An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1046
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 15 April 2014


STATE OF NORTH CAROLINA

      v.                                      Forsyth County
                                              Nos. 11 CRS 62670, 72
JAVIER HERRERA MORAN



      Appeal by Defendant from judgments entered 20 March 2013 by

Judge William Z. Wood, Jr. in Superior Court, Forsyth County.

Heard in the Court of Appeals 4 March 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Scott K. Beaver, for the State.

      James N. Freeman, Jr. for Defendant.


      McGEE, Judge.



      Javier Herrera Moran (“Defendant”) was indicted on 4 June

2012 for four counts of assault with a deadly weapon with intent

to kill and discharging a weapon into an occupied vehicle.                         A

jury found Defendant guilty of all charges on 20 March 2013.

The facts relevant to the issues on appeal are discussed in the

analysis section of this opinion.            Defendant appeals.
                                            -2-
                               I. Motion to Dismiss

    Defendant first argues the trial court erred in denying

Defendant’s motion to dismiss because “the State’s evidence was

insufficient     to     show   [Defendant]        was    the   perpetrator       of   the

alleged    crimes[.]”          We    must    first      address     the   question     of

whether Defendant has preserved this issue for our review.

                                    A. Preservation

    “In order to preserve an issue for appellate review, a

party must have presented to the trial court a timely request,

objection,      or   motion,     stating      the    specific       grounds     for   the

ruling    the   party    desired      the    court      to   make   if    the   specific

grounds were not apparent from the context.”                         N.C.R. App. P.

10(a)(1).

    In State v. Jones, ___ N.C. App. ___, ___, 734 S.E.2d 617,

623 (2012), aff’d, ___ N.C. ___, ___ S.E.2d ___ (2014 WL 895626)

(7 March 2014), the defendant “merely asked that all charges

against him be dismissed without noting a specific basis” at the

close of all evidence.          This Court concluded that the defendant,

“having failed to make the argument he now makes on appeal in

support of his motion to dismiss in the trial court, has not

preserved it for our review.”               Id.     (citing State v. Tellez, 200

N.C. App. 517, 521, 684 S.E.2d 733, 736 (2009)).
                                    -3-
    In the present case, at the close of the State’s evidence,

Defendant moved to dismiss.    Defendant did not argue his motion.

He stated only: “Your Honor, at the end of the State’s evidence,

the defense would make a motion to dismiss, but does not wish to

be heard.”     Defendant did not offer any evidence, but he did

renew his motion.     He again failed to state a basis for the

motion, stating only: “I would like to let the Court know the

defense does not intend to put on any evidence and at the end of

resting, as it were, the defense would renew the motion.            The

same, do not wish to be heard.”

    The trial court denied Defendant’s motions.             In denying

Defendant’s motions, the trial court stated: “I think there is

enough to take it to the jury.”           Because it appears the trial

court denied Defendant’s motions on the basis of the sufficiency

of the evidence, we address the merits of Defendant’s argument.

                  B. Merits of the Issue on Appeal

    Defendant     contends    the     State    presented   insufficient

evidence that Defendant was the perpetrator of the offenses of

assault with a deadly weapon with intent to kill and discharging

a firearm into a motor vehicle.       We disagree.

                       i. Standard of Review

    We review the trial court’s denial of a motion to dismiss

de novo.     State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29,
                                            -4-
33 (2007).      The “trial court must determine whether there is

substantial     evidence      (1) of        each    essential     element    of     the

offense charged and (2) that defendant is the perpetrator of the

offense.”      State v. Bradshaw, 366 N.C. 90, 93, 728 S.E.2d 345,

347   (2012)   (internal      quotation       marks   omitted).         “Substantial

evidence is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.”                  Id.

      The “trial court must consider the evidence in the light

most favorable to the State, drawing all reasonable inferences

in the State’s favor.”           Id. at 92, 728 S.E.2d at 347.                     “All

evidence, competent or incompetent, must be considered.                            Any

contradictions       or    conflicts    in    the    evidence     are   resolved    in

favor of the State, and evidence unfavorable to the State is not

considered.”      Id. at 93, 728 S.E.2d at 347 (internal citations

and quotation marks omitted).

