State v. Mitchell

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-645
NORTH CAROLINA COURT OF APPEALS
Filed: 15 April 2014
STATE OF NORTH CAROLINA

Columbus County
v.
No. 11 CRS 53760, 53725-27

RICKY LEVELL MITCHELL

Appeal by defendant from judgments entered 20 February 2013

by Judge D. Jack Hooks, Jr., in Columbus County Superior Court.

Heard in the Court of Appeals 21 November 2013.

Attorney General Roy Cooper, by Assistant Attorney General
Scott A. Conklin, for the State.

Unti & Lumsden LLP, by Margaret C. Lumsden, for Defendant.

ERVIN, Judge.

Defendant Ricky Levell Mitchell appeals from judgments

sentencing him to a term of 64 to 86 months imprisonment based

upon his convictions for robbery with a dangerous weapon and

obtaining property by false pretenses and to a term of 6 to 8

months imprisonment based upon his convictions for uttering a

forged instrument. On appeal, Defendant argues that the trial

court erred by denying his motions to dismiss the robbery with a

dangerous weapon charge, by failing to instruct the jury

concerning the issue of his guilt of the lesser included offense
 -2-
of common law robbery, by joining all of the charges that had

been lodged against him for trial, and by allowing the admission

of impermissible lay opinion testimony, and that he received

ineffective representation from his trial counsel given his

trial counsel’s failure to request that the jury be instructed

concerning the issue of his guilt of the lesser included offense

of common law robbery. After careful consideration of

Defendant’s challenges to the trial court’s judgments in light

of the record and the applicable law, we conclude that the trial

court’s judgments should remain undisturbed.

I. Factual Background

A. Substantive Facts

1. The Checks

Lee A. Walker, a resident of the Lake Waccamaw retirement

home, became friends with Defendant’s mother, Melinda Mitchell.

Ms. Mitchell, a nursing assistant at the retirement home, would

take Mr. Walker with her to church. Mr. Walker had his mail,

including financial information, sent to Ms. Mitchell’s address

because he did not trust the way in which the retirement home

handled his mail. In addition, Ms. Mitchell helped Mr. Walker

set up a checking account at the State Employees’ Credit Union.

Defendant often accompanied Ms. Mitchell and Mr. Walker to the

SECU.
 -3-
After he received an order of checks that had been

delivered to Ms. Mitchell’s residence, Mr. Walker noticed that

the box containing the checks had been opened and that a pack of

checks was missing. Subsequently, Mr. Walker discovered that

three checks written on his account in the total amount of

$1,900 had been cashed on 7 October 2011, 10 October 2011, and

15 October 2011, respectively. Mr. Walker denied having written

the checks in question or authorizing anyone to access the

monies contained in his account.

After discovering that the checks had been cashed, Mr.

Walker spoke with Ms. Linda Cartrette, a SECU employee. After

Ms. Cartrette showed him photographs of an individual cashing

the checks, Mr. Walker identified Defendant as the person

depicted in those photographs and told Ms. Cartrette that he had

not given Defendant permission to engage in the transactions.

Upon comparing the signatures on the cashed checks with Mr.

Walker’s signature, Ms. Cartrette confirmed that the two

signatures did not match.

2. The Robbery

On 7 November 2011, Defendant, Tremayne Davis, and Kendrell

Robinson decided to arrange to sell some marijuana to Mr. Walker

as a pretext for robbing him. After speaking with Defendant by

telephone, Mr. Walker agreed to meet Defendant at the retirement

home. According to Mr. Davis, who testified for the State
 -4-
pursuant to an agreement under which he was allowed to plead

guilty to common law robbery and receive a probationary

sentence, Mr. Walker was at the meeting place when the group

arrived. At that point, all three men got out of the car. As

Mr. Davis and Mr. Robinson, who was carrying a gun, approached

Mr. Walker and pointed the gun at Mr. Walker’s head, Mr. Davis

told Mr. Walker to “give it up,” grabbed the money that was in

Mr. Walker’s hands, and took his cell phone and a wallet

containing an ATM card before reentering the car with the rest

of the group and driving away.1

After the robbery, the three men drove to a grocery store

at which Defendant used Mr. Walker’s ATM card to obtain cash.

