              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-1145

                                Filed: 4 October 2016

Mecklenburg County, Nos. 14 CRS 12560-61; 201911

STATE OF NORTH CAROLINA,

             v.

WESLEY PATTERSON




      Appeal by defendant from judgments entered 19 March 2014 by Judge Robert

T. Sumner in Mecklenburg County Superior Court. Heard in the Court of Appeals

27 April 2016.


      Attorney General Roy Cooper, by Assistant Attorney General Alesia Balshakova,
      for the State.

      Glover & Peterson, P.A., by Ann B. Petersen, for defendant-appellant.


      McCULLOUGH, Judge.


      Wesley Patterson (“defendant”) appeals from judgments entered upon his

convictions for breaking and entering, habitual larceny, and for attaining habitual

felon status. For the following reasons, we find no error.

                                 I.     Background

      On 27 January 2014, a Mecklenburg County Grand Jury indicted defendant in

file number 14 CRS 201911 on one count of felonious larceny for stealing a laptop
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computer and iPad valued in excess of $1,000.00. Additional indictments returned

on 31 March 2014 charged defendant for attaining habitual felon status in file

number 14 CRS 12560 and for habitual larceny in file number 14 CRS 12561.

Superseding indictments adding one count of felonious breaking and entering and

one count of felonious possession of stolen goods in file number 14 CRS 201911 were

later returned on 4 August 2014 and 8 December 2014. In total, defendant was

indicted for felonious larceny, felonious breaking and entering, felonious possession

of stolen goods, habitual felon status, and habitual larceny.1

       Pretrial matters, including how the court should proceed with the habitual

larceny charge, were addressed on 16 and 17 March 2015. Those pretrial matters

included the State’s motion to join defendant’s charges for trial and defendant’s

motion to dismiss on the ground that the crime of habitual misdemeanor larceny

subjects defendant to double jeopardy. The State’s motion to join was allowed and

defendant’s motion to dismiss was denied. The case then proceeded to trial before

the Honorable Robert T. Sumner in Mecklenburg County Superior Court on

17 March 2015.

       During a break in jury selection, and prior to the jury being empaneled,

defendant admitted to the prior misdemeanor larceny convictions needed to establish




       1Habitual larceny raises a misdemeanor larceny to a felony if the accused has four prior
misdemeanor larcenies. See N.C. Gen. Stat. § 14-7 (2015).

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habitual larceny in order to keep evidence of the prior larcenies from being presented

at trial.

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

14 January 2014, a man entered the offices of First Financial Services, Inc. (“First

Financial”), in the Fairview One Center on Fairview Road in Charlotte (the “office

building”). Brian Gillespie, a loan officer employed by First Financial, observed the

man, whom he had never seen before, coming out of his boss’ office. Gillespie and the

man made eye contact as the man surveyed the office, but they did not speak because

Gillespie was on the phone with a customer. The man then left. Gillespie described

the man as tall, slender, African-American, and wearing a newsboy cap with a button

in the front.

       Approximately thirty minutes later, David Hay, Gillespie’s boss, returned to

his office from a meeting. Gillespie then went to Hay’s office to inquire who the man

was. Hay was unaware anyone had been in his office and, at that time, noticed his

computer bag containing his MacBook Air laptop and iPad was missing. Hay began

searching the office building and parking garage for anyone matching the description

provided by Gillespie before realizing that he could track his iPad through an

application on his cell phone. Hay then used his phone to track his iPad moving on

Old Pineville Road. Hay and his coworker, Neil Nichols, then drove to a strip mall

across the road from the Woodlawn light rail station where the tracking application



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indicated the iPad was. As Hay and Nichols turned into the parking lot, Hay saw the

man walking with the computer bag over his shoulder. At trial, Hay identified the

man as defendant.

      As defendant headed across the street towards the light rail station, Nichols

called 911 while Hay flagged down a nearby police officer. That officer, Ricardo

Coronel, then approached defendant, who was sitting on a bench at the Woodlawn

light rail station with the computer bag next to him. Officer Coronel first asked

defendant if the computer bag was his, but defendant did not respond.            Officer

Coronel then asked for defendant’s identification.         After verifying defendant’s

identification and that the computer bag belonged to Hay, Officer Coronel arrested

defendant.

      Gillespie was then summoned to the Woodlawn light rail station to identify

defendant.    Upon the arrival of Gillespie, the police conducted a “show-up”

identification, during which Gillespie positively identified defendant as the man he

had seen exiting Hay’s office.

