Opinion
No. COA10-436
Filed 15 March 2011 This case not for publication
Appeal by Defendant from judgments entered 22 July 2009 by Judge W. Erwin Spainhour in Superior Court, Cabarrus County. Heard in the Court of Appeals 12 October 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General Daniel S. Johnson, for the State. William D. Auman for Defendant.
Cabarrus County Nos. 06 CRS 15071-72, 54319.
Jovan David Wash (Defendant) was convicted of three counts of robbery with a dangerous weapon on 22 July 2009. Defendant was sentenced to three consecutive sentences of 64 months to 86 months in prison. Defendant appeals.
Detective Skip Hinson (Det. Hinson) of the Concord Police Department was investigating a series of armed robberies that occurred at pharmacies in Concord and Salisbury on 9 March, 22 August, and 30 September 2006. In each robbery, a man entered a pharmacy, approached an employee, and then demanded money at gunpoint. Det. Hinson obtained a thumb print from the scene of one of the robberies. The print was later identified as belonging to Defendant.
In the hearing transcript regarding Defendant's motion to suppress and in the trial court's order, Det. Hinson is referred to as "Detective Hinson." However, in the trial transcript, Det. Hinson states his name as "Sergeant Skip Hinson." We refer to him as "Det. Hinson."
Defendant was a student at Livingstone College in Salisbury on 16 October 2006. Defendant was in class when Detective J.D. Barber (Det. Barber) of the Salisbury Police Department contacted Gloria Blair (Chief Blair), Chief of Police and Director of Security for Livingstone College, seeking Defendant for questioning regarding the robberies. Chief Blair asked Security Officer May Luckey (Officer Luckey) to escort Defendant from his class to Chief Blair's office.
Defendant was interviewed in Chief Blair's office by Det. Barber, who was not in uniform. While Det. Barber was interviewing Defendant, Det. Hinson, along with Sergeant John Tierney (Sgt. Tierney), arrived and sat in on the interview. Defendant confessed to having committed the robberies and told the officers that he had some of the money, as well as the gun, stored in a rented room. Defendant volunteered to accompany the officers to the room to recover the money and gun. The officers gave Defendant a written copy of his statement to review and sign. Prior to signing the statement, Defendant asked what would happen if he left, and Det. Barber replied that they would have to arrest him. Defendant was then taken to his rented room where the officers recovered the money and gun. Defendant was then taken to the Salisbury Police Department and was advised of his Miranda rights, which he waived. At that time, Defendant gave a second statement confessing to the robberies.
Prior to trial, Defendant filed a motion to suppress the statements he allegedly made on 16 October 2006, arguing, inter alia, that he had not been properly advised of his Miranda rights. The trial court entered an order on 3 June 2008, in which it concluded that: (1) Defendant was not in custody when he made an oral confession to Det. Barber in Chief Blair's office; (2) Defendant gave voluntary and knowing consent to search his room and, therefore, the physical evidence seized therefrom was lawfully obtained; (3) Defendant was fully informed of his Miranda rights and signed a waiver thereof at the Salisbury Police Department; and (4) the nature of Defendant's interview with the officers in Chief Blair's office changed when he asked if he could leave after confessing and was told that he could not leave. Based on these conclusions, the trial court denied Defendant's motion to suppress (1) his confession made in Chief Blair's office, (2) the results of the search of his room, and (3) his statements made after his arrest and waiver of his Miranda rights. The trial court granted Defendant's motion to suppress only as to Defendant's written statement signed in Chief Blair's office.
The day Defendant's trial was scheduled to begin, he filed the following notice of intent to call an alibi witness: "Take notice that an aunt of [D]efendant will testify [D]efendant was staying with her in the State of California during the time of the second (2nd) [r]obbery at Eckerds Drug Store in Concord, N.C." The State objected on the grounds that the State had filed a motion for reciprocal discovery on 25 February 2008. The trial court ordered that Defendant's aunt would not be allowed to testify. The jury found Defendant guilty of three counts of armed robbery. Defendant appeals. Further facts will be discussed below as necessary.
