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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-485

NORTH CAROLINA COURT OF APPEALS

Filed: 1 May 2007

STATE OF NORTH CAROLINA
                                Mecklenburg County
    v.                            Nos. 04 CRS 67354
                                    04 CRS 213804-5
SANTARIO MILLER,                        04 CRS 213808-9
        Defendant.        

    Appeal by defendant from judgments entered 29 June 2005 by Judge F. Don Bridges in Mecklenburg County Superior Court. Heard in the Court of Appeals 16 April 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Brandon L. Truman, for the State.

    M. Alexander Charns for defendant-appellant.

    GEER, Judge.

    Defendant Santario Miller appeals from his convictions of first degree burglary, possession of a firearm by a felon, and three counts of robbery with a dangerous weapon. On appeal, defendant argues that the trial court erred by: (1) denying his motion to dismiss on the basis of insufficient evidence to identify defendant as the perpetrator; (2) not declaring a mistrial on its own motion; and (3) entering written judgments that defendant argues were ambiguous as to whether the prison terms were to run consecutively or concurrently. We hold that the trial court properly denied the motion to dismiss, as the evidence was sufficient for the jury to reach the conclusion that defendant was the perpetrator of the crimes. Further, the trial court'sjudgments were not ambiguous. Defendant did not properly preserve the issue of a mistrial for appellate review and, therefore, we do not address that issue.

Facts

    The State's evidence tended to show the following facts. In the early morning hours of 12 February 2004, three men forcibly entered the home of Patricia Crawford. The men held Ms. Crawford and two of her grandsons, DeGarrian and TreJuan Coleman, at gunpoint in the den while the men searched the home for valuables and drugs. Although the men initially wore masks that covered their faces, they eventually rolled the masks up exposing their faces. Within a week of the robbery, Ms. Crawford, DeGarrian, and TreJuan each separately identified defendant as one of the perpetrators from a photographic lineup.
    Defendant was indicted with three counts of robbery with a dangerous weapon, first degree burglary, and possession of a firearm by a felon. Defendant was convicted of all charges and the trial court sentenced defendant to a term of 10 to 12 months for the robbery convictions, a term of 69 to 92 months for the burglary conviction, and a term of 10 to 12 months for the possession of a firearm conviction. At sentencing, the trial court stated that the sentences for the robbery convictions would "commence at the expiration of the sentence imposed in case 213809 [first degree burglary]." Consistent with that oral pronouncement, the trial court wrote on the written judgment for the robbery convictions that the sentence was to "RUN EXPIRATION OF 04CRS213809." Thejudgment for the possession of a firearm conviction stated that the sentence was to run concurrently with the burglary sentence. Defendant timely appealed.
Discussion

