{ "id": 8524822, "name": "STATE OF NORTH CAROLINA v. NORRIS LEWIS WESTALL", "name_abbreviation": "State v. Westall", "decision_date": "1994-10-18", "docket_number": "No. 9329SC1070", "first_page": "534", "last_page": "551", "citations": [ { "type": "official", "cite": "116 N.C. App. 534" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "3 ALR4th 374", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "50 ALR4th 1081", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "290 S.E.2d 704", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568963, 8568809, 8568849, 8568883, 8568925 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0303-05", "/nc/305/0303-01", "/nc/305/0303-02", "/nc/305/0303-03", "/nc/305/0303-04" ] }, { "cite": "284 S.E.2d 557", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "559-60" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 63", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526699 ], "year": 1981, "pin_cites": [ { "page": "67" } ], "opinion_index": 0, "case_paths": [ "/nc-app/55/0063-01" ] }, { "cite": "334 S.E.2d 107", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "76 N.C. App. 638", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527755 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/76/0638-01" ] }, { "cite": "432 S.E.2d 314", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 252", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2528464 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0252-01" ] }, { "cite": "364 S.E.2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 477", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569057, 2570019, 2572295, 2569672, 2570462 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0477-03", "/nc/321/0477-05", "/nc/321/0477-02", "/nc/321/0477-01", "/nc/321/0477-04" ] }, { "cite": "359 S.E.2d 485", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "490" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 24", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8357808 ], "year": 1987, "pin_cites": [ { "page": "31" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0024-01" ] }, { "cite": "291 S.E.2d 268", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "57 N.C. App. 191", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523178 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/57/0191-01" ] }, { "cite": "388 S.E.2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "434" } ], "opinion_index": 0 }, { "cite": "326 N.C. 155", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305404 ], "year": 1990, "pin_cites": [ { "page": "164-65" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0155-01" ] }, { "cite": "259 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 430", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572652 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0430-01" ] }, { "cite": "384 S.E.2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "299" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 36", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520052 ], "year": 1989, "pin_cites": [ { "page": "40" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0036-01" ] }, { "cite": "250 S.E.2d 197", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "203" }, { "page": "204" } ], "opinion_index": 0 }, { "cite": "296 N.C. 183", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565376 ], "year": 1978, "pin_cites": [ { "page": "192-93" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0183-01" ] }, { "cite": "366 S.E.2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 53", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2516707 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0053-01" ] }, { "cite": "314 S.E.2d 493", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 632", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2395675 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0632-01" ] }, { "cite": "378 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 343", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2487826 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0343-01" ] }, { "cite": "379 S.E.2d 842", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2482061 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0437-01" ] }, { "cite": "417 S.E.2d 68", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 281", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499718 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0281-01" ] }, { "cite": "412 S.E.2d 126", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "105 N.C. App. 122", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521637 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/105/0122-01" ] }, { "cite": "230 S.E.2d 141", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "291 N.C. 284", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557926 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/291/0284-01" ] }, { "cite": "122 L.Ed.2d 775", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1993, "opinion_index": 0 }, { "cite": "417 S.E.2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 746", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498658 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0746-01" ] }, { "cite": "108 L.Ed.2d 601", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "494 U.S. 1021", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 4944, 5169, 5111, 5052, 5183 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/1021-01", "/us/494/1021-04", "/us/494/1021-02", "/us/494/1021-03", "/us/494/1021-05" ] }, { "cite": "372 S.E.2d 855", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "865" } ], "opinion_index": 0 }, { "cite": "323 N.C. 