Return to
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1503


Filed: 5 June 2007


         v.                        Cleveland County
                                No. 05 CRS 52766
                                    05 CRS 52769

    Appeal by defendant from judgment entered 30 June 2006 by Judge Nathaniel J. Poovey in Cleveland County Superior Court. Heard in the Court of Appeals 4 June 2007.

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

    D. Tucker Charns for defendant-appellant.

    LEVINSON, Judge.

    Ricky Dean Johnson (defendant) was found guilty of one count of first degree burglary and three counts of robbery with a dangerous weapon. Defendant was sentenced to four consecutive terms of 103-133 months.
     The State presented evidence tending to show the following: During the evening of 13 April 2005, Betty Gill, Darren Gill, Ruth Daniels and Michael Turner were watching television at Betty Gill's residence. Two men, whom they identified as defendant and his brother, Stacey Johnson, opened the front door of the residence and entered. Defendant fired a handgun toward the ceiling and yelled, “Give it up. Give it up.” Stacey Johnson collected about $180 in cash from Darren Gill's pocket. As one of the brothers pointed agun at him and demanded to know where the money was kept, Michael Turner located the key to a safe and opened it. Defendant removed approximately $800 in cash, belonging to Betty Gill and Ruth Daniels, from the safe. Stacey Johnson also took Darren Gill's cell phone. The two intruders then fled. Defendant did not present any evidence.
    Defendant first contends that the trial court erred by overruling his objection to testimony of Darren Gill that defendant was “jacked up on crack” when he entered the residence. Specifically, defendant contends that the court should not have admitted the testimony because no foundation had been laid upon which to base this opinion.
    Defendant's argument does not correspond to the assignment of error challenging the admission of the testimony that defendant was “jacked up on crack.” Defendant assigns error based upon N.C. Gen. Stat. § 8C-1, Rule 802 (2005); the corresponding argument in his brief focuses solely upon N.C. Gen. Stat. § 8C-1, Rules 602 and 701. “The scope of appellate review is limited to the issues presented by assignments of error set out in the record on appeal; where the issue presented in the appellant's brief does not correspond to a proper assignment of error, the matter is not properly considered by the appellate court.” Bustle v. Rice, 116 N.C. App. 658, 659, 449 S.E.2d 10, 11 (1994) (citation omitted).
    Moreover, even assuming arguendo the trial court erred by admitting the testimony, we are not persuaded it had an effect on the outcome of the trial. See N.C.G.S. § 15A-1443(a)(2007) (Where“[a] defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is 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.”). Here, all four occupants of the residence identified defendant as one of the two men who burst into the residence and perpetrated the violence. And the evidence was uncontradicted that defendant fired the shot into the ceiling and demanded money. This assignment of error is overruled.
    Defendant next argues the trial court erred by denying his motion to dismiss the charges. Defendant argues the court should have allowed the motion because of inconsistencies and discrepancies between the trial testimony of the four occupants of the residence and their statements.
    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, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). The trial court considers the evidence in the light most favorable to the State, and gives the State the benefit of the reasonable inferences that may be drawn from the evidence. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). “Contradictions 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).
    We conclude that any contradictions, inconsistencies ordiscrepancies in the testimony of the four occupants of the residence and between statements that they may have given in their trial testimony presented questions of credibility and weight for the jury to resolve. We hold the trial court correctly denied the motion to dismiss and submitted the charges to the jury for decision.
    No prejudicial error.
    Judges McCULLOUGH and STEELMAN concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***