STATE OF NORTH CAROLINA
v
.
Robeson County
No. 04 CRS 56238
ALLEN DWAYNE BROWN
Attorney General Roy Cooper, by Assistant Attorney General
Alexandra M. Hightower, for the State.
Daniel F. Read for defendant-appellant.
STEELMAN, Judge.
The trial court properly admitted evidence on the
identification of defendant in a photographic lineup and testimony
regarding the location of defendant's arrest. The trial court did
not err in denying defendant's motion to dismiss for insufficiency
of the evidence. The trial court's flight instruction to the jury
was proper.
On 15 September 2004 between five o'clock and six o'clock in
the morning, two men entered the home occupied by Heather Norton
(“Norton”) and Dwione Baxter (“Baxter”). One of the men entered by
kicking in the front door. The other entered through the back
door. Norton and Baxter were sleeping in their bedroom. Norton's
three children were asleep at the other end of the house. Both men entered the bedroom carrying guns, turned on the
lights, and shouted “give it up.” One of the men wore a mask
covering his entire face and was unidentifiable. The second,
identified as defendant, wore a bandanna over his mouth and a
camouflage hat. Defendant put a gun to Norton's eye, and demanded
that she give it up. Norton begged to go to her children.
Defendant instructed the other man to go handle the children.
Norton told defendant to take whatever he could find, just not to
hurt anyone. The men fled with several hundred dollars in cash,
jewelry, and an X-box. When they left, Norton saw the get-away car
illuminated by an outside light.
Norton contacted the police that afternoon. She did not know
either intruder, but was able to give a description of the man
wearing the bandanna to the police. Baxter told police he
recognized defendant as a man named “Allen.” At trial Baxter
testified he had known defendant for about a month before the
crime, that defendant lived in Red Springs, and had previously been
to the house.
On 19 January 2005, Baxter signed a written statement and
identified defendant in a photographic lineup. Norton signed a
written statement on 19 January 2005 and identified defendant in a
photographic lineup on 25 January 2005. Detective Strickland of
the Robeson County Sheriff's Department testified that after
defendant was arrested and placed in jail, he prepared two
photographic lineups, one for each victim, using head shots of
defendant and five other men in orange uniforms. The two lineupcompilations placed defendant in different positions. Norton and
Baxter were both instructed that the perpetrator may not be present
on the lineup. The victims could not see height or weight by the
photos. Baxter identified defendant in four seconds. Norton
identified defendant in three seconds.
On 13 June 2005, defendant was indicted on charges of robbery
with a dangerous weapon and first degree burglary. On 25 May 2006,
a jury found defendant guilty of both charges. Judge Floyd
sentenced defendant to 57-78 months imprisonment for robbery with
a dangerous weapon and 57-78 months imprisonment for first degree
burglary, with the sentences to run consecutively. Defendant
appeals.
In his first argument, defendant contends that the trial court
erroneously admitted evidence of the victims' identification of
defendant in photographic lineup. We disagree.
A party must preserve a question for appellate review by
presenting a “timely request, objection or motion, stating the
specific grounds for the ruling the party desire[s] the court to
make if the specific grounds [are] not apparent from the context.”
N.C. R. App. P. 10(b)(1) (2007). The complaining party must also
“obtain a ruling upon the party's request, objection or motion” to
preserve error. Id.
The assignments of error assert that the victims'
identification of defendant was a product of overly suggestive
police action. However, defendant made no pretrial motion to
suppress evidence of the photographic lineups. Further, defendantmade no objection to victims' testimony regarding their prior
identification of defendant by means of the photographic lineups.
At trial, defendant objected to the admission of the lineups
into evidence first, on the ground of failure to lay a proper
foundation and, second, without stating a specific ground. These
objections do not preserve the defendant's assignment of error.
Defendant does not assert plain error as to this assignment of
error. He therefore failed to preserve this argument for appellate
review. State v. Francis, 341 N.C. 156, 160, 459 S.E.2d 269, 271
(1995); see also State v. Pickens, 346 N.C. 628, 645, 488 S.E.2d
162, 172 (1997). This argument is dismissed.
In his second argument, defendant contends that the trial
court erred in admitting testimony by the detective indicating the
location of defendant's arrest. We disagree.