I. Alibi Witness
Defendant first argues that the trial court erred by "failing to allow . . . Defendant to call an alibi witness as a sanction under" N.C. Gen. Stat. § 15A-910. We review a trial court's ruling on whether to exclude evidence as a sanction under N.C. Gen. Stat. § 15A-910(a)(3) (2009) for an abuse of discretion. State v. McDonald, 191 N.C. App. 782, 786, 663 S.E.2d 462, 465 (2008). "`Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.'" State v. Elliott, 360 N.C. 400, 419, 628 S.E.2d 735, 748 (2006) (citation omitted).
In this case, Defendant gave notice on 20 July 2009 of his intent to question an alibi witness at trial. The alibi witness would testify that Defendant was in California during the part of the summer when the robberies occurred. Defendant's trial was calendared to begin the same day. The State objected, "based on the fact that the State did file a motion for reciprocal discovery back in February of 2008." Citing N.C. Gen. Stat. § 15A-905 and McDonald, the State argued that allowing Defendant to call the alibi witness would "put undue prejudice to the State's case." Defendant's attorney countered that he was not informed of the alibi witness until the morning the notice was filed.
In McDonald, our Court stated that N.C.G.S. § 15A-905 provides that, "if the State requests notice of defenses, [a] defendant must provide notice of his or her intent to use the defenses of `alibi, duress, entrapment, insanity, mental infirmity, diminished capacity, self-defense, accident, automatism, involuntary intoxication, or voluntary intoxication.'" McDonald, 191 N.C. App. at 785-86, 663 S.E.2d at 465 (citation omitted). If the defendant fails to provide notice of such a defense, the trial court may apply a sanction set forth in N.C.G.S. § 15A-910, including "`[p]rohibit[ing] the party from introducing evidence not disclosed.'" Id. at 786, 663 S.E.2d at 465 (quoting N.C.G.S. § 15A-910(a)).
In the present case, Defendant argues that the trial court abused its discretion in prohibiting him from introducing evidence in support of his alibi defense because the witness had already traveled to North Carolina from California. Defendant also argues that the State did not move for a continuance to investigate Defendant's alibi defense. In support of this argument, Defendant cites State v. Herrera, 195 N.C. App. 181, 199, 672 S.E.2d 71, 83 (2009) ("However, even assuming, arguendo, that the State did violate the discovery statute provisions, upon careful review of the record, we conclude the trial court did not abuse its discretion in allowing this testimony especially when defendant did not request a recess or continuance to address this newly disclosed evidence."). Finally, Defendant asserts that "[w]e have no record of what the [S]tate may or may not have known about the defendant's purported alibi at the time the trial court's ruling was made." In support of this argument, Defendant cites State v. Jones, 151 N.C. App. 317, 325, 566 S.E.2d 112, 118 (2002) (finding no abuse of discretion when the trial court did not impose sanctions under N.C.G.S. § 15A-910 where the State committed a discovery violation but the "trial court found that defendant was not surprised by the introduction of the photographs at trial, but rather was on notice of the existence of the photographs").
At the hearing on the State's objection to Defendant's notice to present an alibi witness, the State argued that
it would take substantial preparation for me to be able to, one, find out who this person is, get their name, try to speak to them, try to get my investigator to go out to see what, if anything, we can find out about the defendant's whereabouts in California, you know, those types of things, run their criminal record[.]
The trial court then made the following statement: "I think that's right. I'm going to rule that the B-that in the discretion of the [c]ourt, and I've considered this case and I've considered the statute and considered the possible remedies, I think it's just totally unfair to bring this thing up at this point[.]" The trial court then ordered that: "[D]efendant shall not be permitted to submit this alibi witness, whose name is not included in here but an aunt of . . . [D]efendant, at the trial of this case."
