{ "id": 8957169, "name": "STATE OF NORTH CAROLINA v. KEVIN CLARK", "name_abbreviation": "State v. Clark", "decision_date": "2003-08-05", "docket_number": "No. COA02-964", "first_page": "520", "last_page": "534", "citations": [ { "type": "official", "cite": "159 N.C. App. 520" } ], "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": "347 S.E.2d 444", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 709", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4772132, 4775909, 4774380, 4773182, 4776511 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0709-03", "/nc/317/0709-01", "/nc/317/0709-04", "/nc/317/0709-02", "/nc/317/0709-05" ] }, { "cite": "343 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "245" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 666", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525425 ], "pin_cites": [ { "page": "672" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0666-01" ] }, { "cite": "237 S.E.2d 539", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563208, 8563308, 8563181, 8563245, 8563278 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0257-02", "/nc/293/0257-05", "/nc/293/0257-01", "/nc/293/0257-03", "/nc/293/0257-04" ] }, { "cite": "235 S.E.2d 70", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "73" } ], "opinion_index": 0 }, { "cite": "33 N.C. App. 374", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549853 ], "year": 1977, "pin_cites": [ { "page": "377" } ], "opinion_index": 0, "case_paths": [ "/nc-app/33/0374-01" ] }, { "cite": "265 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "184", "parenthetical": "\"[W]e note that the better procedure is to give the instruction to disregard the answer immediately after allowing the motion to strike.\"" } ], "opinion_index": 0 }, { "cite": "300 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559714 ], "year": 1980, "pin_cites": [ { "page": "13", "parenthetical": "\"[W]e note that the better procedure is to give the instruction to disregard the answer immediately after allowing the motion to strike.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0001-01" ] }, { "cite": "337 S.E.2d 81", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "85" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 68", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519550 ], "year": 1985, "pin_cites": [ { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0068-01" ] }, { "cite": "557 S.E.2d 89", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "93" } ], "opinion_index": 0 }, { "cite": "354 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138525 ], "year": 2001, "pin_cites": [ { "page": "539-40" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0534-01" ] }, { "cite": "153 L. Ed. 2d 162", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "166" } ], "opinion_index": 0 }, { "cite": "535 U.S. 1114", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 354625, 353731, 354760, 353448, 352172, 354576, 355188, 353749, 351828, 354680, 354745, 352827, 353947, 354297 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/us/535/1114-11", "/us/535/1114-05", "/us/535/1114-06", "/us/535/1114-02", "/us/535/1114-09", "/us/535/1114-03", "/us/535/1114-10", "/us/535/1114-08", "/us/535/1114-07", "/us/535/1114-13", "/us/535/1114-04", "/us/535/1114-14", "/us/535/1114-12", "/us/535/1114-01" ] }, { "cite": "557 S.E.2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "525", "parenthetical": "citations omitted" }, { "page": "524" } ], "opinion_index": 0 }, { "cite": "354 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138455 ], "year": 2001, "pin_cites": [ { "page": "167", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0131-01" ] }, { "cite": "341 S.E.2d 777", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "778", "parenthetical": "woman who had pursued a robber was allowed to testify that another woman yelled to her that the robber had gone into a lot behind some apartments; statement was admissible both as a present sense impression and an excited utterance" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 322", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523579 ], "year": 1986, "pin_cites": [ { "page": "324", "parenthetical": "woman who had pursued a robber was allowed to testify that another woman yelled to her that the robber had gone into a lot behind some apartments; statement was admissible both as a present sense impression and an excited utterance" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0322-01" ] }, { "cite": "341 S.E.2d 332", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "336", "parenthetical": "officer could testify, under Rule 803(1), to deceased witness' description of the victim's car and the two assailants made ten minutes after the events" } ], "opinion_index": 0 }, { "cite": "316 N.C. 306", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4695105 ], "year": 1986, "pin_cites": [ { "page": "313", "parenthetical": "officer could testify, under Rule 803(1), to deceased witness' description of the victim's car and the two assailants made ten minutes after the events" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0306-01" ] }, { "cite": "337 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "841" } ], "opinion_index": 0 }, { "cite": "315 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715827 ], "year": 1985, "pin_cites": [ { "page": "86" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0076-01" ] }, { "cite": "488 S.E.2d 162", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "171" } ], "opinion_index": 0 }, { "cite": "346 N.C. 