An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-645
                       NORTH CAROLINA COURT OF APPEALS
                              Filed:     15 April 2014
STATE OF NORTH CAROLINA

                                              Columbus County
      v.
                                              No. 11 CRS 53760, 53725-27

RICKY LEVELL MITCHELL

      Appeal by defendant from judgments entered 20 February 2013

by Judge D. Jack Hooks, Jr., in Columbus County Superior Court.

Heard in the Court of Appeals 21 November 2013.

      Attorney General Roy Cooper, by Assistant Attorney General
      Scott A. Conklin, for the State.

      Unti & Lumsden LLP, by Margaret C. Lumsden, for Defendant.

      ERVIN, Judge.

      Defendant     Ricky    Levell      Mitchell    appeals     from   judgments

sentencing him to a term of 64 to 86 months imprisonment based

upon his convictions for robbery with a dangerous weapon and

obtaining property by false pretenses and to a term of 6 to 8

months imprisonment based upon his convictions for uttering a

forged instrument.          On appeal, Defendant argues that the trial

court erred by denying his motions to dismiss the robbery with a

dangerous     weapon     charge,    by    failing     to   instruct     the    jury

concerning the issue of his guilt of the lesser included offense
                                 -2-
of common law robbery, by joining all of the charges that had

been lodged against him for trial, and by allowing the admission

of impermissible lay opinion testimony, and that he received

ineffective   representation   from    his    trial    counsel   given   his

trial counsel’s failure to request that the jury be instructed

concerning the issue of his guilt of the lesser included offense

of   common   law   robbery.     After       careful    consideration     of

Defendant’s challenges to the trial court’s judgments in light

of the record and the applicable law, we conclude that the trial

court’s judgments should remain undisturbed.

                       I. Factual Background

                        A. Substantive Facts

                           1. The Checks

     Lee A. Walker, a resident of the Lake Waccamaw retirement

home, became friends with Defendant’s mother, Melinda Mitchell.

Ms. Mitchell, a nursing assistant at the retirement home, would

take Mr. Walker with her to church.           Mr. Walker had his mail,

including financial information, sent to Ms. Mitchell’s address

because he did not trust the way in which the retirement home

handled his mail.     In addition, Ms. Mitchell helped Mr. Walker

set up a checking account at the State Employees’ Credit Union.

Defendant often accompanied Ms. Mitchell and Mr. Walker to the

SECU.
                                            -3-
      After     he    received       an    order    of     checks      that    had     been

delivered to Ms. Mitchell’s residence, Mr. Walker noticed that

the box containing the checks had been opened and that a pack of

checks was missing.            Subsequently, Mr. Walker discovered that

three   checks       written   on    his    account      in    the    total    amount    of

$1,900 had been cashed on 7 October 2011, 10 October 2011, and

15 October 2011, respectively.               Mr. Walker denied having written

the   checks    in    question       or    authorizing        anyone   to     access    the

monies contained in his account.

      After    discovering       that      the    checks      had    been   cashed,     Mr.

Walker spoke with Ms. Linda Cartrette, a SECU employee.                               After

Ms. Cartrette showed him photographs of an individual cashing

the   checks,    Mr.     Walker      identified         Defendant      as     the    person

depicted in those photographs and told Ms. Cartrette that he had

not given Defendant permission to engage in the transactions.

Upon comparing        the signatures on the cashed checks with                          Mr.

Walker’s      signature,       Ms.    Cartrette         confirmed      that     the     two

signatures did not match.

                                    2. The Robbery

      On 7 November 2011, Defendant, Tremayne Davis, and Kendrell

Robinson decided to arrange to sell some marijuana to Mr. Walker

as a pretext for robbing him.                After speaking with Defendant by

telephone, Mr. Walker agreed to meet Defendant at the retirement

home.      According     to    Mr.    Davis,      who    testified      for    the    State
                                            -4-
pursuant to an agreement under which he was allowed to plead

guilty     to     common      law     robbery     and      receive       a    probationary

sentence, Mr. Walker was at the meeting place when the group

arrived.        At that point, all three men got out of the car.                             As

Mr. Davis and Mr. Robinson, who was carrying a gun, approached

Mr. Walker and pointed the gun at Mr. Walker’s head, Mr. Davis

told Mr. Walker to “give it up,” grabbed the                           money that was in

Mr.   Walker’s         hands,   and    took     his     cell     phone       and   a     wallet

containing an ATM card before reentering the car with the rest

of the group and driving away.1

      After the robbery, the three men drove to a grocery store

at which Defendant used Mr. Walker’s ATM card to obtain cash.