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2564109 ], "year": 1988, "pin_cites": [ { "page": "225" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0208-01" ] }, { "cite": "341 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "80 N.C. App. 190", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522655 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/80/0190-01" ] }, { "cite": "341 S.E.2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4717832, 4720296, 4720212, 4718169, 4715071 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0593-03", "/nc/315/0593-02", "/nc/315/0593-04", "/nc/315/0593-05", "/nc/315/0593-01" ] }, { "cite": "335 S.E.2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "508-09" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 506", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523896 ], "year": 1985, "pin_cites": [ { "page": "509" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0506-01" ] }, { "cite": "287 S.E.2d 818", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "821" } ], "opinion_index": 0 }, { "cite": "305 N.C. 238", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567356 ], "year": 1982, "pin_cites": [ { "page": "243" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0238-01" ] }, { "cite": "340 S.E.2d 55", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "60" } ], "opinion_index": 0 }, { "cite": "315 N.C. 749", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718276 ], "year": 1986, "pin_cites": [ { "page": "758" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0749-01" ] }, { "cite": "225 S.E.2d 786", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1976, "pin_cites": [ { "page": "793" }, { "page": "793" } ], "opinion_index": 0 }, { "cite": "290 N.C. 203", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560772 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0203-01" ] }, { "cite": "370 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "677" } ], "opinion_index": 0 }, { "cite": "322 N.C. 818", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515424 ], "year": 1988, "pin_cites": [ { "page": "821" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0818-01" ] }, { "cite": "428 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "109 N.C. App. 518", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525878 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/109/0518-01" ] }, { "cite": "366 S.E.2d 550", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "89 N.C. App. 372", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522308 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/89/0372-01" ] }, { "cite": "243 S.E.2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "373" } ], "opinion_index": 0 }, { "cite": "295 N.C. 55", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560971 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0055-01" ] }, { "cite": "298 S.E.2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "60 N.C. App. 92", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519491 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/60/0092-01" ] }, { "cite": "343 S.E.2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "897" } ], "opinion_index": 0 }, { "cite": "317 N.C. 119", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4774636 ], "year": 1986, "pin_cites": [ { "page": "124-25" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0119-01" ] }, { "cite": "290 S.E.2d 614", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "616" }, { "page": "616" } ], "opinion_index": 0 }, { "cite": "305 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572929 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "650" }, { "page": "650-51" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0647-01" ] } ], "analysis": { "cardinality": 1433, "char_count": 40797, "ocr_confidence": 0.737, "pagerank": { "raw": 4.2972480819735453e-07, "percentile": 0.9166020876120576 }, "sha256": "e50440e076576cce48a8c738ff667783afdb1282b1e447ea792df149435907e7", "simhash": "1:0f62d7e23d3bad5c", "word_count": 6717 }, "last_updated": "2023-07-14T22:38:55.005039+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge ARNOLD and Judge THOMPSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. NORRIS LEWIS WESTALL" ], "opinions": [ { "text": "MARTIN, Judge.\nDefendant contends the trial court erred by submitting the charge of robbery with a dangerous weapon to the jury, in its rulings with respect to the admission of certain evidence, in its instructions to the jury, and by sentencing defendant to the maximum term of imprisonment allowed by law. We find no prejudicial error in defendant\u2019s trial.\nI.\nDefendant\u2019s first assignment of error results from his claim that the pellet gun used in the robbery cannot be considered a dangerous weapon. G.S. \u00a7 14-87(a) defines the offense of robbery with a dangerous weapon as the unlawful taking, or attempted taking, of personal property while \u201chaving in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened.\" (Emphasis added.) Our Supreme Court has ruled that for a weapon to be considered dangerous under this statute, \u201cthe determinative question is whether the evidence was sufficient to support a jury finding that a person\u2019s life was in fact endangered or threatened.\u201d (Emphasis original.) State v. Alston, 305 N.C. 647, 650, 290 S.E.2d 614, 616 (1982). The rules for making the above determination were summarized in State v. Allen, 317 N.C. 119, 124-25, 343 S.E.2d 893, 897 (1986).\nThe rules are: (1) When a robbery is committed with' what appeared to the victim to be a firearm or other dangerous weapon capable of endangering or threatening the life of the victim and there is no evidence to the contrary, there is a mandatory presumption that the weapon was as it appeared to the victim to be. (2) If there is some evidence that the implement used was not a firearm or other dangerous weapon which could have threatened or endangered the life of the victim, the mandatory presumption disappears leaving only a permissive inference, which permits but does not require the jury to infer that the instrument used was in fact a firearm or other dangerous weapon whereby the victim\u2019s life was endangered or threatened. (3) If all the evidence shows the instrument could not have been a firearm or other dangerous weapon capable of threatening or endangering the life of the victim, the armed robbery charge should not be submitted to the jury.\nDefendant contends that the armed robbery charge should not have been submitted to the jury because there was insufficient evidence that the pellet gun used during the robbery was actually capable of threatening or endangering Ms. Reel\u2019s life. We disagree.\nWe must look at the circumstances of use to determine whether an instrument is capable of threatening or endangering life. State v. Pettiford, 60 N.C. App. 92, 298 S.E.2d 389 (1982). In State v. Joyner, 295 N.C. 55, 243 S.E.2d 367 (1978), the Supreme Court found a soda bottle to be a sufficiently deadly weapon for a jury to consider a charge of assault with a deadly weapon and noted that \u201cwhere the instrument, according to the manner of its use or the part of the body at which the blow is aimed, may or may not be likely to produce such results, its allegedly deadly character is one of fact to be determined by the jury.