Appeal by Defendant from judgment dated 5 January 2006 by
Judge Frank R. Brown in Superior Court, Northampton County. Heard
in the Court of Appeals 10 January 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General Thomas R. Miller, for the State.
Geoffrey W. Hosford for Defendant-Appellant.
Derrick Demetruix Edwards (Defendant) was charged with first-
degree burglary and seven counts of robbery with a dangerous
weapon. He was convicted of first-degree burglary and was
acquitted of robbery with a dangerous weapon. The trial court
sentenced Defendant to a term of 103 months to 133 months in
At trial, Sonya Ray (Ms. Ray) testified that she was playing
cards with six other people at her residence at Lot 118, Arrowhead
Mobile Home Park (the mobile home), in Woodland, about midnight on
19 March 2005. Shortly after midnight, the door "flew open" and
three men wearing masks and armed with guns entered the mobile
home. Ms. Ray and Cassandra Richardson, one of Ms. Ray's guests,ran to a bathroom, but one of the intruders, armed with a handgun,
ordered Ms. Ray to go into a bedroom. He told Ms. Ray to give him
her money and she gave him $200.00 in cash. The man then ordered
her to return to the living room. As Ms. Ray approached the living
room, another intruder, who was armed with a rifle, ordered her to
stay in the kitchen and to "get down." Ms. Ray heard one of the
men yell for the others to hurry. The men then ran from the mobile
Cassandra Richardson, Tolicia Mitchell, Josephine Joyner,
Temekia Joyner, and Anthony Freeman testified that they were at Ms.
Ray's home on 19 March 2005 when they heard a loud noise and saw
the door "[fly] open." Men wearing masks and holding guns entered
the mobile home and ordered everybody to "get down." One of the
men collected money and jewelry from everyone and put the items in
a black bag. One of the intruders stated they were taking too much
time, and the men left the residence. Tolicia Mitchell then dialed
911 on her cell phone and handed the phone to Ms. Ray, who reported
Gerald Bowser (Mr. Bowser) testified for the State that on the
evening of 19 March 2005, he and four other men decided to rob
Joseph "Wigg" Powell. Ms. Ray identified Joseph "Wigg" Powell as
her former boyfriend and testified that he had resided with her on
19 March 2005 but that he was not present in the mobile home at the
time of the burglary. Mr. Bowser identified the four other men as
Defendant, Earl Powell, Addaryll Powell, and Antoine Vaughan. The
men collected guns, masks, and duffel bags, and then drove to themobile home. Mr. Bowser wore a black ski mask over his face,
Defendant wore an Army fatigue-colored mask that covered half of
his face, Earl Powell wore a Halloween mask, and Antoine Vaughan
wore a bandana. Mr. Bowser retrieved a handgun, Defendant grabbed
a .12 gauge shotgun, Earl Powell took two handguns, and Antoine
Vaughan took a black pump .12 gauge shotgun. Defendant kicked open
the door of the mobile home and Antoine Vaughan entered, followed
by Defendant, Earl Powell, and Mr. Bowser. Addaryll Powell
remained at a back door. Defendant and Antoine Vaughan ordered Ms.
Ray to go into a back room. Mr. Bowser carried a duffel bag and
collected jewelry from the occupants. After Earl Powell declared
that they were taking too much time, the intruders all ran from the
On behalf of Defendant, Antoine Vaughan testified that he,
Earl Powell, and Mr. Bowser committed the crimes at the mobile
home. He further testified that Defendant was not present and was
not a participant in the commission of the crimes.
Defendant contends the trial court erred by denying his motion
to dismiss the charge of first-degree burglary. Upon a motion to
dismiss, the trial court determines whether there is substantial
evidence to establish each element of the offense charged and to
identify the defendant as the perpetrator. State v. Earnhardt
N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). The trial court
the evidence in the light most favorable to the State,
and gives the State the benefit of the reasonable inferences thatmay be drawn from the evidence. State v. Brown
, 310 N.C. 563, 566,
313 S.E.2d 585, 587 (1984).
Defendant does not dispute the sufficiency of the evidence to
establish all of the elements of the offense. However, he argues
the evidence is insufficient to identify him as a perpetrator,
given that none of the victims could identify him. He concedes
that Mr. Bowser identified him as a perpetrator but he argues that
Mr. Bowser's testimony was not credible due to inconsistencies and
discrepancies between his testimony and that of the other
Our Supreme Court has recognized that "[c]ontradictions and
discrepancies do not warrant dismissal of the case but are for the
jury to resolve." State v. Barnes
, 334 N.C. 67, 75, 430 S.E.2d
914, 918 (1993)
. In State v. Jackson
, 161 N.C. App. 118, 588
S.E.2d 11 (2003), our Court rejected a similar argument in which
the defendant challenged the sufficiency of the evidence to
withstand a motion to dismiss by attacking the credibility of an
accomplice who identified the defendant as a perpetrator. Id.
121-22, 588 S.E.2d at 14-15. We noted that the credibility of
witnesses, and the weight to be given their testimony, are issues
for the jury, not the trial court, to decide. Id.
at 122, 588
S.E.2d at 15.
In the present case, we conclude the trial court correctly
left any discrepancies between Mr. Bowser's testimony and the
testimony of other witnesses for the jury to resolve. We overrule
this assignment of error.
Defendant's remaining argument is that the trial court
committed plain error by entering judgment on the verdict
convicting Defendant of first-degree burglary because it was
inconsistent with the jury's verdict acquitting him of robbery with
a dangerous weapon. By assigning plain error, Defendant has
implicitly conceded he did not move to set aside the verdict or
otherwise seek a ruling from the trial court on this issue. Our
Supreme Court has declared that plain error review is applicable
only to jury instructions and evidentiary matters. State v.
, 349 N.C. 62, 81, 505 S.E.2d 97, 109-10 (1998), cert.
, Atkins v. North Carolina
, 526 U.S. 1147, 143 L. Ed. 2d 1036
(1999). Our Supreme Court has also refused to apply plain error
review to issues addressed to the trial court's discretion. State
, 352 N.C. 227, 256, 536 S.E.2d 1, 18 (2000), cert. denied
Steen v. North Carolina
, 531 U.S. 1167, 148 L. Ed. 2d 997 (2001).
A motion to set aside the verdict is addressed to the discretion of
the trial court. State v. Wilson
, 313 N.C. 516, 538, 330 S.E.2d
450, 465 (1985).
Even assuming, arguendo
, this issue could be reviewed by our
Court in the absence of a request for corrective action in the
trial court, we hold this assignment of error may not be sustained.
First, "[i]t is well established in North Carolina that a jury is
not required to be consistent and that incongruity alone will not
invalidate a verdict." State v. Rosser
, 54 N.C. App. 660, 661, 284
S.E.2d 130, 131 (1981). Second, to convict Defendant of first-degree burglary, the jury only had to find that Defendant intended
to commit a robbery at the time of the break-in, not that he
actually committed a robbery. Therefore, the jury's verdict was
not inconsistent. See State v. Tippett
, 270 N.C. 588, 594, 155
S.E.2d 269, 274 (1967) (stating that the "actual commission of the
felony, which the indictment charges was intended by the defendant
at the time of the breaking and entering, is not required in order
to sustain a conviction of burglary."). We dismiss this assignment
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
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