An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Procedu re.



An unpublished opinion of the North Carolina Court of Appeals does not constitute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.


               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA14-1246

                                 Filed: 20 October 2015

Alamance County, Nos. 11CRS057238; 12CRS004785, 050991

THE STATE OF NORTH CAROLINA

              v.

MARLETTE TOOMER, Defendant.


______________________________________________

Alamance County, Nos. 11CRS057237; 12CRS004786

THE STATE OF NORTH CAROLINA


              v.


VERNON TOOMER, Defendant.


       Appeal by defendants from judgments entered on or about 24 January 2014 by

Judge G. Wayne Abernathy in Superior Court, Alamance County. Heard in the Court

of Appeals 22 April 2015.


       Attorney General Roy A. Cooper III, by Assistant Attorney General Alexandra
       M. Hightower and Special Deputy Attorney General Joseph E. Herrin, for the
       State.
                                       STATE V. TOOMER

                                         Opinion of the Court




      Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Kathryn
      L. VandenBerg, for defendant-appellant Marlette Toomer.

      Sharon L. Smith, for defendant-appellant Vernon Toomer.


      STROUD, Judge.


      Defendant Vernon Toomer appeals from a judgment entered upon a jury

verdict finding him guilty of felony larceny. Defendant Marlette Toomer appeals from

judgments entered upon jury verdicts finding him guilty of two counts of felony

larceny. 1 For the following reasons, we find no error.

                                        I.      Background

      Because this case has both multiple defendants and multiple offenses, the

background is quite the Gordian knot to untangle. In late 2011, three thefts occurred

at Belk department store at Alamance Crossing in Burlington. In all of these

incidents, the suspects entered the store, went into the Polo section of the men’s

department, grabbed an armful of clothing, quickly ran out of the store, and departed

in a car parked closely to the front door; all of these incidents were captured by

surveillance video.

A.    Facts




      1   Both defendants also appeal their convictions for attaining habitual felon status.


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                                STATE V. TOOMER

                                  Opinion of the Court



      On 1 September 2011, the first theft (“Theft 1”) occurred. Surveillance video

clearly showed two African-American men, whose faces are visible, take Polo clothing.

The second theft (“Theft 2”) occurred on 3 October 2011. The surveillance video is

blurry but showed two African-American men, whose faces were largely obscured by

hats, taking Polo clothing. Thereafter, on 18 October 2011, Megan Edwards’ silver

Mazda 3 was stolen from a gas station in Mebane. On 26 October 2011, the third

theft (“Theft 3”) occurred. The surveillance video is also blurry and the faces of the

two people taking the Polo clothing are not clear; however, this time a man and a

woman were involved. The African-American man was wearing blue jeans, a black

hoodie, and shoes with white soles. The African-American woman was wearing a

primarily white nurse’s scrub top with dark pants. The man and woman ran out of

the store with their armfuls of clothing and jumped into a waiting silver car. On 27

October 2011, the day after Theft 3 occurred, defendant Marlette and a woman, both

of whom were wearing clothing consistent with the Theft 3 surveillance video, were

found with Ms. Edwards’ stolen silver Mazda 3 in Durham.

B.    Criminal Proceedings

      The State indicted defendant Marlette for three counts of felony larceny and

defendant Vernon for two counts of felony larceny. Thereafter, the trial court joined

defendants’ cases over their objection. The State chose not to prosecute Theft 3

against defendant Marlette and dismissed the Theft 2 charge against Vernon.



                                         -3-
                                STATE V. TOOMER

                                  Opinion of the Court



Ultimately, the State tried defendant Marlette for Thefts 1 and 2 and defendant

Vernon for Theft 1.

      1.      Joinder

      The State moved for joinder of defendants’ cases, which the trial court allowed.

Both defendants moved to sever, but their motions were denied. The trial court

reasoned:

                    Well, the Court finds that there’s an outstanding
             similarity in the September 1, 2011, and the October 3,
             2011. Specifically, the same store was robbed, same
             manner of robbery, what’s typically referred to as a smash
             and grab. Both cases they went to the Polo department.
             Men’s clothing – men’s sweaters were stolen. . . . Both men
             appear to be identified on the security cameras. There was
             a getaway car parked in the front of the store.
                    The cases are strikingly similar and the Court is
             going to order the joinder of the offenses and the
             defendants for trial in this case, not only for purposes of
             judicial efficiency but, in addition, it shows a common
             scheme or plan; they’re reasonably closely connected in
             time, place and location or exactly connected in terms of
             place, and motion to join is allowed.

