                                  NO. COA13-898

                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 4 March 2014


STATE OF NORTH CAROLINA

    v.                                     Forsyth County
                                           Nos. 10CRS055309, 12CRS006417
LAMAR MONQUEE CARPENTER,
     Defendant.


    Appeal by defendant from Judgments entered on or about 21

March 2013 by Judge V. Bradford Long in Superior Court, Forsyth

County.   Heard in the Court of Appeals 9 January 2014.


    Attorney General Roy A. Cooper, III, by Special                     Deputy
    Attorney General Aimee Margolis, for the State.

    Unti & Lumsden LLP,           by Sharon L. Smith, for defendant-
    appellant.


    STROUD, Judge.


    Lamar      Carpenter     (“defendant”)      appeals    from      judgments

entered on or about 21 March 2013 after a Forsyth County jury

found   him   guilty   on   two   counts   of   robbery   with   a   dangerous

weapon and one count of possession of a firearm by a convicted

felon. We conclude that defendant has failed to show error at

his trial, but dismiss his ineffective assistance of counsel

claim without prejudice to his ability to raise it by motion for

appropriate relief.
                                       -2-
                               I.     Background

      On   7   February    2011,     defendant    was   indicted     in    Forsyth

County for robbery with a dangerous weapon. This indictment was

superseded on 23 January 2012 by one charging two counts of

robbery with a dangerous weapon and again on 13 August 2012 by

indictments     charging     two    counts   of   robbery     with   a   dangerous

weapon and one count of possession of a firearm by a felon.

Defendant pled not guilty and the case proceeded to jury trial.

      At trial, the State’s evidence tended to show that on 23

April 2010, Ahmed Khabiry and Shafic Andraos were working at a

gas station and convenience store in Winston-Salem. Mr. Khabiry

was working as a manager and clerk, while Mr. Andraos, the owner

of the store, was working in the back office. At around 9:00 or

9:30 that morning, a young man walked into the convenience store

and   attempted   to   use    the    ATM.    Neither    Mr.   Khabiry     nor   Mr.

Andraos recognized the man. That same man returned a few minutes

later with a second man. Both men were wearing bandanas covering

the lower half of their faces. Mr. Khabiry was outside sweeping

the parking lot when he saw the men arrive. He started heading

back inside to assist them when he noticed the first man was

carrying a silver gun in his hand. Mr. Khabiry grabbed for the

gun, but the second robber came up, pointed another silver gun
                                           -3-
at   him,   and     pushed   him    inside.       The    first   robber   took     Mr.

Khabiry back behind the counter to the cash register, while the

second robber went back to the office where Mr. Andraos was

working.

      Mr. Khabiry recognized the second robber as one of his

regular customers, who he had nicknamed “Big Money,” but did not

recognize the first robber.               He recognized “Big Money” from his

build   and    voice,   and     also      from   his   tattoo.    In     court,    Mr.

Khabiry identified defendant as the second robber and the man he

knew as “Big Money.”

      The     first    robber      told    Mr.    Khabiry   to    open    the     cash

register, which he did, and then demanded Mr. Khabiry hand over

his wallet. When Mr. Khabiry informed the first robber that he

did not have a wallet on him, the robber told him to hand over

whatever money he had in his pocket, which amounted to five

dollars.      The   second    robber      took   about   $6,700   from    the     back

office, where Mr. Andraos had been preparing the store’s cash

for deposit. Both robbers then left the store and Mr. Khabiry

called the police.

      Around 5 May 2010, the police asked Mr. Khabiry to look at

two photo arrays, one of which contained defendant’s photograph.

The arrays were administered by an officer with no connection to
                                              -4-
the investigation and no knowledge of which photograph in the

array was the suspect.              Mr. Khabiry identified defendant as the

regular customer who had robbed the store, stating he was “100

percent      sure.”         He   did    not    identify         the    man    whom    police

suspected was the first robber.

       Sometime       in     July      2010,        defendant         returned       to   the

convenience        store.    Mr.    Khabiry      recognized       him    as    the    second

robber and informed Mr. Andraos. Mr. Andraos went out to look at

the car defendant was driving, wrote down                             the license plate

number, and called the police. At trial, Mr. Andraos identified

defendant as the man he saw in July whom Mr. Khabiry pointed

out. Mr. Andraos testified that he noticed the same tattoo on

defendant’s arm in July as the one he saw on the second robber’s

arm, but that he did not really know defendant.

