An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-540
                          NORTH CAROLINA COURT OF APPEALS

                                   Filed:     6 May 2014


STATE OF NORTH CAROLINA

      v.                                            Lincoln County
                                                    No. 11 CRS 51150
SIDNEY NOEL HOFFMAN



      Appeal by defendant from judgment entered 3 August 2012 by

Judge Robert T. Sumner in Lincoln County Superior Court.                            Heard

in the Court of Appeals 31 March 2014.


      Roy Cooper, Attorney General, by Amanda                            P.    Little,
      Assistant Attorney General, for the State.

      Leslie C. Rawls for defendant-appellant.


      DAVIS, Judge.


      Sidney       Noel     Hoffman       (“Defendant”)        appeals       from    his

conviction for robbery with a dangerous weapon.                          The charge

arose from an incident at First Citizens Bank where Defendant

informed    a   bank      teller       that   she    was    being   robbed    and     she

observed     the    tip     of     a    gun    in     his    sleeve   during        their

interaction.       On appeal, he argues that the trial court erred by

(1) denying his motion to suppress; (2) denying his motion to
                                            -2-
dismiss the charge of robbery with a dangerous weapon; and (3)

instructing the jury on the charge of robbery with a dangerous

weapon.        After     careful     review,       we   conclude           that    Defendant

received a fair trial free from error.

                                 Factual Background

    On 18 April 2011, Defendant was charged with robbery with a

dangerous      weapon.          Defendant     filed       a    pre-trial          motion    to

suppress (1) a gun and notebook seized at his residence; and (2)

a videotaped interview of Defendant.                    The trial court conducted

a suppression hearing on 30 July 2012.

    Lieutenant           Tim    Johnson     (“Lieutenant            Johnson”)       of     the

Lincoln County Sheriff’s Office testified that after arresting

Defendant, he advised him of his Miranda rights and Defendant

declined to make a statement without an attorney.                           Defendant was

appointed      counsel         the   next    morning.               Lieutenant       Johnson

subsequently received Defendant’s inmate request form stating:

“Need     to     speak     to    Lieutenant        Johnson          from    investigation

concerning my case against me.”                    Lieutenant Johnson met with

Defendant in an interview room.                    Defendant waived his Miranda

rights,    and    in     the    videotaped    interview,            he   told     Lieutenant

Johnson    that    he     robbed     the    bank    but       did    not     have    a     gun.

Defendant also told Lieutenant Johnson where to find the clothes
                                            -3-
he wore during the robbery and a notebook with bank robbery

“practice” notes that he created.

       Lieutenant      Johnson       also      testified       at      the     suppression

hearing that the bank teller, Susan Fleming (“Ms. Fleming”),

gave a statement to a responding officer that she saw the tip of

a     gun   hidden     in    the    robber’s         shirt    sleeve.          On     cross-

examination, Lieutenant Johnson admitted that “[t]here was no

description       really     of    the   gun.”        At     the    conclusion       of    the

hearing,     the     trial    court      denied       the     motion     and    the       case

proceeded to trial.

       The State’s evidence at trial tended to show the following:

On 11 April 2011, Defendant entered a First Citizens Bank in

Denver, North Carolina, approached Ms. Fleming and handed her a

note that said: “You’re being robbed, I have a gun and I will

shoot you.”          Ms. Fleming, who saw the tip of a gun inside

Defendant’s shirt cuff, handed Defendant money from her bank

drawer.      Defendant left the bank and drove off in a silver

compact     car.       Ms.    Fleming         and    other     bank     employees         gave

statements to responding police officers.

       After receiving a tip, officers went to the home Defendant

shared with his girlfriend, Louise Mazziotti (“Ms. Mazziotti”),

and    observed    a   silver      car   in    the    carport.         Police       obtained
                                      -4-
consent to search the home and found a gun, registered to Ms.

Mazziotti, on the living room table.

    Defendant admitted that he entered the bank, gave a note to

the teller demanding money, and left with the money given to him

by her.     Defendant, however, testified that he “never had a gun

at any time in First Citizens Bank.”

    The     trial    court   instructed     the   jury   on   robbery      with   a

dangerous    weapon    and   common   law    robbery.         The   jury    found

Defendant guilty of robbery with a dangerous weapon.                 The trial

court sentenced Defendant to a term of 75 to 99 months active

imprisonment.       Defendant appealed to this Court.

    Counsel appointed to represent Defendant has been unable to

identify any issue with sufficient merit to support a meaningful

argument for relief on appeal and asks that this Court conduct

its own review of the record for possible prejudicial error.

Counsel has also shown to the satisfaction of this Court that

she has complied with the requirements of Anders v. California,

386 U.S. 738, 18 L.Ed.2d 493 (1967), and State v. Kinch, 314

N.C. 99, 331 S.E.2d 665 (1985), by advising Defendant of his

right to file written arguments with this Court and providing

him with the documents necessary for him to do so.                    Defendant

filed written arguments with this Court on 12 August 2013.
                                        -5-
                                     Analysis

    First, Defendant claims the trial court erred by denying

his motion to suppress the gun and his videotaped statement.