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139473 ], "year": 1997, "pin_cites": [ { "page": "644" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0628-01" ] }, { "cite": "577 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "605" } ], "opinion_index": 0 }, { "cite": "357 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491879 ], "year": 2003, "pin_cites": [ { "page": "17" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0001-01" ] }, { "cite": "153 L. Ed. 2d 791", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2002, "opinion_index": 0 }, { "cite": "536 U.S. 930", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1254400, 1255201, 1254912, 1255398, 1255087, 1254705, 1254609, 1254996, 1254485, 1254614, 1254871, 1255094, 1254524, 1255069 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/us/536/0930-02", "/us/536/0930-03", "/us/536/0930-01", "/us/536/0930-13", "/us/536/0930-08", "/us/536/0930-09", "/us/536/0930-07", "/us/536/0930-11", "/us/536/0930-14", "/us/536/0930-04", "/us/536/0930-06", "/us/536/0930-05", "/us/536/0930-10", "/us/536/0930-12" ] }, { "cite": "277 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "441" } ], "opinion_index": 0 }, { "cite": "303 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571816 ], "year": 1981, "pin_cites": [ { "page": "177" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0173-01" ] }, { "cite": "555 S.E.2d 557", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "585", "parenthetical": "\" 'Where one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such latter evidence would be incompetent or irrelevant had it been offered initially.' \"" } ], "opinion_index": 0 }, { "cite": "354 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138413 ], "year": 2001, "pin_cites": [ { "page": "415" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0372-01" ] }, { "cite": "338 S.E.2d 75", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "82" } ], "opinion_index": 0 }, { "cite": "315 N.C. 310", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4717875 ], "year": 1986, "pin_cites": [ { "page": "320" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0310-01" ] }, { "cite": "387 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 37", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305037 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0037-01" ] }, { "cite": "374 S.E.2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "609", "parenthetical": "evidence sufficient when defendant was found hiding under house near robbery, he was in the presence of one of the robbers, and objects linked to the robbery were nearby" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 246", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526755 ], "year": 1988, "pin_cites": [ { "page": "255", "parenthetical": "evidence sufficient when defendant was found hiding under house near robbery, he was in the presence of one of the robbers, and objects linked to the robbery were nearby" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0246-01" ] }, { "cite": "338 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "138" }, { "page": "138" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 661", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523545 ], "year": 1986, "pin_cites": [ { "page": "662" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0661-01" ] }, { "cite": "47 L. Ed. 2d 102", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "423 U.S. 1091", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6514491, 6514340, 6514795, 6515212, 6515120, 6514896, 6514417, 6514995, 6514579, 6514715 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/423/1091-03", "/us/423/1091-01", "/us/423/1091-06", "/us/423/1091-10", "/us/423/1091-09", "/us/423/1091-07", "/us/423/1091-02", "/us/423/1091-08", "/us/423/1091-04", "/us/423/1091-05" ] }, { "cite": "218 S.E.2d 352", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "357" } ], "opinion_index": 0 }, { "cite": "288 N.C. 285", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568094 ], "year": 1975, "pin_cites": [ { "page": "291" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0285-01" ] }, { "cite": "450 S.E.2d 533", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "536" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 184", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524705 ], "year": 1994, "pin_cites": [ { "page": "188" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0184-01" ] }, { "cite": "572 S.E.2d 192", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "196", "parenthetical": "although drugs were found under the driver's seat and defendant was passenger, evidence was sufficient when co-defendant driver testified that defendant had been left alone with the car and that defendant was the only person who could have placed drugs under seat" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 302", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249884 ], "year": 2002, "pin_cites": [ { "page": "307", "parenthetical": "although drugs were found under the driver's seat and defendant was passenger, evidence was sufficient when co-defendant driver testified that defendant had been left alone with the car and that defendant was the only person who could have placed drugs under seat" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0302-01" ] }, { "cite": "556 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "271", "parenthetical": "drugs were found in rear seat of car with several passengers, but arresting officer testified that defendant was the only person who could have placed the drugs in the location where they were discovered" } ], "opinion_index": 0 }, { "cite": "354 N.C. 549", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138558 ], "year": 2001, "pin_cites": [ { "page": "552", "parenthetical": "drugs were found in rear seat of car with several passengers, but arresting officer testified