According to Mr. Walker, the PIN number associated with his ATM

card had been mailed to the residence of Defendant’s mother.

Subsequently, the three men drove to a second ATM and made

another effort to obtain cash using Mr. Walker’s ATM card.

However, this attempt failed because the card had been

deactivated. According to Mr. Davis, Defendant had Mr. Walker’s

card reactivated by phone and made another withdrawal.

After being dispatched to the scene of the robbery, Officer

Adam Sellers of the Lake Waccamaw Police Department spoke with

Mr. Walker and made arrangements to have Mr. Walker’s ATM card
1
Mr. Walker could not identify the individuals involved in
the robbery and simply recalled that two men got out of the car
and approached him while another person remained in the car.
 -5-
permanently deactivated. While speaking with Officer Sellers,

Mr. Walker mentioned Defendant as a potential suspect and

described the car that had been used to facilitate the robbery.

Later that night, law enforcement stopped the vehicle in which

Defendant was riding based on outstanding warrants that had been

issued as a result of the unauthorized cashing of checks drawn

on Mr. Walker’s account. Although Defendant denied having had

any involvement in the robbery of Mr. Walker, Officer Sellers

testified that the sweatshirt that Defendant was wearing at the

time that he was taken into custody matched the sweatshirt worn

by an individual photographed using an ATM that night.

B. Procedural History

On 7 November 2011, warrants for arrest charging Defendant

with three counts of forgery and uttering were issued. On 10

November 2011, a warrant for arrest charging Defendant with

robbery with a dangerous weapon and obtaining property by false

pretenses was issued. On 9 May 2012, the Columbus County grand

jury returned a bill of indictment charging Defendant with

robbery with a dangerous weapon and obtaining property by false

pretenses. On 8 August 2012, the Columbus County grand jury

returned bills of indictment charging Defendant with three

counts of forgery and uttering. On 6 September 2012, the

Columbus County grand jury returned superseding indictments in

two of the three forgery and uttering cases.
 -6-
The charges against Defendant came on for trial before the

trial court and a jury at the 18 February 2013 criminal session

of the Columbus County Superior Court. At the beginning of the

trial proceedings, the trial court allowed the State’s motion to

join all of the charges that had been lodged against Defendant

for trial. At the conclusion of the State’s evidence, the trial

court granted Defendant’s motion to dismiss the forgery charges

for insufficiency of the evidence. On 20 February 2013, the

jury returned a verdict convicting Defendant of robbery with a

dangerous weapon, obtaining property by false pretenses, and

three counts of uttering a forged instrument. At the conclusion

of the ensuing sentencing hearing, the trial court consolidated

Defendant’s robbery with a dangerous weapon and obtaining

property by false pretenses convictions for judgment and entered

a judgment sentencing Defendant to a term of 64 to 86 months

imprisonment and consolidated Defendant’s convictions for

uttering a forged instrument for judgment and entered a judgment

sentencing Defendant to a term of 6 to 8 months imprisonment.

Although Defendant contends that his trial counsel intended

to give oral notice of appeal in open court after the entry of

judgment, the record is completely devoid of any indication that

Defendant’s appeal from the trial court’s judgments was ever

noted either orally or in writing. On 5 August 2013 and 26

August 2013, respectively, Defendant filed a petition and an
 -7-
amended petition seeking the issuance of a writ of certiorari

authorizing appellate review of the 20 February 2013 judgments.

