An unpublished opinion of the North Carolina Court of Appeals does not constitute 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. COA13-1046

NORTH CAROLINA COURT OF APPEALS

Filed: 15 April 2014

STATE OF NORTH CAROLINA

v. Forsyth County

Nos. 11 CRS 62670, 72

JAVIER HERRERA MORAN

Appeal by Defendant from judgments entered 20 March 2013 by 

Judge William Z. Wood, Jr. in Superior Court, Forsyth County. 

Heard in the Court of Appeals 4 March 2014.

Attorney General Roy Cooper, by Assistant Attorney General 

Scott K. Beaver, for the State.

James N. Freeman, Jr. for Defendant.

McGEE, Judge.

Javier Herrera Moran (“Defendant”) was indicted on 4 June 

2012 for four counts of assault with a deadly weapon with intent 

to kill and discharging a weapon into an occupied vehicle. A 

jury found Defendant guilty of all charges on 20 March 2013.

The facts relevant to the issues on appeal are discussed in the 

analysis section of this opinion. Defendant appeals.
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I. Motion to Dismiss

Defendant first argues the trial court erred in denying 

Defendant’s motion to dismiss because “the State’s evidence was 

insufficient to show [Defendant] was the perpetrator of the 

alleged crimes[.]” We must first address the question of 

whether Defendant has preserved this issue for our review.

A. Preservation

“In order to preserve an issue for appellate review, a 

party must have presented to the trial court a timely request, 

objection, or motion, stating the specific grounds for the 

ruling the party desired the court to make if the specific 

grounds were not apparent from the context.” N.C.R. App. P. 

10(a)(1).

In State v. Jones, ___ N.C. App. ___, ___, 734 S.E.2d 617, 

623 (2012), aff’d, ___ N.C. ___, ___ S.E.2d ___ (2014 WL 895626) 

(7 March 2014), the defendant “merely asked that all charges

against him be dismissed without noting a specific basis” at the 

close of all evidence. This Court concluded that the defendant, 

“having failed to make the argument he now makes on appeal in 

support of his motion to dismiss in the trial court, has not 

preserved it for our review.” Id. (citing State v. Tellez, 200 

N.C. App. 517, 521, 684 S.E.2d 733, 736 (2009)).
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In the present case, at the close of the State’s evidence, 

Defendant moved to dismiss. Defendant did not argue his motion. 

He stated only: “Your Honor, at the end of the State’s evidence, 

the defense would make a motion to dismiss, but does not wish to 

be heard.” Defendant did not offer any evidence, but he did 

renew his motion. He again failed to state a basis for the 

motion, stating only: “I would like to let the Court know the 

defense does not intend to put on any evidence and at the end of 

resting, as it were, the defense would renew the motion. The 

same, do not wish to be heard.”

The trial court denied Defendant’s motions. In denying 

Defendant’s motions, the trial court stated: “I think there is 

enough to take it to the jury.” Because it appears the trial 

court denied Defendant’s motions on the basis of the sufficiency 

of the evidence, we address the merits of Defendant’s argument.

B. Merits of the Issue on Appeal

Defendant contends the State presented insufficient 

evidence that Defendant was the perpetrator of the offenses of 

assault with a deadly weapon with intent to kill and discharging 

a firearm into a motor vehicle. We disagree.

i. Standard of Review

We review the trial court’s denial of a motion to dismiss 

de novo. State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 
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33 (2007). The “trial court must determine whether there is 

substantial evidence (1) of each essential element of the 

offense charged and (2) that defendant is the perpetrator of the 

offense.” State v. Bradshaw, 366 N.C. 90, 93, 728 S.E.2d 345, 

347 (2012) (internal quotation marks omitted). “Substantial 

evidence is such relevant evidence as a reasonable mind might 

accept as adequate to support a conclusion.” Id.

