An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Procedur e.

NO. COA 13

- 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
.

Ro y Cooper, Attorney General, by Amanda P. Little, Assistant Attorney General, for the State. Leslie C. Rawls f or defendant

- appellant.

DAVIS , Judge.
Sidney Noel Hoffm an (“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 hi s 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
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dismiss the charge of robbery with a dange rous weapon; and (3) instructing the jury on the charge of robbery with a dangerous
weapon . After careful review, we conclude that Defendant receive d a fair trial free from error. Factual Background On 18 April 2011 , D efendant was charged with robbery with a dang erous weapon . Defendant filed a pre

- trial motion to
suppres s (1) a gun and notebook seized at his residence; and (2)

a video taped interview of D efendant. The tria l 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
D efendant , he advised him of his Miranda rights and D efendant declined to make a statement without an attorney. Defendant was appointed counsel the next morning. Lieutenant Johnson subsequently received D efendant’s inmate request form stating: “Need to speak to Lieutenant Johnson from investigation concerning my case against me.” Lieutenant Johnson met with
D efendant in an interview room . D efendant waived his Mi randa rights , and i n the videotaped interview, he told L ieutenant Johnson that he robbed the bank but did not have a gun. Defendant al s o told Lieutenant Johnson where to find the clothes- 3
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he wore during the robbery and a notebook with bank robbery “practice” notes that he created
. L ieutenant 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 , L ieutenant Johnson admitted that “[t]here was no description really of the gun.” At the conclusion of the hearing, t he trial court denied the motion an d 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, approac hed Ms. Fleming and handed her a note that said: “You’re being robbed, I ha ve 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 off icers. After receiving a tip, officers went t o the home Defendant shared with his girlfriend, Louise Mazziotti (“Ms. Mazziotti”), and observed a silver car in the carport. Police obtained- 4
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consent to search the home and found a gun, registered to Ms. Mazzio tti, on the living room table. Defendant adm itted 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 robb ery with a dangerous weapon and common law robbery. The jury found
D efendant guilty of robbery with a dangerous weapon
. The trial court sentenced D efendant to a term of 75 to 9 9 months active imprisonment. Defendant appeal ed to this Court
. Counsel appointed to represent D efendant 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.
Counse l has also shown to the satisfaction of this Court that

s he 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 D efendant o f h is right to file written arguments with this Court and providing
h im with the documents necessary for him to do so. Defendant filed written arguments with this Court on 12 August 2013.- 5
- Analysis First, D efendant 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 reviewab le on appeal.” State v. Hughes , 353 N.C. 200, 2 08, 539 S.E.2d 625, 631 (2000). Defendant asserts the trial court erred in n ot suppressing the gun because the trial court’s Finding of F act 10 is not supported by the evidence. F inding of F act 10 states tha t “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 testi fied 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
D efendant’s sleeve. Lieutenant Johnson admitted there was no- 6
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other description of the gun. We believe the foregoing testimony is suf ficient to support the challe nged finding of fact
. Defendant also contends the trial cou rt 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 hear ing shows that D efendant 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 hav e 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 D efendant ’ s statement given to
L ieutenant Johnson was voluntarily and knowingly made. Accordingly, t he trial court properly denied D efendant’s motion to suppress.
D efendant next contends that the trial court erred in denying his motion to dismiss because the State failed to present sufficient evidence of robbery wi th a dangerous weapon. “‘Upon defendant’s motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each- 7
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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 con sider 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.2 d 211, 223 (1994), cert. denied , 515 U.S. 1135, 132 L.Ed. 2d 818 (1995).

“ [T]he essential elements of robber y 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
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(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 D efendant 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)

s he saw the tip of a gun inside D efendant’s right

- arm shirt cuff; and (3) she complied with D efendant’s demand by h anding
h im 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 r esolve. See State v. Olson , 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992). The refore, we conclude that the trial court properly denied D efendant’s motion to dismiss. Finally, D efendant 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
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instruction at trial, our standard o f 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 ap pear therefrom or wh ether D efendant’ s appeal is wholly frivo lous.
Because D efendant has raised only issues which are meritless, we conclude h is appeal is wholly frivolous. Furthermore, we have examined the record for possible pr ejudicial error against
D ef endant and found none.
NO ERROR . Judge s McGEE and ELMORE concur. Report per Rule 30(e).