      Defendant was then taken to the Wilkinson Boulevard Police Station, where

he was interviewed by Officer James Crosby and Detective Tammy Post. A redacted

version of the videotaped interview was published to the jury at trial. The State also

published surveillance video footage from the interior of the light rail train and of the

Woodlawn light rail platform. Defendant initially objected that the video lacked



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foundation, but after a voir dire examination of the light rail employee and lengthy

bench conference, the objection was overruled.           Ray Alan Thompson, a safety

coordinator for the Charlotte Area Transit, played the surveillance footage for the

jury. Neither the State nor the Defense commented on the video.

      The State then played the surveillance footage for a second time during the

testimony of Detective Post. During the playing of the surveillance footage, the State

asked Detective Post to indicate when she recognized someone. Without objection,

Detective Post identified defendant in the surveillance footage from inside the train.

When Detective Post further testified that defendant was carrying the computer bag,

defendant offered a general objection that was overruled.         Detective Post then

continued to testify that she could tell it was defendant in the video because she was

familiar with defendant and because defendant is very tall. When the State asked

Detective Post if “[defendant was] wearing the same clothing [that] he was wearing

when [she later] interviewed him[,]” defendant’s objection on the basis of “leading”

was sustained. Detective Post then continued to testify as surveillance footage of the

train and platform recorded by various cameras at different angles was shown.

Detective Post repeatedly identified defendant and indicated defendant was holding

the computer bag in the surveillance footage. Detective Post also testified that

defendant was wearing the same clothes in surveillance footage that he wore when

she observed him in the back of a police car and when she interviewed him.



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      The following day, the State also introduced into evidence a still image showing

a person exiting the office building on the day the computer bag was taken. When

Detective Post was asked who the individual in the photograph was, the defense

objected and the objection was overruled. Detective Post then identified defendant

in the photograph. The State followed up on the identification by asking Detective

Post if anything was peculiar about defendant in the picture. Again, defendant

objected and the objection was overruled. Detective Post then responded that a

rectangular object, consistent with the shape of the computer bag, appeared to be

tucked under defendant’s shirt. After this testimony, both the State and defendant

rested.

      On 19 March 2015, the jury returned verdicts finding defendant guilty of

felonious larceny pursuant to unlawful entering, felonious entering, and felonious

possession of stolen goods or property pursuant to unlawful entering. Defendant then

pled guilty to attaining habitual felon status as part of a plea arrangement whereby

the State agreed to consolidate defendant’s convictions into a single judgment for

sentencing. Upon defendant’s convictions and the plea arrangement, the trial judge

consolidated the breaking and entering, habitual larceny, and habitual felon offenses

and entered a single judgment sentencing defendant to a term of 110 to 144 months.

The trial judge arrested judgment on the felony larceny and possession of stolen goods

or property offenses. Defendant gave notice of appeal.



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                                      II.    Discussion

        Defendant asserts that this case turned on whether the evidence was sufficient

to convince the jury that he was the person seen in the office building and that the

State’s evidence placing him in the office building was the weakest part of the State’s

case.    Thus, defendant claims the State elicited identification testimony from

Detective Post to bolster its case.

        The sole issue on appeal is whether the trial court erred in allowing portions

of Detective Post’s testimony into the evidence at trial.       Specifically, defendant

contends the trial court erred in allowing Detective Post to (1) identify defendant in

light rail surveillance footage, (2) testify that defendant could be seen holding David

Hay’s computer bag in the surveillance footage, and (3) identify defendant in the still

image from the office building. Defendant contends that the challenged testimony of

Detective Post was inadmissible and prejudicial lay witness opinion testimony

because “Detective Post was in no better position than the jury to evaluate the

evidence[.]”

        The N.C. Rules of Evidence provide that “[i]f the witness is not testifying as an

expert, his testimony in the form of opinions or inferences is limited to those 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 (2015). “Ordinarily, opinion evidence of a



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non-expert witness is inadmissible because it tends to invade the province of the

jury.” State v. Fulton, 299 N.C. 491, 494, 263 S.E.2d 608, 610 (1980). But, lay opinion

testimony identifying a person in a photograph or videotape may be allowed “ ‘where

such testimony is based on the perceptions and knowledge of the witness, the

testimony would be helpful to the jury in the jury’s fact-finding function rather than

invasive of that function, and the helpfulness outweighs the possible prejudice to the

defendant from admission of the testimony.’ ” State v. Belk, 201 N.C. App. 412, 415,

689 S.E.2d 439, 441 (2009) (quoting State v. Buie, 194 N.C. App. 725, 730, 671 S.E.2d

351, 354-55 (2009), disc. review denied, 363 N.C. 375, 679 S.E.2d 135 (2009)), disc.

review denied, 364 N.C. 129, 695 S.E.2d 761 (2010). In Belk, this Court identified the

following factors as relevant in the above analysis:

             (1) the witness’s general level of familiarity with the
             defendant’s appearance; (2) the witness’s familiarity with
             the defendant’s appearance at the time the surveillance
             photograph was taken or when the defendant was dressed
             in a manner similar to the individual depicted in the
             photograph; (3) whether the defendant had disguised his
             appearance at the time of the offense; and (4) whether the
             defendant had altered his appearance prior to trial.