It is apparent in reviewing the transcript that the trial court was aware of its discretion in this matter and considered the potential prejudice to the State. We do not find anything in the record to suggest that the trial court's decision was "`manifestly unsupported by reason or [was] so arbitrary that it could not have been the result of a reasoned decision.'" Elliott, 360 N.C. at 419, 628 S.E.2d at 748. Defendant cites no authority for his contention that the trial court's refusal to allow a witness to testify, after that witness traveled to North Carolina from California, is an abuse of discretion where sanctions are otherwise appropriate. In light of the trial court's considerations, and our holding in McDonald, we find no abuse of discretion in the trial court's imposition of sanctions under N.C.G.S. § 15A-910.
II. FBI Identification Number
Defendant next argues that the trial court erred by overruling Defendant's objection to certain testimony of a fingerprint analyst that referred to Defendant's FBI Identification Number. At trial, Sergeant Brian Schiele (Sgt. Schiele) testified as an expert in the field of fingerprint identification. Sgt. Schiele testified that he analyzed five latent fingerprints that Det. Hinson collected at the scene of one of the robberies. Sgt. Schiele also testified that he ran one of the latent fingerprints through the "IAFIS system[,]" which he explained was an "an automated fingerprint search database . . . [and] a federally maintained database which [was used] for running unknown fingerprints." Sgt. Schiele said he received a list of possible candidates from the IAFIS system, and that he was able to identify one candidate in particular as a likely match to one of the five latent fingerprints collected by Det. Hinson. When asked if he knew the identity of this "known print," Sgt. Schiele replied as follows:
The identity of the known print, based on the IAFIS search result, was that of [Defendant] and it also had [Defendant's] FBI number also.
Defendant argues that the mention of an FBI number should have been excluded as improper character evidence and that "the effect of the jury hearing such prejudiced him to the point that it impaired his ability to receive a fair trial." Defendant argues that, because he had not testified nor introduced evidence of his character, the State should not have been allowed to "present evidence of his bad character[.]" Defendant asserts that the State should have been prevented from introducing evidence that "the accused may have committed other independent, separate criminal offenses, where such evidence ha[d] no relevance . . . other than . . . the character of [Defendant]." Defendant further argues that, "[i]n the matter at bar, the jury may well have thought that [Defendant] would not have had an FBI number had he not committed other criminal offenses."
The State contends that Defendant did not object to this evidence at trial and therefore did not preserve this issue for appeal. In reviewing the transcript, we agree. The following exchange occurred during the State's direct examination of Sgt. Schiele:
Q. Now, this particular card that you're referring to, do you know the identity of that particular card, who that belongs to, that known print?
A. The known print?
Q. The known print.
A. Yes. The one that . . . I picked out that had similar characteristics I do know the identity of it.
Q. And what was that identity of that known print?
A. The identity of the —
[Defense Counsel]: Objection
[The trial court]: Overruled.
A. The identity of the known print, based on the IAFIS search result, was that of [Defendant] and it also had [Defendant's] FBI number[.]
Q. Now, do you have that particular known print with you today?
A. Yes, I do.
It is clear from the transcript that Defendant objected to Sgt. Schiele's testifying as to the identity of the known print to which he had been referring, and not to the statement that Defendant had an FBI number. Further, once Defendant's objection was overruled and Sgt. Schiele mentioned the FBI number, Defendant did not move to strike the testimony. Later, when the State moved to offer the actual fingerprint card into evidence, the following exchange occurred:
Q. I will now mark what you've been referring to as known print card as State's Exhibit Number 34, if you will just tell the [c]ourt how you're able to recognize who that particular card is for.