According to Mr. Walker, the PIN number associated with his ATM

card had been mailed to the residence of Defendant’s mother.

Subsequently,          the   three    men   drove     to   a     second      ATM    and   made

another    effort       to   obtain     cash    using      Mr.    Walker’s         ATM    card.

However,        this     attempt      failed      because        the    card       had     been

deactivated.       According to Mr. Davis, Defendant had Mr. Walker’s

card reactivated by phone and made another withdrawal.

      After being dispatched to the scene of the robbery, Officer

Adam Sellers of the Lake Waccamaw Police Department spoke with

Mr. Walker and made arrangements to have Mr. Walker’s ATM card
      1
      Mr. Walker could not identify the individuals involved in
the robbery and simply recalled that two men got out of the car
and approached him while another person remained in the car.
                                                 -5-
permanently deactivated.                   While speaking with Officer Sellers,

Mr.    Walker    mentioned            Defendant        as    a    potential       suspect    and

described the car that had been used to facilitate the robbery.

Later that night, law enforcement stopped the vehicle in which

Defendant was riding based on outstanding warrants that had been

issued as a result of the unauthorized cashing of checks drawn

on Mr. Walker’s account.                   Although Defendant denied having had

any involvement in the robbery of Mr. Walker, Officer Sellers

testified that the sweatshirt that Defendant was wearing at the

time that he was taken into custody matched the sweatshirt worn

by an individual photographed using an ATM that night.

                                 B. Procedural History

       On 7 November 2011, warrants for arrest charging Defendant

with three counts of forgery and uttering were issued.                                    On 10

November   2011,      a        warrant     for    arrest         charging    Defendant      with

robbery with a dangerous weapon and obtaining property by false

pretenses was issued.                 On 9 May 2012, the Columbus County grand

jury   returned       a    bill       of   indictment            charging    Defendant      with

robbery with a dangerous weapon and obtaining property by false

pretenses.       On 8 August 2012, the Columbus County grand jury

returned      bills       of    indictment         charging           Defendant    with   three

counts   of     forgery         and    uttering.            On    6    September    2012,    the

Columbus County grand jury returned superseding indictments in

two of the three forgery and uttering cases.
                                       -6-
    The charges against Defendant came on for trial before the

trial court and a jury at the 18 February 2013 criminal session

of the Columbus County Superior Court.              At the beginning of the

trial proceedings, the trial court allowed the State’s motion to

join all of the charges that had been lodged against Defendant

for trial.     At the conclusion of the State’s evidence, the trial

court granted Defendant’s motion to dismiss the forgery charges

for insufficiency of the evidence.                On 20 February 2013, the

jury returned a verdict convicting Defendant of robbery with a

dangerous    weapon,   obtaining       property   by   false    pretenses,   and

three counts of uttering a forged instrument.               At the conclusion

of the ensuing sentencing hearing, the trial court consolidated

Defendant’s    robbery     with    a    dangerous      weapon   and   obtaining

property by false pretenses convictions for judgment and entered

a judgment sentencing Defendant to a term of 64 to 86 months

imprisonment     and     consolidated        Defendant’s    convictions      for

uttering a forged instrument for judgment and entered a judgment

sentencing Defendant to a term of 6 to 8 months imprisonment.

    Although Defendant contends that his trial counsel intended

to give oral notice of appeal in open court after the entry of

judgment, the record is completely devoid of any indication that

Defendant’s appeal from the trial court’s judgments was ever

noted either orally or in writing.                On 5 August 2013 and 26

August 2013, respectively, Defendant filed a petition and an
                                     -7-
amended petition seeking the issuance of a writ of certiorari

authorizing appellate review of the 20 February 2013 judgments.