                                  ii. Analysis

      Defendant      contends        that     the     “only     evidence     linking

[Defendant]     to   the    crimes     in    this   case   came     from   the    adult

victim, Cidronio Paz Mayo[,]” and that this identification was

“inherently incredible,” citing State v. Miller, 270 N.C. 726,

154 S.E.2d 902 (1967).

      “As a general rule, the credibility of witnesses and the

proper weight to be given their identification testimony is a
                                      -5-
matter for jury determination.”             State v. Turner, 305 N.C. 356,

362, 289 S.E.2d 368, 372 (1982).              “An exception to this rule,

however, was set forth in the case of State v. Miller[.]”                   Id.

“Miller involved a trial court’s ruling on a motion for nonsuit

on the grounds that the identification evidence was inherently

incredible.”   Id.

         In Miller we held that the rule providing
         for jury assessment of the credibility of
         witnesses and weight of the evidence does
         not   apply   “where    the   only  evidence
         identifying the defendant as the perpetrator
         of the offense is inherently incredible
         because   of   undisputed    facts,  clearly
         established by the state’s evidence, as to
         the physical conditions under which the
         alleged observation occurred.”

Id.; but see State v. Carpenter, ___ N.C. App. ___, ___, 754

S.E.2d 478, 484, slip op. at 14 (2014) (COA13-898) (challenge to

credibility of eyewitness identification has “no bearing on the

sufficiency    of    the   evidence    when     considering    a   motion   to

dismiss”).

    In Miller, the identification “was based on the observation

by the state’s witness of a man at the scene of the crime.”

Turner, 305 N.C. at 362-63, 289 S.E.2d at 372.                In Miller, the

testimony of the State’s witness “shows that he was never closer

than 286 feet from the man whom he saw running[.]”                 Miller, 270

N.C. at 732, 154 S.E.2d at 905.               The State’s witness did not

then know the defendant.       Id.     “Thus, his testimony is not that
                                           -6-
he recognized at that distance a man previously known to him,

but that he saw for the first time a stranger.”                         Id.     “Some six

hours later, he saw [the defendant] in a police ‘lineup,’ so

arranged that the identification of [the defendant] with the man

seen earlier would naturally be suggested to the witness.”                           Id.

      Our Supreme Court concluded in Miller that “the distance

was   too   great    for    an    observer       to    note    and    store    in   memory

features which would enable him, six hours later, to identify a

complete     stranger      with    the   degree        of     certainty     which   would

justify the submission of the guilt of such person to the jury.”

Id.    Our     Supreme     Court    held    that       the    trial   court     erred    in

denying the motion for nonsuit.              Id. at 732, 154 S.E.2d at 906.

      “According to Miller, the test to be employed to determine

whether the identification evidence is inherently incredible is

whether     ‘there    is     a    reasonable          possibility      of     observation

sufficient to permit subsequent identification.’”                             Turner, 305

N.C. at 363, 289 S.E.2d at 372 (quoting Miller, 270 N.C. at 732,

154   S.E.2d    at   906).        “Where    such       a    possibility     exists,     the

credibility of the witness’ identification and the weight given

his testimony is for the jury to decide.”                     Id.

      In Turner, the State’s witness recognized the defendant and

knew the defendant by sight and name because they lived in the

same neighborhood.         Turner, 305 N.C. at 363, 289 S.E.2d at 373.
                                     -7-
The State’s witness testified that the defendant passed “two to

three feet” from where the witness was hiding.             Id.    Our Supreme

Court held that the evidence showed that the witness “had a

reasonable    possibility      of    observation     of     the     defendant

sufficient to permit subsequent identification.”            Id.

    In the present case, the identification came from Cidronio

Paz Mayo (“Mr. Mayo”), who testified that he had known Defendant

and Defendant’s brother all his life.           Mr. Mayo saw Defendant on

24 December 2011, the date of the alleged offenses, between 5:00

and 6:00 p.m.       Mr. Mayo testified it was not yet dark outside

and that he saw Defendant in the front passenger seat of a

“brownish    burgundy”    Explorer.        He   further    testified     that

Defendant’s brother was the driver of the vehicle.

