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      "STATE OF NORTH CAROLINA v. MARTAVIOUS SANTONIO CURRY, Defendant"
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      {
        "text": "STROUD, Judge.\nDefendant was convicted by a jury of first degree murder, discharging a firearm into occupied property, possession of a firearm by a felon, and robbery with a dangerous weapon. Defendant appeals on numerous grounds. For the following reasons, we arrest judgment on defendant\u2019s sentence for robbery with a dangerous weapon, remand as to defendant\u2019s judgment for discharging a firearm into occupied property for correction of a clerical error, and otherwise find no prejudicial error. \u2019\nI. Background\nThe State\u2019s evidence tended to show that on 5 December 2006, defendant told his friend, Montrell Archie, that \u201che needed somebody to rob\u201d because he had no money. Mr. Archie informed defendant he did not know of anyone, and defendant asked about Durrell Petty, an individual from whom Mr. Archie purchased his illegal drugs. Defendant and Mr. Archie decided they would commit a robbery that evening but changed their minds as they did not have a gun. Mr. Archie spent the night at his girlfriend\u2019s house, and defendant stayed at Mr. Archie\u2019s grandmother\u2019s house. On the morning of 6 December 2006, Mr. Archie drove to his grandmother\u2019s house and picked up defendant. Mr. Archie and defendant got an SKS rifle, and the two formulated a plan on \u201chow to do the robbery[.]\u201d Mr. Archie drove defendant to an area near Mr. Petty\u2019s house and dropped him off so that \u201cit look[ed] like [Mr. Archie] didn\u2019t know what was going on[.]\u201d Mr. Archie then drove to Mr. Petty\u2019s house and purchased some drugs from Mr. Petty. While at Mr. Petty\u2019s house, Mr. Archie saw defendant \u201ccome up on the car porch.\u201d Mr. Petty ran, and defendant fired a gun. Ms. McSwain, Mr. Petty\u2019s girlfriend, was also at the house with Mr. Archie and Mr. Petty. When Ms. McSwain heard the gunshot, she ran. At the time of the shooting, Ms. McSwain owned a pocketbook which contained money and her identification. During the shooting, Mr. Archie hid in the pantry and \u201ccontinued hearing shots.\u201d Defendant \u201copened the pantry and pointed the gun\u201d at Mr. Archie, asking where Mr. Petty was and telling Mr. Archie to search the house. Mr. Archie found Mr. Petty, who had already been shot, in the bedroom and \u201cit didn\u2019t look like he was alive[.]\u201d Mr. Archie then took a 9 millimeter handgun from Mr. Petty.\nSergeant Dan Snellings of the Cleveland County Sheriff\u2019s Office reported to the crime scene and later went to a nearby unoccupied residence. At the vacant residence law enforcement personnel recovered an SKS rifle and a purse which contained Ms. McSwain\u2019s identification. Defendant was indicted for murder, discharging a firearm into occupied property, possession of a firearm by a convicted felon, and robbery with a dangerous weapon. Defendant was convicted by a jury on all charges. The trial court determined that defendant had a prior record level of two and sentenced him to life imprisonment without parole on his consolidated convictions for murder and robbery with a dangerous weapon. Defendant was also sentenced to 77 to 102 months for discharging a firearm into occupied property and 15 to 18 months for possession of a firearm by a convicted felon. Defendant appeals on numerous grounds. For the following reasons, we arrest judgment on defendant\u2019s sentence for robbery with a dangerous weapon, remand as to defendant\u2019s judgment for discharging a firearm into occupied property for correction of a clerical error, and otherwise find no prejudicial error.\nII. Merger\nDefendant first argues that pursuant to State v. Weeks, 322 N.C. 152, 367 S.E.2d 895 (1988), his robbery conviction merged into his murder conviction, and thus the trial court erred in not arresting judgment as to his robbery conviction; the State agrees with defendant on this contention. However, defendant also argues that due to this error and pursuant to State v. Wortham, 318 N.C. 669, 351 S.E.2d 294 (1987), his \u201cmurder case must be remanded for entry of proper judgment.\u201d The State contends that defendant\u2019s \u201csentence imposed for the felony murder was not possibly enhanced by the robbery conviction and a remand would be pointless. Instead this Court should follow the practice in State v. Goldston, 343 N.C. 501, 471 S.E.2d 412 (1996)[.]\u201d\nWhether to arrest judgment is a question of law, and \u201c[questions of law are reviewed de novo on appeal.