As a result of the fact that “[t]he writ of certiorari may be

issued in appropriate circumstances by either appellate court to

permit review of the judgments and orders of trial tribunals

when the right to prosecute an appeal has been lost by failure

to take timely action,” N.C.R. App. P. 21(a), and our belief

that Defendant should not lose the right to appellate review of

the trial court’s judgments based upon the apparent failure of

his   trial   counsel   to   note   an   appeal   from   the   trial   court’s

judgments in a timely manner, we elect, in the exercise of our

discretion, to grant Defendant’s certiorari petition.2

                    II. Substantive Legal Analysis

              A. Sufficiency of the Evidence of Robbery

      In his initial challenge to the trial court’s judgments,

Defendant contends that the trial court erred by denying his

motion to dismiss the robbery charge for insufficiency of the

evidence.     More specifically, Defendant argues that the trial

court should have granted Defendant’s dismissal motion because
      2
      N.C.R.  App.   P.   9(b)(1)   states   that  “[t]he  items
constituting the record on appeal should be arranged, so far as
practicable, in the order in which they occurred or were filed
in the trial tribunal.”    However, the record on appeal in this
case was arranged, to a considerable extent, by grouping items
on the basis of the file number assigned to those items in the
court below. We urge counsel representing parties on appeal to
comply with the chronological presentation requirement mandated
by N.C.R. App. P. 9(b)(1).
                                       -8-
the record contained no indication that he possessed a firearm

during the robbery.       Defendant’s argument lacks merit.

                           1. Standard of Review

    In reviewing the denial of a defendant’s motion to dismiss,

“‘the question for the Court is whether there is substantial

evidence (1) of each 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, 121 S. Ct.

213, 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, 115 S. Ct. 2565,                   132 L. Ed. 2d 818

(1995).

  2. Sufficiency of the Evidence to Support Robbery Conviction
                                        -9-
    The     elements     of   the    crime    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 a firearm or other dangerous weapon, and (3)

the creation of a danger or threat to the life of the victim.

N.C. Gen. Stat. § 14-87(a); State v. Joyner, 295 N.C. 55, 63,

243 S.E.2d 367, 373 (1978).              “Under the theory of acting in

concert, if two or more persons join in a purpose to commit a

crime,     each    person     is    responsible      for   all     unlawful         acts

committed    by    the   other      persons   as    long   as    those       acts    are

committed in furtherance of the crime’s common purpose.”                           State

v. Hill, 182 N.C. App. 88, 92-93, 641 S.E.2d 380, 385 (2007)

(citing State v. Erlewine, 328 N.C. 626, 637, 403 S.E.2d 280,

286 (1991)).       As a result, in order to establish a defendant’s

guilt of the crime of robbery with a dangerous weapon, “the

State    need     not    present      evidence      that   defendant          actually

possessed    the    dangerous       weapon”    and    “must      only       show    that

defendant ‘acted in concert to commit robbery and that his co-

defendant used the dangerous weapon in pursuance of that common

purpose to commit robbery.’”             Hill, 182 N.C. App. at 93, 641

S.E.2d at 385 (quoting State v. Johnson, 164 N.C. App. 1, 13,

595 S.E.2d 176, 183, disc. review denied, 359 N.C. 194, 607

S.E.2d 658 (2004)).
                                 -10-
     The record, when viewed in the light most favorable to the

State, contains evidence tending to show that Defendant, Mr.

Davis, and Mr. Robinson acted in concert for the purpose of

robbing Mr. Walker of his money, wallet, and cell phone; that a

gun was used during the commission of this criminal offense; and

that Mr. Walker felt that his life was endangered during the

robbery.   The fact that the robbery indictment returned against

Defendant did not allege that he acted as an accomplice or aided

and abetted Mr. Davis and Mr. Robinson simply has no bearing on

the proper resolution of this issue.          As a result, the record

contains ample evidence tending to show Defendant’s guilt of

robbery with a dangerous weapon on the grounds that he acted in

concert to commit that offense with Mr. Davis and Mr. Robinson,

a fact that establishes that the trial court correctly denied

Defendant’s   motion   to   dismiss   the   robbery   with   a   dangerous

weapon charge.