that defendant was the only person who could have placed the drugs in the location where they were discovered" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0549-01" ] }, { "cite": "508 S.E.2d 315", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1998, "pin_cites": [ { "page": "318", "parenthetical": "citations omitted" }, { "page": "318" }, { "page": "319" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 514", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11202004 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "519", "parenthetical": "citations omitted" }, { "page": "519" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0514-01" ] }, { "cite": "447 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "365" }, { "parenthetical": "internal quotation marks and citations omitted" } ], "opinion_index": 0 }, { "cite": "337 N.C. 597", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2552791 ], "year": 1994, "pin_cites": [ { "page": "604" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0597-01" ] }, { "cite": "313 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1984, "pin_cites": [ { "page": "587" }, { "page": "589" } ], "opinion_index": 0 }, { "cite": "310 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2395265 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "566" }, { "page": "569" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0563-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-87", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2001, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-415.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2001, "opinion_index": 0 }, { "cite": "250 S.E.2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "225" } ], "opinion_index": 1 }, { "cite": "296 N.C. 194", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565410 ], "year": 1978, "opinion_index": 1, "case_paths": [ "/nc/296/0194-01" ] }, { "cite": "338 S.E.2d 75", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "82" } ], "opinion_index": 1 }, { "cite": "315 N.C. 310", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4717875 ], "year": 1986, "opinion_index": 1, "case_paths": [ "/nc/315/0310-01" ] } ], "analysis": { "cardinality": 1255, "char_count": 31397, "ocr_confidence": 0.768, "pagerank": { "raw": 2.4684321039654637e-07, "percentile": 0.8062672765863956 }, "sha256": "17a79f6cea1837ff115ccc8af466509b3a9d60a21be71fc3b3832d8647f1863c", "simhash": "1:a64864ef50123c58", "word_count": 5263 }, "last_updated": "2023-07-14T16:27:55.515420+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge BRYANT concurs.", "Judge TIMMONS-GOODSON concurs in result only .with separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. KEVIN CLARK" ], "opinions": [ { "text": "GEER, Judge.\nDefendant Kevin Clark was found guilty of possession of a firearm by a felon and of robbery with a dangerous weapon. On appeal, defendant raises four issues: (1) Whether the trial court erred in denying his motion to dismiss both charges based on the insufficiency of the evidence; (2) whether the trial court erred in admitting certain hearsay evidence; (3) whether defense counsel\u2019s failure to present evidence of a co-defendant\u2019s inculpatory statements constituted ineffective assistance of counsel; and (4) whether the trial court erred in denying defendant\u2019s motion for a mistrial. We find no error in defendant\u2019s trial, but dismiss defendant\u2019s ineffective assistance of counsel assignment of error without prejudice to its being asserted in a later motion for appropriate relief.\nFacts\nThe State\u2019s evidence tended to show that on 1 May 2001 at approximately 5:30 p.m., an armed robbery occurred at the Shell gas station and Rosemart Food Store located at 901 Linden Avenue, Oxford, North Carolina. At the time of the robbery, three store employees were at work: William Flanagan, who performs bookkeeping and computer-related operations for Rosemart, a new clerk Dana, and a second clerk Danita. Mr. Flanagan was helping the new clerk with the register and bagging when he heard Danita, who was at the front register, gasp. Mr. Flanagan looked up and saw a man pointing a gun at him.\nThe gunman told the two clerks to sit down and directed Mr. Flanagan to put the money from the cash register in a plastic bag that the gunman was holding. Mr. Flanagan showed him that there was no money in that particular register and offered to go to the other register. Mr. Flanagan opened the second register, removed the drawer from the register, and pushed it down the counter so that it was in front of the gunman. The gunman, who Mr. Flanagan later identified as Damon Terry, took approximately $210.00 from the drawer and left the store through a back door. Mr. Flanagan did not see Terry get in any car, but he did see a Jeep leave the parking lot.\nOfficer Anthony Boyd of the Oxford City Police was on patrol and driving near the Shell station when two men ran towards his car yelling, \u201cThose guys are robbing the Shell Station.\u201d Officer Boyd radioed dispatch, advised them of the possible armed robbery, and then pulled into a parking lot adjacent to the Shell station to observe the station\u2019s back door. Officer Boyd had just returned to his car and was driving back to the front of the Shell station when the same two men who had approached him before told him that he had just missed the robbers. The men told Officer Boyd that the robbers were in a gray Jeep and pointed out the direction that the Jeep had gone.\nOfficer Boyd radioed dispatch and reported that he was pursuing the Jeep. As he headed in the direction indicated by the two observers, he spotted the gray Jeep. Two other officers in separate patrol cars, Corporal Gresham and Officer Kearney, joined him to provide backup. Once the gray Jeep was no longer traveling in a residential area, Officer Boyd turned on his blue lights and stopped the Jeep.