An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-12
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 7 October 2014


STATE OF NORTH CAROLINA

      v.                                        Union County
                                                Nos. 10 CRS 56329;
                                                11 CRS 2523; 13 CRS 717
MELVIN LEE LUCKEY



      Appeal by defendant from judgment entered 4 June 2013 by

Judge   Christopher        W.   Bragg   in   Union   County     Superior      Court.

Heard in the Court of Appeals 12 August 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Mary Carla Hollis, for the State.

      Anne Bleyman for defendant-appellant.


      BRYANT, Judge.


      Where a co-defendant was produced in-court for purposes of

identification by a witness, the trial court did not err in

admitting     the    in-court       identification.          Where     there     was

sufficient      similarity       between     defendant’s      two    prior     armed

robberies     and    the    current     armed    robbery,     the    Rule    404(b)

evidence     was    properly      admitted.       And,    where     the     evidence
                                              -2-
supported      a    finding       that   defendant      had     been    convicted        of   a

felony    in       1997,    the     trial     court     did     not     err   in    denying

defendant’s motion to dismiss the charge of possession of a

firearm     by      a   felon.           We   find     no     error     in    defendant’s

convictions.

    Defendant Melvin Lee Luckey was indicted on two counts of

attempted      first-degree         murder,     two    counts     of    robbery      with     a

dangerous weapon, larceny of a firearm, two counts of conspiracy

to commit robbery with a dangerous weapon, and two counts of

possession of a firearm by a felon.                          The matters came on for

trial 12 May 2013 in Union County Superior Court, the Honorable

Christopher W. Bragg, Judge presiding.

    The evidence at trial tended to show that on 1 November

2010, Robbie and Crystal Jordan—husband and wife and co-owners

of a Department of Motor Vehicles (DMV) License Plate Agency in

Monroe—closed their business for the day and were walking to

their respective vehicles when Crystal Jordan was approached by

co-defendant Otis Howie, Jr.                   Howie demanded the bank deposit

bag Crystal was carrying.                 Howie then shot Crystal four times

before    shooting         Robbie    several        times.      Howie    took      the   bank

deposit bag and Crystal’s purse before crossing the parking lot

and going out of sight.                  At trial, Robbie identified Howie as
                                       -3-
the shooter.       Within two hours of the time of the shooting,

surveillance video recorded Howie and defendant purchasing shoes

at   Sportrax,     an   athletic      shoe   retail    store   on   Wilkinson

Boulevard in Charlotte, a short distance from Monroe.1                     Both

Howie and defendant paid for their respective purchases with

large bills—“fifties or hundreds.”

     On the evening of 10 November 2010, defendant visited his

girlfriend Tanika Ingram at her apartment.               She testified that

defendant “just started rambling on.”

           He just like talking -- . . . him and Otis
           [] had robbed the DMV. And I was like the
           DMV . . . ? And he was like yeah, but he was
           like he don't know why Otis had shot the
           people because he was like        he wasn’t
           supposed to shoot them. He was like the way
           it was supposed to go down; it was going to
           be a cut and dry deal. He said all Otis had
           to do was go up there, rob the people, get
           back in the car, and they come back to
           Charlotte.

     At the close of the evidence,              the jury returned guilty

verdicts against defendant as to both counts of attempted first-

degree murder, both counts of robbery with a dangerous weapon,

larceny   of   a   firearm,    both    counts   of    conspiracy    to   commit

robbery with a dangerous weapon, and two counts of possession of

a firearm by a felon.         The trial court arrested judgment on the

1
  Charlotte and Monroe, North Carolina are approximately 25 miles
apart.
                                           -4-
charges of larceny of a firearm, one count of conspiracy to

commit   robbery    with    a    dangerous           weapon,    and   one     count    of

possession   of    a   firearm        by    a    felon.         Defendant     was     then

sentenced to a term of 342 to 420 months for each count of

attempted first-degree murder, 111 to 143 months for the first

count of robbery with a dangerous weapon, 139 to 176 months for

the second count of robbery with a dangerous weapon, 55 to 75

months for conspiracy to commit robbery with a dangerous weapon,

and 27 to 33 months for possession of a firearm by a felon.                           The

trial    court    ordered       all    sentences         imposed      to    be    served

consecutively.     Defendant appeals.