    Mr. Mayo identified Defendant and Defendant’s brother as

“they were coming towards [Mr. Mayo] and then when [Defendant]

got out through the door through the window to start shooting at

[Mr. Mayo] from the waist up.”          When the shooting started, the

vehicles “were at a distance of about 10 meters.”                   Mr. Mayo

testified    that   he   was   a    “hundred    percent”    confident    that

Defendant was the perpetrator.

    The facts in the present case are analogous to Turner.               Mr.

Mayo had known Defendant since childhood.           Prior to the date of

the offense, Mr. Mayo had not seen Defendant or Defendant’s
                                       -8-
brother for “perhaps four or five years[.]”                   However, Mr. Mayo

was only approximately ten meters away from the vehicle in which

Defendant was a passenger.           Furthermore, Mr. Mayo saw Defendant

lean out of the vehicle, in daylight, to shoot at the vehicle

carrying Mr. Mayo and his children.                 The evidence showed that

Mr. Mayo “had a reasonable possibility of observation of the

defendant     sufficient      to     permit      subsequent      identification.”

Turner, 305 N.C. at 363, 289 S.E.2d at 373.                 The trial court did

not err in denying Defendant’s motion to dismiss.

                  II. Failure To Procure An Expert Witness

       Defendant     next   argues    the     “trial    counsel’s      failure    to

procure an expert witness . . . suggests ineffective assistance

of counsel[.]”        This claim is better addressed through a motion

for appropriate relief, and not on direct appeal.                      See, e.g.,

State v. Stroud, 147 N.C. App. 549, 554, 557 S.E.2d 544, 547

(2001)     (“we    stress   this   Court    is    limited   to    reviewing     this

assignment of error only on the record before us”).                    Defendant’s

argument is dismissed without prejudice to Defendant’s right to

file   a   motion    for    appropriate     relief     in   superior    court    and

request a hearing to determine whether he received ineffective

assistance of counsel.         See State v. Fair, 354 N.C. 131, 166-67,

557 S.E.2d 500, 524-25 (2001); State v. Foster, 193 N.C. App.

733, 738, 668 S.E.2d 630, 633 (2008).
                                           -9-
                            III. Mitigating Factors

    Defendant next argues the trial court erred in not finding

certain    mitigating       factors.        The   trial    court,    based     on   the

jury’s finding beyond a reasonable doubt of the existence of an

aggravating factor, imposed an aggravated sentence for one of

Defendant’s convictions for assault with a deadly weapon with

intent    to    kill.     Defendant     presented        evidence    of     mitigating

factors, but the trial court made no findings of the existence

of mitigating factors.

    Defendant “bears the burden of proving by a preponderance

of the evidence that a mitigating factor exists.”                           N.C. Gen.

Stat.     § 15A-1340.16(a)         (2013).        “The    court     shall     consider

evidence of aggravating or mitigating factors present in the

offense     that     make     an     aggravated      or     mitigated         sentence

appropriate, but the decision to depart from the presumptive

range is in the discretion of the court.”                 Id.

    “Our        Supreme     Court    has     explained      that     uncontradicted

evidence is not necessarily sufficient to meet the defendant’s

burden of proof[.]”          State v. Marecek, 152 N.C. App. 479, 513,

568 S.E.2d 237, 259 (2002).

               [U]ncontradicted,              quantitatively
               substantial,   and  credible   evidence   may
               simply fail to establish, by a preponderance
               of the evidence, any given factor in
               aggravation or mitigation.    While evidence
               may not be ignored, it can be properly
                                     -10-
             rejected if it fails to prove, as a matter
             of law, the existence of the mitigating
             factor.

Id.

       Defendant contends the trial court erred in failing to make

findings as to certain mitigating factors.               However, Defendant

does   not   show   that    the   trial   court   failed   to   consider   the

evidence     of   the   mitigating   factors   that    Defendant   presented.

Defendant has not shown that the trial court erred by rejecting

evidence of certain mitigating factors.               Furthermore, Defendant

has not shown, even had the trial court made findings of certain

mitigating factors, that the trial court abused its discretion

in sentencing Defendant.

       No error in part; dismissed in part.

       Judges STEELMAN and ERVIN concur.

       Report per Rule 30(e).
