Converted WP file 060850-1

Appeal by defendant from judgment entered 2 December 2005 by Judge David S. Cayer in Mecklenburg County Superior Court. Heard in the Court of Appeals 20 February 2007.

Attorney General Roy Cooper, by Special Deputy Attorney General Christine M. Ryan, for the State.

Hartsell & Williams, P.A., by Christy E. Wilhelm, for defendant-appellant.

    STEELMAN, Judge.

    When a defendant makes a pretrial motion to suppress evidence and fails to renew his objection at trial, N.C. R. App. P. 10(b)(1) and State v. Tutt, 171 N.C. App. 518, 615 S.E.2d 688 (2005), are controlling, and the matter is not preserved for our review. A defendant's motion to dismiss is properly denied when the State submits substantial evidence in support of each element of the offense of robbery with a dangerous weapon. When a defendant fails to demonstrate that he suffered material prejudice by the denial of his motion to continue, a new trial is not warranted. Finally, when a defendant fails to assert his right to a speedy trial, and the record reveals neither evidence of neglect nor willfulness onthe part of the State, nor that defendant was prejudiced by the delay, defendant's rights are not violated.
    In the early afternoon of 12 June 2004, Jennifer Witzen (“Witzen”) drove her burgundy 2004 Chevy Blazer to a CVS store in Charlotte . Witzen was seventeen years old. Witzen saw Charles Orlando Williams (“defendant”) squatting by the front door of CVS as she entered the building. When she exited CVS, Witzen walked past defendant toward her Blazer, and defendant started following her. Witzen turned around, and defendant started walking in a different direction. Witzen then walked quickly to her Blazer, opened her driver's side door, and stepped into the vehicle. Before Witzen was able to close her door, she heard the sound of flip-flops running toward her. Defendant blocked the door, held a knife to Witzen's neck, and demanded that Witzen get out of the vehicle. The pressure of defendant's knife raised welts on Witzen's neck. Witzen attempted to fight back and close the door, but defendant pried the door open, demanding again that Witzen get out of the Blazer and give him the keys. Defendant took the keys to the Blazer and Witzen's purse. Witzen ran into CVS and called the police.
    Later that day, Officer Hopkins (“Hopkins”) of the Charlotte- Mecklenburg Police Department arrived at CVS, and he observed Witzen “crying, shaking” and “visibly distraught.” Witzen described her attacker to Hopkins: “I described what he was wearing, a button-up, short-sleeved shirt, maybe a navy blue or dark red plaid; gray shorts and flip-flops. He was scruffy,unkempt. He was unshaven. He had a white spot on the front of his hair.” Witzen later recognized pictures of her vehicle when the police located it after several days.
    Lisa Harris Worthy (“Worthy”), defendant's cousin, testified that defendant visited her house on 12 and 13 June 2004 in a red “Jeep” or “sports utility vehicle[,]” and that defendant told her the vehicle belonged to a female friend. Defendant left a knife in Worthy's house after his second visit. Worthy believed the vehicle to be the one involved in the recent carjacking and contacted Crimestoppers, after which Sergeant Hulsey (“Hulsey”), a detective for the Charlotte-Mecklenburg Police Department, visited Worthy. With Worthy's permission, Hulsey took defendant's knife and clothes from duffel bags defendant left at Worthy's house.
    On 15 June 2004, Captain Willis (“Willis”) of the Charlotte- Mecklenburg Police Department located Witzen's Blazer. Willis activated his lights and siren to stop the vehicle. The driver pulled the Blazer over to the side of the road, and Willis observed two people in the vehicle. As Willis began to approach the vehicle, the driver sped off. Willis then quickly returned to his patrol car and followed the Blazer until it crashed into a fence. The driver and passenger ran from the scene of the crash. Willis recognized defendant as the passenger in the Blazer. Soon thereafter, Willis and other law enforcement officers apprehended and arrested defendant.
     On 15 June 2004, Witzen was informed that her Blazer had been recovered and met with Hulsey to view a photo lineup. Witzentestified at trial that she was instructed that “the person who robbed me may or may not be in that lineup; that I do not have to choose anybody.” Hulsey testified that:
        Prior to showing someone a photo lineup, I tell them, “You are going to see a photographic lineup containing six individuals. The person who robbed you . . . may or may not be pictured in this lineup.” I also tell them to bear in mind that the photograph may not necessarily have been taken that day or even close to the day that the crime was committed.