Id. Applying these factors in Belk, this Court held that the trial court erred by

admitting an officer’s lay opinion testimony identifying the defendant as the person

depicted in surveillance video footage “[b]ecause [the o]fficer . . . was in no better

position than the jury to identify [the d]efendant as the person in the surveillance




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video[.]” Id. at 414, 689 S.E.2d at 441. This Court further found the error to be

prejudicial and remanded for a new trial. Id.

      When a trial court’s ruling on the admissibility of lay witness opinion

testimony is properly preserved for appellate review, we review for an abuse of

discretion. See State v. Washington, 141 N.C. App. 354, 362, 540 S.E.2d 388, 395

(2000), disc. review denied, 353 N.C. 396, 547 S.E.2d 427 (2001).          An abuse of

discretion occurs when the trial judge’s decision “lacked any basis in reason or was so

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

Bell, 167 N.C. App. 674, 678, 606 S.E.2d 436, 439 (quotation marks and citation

omitted), disc. review denied, 359 N.C. 414, 613 S.E.2d 26 (2005). Thus, as this Court

recognized in Belk, “we must uphold the admission of [an officer’s] lay opinion

testimony if there was a rational basis for concluding that [the officer] was more likely

than the jury [to correctly] identify [the d]efendant as the individual in the

surveillance footage.” Belk, 201 N.C. App. at 417, 689 S.E.2d at 442.

      Yet, as an initial matter, we must decide whether defendant preserved these

issues for appeal. The State contends defendant did not.

      “In order to preserve a question for appellate review, a party must have

presented the trial court with a timely request, objection or motion, stating the

specific grounds for the ruling sought if the specific grounds are not apparent.” State

v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991); see also N.C. R. App. P.



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10(a)(1). “A general objection, when overruled, is ordinarily not adequate unless the

evidence, considered as a whole, makes it clear that there is no purpose to be served

from admitting the evidence.” State v. Jones, 342 N.C. 523, 535, 467 S.E.2d 12, 20

(1996). “Where evidence is admitted without objection, the benefit of a prior objection

to the same or similar evidence is lost, and the defendant is deemed to have waived

his right to assign as error the prior admission of the evidence.” State v. Wilson, 313

N.C. 516, 532, 330 S.E.2d 450, 461 (1985). Similarly, “[a] defendant waives any

possible objection to testimony by failing to object to [the] testimony when it is first

admitted.” State v. Davis, 353 N.C. 1, 19, 539 S.E.2d 243, 256 (2000).

      As indicated above, all the challenged testimony in the present case was

elicited by the State during the testimony of Detective Post. Upon review of the

transcript, it is clear that defendant waived review of his challenges to Detective

Post’s testimony regarding what she observed in the surveillance footage from the

light rail train and light rail platform. First, there was never an objection to Detective

Post’s repeated identifications of defendant in the surveillance footage.        Second,

although defendant did object the first time Detective Post testified that defendant

was carrying the computer bag in the surveillance footage, that objection was general

and the same testimony was later admitted without objection. Concerning Detective

Post’s testimony based on the still image from the office building, we find the

preservation issue to be a closer call because defendant objected to both questions



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about the photograph. However, those objections were general and “the evidence,

considered as a whole, [is not] clear that there is no purpose to be served from

admitting the evidence.” Jones, 342 N.C. at 535, 467 S.E.2d at 20.

      Nevertheless, because the preservation of the issues concerning Detective

Post’s identification of defendant in the still image is a close call, we feel compelled

to note that even if defendant had properly preserved the issues for appellate review

and the testimony was determined to be admitted in error, defendant is entitled to a

new trial only if he was prejudiced by the error.

             A defendant is prejudiced by errors relating to rights
             arising other than under the Constitution of the United
             States 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. The burden of showing such prejudice under
             this subsection is upon the defendant. . . .

N.C. Gen. Stat. § 15A-1443(a) (2015). Upon review of the evidence in this case, we

hold defendant was not prejudiced by any error in allowing Detective Post’s

testimony.   Unlike in Belk, where the State’s case rested exclusively on the

surveillance video and the officer’s identification testimony from the video, 201 N.C.