       The State also introduced pictures taken of defendant while

he was in jail that showed the tattoo on his right arm and still

photographs taken by the store’s surveillance cameras during the

robbery.       The surveillance camera photographs showed that the

second robber had a tattoo on his forearm, but the photographs

were   not    of    sufficient         quality      to   show    the    details      of   the

tattoo.
                                               -5-
         At the close of the State’s evidence, defendant moved to

dismiss       all    of    the    charges      against       him   and    the    trial      court

denied the motion. He then elected not to present evidence and

renewed his motion to dismiss. Again, the trial court denied the

motion. The jury found defendant guilty on two counts of robbery

with a dangerous weapon and one count of possession of a firearm

by   a    felon.           The    trial     court     sentenced          defendant     to    two

consecutive terms of 97-126 months imprisonment and one term of

19-23 months imprisonment. Defendant gave notice of appeal in

open court.

                            II.    Admission of Photographs

         Defendant        first    argues      that    the     trial         court   erred    in

admitting three photographs of him and his tattoos taken at the

jail after his arrest. He contends that the photographs were not

properly authenticated, not relevant, and that the trial court

erred in denying his motion to exclude them under Rule 403. We

hold      that      the    trial       court   did     not     err      in    admitting      the

photographs.

A.       Standard of Review

         At   trial,      defendant       only   objected          to    admission     of    the

photographs         under       N.C.   Gen.    Stat.     §    8C-1,      Rule    403   (2011).

Defendant        did      not    raise    either      authentication            or   relevance
                                          -6-
below, but asks us to review the trial court’s denial of his

motion to exclude the photographs on those grounds for plain

error.

             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. Moreover,
             because plain error is to be applied
             cautiously and only in the exceptional case,
             the error will often be one that seriously
             affects the fairness, integrity or public
             reputation of judicial proceedings.

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

(citations and quotation marks omitted).

      Defendant did object on the basis that the evidence was

inadmissible     under     Rule     403.       We   review    the   trial    court’s

determination under Rule 403 for an abuse of discretion. State

v. Cunningham, 188 N.C. App. 832, 836-37, 656 S.E.2d 697, 700

(2008). “An abuse of discretion results only where a decision is

manifestly unsupported by reason or so arbitrary that it could

not   have   been    the   result    of    a    reasoned     decision.”     State    v.

Black, 197 N.C. App. 731, 737, 678 S.E.2d 689, 693 (citation and

quotation    marks    omitted),     app.       dismissed,     363   N.C.    657,    685
                                         -7-
S.E.2d 108 (2009), cert. dismissed, 365 N.C. 208, 710 S.E.2d 38

(2011).

B.   Authentication

     “Photographs may be used as substantive evidence upon the

laying    of   a    proper   foundation,       N.C.G.S.   §   8-97,       and   may    be

admitted when they are a fair and accurate portrayal of the

place in question and are sufficiently authenticated.” Sellers

v. CSX Transp., Inc., 102 N.C. App. 563, 565, 402 S.E.2d 872,

873 (1991).        A photograph is authentic if there is “evidence

sufficient to support a finding that the matter in question is

what its proponent claims.”            N.C. Gen. Stat. § 8C-1, Rule 901(a)

(2011).

     Here,         the   photographs     that     defendant        challenges         are

photographs taken of him, including his tattoo, while he was in

custody in October 2010. Defendant argues that because the State

introduced no evidence that defendant had that tattoo on                               23

April 2010, the date of the robbery, the photographs were not

what they purported to be. We disagree.

     The       custodial     photographs        did   not     purport       to    show

defendant’s arm at the time of the robbery.                        The photographs

clearly    show—and        the   State    introduced        them     to     show—that

defendant had a tattoo on a particular place on his forearm at
                                         -8-
the time the photograph was taken.                  The officer who took the

photographs testified about the procedure used to take them and

testified that they fairly and accurately depicted defendant’s

tattoo as it appeared in October 2010. Indeed, defendant does

not contest that the photographs fairly and accurately depict

defendant’s arm while he was in custody.                  Therefore, there is no

authentication issue with the photographs under either N.C. Gen.

Stat. § 8C-1, Rule 901(a) or N.C. Gen. Stat. § 8-97.

C.    Relevance

      Similarly, defendant argues that the custodial photographs

were irrelevant because the State has failed to show that he had

the tattoo on 23 April 2010. Defendant contends that the fact

that he had a tattoo on his forearm in October 2010 is not

probative at all as to identity.               Again, 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

it would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule

401     (2011).   “Evidence      is   relevant      if    it     has   any    logical

tendency, however slight, to prove a fact in issue in the case.”

