An unpublished opinion of the North Carolina Court of Appeals does not constitute 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

An unpublished opinion of the North Carolina Court of Appeals does not constitute 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

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA14-1246

Filed: 20 October 2015

Alamance County, Nos. 11CRS057238; 12CRS004785, 050991

THE STATE OF NORTH CAROLINA

v.

MARLETTE TOOMER, Defendant.

______________________________________________

Alamance County, Nos. 11CRS057237; 12CRS004786

THE STATE OF NORTH CAROLINA

v.

VERNON TOOMER, Defendant. 

Appeal by defendants from judgments entered on or about 24 January 2014 by 

Judge G. Wayne Abernathy in Superior Court, Alamance County. Heard in the Court 

of Appeals 22 April 2015.

Attorney General Roy A. Cooper III, by Assistant Attorney General Alexandra 

M. Hightower and Special Deputy Attorney General Joseph E. Herrin, for the 

State.
STATE V. TOOMER

Opinion of the Court

- 2 -

Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Kathryn 

L. VandenBerg, for defendant-appellant Marlette Toomer.

Sharon L. Smith, for defendant-appellant Vernon Toomer. 

STROUD, Judge.

Defendant Vernon Toomer appeals from a judgment entered upon a jury 

verdict finding him guilty of felony larceny. Defendant Marlette Toomer appeals from 

judgments entered upon jury verdicts finding him guilty of two counts of felony 

larceny. 1 For the following reasons, we find no error.

I. Background

Because this case has both multiple defendants and multiple offenses, the 

background is quite the Gordian knot to untangle. In late 2011, three thefts occurred 

at Belk department store at Alamance Crossing in Burlington. In all of these 

incidents, the suspects entered the store, went into the Polo section of the men’s 

department, grabbed an armful of clothing, quickly ran out of the store, and departed 

in a car parked closely to the front door; all of these incidents were captured by 

surveillance video. 

A. Facts

 

1 Both defendants also appeal their convictions for attaining habitual felon status.
STATE V. TOOMER

Opinion of the Court

- 3 -

On 1 September 2011, the first theft (“Theft 1”) occurred. Surveillance video 

clearly showed two African-American men, whose faces are visible, take Polo clothing. 

The second theft (“Theft 2”) occurred on 3 October 2011. The surveillance video is 

blurry but showed two African-American men, whose faces were largely obscured by 

hats, taking Polo clothing. Thereafter, on 18 October 2011, Megan Edwards’ silver 

Mazda 3 was stolen from a gas station in Mebane. On 26 October 2011, the third 

theft (“Theft 3”) occurred. The surveillance video is also blurry and the faces of the 

two people taking the Polo clothing are not clear; however, this time a man and a 

woman were involved. The African-American man was wearing blue jeans, a black

hoodie, and shoes with white soles. The African-American woman was wearing a 

primarily white nurse’s scrub top with dark pants. The man and woman ran out of 

the store with their armfuls of clothing and jumped into a waiting silver car. On 27 

October 2011, the day after Theft 3 occurred, defendant Marlette and a woman, both 

of whom were wearing clothing consistent with the Theft 3 surveillance video, were 

found with Ms. Edwards’ stolen silver Mazda 3 in Durham. 

B. Criminal Proceedings

The State indicted defendant Marlette for three counts of felony larceny and 

defendant Vernon for two counts of felony larceny. Thereafter, the trial court joined 

defendants’ cases over their objection. The State chose not to prosecute Theft 3 

against defendant Marlette and dismissed the Theft 2 charge against Vernon. 
STATE V. TOOMER

Opinion of the Court

- 4 -

Ultimately, the State tried defendant Marlette for Thefts 1 and 2 and defendant 

Vernon for Theft 1.

1. Joinder 

The State moved for joinder of defendants’ cases, which the trial court allowed. 

Both defendants moved to sever, but their motions were denied. The trial court 

reasoned:

Well, the Court finds that there’s an outstanding 

similarity in the September 1, 2011, and the October 3, 

2011. Specifically, the same store was robbed, same 

manner of robbery, what’s typically referred to as a smash 

and grab. Both cases they went to the Polo department. 

Men’s clothing – men’s sweaters were stolen. . . . Both men 

appear to be identified on the security cameras. There was 

a getaway car parked in the front of the store.