                 B. Common Law Robbery Instruction

     Secondly, Defendant contends that the trial court erred by

failing to instruct the jury concerning the issue of his guilt

of the lesser included offense of common law robbery.            According

to   Defendant, the jury should have been allowed to consider the

issue of his guilt of common law robbery on the grounds that the

record contains evidence tending to show that he did not use a
                                              -11-
weapon    during       the    robbery       of     Mr.   Walker.             We    do    not     find

Defendant’s argument persuasive.

                                   1. Standard of Review

       “[A]    trial       judge     must    instruct       the    jury       on     all    lesser

included offenses that are supported by the evidence, even in

the absence of a special request for such an instruction,” with

“the failure to do so [constituting] reversible error which is

not    cured   by      a   verdict       finding     the    defendant             guilty    of   the

greater offense.”             State v. Montgomery, 341 N.C. 553, 567, 461

S.E.2d    732,      739     (1995).         “The    trial    court       may       refrain       from

submitting       the       lesser    offense       to    the      jury       only       where    the

‘evidence      is    clear     and       positive    as     to    each       element       of    the

offense    charged’          and    no    evidence       supports        a    lesser-included

offense.”        State v. Lawrence, 352 N.C. 1, 19, 530 S.E.2d 807,

819 (2000) (quoting State v. Peacock, 313 N.C. 554, 558, 330

S.E.2d 190, 193 (1985)), cert. denied, 531 U.S. 1083, 121 S. Ct.

789, 148 L. Ed. 2d 684 (2001).                     As a result, the ultimate issue

raised by Defendant’s challenge to the trial court’s failure to

submit the issue of his guilt of the lesser included offense of

common law robbery for the jury’s consideration is whether the

record contains sufficient evidence from which the jury could

have    reasonably         concluded       that    Defendant       was       guilty        of    that

offense.

                                   2. Common Law Robbery
                                          -12-
    Common law robbery, which is “the non-consensual taking of

money or personal property from another by means of violence or

fear,” State v. White, 142 N.C. App. 201, 204, 542 S.E.2d 265,

267 (2001), is “a lesser included offense of armed robbery or

robbery with a firearm or other dangerous weapon,” so that “an

indictment for armed robbery will support a conviction of common

law robbery.”          State v. Tarrant, 70 N.C. App. 449, 451, 320

S.E.2d 291, 293-94 (1984).                 “The critical difference between

armed   robbery    and    common    law     robbery    is    that     the      former    is

accomplished by the use or threatened use of a dangerous weapon

whereby the life of a person is endangered or threatened” while

“[t]he use or threatened use of a dangerous weapon is not an

essential element of common law robbery.”                   Peacock, 313 N.C. at

562-63, 330 S.E.2d at 195 (citations omitted).                             “[T]he trial

judge is not required to instruct on common law robbery when the

defendant is indicted for armed robbery if the uncontradicted

evidence    indicates        that    the    robbery,        if    perpetrated,          was

accomplished      by   the   use    of    what   appeared        to   be   a   dangerous

weapon.”     Tarrant, 70 N.C. App. at 451-52, 320 S.E.2d at 294

(citing State v. Porter, 303 N.C. 680, 686-87, 281 S.E.2d 377,

382 (1980)).

    As     the   uncontroverted          evidence   contained         in   the   present

record tends to show, the robbery of Mr. Walker was committed

with the threatened use of a firearm.                  More specifically, both
                                          -13-
Mr. Walker and Mr. Davis testified that a gun was used during

the robbery.      The record contains absolutely no evidence tending

to contradict this aspect of the testimony presented by Mr.

Walker and Mr. Davis.           For that reason, we have no hesitation in

concluding      that    all     of     the    evidence    tends      to         show    that

Defendant,    Mr.      Davis,    and    Mr.   Robinson,       who   were        acting     in

concert, took Mr. Walker’s property while using a firearm, a

fact that establishes the existence of the elements necessary to

support    Defendant’s         conviction     for     robbery    with       a    dangerous

weapon.    Joyner, 295 N.C. at 63, 243 S.E.2d at 373.                             The fact

that Defendant did not actually possess the firearm used during

the   robbery     of     Mr.     Walker      simply    does     not,      contrary        to

Defendant’s      contention,         have     any     bearing       on      the        proper

resolution of this issue.              As a result, the trial court did not

err by failing to instruct the jury concerning the issue of

Defendant’s guilt of the lesser included offense of common law

robbery.

