An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permit ted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d   u    r   e   .



                             NO. COA13-1093
                     NORTH CAROLINA COURT OF APPEALS

                            Filed: 1 April 2014


STATE OF NORTH CAROLINA

      v.                                    Cabarrus County
                                            Nos. 10 CRS 4678, 51075
GREGORY AUSTIN GRIFFIN



      Appeal by Defendant from judgments entered 9 May 2013 by

Judge Tanya T. Wallace in Cabarrus County Superior Court.                 Heard

in the Court of Appeals 5 February 2014.


      Attorney General Roy Cooper, by Special                Deputy    Attorney
      General Mary L. Lucasse, for the State.

      Appellate Defender Staples Hughes, by Assistant Appellate
      Defender Constance E. Widenhouse, for Defendant.


      STEPHENS, Judge.


                     Procedural History and Evidence

      Defendant Gregory Austin Griffin appeals from the judgments

entered 9 May 2013 upon his convictions of felonious breaking

and entering, possession of burglary tools, and having attained

the status of habitual felon.           The evidence at trial tended to
                                     -2-
show the following:       In the early morning hours of 2 April 2010,

Christopher Andrew Shoe, Douglas Harwood, and a third employee

were stocking shelves inside a closed Bi-Lo grocery store in

Kannapolis.     As Shoe worked near the front of the store, he

heard loud popping noises coming from the front door.                    After

calling out to the other employees that something was happening,

Shoe went to the customer service desk about twenty feet from

the front door.         From that location, Shoe could see a man he

later identified as Defendant prying open the door with what

appeared to be a long metal screwdriver.               Shoe saw Defendant’s

face in the crack of the doorway as the door popped open and the

store alarm began to sound.        On hearing the alarm, Defendant ran

across the store parking lot, jumped into a van, and drove away

down South Cannon Boulevard.

      Harwood testified that he had come to the front of the

store when Shoe called out to him.          From a distance of about ten

feet, Harwood saw a man wearing a plaid hooded jacket and jeans

prying open the front door with a screwdriver.               Harwood saw the

face of the man whom he later identified as Defendant and, after

the   alarm   sounded    and   Defendant   fled   in   a   red   van,   Harwood

called 911.
                                      -3-
       Several    officers    with   the    Kannapolis   Police   Department,

including Timothy Lafferty and Steven Webb, responded to the 911

call, and a red Ford Aerostar van was stopped a few minutes

later on South Cannon Boulevard, about a mile and a half from

the grocery store.       After removing the driver and passenger from

the van, the officers searched the cargo area.                    They found,

inter alia, a fifty-five-gallon trash can, a large screwdriver,

and a duffel bag filled with plastic bags of clothing which

still had price tags and security sensors attached.

       Harwood, who was still on the phone with a 911 operator,

was    told   that   police   “had   him    [the   perpetrator]   in   custody

already.”        Webb picked up Shoe and Harwood from the grocery

store and drove them in a patrol car to the location where the

van had been stopped.          Shoe and Harwood identified Defendant,

who was standing behind the red van, as the man who had pried

open the door.       Harwood was also able to identify the van as the

vehicle in which Defendant had fled the grocery store parking

lot.    Shoe testified that he had been shown two men during the

show-up,1 one of whom he identified as the perpetrator.                Harwood

testified that he had seen only Defendant at the show-up.



1
  “Show-ups are typically defined as a procedure where the police
take a witness, shortly after the commission of an observed
                                      -4-
                               Discussion

    On appeal, Defendant argues that the trial court (1) erred

by admitting irrelevant evidence from Shoe, (2) committed plain

error   by   admitting    improper    lay    opinion      testimony     from    two

police officers that Defendant was guilty, and (3) committed

plain error by admitting identification testimony which resulted

from an “inherently suggestive” show-up.              We find no prejudicial

error in Defendant’s trial.

    I. Relevancy of Shoe’s Testimony

    Defendant     first    argues     that   the     trial   court      erred    by

admitting    irrelevant    testimony    from       Shoe   that   Shoe    had    (1)

previously    identified    another    man    as    the   perpetrator      of    an

unrelated crime during a police line-up and (2) been trained to

watch shoplifters so that he could identify them to police.                      We

disagree.