State    v.   Whiteside,   325    N.C.    389,     397,    383   S.E.2d      911,   915

(1989). A piece of evidence does not have to positively identify
                              -9-
the perpetrator to be relevant to the issue of identity. See

State v. Collins, 35 N.C. App. 250, 252, 241 S.E.2d 98, 99

(1978) (“Under the facts in this case it was not necessary that

the victim give testimony positively identifying the clothing as

that worn by the robber, only that it was similar.”); State v.

Bass, 280 N.C. 435, 449, 186 S.E.2d 384, 394 (1972) (holding

that testimony identifying the jacket the defendant was wearing

at his arrest as similar to that of the perpetrator was relevant

and admissible).

    Here, the photographs of defendant’s tattoo taken after his

arrest were relevant to proving his identity as the perpetrator.

Detective Clark did testify that he could not make out what the

tattoo said, in the surveillance camera still photographs but

noted that he could tell it was a tattoo. Additionally, the

surveillance camera photographs clearly show the location and

general dimensions of the tattoo of the second robber. It would

be reasonable for a juror to conclude that the photographs taken

after defendant’s arrest show a tattoo in approximately the same

location and approximately the same size as that of the second

robber. That defendant had a tattoo on his forearm in October

2010 similar to that of the second robber is at least some

evidence that he was the second robber. Such evidence makes it
                                           -10-
“more    probable”    that       defendant        was   the    perpetrator           “than   it

would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule

401.    Therefore,        the    evidence     is       relevant         to   the     issue   of

identity. See Whiteside, 325 N.C. at 397-98, 383 S.E.2d at 915-

16    (holding     that    evidence        that    a    pair       of    shoes       owned   by

defendant matched the shoe prints found at the crime scene is

relevant to identity, even if the witnesses were unsure if he

was wearing those shoes on the night of the crime).                                      “Once

properly admitted, the weight to be given the evidence was a

decision for the jury.”            Id. at 398, 383 S.E.2d at 916.

D.     Rule 403

       We have held that the photographs of defendant’s tattoos

were properly authenticated and relevant to identify the second

robber. Now, we must address defendant’s argument—the only one

raised below—that the photographs are inadmissible under Rule

403     because     “[a]ny        probative        value       from          the     custodial

photographs was outweighed by the danger of unfair prejudice and

confusion of the issues.”

       Defendant     first       contends     that       the       photographs        had     no

probative    value        and     tended     to     confuse        the       jury,     largely

repeating    the    same        arguments    made       as    to    authentication           and

relevance. For the reasons discussed in the sections addressing
                                       -11-
those arguments, this argument is similarly unconvincing. Next,

defendant argues that the photographs were unfairly prejudicial

because they showed him in a jail setting. Defendant fails to

highlight   anything     in    the    photographs   that   clearly   identify

where they were taken other than “some type of institutional

setting” and the reflections of two officers.

            While all evidence offered against a party
            involves some prejudicial effect, the fact
            that evidence is prejudicial does not mean
            that it is necessarily unfairly prejudicial.
            The meaning of unfair prejudice in the
            context of Rule 403 is an undue tendency to
            suggest decision on an improper basis,
            commonly, though not necessarily, as an
            emotional one.

State v. Capers, 208 N.C. App. 605, 617, 704 S.E.2d 39, 46

(2010) (citation and quotation marks omitted), disc. rev. denied

and app. dismissed, 365 N.C. 187, 707 S.E.2d 236 (2011).

    Here,    the     trial    court   admitted   the   photographs   that   it

determined showed the least amount of information regarding the

location, but excluded as cumulative one of the photographs that

showed   more   of    defendant’s       jail   jumpsuit.   The   photographs

admitted by the trial court did not clearly show defendant in

jail garb or in handcuffs. The pictures only showed defendant in

a white t-shirt in a cinderblock room with large windows. The

trial court specifically found that it was unable to determine
                                     -12-
from the pictures that they were taken in a jail.             Therefore, we

fail to see how the admission of these pictures was unfairly

prejudicial.