\u201d (Emphasis added.) Id. at 64-65, 243 S.E.2d at 373. This same analysis may be used in determining whether an instrument is a dangerous weapon for armed robbery. State v. Rowland, 89 N.C. App. 372, 366 S.E.2d 550 (1988).\nA pellet gun was found to be a deadly weapon.per se in Pettiford, supra, where the defendant fired the pistol at close range in the victim\u2019s face. This caused a metal fragment to lodge in the victim\u2019s skull, leaving behind an entry wound and a large bruise. Despite the fact that the victim never lost consciousness, remained fully lucid, and suffered no impairment as a result of the injury, this Court found the use of the pellet gun constituted a deadly weapon per se to uphold the assault with a deadly weapon conviction.\nIn State v. Alston, supra, an accomplice admitted on direct examination that the gun he used was a pellet rifle, while on cross-examination, he called it a BB rifle. Our Supreme Court distinguished the weapons by concluding that the evidence the rifle\nwas a Remington pellet gun was sufficient to support a jury finding that the [ljives of the victims here in fact were endangered or threatened by his possession, use or threatened use of the rifle. The testimony . . ., on the other hand, that the rifle was a BB rifle constituted affirmative evidence to the contrary and indicated that the victims\u2019 lives were not endangered or threatened in fact by his possession, use or threatened use of the rifle.\nAlston, 305 N.C. at 650-51, 290 S.E.2d at 616. The Supreme Court found this evidence created only a permissive inference, allowing the jury to decide whether the instrument threatened or endangered life, and thus, required the instruction on the lesser included offense of common law robbery should the jury reject the inference of the gun\u2019s dangerous properties.\nDefendant relies upon State v. Summey, 109 N.C. App. 518, 428 S.E.2d 245 (1993) to support his position that pellet guns, as a matter of law, are not dangerous weapons. His reliance on Summey is misplaced. In Summey, we simply reiterated the principle that contrary evidence as to the dangerous properties of weapons used in a robbery requires that the jury be instructed as to the question of a defendant\u2019s guilt of common law robbery in addition to robbery with a dangerous weapon. We expressly disavow any interpretation of our opinion in Summey as standing for the proposition that a pellet gun is not, as a matter of law, a dangerous weapon. We continue to follow prior holdings, specifically those set forth in Alston and Pettiford, supra, that a pellet gun may be a dangerous weapon per se, or at a minimum, that such a determination must be made upon a consideration of the instrument\u2019s use.\nDefendant placed the pellet gun into the clerk\u2019s back, pointed directly at her kidney. Taken in the light most favorable to the State, the evidence showed the projectile from such a pistol was capable of totally penetrating a quarter-inch of plywood, and, thus, very likely would have resulted in a life-threatening injury to Ms. Reel had defendant fired the weapon. From the manner in which the pellet gun was used, there was clearly sufficient evidence to permit the jury to decide whether defendant committed robbery with a dangerous weapon or the lesser included offense of common law robbery.\nBy a separate assignment of error, defendant further contends that the jury instructions defining \u201cdangerous weapon\u201d were confusing, contradictory, and erroneous. We disagree. The instructions defining \u201cdangerous weapon\u201d were discussed in the jury instruction conference, and the court\u2019s offer to give the defendant\u2019s requested instruction as to the definition of a dangerous weapon immediately following that contained in the pattern jury instruction was agreed to by defendant\u2019s counsel.\nThe trial court instructed the jury, as suggested in NCPI Crim. 217.30, that \u201c[a] dangerous weapon is a weapon which is likely to cause [sic] or serious bodily harm\u201d and that serious bodily injury \u201cis one which causes great pain and suffering.\u201d Although the court apparently omitted the word \u201cdeath\u201d through inadvertence, the instruction was not error. The use of a dangerous weapon need not result in death, but the instrument itself must merely be capable of taking life in the manner that it was used. Instructing the jury that a weapon is dangerous when it is likely to cause death or serious bodily injury does not lower the standard for determining what is a dangerous weapon, as any instrument capable of causing serious bodily injury could also cause death depending on its use. See Joyner, supra. In our view, serious bodily injury is synonymous with endangering or threatening life. Thus, the trial court\u2019s instruction as to the definition of serious bodily injury was appropriate to aid the jury in determining if the instrument was likely to cause death or serious bodily injury, and, therefore, to endanger or threaten life.\nMoreover, the instruction requested by defendant and given by the trial court repeated three times the explicit requirement that a weapon must in fact be capable of threatening or endangering life in order to be a dangerous weapon, further assuring us that there could have been no doubt in any juror\u2019s mind that the pellet gun used by defendant was dangerous only if it threatened or endangered the victim\u2019s life. These assignments of error are overruled.\nII.\nBy his next assignment of error, defendant asserts that the trial court erred in allowing Detective Robert Smith to state his opinion with respect to the force of the pellet gun and the damage which could be caused by a projectile fired from it. We find no error in the trial court\u2019s decision to allow the testimony.\nDefendant first argues that the testimony of Detective Smith should have been excluded since the witness was never qualified as an expert. This is not the rule in North Carolina. Our Supreme Court commented on this issue in State v. Aguallo, 322 N.C. 818, 821, 370 S.E.2d 676, 677 (1988).