    “Relevant evidence means evidence having any tendency to

make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than




crime, to where the police are detaining the suspect, in order
to give them an opportunity to make an identification.”   State
v. Rawls, 207 N.C. App. 415, 420-21, 700 S.E.2d 112, 116 (2010)
(citation and internal quotation marks omitted).
                                    -5-
it would be without the evidence.”        N.C. Gen. Stat. § 8C-1, Rule

401 (2013) (internal quotation marks omitted).

            Although   the  trial  court’s   rulings  on
            relevancy technically are not discretionary
            and therefore are not reviewed under the
            abuse of discretion standard applicable to
            Rule 403, such rulings are given great
            deference on appeal.     Because the trial
            court is better situated to evaluate whether
            a particular piece of evidence tends to make
            the existence of a fact of consequence more
            or less probable, the appropriate standard
            of review for a trial court’s ruling on
            relevancy pursuant to Rule 401 is not as
            deferential as the “abuse of discretion”
            standard which applies to rulings made
            pursuant to Rule 403.

Dunn v. Custer, 162 N.C. App. 259, 266, 591 S.E.2d 11, 17 (2004)

(citation and internal quotation marks omitted).

    After defense counsel challenged Shoe’s identification of

Defendant on cross-examination, the State asked Shoe, who had

testified   that   he   was   “a   hundred   percent”   certain   of   his

identification, how he could be so sure.            Shoe stated, “I’ve

been held up at gunpoint before at a past job.”               Defendant

objected, but did not move to strike Shoe’s answer.               On voir

dire, Shoe testified that he had previously identified a man who

had held him up at work and that he had been trained to observe

shoplifters for future identification to police.         Defendant then

renewed his objection, which the trial court overruled.                Once
                                -6-
the jury returned to the courtroom, Shoe resumed his testimony

on re-direct:

         A[.]  I just — I’m pretty good with faces.
         I know faces pretty good.  I just remember
         them.

         . . .

         Q[.]   How is it then that you know faces?
         How is it that you’re confident that you’re
         familiar with picking out faces?

         A[.]   I’ve been trained to remember people
         that shoplift and things, what they wear,
         and to get a description for the police for
         when they do come, so . . .

         Q[.]   Have you ever had to identify someone
         before?

         A[.]    Yes, sir, I have.    I’ve had to —

         [DEFENSE COUNSEL]:    Objection.

         THE COURT:    Overruled.

         . . .

         Q[.]    And what was the situation like?

         A[.]   I was held at gunpoint and I had to
         pick a person out of a 12-man line[-]up, and
         I have.

         Q[.]   So before this you’ve had experience
         where   you’ve  had  to  actually  identify
         someone —

         A[.] Yes, sir. I mean, I fully understand
         that somebody could be an innocent man could
         be, you know, something like that.         I
         understand that and I face that burden. I’m
                                                     -7-
             not going to put someone away for something
             they didn’t do.

             Q[.]        So how sure are you that this is the
             guy?

             A[.]   I’m a hundred percent sure.   I don’t
             have no reason to lie. I was at work.

      We    first    note       that        Defendant        did     not   object       to    Shoe’s

statement     that       he    had    been        trained      to    identify      shoplifters.

Accordingly,        he        has     waived          any    prior     objection         to     that

testimony.      See State v. Alford, 339 N.C. 562, 570, 453 S.E.2d

512, 516 (1995) (“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.”).

      As for Defendant’s objection when Shoe was asked whether he

had   ever    previously             “had       to    identify       someone[,]”         Defendant

argues to this Court that this question was asked in an attempt

to bolster Shoe’s credibility by showing the jury that Shoe was

“better      qualified”             than     an       ordinary       person       to     make    an

identification when in fact the line-up identification Shoe had

previously     taken           part    in        was       different       from    the       show-up

identification       procedure             in    this       case.      These      arguments      are

misplaced.     The exchange quoted above plainly reveals that Shoe

did   not    perceive         the     question         about    his    past       experience      as
                                    -8-
relating in any way to his “qualifications” to identify criminal

suspects.      Shoe’s response was simply that he had previously

picked a suspect out of a police line-up and felt the burden of

not choosing an innocent person.           Thus, while Shoe’s response

suggested    that   he   was   taking     the   matter   of   Defendant’s

identification seriously, he made no claim that his previous

experience gave him any special qualification and ability to

identify Defendant at the show-up.         The fact that an eyewitness

has had a previous identification experience which led him to

reflect on the importance of accuracy and honesty in making such

determinations has some relevance with regard to the witness’s

credibility.     Accordingly, we conclude that the trial court did

not err in admitting Shoe’s testimony as relevant.

