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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-332

NORTH CAROLINA COURT OF APPEALS

Filed: 5 June 2007

STATE OF NORTH CAROLINA

v .                         Moore County
                            No. 04-CRS-52441-42, 52444-47
VINCENT MARQUETTE KENNEDY

    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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