                  C. Ineffective Assistance of Counsel

      Thirdly,         Defendant          contends        that         he         received

constitutionally deficient representation from his trial counsel

as the result of his trial counsel’s failure to request the

trial court to instruct the jury concerning the issue of his

guilt of the lesser included offense of                       common law robbery.

Defendant’s argument lacks merit.
                                             -14-
       “To   prevail       on    a    claim        of    ineffective        assistance         of

counsel,     a     defendant         must    first       show     that      his    counsel’s

performance        was   deficient      and    then       that    counsel’s        deficient

performance prejudiced his defense.”                       State v. Allen, 360 N.C.

297, 316, 626 S.E.2d 271, 286 (citing Strickland v. Washington,

466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693

(1984)), cert. denied, 549 U.S. 867, 127 S. Ct. 164, 166 L. Ed.

2d 116 (2006).             “Counsel’s performance is deficient when it

falls ‘below an objective standard of reasonableness.’”                                      State

v.    Waring,      364   N.C.    443,       502,    701    S.E.2d      615,       652    (2010)

(quoting Strickland, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L.

Ed. 2d at 693), cert. denied, __ U.S. __, 132 S. Ct. 132, 181 L.

Ed. 2d 53 (2011).           A defendant is prejudiced by such deficient

performance when “there is a reasonable probability that, but

for    counsel’s         unprofessional            errors,      the      result         of    the

proceeding would have been different,” with such a “reasonable

probability”        being       “a    probability         sufficient        to     undermine

confidence in the outcome.”                 Allen, 360 N.C. at 316, 626 S.E.2d

at 286 (citations and quotation marks omitted).

       In his brief, Defendant contends that the representation

that he received from his trial counsel was deficient given his

trial counsel’s alleged failure to request the trial court to

instruct     the    jury    concerning        the       issue   of    his   guilt        of   the

lesser   included        offense      of     common       law    robbery.          The       first
                                      -15-
problem with this argument is that Defendant’s trial counsel

did, in fact, unsuccessfully request that the jury be allowed to

consider the issue of his guilt of common law robbery.                               In

addition, given the absence of any evidence tending to show that

Defendant   was    guilty     of    common   law     robbery,     any     deficient

representation that Defendant might have received from his trial

counsel   did    not    prejudice    his   chances    for    a    more    favorable

outcome at trial.         As a result, Defendant is not entitled to

relief    from    the    trial     court’s   judgments       based       upon   this

ineffective assistance of counsel claim.

                                    D. Joinder

    Fourthly,          Defendant     contends      that     the    trial        court

erroneously joined all of the offenses with which he had been

charged for trial.        More specifically, Defendant argues that the

uttering charges should not have been joined for trial with the

robbery   and    false    pretenses    charges     given    the    absence      of   a

transactional connection between these two sets of offenses.                         We

are not persuaded by Defendant’s contention.

    N.C. Gen. Stat. § 15A-926(a) provides that “[t]wo or more

offenses may be joined . . . for trial when the offenses . . .

are based on the same act or transaction or on a series of acts

or transactions connected together or constituting parts of a

single scheme or plan.”             N.C. Gen. Stat. § 15A-926(a).                    “A

motion to consolidate charges for trial is addressed to the
                                             -16-
sound discretion of the trial judge and that ruling will not be

disturbed on appeal absent an abuse of discretion.”                                  State v.

Silva, 304 N.C. 122, 126, 282 S.E.2d 449, 452 (1981).                                       “If,

however,     the     charges          consolidated           for      trial       possess     no

transactional connection, then the consolidation is improper as

a matter of law.”          Id.        “In considering whether a transactional

connection exists among offenses, our courts have taken into

consideration       such    factors          as    the       nature    of     the    offenses

charged,     commonality         of     facts,         the    lapse    of     time       between

offenses, and the unique circumstances of each case.”                                State v.