\u201d Metcalf v. Black Dog Realty, LLC, - N.C. App. -, -, 684 S.E.2d 709, 720 (2009) (citation omitted).\nWortham states:\nSince it is probable that a defendant\u2019s conviction for two or more offenses influences adversely to him the trial court\u2019s judgment on the length of the sentence to be imposed when these offenses are consolidated for judgment, we think the better procedure is to remand for resentencing when one or more but not all of the convictions consolidated for judgment has been vacated.\nWortham at 674, 351 S.E.2d at 297. Thus, Wortham\u2019s analysis would apply in cases where \u201ca defendant\u2019s conviction for two or more offenses influences adversely to him the trial court\u2019s judgment on the length of the sentence to be imposed[.]\u201d Id. However, here, as in Goldston, we do not find that to be the case:\nThe felony upon which the first-degree murder conviction was based in this case was the attempted robbery with a firearm. The jury did not convict the defendant based on premeditation and deliberation, and the attempted robbery conviction merged into the felony murder conviction. Therefore, judgment should have been arrested on the attempted robbery with a firearm conviction. The court consolidated the murder and attempted robbery with a firearm convictions and imposed a life sentence, which was required for the murder conviction. The defendant was thus not prejudiced by this consolidation. Accordingly, we arrest judgment on the sentence for attempted robbery with a firearm and do not disturb the sentence for felony murder.\nGoldston at 504, 471 S.E.2d at 414 (citation omitted). As our facts are virtually the same as in Goldston and defendant did not receive a harsher punishment based upon the error, we too \u201carrest judgment on the sentence for... robbery with a firearm and do not disturb the sentence for felony murder.\u201d Id.\nIII. Sentencing\nDefendant next contends that \u201cthe existing judgment must be vacated and the case remanded for a new entry of judgment and sentencing hearing because the Trial Court erroneously entered judgment and sentenced on the conviction [of discharging a firearm into occupied property] as a Class D rather than a Class E felony.\u201d Defendant directs our attention to alleged errors in his indictment, the jury instructions, the verdict sheet, the trial court\u2019s statements during sentencing, and the judgment itself in support of his contention that he should have been sentenced on a Class E felony instead of a Class D felony.\nIn order to determine the proper standard of review, it is important to note the basis of defendant\u2019s argument. Defendant did not assign nor argue error as to the indictment, the jury instructions, the verdict sheet or the trial court\u2019s statement, but merely uses them in support of his argument that the trial court sentenced him improperly. Defendant is not arguing that his indictment was insufficient, that the jury instructions were improper, that the verdict sheet was deficient or that the trial court\u2019s statement was prejudicial, nor could he do so, as he failed to assign as error or argue these issues. Defendant is attacking only his sentencing.\n\u201cWhen a defendant assigns error to the sentence imposed by the trial court our standard of review is whether the sentence is supported by evidence introduced at the trial and sentencing hearing.\u201d State v. Chivers, 180 N.C. App. 275, 278, 636 S.E.2d 590, 593 (2006) (citation and brackets omitted), disc. review denied, 361 N.C. 222, 642 S.E.2d 709 (2007). N.C. Gen. Stat. \u00a7 14-34.1 provides:\n(a) Any person who willfully or wantonly discharges or attempts to discharge any firearm or barreled weapon capable of discharging shot, bullets, pellets, or other missiles at a muzzle velocity of at least 600 feet per second into any building, structure, vehicle, aircraft, watercraft, or other conveyance, device, equipment, erection, or enclosure while it is occupied is guilty of a Class E felony.\n(b) A person who willfully or wantonly discharges a weapon described in subsection (a) of this section into an occupied dwelling or into any occupied vehicle, aircraft, watercraft, or other conveyance that is in operation is guilty of a Class D felony.\n(c) If a person violates this section and the violation results in serious bodily injury to any person, the person is guilty of a Class C felony.\nN.C. Gen. Stat. \u00a7 14-34.1 (2005).