The cases are strikingly similar and the Court is 

going to order the joinder of the offenses and the 

defendants for trial in this case, not only for purposes of 

judicial efficiency but, in addition, it shows a common 

scheme or plan; they’re reasonably closely connected in 

time, place and location or exactly connected in terms of 

place, and motion to join is allowed.

At trial, the State did not proceed on Marlette’s Theft 3 charge because of the 

joinder. However, the State moved to introduce the Theft 3 evidence and the trial 

court determined in its written order, “[T]his 404(B) evidence [of Theft 3] is relevant 

to defendant Marlette Toomer in that it sufficiently establishes that the theft from 

Belk Inc. on October 26, 2011, was in fact committed by the defendant, but that the 

Theft 3 “evidence is not admissible against defendant Vernon[.]” Both defendants 
STATE V. TOOMER

Opinion of the Court

- 5 -

objected to the admission of the Theft 3 evidence. Before the jury heard any of the 

evidence related to Theft 3, the trial court gave the following limiting instruction:

You are about to hear testimony which may tend to 

show that the defendant Marlette Toomer -- and Mr. Marlette 

Toomer is the young man at the far end of the table beside Mr. 

Sharpe, not Mr. Vernon Toomer who’s seated at this end of the 

table -- but you are about to hear testimony which might tend 

to show that the defendant Marlette Toomer committed a 

subsequent larceny from Belk on October 26, 2011.

This evidence is received solely for the limited purpose 

of identifying him as the person who committed the two crimes 

charged in this case, the September 1st and October 3rd 

crimes, as well as it may be considered by you to show that Mr. 

Marlette Toomer had the knowledge or that there existed in 

his mind a plan, scheme, or design involving the larcenies on 

September 1st and October 3rd if, in fact, they were 

committed, which you would have to find. If you -- it would 

you be up to you to find that.

If you believe this evidence, you may consider it but only 

for that limited purpose for which it was received. In other 

words, to show his identity or to show that he had knowledge 

or that there existed in his mind a plan, scheme, or design 

involving the September 1st and October 3rd larcenies.

Additionally -- and this is important -- this evidence 

which you are about to receive regarding the events of October 

26th and October 27th have absolutely nothing to do with Mr. 

Vernon Toomer and may not be considered by you as evidence 

in any way about his case. You must always keep [i]n mind 

that you are trying separate cases at the same time.

And none of the evidence that you are going to hear 

involving October 26th and October 27th involve Mr. Vernon 

Toomer and may not be considered by you when you consider 

whether or not he is guilty of the September 1st and October 

3rd larcenies.

2. Witness Testimony Identifying Defendants 
STATE V. TOOMER

Opinion of the Court

- 6 -

Also at trial, the State introduced testimony from three witnesses who neither 

knew defendant Marlette or defendant Vernon previously nor saw the theft suspects 

in person. The first witness, Mr. Duran Bailey, a loss prevention associate at Belk, 

testified that he was working during Theft 1 and watched the incident as it occurred 

through an in-store surveillance camera. Mr. Bailey narrated the surveillance video 

and identified the suspects by their appearance in the video as the same defendants 

sitting in the courtroom. Defendant Marlette objected, but was overruled, while 

defendant Vernon failed to object.

The second witness, Mr. Darius Sellars, was called to Belk after Theft 2

occurred and watched the surveillance video. At trial, Mr. Sellars narrated the video 

and then identified both defendants by name as the Theft 2 suspects. Defendant 

Marlette objected, and the trial court sustained the objection and instructed the jury 

to strike the testimony at issue. The jury was subsequently instructed that Mr. 

Sellars made his identification by comparing the physical similarities between the 

suspects in the Theft 2 video and defendants in the courtroom and that they were not 

to consider him identifying the defendants by name; neither defendant objected to 

these instructions. 

The third witness, Detective Kevin King of the Burlington Police Department, 

is the only witness at issue who testified about Theft 3 under the trial court’s limiting 

instructions. After reviewing the videos from all three thefts as part of his 
STATE V. TOOMER

Opinion of the Court

- 7 -

investigation, Detective King concluded that defendant Marlette was a perpetrator 

in all three thefts and defendant Vernon was a perpetrator in Thefts 1 and 2. 

Defendant Marlette objected, and was overruled, while defendant Vernon did not 

object. 

C. Outcome

The jury found defendant Vernon guilty of felony larceny for Theft 1, and the 

trial court entered judgment. The jury found defendant Marlette guilty of two counts 

of felony larceny for Theft 1 and Theft 2, and the trial court entered judgments. Both 

defendants appeal. 