\nIn considering this assignment of error, we find instructive this Court\u2019s decision in State v. Phifer, 290 N.C. 203, 225 S.E.2d 786 (1976). There, the defendant objected to the trial judge\u2019s decision to allow into evidence the testimony of two SBI agents. One agent gave his opinion as to whether the washing of one\u2019s hands would destroy any possibility of a valid gun residue test, and a second agent explained the differences between a latent lift and a fingerprint. Neither of the agents had been formally qualified as experts. We held that because of the nature of their jobs and the experience which they had, they were better qualified than the jury to form an opinion on these matters. Id. at 213, 225 S.E.2d at 793. The Court further held that because the defendant never requested a finding by the trial court as to the witnesses\u2019 qualifications as experts, such a finding was deemed implicit in the ruling admitting the opinion testimony. Id. at 213-14, 225 S.E.2d at 793.\nThus, in North Carolina, unless a party specifically objects to the qualification of the expert, a ruling permitting opinion testimony is tantamount to a finding by the trial court that the witness is qualified to state an opinion.\nFurthermore,\n\u201cAn objection to a witness\u2019s qualifications as an expert in a given field or upon a particular subject is waived if it is not made in apt time upon this special ground, and a mere general objection to the content of the witness\u2019s testimony will not ordinarily suffice to preserve the matter for subsequent review.\u201d The defendant merely made a general objection to the testimony which is the subject of this assignment. Therefore, any objection to the witness testifying as an expert was waived, and the assignment is overruled.\nState v. Riddick, 315 N.C. 749, 758, 340 S.E.2d 55, 60 (1986), citing State v. Hunt, 305 N.C. 238, 243, 287 S.E.2d 818, 821 (1982). \u201cIn the absence of a special request to qualify a witness as an expert, a general objection to specific opinion testimony will not suffice to preserve the question of the expert\u2019s qualifications, even on ultimate issues.\u201d State v. Hamilton, 77 N.C. App. 506, 509, 335 S.E.2d 506, 508-09 (1985), disc. review denied, 315 N.C. 593, 341 S.E.2d 33 (1986). Defendant did not object to the qualifications of the witness, but merely objected to the content of the testimony related to specific knowledge of the pellet gun involved in the case. Defendant waived the right to challenge the witness\u2019s qualification on appeal.\nAs an expert, Detective Smith did not testify as to any experiments he conducted inside or outside of the courtroom. Rather, he testified as to the basis of his opinion on the force of a pellet fired from the gun and the damage it could cause to the human body. Provided that the opinion is based on adequate facts and data, reasonably relied upon by experts in the particular field, such testimony regarding the basis for an expert\u2019s opinion is admissible, though not as substantive evidence. N.C. Gen. Stat. \u00a7 8C-1, Rule 703, Commentary. Detective Smith observed the firing of a comparable pellet gun and witnessed the destructive force of this similar weapon. This observation, coupled with his experience with firearms and their capabilities, adequately provided Detective Smith with sufficient facts and data on which he could reasonably rely in forming his expert opinion. He concluded that the pellet gun used at point-blank range was a life-threatening weapon, and we find no error in the admission of his opinion testimony.\nIII.\nDefendant next assigns as error the trial court\u2019s requiring defendant to place over his head a stocking recovered from the car of his co-defendant. Defendant claims the procedure was an experiment erroneously admitted because it was not conducted under circumstances reasonably similar to those existing at the time of the robbery. We disagree.\nThe demonstration with the stocking was not an experiment requiring substantially similar circumstances. Citing State v. Hunt, 80 N.C. App. 190, 341 S.E.2d 350 (1986), our Supreme Court explained:\nIn Hunt, Judge Becton, writing for the panel, made a distinction between a demonstration and an experiment. He defined a demonstration as \u201can illustration or explanation, as of a theory or product, by exemplification or practical application.\u201d He defined an experiment as \u201ca test made to demonstrate a known truth, to examine the validity of a hypothesis, or to determine the efficacy of something previously untried.\u201d [Citation omitted.] We believe the evidence challenged by this assignment of error is more in the nature of a demonstration than an experiment. We agree with Judge Becton that the test of the admissibility is as set forth in N.C.G.S. 8C-1, Rule 403. If the evidence is relevant it will be excluded only if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury.\nState v. Allen, 323 N.C. 208, 225, 372 S.E.2d 855, 865 (1988), vacated on other grounds, 494 U.S. 1021, 108 L.Ed.2d 601 (1990), judgment reinstated, 331 N.C. 746, 417 S.E.2d 227 (1992), cert. denied, - U.S. -, 122 L.Ed.2d 775 (1993). The demonstration here was factually similar to demonstrations addressed in State v. Perry, 291 N.C. 284, 230 S.E.2d 141 (1976) and State v. Suddreth, 105 N.C. App. 122, 412 S.E.2d 126, disc. review denied, 331 N.C. 281, 417 S.E.2d 68 (1992). In both cases, no error was found in requiring the defendants to place masks over their heads, when there was a question before the jury as to whether the victims were able to identify the defendants. We hold the demonstration was relevant to aid the jury in assessing the credibility of the store clerk\u2019s identification of defendant.\nMoreover, we hold that the danger of unfair prejudice to defendant in the present case did not outweigh the probative value of the demonstration. In fact, in the present case, the demonstration may actually have benefitted defendant. His initial efforts to place the stocking over his head tore the first stocking, supporting his testimony that it would not fit over his head. When the prosecutor gave defendant the second stocking and admonished him for his rough treatment of the first stocking, defendant said, \u201cDo you want to put it on for me? I\u2019ve never put one on before.\u201d In addition, the trial court promptly instructed the jury to disregard the victim\u2019s unsolicited indication that she recognized defendant through the stocking. This assignment of error is overruled.\nrv.