Opinion
No. COA03-493
Filed March 2, 2004 This case not for publication
Appeal by defendant from judgments entered 14 November 2002 by Judge Ripley E. Rand in Pender County Superior Court. Heard in the Court of Appeals 3 February 2004.
Attorney General Roy Cooper, by Assistant Attorney General Barbara A. Shaw, for the State. Ligon Hinton, by Lemuel W. Hinton, for defendant-appellant.
Pender County, Nos. 02 CRS 3326, 02 CRS 51349.
Derrick Seawood ("defendant") appeals from judgments entered after a jury found him guilty of robbery with a dangerous weapon and possession of a firearm by a convicted felon. We find no error.
I. Background
On 31 March 2002, Bradley Scheidt ("Scheidt") was working alone at the Subway Restaurant ("Subway") located in Hampstead, North Carolina. At approximately 7:30 p.m., an individual entered the Subway, ordered a sandwich, and robbed Scheidt at gunpoint. The robber stole approximately $250.00 and stated to Scheidt, "[t]his is already a robbery, let's not make this a murder." Scheidt was instructed to walk to the back of the store. As hedid, Scheidt rang the alarm, which automatically dialed 911. Scheidt heard the door bell ring, indicating the robber had left the store. Scheidt went to the door and saw a light-colored mini-sedan leaving the parking lot. Scheidt described the robber as a male with light brown skin, dark curly hair, dark eyes, approximately five-foot-eight in height, and weighing about one hundred and thirty pounds. Scheidt also stated the robber was wearing a dark baseball cap and dark t-shirt.
On 28 May 2002, Scheidt and a co-worker, Randy Corley ("Corley"), were working at the Subway. At approximately 11:00 p.m., defendant entered the Subway. Scheidt "immediately" recognized defendant as the man who had robbed him on 31 March 2002. As Corley waited on defendant, Scheidt went to the back of the store and contacted his manager to seek advice. Scheidt was interrupted by Corley, who needed help to answer defendant's questions about the menu. After Scheidt answered the question, defendant muttered unintelligible words and walked out of the store. Scheidt watched as defendant walked toward the Food Lion grocery store located within the same shopping center. Scheidt exited the back door of the Subway and saw Deputy Justin Eimer ("Deputy Eimer") at the post office next door. Scheidt told Deputy Eimer that defendant was the man who had robbed the Subway in March.
Before speaking with Scheidt, Deputy Eimer had observed defendant walking towards the Food Lion. He also noticed a white Chevy Blazer ("the vehicle") parked next to the Subway with thekeys in the ignition. Deputy Eimer checked the tag registration and learned the vehicle belonged to defendant. After speaking with Scheidt, Deputy Eimer removed the keys from the vehicle. Deputy Eimer drove toward the Food Lion, stopped defendant, handcuffed him, and took him into custody. Deputy Eimer searched defendant and found a claw hammer and a dark baseball cap concealed in defendant's waistband Defendant had no money on his person. Deputy Eimer drove defendant to the Subway where Scheidt positively identified him as the man who robbed the Subway in March.
Defendant stated to Deputy Eimer that he had just found the hammer and was going around the back of the store to "take a leak." Defendant was later questioned by Detective James Hock ("Detective Hock"). Defendant told Detective Hock that he had been dropped off at the Subway. Defendant could not explain why his vehicle was parked beside the Subway with the keys in the ignition. Defendant also failed to explain how he planned to purchase a sandwich with no money or why he had a claw hammer in his waistband
At trial, defendant presented no evidence. Defendant stipulated to a previous felony conviction. At the close of the evidence, the trial court denied defendant's motions to dismiss both charges. The jury found defendant to be guilty of robbery with a dangerous weapon and of possession of a firearm by a convicted felon. Defendant was sentenced to a minimum of 77 months to a maximum of 102 months for robbery with a dangerous weapon and 15-18 months for possession of a firearm by a convicted felon. Defendant appeals.
II. Issues
Defendant asserts the trial court erred in: (1) denying defendant's motions to dismiss the charges of robbery with a dangerous weapon and possession of a firearm by a convicted felon, (2) admitting evidence of subsequent bad acts of the defendant, and (3) instructing the jury that evidence was received that tended to show defendant was present in and around the Subway on 28 May 2002, in accordance with a plan, scheme, system, or design involving the crimes charged.
III. Motions to Dismiss
Defendant argues that the State failed to produce sufficient evidence to survive his motions to dismiss. We disagree.