A. This particular card is for [Defendant]. [Defendant's] name appears on the very top, along with his FBI number.
Defendant neither objected to the State's question, nor moved to strike the reference to Defendant's FBI number. Likewise, Defendant did not move to have the fingerprint card redacted. Thus, even had Defendant properly objected the first time the FBI number was mentioned, he later allowed the same reference to occur without 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). Defendant does not argue plain error and thus has waived appellate review of this issue. See State v. Anthony, 354 N.C. 372, 409, 555 S.E.2d 557, 582 (2001). This assignment of error is overruled.
III. Defendant's Miranda Rights
Defendant next argues that the trial court erred by allowing the State to present the oral confession made by Defendant at Livingstone College. Defendant contends that he had not been informed of his Miranda rights at the time Det. Barber questioned him. Defendant contends in his brief that "he was subjected to the functional equivalent of custodial interrogation from the time the interview began, and should have been advised of his rights under the 4th and 14th Amendments to the U.S. Constitution, and Article I, section 20 of the N.C. Constitution, at the onset of questioning."
We review a trial court's ruling on a motion to suppress to determine whether the trial court's findings of fact are supported by competent evidence and whether the trial court's conclusions of law are supported by the findings of fact. State v. Roberson, 163 N.C. App. 129, 132, 592 S.E.2d 733, 735 (2004). "`"[T]he trial court's conclusions of law must be legally correct, reflecting a correct application of applicable legal principles to the facts found."'" State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001) (citation omitted). "The initial inquiry in determining whether Miranda warnings were required is whether an individual was `in custody.'" Id. A "failure to administer Miranda warnings in `custodial situations' creates a presumption of compulsion which would exclude statements of a defendant." Id. at 336-37, 543 S.E.2d at 826. "Additionally, the trial court's determination of whether an interrogation is conducted while a person is in custody involves reaching a conclusion of law, which is fully reviewable on appeal." Id. at 336, 543 S.E.2d at 826.
The trial court made the following unchallenged findings of fact:
4. That at that time, Officer Luckey requested that Defendant leave class with her and that Defendant agreed to be escorted by Officer Luckey to Chief Blair's office located in the Health Center.
5. That it took Officer Luckey approximately ten to fifteen minutes to escort Defendant . . . to Chief Blair's office.
. . . .
10. That during this ten to fifteen minute walk, Defendant was never restrained to any degree or forced to accompany Officer Luckey to Chief Blair's office.
11. That Defendant was free to refuse Officer Luckey's request.
12. That Defendant never expressed he was unwilling to accompany Officer Luckey to Chief Blair's office and that Defendant voluntarily accompanied Officer Luckey to Chief Blair's office.
. . . .
14. That Detective J.D. Barber of the Salisbury Police Department was also present in Chief Blair's office when Defendant arrived.
15. That shortly after Defendant arrived in Chief Blair's office, Sergeant Tierney and Detective Hinson, both of the Concord Police Department, also arrived.
16. That Detective Barber and Sergeant Tierney were seated at the same table as Defendant.
17. That Detective Hinson did not sit at the table with Defendant, Detective Barber, and Sgt. Tierney and that Detective Hinson was seated at the opposite end of the room and did not ask Defendant any questions nor participate in the interview process.
. . . .
19. That Chief Blair remained in the same room with Defendant and the other officers for the entire meeting which lasted between forty minutes to one hour.
. . . .
22. That once Sergeant Tierney and Detective Hinson arrived, Defendant was advised clearly that he was not under arrest, that he did not have to talk to the officers, and that he was free to leave at any time.
23. That after being so advised, Defendant responded by stating that he understood.
24. That Defendant was then told that the officers wanted to talk to him about several robberies.
25. That Defendant freely, voluntarily and intelligently agreed to speak with the officers and that Defendant was polite and cooperative during this meeting.
26. That at first, Defendant denied any involvement in any robberies, at which time Detective Barber confronted Defendant with thumbprint evidence found at a crime scene that matched Defendant's thumbprint, as well as other details about the robberies.