\nDefendant\u2019s fourth assignment of error concerns the cross-examination of a witness regarding his religious beliefs. Defendant argues that it was error for the trial court to allow the prosecutor to question the witness\u2019s religious sincerity. We disagree.\nG.S. \u00a7 8C-1, Rule 603 provides that \u201c[b]efore testifying, every witness shall be required to declare that he will testify truthfully, by oath or affirmation administered in a form calculated to awaken his conscience and impress his mind with his duty to do so.\u201d At trial, John Minish, originally a third co-defendant, took the stand after being administered the oath, and proceeded to deny the truth of an earlier statement he had made to the police implicating himself and defendant in the armed robbery. Under oath, he claimed that he had lied to the police and had not been with defendant at the time of the robbery.\nIn an attempt to bolster the credibility of this witness for the defense, on cross-examination defendant\u2019s counsel questioned the witness as to why he had lied earlier and was now telling the truth. Specifically, the witness was asked what the Bible meant to him and what significance swearing on the Bible had for him. The witness replied that he had not been under oath earlier, and that swearing on the Bible meant a great deal to him. Subsequently, during re-direct examination by the prosecutor, the witness was questioned regarding the sincerity of his oath taking, and the witness admitted he did not claim to be a Christian nor did he attend church, but he maintained that swearing on the Bible had significance for him.\nDespite the prohibition in G.S. \u00a7 8C-1, Rule 610 that \u201c[ejvidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature his credibility is impaired or enhanced,\u201d there was no error. By questioning the sincerity and solemnity with which the witness took the oath, the defense exposed the witness to the same inquiry by the prosecution. We find there was no error in the prosecution\u2019s questioning of the witness because the defense had already \u201copened the door\u201d to this line of inquiry. See State v. Shamsid-deen, 324 N.C. 437, 379 S.E.2d 842 (1989).\nV.\nDefendant next assigns error to the admission of out-of-court statements made by two of the State\u2019s witnesses to Detective Smith. The statements were admitted to corroborate the witnesses\u2019 in-court testimony. Defendant contends that the out-of-court statements varied materially from the witnesses\u2019 testimony and, therefore, were inadmissible. His arguments have no merit.\nFirst, defendant argues that when Detective Smith testified that the victim, Ms. Reel, had told him she was 99.9% certain of the identity of one of the robbers, this was in material variance with Ms. Reel\u2019s own testimony that she was 99% certain. However, Ms. Reel\u2019s statements as to her certainty could only have been figures of speech meant to express a near total certainty, not an exact percentage as defendant argues. Certainly, among statisticians, there is a great material variance between 99% and 99.9%. However, it is ludicrous to maintain that a store clerk reporting a crime, and later testifying in court, should be held to the same standard of materiality. The officer\u2019s testimony was corroborative, and it was not error to admit it.\nDefendant next argues that it was error to allow Detective Smith to testify as to a prior statement implicating defendant made by witness John Minish. Defendant cites as authority our Supreme Court\u2019s decision in State v. Hunt, 324 N.C. 343, 378 S.E.2d 754 (1989). In Hunt, the witness denied having ever made the earlier statement, and an officer\u2019s testimony to the contrary could, therefore, not be considered corroboration. Here, witness Minish never denied making the statement to police implicating defendant in the robbery. Rather, Minish testified in court that he made the earlier statement, but that it had been a lie. The officer\u2019s testimony corroborated Minish\u2019s testimony concerning the earlier statement. See State v. Lawson, 310 N.C. 632, 314 S.E.2d 493 (1984). We find no error.\nVI.\nDefendant\u2019s sixth assignment of error is that the trial court erred in allowing Detective Smith to tell the jury why he believed witness Minish was more involved in the robbery than Minish had admitted to the police in the earlier interview. We disagree.\nOn cross-examination, defendant established that Detective Smith, contrary to his usual procedure, had made no notes during or after Minish\u2019s interview. On re-direct, the prosecutor asked him to explain this departure from custom, and Detective Smith responded that he had thought Minish was lying, and explained that his interview of Minish\u2019s sister led him to doubt Minish\u2019s pretrial statement. G.S. \u00a7 8C-1, Rule 701 provides that\n[i]f the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those 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.\nDetective Smith expressed a lay opinion that he did not believe Minish, and this opinion was rationally based on his own firsthand knowledge and observations. This opinion was helpful to explain his earlier testimony, specifically as to why no notes were taken during the police interview, and was properly admissible under Rule 701. See State v. Rhinehart, 322 N.C. 53, 366 S.E.2d 429 (1988).\nVII.\nDefendant next assigns as error the trial court\u2019s permitting the prosecutor to question a defense witness about facts allegedly not in evidence. Defendant contends the prosecutor assumed a fact not in evidence when he asked defendant\u2019s alibi witness, Holly Price, if she knew that an officer had been to defendant\u2019s father\u2019s home during the time she claimed to have been there with defendant. However, Detective Smith testified that an officer had been sent to the father\u2019s residence, where both defendant and Ms. Price claimed to have been. Ms. Price stated that she and defendant returned to the home between 11:00 p.m. and 12:00 p.m., perhaps as early as 11:00 p.m. Detective Smith stated that he sent an officer to the residence sometime after his arrival on the scene of the robbery at 10:45 p.m. The officer was unable to find defendant at the home and returned to the store. Upon his return, he and Detective Smith drove to Thomason\u2019s residence and then to Minish\u2019s residence before encountering the vehicle matching the description of the getaway car, approximately at midnight. The above facts were all in evidence at the time the prosecutor asked the alibi witness if she knew an officer had looked for defendant at the location and time of the alibi offered by the witness. The trial court committed no error in allowing this question to be asked of the witness.