Herring,    74     N.C.    App.       269,    273,      328     S.E.2d      23,     26    (1985)

(citations    and    internal         quotation         marks      omitted),       aff’d,    316

N.C. 188, 340 S.E.2d 105 (1986).                    In resolving the issues raised

by a joinder motion, the trial court must also consider whether

a decision to allow that motion would hinder the defendant’s

ability to present a defense or deprive him or her of a fair

trial.     State v. Greene, 294 N.C. 418, 421, 241 S.E.2d 662, 664

(1978).     As a result, “[t]he question is whether the offenses

are   so    separate       in     time       and       place    and      so    distinct       in

circumstances       as     to     render           a     consolidation            unjust     and

prejudicial to defendant.”              Id. at 423, 241 S.E.2d at 665.

      All of the charges that have been lodged against Defendant

in this case stem from a series of acts which were committed

against Mr. Walker and arose from Defendant’s relationship with
                                          -17-
Mr. Walker and which were facilitated by Defendant’s familiarity

with       Mr.   Walker’s    financial    situation.     As     a    result     of    the

relationship between his mother and Mr. Walker, Defendant had

access to Mr. Walker’s checks and to information relating to his

SECU account, including the ATM PIN number associated with that

account.           According      to    the   evidence   presented       at     trial,

Defendant used the information to which he had access in order

to   cash        checks   drawn   on    Mr.   Walker’s   SECU       account     and    to

withdraw money from Mr. Walker’s SECU account using the ATM card

that was stolen during the robbery.               According to Mr. Davis, he,

Mr. Robinson, and Defendant decided to rob Mr. Walker in light

of Defendant’s statement to the effect that he knew someone with

money.           Thus,    since   the   record   shows   the        existence    of    a

transactional relationship between the charges that the trial

court allowed to be joined for trial and since we are unable to

see how Defendant was deprived of a fair trial by the trial

court’s decision to join the uttering charges with the robbery

and false pretenses charges, the trial court did not abuse its

discretion by allowing the State’s joinder motion.                       Silva, 304

N.C. at 126, 282 S.E.2d at 452.3


       3
      In attempting to persuade us to reach a different result,
Defendant cites several cases in which this Court held that a
trial court erroneously joined a number of offenses for trial.
The cases upon which Defendant relies are easily distinguishable
from the instant case, however, given that the cases upon which
Defendant relies involved offenses committed against multiple
                                       -18-
                           E. Lay Witness Testimony

      Finally, Defendant argues that the trial court erred by

allowing the admission of impermissible lay opinion testimony.

More specifically, Defendant contends that the trial court erred

by allowing Ms. Cartrette to describe the differences between

Mr. Walker’s signature and that found on the forged checks,

allowing   Officer        Sellers   to     compare     the   sweatshirt      that

Defendant was wearing at the time that he was taken into custody

with the sweatshirt worn by the individual depicted in the ATM

photograph,    and    by    allowing     Ms.   Cartrette     to   identify    the

individual depicted in the ATM photograph.                   Defendant is not

entitled to relief from the trial court’s judgments based upon

this series of contentions.

                            1. Standard of Review

      As a general proposition, lay witnesses are permitted to

offer “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.                 “[W]hether a lay

witness may testify as to an opinion is reviewed for abuse of

discretion.”    State v. Washington, 141 N.C. App. 354, 362, 540


alleged victims while this case involves multiple offenses
committed against the same individual stemming from Defendant’s
familiarity with and access to that individual’s financial
information.
                                    -19-
S.E.2d 388, 395 (2000), disc. review denied, 353 N.C. 396, 547

S.E.2d 427 (2001).       An “[a]buse of discretion results where the

court’s ruling is manifestly unsupported by reason or is so

arbitrary that it could not have been the result of a reasoned

decision.”    State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523,

527 (1988).

   2. Analysis of Specific Instances of Lay Opinion Testimony

         a. Testimony Regarding Mr. Walker’s Signature

    In   discussing      the      differences     between       Mr.   Walker’s

signature and the signatures that appeared on the forged checks

that Defendant presented for payment, Ms. Cartrette described

Mr. Walker’s signature as “a little bit of scribbling, it’s not

really smooth handwriting,” and described the signatures on the

forged checks as “tend[ing] to be smooth.”               Although Defendant

argues that the jury should not have been allowed to hear Ms.