27. That thereafter, Defendant began to give in narrative format a statement to Detective Barber and Sgt. Tierney implicating himself in various armed robberies in both Rowan and Cabarrus counties.
28. That after Defendant began this narrative, Detective Barber and Sgt. Tierney asked him very few questions with the exception of clarifying questions regarding his statement.
29. That after Defendant finished his narrative of his involvement in the armed robberies he spontaneously volunteered that he wanted to do what he could to help himself and that Defendant then disclosed to Detective Barber and Sgt. Tierney that he still had some money from the robberies and the unique gun that was used in the robberies and that these items were located at his house.
30. That during the meeting in Chief Blair's office, there were no threats or promises of leniency made to Defendant, or displays of violence by the law enforcement officers.
. . . .
34. That Detective Barber then asked Defendant for his consent to search his house . . . for the items he had just disclosed.
35. That Defendant knowingly, freely, voluntarily and intelligently gave consent to search his house at that time, free from any coercion or duress and that at the time Defendant gave consent to search his house to Detective Barber, Defendant was not in custody.
. . . .
37. That during Defendant's narrative, Sergeant Tierney had been taking notes of Defendant's statement. . . .
38. That just before Sergeant Tierney offered [Defendant's written statement] to Defendant to review and sign, Defendant asked Detective Barber what would happen if he got up and left.
39. That Detective Barber responded by saying that he guessed he would have to arrest him.
. . . .
41. That up until this very moment, Defendant had not been taken into custody or otherwise deprived of his freedom of movement in any significant way and that up until this moment there had been no formal arrest or restraint on the freedom of Defendant's movement of the degree associated with a formal arrest and that Defendant was not in custody up until Detective Barber told him he was not free to leave and that thereafter Defendant reviewed and signed [his written statement].
First, the trial court denied Defendant's motion to suppress the oral statement of confession that Defendant made to Det. Barber. However, the trial court granted Defendant's motion to suppress his written statement on the grounds that Defendant was in custody when he signed the written statement, but had not been advised of his Miranda rights.
Defendant incorrectly states that, in determining whether a person was in custody for the purposes of a Miranda warning, our Court applies "an objective test and look[s] to whether a reasonable person in the defendant's position would feel that they were free to leave." Rather, our Supreme Court has clearly articulated that the "free to leave" standard is applied when analyzing a seizure under the Fourth Amendment, but that a different standard is used for the purposes of a Miranda argument under the Fifth Amendment. Specifically, the Supreme Court held:
Conversely, the indicia of formal arrest test has been consistently applied to Fifth Amendment custodial inquiries and requires circumstances which go beyond those supporting a finding of temporary seizure and create an objectively reasonable belief that one is actually or ostensibly "in custody." See [State v.] Gaines, 345 N.C. [647,] 662-63, 483 S.E.2d [396,] 405-06 [(1997] (applying the "free to leave" test in Fourth Amendment analysis and the "restraint on freedom of movement to the degree of a formal arrest" test to Fifth Amendment analysis); see also United States v. Sullivan, 138 F.3d 126, 130 (4th Cir. 1998) (differentiating between being "free to leave" and having "freedom of action curtailed to a degree associated with arrest"). Circumstances supporting an objective showing that one is "in custody" might include a police officer standing guard at the door, locked doors or application of handcuffs. . . . To the extent that these or other opinions of this Court or the Court of Appeals have stated or implied that the determination of whether a defendant is "in custody" for Miranda purposes is based on a standard other than the "ultimate inquiry" of whether there is a "formal arrest or restraint on freedom of movement of the degree associated with a formal arrest," that language is disavowed.
Buchanan, 353 N.C. at 339-40, 543 S.E.2d at 828.
Defendant cites no case law in support of his argument that the interview setting in the present case was such that it would amount to a custodial interrogation. Likewise, the State points to no authority in its argument. However, we find guidance in our Supreme Court's statement in Buchanan that: "Circumstances supporting an objective showing that one is `in custody' might include a police officer standing guard at the door, locked doors or application of handcuffs." Id. at 339, 543 S.E.2d at 828.