As a result of the fact that “[t]he writ of certiorari may be

issued in appropriate circumstances by either appellate court to

permit review of the judgments and orders of trial tribunals

when the right to prosecute an appeal has been lost by failure

to take timely action,” N.C.R. App. P. 21(a), and our belief

that Defendant should not lose the right to appellate review of

the trial court’s judgments based upon the apparent failure of

his trial counsel to note an appeal from the trial court’s

judgments in a timely manner, we elect, in the exercise of our

discretion, to grant Defendant’s certiorari petition.2

II. Substantive Legal Analysis

A. Sufficiency of the Evidence of Robbery

In his initial challenge to the trial court’s judgments,

Defendant contends that the trial court erred by denying his

motion to dismiss the robbery charge for insufficiency of the

evidence. More specifically, Defendant argues that the trial

court should have granted Defendant’s dismissal motion because
2
N.C.R. App. P. 9(b)(1) states that “[t]he items
constituting the record on appeal should be arranged, so far as
practicable, in the order in which they occurred or were filed
in the trial tribunal.” However, the record on appeal in this
case was arranged, to a considerable extent, by grouping items
on the basis of the file number assigned to those items in the
court below. We urge counsel representing parties on appeal to
comply with the chronological presentation requirement mandated
by N.C.R. App. P. 9(b)(1).
 -8-
the record contained no indication that he possessed a firearm

during the robbery. Defendant’s argument lacks merit.

1. Standard of Review

In reviewing the denial of a defendant’s motion to dismiss,

“‘the question for the Court is whether there is substantial

evidence (1) of each essential element of the offense charged,

or of a lesser offense included therein, and (2) of defendant’s

being the perpetrator of such offense. If so, the motion is

properly denied.’” State v. Fritsch, 351 N.C. 373, 378, 526

S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430

S.E.2d 914, 918 (1993)), cert. denied, 531 U.S. 890, 121 S. Ct.

213, 148 L. Ed. 2d 150 (2000). “Substantial evidence is such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79,

265 S.E.2d 164, 169 (1980). “In making its determination, the

trial court must consider all evidence admitted, whether

competent or incompetent, in the light most favorable to the

State, giving the State the benefit of every reasonable

inference and resolving any contradictions in its favor.” State

v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert.

denied, 515 U.S. 1135, 115 S. Ct. 2565, 132 L. Ed. 2d 818

(1995).

2. Sufficiency of the Evidence to Support Robbery Conviction
 -9-
The elements of the crime of robbery with a dangerous

weapon are: (1) the unlawful taking or attempted taking of

personal property from another, (2) the possession, use or

threatened use of a firearm or other dangerous weapon, and (3)

the creation of a danger or threat to the life of the victim.

N.C. Gen. Stat. § 14-87(a); State v. Joyner, 295 N.C. 55, 63,

243 S.E.2d 367, 373 (1978). “Under the theory of acting in

concert, if two or more persons join in a purpose to commit a

crime, each person is responsible for all unlawful acts

committed by the other persons as long as those acts are

committed in furtherance of the crime’s common purpose.” State

v. Hill, 182 N.C. App. 88, 92-93, 641 S.E.2d 380, 385 (2007)

(citing State v. Erlewine, 328 N.C. 626, 637, 403 S.E.2d 280,

286 (1991)). As a result, in order to establish a defendant’s

guilt of the crime of robbery with a dangerous weapon, “the

State need not present evidence that defendant actually

possessed the dangerous weapon” and “must only show that

defendant ‘acted in concert to commit robbery and that his co-

defendant used the dangerous weapon in pursuance of that common

purpose to commit robbery.’” Hill, 182 N.C. App. at 93, 641

S.E.2d at 385 (quoting State v. Johnson, 164 N.C. App. 1, 13,

595 S.E.2d 176, 183, disc. review denied, 359 N.C. 194, 607

S.E.2d 658 (2004)).
 -10-
The record, when viewed in the light most favorable to the

State, contains evidence tending to show that Defendant, Mr.