    Defendant first argues that the trial court erroneously denied his motion to dismiss because the State presented insufficient evidence to show that defendant was the perpetrator of the crimes charged. On review of a trial court's ruling on a motion to dismiss, we consider whether the State presented "substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense." State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). "'Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (quoting State v. Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 649, 652 (1982)). On appeal, this Court evaluates the evidence in the light most favorable to the State with the State being entitled to all reasonable inferences that may be drawn from the evidence. Id. at 215-16, 393 S.E.2d at 814.
    Defendant asserts that the State's identification evidence was insufficient. "'In determining whether a witness' identification testimony is inherently incredible requiring dismissal, the test is whether there is a reasonable possibility of observation sufficient to permit subsequent identification.'" State v. Smith, 130 N.C. App. 71, 78, 502 S.E.2d 390, 395 (1998) (quoting State v. Beasley, 118 N.C. App. 508, 512, 455 S.E.2d 880, 883 (1995)).     Here, the State offered the testimony of three eyewitnesses who, within four to seven days after the crime, each separately identified defendant from a photographic lineup of six individuals. These witnesses had an opportunity to observe defendant without his mask for approximately 15 minutes. Although DeGarrian testified that he did not focus on the robbers' faces, he recognized defendant, whom he had known for approximately four or five years, by defendant's voice. This evidence is more than sufficient to survive a motion to dismiss. See id. (holding evidence sufficient where witness identified assailant based on the muscles in his arms and shoulders, the shape of his head, and his ears); State v. Murphy, 56 N.C. App. 771, 773, 290 S.E.2d 408, 409 (holding that identification not inherently incredible where victim did not see attacker's face, but identified him based on the sound of the attacker's voice, his size, and his shape), aff'd per curiam, 306 N.C. 734, 295 S.E.2d 470 (1982).
    Defendant points to evidence that the witnesses conferred among themselves as to the identity of the robbers, evidence that they looked at defendant's photograph on an Internet website, and the fact the trial court found TreJuan not credible for the purposes of awarding restitution. These arguments go only to the credibility of the witnesses and, therefore, are properly disregarded in connection with a motion to dismiss. See State v. Miller, 270 N.C. 726, 732, 154 S.E.2d 902, 906 (1967) ("Where there is a reasonable possibility of observation sufficient to permit subsequent identification, the credibility of the witness'identification of the defendant is for the jury."). Consequently, the trial court properly denied defendant's motion to dismiss.
    Defendant next argues that the trial court committed error when it failed to declare a mistrial. At 4:18 p.m., after the jury had deliberated for five hours, the trial court brought the jury back into the courtroom to inquire whether the jury had made progress and whether they wanted to continue deliberating or stop and return the following day. After one of the jurors stated that he could not "come back tomorrow," the foreperson suggested the jury continue. The judge then stated: "All right. You all take awhile [sic] longer, let's see if you can reach a verdict then." The jury returned at 5:00 p.m. with a verdict. Defendant contends that the trial court, by not granting a mistrial when the juror stated he could not return the next day, bolstered the "protesting" juror's ability to coerce a verdict.
    Defendant concedes that he did not preserve this error for appeal. Indeed, defense counsel expressly stated to the trial court that she had no objections to sending the jury back to continue its deliberations. Nevertheless, defendant contends that the trial court's failure to declare a mistrial ex mero motu constituted plain error and, therefore, is subject to review by this Court. See N.C.R. App. P. 10(c)(4). It is, however, well established that plain error does not apply to a trial court's failure to grant a mistrial. See State v. McCall, 162 N.C. App. 64, 70, 589 S.E.2d 896, 900 (2004) (holding that plain error review is unavailable to appellants contending that the trial court failedto declare a mistrial because "the North Carolina Supreme Court has restricted review for plain error to issues involving either errors in the trial judge's instructions to the jury or rulings on the admissibility of evidence" (internal quotation marks omitted)). Accordingly, we do not address this assignment of error.
    Finally, defendant contends that the trial court's written judgment is ambiguous as to whether the sentence for his robbery convictions should run concurrently or consecutively to his sentence for first degree burglary. On the AOC judgment form, the trial judge did not check the box at the bottom of the first page of the form where it allows a judge to specify that "[t]he sentence imposed above shall begin at the expiration of the sentence imposed in the case referenced below . . . ." Instead, the court wrote "RUN EXPIRATION OF 04CRS213809" in a section of the form on the second page, following the pre-printed introduction stating: "The Court further recommends . . . ." Defendant argues that he is entitled to a new sentencing hearing because it is unclear whether the trial court was recommending that the sentences run consecutively or whether the trial court was actually imposing such a sentence.
    Initially, defendant asks us to apply the "rule of lenity" to support his argument that the preceding word "recommends" implies that the trial court intended something other than to impose such a condition. The "rule of lenity," however, applies only when the wording of a criminal statute is ambiguous. State v. Cates, 154 N.C. App. 737, 740, 573 S.E.2d 208, 209-10 (2002), disc. reviewdenied, 356 N.C. 682, 577 S.E.2d 897, cert. denied, 540 U.S. 846, 157 L. Ed. 2d 84, 124 S. Ct. 121 (2003). The rule prevents courts from interpreting an ambiguous statute in a manner that would impose a penalty possibly greater than that intended by the General Assembly. State v. Boykin, 78 N.C. App. 572, 576-77, 337 S.E.2d 678, 681-82 (1985). In such cases, "'the ambiguity should be resolved in favor of lenity.'" Id. at 577, 337 S.E.2d at 682 (quoting Bell v. United States, 349 U.S. 81, 83, 99 L. Ed. 905, 910, 75 S. Ct. 620, 622 (1955)). Since this issue does not, however, involve a matter of statutory construction, the "rule of lenity" does not apply.
    Further, we do not agree with defendant's contention that the judgment is ambiguous. In light of the trial court's unequivocal pronouncement at the sentencing hearing that the robbery sentence was to "commence at the expiration of the [burglary] sentence," the trial court's written expression of his intent to impose a consecutive sentence on the second page of the AOC form rather than by checking the appropriate box on the first page does not render the judgment ambiguous. This assignment of error is, therefore, overruled.

    No error.
    Judges WYNN and ELMORE concur.
    Report per Rule 30(e).

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