An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-1683


Filed: 3 October 2006


    v.                        Guilford County
                            Nos. 03 CRS 105293 - 105294

    Appeal by defendant from judgment entered 21 July 2005 by Judge Anderson D. Cromer in Guilford County Superior Court. Heard in the Court of Appeals 2 October 2006.

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

    Winston & Maher, by Thomas K. Maher, for defendant-appellant.

    TYSON, Judge.

    Kevin Blakely McEwen (“defendant”) appeals from judgment entered after a jury found him to be guilty of first-degree rape and first-degree sexual offense. We find no error.

I. Background
A. State's Evidence
    The State's evidence tended to show that after midnight on 30 April 2003 defendant acted in concert with Bobby Wall (“Wall”), Kenny Roberts (“Roberts”), and Keith Watson (“Watson”) to burglarize a house located at 708 Willoubar Terrace in High Point, North Carolina. The defense did not contest evidence that the house's four occupants, Aaron Bodenhamer (“Bodenhamer”), Joshua Starnes (“Starnes”), Marcie Devinney, and the victim were robbed atgunpoint during the incident. The victim was forced into a bathroom by one of the gunmen and subjected to non-consensual cunnilingus and vaginal intercourse. The issue placed before the jury was the identity of the victim's assailant.
    Bodenhamer testified three of the men came to the front porch of his residence and asked to purchase marijuana. After Bodenhamer returned to the door with the marijuana, the men threatened him with a handgun, pushed him into the house, and placed a towel over his head. The intruders ordered Starnes and the victim to put their faces down into the living room couch. A gunman kicked open the door to Devinney's room and ordered her and Bodenhamer to lie on her bed with their faces down. After taking money and other valuables from the occupants, two of the robbers left the house. The man who had threatened Bodenhamer and Devinney with the gun stayed in the house, yelling to his associates not to leave without him. He forced the victim into the bathroom adjoining to her bedroom and sexually assaulted her. When the gunman left the house, the victim telephoned her mother. The victim, along with Devinney and the victim's mother, went to the emergency room at High Point Regional Hospital. A sexual assault nurse examiner administered a rape kit to the victim and collected, inter alia, a DNA scraping from the victim's cheek, swabs from her vagina and thighs, and the panties she wore immediately after the rape.
    The victim identified defendant before the jury as the man who forced her into the bathroom and raped her. The victim based her identification on the sound of defendant's voice in the courtroom. She characterized her attacker as having “a little bit” of a New York accent. Devinney also described the gunman who kicked in her bedroom door as having “a northern accent.” Bodenhamer testified that the gunman who took the victim into the bathroom “sounded like he was from up North[,]” and described him as “a stocky guy, light- skinned” and “[b]ald.”
    Wall testified for the State after pleading guilty to four counts of robbery with a dangerous weapon. Wall knew defendant by the nickname “New York” and had been introduced to defendant by Watson “a couple of months” before the incident. According to Wall, defendant drove with Roberts and Watson to Willoubar Terrace on 30 April 2003 looking for marijuana. When they arrived, defendant and Watson went to the front door of the house, while Roberts went around the back. Defendant and Watson carried guns. Wall stayed in the car with the door open watching them. When an occupant appeared at the door, defendant drew his gun and the group entered the house. Wall estimated that Roberts and Watson stayed inside the house for ten to fifteen minutes, emerging with a safe or box and probably some marijuana. Defendant remained in the house “[a]bout 15, 10 minutes longer” than Watson and Roberts before returning to the car and driving Wall home.
    High Point Police Officer Shawn Hosier (“Officer Hosier”) took statements from the four victims on the morning of 30 April 2003, but was unable to identify any suspects until he was assigned to investigate the later slaying of Roberts in October 2003. In the course of the Roberts's homicide investigation, Officer Hosierspoke to Wall, who ultimately provided an account of the Willoubar Terrace robberies consistent with his trial testimony. Although Wall identified defendant only as “New York,” he provided Officer Hosier with a physical description of defendant and his car and identified the neighborhood where defendant lived. Officer Hosier determined defendant's identity through motor vehicle records, after locating his car in the neighborhood described by Wall. When Officer Hosier showed Wall defendant's photograph, Wall confirmed the individual's identity as “New York.”
    Officer Hosier arrested defendant in November 2003. Defendant initially claimed to have no knowledge of the events at Willoubar Terrace, but later admitted that“he was the driver of the vehicle that night” and “expected to get a portion of the proceeds” of the robbery. He denied entering the house or committing a sexual assault. Hosier obtained warrants for DNA samples from the three surviving suspects: Wall, Watson, and defendant.
    A forensic serologist and DNA analyst from the North Carolina State Bureau of Investigation (“SBI”) testified that spermatozoa and an amylase indicative of saliva were found on the vaginal smears and on the panties in the victim's rape kit. DNA analysis revealed a “mixture of two people” on both the vaginal swabs and the victim's panties. The predominant DNA profile in the mixture matched the victim. Although the analyst excluded Watson and Wall as potential sources of the second DNA profile in the mixture, the SBI could not exclude defendant “as the contributor of the weaker profile.”    An expert in genetics and statistics from North Carolina State University testified that it was “1.6 billion times more likely” that defendant, rather than an unknown person, contributed the second DNA profile to the mixture found on the victim's vaginal swabs and on her panties.
B. Defendant's Evidence
    Defendant testified he was born in Brooklyn, New York and lived there until moving to North Carolina at twenty-one years of age. He acknowledged pleading guilty to burglary, robbery, and conspiracy charges arising from the incident at Willoubar Terrace, but claimed that his role was limited to driving the getaway car. He denied either entering the residence or raping the victim.