                       __________________________________

     On appeal, defendant raises the following issues: whether

the trial court erred in (I) allowing an in-court identification

of a co-defendant; (II) admitting evidence of other crimes; and

(III) failing to grant defendant’s motion to dismiss the charge

of   possession of a firearm by a felon.

                                                 I

     Defendant     argues       that       the       trial   court    erred      to   his

prejudice by admitting evidence identifying Howie as the man who

shot DMV owners Robbie and Crystal Jordan.                     We disagree.
                                       -5-
      Pursuant to North Carolina General Statutes, section 8C-1,

Rule 403, “[a]lthough relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the

jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.”                  N.C. Gen. Stat.

§ 8C-1, Rule 403 (2013).

           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. Rainey, 198 N.C. App. 427, 433, 680 S.E.2d 760, 766

(2009) (citations and quotations omitted).

      “Whether   or    not   to     exclude    evidence      under   Rule    403   is

within   the   discretion     of     the    trial    court    and    will    not   be

overturned absent an abuse of discretion.” State v. Underwood,

134 N.C. App. 533, 538, 518 S.E.2d 231, 237 (1999) (citing State

v.   Hennis,   323    N.C.   279,    285,     372   S.E.2d   523,    527    (1988)).

“Abuse   of    discretion     results       where    the     court's   ruling      is

manifestly unsupported by reason or is so arbitrary that it
                                     -6-
could not have been the result of a reasoned decision.”                  Hennis,

323 N.C. at 285, 372 S.E.2d at 527 (citation omitted).

      At trial, Robbie Jordan testified that up until the time

the   shooting   occurred,     1   November   2010    had   been     a    normal

business day.      The couple prepared to leave the DMV station

sometime between 5:00 and 5:30 p.m.           Crystal Jordan looked out

the building door and set the business alarm.               She and Robbie

then walked out into the parking lot.           When Crystal reached her

car, a man who had been standing next to the business approached

and   demanded   the   bank   deposit   bag   she   was   holding.        Robbie

testified that “I think I recall him saying give me the bag, and

he just went to shooting.”

           [H]e shot her and she went down on the
           ground, and then he shot her three more
           times after she was on the ground. And then
           he turned on me.

           . . .

           He got everything, started up the hill
           towards -- there’s a nightclub up there. He
           started up towards the nightclub and got
           about halfway, maybe not even halfway,
           turned around and looked at me to see if I
           had ever went down, and that’s when I got a
           good look at him before -- I mean that’s
           when I got a good look at him.

      Subsequent to this testimony, the prosecution presented,

over defendant’s objection, State’s exhibit 20—Otis Howie, Jr.
                                        -7-
Howie did not testify, but Robbie Jordan identified Howie as the

man who shot both him and his wife.

             Q      Do you recognize the individual             that
                    just walked in the courtroom?

             [Robbie Jordan:]        I do.

             Q      Could you tell the jury who that is?

             A      That’s Otis Howie.

             Q      And is that the same Otis Howie that
                    you referred to earlier?

             A      It is. He’s the one that shot me and my
                    wife.

      Defendant argues that the production of Howie prejudiced

him because “Howie was presented as a dangerous convicted felon.

. . .   The State presented Mr. Howie and [defendant] as part of

the   same   pack    and   that   [defendant]    was    responsible    for   the

dangerous Mr. Howie’s acts.”2

      Defendant     was    prosecuted    under   a     theory   of   acting-in-

concert with Howie.         It was incumbent upon the State to prove

that defendant acted together with another person.                     Because,

Robbie saw Howie after Howie shot Crystal, it was proper to have

Robbie identify Howie.         We note that prior to allowing the in-



2
  The record reflects that Otis Howie, Jr., was tried separately
for his role in the shooting and robbery of Robbie and Crystal
Jordan.
                                         -8-
court    identification       of   Howie,      the   trial    court      heard    the

arguments   from      both   the   prosecution       and   defense      and    made   a

deliberate decision to allow the in-court identification after

weighing the probative value of the in-court identification with

the possibility of prejudice to defendant.3

       As with most evidence offered against a party, there is

some prejudicial effect.           See Reis v. Hoots, 131 N.C. App. 721,

729, 509 S.E.2d 198, 204 (1998) (“The question is whether the

evidence    is   unduly      prejudicial.”).         However,     we    reject     the

notion the State’s presentation of Howie along with Robbie’s

identification of Howie as the person who shot both Robbie and

Crystal leads to undue prejudice.              Rainey, 198 N.C. App. at 433,

680 S.E.2d at 766.           Other evidence showed that defendant was

with    Howie    on   the    afternoon    of   the    shooting,      and      actively

assisted Howie in the commission of the crimes.                        The value of

the identification evidence was not substantially outweighed by

the danger of unfair prejudice, confusion of the issues, or

misleading the jury.          See N.C. Evid. Rule 403.               Therefore, we

hold the trial court did not abuse its discretion in admitting




3
  Notwithstanding that Howie was in a prison uniform and shackled
when he appeared, we note that his appearance in court was very
brief, he did not speak, and that his attorney was present.
                                          -9-
the in-court identification of Howie.                      Accordingly, we overrule

defendant’s argument.