Davis, and Mr. Robinson acted in concert for the purpose of

robbing Mr. Walker of his money, wallet, and cell phone; that a

gun was used during the commission of this criminal offense; and

that Mr. Walker felt that his life was endangered during the

robbery. The fact that the robbery indictment returned against

Defendant did not allege that he acted as an accomplice or aided

and abetted Mr. Davis and Mr. Robinson simply has no bearing on

the proper resolution of this issue. As a result, the record

contains ample evidence tending to show Defendant’s guilt of

robbery with a dangerous weapon on the grounds that he acted in

concert to commit that offense with Mr. Davis and Mr. Robinson,

a fact that establishes that the trial court correctly denied

Defendant’s motion to dismiss the robbery with a dangerous

weapon charge.

B. Common Law Robbery Instruction

Secondly, Defendant contends that the trial court erred by

failing to instruct the jury concerning the issue of his guilt

of the lesser included offense of common law robbery. According

to Defendant, the jury should have been allowed to consider the

issue of his guilt of common law robbery on the grounds that the

record contains evidence tending to show that he did not use a
 -11-
weapon during the robbery of Mr. Walker. We do not find

Defendant’s argument persuasive.

1. Standard of Review

“[A] trial judge must instruct the jury on all lesser

included offenses that are supported by the evidence, even in

the absence of a special request for such an instruction,” with

“the failure to do so [constituting] reversible error which is

not cured by a verdict finding the defendant guilty of the

greater offense.” State v. Montgomery, 341 N.C. 553, 567, 461

S.E.2d 732, 739 (1995). “The trial court may refrain from

submitting the lesser offense to the jury only where the

‘evidence is clear and positive as to each element of the

offense charged’ and no evidence supports a lesser-included

offense.” State v. Lawrence, 352 N.C. 1, 19, 530 S.E.2d 807,

819 (2000) (quoting State v. Peacock, 313 N.C. 554, 558, 330

S.E.2d 190, 193 (1985)), cert. denied, 531 U.S. 1083, 121 S. Ct.

789, 148 L. Ed. 2d 684 (2001). As a result, the ultimate issue

raised by Defendant’s challenge to the trial court’s failure to

submit the issue of his guilt of the lesser included offense of

common law robbery for the jury’s consideration is whether the

record contains sufficient evidence from which the jury could

have reasonably concluded that Defendant was guilty of that

offense.

2. Common Law Robbery
 -12-
Common law robbery, which is “the non-consensual taking of

money or personal property from another by means of violence or

fear,” State v. White, 142 N.C. App. 201, 204, 542 S.E.2d 265,

267 (2001), is “a lesser included offense of armed robbery or

robbery with a firearm or other dangerous weapon,” so that “an

indictment for armed robbery will support a conviction of common

law robbery.” State v. Tarrant, 70 N.C. App. 449, 451, 320

S.E.2d 291, 293-94 (1984). “The critical difference between

armed robbery and common law robbery is that the former is

accomplished by the use or threatened use of a dangerous weapon

whereby the life of a person is endangered or threatened” while

“[t]he use or threatened use of a dangerous weapon is not an

essential element of common law robbery.” Peacock, 313 N.C. at

562-63, 330 S.E.2d at 195 (citations omitted). “[T]he trial

judge is not required to instruct on common law robbery when the

defendant is indicted for armed robbery if the uncontradicted

evidence indicates that the robbery, if perpetrated, was

accomplished by the use of what appeared to be a dangerous

weapon.” Tarrant, 70 N.C. App. at 451-52, 320 S.E.2d at 294

(citing State v. Porter, 303 N.C. 680, 686-87, 281 S.E.2d 377,

382 (1980)).

As the uncontroverted evidence contained in the present

record tends to show, the robbery of Mr. Walker was committed

with the threatened use of a firearm. More specifically, both
 -13-
Mr. Walker and Mr. Davis testified that a gun was used during

the robbery. The record contains absolutely no evidence tending

to contradict this aspect of the testimony presented by Mr.