      At trial, the State did not proceed on Marlette’s Theft 3 charge because of the

joinder. However, the State moved to introduce the Theft 3 evidence and the trial

court determined in its written order, “[T]his 404(B) evidence [of Theft 3] is relevant

to defendant Marlette Toomer in that it sufficiently establishes that the theft from

Belk Inc. on October 26, 2011, was in fact committed by the defendant, but that the

Theft 3 “evidence is not admissible against defendant Vernon[.]” Both defendants



                                         -4-
                                 STATE V. TOOMER

                                   Opinion of the Court



objected to the admission of the Theft 3 evidence. Before the jury heard any of the

evidence related to Theft 3, the trial court gave the following limiting instruction:

                    You are about to hear testimony which may tend to
             show that the defendant Marlette Toomer -- and Mr. Marlette
             Toomer is the young man at the far end of the table beside Mr.
             Sharpe, not Mr. Vernon Toomer who’s seated at this end of the
             table -- but you are about to hear testimony which might tend
             to show that the defendant Marlette Toomer committed a
             subsequent larceny from Belk on October 26, 2011.
                    This evidence is received solely for the limited purpose
             of identifying him as the person who committed the two crimes
             charged in this case, the September 1st and October 3rd
             crimes, as well as it may be considered by you to show that Mr.
             Marlette Toomer had the knowledge or that there existed in
             his mind a plan, scheme, or design involving the larcenies on
             September 1st and October 3rd if, in fact, they were
             committed, which you would have to find. If you -- it would
             you be up to you to find that.
                    If you believe this evidence, you may consider it but only
             for that limited purpose for which it was received. In other
             words, to show his identity or to show that he had knowledge
             or that there existed in his mind a plan, scheme, or design
             involving the September 1st and October 3rd larcenies.
                    Additionally -- and this is important -- this evidence
             which you are about to receive regarding the events of October
             26th and October 27th have absolutely nothing to do with Mr.
             Vernon Toomer and may not be considered by you as evidence
             in any way about his case. You must always keep [i]n mind
             that you are trying separate cases at the same time.
                    And none of the evidence that you are going to hear
             involving October 26th and October 27th involve Mr. Vernon
             Toomer and may not be considered by you when you consider
             whether or not he is guilty of the September 1st and October
             3rd larcenies.

      2.     Witness Testimony Identifying Defendants




                                          -5-
                                 STATE V. TOOMER

                                   Opinion of the Court



      Also at trial, the State introduced testimony from three witnesses who neither

knew defendant Marlette or defendant Vernon previously nor saw the theft suspects

in person. The first witness, Mr. Duran Bailey, a loss prevention associate at Belk,

testified that he was working during Theft 1 and watched the incident as it occurred

through an in-store surveillance camera. Mr. Bailey narrated the surveillance video

and identified the suspects by their appearance in the video as the same defendants

sitting in the courtroom. Defendant Marlette objected, but was overruled, while

defendant Vernon failed to object.

      The second witness, Mr. Darius Sellars, was called to Belk after Theft 2

occurred and watched the surveillance video. At trial, Mr. Sellars narrated the video

and then identified both defendants by name as the Theft 2 suspects. Defendant

Marlette objected, and the trial court sustained the objection and instructed the jury

to strike the testimony at issue. The jury was subsequently instructed that Mr.

Sellars made his identification by comparing the physical similarities between the

suspects in the Theft 2 video and defendants in the courtroom and that they were not

to consider him identifying the defendants by name; neither defendant objected to

these instructions.

      The third witness, Detective Kevin King of the Burlington Police Department,

is the only witness at issue who testified about Theft 3 under the trial court’s limiting

instructions. After reviewing the videos from all three thefts as part of his



                                          -6-
                                   STATE V. TOOMER

                                      Opinion of the Court



investigation, Detective King concluded that defendant Marlette was a perpetrator

in all three thefts and defendant Vernon was a perpetrator in Thefts 1 and 2.

Defendant Marlette objected, and was overruled, while defendant Vernon did not

object.

C.        Outcome

          The jury found defendant Vernon guilty of felony larceny for Theft 1, and the

trial court entered judgment. The jury found defendant Marlette guilty of two counts

of felony larceny for Theft 1 and Theft 2, and the trial court entered judgments. Both

defendants appeal.

