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.
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.
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.
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.
, 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.
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.
, 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
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.
, 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
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
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,
Judges WYNN and ELMORE concur.
Report per Rule 30(e).
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