Walker and Mr. Davis. For that reason, we have no hesitation in

concluding that all of the evidence tends to show that

Defendant, Mr. Davis, and Mr. Robinson, who were acting in

concert, took Mr. Walker’s property while using a firearm, a

fact that establishes the existence of the elements necessary to

support Defendant’s conviction for robbery with a dangerous

weapon. Joyner, 295 N.C. at 63, 243 S.E.2d at 373. The fact

that Defendant did not actually possess the firearm used during

the robbery of Mr. Walker simply does not, contrary to

Defendant’s contention, have any bearing on the proper

resolution of this issue. As a result, the trial court did not

err by failing to instruct the jury concerning the issue of

Defendant’s guilt of the lesser included offense of common law

robbery.

C. Ineffective Assistance of Counsel

Thirdly, Defendant contends that he received

constitutionally deficient representation from his trial counsel

as the result of his trial counsel’s failure to request the

trial court to instruct the jury concerning the issue of his

guilt of the lesser included offense of common law robbery.

Defendant’s argument lacks merit.
 -14-
“To prevail on a claim of ineffective assistance of

counsel, a defendant must first show that his counsel’s

performance was deficient and then that counsel’s deficient

performance prejudiced his defense.” State v. Allen, 360 N.C.

297, 316, 626 S.E.2d 271, 286 (citing Strickland v. Washington,

466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693

(1984)), cert. denied, 549 U.S. 867, 127 S. Ct. 164, 166 L. Ed.

2d 116 (2006). “Counsel’s performance is deficient when it

falls ‘below an objective standard of reasonableness.’” State

v. Waring, 364 N.C. 443, 502, 701 S.E.2d 615, 652 (2010)

(quoting Strickland, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L.

Ed. 2d at 693), cert. denied, __ U.S. __, 132 S. Ct. 132, 181 L.

Ed. 2d 53 (2011). A defendant is prejudiced by such deficient

performance when “there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the

proceeding would have been different,” with such a “reasonable

probability” being “a probability sufficient to undermine

confidence in the outcome.” Allen, 360 N.C. at 316, 626 S.E.2d

at 286 (citations and quotation marks omitted).

In his brief, Defendant contends that the representation

that he received from his trial counsel was deficient given his

trial counsel’s alleged failure to request the trial court to

instruct the jury concerning the issue of his guilt of the

lesser included offense of common law robbery. The first
 -15-
problem with this argument is that Defendant’s trial counsel

did, in fact, unsuccessfully request that the jury be allowed to

consider the issue of his guilt of common law robbery. In

addition, given the absence of any evidence tending to show that

Defendant was guilty of common law robbery, any deficient

representation that Defendant might have received from his trial

counsel did not prejudice his chances for a more favorable

outcome at trial. As a result, Defendant is not entitled to

relief from the trial court’s judgments based upon this

ineffective assistance of counsel claim.

D. Joinder

Fourthly, Defendant contends that the trial court

erroneously joined all of the offenses with which he had been

charged for trial. More specifically, Defendant argues that the

uttering charges should not have been joined for trial with the

robbery and false pretenses charges given the absence of a

transactional connection between these two sets of offenses. We

are not persuaded by Defendant’s contention.

N.C. Gen. Stat. § 15A-926(a) provides that “[t]wo or more

offenses may be joined . . . for trial when the offenses . . .

are based on the same act or transaction or on a series of acts

or transactions connected together or constituting parts of a

single scheme or plan.” N.C. Gen. Stat. § 15A-926(a). “A

motion to consolidate charges for trial is addressed to the
 -16-
sound discretion of the trial judge and that ruling will not be

disturbed on appeal absent an abuse of discretion.” State v.

Silva, 304 N.C. 122, 126, 282 S.E.2d 449, 452 (1981). “If,

however, the charges consolidated for trial possess no

transactional connection, then the consolidation is improper as

a matter of law.” Id. “In considering whether a transactional

connection exists among offenses, our courts have taken into

consideration such factors as the nature of the offenses

charged, commonality of facts, the lapse of time between

offenses, and the unique circumstances of each case.” State v.