    Defendant testified he drove Watson, Roberts, and Wall to the Five Points neighborhood on 30 April 2003, looking for marijuana. Unable to find drugs at this location, Watson directed defendant to drive to Willoubar Terrace. As defendant drove, his passengers discussed committing a robbery. Defendant expected to be given some of the marijuana taken in exchange for driving the men. Defendant claimed he remained inside his car during the incident and was unable to see where his co-defendants went after they exited his car. The three men returned to the car as a group five or ten minutes later and said nothing about what had happened in the house. Defendant drove away from the scene and received “a dime bag” of marijuana from the others. At the time of his arrest, defendant denied his involvement in the crimes because he no longer interacted with any of the participants and “really didn'tremember.” He later recalled the incident and told Officer Hosier what he knew.
    Defendant was found guilty by a jury of first-degree rape and first-degree sexual offense. The trial court consolidated the offenses for judgment and sentenced him to an active prison term of 240 to 297 months. Prior to trial, defendant entered a guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25, 37-39, 27 L. Ed. 2d 162, 171-72 (1970), to additional charges of burglary, conspiracy to commit armed robbery, and four counts of armed robbery arising from the same incident. After announcing defendant's sentence for the rape and sexual assault, the trial court sentenced defendant to an additional consecutive term of sixty-four to eighty-six months for the offenses covered by his Alford plea. Although defendant gave notice of appeal in open court, we note his appeal is taken only from the judgment entered upon the guilty verdicts in the rape [03 CRS 105293] and sexual offense [03 CRS 105294] charges.
II. Issue
    Defendant claims the trial court erred in denying his motion to suppress the results of a photographic lineup presented to State's witness Maurice Rogers (“Rogers”) by Officer Hosier in December 2003.
    The record on appeal includes additional assignments of error not addressed in defendant's brief. Pursuant to N.C.R. App. P. 28(b)(6), we deem them to be abandoned.
III. Motion to Suppress
A. Standard of Review
    In denying defendant's motion to suppress, the trial court concluded nothing was “impermissibly suggestive about the organization of the lineup and the way it was presented and how it was presented to Maurice Rogers.” The trial court found Rogers's opportunity to observe the men, the accuracy of his description of at least one of them, and the certainty with which he identified defendant sufficient to withstand constitutional scrutiny. The court also found the span of time between Rogers's observation of the men and the lineup did not undermine the admissibility of the identification. The trial court noted that the circumstances surrounding the identification were “ripe for cross-examination in any way, shape, or form that the defendant sees fit.”
    Review of the denial of a motion to suppress is “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). Absent a material conflict in the evidence at the suppression hearing, the trial court need not enter findings of fact to support its ruling. State v. Vick, 341 N.C. 569, 580, 461 S.E.2d 655, 661 (1995). “[T]he necessary findings are implied from the admission of the challenged evidence.” Id.
    Under constitutional principles of due process, a witness's pretrial identification of the defendant is inadmissible “'wherethe facts reveal a pretrial identification procedure so impermissibly suggestive that there is a very substantial likelihood of irreparable misidentification.'” State v. Pinchback, 140 N.C. App. 512, 518, 537 S.E.2d 222, 225-26 (2000) (quoting State v. Harris, 308 N.C. 159, 162, 301 S.E.2d 91, 94 (1983)). Assessing the admissibility of such evidence requires a two-part analysis. State v. McCree, 160 N.C. App. 19, 24, 584 S.E.2d 348, 352, appeal dismissed and disc. rev. denied, 357 N.C. 661, 590 S.E.2d 855 (2003). “We must first determine whether the identification procedures at issue were impermissibly suggestive. Only if the procedures were impermissibly suggestive must we then move to the second part of the inquiry and determine whether the procedures created a substantial likelihood of irreparable misidentification.” Id. The determination of the existence of a substantial likelihood of irreparable misidentification should be based upon the totality of the circumstances, including a consideration of whether: “1) [t]he 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; 4) the level of certainty demonstrated at the confrontation; and 5) the time between the crime and the confrontation.” State v. Pigott, 320 N.C. 96, 99-100, 357 S.E.2d 631, 633-34 (1987).
B. Analysis
    At trial, Rogers testified he stopped briefly at 708 Willoubar Terrace on 30 April 2003. As he was leaving, he passed two men on the front porch and called Bodenhamer to the door. Rogers wasshown by the State a series of four photographic lineups prepared by Officer Hosier. Rogers identified defendant as one of the two men he observed on Bodenhamer's porch on 30 April 2003.
    At the pre-trial suppression hearing, Officer Hosier testified he interviewed Rogers within hours after the robberies and sexual assault at 708 Willoubar Terrace occurred. Rogers told Officer Hosier that he had encountered two “baldheaded” black males standing on Bodenharmer's front porch as he was leaving the house “right around midnight” on 30 April 2003. One of these men, whom Rogers described as “5'11”, with a light skin complexion[,]” asked him if anyone in the house had marijuana. Rogers called Bodenhamer to the front door telling him, “there's somebody here to see you.” As Rogers left the scene, he saw “a third male on the street, wearing a gray windbreaker with a “hoodie.” He described that male as 5'6[”] in height . . . with a goatee.”
    Having identified defendant, Rogers, Wall, and Watson as suspects in the case, Officer Hosier prepared four photographic lineups each containing one suspect and presented them to Rogers on 9 December 2003, as follows:
        I had all the lineups contained in one folder. I instructed Mr. Rogers that there had been an arrest in this case, and I wished to show him lineups to see if he could identify anybody he may have seen when he exited out of the residence. I explained to him again the fact that hairstyles can change, facial hair can change from when the photograph was taken to when he actually saw this person or persons. I then asked him if he could identify somebody, to do so. If not, then he was not compelled to identify anybody.