    II. Lay Opinion Testimony

    Defendant next argues that the trial court committed plain

error   by   admitting   improper   lay   opinion   testimony,   primarily

from Webb.    We are not persuaded.

    “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
                                             -9-
plain error.”       N.C.R. App. P. 10(a)(4).             Plain error arises when

the    error   is   “so    basic,       so   prejudicial,      so    lacking    in    its

elements that justice cannot have been done[.]”                       State v. Odom,

307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citation and

internal quotation marks omitted).                 “Under the plain error rule,

[the] defendant must convince this Court not only that there was

error, but that absent the error, the jury probably would have

reached a different result.”                  State v. Jordan, 333 N.C. 431,

440,    426    S.E.2d     692,    697    (1993).         Plain      error    review    is

available for alleged “(1) errors in the judge’s instructions to

the jury, or (2) rulings on the admissibility of evidence.”

State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996).

       Defendant asserts that Webb offered improper lay opinion

that Defendant was guilty when he testified that (a) he had seen

large screwdrivers like the one found in Defendant’s van used as

burglary tools, (b) Shoe and Harwood had “picked the right guy”

when they identified Defendant at the show-up, (c) after those

identifications      and    the     discovery      of    the   items    in    the    van,

officers had “probable cause[,]” (d) the clothing in the duffel

bag had not been purchased, and (e) the large trash can could

have been used to carry large amounts of merchandise out of a

store    quickly.          Defendant          contends    that       these     comments
                                            -10-
constituted        impermissible          lay     opinion      that        a     screwdriver

satisfied the legal standard for a burglary tool, that Defendant

was the perpetrator of the grocery store break-in, and that

Defendant     was    guilty     of       other   crimes     (such     as       stealing       the

clothes found in the van).                 Defendant did not object to any of

this testimony at trial.                 Accordingly, we review only for plain

error, which, as noted supra, requires Defendant to establish

that, had the testimony not been admitted, he would probably

have been acquitted.               Jordan, 333 N.C. at 440, 426 S.E.2d at

697.      After careful review of all the evidence at trial, we

conclude     that,    even     assuming         arguendo    that    admission            of    the

challenged      testimony          was     error,       Defendant     fails          to       show

prejudice.

       “If   the     witness       is    not     testifying    as     an        expert,       his

testimony in the form of opinions or inferences is limited to

those 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 (2013).                          However, Rule

704

             provides that testimony in the form of an
             opinion or inference is not objectionable
             because it embraces an ultimate issue to be
             decided by the trier of fact.
                                       -11-


            Rule 704 does allow admission of lay opinion
            evidence on ultimate issues, but to qualify
            for admission the opinion must be helpful to
            the jury.      Meaningless assertions which
            amount to little more than choosing up sides
            are    properly    excludable   as    lacking
            helpfulness under the Rules.     Furthermore,
            while opinion testimony may embrace an
            ultimate issue, the opinion may not be
            phrased using a legal term of art carrying a
            specific legal meaning not readily apparent
            to the witness.

State v. Elkins, 210 N.C. App. 110, 124, 707 S.E.2d 744, 754

(2011)     (citations,      internal     quotation    marks,    and   brackets

omitted; emphasis in original).                “However, where the witness

uses a term as a shorthand statement of fact rather than as a

legal term of art or an opinion as to the legal standard the

jury   should     apply,   the    testimony    is   admissible.”      State   v.