Herring, 74 N.C. App. 269, 273, 328 S.E.2d 23, 26 (1985)

(citations and internal quotation marks omitted), aff’d, 316

N.C. 188, 340 S.E.2d 105 (1986). In resolving the issues raised

by a joinder motion, the trial court must also consider whether

a decision to allow that motion would hinder the defendant’s

ability to present a defense or deprive him or her of a fair

trial. State v. Greene, 294 N.C. 418, 421, 241 S.E.2d 662, 664

(1978). As a result, “[t]he question is whether the offenses

are so separate in time and place and so distinct in

circumstances as to render a consolidation unjust and

prejudicial to defendant.” Id. at 423, 241 S.E.2d at 665.

All of the charges that have been lodged against Defendant

in this case stem from a series of acts which were committed

against Mr. Walker and arose from Defendant’s relationship with
 -17-
Mr. Walker and which were facilitated by Defendant’s familiarity

with Mr. Walker’s financial situation. As a result of the

relationship between his mother and Mr. Walker, Defendant had

access to Mr. Walker’s checks and to information relating to his

SECU account, including the ATM PIN number associated with that

account. According to the evidence presented at trial,

Defendant used the information to which he had access in order

to cash checks drawn on Mr. Walker’s SECU account and to

withdraw money from Mr. Walker’s SECU account using the ATM card

that was stolen during the robbery. According to Mr. Davis, he,

Mr. Robinson, and Defendant decided to rob Mr. Walker in light

of Defendant’s statement to the effect that he knew someone with

money. Thus, since the record shows the existence of a

transactional relationship between the charges that the trial

court allowed to be joined for trial and since we are unable to

see how Defendant was deprived of a fair trial by the trial

court’s decision to join the uttering charges with the robbery

and false pretenses charges, the trial court did not abuse its

discretion by allowing the State’s joinder motion. Silva, 304

N.C. at 126, 282 S.E.2d at 452.3

3
In attempting to persuade us to reach a different result,
Defendant cites several cases in which this Court held that a
trial court erroneously joined a number of offenses for trial.
The cases upon which Defendant relies are easily distinguishable
from the instant case, however, given that the cases upon which
Defendant relies involved offenses committed against multiple
 -18-
E. Lay Witness Testimony

Finally, Defendant argues that the trial court erred by

allowing the admission of impermissible lay opinion testimony.

More specifically, Defendant contends that the trial court erred

by allowing Ms. Cartrette to describe the differences between

Mr. Walker’s signature and that found on the forged checks,

allowing Officer Sellers to compare the sweatshirt that

Defendant was wearing at the time that he was taken into custody

with the sweatshirt worn by the individual depicted in the ATM

photograph, and by allowing Ms. Cartrette to identify the

individual depicted in the ATM photograph. Defendant is not

entitled to relief from the trial court’s judgments based upon

this series of contentions.

1. Standard of Review

As a general proposition, lay witnesses are permitted to

offer “opinions or inferences which are (a) rationally based on

the perception of the witness and (b) helpful to a clear

understanding of his testimony or the determination of a fact in

issue.” N.C. Gen. Stat. § 8C–1, Rule 701. “[W]hether a lay

witness may testify as to an opinion is reviewed for abuse of

discretion.” State v. Washington, 141 N.C. App. 354, 362, 540

alleged victims while this case involves multiple offenses
committed against the same individual stemming from Defendant’s
familiarity with and access to that individual’s financial
information.
 -19-
S.E.2d 388, 395 (2000), disc. review denied, 353 N.C. 396, 547

S.E.2d 427 (2001). An “[a]buse 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. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523,

527 (1988).

2. Analysis of Specific Instances of Lay Opinion Testimony

a. Testimony Regarding Mr. Walker’s Signature

In discussing the differences between Mr. Walker’s

signature and the signatures that appeared on the forged checks

that Defendant presented for payment, Ms. Cartrette described

Mr. Walker’s signature as “a little bit of scribbling, it’s not

really smooth handwriting,” and described the signatures on the

forged checks as “tend[ing] to be smooth.” Although Defendant

argues that the jury should not have been allowed to hear Ms.