\nA. Indictment\nWe first turn to defendant\u2019s indictment, which defendant contends supports his argument that he should have been sentenced as a Class E felon. Defendant was indicted for \u201c[discharging a firearm into occupied property\u201d pursuant to N.C. Gen. Stat. \u00a7 14-34.1. The indictment identified the crime charged as a class E felony, although the grand jury specifically found that defendant \u201cunlawfully, willfully and feloniously did wantonly discharge a firearm into a residence located at 6035 Deep Green Drive, Shelby, North Carolina, and said property being occupied when the weapon was discharged.\u201d Discharge of a weapon into a \u201cbuilding\u201d or \u201cstructure\u201d while it is occupied is a Class E felony pursuant to N.C. Gen. Stat. \u00a7 14-34.1(a), but discharge of a weapon into a \u201cdwelling\u201d while it is occupied is a class D felony pursuant to N.C. Gen. Stat. \u00a7 14-34.1(b). See id. Defendant argues that because the indictment alleges that he discharged the weapon into an occupied \u201cresidence\u201d rather than a \u201cdwelling,\u201d the indictment did not charge him with a Class D felony and he is entitled to resentencing upon a Class E felony. We disagree.\n\u201c[A]n indictment is sufficient if it charges the substance of the offense, puts the defendant on notice of the crime, and alleges all essential elements of the crime.\u201d State v. Bollinger, 192 N.C. App. 241, 246, 665 S.E.2d 136, 139 (2008) (citation omitted), aff\u2019d per curiam, 363 N.C. 251, 675 S.E.2d 333 (2009). \u201cEven though [a] statutory reference [is] incorrect, the body of the indictment [may be] sufficient to properly charge a violation. The mere fact that the wrong statutory reference was used does not constitute a fatal defect as to the validity of the indictment.\u201d State v. Jones, 110 N.C. App. 289, 291, 429 S.E.2d 410, 412 (1993). The elements of- discharging a firearm into occupied property \u201care (1) willfully and wantonly discharging (2) a firearm (3) into property (4) while it is occupied.\u201d State v. Hagans, 188 N.C. App. 799, 804, 656 S.E.2d 704, 707 (citations and quotation marks omitted), disc. review denied, 362 N.C. 511, 668 S.E.2d 344 (2008).\nHere, the offense was listed as \u201c[discharging a firearm into occupied property\u201d and the description on the indictment was for \u201c[(1)] wantonly discharging] [(2)] a firearm [(3)] into a residence located at 6035 Deep Green Drive, Shelby, North Carolina, and [(4)] said property being occupied when the weapon was discharged.\u201d See id. The grand jury alleged that defendant fired into occupied property which was a \u201cresidence.\u201d The word \u201cresidence\u201d is not used in either N.C. Gen. Stat. \u00a7 14-34.1(a) or (b). However, State v. Jones, 188 N.C. App. 562, 655 S.E.2d 915 (2008) refers to a \u201cdwelling house\u201d or a \u201cresidence\u201d numerous times, indicating that the words are interchangeable. Jones, 188 at 564-68, 655 S.E.2d at 917-19. Black\u2019s Law Dictionary defines a \u201cdwelling-house\u201d as \u201c[t]he house or other structure in which a person lives; a residence or abode.\u201d Black\u2019s Law Dictionary 582 (9th ed. 2009) (emphasis added). \u201cResidence\u201d has also been defined as \u201ca building used as a home: DWELLING[.]\u201d Merriam-Webster\u2019s Collegiate Dictionary 1060 (11th ed. 2005). Furthermore, N.C. Gen. Stat. \u00a7 14-277.4A, also located in Chapter 14, the criminal law chapter of the North Carolina General Statutes, defines \u201cresidence\u201d as \u201cany single-family or multifamily dwelling unit that is not being used as a targeted occupant\u2019s sole place of business or as a place of public meeting.\u201d N.C. Gen. Stat. \u00a7 14-277.4A(a)(l) (2009) (emphasis added). Thus, we conclude that the term \u201cresidence\u201d as used in the indictment was synonymous with \u201cdwelling\u201d as used in N.C. Gen. Stat. \u00a7 14-34.1(b). Though the crime was listed as a Class E felony on defendant\u2019s indictment, the specific description of the crime put defendant on notice that the crime charged was actually a Class D felony under N.C. Gen. Stat. \u00a7 14-34.1(b). The indictment was clearly sufficient to enable defendant to prepare for trial. See State v. Farrar, 361 N.C. 675, 678, 651 S.E.2d 865, 866-67 (2007) (\u201c[T]he primary purpose of the indictment is to enable the accused to prepare for trial.\u201d (citation and quotation marks omitted)). Also, as noted above, even where a \u201cstatutory reference [is] incorrect, the body of the indictment [may be] sufficient to properly charge a violation.\u201d Jones, 110 N.C. App. at 291, 429 S.E.2d at 412. Because the term \u201cresidence\u201d is synonymous with the term \u201cdwelling\u201d as used in N.C. Gen. Stat. \u00a7 14-34.1(b), the body of the indictment charged defendant with a Class D felony pursuant to N.C. Gen. Stat. \u00a7 14-34.1(b). See N.C. Gen. Stat. \u00a7 14-34.1(b). The erroneous reference on the indictment to a Class E felony therefore does not support defendant\u2019s argument that he was improperly sentenced.