\nCorporal Gresham used his PA system to order the occupants of the Jeep to exit the car. Defendant exited first from the driver\u2019s seat, followed by Anthony Peace from the front passenger seat. Damon Terry, who had been lying down on the back seat, left the Jeep last. The officers secured the men in patrol units.\nOfficer Kearney conducted an initial search of the Jeep, starting with the driver\u2019s compartment. When he opened the door, he could see the handle of a .38 derringer protruding from under the driver\u2019s seat. When he checked behind the driver\u2019s seat, he found a nylon lunch box that contained a black revolver, which was ultimately identified as the gun used in the robbery. On the other side of the car, he found a brown paper bag containing $210.00 in cash stuffed under the passenger seat and a hat and gloves on the back seat. Both guns were fully loaded.\nDefendant was indicted for felonious possession of a firearm by a felon in violation of N.C. Gen. Stat. \u00a7 14-415.1 (2001) and for robbery with a dangerous weapon in violation of N.C. Gen. Stat. \u00a7 14-87 (2001). Defendant was tried at the 11 February 2002 Criminal Session of Granville County Superior Court and on 14 February 2002 was found guilty of both charges. The trial judge sentenced defendant to a minimum of 72 months and a maximum of 96 months.\nI\nDefendant first argues that the trial court erred in denying his motions to dismiss both charges due to the insufficiency of the evidence. In considering a motion to dismiss in a criminal case, the trial judge must decide whether there is substantial evidence of each element of the offense charged. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d Id. In reviewing a trial court\u2019s denial of a motion to dismiss, the appellate court views the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from the evidence, and resolving any contradictions in the evidence in favor of the State. State v. Taylor, 337 N.C. 597, 604, 447 S.E.2d 360, 365 (1994).\nIt does not matter if the State has relied upon circumstantial, as opposed to direct, evidence. As our Supreme Court has stated:\nCircumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence. The evidence need only permit a reasonable inference of the defendant\u2019s guilt of the crime charged in order for that charge to be properly submitted to the jury. Once the court determines that a reasonable inference of the defendant\u2019s guilt may be drawn from the circumstances, it is for the jury to decide whether the facts, taken singly or in combination, satisfy them beyond a reasonable doubt that the defendant is actually guilty.\nId. (internal quotation marks and citations omitted).\nPossession of a Firearm bv a Felon\nN.C. Gen. Stat. \u00a7 14-415.1 provides that it is unlawful:\nfor any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any handgun or other firearm with a barrel length of less than 18 inches or an overall length of less than 26 inches, or any weapon of mass death and destruction as defined in G.S. 14-288.8(c).\nDefendant challenges only the sufficiency of the evidence to establish his possession, custody, care, or control of the .38 derringer found under the driver\u2019s seat.\nAs this Court has previously explained, \u201cPossession of any item may be actual or constructive. Actual possession requires that a party have physical or personal custody of the item. A person has constructive possession of an item when the item is not in his physical custody, but he nonetheless has the power and intent to control its disposition.\u201d State v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998) (citations omitted). Because, in this case, the gun was not found on defendant\u2019s person, the State was required to offer evidence that defendant constructively possessed the derringer.\nWhen, as here, the defendant did not have exclusive control of the location where contraband is found, \u201cconstructive possession of the contraband materials may not be inferred without other incriminating circumstances.\u201d Brown, 310 N.C. at 569, 313 S.E.2d at 589. In other words, the mere fact that defendant was in a car where a gun was found is insufficient standing alone to establish constructive possession. Alston, 131 N.C. App. at 519, 508 S.E.2d at 318.\nDefendant relies on Alston as support for this assignment of error. In Alston, however, the handgun at issue was owned by the defendant\u2019s wife, the defendant\u2019s wife was driving the car while the defendant was just a passenger, and the car was owned by someone else. This Court pointed out that while the defendant and his wife had \u201cequal access to the handgun,\u201d which was lying on a console between the driver\u2019s and passenger\u2019s seat, there was no other evidence \u201cotherwise linking the handgun to Defendant.\u201d Id., 508 S.E.2d at 319.\nBy contrast, in this case, defendant jointly owned the Jeep with his girlfriend and had been the sole driver of the Jeep the entire day of the robbery. While defendant contends on appeal that someone else could have previously placed the gun under the seat, the State\u2019s evidence indicated that the gun could readily be seen when the driver\u2019s door was opened, suggesting that defendant must have known of the presence of the gun.