Cartrette’s comments, we believe that her testimony describing

the signatures was “rationally based on [her] perception” of the

differences between those signatures and was helpful in

determining whether the checks that Defendant presented for

payment had been forged. N.C. Gen. Stat. § 8C-1, Rule 701. As

a result, the trial court’s decision to allow the admission of

this portion of Ms. Cartrette’s testimony was not “so arbitrary

that it could not have been the result of a reasoned decision.”

Hennis, 323 N.C. at 285, 372 S.E.2d at 527.
 -20-
Moreover, “[e]videntiary error does not necessitate a new

trial unless the erroneous admission was prejudicial.” State v.

Wilkerson, 363 N.C. 382, 415, 683 S.E.2d 174, 194 (2009), cert.

denied, 559 U.S. 1074, 130 S. Ct. 2104, 176 L. Ed. 2d 734

(2010). Even if the trial court erred by allowing Ms. Cartrette

to comment upon the differences between Mr. Walker’s signature

and the signatures appearing on the checks that Defendant

presented for payment, any such error was clearly harmless. “A

defendant is prejudiced by evidentiary error ‘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.’” Id. (quoting N.C. Gen.

Stat. § 15A-1443(a)). At trial, Mr. Walker testified that he

had not written the checks that Defendant presented for payment

and that his handwriting, rather than being smooth, was like

“chicken scratch” as the result of a prior stroke. Similarly,

another SECU employee named Natalie Frazier testified that Mr.

Walker had difficulty signing his name and that his signature

was “somewhat jagged.” As a result, since “substantially the

same evidence [was elicited] through other witnesses,” State v.

Richardson, 341 N.C. 658, 671, 462 S.E.2d 492, 501 (1995), we

hold that, even if the trial court erroneously admitted Ms.

Cartrette’s testimony concerning the differences between Mr.

Walker’s signature and those found on the checks that Defendant
 -21-
presented for payment, there is not “a reasonable possibility

that, had the error in question not been committed, a different

result would have been reached at the trial.” N.C. Gen. Stat. §

15A-1443(a).

b. Testimony Regarding Defendant’s Sweatshirt

At trial, Officer Sellers testified that the sweatshirt

that he observed Defendant wearing at the time that he was taken

into custody on the night of the robbery was the same as the

sweatshirt worn by an individual depicted in ATM photographs

taken that same evening. Although Defendant contends that the

trial court should have excluded this portion of Officer

Sellers’ testimony, we conclude, as we have in similar cases,

that the challenged testimony was rationally based upon Officer

Sellers’ personal observation of the sweatshirt that Defendant

was wearing on the night of the robbery and was helpful in

identifying the individual depicted in the ATM photograph. See

State v. Mewborn, 131 N.C. App. 495, 499, 507 S.E.2d 906, 909

(1998) (holding that the trial court did not err by admitting an

officer’s testimony that the markings on the defendant’s shoes

were consistent with the markings shown on shoes worn by the

perpetrator depicted in a video of a robbery in light of the

fact that this testimony was based upon the officer’s personal

observation of the defendant’s shoes when he was brought in for

questioning). As a result, the trial court did not err by
 -22-
allowing Officer Sellers to testify concerning the resemblance

between the sweatshirt that Defendant was wearing when he was

taken into custody and the sweatshirt worn by an individual

depicted in an ATM photograph taken that same night.

c. Testimony Identifying Defendant as
Depicted in Certain Photographs

Finally Defendant argues that the trial court erred by

allowing Ms. Cartrette to identify him as the individual

depicted in the ATM photographs.4 Defendant did not, however,

object to the admission of Ms. Cartrette’s testimony identifying

Defendant as the individual depicted in certain photographs

admitted into evidence at trial. As a result, our review of

Defendant’s challenge to the admission of this portion of Ms.