\nB. Jury Instructions\nDefendant next argues that \u201c[t]he jury instructions on the offense consistently used the word \u2018residence\u2019 and charged an essential element was discharging a firearm \u2018into the residence\u2019 on Deep Green Drive\u201d while the jury instruction should have referred to a \u201cdwelling\u201d instead. However, as discussed above, we find that the terms \u201cdwelling\u201d and \u201cresidence\u201d are synonymous in this context, and thus the trial court did not err by sentencing defendant for a Class D felony pursuant to N.C. Gen. Stat. \u00a7 14-34.1(b).\nC. Verdict Sheet\nDefendant also argues that he should have been sentenced to a Class E felony instead of a Class D felony based upon the verdict sheet. On the verdict sheet, the jury found defendant \u201cguilty of discharging a firearm into occupied property[.]\u201d (Original in all caps.) The only other option on the verdict sheet was \u201cNOT GUILTY[.]\u201d However, the wording of the verdict sheet does not change our analysis as stated above. \u201c[T]he function of the jury during the guilt phase is to determine the guilt or innocence of the defendant, not to be concerned about the defendant\u2019s penalty[.]\u201d State v. Brown, 177 N.C. App. 177, 189, 628 S.E.2d 787, 794 (2006) (citation, quotation marks, and brackets omitted). Here, defendant argues only that the penalty was improper, not the jury\u2019s verdict itself. In the context of the indictment and jury instructions as noted above, the fact that the verdict sheet referred to an \u201coccupied property\u201d does not raise any question about whether the jury properly performed its function. The jury made the factual determination as to the defendant\u2019s guilt; the trial court properly determined the penalty pursuant to N.C. Gen. Stat. \u00a7 14-34.1(b).\nD. Trial Court\u2019s Statements\nDuring sentencing the trial court stated, \u201cOn a discharging a firearm into occupied dwelling, he\u2019s Class E, Level 2, I\u2019ll impose a minimum of 77 and a maximum of 102 months in the Department of Correction[]. Here, it is clear that the trial court simply misspoke as to the class of the felony. First, the trial court noted defendant was being sentenced for \u201cdischarging a firearm into occupied dwelling,\u201d which is the language used in N.C, Gen. Stat. \u00a7 14-34.1(b). See N.C. Gen. Stat. \u00a7 14-34.1(b). Second, the trial court imposed \u201ca minimum of 77 and a maximum of 102 months in the Department of Correction[].\u201d The range of 77 to 102 months falls only within the minimum and maximum range for a Class D offense. See N.C. Gen. Stat. \u00a7 15A-1340.17 (c), (e) (2005). For a Class E felony the maximum sentence defendant could have received is 44 months. See N.C. Gen. Stat. \u00a7 15A-1340.17(e). Thus, the trial court was clearly referring to a Class D offense, though he erroneously stated \u201cClass E[.]\u201d\nE. Judgment\nLastly, on the \u201cJUDGMENT AND COMMITMENT ACTIVE PUNISHMENT FELONY\u201d sheet, the trial court described the offense as \u201cDISCHARGE WEAPON OCCUPIED PROP\u201d noting that it was pursuant to N.C. Gen. Stat. \u00a7 14-34.1(a) and was a Class D offense. Here it appears that the trial court made a typographical error, as a violation of N.C. Gen. Stat. \u00a7 14-34.1(a) is a Class E offense, and a violation of N.C. Gen. Stat. \u00a7 14-34.1(b) is a Class D offense. The trial court sentenced defendant to 77 to 102 months imprisonment, which is consistent with a class D offense. See N.C. Gen. Stat. \u00a7 15A-1340.17 (c), (e).\n\u201cA clerical error is an error resulting from a minor mistake or inadvertence, especially in writing or copying something on the record, and not from judicial reasoning or determination.\u201d In re D.D.J., 177 N.C. App. 441, 444, 628 S.E.2d 808, 811 (2006) (citation, quotation marks, and brackets omitted). \u201cWhen, on appeal, a clerical error is discovered in the trial court\u2019s judgment or order, it is appropriate to remand the case to the trial court for correction because of the importance that the record \u2018speak the truth.\u201d State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695, 696 (2008) (citation and quotation marks omitted).\nOn the judgment, the trial court noted that defendant was being sentenced for a Class D offense, and then sentenced defendant accordingly. Therefore, the trial court\u2019s reference to subsection (a) of N.C. Gen. Stat. \u00a7 14-34.1 was merely a \u201cclerical error\u201d and did not affect the sentencing defendant received. We remand defendant\u2019s judgment for discharging a weapon into occupied property for correction of this clerical error. See id.