\nVIII.\nDefendant\u2019s eighth assignment of error is that the trial court allowed inadmissible hearsay into evidence. Defendant first argues that the trial court \u00e9rred when it permitted defendant\u2019s brother, Larry Westall, and Detective Scott Hollifield to testify concerning Larry\u2019s prior out-of-court statement to the detective. We disagree.\nOn direct examination, Larry Westall testified that he had told officers who were searching for defendant in Larry\u2019s trailer that they might find defendant at his father\u2019s house, but that the officers had seemed uninterested in the directions to his father\u2019s house. On cross-examination, the prosecutor asked Larry if he had told Detective Hollifield that defendant\u2019s father had said that defendant had come to his house around 10:30 p.m. and asked to borrow his car, that defendant\u2019s father had refused to give it to him, and that defendant had left. Larry Westall denied making any such statement. In rebuttal, Detective Hollifield testified that Larry had made such a statement in his presence. The trial court properly admitted the prior inconsistent statement for the non-hearsay purpose of impeaching Larry.\nIn State v. Green, 296 N.C. 183, 192-93, 250 S.E.2d 197, 203 (1978), our Supreme court addressed this exact issue.\nA witness may be cross-examined by confronting him with prior statements inconsistent with any part of his testimony .... If the matters inquired about are collateral, but tend \u201cto connect him directly with the cause or the parties\u201d or show his bias toward either, the inquirer is not bound by the witness\u2019s answer and may prove the matter by other witnesses, but not before he has confronted the witness with his prior statement so that he may hav\u00e9 an opportunity to admit, deny or explain it. (Citations omitted.)\nThe court further stated that impeachment of an alibi witness \u201crespected the main subject matter in regard to which such witnesses were examined, namely, the whereabouts of the defendant at the time the offense is alleged to have been committed.\u201d Id. at 194, 250 S.E.2d at 204. Whether or not Larry\u2019s testimony can be considered an alibi, his \u201cclose connection\u201d to the defendant allows for extrinsic evidence to be used in impeaching his testimony, despite being a collateral matter. Thus, it was not error to allow testimony concerning Larry\u2019s prior out-of:court statement.\nThe fact that Larry\u2019s statement itself contained a statement by defendant\u2019s father did not render Larry\u2019s statement inadmissible. The father\u2019s statement, relayed by Larry, explained why the deputies did not subsequently look for defendant at the father\u2019s house. Such use does not constitute hearsay. \u201c[T]here was no hearsay\u2014 within\u2014 hearsay problem presented here because the statements of the third party declarants were not offered for their truth, but to explain the officer\u2019s conduct.\u201d State v. Harper, 96 N.C. App. 36, 40, 384 S.E.2d 297, 299 (1989). Statements of one person to another are admissible to explain the subsequent conduct of the person to whom the statement was made. State v. White, 298 N.C. 430, 259 S.E.2d 281 (1979). Larry\u2019s prior statement to the deputy was not offered to prove the truth of the matter asserted, but rather to explain the officers\u2019 actions, and was, therefore, not hearsay.\nDefendant also contends it was error for the trial court to allow Detective Hollifield to testify that he had heard a dog handler\u2019s in-court statement regarding the officers securing the scene around the abandoned getaway car before using the bloodhounds to track the footprints. The dog handler had previously been cross-examined by defendant\u2019s counsel concerning the presence of officers at the scene before the tracking dogs had arrived. Detective Hollifield\u2019s testimony was not offered for the truth of the matter asserted, but merely acknowledged that the deputy had heard the testimony. In any event, the statement could not have prejudiced the defendant since the dog handler had testified immediately prior to the deputy, and the jury had already heard the testimony concerning the officers\u2019 actions at the abandoned vehicle and in tracking the footprints to Larry Westall\u2019s mobile home. We find no error.\nIX.\nDefendant\u2019s next assignment of error is that the trial court erred in instructing the jury with respect to evidence of flight. Defendant is correct that mere evidence that defendant left the scene of the crime is not enough to support an instruction on flight. There must also be some evidence that defendant took steps to avoid apprehension. However, there need only be \u201csome evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged.\u201d State v. Levan, 326 N.C. 155, 164-65, 388 S.E.2d 429, 434 (1990). Defendant contends that because he voluntarily surrendered himself to the police upon learning of a warrant for his arrest there was no evidence of flight. We disagree.\nSufficient evidence of defendant\u2019s flight existed to warrant an instruction to the jury on this point, notwithstanding defendant\u2019s voluntary surrender. After the perpetrators left the scene of the robbery, an officer attempted to stop an automobile matching the description of that used by the robbers. A high speed chase ensued and the suspects\u2019 getaway car was abandoned. Three sets of footprints led from the abandoned vehicle, two of which were tracked with bloodhounds through the woods to defendant\u2019s brother\u2019s mobile home. The officers were unable to locate defendant at home that night. This evidence is sufficient to reasonably support an inference that defendant fled from the scene of the crime, and later eluded police after a high-speed pursuit, thus taking additional steps to avoid apprehension. The mere fact that other evidence showed defendant later voluntarily surrendered to police does not render the instruction erroneous. See State v. Jenkins, 57 N.C. App. 191, 291 S.E.2d 268 (1982).\nX.