The “trial court must consider the evidence in the light 

most favorable to the State, drawing all reasonable inferences 

in the State’s favor.” Id. at 92, 728 S.E.2d at 347. “All 

evidence, competent or incompetent, must be considered. Any 

contradictions or conflicts in the evidence are resolved in 

favor of the State, and evidence unfavorable to the State is not 

considered.” Id. at 93, 728 S.E.2d at 347 (internal citations 

and quotation marks omitted).

ii. Analysis

Defendant contends that the “only evidence linking 

[Defendant] to the crimes in this case came from the adult 

victim, Cidronio Paz Mayo[,]” and that this identification was 

“inherently incredible,” citing State v. Miller, 270 N.C. 726, 

154 S.E.2d 902 (1967).

“As a general rule, the credibility of witnesses and the 

proper weight to be given their identification testimony is a 
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matter for jury determination.” State v. Turner, 305 N.C. 356,

362, 289 S.E.2d 368, 372 (1982). “An exception to this rule, 

however, was set forth in the case of State v. Miller[.]” Id. 

“Miller involved a trial court’s ruling on a motion for nonsuit 

on the grounds that the identification evidence was inherently 

incredible.” Id.

In Miller we held that the rule providing 

for jury assessment of the credibility of 

witnesses and weight of the evidence does 

not apply “where the only evidence 

identifying the defendant as the perpetrator 

of the offense is inherently incredible 

because of undisputed facts, clearly 

established by the state’s evidence, as to 

the physical conditions under which the 

alleged observation occurred.”

Id.; but see State v. Carpenter, ___ N.C. App. ___, ___, 754

S.E.2d 478, 484, slip op. at 14 (2014) (COA13-898) (challenge to 

credibility of eyewitness identification has “no bearing on the 

sufficiency of the evidence when considering a motion to 

dismiss”).

In Miller, the identification “was based on the observation 

by the state’s witness of a man at the scene of the crime.” 

Turner, 305 N.C. at 362-63, 289 S.E.2d at 372. In Miller, the 

testimony of the State’s witness “shows that he was never closer 

than 286 feet from the man whom he saw running[.]” Miller, 270 

N.C. at 732, 154 S.E.2d at 905. The State’s witness did not 

then know the defendant. Id. “Thus, his testimony is not that 
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he recognized at that distance a man previously known to him, 

but that he saw for the first time a stranger.” Id. “Some six 

hours later, he saw [the defendant] in a police ‘lineup,’ so 

arranged that the identification of [the defendant] with the man 

seen earlier would naturally be suggested to the witness.” Id.

Our Supreme Court concluded in Miller that “the distance 

was too great for an observer to note and store in memory 

features which would enable him, six hours later, to identify a 

complete stranger with the degree of certainty which would 

justify the submission of the guilt of such person to the jury.” 

Id. Our Supreme Court held that the trial court erred in 

denying the motion for nonsuit. Id. at 732, 154 S.E.2d at 906.

“According to Miller, the test to be employed to determine 

whether the identification evidence is inherently incredible is 

whether ‘there is a reasonable possibility of observation 

sufficient to permit subsequent identification.’” Turner, 305 

N.C. at 363, 289 S.E.2d at 372 (quoting Miller, 270 N.C. at 732, 

154 S.E.2d at 906). “Where such a possibility exists, the 

credibility of the witness’ identification and the weight given 

his testimony is for the jury to decide.” Id.

In Turner, the State’s witness recognized the defendant and 

knew the defendant by sight and name because they lived in the 

same neighborhood. Turner, 305 N.C. at 363, 289 S.E.2d at 373. 
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The State’s witness testified that the defendant passed “two to 

three feet” from where the witness was hiding. Id. Our Supreme 

Court held that the evidence showed that the witness “had a 

reasonable possibility of observation of the defendant 

sufficient to permit subsequent identification.” Id.

In the present case, the identification came from Cidronio 

Paz Mayo (“Mr. Mayo”), who testified that he had known Defendant 

and Defendant’s brother all his life. Mr. Mayo saw Defendant on 

24 December 2011, the date of the alleged offenses, between 5:00 

and 6:00 p.m. Mr. Mayo testified it was not yet dark outside 

and that he saw Defendant in the front passenger seat of a 

“brownish burgundy” Explorer. He further testified that 

Defendant’s brother was the driver of the vehicle.