This assignment of error is based upon the following
objection, which occurred during the direct examination of
Detective Strickland:
[STATE]: Do you know when he was brought
back to North Carolina?
[THE WITNESS]: Yes, sir.
[DEFENSE]: Your Honor, I object.
THE COURT: Basis?
[DEFENSE]: To the form of the question, Your Honor.
He was brought back like my client was
incarcerated or something like that.
[STATE]: I'll change it.
THE COURT: All right, sir.
(emphasis in original). At that point, the assistant district
attorney rephrased the question and proceeded with the examination
of Detective Strickland, without objection. Defendant failed to
obtain a ruling on his original objection, and failed to object to
the rephrased question. There is nothing preserved in the record
for this Court to review. N.C. R. App. P. 10(b)(1) (2007). This
argument is dismissed.
In his third argument, defendant contends that the trial court
erred in denying defendant's motion to dismiss for insufficiency of
the evidence. We disagree.
When a defendant moves for dismissal, the trial court must
determine if the State has presented “substantial evidence of each
essential element of the offense charged and of the defendant being
the perpetrator of the offense,” viewing the evidence in the light
most favorable to the State. State v. Parker, 354 N.C. 268, 278,
553 S.E.2d 885, 894 (2001)(quotations omitted). The evidence is
substantial if it is “relevant and adequate to convince a
reasonable mind to accept a conclusion.” Id.
Defendant asserts that the testimony of witnesses for the
State was not believable, arguing that: the “testimony by Norton
and Baxter. . .was inherently incredible, that they positively
identified him for the first time after four months, which they
tried to explain away 'as a few days.'” However, the question of
credibility of the evidence is a question for the jury. State v.
Hardin, 38 N.C. App. 558, 560, 248 S.E.2d 458, 459 (1978). This
argument is without merit. In his fourth argument, defendant contends that the trial
court erroneously instructed the jury on flight. We disagree.
A jury instruction on flight is proper where “some evidence in
the record reasonably support[s] the theory that defendant fled
after commission of the crime charged.” State v. Levan, 326 N.C.
155, 164-65, 388 S.E. 2d 429, 434 (1990) (quotations omitted).
Mere evidence that the defendant left the scene of the crime is
insufficient to support an instruction on flight. State v.
Thompson, 328 N.C. 477, 490, 402 S.E.2d 386, 392 (1991). Rather,
evidence must also support that the defendant attempted to avoid
apprehension. Id. An instruction on flight will not be improper
solely because other reasonable explanations may also account for
the defendant's conduct. State v. Irick, 291 N.C. 480, 494, 231
S.E.2d 833, 842 (1977).
This Court has held that errors must be “material and
prejudicial” in order to warrant a new trial. State v. Hutchinson,
139 N.C. App. 132, 139, 532 S.E.2d 569, 574 (2000). Further, this
Court will not grant a new trial absent a “showing that [defendant]
was prejudiced by the admission of the evidence.” Id. The
defendant must meet this burden by showing a “reasonable
possibility that, had the error in question not been committed, a
different result would have been reached at the trial out of which
the appeal arises.” N.C. Gen. Stat. § 15A-1443(a) (2005).
In the instant case, the two victims positively identified
defendant, without objection, as one of the perpetrators that fled
in the get-away car following the robbery on 15 September 2004. Evidence showed that defendant lived in his father's home in Red
Springs, North Carolina, on the date of the robbery. Defendant was
in Virginia two days later. Officials arrested defendant on 30
December 2004, more than three months after the robbery. He
arrived back in North Carolina that same date. Evidence showed
that he was extradited from either West Virginia or Virginia.
Even assuming, arguendo, that the trial court erred in giving
a flight instruction to the jury, defendant fails to meet his
burden to show prejudice under N.C. Gen. Stat. § 15A-1443(a).
Defendant merely asserts that the speculative evidence of flight
biased the jury. He fails to demonstrate a reasonable possibility
that the jury would have reached a different result absent the
error. See Hutchinson, 139 N.C. App. at 139, 532 S.E.2d at 574.
This argument is without merit.
Defendant failed to argue his remaining assignments of error
in his brief and they are therefore abandoned. N.C. R. App. P.
28(b)(6) (2007).
NO ERROR.
Judge BRYANT concurs.
Judge LEVINSON concurred prior to 7 July 2007.
Report per Rule 30(e).
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