    Even to the extent that a juror could have deduced that the

pictures were taken in a jail, the trial court did not abuse its

discretion   in   determining      that   the   unfair   prejudice     did   not

substantially     outweigh   the    probative     value.     It   is    common

knowledge that defendants charged with armed robbery are often

arrested and that when people are arrested they are taken to

jail.   See id. at 614, 704 S.E.2d at 44-45 (noting that it is

common knowledge that arrestees are handcuffed and citing State

v. Smith, 278 Kan. 45, 49, 92 P.3d 1096, 1099–1100 (2004), which

held that the “trial court did not err in admitting photographs

of defendant in jail clothing because most jurors would hardly

be shocked to learn that a murder suspect was taken into custody

for some period of time, the only information communicated by

jail clothing.”).     These photographs, at most, conveyed only the

limited information that defendant had been arrested, taken to

jail, and photographed. Therefore, we hold that the trial court

did not abuse its discretion in overruling defendant’s objection

based on Rule 403 and did not err in admitting the photographs

of defendant.
                                         -13-
                            III. Motion to Dismiss

     Defendant argues that the trial court erred in denying his

motion   to    dismiss      because      the    State    presented    insufficient

evidence identifying him as the second robber. We conclude that

the trial court did not err in denying defendant’s motion to

dismiss.

A.   Standard of Review

              The standard of review for a motion to
              dismiss is well known. A defendant’s motion
              to dismiss should be denied if there is
              substantial evidence of: (1) each essential
              element of the offense charged, and (2) of
              defendant’s being the perpetrator of the
              charged offense. Substantial evidence is
              relevant evidence that a reasonable mind
              might accept as adequate to support a
              conclusion. The Court must consider the
              evidence in the light most favorable to the
              State and the State is entitled to every
              reasonable inference to be drawn from that
              evidence. Contradictions and discrepancies
              do not warrant dismissal of the case but are
              for the jury to resolve.

State v. Teague, ___ N.C. App. ___, ___, 715 S.E.2d 919, 923

(2011) (citation omitted), app. dismissed and disc. rev. denied,

365 N.C. 547, 742 S.E.2d 177 (2012).

B.   Analysis

     Defendant        contends    that    there    was    insufficient     evidence

identifying     him    as   the   second       robber.   He   cites   a   number   of

articles and cases from other states discussing the weaknesses
                                     -14-
of eyewitness identification, especially when the identification

is cross-racial and when a firearm is pointed at the eyewitness.

Such    arguments    have    no   bearing    on   the   sufficiency    of   the

evidence when considering a motion to dismiss. If relevant at

all, these arguments would go only to the credibility of an

eyewitness identification. See generally State v. Knox, 78 N.C.

App. 493, 496-97, 337 S.E.2d 154, 157 (1985) (holding that the

exclusion of expert testimony on the reliability of eyewitnesses

was within the trial court’s discretion where the expert on voir

dire only testified generally); State v. Cotton, 99 N.C. App.

615, 621-22, 394 S.E.2d 456, 459-60 (1990) (finding no abuse of

discretion where the trial court concluded that general expert

testimony    on     the     reliability     of    eyewitnesses   was    unduly

prejudicial to the State), aff’d, 329 N.C. 764, 407 S.E.2d 514

(1991).

       The State called two eyewitnesses who were present at the

time of the robbery—the store clerk, Mr. Khabiry, and the owner,

Mr. Andraos. Mr. Khabiry testified that he recognized the second

robber by his eyes and his voice as one of his regular customers

both from working at the convenience store and from his previous

business operating an ice cream truck in the area.1 Although he



1
    Defendant, in his interview with a detective, confirmed that he
                                        -15-
did not know the customer’s name, Mr. Khabiry had been calling

him “Big Money.”       He also testified that he recognized defendant

as the second robber from his tattoo.2                 Further, as previously

mentioned, although the surveillance video was not clear enough

to positively identify what the second robber’s tattoo said, it

was clear enough for a reasonable juror to conclude that the

robber’s    tattoo    was     in   approximately     the   same    location,      and

approximately the same size and shape, as defendant’s tattoo.

    Mr. Khabiry was later asked to do two photo lineups, one of

which     contained    defendant’s       photograph,       and    one    of    which

contained    a     photograph      of   the    suspected    first       robber.   He

identified defendant’s photograph as one of the robbers and as

the man he knew as “Big Money.” He indicated that he was 100%

certain.     In court, he again identified defendant as the second

robber.      The     police    officers       who   investigated    the       robbery

confirmed that Mr. Khabiry had told them that he knew the second

robber as “Big Money” and that he told them he recognized that



lived in that area and had been to the convenience store on a
number of occasions.
2
  Mr. Khabiry testified that the tattoo was on the robber’s hand,
but when he was examining the photograph of the robber, marked
as State’s Exhibit 2, which clearly shows a tattoo on the
robber’s arm, he again described the tattoo as being on the
robber’s hand. Taken in the light most favorable to the State,
this inconsistency could mean that Mr. Khabiry simply misspoke
when he said the tattoo was on the second robber’s “hand.”
                                        -16-
robber as a regular customer, but testified that he had not

mentioned anything about a tattoo.                Mr. Khabiry was unable to

identify anyone as the first robber.