                                II.      Defendant Vernon

          Although both defendants raise similar issues on appeal, we will separately

review their cases and individual arguments. See generally State v. Wilson, 108 N.C.

App. 575, 581, 424 S.E.2d 454, 457 (1993) (considering co-defendants’ cases

individually), disc. review denied and appeal dismissed, 333 N.C. 541, 429 S.E.2d 562

(1993). We first consider defendant Vernon’s appeal.

A.        Joinder

          Defendant Vernon first contends that the trial court erred in joining the

defendants for trial, arguing that “joinder of the defendants deprived . . . [him] of a

fair trial where the trial court admitted highly prejudicial [Theft 3] evidence against

Marlette Toomer that was not admissible against” him. (Original in all caps.)



                                             -7-
                                STATE V. TOOMER

                                 Opinion of the Court



                   Joinder decisions are in the sound discretion of the
            trial court. According to our General Statutes, charges
            against two or more defendants may be joined for trial if
            the charges 1) are part of a common scheme or plan, 2) are
            part of the same act or transaction, or 3) are closely
            connected in time, place, and occasion. In fact, public policy
            strongly compels consolidation as the rule rather than the
            exception when each defendant is sought to be held
            accountable for the same crime or crimes. Thus, the test
            we apply on review is whether the offenses are so separate
            in time and place and so distinct in circumstances as to
            render consolidation unjust and prejudicial to the
            defendant.

State v. Pittman, 219 N.C. App. 512, 515, 725 S.E.2d 25, 27 (citations and quotation

marks omitted), disc. review denied, 366 N.C. 223, 726 S.E.2d 832 (2012).

      In State v. Ellison, this Court determined:

            It is not uncommon where two defendants are joined for
            trial that some evidence will be admitted which is not
            admissible as against both defendants, leading our Courts
            to recognize that limiting instructions ordinarily eliminate
            any risk that the jury might have considered evidence
            competent against one defendant as evidence against the
            other. As a result, the presentation of evidence admissible
            to prove the guilt of only one of multiple defendants whose
            guilt is being considered in the context of a joint trial will
            not, without more, render the joinder of multiple
            defendants for trial inappropriate.
                   If we were to agree with the defendant that
                   the introduction of evidence admissible
                   against only one of the defendants joined for
                   trial required a severance of the defendants’
                   trials, we would in effect be ruling that co-
                   defendants may not be joined for trial in this
                   state. It would be unusual for all evidence at
                   a joint trial to be admissible against both
                   defendants, and we often rely on the common


                                        -8-
                                  STATE V. TOOMER

                                   Opinion of the Court



                    sense of the jury, aided by appropriate
                    instructions of the trial judge, not to convict
                    one defendant on the basis of evidence which
                    relates only to the other.

213 N.C. App. 300, 313, 713 S.E.2d 228, 237-38 (2011) (citations, quotation marks,

and brackets omitted), aff'd, 366 N.C. 439, 738 S.E.2d 161 (2013).        Here, the trial

court gave an appropriate limiting instruction regarding the evidence that was only

applicable to defendant Marlette. We conclude that the trial court did not abuse its

discretion in joining the cases as the joinder was neither “unjust [nor] prejudicial[,]”

particularly in light of the fact that the State ultimately only submitted Theft 1 as

the charge to the jury and the evidence for Theft 1 included video of the perpetrators’

faces. See Pittman, 219 N.C. App. at 515, 725 S.E.2d at 27. This argument is

overruled.

B.      Admission of Witness Testimony

      Defendant Vernon next contends that “the trial court committed reversible

error in allowing the State’s witnesses to offer opinion testimony identifying . . . [him]

from the surveillance tape where the witnesses were not in a better position than the

jurors to draw conclusions from the evidence.” (Original in all caps.) Defendant

Vernon further contends that this was prejudicial because the State’s case against

him “rested entirely on identifying him from the . . . [Theft 1] videotape and still

photographs.”




                                          -9-
                                 STATE V. TOOMER

                                   Opinion of the Court



      Defendant directs our attention to three witnesses, Mr. Bailey, Mr. Sellars,

and Detective King; as to all three witnesses, defendant failed to object on this issue.