II. Defendant Vernon

Although both defendants raise similar issues on appeal, we will separately 

review their cases and individual arguments. See generally State v. Wilson, 108 N.C. 

App. 575, 581, 424 S.E.2d 454, 457 (1993) (considering co-defendants’ cases 

individually), disc. review denied and appeal dismissed, 333 N.C. 541, 429 S.E.2d 562 

(1993). We first consider defendant Vernon’s appeal. 

A. Joinder

Defendant Vernon first contends that the trial court erred in joining the 

defendants for trial, arguing that “joinder of the defendants deprived . . . [him] of a 

fair trial where the trial court admitted highly prejudicial [Theft 3] evidence against 

Marlette Toomer that was not admissible against” him. (Original in all caps.)
STATE V. TOOMER

Opinion of the Court

- 8 -

Joinder decisions are in the sound discretion of the 

trial court. According to our General Statutes, charges 

against two or more defendants may be joined for trial if 

the charges 1) are part of a common scheme or plan, 2) are 

part of the same act or transaction, or 3) are closely 

connected in time, place, and occasion. In fact, public policy 

strongly compels consolidation as the rule rather than the 

exception when each defendant is sought to be held 

accountable for the same crime or crimes. Thus, the test 

we apply on review is whether the offenses are so separate 

in time and place and so distinct in circumstances as to 

render consolidation unjust and prejudicial to the 

defendant.

State v. Pittman, 219 N.C. App. 512, 515, 725 S.E.2d 25, 27 (citations and quotation 

marks omitted), disc. review denied, 366 N.C. 223, 726 S.E.2d 832 (2012).

In State v. Ellison, this Court determined:

It is not uncommon where two defendants are joined for 

trial that some evidence will be admitted which is not 

admissible as against both defendants, leading our Courts 

to recognize that limiting instructions ordinarily eliminate 

any risk that the jury might have considered evidence 

competent against one defendant as evidence against the 

other. As a result, the presentation of evidence admissible 

to prove the guilt of only one of multiple defendants whose 

guilt is being considered in the context of a joint trial will 

not, without more, render the joinder of multiple 

defendants for trial inappropriate.

If we were to agree with the defendant that 

the introduction of evidence admissible 

against only one of the defendants joined for 

trial required a severance of the defendants’ 

trials, we would in effect be ruling that codefendants may not be joined for trial in this 

state. It would be unusual for all evidence at 

a joint trial to be admissible against both 

defendants, and we often rely on the common 
STATE V. TOOMER

Opinion of the Court

- 9 -

sense of the jury, aided by appropriate 

instructions of the trial judge, not to convict 

one defendant on the basis of evidence which 

relates only to the other.

213 N.C. App. 300, 313, 713 S.E.2d 228, 237-38 (2011) (citations, quotation marks, 

and brackets omitted), aff'd, 366 N.C. 439, 738 S.E.2d 161 (2013). Here, the trial 

court gave an appropriate limiting instruction regarding the evidence that was only 

applicable to defendant Marlette. We conclude that the trial court did not abuse its 

discretion in joining the cases as the joinder was neither “unjust [nor] prejudicial[,]” 

particularly in light of the fact that the State ultimately only submitted Theft 1 as 

the charge to the jury and the evidence for Theft 1 included video of the perpetrators’ 

faces. See Pittman, 219 N.C. App. at 515, 725 S.E.2d at 27. This argument is 

overruled.

B. Admission of Witness Testimony

Defendant Vernon next contends that “the trial court committed reversible 

error in allowing the State’s witnesses to offer opinion testimony identifying . . . [him] 

from the surveillance tape where the witnesses were not in a better position than the 

jurors to draw conclusions from the evidence.” (Original in all caps.) Defendant 

Vernon further contends that this was prejudicial because the State’s case against 

him “rested entirely on identifying him from the . . . [Theft 1] videotape and still 

photographs.” 
STATE V. TOOMER

Opinion of the Court

- 10 -

Defendant directs our attention to three witnesses, Mr. Bailey, Mr. Sellars, 

and Detective King; as to all three witnesses, defendant failed to object on this issue. 