Cartrette’s comments, we believe that her testimony describing

the signatures was “rationally based on [her] perception” of the

differences    between    those     signatures     and    was     helpful   in

determining   whether    the   checks   that     Defendant      presented   for

payment had been forged.       N.C. Gen. Stat. § 8C-1, Rule 701.            As

a result, the trial court’s decision to allow the admission of

this portion of Ms. Cartrette’s testimony was not “so arbitrary

that it could not have been the result of a reasoned decision.”

Hennis, 323 N.C. at 285, 372 S.E.2d at 527.
                                   -20-
      Moreover, “[e]videntiary error does not necessitate a new

trial unless the erroneous admission was prejudicial.”               State v.

Wilkerson, 363 N.C. 382, 415, 683 S.E.2d 174, 194 (2009), cert.

denied, 559 U.S.     1074, 130 S. Ct. 2104, 176 L. Ed. 2d 734

(2010).     Even if the trial court erred by allowing Ms. Cartrette

to comment upon the differences between Mr. Walker’s signature

and   the   signatures     appearing   on    the    checks   that   Defendant

presented for payment, any such error was clearly harmless.                 “A

defendant is prejudiced by evidentiary error ‘when there is a

reasonable possibility that, had the error in question not been

committed, a different result would have been reached at the

trial out of which the appeal arises.’”              Id. (quoting N.C. Gen.

Stat. § 15A-1443(a)).        At trial, Mr. Walker testified that he

had not written the checks that Defendant presented for payment

and that his handwriting, rather than being smooth, was like

“chicken scratch” as the result of a prior stroke.                  Similarly,

another SECU employee named Natalie Frazier testified that Mr.

Walker had difficulty signing his name and that his signature

was “somewhat jagged.”        As a result, since “substantially the

same evidence [was elicited] through other witnesses,” State v.

Richardson, 341 N.C. 658, 671, 462 S.E.2d 492, 501 (1995), we

hold that, even if the trial court erroneously admitted                    Ms.

Cartrette’s    testimony    concerning      the    differences   between   Mr.

Walker’s signature and those found on the checks that Defendant
                                   -21-
presented for payment, there is not “a reasonable possibility

that, had the error in question not been committed, a different

result would have been reached at the trial.”         N.C. Gen. Stat. §

15A-1443(a).

           b. Testimony Regarding Defendant’s Sweatshirt

    At    trial,   Officer   Sellers   testified   that   the    sweatshirt

that he observed Defendant wearing at the time that he was taken

into custody on the night of the robbery was the same as the

sweatshirt worn by an individual depicted in ATM photographs

taken that same evening.         Although Defendant contends that the

trial    court   should   have   excluded   this   portion      of   Officer

Sellers’ testimony, we conclude, as we have in similar cases,

that the challenged testimony was rationally based upon Officer

Sellers’ personal observation of the sweatshirt that Defendant

was wearing on the night of the robbery and was helpful in

identifying the individual depicted in the ATM photograph.               See

State v. Mewborn, 131 N.C. App. 495, 499, 507 S.E.2d 906, 909

(1998) (holding that the trial court did not err by admitting an

officer’s testimony that the markings on the defendant’s shoes

were consistent with the markings shown on shoes worn by the

perpetrator depicted in a video of a robbery in light of the

fact that this testimony was based upon the officer’s personal

observation of the defendant’s shoes when he was brought in for

questioning).      As a result, the trial court did not err by
                                        -22-
allowing Officer Sellers to testify concerning the resemblance

between the sweatshirt that Defendant was wearing when he was

taken into custody and the sweatshirt worn by an individual

depicted in an ATM photograph taken that same night.

                  c. Testimony Identifying Defendant as
                     Depicted in Certain Photographs

    Finally       Defendant    argues    that    the    trial    court    erred   by

allowing    Ms.    Cartrette    to   identify      him      as   the     individual

depicted in the ATM photographs.4               Defendant did not, however,

object to the admission of Ms. Cartrette’s testimony identifying

Defendant   as    the   individual      depicted       in   certain    photographs

admitted into evidence at trial.                As a result, our review of

Defendant’s challenge to the admission of this portion of Ms.