\nIV. Indictment\nDefendant next contends that his \u201cpossession of a firearm conviction must be vacated because there is a fatal variance between the \u2022 indictment and the evidence concerning the type of weapon possessed under State v. Langley, 173 N.C. App. 194, 618 S.E.2d 253 (2005)[.]\u201d The State contends that defendant has waived this argument by failing to properly raise this issue in the trial court below. Defendant counters that \u201c[i]t is black letter law in North Carolina that a defendant \u2018may raise the question of variance between the indictment and the proof by a motion of nonsuit.\u2019 State v. Skinner, 162 N.C. App. 434, 446, 590 S.E.2d 876, 885 (2004).\u201d We agree that \u201cdefendant may raise the question of variance between the indictment and the proof by a motion\u201d to dismiss, but defendant must also state this at trial as the grounds for the motion to dismiss. See State v. Skinner, 162 N.C. App. 434, 446, 590 S.E.2d 876, 885 (2004). In State v. Skinner, the sentence following the one quoted in defendant\u2019s brief is: \u201cthe defendant moved to dismiss the assault charge on this ground at the close of the State\u2019s evidence and renewed his motion at the close of all the evidence.\u201d Id. (emphasis added). \u201c[0]n this ground\u201d is obviously referring to the \u201cvariance between the indictment and the proof\u2019 presented at trial. Id. In the case sub judice, defendant\u2019s motion to dismiss after the close of the State\u2019s evidence was not based upon the indictment. Instead, as to the charge for possession of a firearm by a felon, defense counsel argued that the State\u2019s evidence of defendant\u2019s prior felony conviction was insufficient. Over approximately a one page argument of the transcript, defendant\u2019s argument regarding this conviction was:\nAt this point, what I would ask The Court to consider the firearm by a felon charge, Your Honor. At this point, the only evidence before The Court is Ms. Pharr\u2019s testimony from the probation file that he was charged with assault with a deadly weapon inflicting serious injury. There is no substantiating court documentation from the clerk\u2019s office, the A.O.C., the Department of Corrections, anything of that nature, just her statement blankly, not even clarifying what level or what type of charge it is, just that he was placed on probation for it.\nIn 15(a) 1340.14, Your Honor, that\u2019s the prior record level sentencing section of the North Carolina General Statutes. Subsection (e), or excuse me, subsection 7(e), states that and discusses \u2014 or subsection (f), section (f), excuse me, proof of prior convictions. And it specifies that the methods of proving prior convictions, stipulation of the parties, an original copy of the court record of the prior conviction, court records maintained by a division of criminal information, the Department of Motor Vehicles or the Administrative Office of the Court. There\u2019s a catchall provision at the end, and I\u2019ll simply say at this point that that type of documentation is not before The Court. It\u2019s just a statement from a probation officer as to the underlying charge that he was placed on probation for.\nI would say, Your Honor, that that is not sufficient to go forward on that case at this point, and ask you to dismiss that charge. I\u2019ll ask you to dismiss all the charges without any further argument, and ask you to dismiss that charge based on that argument, Your Honor.\nAt the close of all of the evidence defendant stated,\n... At the close of all the evidence, Your Honor, I would renew my motions to dismiss, again, as far as the murder, robbery and discharging a weapon charge, based on the insufficiency of the evidence. And as far as the firearm by a felon charge, again, my recollection is \u2014 my recollection, I have it in my notes that Ms. Pharr mentioned that it was a felony charge. I do not wish to be heard any further, Your Honor.\nAs defendant failed to argue a variance between his indictment and the evidence presented at trial or even to argue generally the sufficiency of the evidence regarding the type of firearm or weapon possessed to the trial court, he has waived this issue for appeal. See N.C.R. App. P. 10(b)(1) (\u201cIn order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.\u201d); State v. Tellez, - N.C. App. -, \u2014, 684 S.E.2d 733, 736 (2009) (\u201cIt is well-established that where a theory argued on appeal was not raised before the trial court, the law does not permit parties to swap horses between courts in order to get a better mount in the appellate courts.