Witzen looked at the lineup for approximately ten seconds and pointed to defendant's photo, stating, “I think that is him.”
    On 6 July 2004, defendant was indicted for the crime of robbery with a dangerous weapon, pursuant to N.C. Gen. Stat. . 14- 87.
    On 12 September 2005, defendant filed a motion to suppress the evidence of his identification in the photographic lineup. The trial court conducted a hearing on the motion to suppress on 1 November 2005. During the hearing, it became apparent that defendant's counsel had a conflict of interest, such that counsel could not continue to represent defendant. New counsel was appointed. The trial court entered an order on 21 November 2005 denying defendant's motion to suppress.
    The case went to trial on 28 November 2005. At the close of the State's evidence, defendant moved to dismiss. Defendant did not put on evidence or testify at trial, and the jury found defendant guilty of robbery with a dangerous weapon. The trial court determined that defendant was a prior felony record level IVand sentenced him to 117 to 150 months imprisonment in the North Carolina Department of Correction. From this judgment, defendant appeals.

    In his first argument, defendant contends that the trial court erred by denying defendant's motion to suppress the identification of defendant by Witzen. We disagree.
    “[A] pretrial motion to suppress is a type of motion in limine.” State v. Golphin, 352 N.C. 364, 405, 533 S.E.2d 168, 198 (2000), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001). “Our Supreme Court has consistently held that '[a] motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial.'” State v. Tutt, 171 N.C. App. 518, 520, 615 S.E.2d 688, 690 (2005) (quoting State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999) (per curiam) (citations omitted)).
    In an amendment effective 1 October 2003, the North Carolina General Assembly amended N.C. Gen. Stat. . 8C-1, Rule 103(a)(2), to say “[o]nce the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” N.C. Gen. Stat. § 8C-1, Rule 103(a)(2) (2005); 2003 N.C. Sess. Laws ch. 101, . 1. This rule would have permitted appellate review of a pretrial ruling even though the party failed to object at trial, in direct conflict with ourSupreme Court's interpretation of N.C. R. App. P. 10(b)(1). In Tutt, 171 N.C. App. at 524, 615 S.E.2d at 693-94, this Court held that this amendment to Rule 103 was unconstitutional, stating, “to the extent that N.C. Gen. Stat. § 8C-1, Rule 103(a)(2) is inconsistent with N.C. R. App. P. 10(b)(1), it must fail.” Id. We note that the trial of defendant commenced on 28 November 2005, over four months after the filing of the Tutt decision. Tutt is thus controlling and binding precedent in this case.
    In the instant case, defendant's pretrial motion to suppress evidence was heard on 1 November 2005, and the motion was denied. The court concluded as a matter of law that “[t]he pretrial identification procedure was not impermissibly suggestive[,]” and “[Witzen's] in-court identification of Defendant . . . was not based on any impermissibly suggestive procedures or factors.” This matter went to trial on 28 November 2005. At trial, defendant did not object to the admission of the evidence as to Witzen's identification of defendant or the photo line-up evidence. The record shows that Witzen identified defendant, in a photo lineup and at trial, as the person who robbed her. Witzen testified that Detective Hulsey told her “that the person who robbed me may or may not be in that lineup; that I do not have to choose anybody.” When asked if Detective Hulsey “suggested or hinted in any way that you should try to pick someone out from the lineup that you were shown[,]” Witzen said, “No.” Witzen also testified that she recalled stating, “I think that is him[,]” when she pickeddefendant out of the lineup, but that even though “[she] made that comment[,]” she was sure of her choice.
    Defendant did not object to the aforementioned evidence at any point during the trial. This assignment of error is not preserved for appellate review under N.C. R. App. P. 10(b)(1) , and is dismissed.