Defendant directs our attention to defendant Marlette’s objections, but defendant

Vernon failed to make an objection. We therefore address this issue under plain error

analysis, see State v. Harding, 110 N.C. App. 155, 161, 429 S.E.2d 416, 420 (1993)

(“Due to defendant’s failure to object at trial, we must review this objection under the

plain error rule.”), which defendant also raised in his brief:

             For error to constitute plain error, a defendant must
             demonstrate that a fundamental error occurred at trial. To
             show that an error was fundamental, a defendant must
             establish prejudice—that, after examination of the entire
             record, the error had a probable impact on the jury’s
             finding that the defendant was guilty.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citations and

quotation marks omitted). Since the jury was able to view the Theft 1 video, which

clearly shows the faces of two men taking Polo clothing, we do not conclude that any

error in allowing witness opinion testimony “had a probable impact on the jury’s

finding that the defendant was guilty.” Id. This argument is overruled.

                                  III.   Defendant Marlette

      We next address defendant Marlette’s appeal.

A.    Admission of Witness Testimony

      Defendant Marlette, like defendant Vernon, contends that

             the trial court committed error, or in the alternative plain


                                          - 10 -
                                STATE V. TOOMER

                                 Opinion of the Court



            error, in admitting testimony of three witnesses who gave
            opinions that . . . [he] was one of the men in the Belk
            surveillance videotapes, where these witnesses were in no
            better position than the jurors to draw a conclusion on
            identity.

(Original in all caps.)

     We first consider Mr. Bailey’s testimony:

            Q      (By Mr. Soderberg [State’s Attorney]) Mr. Bailey, do
            you recognize the two individuals in that video as being in
            this courtroom here today?

            A      Yes, sir.

            Q      And can you point them out to the jury?

            A      Yes, sir.

            Q      And where are they at? Describe some clothing that
            they’re wearing?

            A     Got on white shirts. One had on white shirt and
            black pants. The other one have on white shirt and khaki
            looking pants.

            Q     From those videos and those photographs, who do
            you recognize who to be?

            A      The guy with the light blue shirt on with the Nike
            hat is with the white shirt and black pants. And the guy
            with the black striped shirt -- white striped shirt is sitting
            right to your right.

                    THE COURT:       For the record, the defendant
            Marlette Toomer is wearing black pants today with a white
            shirt and the defendant Vernon Toomer is wearing a white
            shirt with light khaki colored pants. Is that a fair
            statement, sir?


                                        - 11 -
                               STATE V. TOOMER

                                 Opinion of the Court




                     THE WITNESS:      Yes, sir.

                   MR. SHARPE:         I would respectfully object and
            just say that he doesn’t have any better knowledge than
            anyone else of this identification.

                 MR. SODERBERG:                  Object   to       the
            argumentative, Your Honor.

                 THE COURT:           Sustained      as     to     the
            argumentative. It’s already in testimony. Overruled.

In State v. McCray, the Supreme Court stated:

                   It is well established that error may not be
            predicated upon a ruling which admits evidence unless a
            timely objection or motion to strike appears of record.
            Where the defendant seeks to challenge an in-court
            identification, a motion to strike an incompetent answer
            must be made when the answer is given. A motion to strike
            will therefore be deemed untimely if the witness answers
            the question and the opposing party does not move to strike
            the response until after further questions are asked of the
            witness.

342 N.C. 123, 127, 463 S.E.2d 176, 179 (1995) (citations, quotation marks, ellipses,

and brackets omitted). Due to defendant’s untimely objection to the State’s question

and total failure to move to strike Mr. Bailey’s testimony until after he had twice

identified defendants, we conclude that the objection was not preserved for appeal,

and we can review only for plain error. See generally Harding, 110 N.C. App. at 161,

429 S.E.2d at 420.




                                        - 12 -
                                  STATE V. TOOMER

                                    Opinion of the Court



      As to Mr. Sellars, we have already noted that after defendant Marlette’s

objection the trial court provided a curative instruction regarding the scope of Mr.

Sellars’s testimony. Defendant Marlette did not object after those instructions were

provided. Defendant Marlette now contends that his counsel at trial likely considered

the objection sufficiently preserved by prior objections or believed further objections

to be futile, likening the situation at trial to State v. Mills, where the defendant failed

to object to each and every piece of evidence regarding “prior bad acts[,]” and this

Court stated, “We find that the pattern of objections constitutes a continuing

objection to the line of questioning with respect to bad acts.” See State v. Mills, 83

N.C. App. 606, 612, 351 S.E.2d 130, 134 (1986). But here, immediately after providing

the curative instruction the trial court immediately asked, “Anything else, Mr.