Cartrette’s testimony is limited to determining whether he is

entitled to appellate relief on plain error grounds. State v.

Mendoza, 206 N.C. App. 391, 395, 698 S.E.2d 170, 174 (2010)
4
As a preliminary matter, we note that different sets of
photographs were discussed during the course of Ms. Cartrette’s
testimony and that Defendant has not clearly identified the
photographs relating to the testimony that he seeks to challenge
in his brief. The first set of photographs discussed in Ms.
Cartrette’s testimony depict an individual whom Ms. Cartrette
identified as Defendant cashing the stolen checks. A second set
of photographs discussed in Ms. Cartrette’s testimony depict an
individual using Mr. Walker’s stolen ATM card to make a
withdrawal. Although this individual is wearing a sweatshirt,
his or her face cannot be seen. Ms. Cartrette did not identify
Defendant as the individual depicted in this second set of
photographs. As a result, we conclude that Defendant’s argument
is directed toward Ms. Cartrette’s testimony relating to the
first, rather than the second, set of photographs discussed in
her testimony.
 -23-
(stating that, since defendant “did not [ ] object to the

admission of any of this testimony at trial,” “we, therefore,

review the admission of the testimony only for plain error”).

“In criminal cases, an issue that was not preserved by

objection noted at trial and that is not deemed preserved by

rule or law without any such action nevertheless may be made the

basis of an issue presented on appeal when the judicial action

questioned is specifically and distinctly contended to amount to

plain error.” N.C.R. App. P. 10(a)(4). An error rises to the

level of plain error in the event that the error in question is

“so fundamental that it undermines the fairness of the trial, or

[has] a probable impact on the guilty verdict.” State v. Floyd,

148 N.C. App. 290, 295, 558 S.E.2d 237, 240 (2002). For that

reason, in order to obtain relief on plain error grounds, a

convicted criminal defendant must show “(i) that a different

result probably would have been reached but for the error or

(ii) that the error was so fundamental as to result in a

miscarriage of justice or denial of a fair trial.” State v.

Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997) (citations

omitted).

Aside from the fact that Defendant has failed to

specifically contend in his brief that the admission of the

challenged portion of Ms. Cartrette’s testimony constituted

plain error, we conclude that Defendant’s contention has no
 -24-
merit as a substantive matter. The evidence presented at trial

identifying Defendant as the perpetrator of the offenses at

issue in this case separate and apart from the challenged

portion of Ms. Cartrette’s testimony was very strong. Defendant

had access to and possessed considerable information about Mr.

Walker’s finances. As we have already noted, Mr. Walker

identified Defendant in the photographs taken at the SECU as the

individual who presented the checks wrongfully drawn on his

account for payments. Similarly, Officer Sellers testified that

the sweatshirt worn by the individual captured in the ATM

photographs matched the sweatshirt that Defendant was wearing on

the night of the robbery. Finally, Mr. Davis clearly described

Defendant’s involvement in the robbery of Mr. Walker and the use

of Mr. Walker’s ATM card to obtain cash. As a result, even if

the trial court erred by admitting Ms. Cartrette’s testimony

identifying him as the individual depicted in the photographs,

Defendant has not shown that “a different result probably would

have been reached but for the error” or “that the error was so

fundamental as to result in a miscarriage of justice or denial

of a fair trial” so as to rise to the level of plain error.

Bishop, 346 N.C. at 385, 488 S.E.2d at 779. As a result,

Defendant is not entitled to relief from the trial court’s

judgments based upon the admission of the challenged portion of

Ms. Cartrette’s testimony.
 -25-
III. Conclusion

Thus, for the reasons set forth above, we conclude that

none of Defendant’s challenges to the trial court’s judgments

have merit. As a result, the trial court’s judgments should,

and hereby do, remain undisturbed.

NO ERROR.

Judges GEER and STEPHENS concur.

Report per Rule 30(e).