    In his second argument, defendant contends that the trial court erred by denying defendant's motion to dismiss. We disagree.
    Our standard of review on a motion to dismiss based on insufficiency of the evidence is the substantial evidence test. “The substantial evidence test requires a determination that there is substantial evidence (1) of each essential element of the offense charged, and (2) that defendant is the perpetrator of the offense.” State v. Jones, 110 N.C. App. 169, 177, 429 S.E.2d 597, 602 (1993) (citing State v. Mercer, 317 N.C. 87, 96, 343 S.E.2d 885, 890 (1986)). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). If there is substantial evidence of each element of the charged offense, the motion should be denied. State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387 (1984).
    “Upon a motion to dismiss, 'the trial court must consider the evidence in the light most favorable to the State and the State is entitled to every reasonable inference to be drawn from that evidence.'” State v. Lane, 328 N.C. 598, 606, 403 S.E.2d 267, 272,cert. denied, 502 U.S. 915, 116 L. Ed. 2d 261 (1991) (quoting State v. Saunders, 317 N.C. 308, 312, 345 S.E.2d 212, 215 (1986)).
    “If the trial court determines that a reasonable inference of the defendant's guilt may be drawn from the evidence, it must deny the defendant's motion and send the case to the jury even though the evidence may also support reasonable inferences of the defendant's innocence.” State v. Smith, 40 N.C. App. 72, 79, 252 S.E.2d 535, 540 (1979) (emphasis in original).
    The elements of robbery with a dangerous weapon under N.C. Gen. Stat. § 14-87 are as follows: “(1) the unlawful taking or an attempt to take personal property from the person or in the presence of another (2) by use or threatened use of a firearm or other dangerous weapon (3) whereby the life of a person is endangered or threatened.” State v. Faison, 330 N.C. 347, 358, 411 S.E.2d 143, 149 (1991) (citation omitted); N.C. Gen. Stat. . 14-87.
    In the instant case, the State submitted substantial evidence in support of each element of the offense of robbery with a dangerous weapon. On Saturday, 12 June 2004, Witzen “heard [defendant's] flip-flops running up to me[,]” as she stepped into her vehicle. Witzen “tried to close the door, but [defendant] had a knife to my neck.” Defendant “reached his arm in to block me from closing the door[,] [and] [h]e told me to get out of the car.” Witzen then “tried to close the door on his arm, but he pried it open.” Then, “[defendant] took the keys, and he grabbed my purse, and I ran into the store.” When asked if Witzen recalled whether “any pressure was placed on [her] neck” when the defendant held theknife there, Witzen responded, “Yes[,] I had welts afterward.” The welts were visible “immediately[,]” and the State introduced as evidence digital photos of the welts on Witzen's neck.
    Defendant visited Worthy's home on Saturday, 12 June 2004, and Sunday, 13 June 2004. Defendant had a knife with him when he visited her on Sunday, and he drove a “sports utility vehicle” to Worthy's house.
    On 15 June 2004, Captain Willis apprehended defendant as a passenger in Witzen's vehicle. Defendant gave inconsistent explanations as to how and where he obtained the vehicle. Willis caught up with defendant “[a]fter the vehicle crashed into the fence . . . [and] the driver and passenger jump[ed] and [ran] from the vehicle[.]” Willis identified the passenger of the vehicle as defendant.
    We conclude that the State presented substantial evidence of each element of the crime of robbery with a dangerous weapon, requiring that the question of defendant's guilt be submitted to a jury. This argument is without merit.