\u201d (citations and quotation marks omitted)); see also State v. Baldwin, 117 N.C. App. 713, 717, 453 S.E.2d 193, 195 (\u201cDefendant moved to dismiss the habitual felon charge based upon double jeopardy and not based upon a variance between the indictment and proof. Defendant waived his right to raise this issue by failing to raise the issue at trial. N.C.R. App. P. 10(b)(1). We therefore decline to address the issue.\u201d), cert. denied, 341 N.C. 653, 462 S.E.2d 518 (1995). This argument is overruled.\nV. Evidentiary Issues\nDefendant\u2019s next five arguments concern evidence that the trial court admitted about him through various witnesses.\nA. Montrell Archie\u2019s Testimony\nDefendant first directs our attention to Mr. Archie\u2019s testimony:\nQ. Okay. While you and Martavious Curry were becoming friends, what type of activities did you all participate in? And I\u2019m talking about such as playing cards, going to the movies, generally, what types of things did you all do together to become friends?\nA. We just hung out. You know what I\u2019m saying? Just hang out, sell drugs.\nMR. ANTHONY: Objection.\nTHE COURT: Overruled.\nMR. YOUNG: I did not hear The Court\u2019s ruling.\nTHE COURT: Overruled.\nMR. YOUNG: Okay.\nQ. You hung out and what?\nA. We basically just hung out, smoked weed and sold drugs.\nWe first note that defendant\u2019s counsel objected after the witness had answered the question, and he failed to make a motion to strike; thus, defendant waived this objection. See State v. Burgin, 313 N.C. 404, 409, 329 S.E.2d 653, 657 (1985) (\u201cThe one objection made was lodged after the witness responded to the question. Defendant made no motion to strike the answer, and therefore waived the objection.\u201d (citations omitted)). Furthermore, when the State repeated the question, defendant failed to object to either the question or the answer; this too would waive defendant\u2019s previous objection. State v. Wilson, 313 N.C. 516, 532, 330 S.E.2d 450, 461 (1985) (\u201cWhere evidence is admitted without objection, the benefit of a prior objection to the same or similar evidence is lost, and the defendant is deemed to have waived his right to assign as error the prior admission of the evidence.\u201d (citations omitted)). Lastly, although defendant\u2019s objections have been waived, we note that defendant raised plain error in his assignment of error but failed to argue it in his brief. See N.C.R. App. P. 10(c)(4) (In order to preserve an argument pursuant to plain error defendant must \u201cspecifically and distinctly\u201d argue it.); N.C.R. App. P. 28(b)(6) (\u201cAssignments of error not set out in the appellant\u2019s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.\u201d). This argument is overruled.\nB. Probation Officer Lecia Pharr\u2019s Testimony\nDefendant next contends that the trial court erred in admitting the testimony of probation officer Lecia Pharr who testified that defendant had been on probation. Defendant specifically argues that Ms. Pharr was erroneously allowed to testify regarding the following facts:\n1) defendant was placed on probation in October 2005 for a criminal conviction; 2) defendant was on probation during 2005-06; 3) defendant was actively supervised by the Gaston County probation department and a probation officer in the summer and fall of 2006; and 4) defendant was on probation on December 6, 2006 at the time of the charged offense.\nBefore trial began, defendant filed a \u201cmotion in limine to prohibit testimony regarding defendant being on probation and previously being incarcerated[.]\u201d (Original in all caps.) Defendant argued that \u201c[a]dmission of such testimony would violate Evidence rules 404(b), 608, 609 and 403.\u201d Defendant argues in his brief that \u201cthe Trial Court denied defendant\u2019s objection\u201d as to Ms. Pharr\u2019s testimony after voir dire. However, defendant\u2019s characterization of the trial court\u2019s action is not accurate.\nOn the day defendant\u2019s ca \u25a0 as called for trial, the trial court stated, \u201cAnd we had discussed bambers that the Defendant had a motion in limine, that I think we reached the agreement that at such time that if the State may be offering that evidence that the district attorney will let me know, and I\u2019ll hear from Mr. Anthony.\u201d When the State announced its next witness was Ms. Pharr, the trial court sent the jury out and allowed voir dire examination. Defendant objected to any testimony which was \u201cout of the scope of Judge Bridges\u2019 earlier ruling. He was very specific and Mr. Young\u2019s request was very specific at that point, for address, phone number and appointments he kept. That was the three things we addressed at the earlier hearing.