                                           II

      Next, defendant argues that the robbery of a cash business

is not an unusual enough occurrence to satisfy the requirements

for   admission      of     prior    wrongs     or   bad    acts    pursuant       to   Rule

404(b).     Specifically, defendant contends that the admission of

evidence    surrounding        the     robbery       of    two     DMV    license       plate

agencies in Charlotte in 2007 and 2010 as Rule 404(b) evidence

was improper because the only similarity between these robberies

was that each happened outside of a DMV office.                          We disagree.

      Pursuant to Rule 404(b),

              [e]vidence of other crimes, wrongs, or acts
              is not admissible to prove the character of
              a person in order to show that he acted in
              conformity therewith. It may, however, be
              admissible for other purposes, such as proof
              of motive, opportunity, intent, preparation,
              plan, knowledge, identity, or absence of
              mistake, entrapment or accident.

N.C. Gen. Stat. § 8C-1, Rule 404(b) (2013).

      Prior     to    trial,        defendant    filed       a    motion     to     exclude

evidence      of      any     previous        robberies          defendant        allegedly

committed.           During    the     hearing       on    defendant’s        motion       to

suppress,      the    trial     court     heard      voir        dire    testimony      from

witnesses as to defendant’s involvement in two prior robberies
                                           -10-
occurring in Charlotte on 24 September 2007 and 8 October 2010,

as well as testimony from Kenneth Meaders—a co-defendant in the

2010 robbery.     At the conclusion of the hearing, the trial court

reasoned that the evidence presented met the purpose of showing

a   common    scheme   or    plan,       that   the     prior    two   robberies    were

conducted in such a way as to be sufficiently similar to the

current robbery, and that the dates on which the prior robberies

occurred—24     September         2007    and     8    October     2010—were      within

temporal proximity to the 1 November 2010 robbery.                          The court

further determined that the admission of such evidence would

survive a Rule 403 balancing test.                     Following the admission of

evidence     regarding      the   two     prior       robberies,    the   trial    court

provided the jury with a limiting instruction informing them

that “the [404(b)] evidence was received solely for the purpose

of showing that there existed in the mind of the defendant a

plan, scheme, system or design involving the crime charged in

this case.”

       Again, here on appeal, defendant challenges the conclusion

that the robberies occurring 24 September 2007 and 8 October

2010   were    sufficiently        similar        to    the     robbery   occurring   1

November 2010     to     be admissible          as evidence pursuant to Rule

404(b).
                                        -11-
      “Our Rules of Evidence require that in order for the prior

crime to be admissible, it must be relevant to the currently

alleged crime.”           State v. Carpenter, 361 N.C. 382, 388, 646

S.E.2d 105, 110 (2007) (citations omitted).

            [A]s to the “similarity” component, evidence
            of   a   prior  bad   act  must   constitute
            substantial evidence tending to support a
            reasonable finding by the jury that the
            defendant committed a similar act.     Under
            Rule 404(b) a prior act or crime is
            ‘similar’ if there are some unusual facts
            present in both crimes.

Id.   at    388,    646    S.E.2d   at    110    (citations      and    quotations

omitted).

      With regard to the robberies occurring 24 September 2007

and 8 October and 1 November 2010, instead of detailing the

events as recounted on the record, we summarize the salient

points for Rule 404(b) analysis.                Each of the prior robberies

occurred outside of a DMV office.               On each occasion, the victim

observed a firearm, usually a handgun used by the assailant.