    In his third argument, defendant contends that the trial court erred by denying defendant's motion to continue, resulting in a violation of defendant's constitutional right to counsel. We disagree.
    “A motion for a continuance is ordinarily addressed to the sound discretion of the trial court[,] [and] the ruling is not reversible on appeal absent an abuse of discretion.” State v.Covington, 317 N.C. 127, 129, 343 S.E.2d 524, 526 (1986) (quoting State v. Smith, 310 N.C. 108, 111, 310 S.E.2d 320, 323 (1984)). “However, if 'a motion to continue is based on a constitutional right, then the motion presents a question of law which is fully reviewable on appeal.'” Id. (quoting Smith, 310 N.C. at 112, 310 S.E. 2d at 323).
    “To win a new trial, defendant must show not only that the denial of the motion to continue was erroneous, but he must demonstrate that he suffered prejudice as a result of the denial.” State v. Attmore, 92 N.C. App. 385, 390, 374 S.E.2d 649, 653 (1988). An accused must have a reasonable time to investigate, prepare, and present his defense. State v. Tunstall, 334 N.C. 320, 328, 432 S.E.2d 331, 336 (1993). “[T]he constitutional requirement of a 'reasonable time' to prepare mandates 'no set length of time for investigation, preparation and presentation[.]'” Id. at 329, 432 S.E.2d at 337 (1993) (quoting State v. Harris, 290 N.C. 681, 687, 228 S.E.2d 437, 440 (1976)); see also State v. Horner, 310 N.C. 274, 277-78, 311 S.E.2d 281, 284 (1984). Rather, “[t]he facts of each case are pertinent.” State v. Morgan, 359 N.C. 131, 144, 604 S.E.2d 886, 894 (2004). “[A] defendant must show that he did not have ample time to confer with counsel and to investigate, prepare and present his defense.” Tunstall, 334 N.C. at 329, 432 S.E.2d at 337 (quoting Harris, 290 N.C. at 687, 228 S.E.2d at 440). To demonstrate that the time allowed was inadequate, defendant must show “how his case would have been better prepared had the continuance been granted or that he was materially prejudiced bythe denial of his motion.” Covington, 317 N.C. at 130, 343 S.E.2d at 526. “[A] motion for a continuance should be supported by an affidavit showing sufficient grounds for the continuance.” State v. Beck, 346 N.C. 750, 756, 487 S.E.2d 751, 755 (1997) (quoting State v. Kuplen, 316 N.C. 387, 403, 343 S.E.2d 793, 802 (1986)); see also State v. McCullers, 341 N.C. 19, 33, 460 S.E.2d 163, 171 (1995).
    “If the defendant shows that the time allowed his counsel to prepare for trial was constitutionally inadequate, he is entitled to a new trial unless the State shows that the error was harmless beyond a reasonable doubt.” Tunstall, 334 N.C. at 329, 432 S.E.2d at 337 (citing State v. Gardner, 322 N.C. 591, 594, 369 S.E.2d 593, 594 (1988)).
    In the instant case, defendant was originally appointed trial counsel on 22 June 2004. Defendant filed his first motion to continue and supporting affidavit on 19 September 2005. The record does not reflect whether this motion was granted. During counsel's representation of defendant, counsel requested discovery and filed a motion in limine and a motion to suppress evidence. On 1 November 2005, counsel argued defendant's motion to suppress before the trial court, during which time a conflict of interest between defendant and counsel became apparent. Pursuant to the Revised Rules of Professional Conduct, 1.7 and 1.10, counsel could not continue to represent defendant, and defendant refused to waive his objection to the conflict.    New counsel was appointed on 3 November 2005, and defendant filed his second motion to continue on 14 November 2005. Defendant generally stated in his motion that “counsel cannot be adequately prepared to defend him in the trial of this case with such a brief time to prepare [for] trial, and that substantial additional investigation remains undone[.]” However, defendant did not file a supporting affidavit with his motion to continue to “show that he did not have ample time to confer with counsel and to investigate, prepare and present his defense.” Tunstall, 334 N.C. at 329, 432 S.E.2d at 337. The trial court denied his motion on 14 November 2005; however, the record does not reflect the reason for denial. The denial of this motion is the basis of defendant's assignment of error on appeal.
    Trial was scheduled and held on 28 and 29 November 2005. At trial, the following conversation transpired between the trial court and the appointed counsel for defendant:
        The Court: Mr. Everhart had filed a motion to continue.