App. at 418, 689 S.E.2d at 443, the State in the present case presented sufficient

evidence besides Detective Post’s testimony to allow the jury to determine defendant

was at the office building and to identify defendant as the perpetrator.

      First, the jury was afforded the opportunity to view the surveillance footage

and the still image. As defendant notes in his argument that Detective Post was in

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                                   Opinion of the Court



no better position to identify defendant than the jury, the jury could compare

defendant’s appearance in the surveillance footage and the still image to the

appearance of defendant in the videotaped interview conducted immediately after

defendant’s arrest. Second, the State presented other evidence tending to place

defendant in the office building, including an identification of defendant by Gillespie.

Specifically, Gillespie testified that he observed a man exit Hay’s office and later

identified that man as defendant. Defendant acknowledges Gillespie’s testimony, but

contends that the testimony by itself could be considered skeptically; and further

asserts the suggestive nature of “show-up” identifications increases the potential for

unreliability.

      Defendant is correct that courts have criticized the use of show-up

identifications because the practice of showing suspects singly to persons for the

purpose of identification may be inherently suggestive. State v. Oliver, 302 N.C. 28,

44-45, 274 S.E.2d 183, 194 (1981).      Yet, show-up identifications “are not per se

violative of a defendant’s due process rights.” State v. Turner, 305 N.C. 356, 364, 289

S.E.2d 368, 373 (1982) (citing Manson v. Brathwaite, 432 U.S. 98, 53 L. Ed. 2d 140

(1977)).   “An unnecessarily suggestive show-up identification does not create a

substantial likelihood of misidentification where under the totality of the

circumstances surrounding the crime, the identification possesses sufficient aspects

of reliability.” Id. We have explained as follows:



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             Our courts apply a two-step process for determining
             whether an identification procedure was so suggestive as
             to create a substantial likelihood of irreparable
             misidentification.   First, the Court must determine
             whether the identification procedures were impermissibly
             suggestive. Second, if the procedures were impermissibly
             suggestive, the Court must then determine whether the
             procedures created a substantial likelihood of irreparable
             misidentification.

State v. Rawls, 207 N.C. App. 415, 423, 700 S.E.2d 112, 118 (2010) (internal quotation

marks and citations omitted). When determining if there is a substantial likelihood

of irreparable misidentification,

             courts apply a totality of the circumstances test. For both
             in-court and out-of-court identifications, there are five
             factors to consider in determining whether an
             identification procedure is so inherently unreliable that the
             evidence must be excluded from trial: (1) the opportunity
             of the witness to view the criminal at the time of the crime;
             (2) the witness’s degree of attention; (3) the accuracy of the
             witness’s prior description of the criminal; (4) the level of
             certainty demonstrated by the witness at the
             confrontation; and (5) the length of time between the crime
             and the confrontation. Against these factors is to be
             weighed the corrupting effect of the suggestive
             identification itself.

Id. at 424, 700 S.E.2d at 118-19 (internal quotation marks and citations omitted).

      In this case, Gillespie was summoned to the light rail station to identify

someone detained as a suspect. That person, defendant, was then brought before

Gillespie from the back of a police car for identification. This process was unduly

suggestive. We, however, do not conclude that there was a substantial likelihood of

irreparable misidentification in this case where Gillespie observed defendant exit

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Hay’s office, observed defendant for several minutes and even made eye contact with

defendant, was able to give a good description of defendant, did not second guess his

identification, and the identification occurred within hours after he had observed him

in the office building. Thus, we are not persuaded that Gillespie’s testimony was

insufficient to allow the jury to find that defendant was seen exiting Hay’s office.

Moreover, the evidence shows that Hay immediately noticed a man with his computer

bag when he arrived at the strip mall while tracking his iPad and later identified that

man as defendant. The evidence also shows that defendant was sitting on a bench

with the computer bag containing Hay’s laptop and iPad when he was approached

and detained by police.

      In light of the evidence presented at trial showing that defendant was present

at the office building and was seen with the computer bag in his possession, even if

Detective Post’s testimony was admitted in error, defendant was not prejudiced

because there is not a reasonable possibility that a different result would have been

reached at trial.

                                   III.   Conclusion

      For the reasons discussed above, we hold defendant failed to preserve the

issues for appeal by proper objections at trial; but, in any event, any error by the trial

court in admitting the testimony of Detective Post was not prejudicial given the other

identification evidence presented at trial.



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NO ERROR.

Judges ELMORE and INMAN concur.




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