Rogers identified defendant's picture from a lineup of sixphotographs, telling Officer Hosier that “he remembered the shape of his face and the shape of his head and jaw line.” Rogers did not identify any other person from the four lineups.
    Rogers testified he observed two males standing on the front porch of Bodenhamer's residence on the morning of 30 April 2003, and identified defendant as “one of the guys that was on the porch that night” in a photographic lineup presented by Officer Hosier in December 2003. Officer Hosier referred to the incident on 30 April 2003 before displaying the photographs, but did not tell Rogers “anything about who [he was] looking for.” Rogers testified that Officer Hosier instructed him to view the lineups as follows: “He was going to show me six pictures. If I didn't see nobody on it, then don't mark nothing.” Rogers could not recall how many lineups he viewed. Rogers selected only defendant's photograph and recognized him by “the structure of his head, [and] how his head was built.” On cross-examination, Rogers explained that although there was no light source on the front porch, the porch was illuminated by an interior light in the front room of the house. Rogers estimated that he was on the porch only for a few seconds. Defendant offered no evidence at the suppression hearing.
C. Impermissibly Suggestive
    Defendant argues Rogers's seconds-long observation of the two men on the darkened porch was insufficient as a matter of law to allow him to make a reliable identification of either man seven months later. Defendant faults Officer Hosier for informing Rogers that an arrest had been made in the case prior to showing him thelineups. Defendant also argues Rogers “simply picked a photograph of someone who reminded him of someone he knew.”
    Defendant failed to object to the evidence of Rogers's photographic identification at trial, as required to preserve the denial of his motion in limine for appellate review. State v. Grooms, 353 N.C. 50, 65, 540 S.E.2d 713, 723, cert. denied, 534 U.S. 838, 151 L. Ed. 2d 54 (2000). Rule 103(a)(2) of the North Carolina Rules of Evidence was amended to provide that “[o]nce the [trial] court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” See State v. Brown, ___ N.C. App. ____, ____, 631 S.E.2d 49, 51 (2006).
    The facts recounted at the suppression hearing fully support the trial court's conclusion that the procedures resulting in Rogers's pretrial identification of defendant were not impermissibly suggestive. Defendant presented no evidence which tended to suggest that the lineups were assembled or presented to Rogers in any manner to induce his identification of defendant. McCree, 160 N.C. App. at 26, 584 S.E.2d at 353. Rogers was shown four lineups with six photographs each, only one of which contained defendant's photograph. The three remaining lineups each included a photograph of another participant in the robberies. Officer Hosier did nothing to direct Rogers to defendant's lineup. Our examination of defendant's lineup reveals nothing in its arrangement or composition which tends to distinguish defendant'sphotograph from the five other photographs displayed therein.
    Absent any evidence of an impermissibly suggestive pre-trial identification procedures, we need not proceed to the second step of the due process analysis set forth in McCree and Pigott. McCree, 160 N.C. App. at 26, 584 S.E.2d at 353; Pigott, 320 N.C. at 99-100, 357 S.E.2d at 633-34. We hold the trial court properly denied defendant's motion to suppress. Defendant's assignment of error is overruled.
IV. Conclusion
    The trial court did not err in allowing pretrial identification of defendant by Rogers. Defendant failed to present any evidence that the pretrial identification was suggestive or directed. Defendant received a fair trial free from prejudicial errors he preserved, assigned, and argued.
    No Error.
    Judges BRYANT and LEVINSON concur.
    Report per Rule 30(e).

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