Cartrette’s testimony is limited to determining whether he is

entitled to appellate relief on plain error grounds.                      State v.

Mendoza, 206 N.C. App. 391, 395, 698 S.E.2d 170, 174 (2010)
    4
      As a preliminary matter, we note that different sets of
photographs were discussed during the course of Ms. Cartrette’s
testimony and that Defendant has not clearly identified the
photographs relating to the testimony that he seeks to challenge
in his brief.    The first set of photographs discussed in Ms.
Cartrette’s testimony depict an individual whom Ms. Cartrette
identified as Defendant cashing the stolen checks. A second set
of photographs discussed in Ms. Cartrette’s testimony depict an
individual using Mr. Walker’s stolen ATM card to make a
withdrawal.   Although this individual is wearing a sweatshirt,
his or her face cannot be seen. Ms. Cartrette did not identify
Defendant as the individual depicted in this second set of
photographs. As a result, we conclude that Defendant’s argument
is directed toward Ms. Cartrette’s testimony relating to the
first, rather than the second, set of photographs discussed in
her testimony.
                                           -23-
(stating    that,     since    defendant      “did   not    [    ]    object    to    the

admission of any of this testimony at trial,” “we, therefore,

review the admission of the testimony only for plain error”).

       “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

plain error.”        N.C.R. App. P. 10(a)(4).              An error rises to the

level of plain error in the event that the error in question is

“so fundamental that it undermines the fairness of the trial, or

[has] a probable impact on the guilty verdict.”                      State v. Floyd,

148 N.C. App. 290, 295, 558 S.E.2d 237, 240 (2002).                            For that

reason, in order to obtain relief on plain error grounds, a

convicted criminal defendant must show “(i) that a different

result probably would have been reached but for the error or

(ii)    that   the   error     was    so    fundamental     as    to       result   in   a

miscarriage of justice or denial of a fair trial.”                             State v.

Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997) (citations

omitted).

       Aside   from     the     fact       that   Defendant          has     failed      to

specifically contend in his brief that the admission of the

challenged     portion    of    Ms.    Cartrette’s        testimony         constituted

plain   error,   we    conclude      that     Defendant’s       contention      has      no
                                        -24-
merit as a substantive matter.               The evidence presented at trial

identifying    Defendant     as   the       perpetrator      of     the    offenses     at

issue   in   this   case    separate         and   apart     from    the     challenged

portion of Ms. Cartrette’s testimony was very strong.                           Defendant

had access to and possessed considerable information about Mr.

Walker’s     finances.      As    we    have       already    noted,        Mr.    Walker

identified Defendant in the photographs taken at the SECU as the

individual    who   presented     the       checks    wrongfully          drawn    on   his

account for payments.        Similarly, Officer Sellers testified that

the   sweatshirt    worn    by    the       individual     captured        in     the   ATM

photographs matched the sweatshirt that Defendant was wearing on

the night of the robbery.           Finally, Mr. Davis clearly described

Defendant’s involvement in the robbery of Mr. Walker and the use

of Mr. Walker’s ATM card to obtain cash.                     As a result, even if

the trial court erred by admitting Ms. Cartrette’s testimony

identifying him as the individual depicted in the photographs,

Defendant has not shown that “a different result probably would

have been reached but for the error” or “that the error was so

fundamental as to result in a miscarriage of justice or denial

of a fair trial” so as to rise to the level of plain error.

Bishop,    346 N.C. at 385, 488 S.E.2d at 779.                            As a result,

Defendant    is   not    entitled      to    relief   from     the    trial       court’s

judgments based upon the admission of the challenged portion of

Ms. Cartrette’s testimony.
                               -25-
                          III. Conclusion

    Thus, for the reasons set forth above, we conclude that

none of Defendant’s challenges to the trial court’s judgments

have merit.     As a result, the trial court’s judgments should,

and hereby do, remain undisturbed.

    NO ERROR.

    Judges GEER and STEPHENS concur.

    Report per Rule 30(e).