       In July 2010, defendant drove up to the gas station and

walked into the convenience store. Mr. Khabiry testified that he

recognized defendant and told Mr. Andraos that he was the one

who had robbed them.           Mr. Andraos then went outside, took down

the    car’s    license     plate    number     and   called       the   police.    Mr.

Andraos did not recognize either of the robbers, but confirmed

that Mr. Khabiry had identified defendant as the second robber

when he returned to the store in July.

       Defendant      argues   that     this   evidence       is   insufficient      to

identify him as the second robber because the eyewitnesses had

not    mentioned      a   tattoo    when     interviewed      by   the    police    and

because there was no corroborating physical evidence. First, the

argument about the witness’ failure to mention the tattoo simply

goes    to     the     credibility      of     eyewitness’         testimony.      “The

credibility of the witnesses and the weight to be given their

testimony      is    exclusively    a   matter    for   the    jury.”       State   v.

Scott, 323 N.C. 350, 353, 372 S.E.2d 572, 575 (1988) (citation

omitted). Defendant’s second argument is simply unconvincing. He

was positively identified by Mr. Khabiry as the second robber.
                                             -17-
Mr. Khabiry testified how he recognized defendant and identified

him    both    in    court       and   through       an       out-of-court        photographic

array.    Additionally,           it   would    be    reasonable            for   a   juror   to

conclude that the photographs from the day of the robbery show

that     the    second      perpetrator        had        a        tattoo   consistent    with

defendant’s. Taken in the light most favorable to the State, the

above evidence is sufficient to convince a reasonable juror that

defendant was one of the perpetrators of the armed robbery. See

State v. Mobley, 86 N.C. App. 528, 532, 358 S.E.2d 689, 691

(1987) (holding that eyewitness identification of defendant as

the perpetrator is sufficient to defeat a motion to dismiss on

the basis of identity).                Therefore, the trial court did not err

in denying defendant’s motion to dismiss. See Teague, ___ N.C.

App. at ___, 715 S.E.2d at 923.

                    IV.    Ineffective Assistance of Counsel

       Defendant          next    argues       that           he     received     ineffective

assistance      of    counsel,         in   violation          of     his   Sixth     Amendment

rights, when his trial counsel failed to cross-examine the two

eyewitnesses with prior inconsistent statements they had made to

police and the prosecutor.

               As   a   general   proposition,  claims  of
               ineffective assistance of counsel should be
               considered through motions for appropriate
               relief and not on direct appeal. It is well
                                      -18-
            established that ineffective assistance of
            counsel claims brought on direct review will
            be decided on the merits when the cold
            record reveals that no further investigation
            is required, i.e., claims that may be
            developed and argued without such ancillary
            procedures    as    the     appointment    of
            investigators or an evidentiary hearing.
            Thus, when this Court reviews ineffective
            assistance of counsel claims on direct
            appeal and determines that they have been
            brought prematurely, we dismiss those claims
            without prejudice, allowing defendants to
            bring them pursuant to a subsequent motion
            for appropriate relief in the trial court.

State v. Hernandez, ___ N.C. App. ___, ___, 742 S.E.2d 825, 830

(2013) (citations, quotation marks, and brackets omitted).

    Defendant     asserts   that      there    was   no   possible    strategic

reason that his trial counsel would fail to cross-examine the

eyewitnesses on any prior inconsistent statements they made. The

State counters that there were a number of possible strategic

reasons that defendant’s trial counsel would elect not to cross-

examine the witnesses using those prior statements. As we cannot

resolve this dispute on the cold record before us, we dismiss

defendant’s ineffective assistance claim as premature without

prejudice   to   his   ability   to    raise    it   through   a     motion   for

appropriate relief.

                            V.     Conclusion
                              -19-
    For the foregoing reasons, we conclude that the trial court

did not err in admitting the photographs of defendant and his

tattoos taken at the jail and that the trial court did not err

in denying defendant’s motion to dismiss. We dismiss defendant’s

ineffective assistance of counsel claim without prejudice to his

ability to raise it by motion for appropriate relief.

    NO ERROR; DISMISSED in part.

    Judges HUNTER, JR., Robert N. and DILLON concur.