We also note our Supreme Court's analysis in State v. Garcia, 358 N.C. 382, 597 S.E.2d 724 (2004):
In the present case, defendant gave a single incriminating statement to a plain-clothed, unarmed detective. Although a recess was taken during both the interrogation in Buchanan and defendant's questioning in the present case, the break in Buchanan was accompanied by circumstances that would cause a reasonable person to believe he was under arrest or that his movement had been restrained to that degree. In Buchanan, the presence of two interrogating officers, one of whom was uniformed and armed, escorting the suspect to the restroom represented a heightened level of security and a marked shift in the tone of the suspect's station-house interview. The changed nature of the suspect's relationship with the interviewing officers would have been especially apparent because the facts of Buchanan indicate that before giving his first inculpatory statement, the suspect was allowed to visit the restroom and get a drink of water by himself. Also, the suspect in Buchanan had a second compelling reason to believe he was under arrest, having just confessed to two police officers that he had become "berserk" and shot two people to death in their bedroom. Indeed, the facts of Buchanan show that the suspect's preliminary statement prompted the officers to accompany him to the men's restroom.
Id. at 399, 597 S.E.2d at 738.
In the present case, Defendant was asked to accompany a campus security officer to Chief Blair's office. When Defendant arrived, he found Det. Barber waiting for him. Two other officers arrived shortly thereafter and sat at a table with Defendant. Defendant was told that he was not under arrest, that he did not have to speak with the officers, and that he was free to leave at any time. Defendant was in the office of the chief of campus security B not in a police station or an interrogation room. Defendant was not under guard, but was sitting at a table with two officers who asked him questions about a series of robberies. Importantly, Defendant had been told that he was not under arrest and that he was free to leave. There was nothing suggesting that a police officer was standing guard at the door to the room or that the door was locked. Also, Defendant had not been placed in handcuffs. Under these circumstances, we hold that the findings of fact support the trial court's conclusion of law that Defendant was not in custody at the time he made his oral statement of confession to Det. Barber in Chief Blair's office. Thus, the trial court properly denied Defendant's motion to suppress his oral statement.
IV. Physical Evidence
Defendant next argues that the trial court erred in allowing the State's introduction of physical evidence seized after Defendant made his oral confession. The evidence in question included photographs of the handgun used during the robberies, the clothes and mask worn by the robber during the robberies, and some of the money taken during the robberies. This evidence was seized during a search of Defendant's rented room that occurred after Defendant gave consent to a search following his statement to Det. Barber. Defendant contends that, because his oral statement was given without Miranda warnings, his consent to a search was obtained "as a result of a state or federal constitutional violation." As we have held that Defendant's oral statement was not taken in violation of his constitutional rights, we overrule this argument.
V. Salisbury Police Department Statement
Defendant next argues that the trial court erred in admitting a statement made by him after he was arrested and taken to the Salisbury Police Department. Defendant was formally given Miranda warnings at the Salisbury Police Department, but he argues that "this point in the case would never have been reached if he had originally been given proper constitutional warnings at the outset of his questioning." Defendant contends that this statement is derivative of a constitutional violation, a "by-product of the initial interview." Because we have held that Defendant's initial oral statement was not taken in violation of his constitutional rights, we overrule this argument as well.
VI. Surrebuttal Evidence
Defendant next argues that the trial court erred in not allowing him to present surrebuttal evidence after the State recalled Det. Hinson. After the close of Defendant's evidence, the State re-called Det. Hinson for rebuttal examination. After the examination of Det. Hinson, Defendant wished to return to the stand to offer surrebuttal evidence, but the trial court denied Defendant this opportunity. Defendant, citing State v. Lowery, 318 N.C. 54, 347 S.E.2d 729 (1986), argues in his brief that "our Supreme Court ha[s] held that when new evidence is allowed the adverse party must be permitted further rebuttal." Defendant asserts the trial court erred by refusing his request to offer surrebuttal evidence.