Mr. Mayo identified Defendant and Defendant’s brother as 

“they were coming towards [Mr. Mayo] and then when [Defendant] 

got out through the door through the window to start shooting at 

[Mr. Mayo] from the waist up.” When the shooting started, the 

vehicles “were at a distance of about 10 meters.” Mr. Mayo 

testified that he was a “hundred percent” confident that 

Defendant was the perpetrator.

The facts in the present case are analogous to Turner. Mr. 

Mayo had known Defendant since childhood. Prior to the date of 

the offense, Mr. Mayo had not seen Defendant or Defendant’s 
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brother for “perhaps four or five years[.]” However, Mr. Mayo 

was only approximately ten meters away from the vehicle in which 

Defendant was a passenger. Furthermore, Mr. Mayo saw Defendant 

lean out of the vehicle, in daylight, to shoot at the vehicle 

carrying Mr. Mayo and his children. The evidence showed that 

Mr. Mayo “had a reasonable possibility of observation of the 

defendant sufficient to permit subsequent identification.” 

Turner, 305 N.C. at 363, 289 S.E.2d at 373. The trial court did 

not err in denying Defendant’s motion to dismiss.

II. Failure To Procure An Expert Witness

Defendant next argues the “trial counsel’s failure to 

procure an expert witness . . . suggests ineffective assistance 

of counsel[.]” This claim is better addressed through a motion 

for appropriate relief, and not on direct appeal. See, e.g.,

State v. Stroud, 147 N.C. App. 549, 554, 557 S.E.2d 544, 547 

(2001) (“we stress this Court is limited to reviewing this 

assignment of error only on the record before us”). Defendant’s

argument is dismissed without prejudice to Defendant’s right to 

file a motion for appropriate relief in superior court and 

request a hearing to determine whether he received ineffective 

assistance of counsel. See State v. Fair, 354 N.C. 131, 166-67, 

557 S.E.2d 500, 524-25 (2001); State v. Foster, 193 N.C. App. 

733, 738, 668 S.E.2d 630, 633 (2008).
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III. Mitigating Factors

Defendant next argues the trial court erred in not finding 

certain mitigating factors. The trial court, based on the 

jury’s finding beyond a reasonable doubt of the existence of an 

aggravating factor, imposed an aggravated sentence for one of 

Defendant’s convictions for assault with a deadly weapon with 

intent to kill. Defendant presented evidence of mitigating 

factors, but the trial court made no findings of the existence 

of mitigating factors.

Defendant “bears the burden of proving by a preponderance 

of the evidence that a mitigating factor exists.” N.C. Gen. 

Stat. § 15A-1340.16(a) (2013). “The court shall consider 

evidence of aggravating or mitigating factors present in the 

offense that make an aggravated or mitigated sentence 

appropriate, but the decision to depart from the presumptive 

range is in the discretion of the court.” Id.

“Our Supreme Court has explained that uncontradicted 

evidence is not necessarily sufficient to meet the defendant’s 

burden of proof[.]” State v. Marecek, 152 N.C. App. 479, 513, 

568 S.E.2d 237, 259 (2002).

[U]ncontradicted, quantitatively 

substantial, and credible evidence may 

simply fail to establish, by a preponderance 

of the evidence, any given factor in 

aggravation or mitigation. While evidence 

may not be ignored, it can be properly 
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rejected if it fails to prove, as a matter 

of law, the existence of the mitigating 

factor.

Id.

Defendant contends the trial court erred in failing to make 

findings as to certain mitigating factors. However, Defendant 

does not show that the trial court failed to consider the 

evidence of the mitigating factors that Defendant presented. 

Defendant has not shown that the trial court erred by rejecting 

evidence of certain mitigating factors. Furthermore, Defendant 

has not shown, even had the trial court made findings of certain 

mitigating factors, that the trial court abused its discretion 

in sentencing Defendant.

No error in part; dismissed in part.

Judges STEELMAN and ERVIN concur.

Report per Rule 30(e).