Anthony,    354    N.C.    372,   408,   555    S.E.2d   557,   581   (citation

omitted), cert. denied, 354 N.C. 575, 559 S.E.2d 184 (2001),

cert. denied, 536 U.S. 930, 153 L. Ed. 2d 791 (2002).

       a. Testimony about the screwdriver

            If any person shall be found armed with any
            dangerous or offensive weapon, with the
            intent to break or enter a dwelling, or
            other building whatsoever, and to commit any
            felony or larceny therein; or shall be found
            having in his possession, without lawful
            excuse, any picklock, key, bit, or other
            implement of housebreaking; or shall be
            found in any such building, with intent to
                                           -12-
           commit any felony or larceny therein, such
           person shall be punished as a Class I felon.

N.C. Gen. Stat. § 14-55 (2013).

     Regarding the screwdriver, Webb agreed that the tool seized

from the van was a 14- or 16-inch flathead screwdriver which, in

Webb’s experience, “could be used to pry things open. . .                            like

a burglary tool[.]”          Defendant cites State v. Turnage, 190 N.C.

App. 123, 660 S.E.2d 129, reversed in part and remanded on other

grounds, 362 N.C. 491, 666 S.E.2d 753 (2008), in support of his

argument that admission of Webb’s testimony that screwdrivers

could be used “like a burglary tool” constituted plain error.

Specifically,      Defendant        asserts       that   Webb      opined    “that       the

screwdriver      was   a    burglary       tool.”        We   find     Turnage     easily

distinguishable and Defendant’s argument misplaced.                         In Turnage,

a police officer “stated that, ‘[w]e searched him and found . .

. a screwdriver and a metal rod in his pockets indicating that

he   was   just     probably      in      the     process     of   breaking       into     a

residence.        Those     types    of    tools     used     [sic]    to   break    into

residences.’”       Id. at 129, 660 S.E.2d at 133.                    This Court found

those “statements, particularly the first, to have impermissibly

invaded    the    province     of      the      jury,    as    [the     officer]     drew

inferences from the evidence — a task reserved for the jury — to

express    an     opinion    as     to     [the     d]efendant’s        guilt.”          Id.
                                   -13-
(citation omitted).        In other words, the error in the Turnage

testimony was the suggestion that the defendant possessed the

specific tools for the purpose of housebreaking and that he had

just used them for that purpose.         See id.

       In contrast, Webb merely stated that a screwdriver like the

one Defendant possessed could be an implement for housebreaking.

“[I]t is common knowledge that . . . screwdrivers can be, and

may be, used as implements of housebreaking.”              State v. Cadora,

13 N.C. App. 176, 178, 185 S.E.2d 297, 298 (1971) (citation

omitted).     For example, in State v. Robinson, the

              defendant was found inside a private office
              in    a    private   establishment    without
              permission, standing behind the owner’s
              desk, in possession of a screwdriver and an
              icepick.    The owner heard [the] defendant
              shake   the   desk  drawer.      Upon   being
              discovered, [the] defendant tried to leave.
              He gave conflicting statements as to his
              purpose in being there.   Although the tools
              possessed by [the] defendant were capable of
              legitimate use, under the circumstances
              shown by the State, a legitimate inference
              can be drawn that [the] defendant possessed
              the screwdriver and icepick for the purpose
              of breaking into the building.

115 N.C. App. 358, 363, 444 S.E.2d 475, 478, cert. denied, 337

N.C. 697, 448 S.E.2d 538 (1994).           Similarly, here, Harwood and

Shoe   both    testified   that   they   saw   Defendant    using   a   large

screwdriver to pry open the locked doors of the grocery store,
                                             -14-
and that when Defendant saw them and heard the alarm sound, he

fled    the   scene.        In    light     of    the   eyewitness         testimony      from

Harwood and Shoe, we cannot conclude that, absent Webb’s remark

about the screwdriver being of a sort which could be used for

housebreaking, the jury would probably have acquitted Defendant

of the charge brought pursuant to section 14-55.

       b. Testimony the witnesses “picked the correct guy”

       Defendant also argues that the trial court committed plain

error    in   admitting,          without        objection,       Webb’s    responses      to

questions from the State about the show-up, where Harwood and

Shoe were shown Defendant and the other man discovered in the

red van:

              Q[.] So [Harwood and Shoe] were actually
              given two people to pick from.

              A[.]       Yes.

              Q[.] One of which [sic] they had seen, one
              of which they had presumably never seen as
              far as we know, and they picked the correct
              guy.