N.C. Gen. Stat. § 15A-1226 (2009) provides in pertinent part:
Each party has the right to introduce rebuttal evidence concerning matters elicited in the evidence in chief of another party. The judge may permit a party to offer new evidence during rebuttal which could have been offered in the party's case in chief or during a previous rebuttal, but if new evidence is allowed, the other party must be permitted further rebuttal.
In his brief, Defendant contends that
we again see a discretionary decision being made without the trial court being fully aware of the evidentiary consideration that relate to that decision. The record is devoid of any offer of proof as to what the surrebuttal evidence would have been and without such, it is difficult to objectively evaluate [the trial court's decision].
However, the issue before us is not to determine what Defendant would have said had he been allowed to testify on surrebuttal. Rather, the issue is whether Det. Hinson's rebuttal testimony contained "new evidence." See N.C.G.S. § 15A-1226; State v. Clark, 128 N.C. App. 87, 98, 493 S.E.2d 770, 777 (1997) ("[I]n determining whether a defendant is entitled to present surrebuttal evidence, the dispositive issue is whether the [S]tate presented new evidence on rebuttal."). If so, Defendant "must [have been] permitted further rebuttal." N.C.G.S. § 15A-1226. If not, Defendant's argument is without merit. The sole contention in Defendant's brief that Det. Hinson's rebuttal contained "new evidence" is the following: "[Det.] Hinson denied coercing . . . [D]efendant during his initial interview, claimed that [Defendant] had been given Miranda warnings prior to his formal statement, and never saw his cell phone."
In reviewing Defendant's own testimony in the transcript, we find he testified that he was coerced, that his cell phone had been taken during the interview, and confusion that he had not been properly advised of his Fifth Amendment rights pursuant to Miranda. Thus, none of Det. Hinson's challenged statements appear to be "new evidence," but rather, were denials of Defendant's own testimony. See Clark, 128 N.C. App. at 98, 493 S.E.2d at 777 (a "review of [the State's witness's] testimony reveals that in giving his expert opinion, he presented to the jury no new or additional evidence regarding the State's version of the crime; instead, he merely presented a version of the facts `different' from that of the defense"). Because Det. Hinson did not present new evidence during his rebuttal testimony, the trial court was not required by N.C.G.S. § 15A-1226 to allow Defendant's surrebuttal evidence. We therefore overrule this assignment of error.
VII. Motion to Dismiss
Defendant also argues that the trial court erred by failing to dismiss the charges for insufficiency of the evidence. "`In ruling on a motion to dismiss, the trial court must consider the evidence in the light most favorable to the State and give the State every reasonable inference to be drawn therefrom.'" State v. Golphin, 352 N.C. 364, 458, 533 S.E.2d 168, 229 (2000) (citations omitted). "To withstand a defendant's motion to dismiss, `the trial court need determine only whether there is substantial evidence of each essential element of the crime and that the defendant is the perpetrator.'" Id. (citation omitted). The essential elements of robbery with a dangerous weapon are: "`(1) the unlawful taking or 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. Small, 328 N.C. 175, 181, 400 S.E.2d 413, 416 (1991) (citation omitted).
Defendant "incorporates his prior arguments . . . as to this issue as well." Defendant asserts that his confession should not have been admissible for the reasons discussed above and that the remaining evidence was insufficient to support a conviction. However, as we have ruled that there was no error in admitting Defendant's oral confession, his argument is without merit. Viewing the evidence in the light most favorable to the State, including Defendant's oral confession to having committed the robberies and the physical evidence recovered from his room, we find that there was sufficient evidence to support each essential element of armed robbery. This argument is without merit.
No error.
Judges HUNTER, JR. and BEASLEY concur.
Report per Rule 30(e).