        Mr. Everhart: That was ruled on. Judge Johnston ruled on that in Courtroom 2201 on November 14th. Ruling that if the court reporter could provide a transcript of a hearing held on November 1 before Judge Bell, that the case would go forward. If the court reporter was unable to do so, then it would not. The court reporter has done so.

    In his appellate brief to this Court, defendant generally argues that “three weeks was not adequate time for the new defense counsel to adequately prepare for the two-day trial in this matter[,]” without showing specifically “how his case would havebeen better prepared had the continuance been granted or that he was materially prejudiced by the denial of his motion.” Covington, 317 N.C. at 130, 343 S.E.2d at 526. The most precise argument defendant makes is that the trial court's denial of his motion to continue “may have caused [counsel] to fail to renew certain objections to evidence presented or otherwise hindered his ability to gain knowledge of existing or potential evidentiary issues[.]” However, counsel's failure to renew an objection to the trial court's denial of defendant's motion to suppress evidence was a matter of procedure, not of preparation. Furthermore, defendant does not say what existing or potential evidentiary issues could possibly have necessitated a continuance. After voluntary discovery on 30 July 2004, defendant's formal discovery request on 28 February 2005, and further discovery on 15 September 2005, we find defendant's general argument, that there were further potential evidentiary issues, unconvincing.
    In certain circumstances, three weeks may not be adequate time to prepare for trial; however, the “reasonable time” requirement mandates “no set length of time for investigation, preparation and presentation[,]” Tunstall, 334 N.C. at 329, 432 S.E.2d at 337, and the issues presented in this case were not complicated. We conclude that in this case, the defendant has not shown how his case would have been better prepared had the continuance been granted, or that he was materially prejudiced by the denial of his motion. This argument is without merit.

    In his fourth argument, defendant contends that the trial court erred by violating defendant's constitutional right to a speedy trial. We disagree.
    The United States Supreme Court has identified four factors “which courts should assess in determining whether a particular defendant has been deprived of his right” to a speedy trial under the federal constitution. Barker v. Wingo, 407 U.S. 514, 530, 33 L. Ed. 2d 101, 117 (1972). “These factors are: '(1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of [the] right to a speedy trial, and (4) prejudice resulting from the delay.'” State v. Webster, 337 N.C. 674, 678, 447 S.E.2d 349, 351 (1994) (quoting State v. Willis, 332 N.C. 151, 164, 420 S.E.2d 158, 163 (1992)). We follow the same analysis in reviewing speedy trial claims under Article I, Section 18 of the North Carolina Constitution. See Id. at 678, 447 S.E.2d at 351.
    “[F]ailure to demand a speedy trial does not constitute a waiver of that right, [but] it is a factor to be considered.” Id. at 680, 447 S.E.2d at 352. The defendant's assertion of the right to a speedy trial “is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.” Id. (quoting Wingo, 407 U.S. at 531-32, 33 L. Ed. 2d at 117-18). “[F]ailure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” Id. (quotation omitted).    In the instant case, defendant was incarcerated for over nine months before his trial. Defendant failed to assert his right to a speedy trial before the trial court. Due to defendant's failure to raise this issue before the trial court, we are unable to discern the reasons for the time period that elapsed between defendant's indictment and trial. A review of the record on appeal reveals no evidence of neglect or willfulness on the part of the State, nor that defendant was prejudiced by the delay. This assignment of error is without merit.
    For the foregoing reasons, we find
    NO ERROR.
    Judges WYNN and JACKSON concur.
    Report per Rule 30(e).

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