              A[.] Exactly, yes, sir.

Defendant     contends          that   this      testimony    is     analogous       to    the

testimony     by     a    law    enforcement        officer   held     inadmissible        in

Elkins:       “I     felt   like       I   was    building    a    solid     case.        [The

defendant] was, indeed, the offender in this case.”                              210 N.C.
                                           -15-
App. at 125, 707 S.E.2d at 755.                 This Court observed that, while

             Rule 704 does allow admission of lay opinion
             evidence   on   ultimate issues,   Rule  701
             requires that, to qualify for admission, the
             opinion evidence must be helpful to the
             jury.    Here, we do not believe that the
             statement, “I felt like I was building a
             solid case; [the defendant] was, indeed, the
             offender in this case,” is helpful, pursuant
             to Rule 701, to the determination of a fact
             in issue.    Rather, the foregoing statement
             is solely and simply an opinion of the
             ultimate issue of [the d]efendant’s guilt,
             and as such, the statement’s admission was
             error.

Id.   at   125-26,       707    S.E.2d     at   755   (citations,       some   internal

quotation marks, and some brackets omitted).

      Here, we note that both Defendant and the other man in the

van were suspected of involvement in the break-in at the grocery

store,     and    both    were    eventually       charged       with   that   offense.

Webb’s agreement to the prosecutor’s question can be read as an

attempt to clarify the show-up procedure, to wit, that Harwood

and Shoe were shown two men, only one of whom they had seen

prying open the door, and that they both identified Defendant,

rather than the other man in the van, as the man they had seen.

In that light, the comment could have been “helpful, pursuant to

Rule 701, to” the jury in understanding the show-up and thus in

assessing        the   weight    to   be    given     to   the    identification     of

Defendant by Harwood and Shoe.                   See id. at 126, 707 S.E.2d at
                                     -16-
755.   If so, its admission was not error.

       Further, even if the testimony from Webb was “solely and

simply an opinion of the ultimate issue of Defendant’s guilt,”

id., such that its admission was error, we conclude it is not

probable that, absent this brief testimony, Defendant would have

been acquitted.      Two witnesses positively identified Defendant

as the man they saw prying open the door with a screwdriver and

then fleeing in a van, and Defendant was quickly stopped in a

van nearby in possession of a screwdriver like that used to pry

open the door.      In light of the strong evidence of his guilt,

Defendant cannot show plain error in the admission of Webb’s

testimony.

       c. Testimony about “probable cause”

       Defendant   also   contends    that   the    court   committed   plain

error when it admitted testimony from Webb and Lafferty that

Harwood’s    and   Shoe’s   identification     of    Defendant   gave    them

probable cause to continue their investigation of the grocery

store break-in.      However, as noted supra, “where the witness

uses a term as a shorthand statement of fact rather than as a

legal term of art or an opinion as to the legal standard the

jury should apply, the testimony is admissible.”               Anthony, 354

N.C. at 308, 555 S.E.2d at 581.
                                    -17-
       Lafferty was asked about the role identifications generally

play    in    investigations,      not   about    the    specific   show-up

identifications of Defendant by Shoe and Harwood:

             Q[.]   And what happens after [a witness is]
             positive, after you have the show[-]up I.D.
             and   it’s   positive  identification,  what
             happens next?

             A[.]   It helps us build our probable cause,
             which then we continue our investigation
             further. Time is no longer of an essence so
             we can conduct searches.   You know, when we
             get them back to the station, typically
             we're going to process them for that felony
             crime if it’s a felony or misdemeanor,
             Mirandize, attempt to get statements.     It
             just     allows   us    to    continue   our
             investigation.

       Webb used the phrase in discussing his investigation of the

Bi-Lo break-in:


             Q[.] Did [Shoe and Harwood] give             you a
             percentage   of   certainty    [about         their
             identifications of Defendant]?

             A[.]    They   said    they   were    100   percent
             [certain].

             Q[.] If it was anything less than a hundred
             percent, what would you have done?

             A[.] If it was less than a hundred percent,
             we probably would have investigated a whole
             lot more before we — and I say that not like
             we stopped at that point, Hey, we got the
             guys.    But at that point, we probably
             wouldn’t have arrested.   We would have had
             to dig a little deeper and go after other
                                   -18-
         aspects.