\nDefendant\u2019s final assignment of error is that the trial court erred or abused its discretion in sentencing defendant to the maximum term of forty years for robbery with a dangerous weapon. Defendant argues that the trial judge considered other charges pending against defendant when imposing the sentence in this case and this constituted error. Alternatively, he contends that the trial court abused its discretion by imposing the maximum sentence upon a nineteen-year-old whose prior criminal record consisted only of two misdemeanors.\nIt is well established that a trial judge may not consider, when imposing a sentence, other charges pending against a defendant for which he has not been convicted. In the present case, during colloquy with defendant\u2019s counsel, the trial court referred to the fact that several other charges, some of which arose after defendant had been released on bond for the present charge, were pending against defendant. However, the trial judge expressly stated that he was not considering the pending charges in sentencing defendant for the robbery conviction. We have had occasion to consider this issue under similar circumstances.\n[T]he sentencing court may never enhance defendant\u2019s presumptive sentence merely because defendant has charges for other crimes pending against him.\nNevertheless, we uphold the trial court\u2019s sentencing in the instant case since the record does not affirmatively disclose the court enhanced defendant\u2019s sentence based on any consideration of his pending charges. Instead, the trial court\u2019s statements merely indicate it was aware of defendant\u2019s pending charges, not that it found or even considered them a factor aggravating defendant\u2019s sentence. Therefore, the sentencing court\u2019s statements regarding defendant\u2019s other pending charges do not themselves necessitate resentencing. (Citations omitted.)\nState v. Mack, 87 N.C. App. 24, 31, 359 S.E.2d 485, 490 (1987), disc. review denied, 321 N.C. 477, 364 S.E.2d 663 (1988). The record does not affirmatively disclose that the trial court enhanced defendant\u2019s sentence due to the pending cases, and we decline to find error.\nWe also decline to hold that the trial judge abused his discretion in imposing the sentence in this case. The trial judge may be reversed for abuse of discretion only upon a showing that his ruling was manifestly unsupported by reason and could not have been the result of a reasoned decision. State v. Shoemaker, 334 N.C. 252, 432 S.E.2d 314 (1993). It is not the role of an appellate court to substitute its judgment for that of the sentencing judge as to the appropriate length of the sentence. State v. Aldridge, 76 N.C. App. 638, 334 S.E.2d 107 (1985).\n[S]o long as the punishment rendered is within the maximum provided by law, an appellate court must assume that the trial judge acted fairly, reasonably and impartially in the performance of his office. Furthermore, when the sentence imposed is. -within statutory limits it cannot be considered excessive, cruel or unreasonable. (Citations omitted.)\nState v. Conard, 55 N.C. App. 63, 67, 284 S.E.2d 557, 559-60 (1981), disc. review denied, 305 N.C. 303, 290 S.E.2d 704 (1982).\nDefendant received a fair trial, free from prejudicial error.\nNo error.\nChief Judge ARNOLD and Judge THOMPSON concur.", "type": "majority", "author": "MARTIN, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Associate Attorney General William McBlief, for the State.", "C. Frank Goldsmith, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. NORRIS LEWIS WESTALL\nNo. 9329SC1070\n(Filed 18 October 1994)\n1. Robbery \u00a7 80 (NCI4th)\u2014 pellet gun dangerous weapon\nA pellet gun may be a dangerous weapon per se, or at a minimum, such determination must be made upon a consideration of the instrument\u2019s use. In this case, there was clearly sufficient evidence to permit the jury to decide whether defendant committed robbery with a dangerous weapon or the lesser-included offense of common law robbery where the evidence tended to show that defendant placed the pellet gun into the victim\u2019s back, pointed directly at her kidney, and the projectile from such a pistol was capable of totally penetrating a quarter-inch of plywood and thus very likely would have resulted in a life-threatening injury to the victim had defendant fired the weapon.\nAm Jur 2d, Robbery \u00a7\u00a7 62 et seq.\nLesser-related state offense instructions: modern status. 50 ALR4th 1081.\n2. Robbery \u00a7 116 (NCI4th)\u2014 dangerous weapon \u2014 jury instructions proper\nThe trial court\u2019s instructions defining \u201cdangerous weapon\u201d in a prosecution for armed robbery with a pellet gun were not confusing and erroneous because the court inadvertently omitted the word \u201cdeath\u201d from its pattern jury instruction that a weapon is dangerous when it is likely to cause serious bodily injury since serious bodily injury is synonymous with endangering or threatening life. Moreover, there could have been no doubt in any juror\u2019s mind that the pellet gun as used by defendant was dangerous only if it threatened or endangered the victim\u2019s life where the trial court, after giving the pattern instruction, gave an instruction requested by defendant that repeated three times the explicit requirement that a weapon must in fact be capable of threatening or endangering life in order to be a dangerous weapon.\nAm Jur 2d, Robbery \u00a7\u00a7 71 et seq.\n3. Evidence and Witnesses \u00a7 2165 (NCI4th)\u2014 opinion testimony allowed \u2014 no objection to qualifications of witness\nIn North Carolina, unless a party specifically objects to the qualification of the expert, a ruling permitting opinion testimony is tantamount to a finding by the trial court that the witness is qualified to state an opinion; furthermore, a defendant who does not object to the qualifications of the witness but merely objects to the content of the testimony waives the right to challenge the witness\u2019s qualification on appeal.\nAm Jur 2d, Expert and Opinion Evidence \u00a7\u00a7 60 et seq.\n4. Evidence and Witnesses \u00a7 2227 (NCI4th)\u2014 force of pellet gun \u2014 opinion testimony\nIn a prosecution of defendant for robbery with a dangerous weapon, the trial court did not err in allowing a detective to state his opinion with respect to the force of the pellet gun used by defendant and the damage which could be caused by a projectile fired from it where that opinion was based on the detective\u2019s experience with firearms and their capabilities and on the detective\u2019s observation of the firing of a comparable pellet gun and the destructive force of this similar weapon.