\nDefendant has also argued that Terry could have slid the gun under the driver\u2019s seat after defendant left the car. Although defendant has not suggested that Anthony Peace planted the gun, there was no evidence of any movement by Peace towards the driver\u2019s seat after the police stopped the Jeep. With respect to Terry, Warren Hicks (the crime scene detective and evidence technician for the Oxford Police Department) testified that there was so much debris under the driver\u2019s seat that no one could have shoved the gun under the seat from the back seat of the car. Additionally, according to Detective Hicks, even if nothing had been stored under the seat, because the seat frame of a Jeep is mounted on a hump, sliding even a small object would be difficult.\nViewed in the light most favorable to the State, this evidence was sufficient to raise a jury question regarding defendant\u2019s possession of the derringer. See, e.g., State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 271 (2001) (drugs were found in rear seat of car with several passengers, but arresting officer testified that defendant was the only person who could have placed the drugs in the location where they were discovered); State v. Boyd, 154 N.C. App. 302, 307, 572 S.E.2d 192, 196 (2002) (although drugs were found under the driver\u2019s seat and defendant was passenger, evidence was sufficient when co-defendant driver testified that defendant had been left alone with the car and that defendant was the only person who could have placed drugs under seat). The trial court therefore correctly denied defendant\u2019s motions to dismiss and submitted the charge of possession of a firearm by a felon to the jury.\nRobbery with a Dangerous Weapon\nDefendant also contends that the trial court should have dismissed the charge of robbery with a dangerous weapon. N.C. Gen. Stat. \u00a7 14-87 provides:\nAny person or persons who, having 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, unlawfully takes or attempts to take personal property from another or from any place of business, residence or banking institution or any other place where there is a person or persons in attendance, at any time, either day or night, or who aids or abets any such person or persons in the commission of such crime, shall be guilty of a Class D felony.\nA person who aids or abets another person in the commission of the offense of armed robbery is equally guilty as a principal. State v. Donnell, 117 N.C. App. 184, 188, 450 S.E.2d 533, 536 (1994). The intent to aid does not have to be expressly communicated, but can be inferred from the actions of the defendant. State v. Sanders, 288 N.C. 285, 291, 218 S.E.2d 352, 357 (1975), cert. denied, 423 U.S. 1091, 47 L. Ed. 2d 102 (1976).\nHere, the State offered sufficient circumstantial evidence to allow the jury to find that defendant aided and abetted Terry\u2019s armed robbery by driving the \u201cget away\u201d car. There is no genuine dispute that Terry robbed the Shell station at gunpoint of $210.00 and that Terry escaped in defendant\u2019s Jeep. The primary issue is whether there was sufficient evidence that defendant knew Terry committed the robbery either before or after it occurred.\nThe evidence, viewed in the light most favorable to the State, showed that immediately after committing the robbery, Terry got into the Jeep at the Shell station with his loaded gun, a ski cap and gloves although it was a hot May day, and a paper bag with the stolen money. Defendant then drove off, with a loaded gun under his own seat, taking the \u201cback way home.\u201d Terry lay down on the back seat of the car. Since a reasonable inference of defendant\u2019s knowledge may be drawn from these facts, the court properly submitted the issue to the jury.\nAlmost identical evidence was found sufficient by this Court in State v. Monroe, 78 N.C. App. 661, 662, 338 S.E.2d 137, 138 (1986). In Monroe, a gas station had been robbed by a single person. A police officer followed the robber until he entered a car and then pursued the car until it ran off the road and two men fled from the car. The defendant was the driver of the car. This Court held that the jury could find from this evidence that the defendant \u201cwas driving an automobile in the vicinity of the place where the armed robbery occurred with the intention of aiding the robber in his escape\u201d and that the defendant \u201cpicked the robber up in his automobile a few minutes after the robbery and did aid the robber in leaving the scene.\u201d Id. at 663, 338 S.E.2d at 138. Here, defendant was not just in the vicinity of the robbery; he was in the car outside the gas station and picked up Terry moments after the robbery occurred. As in Monroe, this evidence is sufficient to permit, although not require, a jury to conclude that defendant intended to aid and abet Terry\u2019s armed robbery. See also State v. Cannon, 92 N.C. App. 246, 255, 374 S.E.2d 604, 609 (1988) (evidence sufficient when defendant was found hiding under house near robbery, he was in the presence of one of the robbers, and objects linked to the robbery were nearby), rev\u2019d on other grounds, 326 N.C. 37, 387 S.E.2d 450 (1990).\nDefendant points to his evidence that, at the time of the robbery, he was driving his car through a car wash with his car wheels locked. He argues that if defendant \u201chad known that Terry entered the store to commit a robbery, and if he wanted to assist in its commission, he would not have gone through the car wash that day.\u201d The State, however, offered evidence that would permit a jury to find that defendant never used the car wash. Detective Chauvaux testified that the car wash did not have a blower so that cars emerging from the car wash were completely wet. Officer Boyd testified that when he first saw the Jeep, it was not wet. In addition, Detective Hicks, who examined the Jeep only a day and a half after it was impounded, testified that \u201c[t]here was ... a thick layer of dust on the vehicle. The outside was dirty as well as the inside ....