Our review of a trial court’s denial of a motion to suppress is

“strictly    limited       to    determining       whether    the   trial    judge’s

underlying findings of fact are supported by competent evidence,

in which event they             are conclusively binding on appeal, and

whether    those   factual       findings     in    turn     support   the   judge’s

ultimate conclusions of law.”               State v. Cooke, 306 N.C. 132,

134, 291 S.E.2d 618, 619 (1982).              “The trial court’s conclusions

of law . . . are fully reviewable on appeal.”                    State v. Hughes,

353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).

    Defendant asserts the trial court erred in not suppressing

the gun because the trial court’s Finding of Fact 10 is not

supported by the evidence.            Finding of Fact 10 states that “a

bank teller-witness at the time of the robbery gave a statement

to the investigating officer that she saw the tip of a gun in

the sleeve of the Defendant’s shirt but could not otherwise

describe    the    gun.”         Lieutenant    Johnson       testified      that   Ms.

Fleming told Detective William Pitts (“Detective Pitts”) of the

Lincoln County Sheriff’s Office that she saw the tip of a gun in

Defendant’s sleeve.             Lieutenant Johnson admitted there was no
                                                 -6-
other     description        of       the      gun.       We     believe     the     foregoing

testimony is sufficient to support the challenged finding of

fact.

       Defendant      also       contends         the    trial     court     erred       in   not

suppressing        the     videotaped           statement       because    “his     will      was

overcome to contact the Lt. to discuss his case.”                                    Evidence

presented      at    the        suppression           hearing     shows    that      Defendant

checked    and      initialed         the      following       paragraph    of     his   second

Miranda warning on 13 April 2011: “I contacted Lieutenant Tim

Johnson      and    also    .    .    .     Lincoln      County    Sheriff’s       Office       in

reference to this case.                   No promises or threats have been made

to me, no pressure or coercion of any kind has been used against

me.”    This evidence is sufficient to support the trial court’s

finding      and    conclusion          that      Defendant’s       statement        given      to

Lieutenant         Johnson        was          voluntarily       and      knowingly        made.

Accordingly, the trial court properly denied Defendant’s motion

to suppress.

       Defendant      next       contends         that    the    trial     court     erred     in

denying      his    motion       to    dismiss         because    the     State    failed      to

present sufficient evidence of robbery with a dangerous weapon.

“‘Upon defendant’s motion for dismissal, the question for the

Court   is    whether       there         is    substantial       evidence    (1)     of      each
                                       -7-
essential element of the offense charged, or of a lesser offense

included therein, and (2) of defendant’s being the perpetrator

of such offense.       If so, the motion is properly denied.’”                   State

v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting

State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)),

cert.     denied,    531     U.S.     890,       148        L.Ed.2d    150     (2000).

“Substantial evidence is such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.”                          State

v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980).                            “In

making    its   determination,       the   trial   court       must    consider      all

evidence    admitted,      whether    competent        or    incompetent,      in    the

light most favorable to the State, giving the State the benefit

of every reasonable inference and resolving any contradictions

in its favor.”       State v. Rose, 339 N.C. 172, 192, 451 S.E.2d

211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L.Ed.2d 818

(1995).

    “[T]he      essential      elements     of    robbery       with   a     dangerous

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

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

threatened use of firearms or other dangerous weapon, implement

or means, and (3) danger or threat to the life of the victim.’”

State v. Allred, 131 N.C. App. 11, 19, 505 S.E.2d 153, 158
                                       -8-
(1998) (quoting State v. Donnell, 117 N.C. App. 184, 188, 450

S.E.2d 533, 536 (1994)).           Defendant asserts the State failed to

present evidence of elements two and three, pointing to evidence

indicating that Ms. Fleming’s testimony was inconsistent with

her written statements to responding officers.

      Here,     Ms.   Fleming      testified    that    (1)   when     Defendant

approached her teller window, he gave her a note that said:

“You’re being robbed, I have a gun and I will shoot you;” (2)

she saw the tip of a gun inside Defendant’s right-arm shirt

cuff; and (3) she complied with Defendant’s demand by handing

him   money    from   her   bank    drawer    because   “[she]   was    scared.”

Further, Ms. Fleming’s testimony at trial is consistent with the

statement she gave to Detective Pitts on the day of the robbery.

Any discrepancy in the evidence was for the jury to resolve.

See State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595

(1992).       Therefore, we conclude that the trial court properly

denied Defendant’s motion to dismiss.

      Finally,    Defendant        contends    the   trial    court    erred   in

instructing the jury on the charge of robbery with a dangerous

weapon.       Defendant asserts there was insufficient evidence to

support the instruction and that the instruction was misleading.

Defendant acknowledges that because he failed to object to this
                                            -9-
instruction        at    trial,    our    standard     of    review     is   limited    to

reviewing for plain error.                 Plain error only arises when the

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

that justice cannot have been done[.]”                       State v. Lawrence, 365

N.C.   506,    516-17,       723    S.E.2d    326,     333     (2012)   (citation      and

quotation marks omitted).                 We have reviewed the trial court’s

instructions in their entirety and find no plain error.

                                         Conclusion

       In   accordance       with       Anders,   we    have    fully    examined      the

record to determine whether any issues of arguable merit appear

therefrom     or    whether       Defendant’s     appeal       is   wholly   frivolous.

Because Defendant has raised only issues which are meritless, we

conclude his appeal is wholly frivolous.                       Furthermore, we have

examined      the       record    for    possible      prejudicial      error   against

Defendant and found none.

       NO ERROR.

       Judges McGEE and ELMORE concur.

       Report per Rule 30(e).