Sharpe [defendant Marlette’s attorney]?” to which defendant responded, “No, Your

Honor. Thank you.”        As defendant Marlette not only failed to object to the

instructions, but affirmatively stated that he had no further objections, we view Mr.

Sellars’s testimony at issue only for plain error. See generally Harding, 110 N.C. App.

at 161, 429 S.E.2d at 420.

      Lastly, we turn to Detective King. While defendant Marlette did object to

Detective King’s testimony, he did not specifically do so. While a specific objection

may not be required if the reason for the objection is clear, we do not believe

defendant’s general objections here was clear. See State v. Catoe, 78 N.C. App 167,



                                           - 13 -
                                  STATE V. TOOMER

                                    Opinion of the Court



168, 336 S.E.2d 691, 692 (1985) (“Defendant’s objections to the contested testimony

were only general. Error may not be argued on appeal where the underlying objection

fails to present the nature of the alleged error to the trial court.”), disc. review denied,

316 N.C. 380, 344 S.E.2d 1 (1986). Throughout the trial, defendant Marlette objected

to the Theft 3 evidence and Detective King testified regarding much of this evidence.

Defendant Marlette did not specifically state he was objecting to an in-court

identification made by Detective King, and thus the trial court may have been under

the impression defendant was objecting to the Theft 3 evidence as a whole or for some

other reason. Indeed, when defendant Marlette untimely objected to Mr. Bailey’s in-

court identification the trial court addressed the objection as untimely, and when

defendant Marlette objected to Mr. Sellars’s testimony the trial court sustained the

objection and provided a curative instruction.         If the trial court understood the

objection to be regarding the in-court identification, rather than regarding the Theft

3 evidence which it had previously ruled on, it likely would have addressed the issue

just as in the prior two instances. Defendant Marlette’s objection was not sufficient

for review, and accordingly, here too, we review only for plain error. See generally

Harding, 110 N.C. App. at 161, 429 S.E.2d at 420.

       Again,

              [f]or error to constitute plain error, a defendant must
              demonstrate that a fundamental error occurred at trial. To
              show that an error was fundamental, a defendant must
              establish prejudice—that, after examination of the entire


                                           - 14 -
                                  STATE V. TOOMER

                                    Opinion of the Court



              record, the error had a probable impact on the jury’s
              finding that the defendant was guilty.

       Lawrence, 365 N.C. at 518, 723 S.E.2d at 334. Due to the clear videotape of

Theft 1, the blurry videotape of Theft 2, and the Theft 3 evidence wherein defendant

Marlette was caught by the police in clothes the same or quite similar to those in the

Theft 3 videotape, we believe a common plan of thefts from Belk was demonstrated,

and due to this and other evidence any in-court identification did not have a “probable

impact” on the jury’s finding of guilt as to Theft 1 and Theft 2. Id. This argument is

overruled.

       B.     Joinder

       Lastly, defendant Marlette contends, as did defendant Vernon that “the trial

court erred in joining defendants . . . for trial, and denying motions to sever, as joinder

impeded a fair determination of innocence or guilt.” (Original in all caps.) Defendant

Marlette argues that joinder “allowed the jury to consider the two men as one unit

and to conflate the evidence against one with the evidence against the other[.]”

Again, “[j]oinder decisions are in the sound discretion of the trial court.” Pittman,

219 N.C. App. at 515, 725 S.E.2d at 27 (2012).

       Once more we note that the trial court correctly instructed the jury that they

were considering two different defendants and conducting two completely separate

trials, and that they must keep evidence against the respective defendants separate

in their minds. Furthermore, defendant Marlette has failed to direct us to a single


                                           - 15 -
                                  STATE V. TOOMER

                                    Opinion of the Court



piece of evidence that was admissible against defendant Vernon that was not

admissible against him. While defendant contends the Theft 1 videotape shows

defendant Vernon’s face clearly, and not his, even if this were true, the fact remains

that the evidence was still admissible against him as he bore similarities to the man

with defendant Vernon in the Theft 1 videotape. Therefore, we conclude that the trial

court did not abuse its discretion in joining defendants’ cases for trial.

                                   IV.     Conclusion

         For the foregoing reasons, we conclude that the trial court committed no

error.

         NO ERROR.

         Judges CALABRIA and TYSON concur.

         Report per Rule 30(e).




                                           - 16 -