\u201d Whether defendant\u2019s claim that he had been in the car wash during the robbery was true was a question for the jury to resolve.\nII\nDefendant next challenges the admission of testimony that he contends was inadmissible hearsay, including (1) Mr. Flanagan\u2019s testimony as to statements made by the second clerk at the store, Danita, who did not testify at this trial; and (2) Officer Anthony Boyd\u2019s testimony regarding the statements of the two unknown men describing the gray Jeep. We find no error.\nWilliam Flanagan\u2019s Testimony\nOn cross-examination of Mr. Flanagan, defense counsel asked the following questions:\nQ. And based on your personal observations and your own investigation of the \u2014 of this particular incident, there was only, to your knowledge, one person who ever came in that store that robbed it, is that correct?\nA. To my knowledge? I have information that other \u2014 to\u2014contrary to that.\nQ. And does Danita and Dana \u2014 are they still employed at Rosemart?\nA. I don\u2019t believe so.\n(Emphasis added). Defense counsel thus tried to suggest not only that Mr. Flanagan had seen only a single robber, but that his own investigation of the robbery had indicated there was only a single robber. When Mr. Flanagan did not agree with defense counsel\u2019s statement, counsel did not allow him to explain.\nOn redirect, the prosecutor followed up on Mr. Flanagan\u2019s answer:\nQ. Mr. Flanagan, what is that information that you have that is contrary to the statement that Ms. Feimster made about \u2014\nA. (Interposing) Danita told me that\u2014\nMs. Feimster: (Interposing) Objection, Your Honor.\nA. \u2014that she saw the other two men come into the store\u2014\nMs. Feimster: (Interposing) Objection, Your Honor.\nA. \u2014with Mr. Terry\nThe Court: Overruled\nIn State v. Williams, 315 N.C. 310, 320, 338 S.E.2d 75, 82 (1986), our Supreme Court noted that \u201c[i]t is well settled that evidence explanatory of testimony brought out on cross-examination may be elicited on redirect even though it might not have been properly admissible in the first instance.\u201d In Williams, defense counsel on cross-examination asked an officer whether he had earlier been suspicious of some of a witness\u2019 actions. The officer responded that his suspicions were directed at her knowledge of the killing rather than in regard to her actions. On redirect, the State asked the officer to explain what he suspected the witness knew about the killing and he answered that he believed the witness suspected the defendant of some involvement. Although that testimony might not otherwise have been admissible, the Court found no error since it \u201cwas designed to explain his cross-examination testimony.\u201d Id.\nLikewise, although Mr. Flanagan\u2019s testimony regarding Danita\u2019s statements would ordinarily be inadmissible hearsay, it became admissible when counsel asked Mr. Flanagan what he observed and what his investigation uncovered regarding the number of robbers. Defendant opened the door. See also State v. Anthony, 354 N.C. 372, 415, 555 S.E.2d 557, 585 (2001) (\u201c \u2018Where one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such latter evidence would be incompetent or irrelevant had it been offered initially.\u2019 \u201d) (quoting State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981)), cert. denied, 536 U.S. 930, 153 L. Ed. 2d 791 (2002).\nStatements of Unidentified Eyewitnesses\nOfficer Boyd testified that two unidentified men spoke to him twice concerning the robbery. The first time, Officer Boyd testified, the men \u201cran down from the Shell station by the car wash practically out in the street in front of my patrol car. At that time, the two individuals in concert stated that, \u2018Those guys are robbing the Shell station.\u2019 \u201d The court overruled defendant\u2019s objection to this testimony and allowed the evidence to be considered \u201cfor the purpose of explaining the conduct of this officer after he heard those statements.\u201d\nIn addition, Officer Boyd testified that, a little later, the same men told him, \u201chey, you just missed the guys. I said, missed them in what? They said, a gray Jeep. It just went that way. And when they said \u2018that way,\u2019 they was [sic] referring to Industry Drive, traveling towards 158.\u201d Defense counsel raised no objection to this testimony at trial. Under Rule 10(b) of the North Carolina Rules of Appellate Procedure, only those questions properly preserved for review by objection at trial may be the basis of an assignment of error on appeal. N.C.R. App. P. 10(b)(1). Since defendant has also failed to argue that the admission of the description of the car constituted plain error, defendant has waived this argument. State v. Haselden, 357 N.C. 1, 17, 577 S.E.2d 594, 605 (2003).\nIn any event, both sets of statements were admissible under Rules 803(1) and 803(2) of the North Carolina Rules of Evidence. They qualify both as present sense impressions and excited utterances.\nUnder Rule 803(1), a present sense impression is \u201c[a] statement describing or explaining an event or condition made while the declar-ant was perceiving the event or condition, or immediately thereafter.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 803(1) (2003). The key factor in deciding whether a statement falls under the present sense impression exception is the \u201ccloseness in time between the event and the declarant\u2019s statement\u201d because that proximity \u201creduces the likelihood of deliberate or conscious misrepresentation.\u201d State v. Pickens, 346 N.C. 628, 644, 488 S.E.2d 162, 171 (1997).