The State must present substantial evidence of each element of the offense charged to overcome a motion to dismiss. State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998). The trial court must consider the evidence in the light most favorable to the State and give the State every reasonable inference. Id. Contradictions and discrepancies in the evidence are for the jury to resolve and do not warrant dismissal. State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 653 (1982).
Robbery with a dangerous weapon is: (1) the unlawful taking or attempt to take personal property from the person or in the presence of another, (2) by the use or threatened use of a firearm or other dangerous weapon, (3) whereby the life of a person is endangered or threatened, (4) where the taker knows he is not entitled to take the property, and (5) intends to permanentlydeprive the owner of the property. State v. Richardson, 342 N.C. 772, 784, 467 S.E.2d 685, 692 (1996).
Possession of a firearm by a convicted felon requires the State to prove that a defendant, a convicted felon, subsequently purchased, owned, possessed, or had custody, care, or control of "any handgun or other firearm with a barrel length of less than 18 inches or an overall length of less than 26 inches. . . ." N.C. Gen. Stat. § 14-415.1 (2003). Both crimes require evidence that a defendant was the perpetrator of the crimes and possessed a handgun. See Richardson, 342 N.C. at 784, 467 S.E.2d at 692; see also N.C. Gen. Stat. § 14-415.1 (2003).
The identity of defendant as the perpetrator of the crimes and his possession of a handgun came from the testimony of a single witness, the victim of the robbery, Scheidt. We have held the testimony of a single witness is sufficient for a jury to reach and to support a verdict, except in cases involving perjury, treason, seduction of a woman, and abduction of a married woman. State v. Vehaun, 34 N.C. App. 700, 704, 239 S.E.2d 705, 709 (1977). The jury weighs the testimony and determines its credibility. State v. Miller, 270 N.C. 726, 730, 154 S.E.2d 902, 904 (1967).
In Miller, our Supreme Court held the State presented insufficient evidence for the case to go to the jury because the witness had a limited opportunity to view the perpetrator from a distance of 286 feet. Id. at 732, 154 S.E.2d at 905. The Court noted, however, that "[w]here there is a reasonable possibility of observation sufficient to permit subsequent identification, thecredibility of the witness' identification of the defendant is for the jury. . . ." Id. at 732, 154 S.E.2d at 906.
Unlike in Miller, Scheidt's opportunities to observe the robber were sufficient for him to make a positive identification of defendant possessing a handgun. Scheidt was working alone on the night of the robbery and testified that defendant was the only customer in the store at that time. Defendant remained in a well-lit store for approximately ten minutes. At one point during the robbery, Scheidt and defendant stood face-to-face, five feet away from each other. Scheidt stated that defendant possessed a small black handgun during the robbery and told Scheidt, "[t]his is already a robbery, let's not make this a murder." Similar conditions existed on May 28 when defendant returned to the Subway and was arrested. Scheidt's testimony was sufficient to deny defendant's motions to dismiss, send the case to the jury, and to support its verdict. Defendant's assignment of error is overruled.
IV. Subsequent Bad Acts
Defendant has failed to preserve for appellate review the issue of whether the trial court erred in allowing evidence of the clothing defendant was wearing on the night of March 31 and May 28 and the contents of defendant's wallet on the night of his arrest.
Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure requires a defendant to present an issue to the trial court and to obtain a ruling from the trial court to preserve the issue for appellate review. N.C.R. App. P. 10(b)(1) (2004). A defendant waives appellate review where defendant fails to objectto testimony at trial and fails to specifically allege plain error on appeal. State v. Scott, 343 N.C. 313, 332, 471 S.E.2d 605, 616-617 (1996). "A defendant waives any possible objection to testimony by failing to object to this testimony when it is first admitted." State v. Davis, 353 N.C. 1, 19, 539 S.E.2d 243, 256 (2000).
The record shows that evidence pertaining to defendant's clothing was first admitted through the testimony of Scheidt. Scheidt testified that defendant was wearing a dark t-shirt and a dark baseball cap on the night of the robbery. He also testified that defendant was wearing similar clothing when defendant entered the Subway two months later. Defendant's failure to object effectively waived subsequent objections defendant might have had to the admission of his attire.
