior offense was
committed or the file number, 99 CRS 20646, for the conviction.
The trial judge asked counsel for the defendant if he and his
client were aware that defendant had been "convicted of a felony
assault on that file number," and counsel acknowledged that they
were aware. Counsel further conceded that he and his client were
"not substantially surprised" by the change sought by the State. On appeal, however, defendant argues that, by changing the nature
and felony classification of the prior conviction alleged in the
indictment as well as the alleged date of conviction, the amendment
"materially and substantially altered the indictment," in violation
of N.C. Gen. Stat. § 15A-923(e) (2005).
N.C. Gen. Stat. § 15A-923(e) provides that "[a] bill of
indictment may not be amended." This statute, however, has been
interpreted to forbid only those changes "'which would
substantially alter the charge set forth in the indictment.'"
State v. Price
, 310 N.C. 596, 598, 313 S.E.2d 556, 558 (1984)
(quoting State v. Carrington
, 35 N.C. App. 53, 58, 240 S.E.2d 475,
478, appeal dismissed and disc. review denied
, 294 N.C. 737, 244
S.E.2d 155 (1978)
). An indictment must provide "sufficient detail
to put the defendant on notice as to the nature of the crime
charged and to bar subsequent prosecution for the same offense in
violation of the prohibitions against double jeopardy." State v.
, 147 N.C. App. 693, 695-96, 556 S.E.2d 339, 342 (2001).
"A change in an indictment does not constitute an amendment where
the variance was inadvertent and defendant was neither misled nor
surprised as to the nature of the charges." State v. Campbell
N.C. App. 531, 535-36, 515 S.E.2d 732, 735, disc. review denied
351 N.C. 111, 540 S.E.2d 370 (1999).
This Court has already held, with respect to an indictment
charging a defendant with possession of a firearm by a felon, that
a change in the date of the prior felony conviction is not a
material alteration of the indictment, inasmuch as the date of theprior conviction is mere surplusage. See State v. Inman
, __ N.C.
App. __, __, 621 S.E.2d 306, 309 (2005) ("[T]he date of a
defendant's prior conviction is immaterial so long as defendant is
sufficiently apprised of the conduct for which he is being
indicted."). Likewise, a change in the felony classification of
the prior conviction does not materially alter an indictment
charging a violation of N.C. Gen. Stat. § 14-415.1. See Inman
N.C. App. at __, 621 S.E.2d at 309 ("'[T]he provision of [N.C. Gen.
Stat. §] 14-415.1(c) that requires the indictment to state the
penalty for the prior offense is not material and does not affect
a substantial right' because a defendant 'is no less apprised of
the conduct which is the subject of the accusation than he would
have been if the penalty for the prior conviction had been included
in the indictment.'" (quoting State v. Boston
, 165 N.C. App. 214,
218, 598 S.E.2d 163, 166 (2004))).
The gravamen of a charge under N.C. Gen. Stat. § 14-415.1 is
the present possession of a gun by one previously convicted of a
felony. Therefore, the fact that defendant's prior felony
conviction was for a type of felonious assault different from that
originally alleged in the indictment does not substantially alter
the instant offense of unlawful possession of a firearm. Moreover,
the indictment properly notified defendant of the superior court
file number corresponding to the prior conviction, as well as the
date he committed the prior crime. See State v. Lewis
, 162 N.C.
App. 227, 285, 590 S.E.2d 318, 324 (2004) (upholding a habitual
felon conviction even though the date and county of priorconviction were incorrect on the original indictment).
Further, defendant acknowledged to the trial court that the
indictment provided notice of the particular prior conviction at
issue and that he was not misled or surprised by the State's
amendment. Accordingly, because the amendment neither
substantially altered the charge contained in the indictment, see
State v. Brinson
, 337 N.C. 764, 767, 448 S.E.2d 822, 824 (1994)
(upholding a conviction despite an amendment to the indictment
changing the type of deadly weapon used), nor surprised or
otherwise prejudiced defendant's ability to defend the charge, see
State v. McNair
, 146 N.C. App. 674, 677, 554 S.E.2d 665, 668 (2001)
(holding that defendant could not have been "misled or surprised"
by an amendment correcting typographical errors as to the victim's
name in the indictments), this assignment of error is overruled.
Insufficiency of the Evidence
In his remaining argument, defendant challenges the trial
court's denial of his motion to dismiss the charge of robbery with
a dangerous weapon based on the insufficiency of the evidence. In
reviewing the denial of a defendant's motion to dismiss, we must
determine whether the evidence, viewed in the light most favorable
to the State, would allow a reasonable jury to find the defendant
guilty of each essential element of the charge beyond a reasonable
doubt. State v. Trull
, 349 N.C. 428, 447, 509 S.E.2d 178, 191
(1998), cert. denied
, 528 U.S. 835, 145 L. Ed. 2d 80, 120 S. Ct. 95
Under N.C. Gen. Stat. § 14-87 (2005), "an armed robbery isdefined as the taking of the personal property of another in his
presence or from his person without his consent by endangering or
threatening his life with a firearm, with the taker knowing that he
is not entitled to the property and the taker intending to
permanently deprive the owner of the property." State v. May
N.C. 644, 649, 235 S.E.2d 178, 182, cert. denied
, 434 U.S. 928, 54
L. Ed. 2d 288, 98 S. Ct. 414 (1977). An attempted armed robbery is
complete when a person with the requisite intent to deprive another
of property commits an overt act calculated to achieve that end.
State v. Miller
, 344 N.C. 658, 667, 477 S.E.2d 915, 921 (1996).
Here, defendant contends that the State failed to establish
the non-consensual element of the taking, arguing that "[t]he State
never asked Scarborough [whether] the attempt to rob him or take
cash from his presence was without his consent." We hold, however,
that the evidence that defendant made his demand for Scarborough to
"give it up" while pointing a .45 caliber handgun at him was
sufficient to support a reasonable inference that defendant
attempted to take Scarborough's property non-consensually by the
use or threatened use of a dangerous weapon. The trial court,
therefore, properly denied defendant's motion to dismiss.
Chief Judge MARTIN and Judge BRYANT concur.
Report per Rule 30(e).
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