         Q[.]      But   with the   hundred percent
         confidence, you proceeded along to do some
         other investigation?

         A[.]   That along with the things that we
         retrieved from the van prior to them even
         going up there, we believed that probable
         cause had been met.

    Here,   Lafferty’s    testimony       was   only   about   his   general

investigative process and not about Defendant at all.            Webb used

the phrase “probable cause” merely as a shorthand reference to

explain the course of the investigation and               why he arrested

Defendant following the identifications by Shoe and Harwood.              In

any event, “probable cause” as a legal term of art was utterly

unrelated to any matter before the jury or any legal standard

they were required to apply.        Accordingly, the trial court did

not err in admitting this testimony.

    d. Testimony about other crimes

    Defendant   next    contends    that    the   court   committed    plain

error in allowing Webb to testify that they were suspicious that

the clothes found in the duffel bag “were taken without being

purchased” and that the trash can could have been useful for

moving “a bunch of stuff in a hurry[.]”           Defendant asserts that

this lay opinion testimony violated Rule 701 by invading the

province of the jury.    See N.C. Gen. Stat. § 8C-1, Rule 701.
                                        -19-
      Webb’s   comments       could    be    construed        as    suggesting          that

Defendant    had   stolen     the     clothes     found      in     the       duffel    bag.

However, Defendant was not being tried for any charges related

to the clothes, and thus Webb’s remarks were not relevant to any

issue before the jury.          Accordingly, this testimony was plainly

not invading the province of the jury, and its admission was not

error.   Further, in light of the evidence of his guilt, to wit,

the   two    eyewitness       identifications          and    Defendant’s             nearly

immediate    apprehension      nearby       in   possession        of     a    screwdriver

like that used in the crime, we see no likelihood that this

testimony had any impact on the jury’s verdict.                         Thus, Defendant

cannot   satisfy     either    requirement        needed      to    establish          plain

error in the admission of Webb’s testimony.                   These arguments are

overruled.

      III. Identification of Defendant via a Show-up

      Defendant’s     final       argument       is    that        the        trial    court

committed    plain    error    by     admitting        identification            testimony

which resulted from an “inherently suggestive show-up.”                               We are

not persuaded.

      Defendant      did    not       object      to     Harwood’s             or     Shoe’s

identification of him as the man they saw pry open the grocery
                               -20-
store door with a screwdriver.     Accordingly, we review only for

plain error.

         Our courts apply a two-step process for
         determining    whether    an    identification
         procedure was so suggestive as to create a
         substantial    likelihood    of    irreparable
         misidentification.    First, the Court must
         determine    whether    the     identification
         procedures were impermissibly suggestive.
         Second, if the procedures were impermissibly
         suggestive, the Court must then determine
         whether the procedures created a substantial
         likelihood of irreparable misidentification.
         Even though they may be suggestive and
         unnecessary,   show-ups   are   not   per   se
         violative of a defendant’s due process
         rights.

Rawls, 207 N.C. App. at 423, 700 S.E.2d at 118 (citations and

internal quotation marks omitted).

    In Rawls, an officer “explained to [the witness] what a

show-up is and told her, ‘[T]hey think they found the guy.’        By

the time [the witness] arrived at the apartments and saw [the]

defendant, he was detained and sitting down, and ‘[t]here were

several officers around.’”   Id.   This Court concluded that the

         Show[-]up procedure [wa]s analogous to the
         one reviewed in [State v.] Richardson, 328
         N.C. [505,] 511, 402 S.E.2d [401,] 405
         [(1991)].     In Richardson, three witnesses
         identified the defendant as the man they had
         seen at their workplace a few hours earlier.
         Id.       During   the   identification,  the
         defendant    “was   sitting  alone   or  with
         uniformed personnel in the security office
         at the hospital” and “investigating officers
                              -21-
         told [two of] the witnesses [the] defendant
         was a suspect” before those witnesses saw
         him. Id. The Supreme Court determined that
         “[t]he    identification    procedures    the
         officers    chose,   coupled     with   their
         statements to two of the three witnesses
         that ‘they had a suspect,’ were unduly
         suggestive.”    Id.    See also [State v.]
         Oliver, 302 N.C. [28,] 45, 274 S.E.2d [143,]
         194 [(1981)] (holding      show-up procedure
         unduly   suggestive    when    coupled   with
         statement by officers to witness that he
         would have chance, at police station, to see
         again man who attacked his grandfather).