Defendant directs our attention to defendant Marlette’s objections, but defendant 

Vernon failed to make an objection. We therefore address this issue under plain error 

analysis, see State v. Harding, 110 N.C. App. 155, 161, 429 S.E.2d 416, 420 (1993) 

(“Due to defendant’s failure to object at trial, we must review this objection under the 

plain error rule.”), which defendant also raised in his brief: 

For error to constitute plain error, a defendant must 

demonstrate that a fundamental error occurred at trial. To 

show that an error was fundamental, a defendant must 

establish prejudice—that, after examination of the entire 

record, the error had a probable impact on the jury’s 

finding that the defendant was guilty.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citations and 

quotation marks omitted). Since the jury was able to view the Theft 1 video, which 

clearly shows the faces of two men taking Polo clothing, we do not conclude that any 

error in allowing witness opinion testimony “had a probable impact on the jury’s 

finding that the defendant was guilty.” Id. This argument is overruled.

III. Defendant Marlette

We next address defendant Marlette’s appeal.

A. Admission of Witness Testimony

Defendant Marlette, like defendant Vernon, contends that 

the trial court committed error, or in the alternative plain 
STATE V. TOOMER

Opinion of the Court

- 11 -

error, in admitting testimony of three witnesses who gave 

opinions that . . . [he] was one of the men in the Belk 

surveillance videotapes, where these witnesses were in no 

better position than the jurors to draw a conclusion on 

identity.

 (Original in all caps.) 

We first consider Mr. Bailey’s testimony:

Q (By Mr. Soderberg [State’s Attorney]) Mr. Bailey, do 

you recognize the two individuals in that video as being in 

this courtroom here today? 

A Yes, sir. 

Q And can you point them out to the jury? 

A Yes, sir. 

Q And where are they at? Describe some clothing that 

they’re wearing?

A Got on white shirts. One had on white shirt and 

black pants. The other one have on white shirt and khaki 

looking pants. 

Q From those videos and those photographs, who do 

you recognize who to be?

A The guy with the light blue shirt on with the Nike 

hat is with the white shirt and black pants. And the guy 

with the black striped shirt -- white striped shirt is sitting 

right to your right. 

THE COURT: For the record, the defendant 

Marlette Toomer is wearing black pants today with a white 

shirt and the defendant Vernon Toomer is wearing a white 

shirt with light khaki colored pants. Is that a fair 

statement, sir?
STATE V. TOOMER

Opinion of the Court

- 12 -

THE WITNESS: Yes, sir. 

MR. SHARPE: I would respectfully object and 

just say that he doesn’t have any better knowledge than 

anyone else of this identification.

MR. SODERBERG: Object to the 

argumentative, Your Honor. 

THE COURT: Sustained as to the 

argumentative. It’s already in testimony. Overruled. 

In State v. McCray, the Supreme Court stated:

It is well established that error may not be 

predicated upon a ruling which admits evidence unless a 

timely objection or motion to strike appears of record. 

Where the defendant seeks to challenge an in-court 

identification, a motion to strike an incompetent answer 

must be made when the answer is given. A motion to strike 

will therefore be deemed untimely if the witness answers 

the question and the opposing party does not move to strike 

the response until after further questions are asked of the 

witness.

342 N.C. 123, 127, 463 S.E.2d 176, 179 (1995) (citations, quotation marks, ellipses, 

and brackets omitted). Due to defendant’s untimely objection to the State’s question 

and total failure to move to strike Mr. Bailey’s testimony until after he had twice 

identified defendants, we conclude that the objection was not preserved for appeal, 

and we can review only for plain error. See generally Harding, 110 N.C. App. at 161, 

429 S.E.2d at 420.
STATE V. TOOMER

Opinion of the Court

- 13 -

As to Mr. Sellars, we have already noted that after defendant Marlette’s 

objection the trial court provided a curative instruction regarding the scope of Mr. 

Sellars’s testimony. Defendant Marlette did not object after those instructions were 

provided. Defendant Marlette now contends that his counsel at trial likely considered 

the objection sufficiently preserved by prior objections or believed further objections 

to be futile, likening the situation at trial to State v. Mills, where the defendant failed 

to object to each and every piece of evidence regarding “prior bad acts[,]” and this 

Court stated, “We find that the pattern of objections constitutes a continuing 

objection to the line of questioning with respect to bad acts.” See State v. Mills, 83 

N.C. App. 606, 612, 351 S.E.2d 130, 134 (1986). But here, immediately after providing 

the curative instruction the trial court immediately asked, “Anything else, Mr. 