\nUnder Rule 803(2), an excited utterance is \u201c[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 803(2) (2003). In order for a statement to qualify as an excited utterance, there must be \u201c(1) a sufficiently startling experience suspending reflective thought and (2) a spontaneous reaction, not one resulting from reflection or fabrication.\u201d State v. Smith, 315 N.C. 76, 86, 337 S.E.2d 833, 841 (1985).\nThe statements of the unknown men that the store was being robbed and then, moments after the robbery, that the robbers had driven off in a gray Jeep described events either while they were happening or immediately afterwards. The statements therefore qualify as a present sense impression. There was also sufficient evidence of a startling experience \u2014 an armed robbery \u2014 and that the statements were a spontaneous reaction to justify admission as excited utterances. See State v. Odom, 316 N.C. 306, 313, 341 S.E.2d 332, 336 (1986) (officer could testify, under Rule 803(1), to deceased witness\u2019 description of the victim\u2019s car and the two assailants made ten minutes after the events); State v. Markham, 80 N.C. App. 322, 324, 341 S.E.2d 777, 778 (1986) (woman who had pursued a robber was allowed to testify that another woman yelled to her that the robber had gone into a lot behind some apartments; statement was admissible both as a present sense impression and an excited utterance). This assignment of error is overruled.\nIll\nDefendant argues that his trial counsel\u2019s failure to present evidence of Terry\u2019s allegedly inculpatory statements constitutes ineffective assistance of counsel because it deprived defendant of a fair trial. \u201cAttorney conduct that falls below an objective standard of reasonableness and prejudices the defense denies the defendant the right to effective assistance of counsel. An IAC claim must establish both that the professional assistance defendant received was unreasonable and that the trial would have had a different outcome in the absence of such assistance.\u201d State v. Fair, 354 N.C. 131, 167, 557 S.E.2d 500, 525 (2001) (citations omitted), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002).\nIneffective assistance of counsel claims are usually raised in post-conviction proceedings and not on direct appeal. Such claims may, however, be raised on direct appeal when the cold record reveals that no further factual development is necessary to resolve the issue. Id. at 166, 557 S.E.2d at 524. If the record reveals that factual issues must be developed, the proper course is for the appellate court to dismiss those assignments of error without prejudice to the defendant\u2019s right to raise an ineffective assistance of counsel claim in a later motion for appropriate relief. State v. Long, 354 N.C. 534, 539-40, 557 S.E.2d 89, 93 (2001).\nIn this case, our review of the record indicates that additional factual development is necessary before a proper review of defendant\u2019s ineffective assistance of counsel claim may be undertaken. Accordingly, we do not address the merits of this claim and dismiss this assignment of error without prejudice to defendant\u2019s right to raise this issue in a subsequent motion for appropriate relief.\nIV\nFinally, defendant argues that the trial court erred in denying his motion for a mistrial after the State asked a question, in front of the jury, about child support arrears. \u201cThe allowance or denial of a defendant\u2019s motion for mistrial is largely within the discretion of the trial court and its ruling is not reviewable in the absence of an abuse of discretion.\u201d State v. Johnson, 78 N.C. App. 68, 74, 337 S.E.2d 81, 85 (1985). We find that the trial court did not abuse its discretion.\nDefendant called Reverend Clarence Dale as a character witness. On cross-examination, the prosecutor asked Reverend Dale, \u201cAnd did you know that Mr. Clark is close to eight thousand dollars ($8,000.00) in arrears on child support?\u201d The trial court sustained defense counsel\u2019s prompt objection and granted her motion to strike the testimony. The judge twice instructed the jury to disregard the prosecutor\u2019s question. This procedure appropriately addressed the improper question. See State v. Franks, 300 N.C. 1, 13, 265 S.E.2d 177, 184 (1980) (\u201c[W]e note that the better procedure is to give the instruction to disregard th\u00e9 answer immediately after allowing the motion to strike.\u201d). This case does not involve such a serious impropriety as to warrant a finding that the trial court abused its discretion in not granting a mistrial.\nDefendant argues that the court should have polled the jurors to determine if they could continue as fair and impartial jurors. We note that defendant did not request a polling of the jury at the time nor has he assigned error to the trial court\u2019s failure to poll the jury. In any event, the decision whether to poll a jury after potentially prejudicial information becomes known to the jury rests within the discretion of the trial court and we find no abuse of discretion. State v. Sorrells, 33 N.C. App. 374, 377, 235 S.E.2d 70, 73, disc. review denied, 293 N.C. 257, 237 S.E.2d 539 (1977).\nGiven the facts of this case, a question regarding possible child support arrearages was not so prejudicial as to require polling the jury or the declaration of a mistrial. See State v. Costner, 80 N.C. App. 666, 672, 343 S.E.2d 241, 245 (rejecting argument that question regarding $17,000.00 in child support arrears required the granting of a mistrial), disc. review denied, 317 N.C. 709, 347 S.E.2d 444 (1986). This assignment of error is overruled.\nAfter a careful review of the record, we find no error in the trial court\u2019s rulings.\nNo Error.\nJudge BRYANT concurs.