\nAm Jur 2d, Expert and Opinion Evidence \u00a7\u00a7 303 et seq.\n5. Evidence and Witnesses \u00a7 1782 (NCI4th)\u2014 defendant required to place stocking over head \u2014 no error\nThe trial court did not err in requiring defendant to place over his head a stocking recovered from the car of his codefendant, since the demonstration was relevant to aid the jury in assessing the credibility of the victim\u2019s identification of defendant.\nAm Jur 2d, Evidence \u00a7\u00a7 950 et seq.\nPropriety of requiring criminal defendant to exhibit self, or perform physical act, or participate in demonstration, during trial and in presence of jury. 3 ALR4th 374.\n6. Evidence and Witnesses \u00a7 2888 (NCI4th)\u2014 prosecutor\u2019s question of witness as to religious sincerity \u2014 door opened by defense \u2014 no error\nThere was no error in the prosecution\u2019s questioning of a witness concerning the solemnity and sincerity with which he took the oath, including questions as to what the Bible meant to him and what significance swearing on the Bible had for him, since the defense had already opened the door to this line of inquiry.\nAm Jur 2d, Witnesses \u00a7\u00a7 484 et seq.\n7. Evidence and Witnesses \u00a7 867 (NCI4th)\u2014 no inadmissible hearsay allowed\nThere was no merit to defendant\u2019s contention that the trial court allowed inadmissible hearsay into evidence, since one statement was offered for the non-hearsay purpose of impeaching defendant\u2019s brother and to explain conduct of investigating officers, and another statement merely confirmed what the jury had already heard.\nAm Jur 2d, Evidence \u00a7\u00a7 658 et seq.\n8. Evidence and Witnesses \u00a7 1070 (NCI4th)\u2014 flight of defendant \u2014 sufficiency of evidence to support instruction\nEvidence was sufficient to reasonably support an inference that defendant fled from the scene of the crime and later eluded police after a high-speed pursuit, and the mere fact that other evidence showed defendant later voluntarily surrendered to police did not render the instruction on flight erroneous.\nAm Jur 2d, Trial \u00a7 1184.\n9. Criminal Law \u00a7 1105 (NCI4th)\u2014 sentence not enhanced by pending cases \u2014 no error\nWhere the record did not affirmatively show that the trial court considered other charges pending against defendant in imposing the sentence in this case, the court on appeal does not find error.\nAm Jur 2d, Criminal Law \u00a7\u00a7 525 et seq., 598, 599.\nAppeal by defendant from judgment entered 1 April 1993 by Judge Zoro J. Guice, Jr., in McDowell County Superior Court. Heard in the Court of Appeals 29 August 1994.\nDefendant was charged in a proper bill of indictment with one count of robbery with a dangerous weapon, to which he entered a plea of not guilty. The evidence presented by the State at trial may be briefly summarized as follows: On 13 July 1992, Michelle Reel was working as a clerk at Kehler\u2019s store, a convenience store located in McDowell County. Around 10:00 p.m. that night, two men came into the store and demanded that Ms. Reel give them the money in the cash register. Both men had their faces covered, one by a bandana, dark glasses, and a baseball cap and the other by a stocking placed over his head.\nThe man wearing the stocking pointed a pistol at Ms. Reel and demanded money. He walked up to her, pressed the pistol to her lower back in the area of her kidney, and marched her to the cash register. Ms. Reel was able to see through the stocking and was able to recognize defendant, with whom she had been previously acquainted. Defendant emptied the cash drawer, after which he and the other man both ran outside and behind the store to a waiting vehicle. Ms. Reel immediately summoned the police and identified defendant as the man wearing the stocking over his head.\nApproximately two hours later, a detective with the sheriff\u2019s department passed an automobile matching the description of the getaway car. When the detective turned his car around to investigate, the suspect vehicle accelerated away from the officer. He gave chase, but lost sight of the car until he found it abandoned at the end of the road. The car was registered to Darrell Thomason, a friend and co-defendant of Norris Westall, and inside, the detective found a pair of stockings and dark glasses. With the help of bloodhounds, two sets of footprints were tracked from the car to defendant\u2019s older brother\u2019s mobile home, approximately one-and-a-half miles away. Sheriff\u2019s deputies searched the area, but neither Thomason nor defendant was discovered. A warrant was issued for defendant\u2019s arrest for robbery with a dangerous weapon.\nThe next day, a patron of the convenience store found a baseball cap and a pistol behind the store. Ms. Reel identified them as the ones used by the robbers. The recovered pistol was a Crossman .177 caliber pistol capable of firing either pellets or BBs at 450 feet per second.\nDefendant testified in his own behalf. He admitted that he had been in the company of Thomason and a third co-defendant, John Minish, earlier on the afternoon preceding the robbery, but maintained that he had gone shopping in Hickory that evening with a friend, Holly Price. He and Ms. Price then went to Lake James and later went to defendant\u2019s father\u2019s house and watched a videotaped movie until they fell asleep after midnight. He denied having been near Kehler\u2019s store at anytime on the date of the robbery. On the following day when he heard that a warrant had been issued for his arrest, he went to the courthouse and turned himself in.\nDefendant and Thomason were tried jointly. The jury was instructed as to both robbery with a dangerous weapon and the lesser included offense of common law robbery. The jury found defendant guilty of robbery with a dangerous weapon. The trial court entered judgment upon the verdict, sentencing defendant to an active term of imprisonment for forty years. Defendant appealed.\nAttorney General Michael F. Easley, by Associate Attorney General William McBlief, for the State.\nC. Frank Goldsmith, Jr., for defendant-appellant." }, "file_name": "0534-01", "first_page_order": 564, "last_page_order": 581 }