The   timing   of    the    robberies    was    always   after    the    close   of

business between 5:30 and 6:00 p.m.              In each case, the assailant

approached the      DMV’s female business owner as she crossed a

parking lot while the owner was carrying the day’s receipts,

including a large amount of cash.               After taking the deposit bag

or attaché in which the money was being carried, the assailant
                                 -12-
exited the vicinity by a vehicle driven by another person.           The

trial court found, and we agree, that present in each robbery on

24 September 2007 and 8 October 2010 are unusual facts that are

sufficiently similar to the robbery occurring 1 November 2010 to

satisfy   the   similarity   component   of   Rule   404(b).   See   id.

Therefore, we affirm the trial court’s admission of the 404(b)

evidence.   Accordingly, defendant’s argument is overruled.

                                  III

    Defendant argues that his convictions for possession of a

firearm by a felon must be vacated because the evidence was

insufficient that defendant was the perpetrator.          Specifically,

defendant contends that because the name on the judgment and

commitment form submitted to establish defendant’s prior felony

conviction did not reflect defendant’s name, the trial court

erred in failing to grant his motion to dismiss the charge of

possession of a firearm by a felon.      We disagree.

                 Our   Supreme   Court set forth the
            standard for when a trial court should
            properly deny a motion to dismiss for
            insufficient evidence:

                      [T]he trial court must determine
                 only    whether   there  is    substantial
                 evidence of each essential element of
                 the    offense   charged   and    of   the
                 defendant being the perpetrator of the
                 offense.     Substantial    evidence    is
                 relevant evidence that a reasonable
                                   -13-
                 mind   might  accept  as   adequate   to
                 support a conclusion. In ruling on a
                 motion to dismiss, the trial court must
                 examine the evidence in the light most
                 favorable to the State, and the State
                 is   entitled   to   every    reasonable
                 inference and intendment that can be
                 drawn therefrom. Any contradictions or
                 discrepancies in the evidence are for
                 the jury to resolve and do not warrant
                 dismissal.

           Under this standard, we affirm the denial of
           a   motion   to  dismiss   for   insufficient
           evidence if the record discloses substantial
           evidence    of   each    essential    element
           constituting the offense for which the
           accused was tried.

State v. Davis, 198 N.C. App. 146, 150—51, 678 S.E.2d 709, 713

(2009) (citations and quotations omitted).

    Pursuant to North Carolina General Statutes, section 14-

415.1,   “[i]t   shall   be   unlawful   for   any   person   who   has   been

convicted of a felony to purchase, own, possess, or have in his

custody, care, or control any firearm . . . .”            N.C. Gen. Stat.

§ 14-415.1(a) (2013).         “In order to obtain a conviction for

possession of a firearm by a felon, the State must establish

that (1) the defendant has been convicted of or pled guilty to a

felony and (2) the defendant, subsequent to the conviction or

guilty [plea], possessed a firearm.”           State v. Taylor, 203 N.C.

App. 448, 458, 691 S.E.2d 755, 764 (2010) (citations omitted).
                                     -14-
       We note that defendant is correct: the name on the judgment

and commitment form was not defendant’s name and standing alone

the form would not support defendant’s conviction for possession

of a firearm by a felon.         However, there was additional evidence

to    support    defendant’s     prior   felony   conviction.    The    State

admitted into evidence and published to the jury a video of

defendant’s interview with Monroe Police Detective Glen Jenkins

on 10 November 2010.        Defendant was asked “what kind of trouble

have you been in before?” to which defendant responded, “When I

was nineteen years old, I caught an armed robbery.”                    Later,

Detective Jenkins asked defendant, “Do you own any firearms?”;

defendant responded, “Man, I’m a convicted felon.”                The State

also proffered a warrant for arrest issued 18 February 1997 by a

Mecklenburg County Magistrate, charging Melvin Lee Luckey, born

5 August 1977, with robbery with a dangerous weapon, a felony.

The   State     presented   an   indictment   issued   against   Melvin   Lee

Luckey on 10 March 1997 for the felony charge of robbery with a

dangerous weapon.      The State also presented a Transcript of Plea

form reflecting Melvin Lee Luckey’s proffer of a guilty plea to

two counts of felony robbery with a dangerous weapon.

       We find this to be substantial evidence of the requirement

that defendant pled guilty to and was convicted of a felony
                               -15-
prior to possessing a firearm in relation to the 1 November 2010

armed robbery.   Therefore, we affirm the trial court’s denial of

defendant’s motion to dismiss for insufficient evidence of the

existence   of   a   prior   felony   conviction   by   defendant.

Defendant’s argument is overruled.

    No error.

    Chief Judge McGEE and Judge STROUD concur.

    Report per Rule 30(e).