Sharpe [defendant Marlette’s attorney]?” to which defendant responded, “No, Your 

Honor. Thank you.” As defendant Marlette not only failed to object to the 

instructions, but affirmatively stated that he had no further objections, we view Mr. 

Sellars’s testimony at issue only for plain error. See generally Harding, 110 N.C. App. 

at 161, 429 S.E.2d at 420.

Lastly, we turn to Detective King. While defendant Marlette did object to 

Detective King’s testimony, he did not specifically do so. While a specific objection 

may not be required if the reason for the objection is clear, we do not believe 

defendant’s general objections here was clear. See State v. Catoe, 78 N.C. App 167, 
STATE V. TOOMER

Opinion of the Court

- 14 -

168, 336 S.E.2d 691, 692 (1985) (“Defendant’s objections to the contested testimony 

were only general. Error may not be argued on appeal where the underlying objection 

fails to present the nature of the alleged error to the trial court.”), disc. review denied, 

316 N.C. 380, 344 S.E.2d 1 (1986). Throughout the trial, defendant Marlette objected 

to the Theft 3 evidence and Detective King testified regarding much of this evidence. 

Defendant Marlette did not specifically state he was objecting to an in-court 

identification made by Detective King, and thus the trial court may have been under 

the impression defendant was objecting to the Theft 3 evidence as a whole or for some 

other reason. Indeed, when defendant Marlette untimely objected to Mr. Bailey’s incourt identification the trial court addressed the objection as untimely, and when 

defendant Marlette objected to Mr. Sellars’s testimony the trial court sustained the 

objection and provided a curative instruction. If the trial court understood the 

objection to be regarding the in-court identification, rather than regarding the Theft 

3 evidence which it had previously ruled on, it likely would have addressed the issue 

just as in the prior two instances. Defendant Marlette’s objection was not sufficient 

for review, and accordingly, here too, we review only for plain error. See generally 

Harding, 110 N.C. App. at 161, 429 S.E.2d at 420.

Again,

[f]or error to constitute plain error, a defendant must 

demonstrate that a fundamental error occurred at trial. To 

show that an error was fundamental, a defendant must 

establish prejudice—that, after examination of the entire 
STATE V. TOOMER

Opinion of the Court

- 15 -

record, the error had a probable impact on the jury’s 

finding that the defendant was guilty.

Lawrence, 365 N.C. at 518, 723 S.E.2d at 334. Due to the clear videotape of 

Theft 1, the blurry videotape of Theft 2, and the Theft 3 evidence wherein defendant 

Marlette was caught by the police in clothes the same or quite similar to those in the 

Theft 3 videotape, we believe a common plan of thefts from Belk was demonstrated, 

and due to this and other evidence any in-court identification did not have a “probable 

impact” on the jury’s finding of guilt as to Theft 1 and Theft 2. Id. This argument is 

overruled. 

B. Joinder

Lastly, defendant Marlette contends, as did defendant Vernon that “the trial 

court erred in joining defendants . . . for trial, and denying motions to sever, as joinder 

impeded a fair determination of innocence or guilt.” (Original in all caps.) Defendant 

Marlette argues that joinder “allowed the jury to consider the two men as one unit 

and to conflate the evidence against one with the evidence against the other[.]” 

Again, “[j]oinder decisions are in the sound discretion of the trial court.” Pittman, 

219 N.C. App. at 515, 725 S.E.2d at 27 (2012).

Once more we note that the trial court correctly instructed the jury that they 

were considering two different defendants and conducting two completely separate 

trials, and that they must keep evidence against the respective defendants separate 

in their minds. Furthermore, defendant Marlette has failed to direct us to a single 
STATE V. TOOMER

Opinion of the Court

- 16 -

piece of evidence that was admissible against defendant Vernon that was not 

admissible against him. While defendant contends the Theft 1 videotape shows 

defendant Vernon’s face clearly, and not his, even if this were true, the fact remains 

that the evidence was still admissible against him as he bore similarities to the man 

with defendant Vernon in the Theft 1 videotape. Therefore, we conclude that the trial 

court did not abuse its discretion in joining defendants’ cases for trial. 

IV. Conclusion

For the foregoing reasons, we conclude that the trial court committed no 

error. 

NO ERROR. 

Judges CALABRIA and TYSON concur.

Report per Rule 30(e).