An unpublished opinion of the North Carolina Court of Appeals does not constitute 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

v.

Columbus County

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 
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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.
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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 
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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 

 

1Mr. 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
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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

 

2N.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 codefendant 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 
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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
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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 
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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

 

3In 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 
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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) 

 

4As 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).