Appeal by defendant from judgment entered 22 July 2005 by
Judge James M. Webb in Moore County Superior Court. Heard in the
Court of Appeals 23 April 2007.
Attorney General Roy Cooper, by Assistant Attorney General
John P. Barkley, for the State.
Leslie C. Rawls for defendant-appellant.
MARTIN, Chief Judge.
Defendant was convicted by a jury of discharging a weapon into
occupied property, assault with a deadly weapon with intent to
kill, conspiracy to commit robbery with a dangerous weapon, robbery
with a dangerous weapon and two counts of attempted first degree
murder. He appeals from a judgment entered upon the verdicts
sentencing him to an active term of imprisonment of a minimum of
132 months and a maximum of 168 months. We find no error.
The State presented evidence at trial which tended to show
that in April 2004, Crystal Uzzell (“Uzzell”) began work as an
undercover informant with Moore County law enforcement. In May
2004, Uzzell arranged a drug deal for two and a half ounces of
crack cocaine with Eddie Williams (“Williams”). On 28 May 2004,Officer Michael F. Brown (“Brown”), a narcotics detective for the
Raeford Police Department, met with Moore County officers to pose
as a purchaser in the drug deal arranged by Uzzell. A body wire
was placed on Brown and he was given $2,100 for the purchase.
That same day, Brown and Uzzell met and set off to find
Williams for the drug purchase. Upon finding Williams, he climbed
into their car holding roughly a quarter of an ounce of crack
cocaine under his shirt. Williams guided them to another location
less than a mile away where he claimed to have the rest of the
drugs. On arrival, Williams got out of the car and sprinted away.
A large man approached the car and spoke with its occupants.
Uzzell told the man that they were waiting on Williams. The man
walked to a wooded area, bent down and returned to the car.
Thinking the man had the drugs, Officer Brown rolled down the
window. The man held up a silver revolver and ordered the officer
to “Give it up.” Officer Brown handed over the money. The man
then told them to “get out of here.” As they began to drive away,
a smaller man appeared from the woods saying “No. No. Kill them.
Kill them.” The small man fired a shot toward the car. Officer
Brown pushed Uzzell's head down and tried to drive away. The car
was hit by bullets, the engine died, and the car slid down an
embankment. The shooters ran into the woods.
The trial court denied defendant's motion to dismiss made at
the close of the State's evidence. The defendant did not present
any evidence. Defendant renewed the motion to dismiss, which was
denied.
Defendant contends the trial court erred in failing to dismiss
the charges based on insufficient evidence. “'When a defendant
moves for dismissal, the trial court is to determine whether there
is substantial evidence (a) of each essential element of the
offense charged, or of a lesser offense included therein, and (b)
of defendant's being the perpetrator of the offense. If so, the
motion to dismiss is properly denied.'”
State v. Bellamy, 172 N.C.
App. 649, 656, 617 S.E.2d 81, 87 (2005) (quoting
State v.
Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651-52 (1982)).
“Substantial evidence is relevant evidence that a reasonable mind
might accept as adequate to support a conclusion.”
State v. Vick,
341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995). This test
remains the same whether the State's evidence is direct,
circumstantial or a combination of both.
State v. Porter, 303 N.C.
680, 686, 281 S.E.2d 377, 381-82 (1981). In ruling on a motion to
dismiss, the court must view the evidence in a light most favorable
to the State.
State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756,
761 (1992). Any contradictions or discrepancies in the evidence
are for the jury to resolve and do not require dismissal.
State v.
Bruton, 344 N.C. 381, 387-88, 474 S.E.2d 336, 341 (1996) (citations
omitted).
In the present case, defendant does not argue that the State
presented insufficient evidence of each element of the offenses
charged. Instead, defendant argues that the State failed to offer
substantial evidence that the defendant was the perpetrator of theoffenses. The credibility of witnesses and the proper weight to be
given their identification testimony is a matter for the jury to
decide.
State v. Turner, 305 N.C. 356, 362, 289 S.E.2d 368, 372
(1982). At trial, the defendant did not object to any in-court
identification of defendant. As a result, defendant waived his
right to have the constitutionality of any in-court identification
considered on appellate review.
See State v. Hammond, 307 N.C.
662, 666, 300 S.E.2d 361, 363 (1983).
There was substantial evidence to support a finding that
defendant was the perpetrator of the crimes charged. Defendant was
described or identified by three of the State's witnesses at trial.
First, Officer Brown observed the shooter out of his car's side
mirror for “a good fifteen - fifteen, twenty seconds.” He
described the man as a “small black male the defendant's size,
complexion.” Ms. Uzzell testified during cross-examination that
the defendant was in fact the man that came out of the woods and
opened fire on the car. She indicated that she remembered
everything about him and her ability to identify him was based on
her memory of the incident. In addition, she accurately described
the defendant to officers immediately after the crime. Defense
counsel asked her, “are you saying that the first time you've been
able to identify my client is here in court?” to which she
responded, “No, I'm not. I identified him at the scene of the
crime. This is the second time I've been able to identify him.”
Finally, Williams repeatedly referred to the defendant as the
perpetrator in his testimony. Defendant attempts to undercut evidence describing or
identifying defendant as the perpetrator by the fact that neither
Officer Brown or Ms. Uzzell was able to identify defendant in a
pretrial photographic lineup. “When a witness makes an error in
identifying the perpetrator in a lineup, such discrepancies or
inconsistencies go to the credibility of the witness[.]”
State v.
Breeze, 130 N.C. App. 344, 353, 503 S.E.2d 141, 147 (1998).
No error.
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).
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