Id. at 423-24, 700 S.E.2d at 118.

    Here, the 911 operator told Harwood “they had him [the

suspect] in custody already[,]” and Shoe testified that he was

told “they had gotten a person and we had to go and see if it

was the right person.”   When Harwood and Shoe viewed Defendant

from the patrol car, he was handcuffed and standing behind the

van in the presence of several police cars and officers.   These

circumstances are not meaningfully distinguishable from those in

Richardson and Oliver, and thus we conclude that the show-up

procedure here was unduly suggestive.

    However, just as in Rawls, “even though the show-up was

impermissibly suggestive, we find that there was no substantial

likelihood of irreparable misidentification.”   Id. at 424, 700

S.E.2d at 118.
                                       -22-
             When evaluating whether such a likelihood
             exists, courts apply a totality of the
             circumstances test.    For both in-court and
             out-of-court identifications, there are five
             factors to consider in determining whether
             an identification procedure is so inherently
             unreliable   that   the   evidence  must  be
             excluded from trial: (1) the opportunity of
             the witness to view the criminal at the time
             of the crime; (2) the witness’s degree of
             attention; (3) the accuracy of the witness’s
             prior description of the criminal; (4) the
             level of certainty demonstrated by the
             witness at the confrontation; and (5) the
             length of time between the crime and the
             confrontation.

Id.   at    424,   700   S.E.2d   at    118-19   (citations   and    internal

quotation marks omitted).

      As for the first factor, Harwood saw the man prying open

the door from a distance of ten feet and “got a good look at . .

. what he was wearing[,]” while Shoe testified that he saw the

man from a distance of only twenty feet and that the light lit

up the man’s face so that he was able to get a good look at him.

Both witnesses were entirely focused on the man prying open the

door.      Only Harwood provided a description of the man’s clothes

and vehicle:       “a black male wearing a plaid shirt with gray hair

or a gray hood, blue jeans.”           Harwood also described the vehicle

as a red van headed south on South Cannon Boulevard.                Defendant

is a black man who was wearing a plaid shirt and blue jeans and
                                     -23-
who was stopped minutes later in a red van headed south on South

Cannon Boulevard.

      Both   Harwood    and   Shoe   testified     to    being    100    percent

certain about their identification of Defendant at the show-up

and in court during trial.           Finally, only about five to ten

minutes passed between the crime and the show-up identifications

here.     In sum, the totality of the circumstances establish that

impermissibly    suggestive      show-up    procedures    did    not    create    a

“substantial likelihood of irreparable misidentification.”                     See

id. at 424, 700 S.E.2d at 118.              Accordingly, this argument is

overruled.

      Defendant also briefly argues that, because there could be

no   strategic   reason    for   trial     counsel’s    failure    to   move     to

suppress the identification evidence or object to its admission,

Defendant    received     ineffective      assistance    of     counsel.       “In

general, claims of ineffective assistance of counsel should be

considered through motions for appropriate relief and not on

direct appeal.”        State v. Stroud, 147 N.C. App. 549, 553, 557

S.E.2d 544, 547, cert. denied, 356 N.C. 623, 575 S.E.2d 758

(2001).      The record before this Court does not permit us to

review the merits of this claim, and accordingly, we dismiss it

without prejudice to Defendant’s right to raise it in a motion
                                   -24-
for appropriate relief.     See id. at 554, 557 S.E.2d at 547 (“Our

Supreme Court has instructed that should the reviewing court

determine   the   IAC   claims   have   been   prematurely   asserted   on

direct appeal, it shall dismiss those claims without prejudice

to the defendant’s rights to reassert them during a subsequent

MAR proceeding.”) (internal quotation marks omitted).

    NO ERROR in part; NO PREJUDICIAL ERROR in part; DISMISSED

in part.

    Judges BRYANT and DILLON concur.

    Report per Rule 30(e).