\nJudge TIMMONS-GOODSON concurs in result only .with separate opinion.", "type": "majority", "author": "GEER, Judge." }, { "text": "TIMMONS-GOODSON, Judge,\nconcurring in the result.\nBecause I disagree with the majority opinion\u2019s application of State v. Williams, 315 N.C. 310, 338 S.E.2d 75 (1986), to the facts of the instant case, I concur only in the result of Part II of the opinion. I otherwise concur.\nThe majority concludes that the hearsay testimony offered by Flanagan in the instant case was admissible under the rule cited in Williams that \u201cevidence explanatory of testimony brought out on cross-examination may be elicited on redirect even though it might not have been properly admissible in the first instance.\u201d Id. at 320, 338 S.E.2d at 82. This rule allows admission of evidence elicited during redirect examination of a witness that would have been otherwise inadmissible as irrelevant if first offered during direct examination. See, e.g., N.C. Gen. Stat. \u00a7 8C-1, Rule 404(a) (2001) (generally prohibiting character evidence as irrelevant, but allowing such evidence to be offered by the prosecution in order to rebut evidence presented by the defendant). The rule does not encompass evidence that is inadmissible for reasons of hearsay, however.\nIn State v. Love, 296 N.C. 194, 250 S.E.2d 220 (1978), the case cited by the Williams Court in support of the rule, the defendant objected to certain evidence elicited by the State during redirect examination of a police officer on the grounds that it was \u201coffered solely to prejudice the jury against defendant\u201d and was therefore irrelevant. Id. at 201, 250 S.E.2d at 225. The Love Court concluded that defendant\u2019s objection was without merit, as defense counsel had \u201copened the door\u201d to this information during cross-examination. The defendant also objected to the testimony on the grounds that it constituted inadmissible hearsay, which argument the Court addressed separately. Clearly, if the rule allowing explanatory information to be elicited on redirect encompassed evidence otherwise inadmissible for reasons of hearsay, as well as relevancy, there would have been no need for the Love Court to address these arguments separately. I therefore disagree with the majority\u2019s conclusion that the hearsay evidence offered by Flanagan was properly admitted. As I conclude, however, that admission of this evidence was harmless, I agree with the result of the majority in finding no error.", "type": "concurrence", "author": "TIMMONS-GOODSON, Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Lauren M. Clemmons, for the State.", "Hosford & Hosford, P.L.L. C., by Sofie W. Hosford, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KEVIN CLARK\nNo. COA02-964\n(Filed 5 August 2003)\n1. Firearms and Other Weapons\u2014 weapon in vehicle \u2014 constructive possession \u2014 sufficiency of evidence\nThere was sufficient evidence to submit possession of a firearm by a felon to the jury where a gun was found under the driver\u2019s seat of a Jeep driven by defendant after an armed robbery. Defendant was a joint owner of the Jeep and had been the only driver the entire day of the robbery, the gun could be seen readily when the driver\u2019s door was open, there was no evidence of movement toward the driver\u2019s seat by the occupant of the passenger seat after the Jeep was stopped, and the seat frame and debris would have made it difficult for the passenger in the back seat to shove the gun under the seat.\n2. Robbery\u2014 sufficiency of evidence \u2014 robbery by another\u2014 defendant\u2019s knowledge\nThe evidence was sufficient to submit robbery with a dangerous weapon to the jury where another person (Terry) got into defendant\u2019s Jeep immediately after the robbery; Terry had a ski cap and gloves, although it was a hot day in May, as well as a loaded gun and a paper bag with the stolen money; defendant drove off with a loaded gun under his seat; and defendant took the back way home with Terry lying down in. the back seat of the car. These facts permit a reasonable inference of defendant\u2019s knowledge.\n3. Evidence\u2014 hearsay \u2014 door opened\nThere was no error in the admission of testimony from a convenience store employee present during an armed robbery about hearsay statements from another employee. Defendant opened the door by asking the first employee what he had observed and what his investigation had uncovered about the number of robbers.\n4. Evidence\u2014 present sense impressions and excited utterances \u2014 statements directing officer to robbery\nStatements to an officer from unidentified witnesses to an armed robbery who flagged down an officer and later directed him to defendant\u2019s car were admissible as present sense impressions and excited utterances. N.C.G.S. \u00a7 8C-1, Rules 803(1) and (2).\n5. Constitutional Law\u2014 effective assistance of counsel \u2014 further factual development necessary\nA claim of ineffective assistance of counsel was not addressed where further factual development was necessary for a proper review.\n6. Evidence\u2014 other offenses \u2014 child support arrears\nA question about defendant\u2019s child support arrears in an armed robbery prosecution was not so prejudicial as to require polling the jury or granting a mistrial.\nJudge Timmons-Goodson concurring in the result.\nAppeal by defendant from judgment entered 14 February 2002 by Judge James C. Spencer, Jr. in Granville County Superior Court. Heard in the Court of Appeals 26 March 2003.\nAttorney General Roy Cooper, by Assistant Attorney General Lauren M. Clemmons, for the State.\nHosford & Hosford, P.L.L. C., by Sofie W. Hosford, for defendant-appellant." }, "file_name": "0520-01", "first_page_order": 550, "last_page_order": 564 }