This Court has also held that a timely objection is waived when the objecting party "simply produces the same and additional evidence of the facts that had already been testified to over his objection." State v. Townsend, 99 N.C. App. 534, 537, 393 S.E.2d 551, 553 (1990) (quoting State v. Wills, 293 N.C. 546, 240 S.E.2d 328 (1977) (quoting State v. Aldridge, 254 N.C. 297, 118 S.E.2d 766 (1961)).
Defendant objected in a motion in limine and also during direct examination of Deputy Eimer that defendant had no cash on his person on the night of May 28. During cross-examination of Deputy Eimer defense counsel asked, "[b]ut you didn't find any money on Derrick Seawood?" Deputy Eimer responded negatively. Byeliciting this testimony, defendant waived benefit of his earlier objections. Id.
Defendant also failed to object each time evidence of the contents of his wallet was offered and did not lodge a continuing objection. "Where evidence is admitted over objection and the same evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost." State v. Alford, 339 N.C. 562, 570, 453 S.E.2d 512, 516 (1995).
Deputy Eimer testified concerning the contents of defendant's wallet and specifically stated that there was no money in defendant's wallet. The State proceeded to introduce the wallet into evidence. Defense counsel objected to this admission. During the State's subsequent examination of Detective Hock on the same issue, defendant again failed to object when Detective Hock testified that no money was found in defendant's wallet. While the defendant objected to the admission of the wallet into evidence, he failed to object to the testimony concerning the contents of the wallet. Defendant waived his right to appellate review on this issue.
Defendant has also waived his right to a plain error review by not assigning and arguing these issues as plain error. When a defendant fails to specifically and distinctly allege that the trial court's ruling is plain error, defendant waives his right to have the issues reviewed as plain error. State v. Hamilton, 338 N.C. 193, 208, 449 S.E.2d 402, 411 (1994). A defendant also waives plain error review by failing to allege plain error in hisassignments of error. State v. Flippen, 349 N.C. 264, 274-275, 506 S.E.2d 702, 710 (1998).
Because defendant failed to object when testimony regarding his clothing was first presented, failed to object to testimony concerning the contents of his wallet, and elicited some of this testimony on cross-examination of the State's witnesses, his right to appellate review of these issues is waived. Defendant's assignment of error is dismissed.
V. Evidence to Show a Plan, Scheme, System, or Design
Defendant contends the trial court erred in instructing the jury that evidence was admitted that tended to show that defendant was the person who committed the robbery and that defendant had a plan, scheme, system, or design. We disagree.
A trial judge may give instructions based upon facts presented by some reasonable view of the evidence. State v. Lampkins, 283 N.C. 520, 523, 196 S.E.2d 697, 699 (1973). The State requested that the trial court instruct the jury regarding a plan, scheme, system, or design. Defendant objected on the grounds that insufficient evidence supported this instruction. Defendant withdrew his objection to the portion of the instruction concerning identity of defendant. This instruction is properly given when the State produces substantial evidence that would support a conclusion that a plan, scheme, system, or design involving the crimes charged in the case existed in the mind of a defendant. State v. Harris, 140 N.C. App. 208, 212, 535 S.E.2d 614, 617 (2000). In determining whether substantial evidence of the elements exist, the trial courtmust consider the evidence in the light most favorable to the State and give the State every reasonable inference. Lee, 348 N.C. at 488, 501 S.E.2d at 343.
Defendant was present in and around the Subway on 28 May 2002. The evidence also showed that defendant entered the Subway on March 31 and May 28 at night, wearing a dark t-shirt and dark baseball cap. Both times his hair was pulled up in a bun under his cap. Defendant pretended to be a customer by ordering a sandwich on both occasions. When defendant was subsequently arrested in May after leaving the Subway, a claw hammer was found in his waistband He had no money in his wallet to purchase a sandwich, if that was his true intent in entering the Subway. Considering the circumstances as a whole and viewing the evidence in the light most favorable to the State, substantial evidence shows that defendant did have a plan or scheme in robbing the Subway in March and returned under similar circumstances in May. The trial court did not err in instructing the jury on a plan, scheme, system, or design. Harris, 208 N.C. App. at 212, 535 S.E.2d at 617. Defendant's assignment of error is overruled.
VI. Conclusion
Defendant failed to show that the trial court erred in denying his motions to dismiss. Defendant waived his right to appellate review on the issue of his subsequent bad acts. He failed to show error in the trial court's jury instructions regarding a plan, scheme, system, or design.
No error.
Judges WYNN and McGEE concur.
Report per Rule 30(e).