\u201d The trial court did not \u201cdeny\u201d defendant\u2019s objection, but sustained it in part and overruled it in part. The trial court specifically limited Ms. Pharr\u2019s testimony stating,\nI\u2019ll allow Ms. Pharr to testify what her job is. I don\u2019t want to get into the details of the job or the fact that she\u2019s a supervisor, a supervising probation officer. I\u2019ll allow her to testify to the conviction and the date of the conviction, which I heard her say is October 18 of \u201905, assault with a deadly weapon inflicting serious injury, in Cleveland County. I\u2019ll allow her to testify that he gave an address of 309 Biggers Street. I[\u2019ll] allow her to testify that he reported on December 6th and December 7th.\nI\u2019ll allow her to testify to that [phone] number. Now, otherwise, I\u2019ll sustain the objection. I don\u2019t want her to get into probation, terms of probation, sentence, any alleged violations. I\u2019m going to sustain the objection to that.\nMs. Pharr then testified before the jury without any additional objection from defendant.\nWe first note that we have no record of any order or ruling from Judge Bridges in the record before this Court. We cannot speculate as to what was argued before Judge Bridges or what Judge Bridges\u2019 ruling was. Defendant\u2019s sole argument at trial concerned Judge Bridges\u2019 order, which was not provided to us in the record, so we cannot now say that the trial court erred in its determination as to Ms. Pharr\u2019s testimony. We also note that defendant never made any objection at trial during Ms. Pharr\u2019s testimony on the basis that it was beyond the scope permitted by Judge Bridges\u2019 earlier ruling. As to defendant\u2019s arguments on appeal pursuant to the North Carolina Rules of Evidence 401-404, these issues have been waived as they were not raised before or argued to the trial court. See Tellez at -, 684 S.E.2d at 736. Again, defendant failed to argue plain error, see N.C.R. App. P. 10(c)(4), 28(b)(6), and thus this argument is overruled.\nC. Agent John Kaiser\u2019s Testimony\nDefendant next contends that the trial court erred in allowing the testimony of Agent John Kaiser which showed \u201cthat defendant was incarcerated in the Gaston County Jail shortly before the shooting and on probation in Gaston County at the time of the shooting and the letters . . . documenting that incarceration \u2014 was irrelevant character evidence^]\u201d During voir dire of Agent Kaiser, defendant\u2019s attorney raised arguments regarding the 5th Amendment and expert opinions. However, on appeal defendant raises arguments regarding North Carolina Rules of Evidence 401-404. Again, we note that defendant has not properly preserved this issue for appeal by his failure to raise it before the trial court. See Tellez at -, 684 S.E.2d at 736. However, this time defendant has argued plain error.\nThe plain error rule is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where the error is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury\u2019s finding that the defendant was guilty.\nTherefore, if after thoroughly examining the record, we are not persuaded that the jury probably would have reached a different result had the alleged error not occurred, we will not award defendant a new trial.\nState v. Lofton, 193 N.C. App. 364, 368, 667 S.E.2d 317, 320-21 (2008) (citations and quotation marks omitted). In addition to the substantial evidence presented by the State as to the crimes charged, the fact that defendant was on probation at the time of the incident was also presented by Officer Pharr. State v. Whitley, 311 N.C. 656, 661, 319 S.E.2d 584, 588 (1984) (\u201cWhere evidence is admitted over objection, and the same evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost.\u201d (citations omitted)). Furthermore, even assuming arguendo Agent Kaiser did testify defendant was incarcerated and on probation and that the trial court erred in admitting evidence defendant had previously been incarcerated or on probation, we cannot now say that \u201cthe jury probably would have reached a different result had the alleged error not occurred[.]\u201d Lofton at 368, 667 S.E.2d at 321. This argument is overruled.\nD. Jailer Max Davis\u2019 Testimony\nDefendant also contends that the trial court erred in allowing Jailer Max Davis to testify that \u201c1) defendant was booked and incarcerated in the Gaston County Jail on October 17, 2006; 2) defendant was an inmate in the Jail for some time; 3) defendant was photographed and completed a visitor list while he was in the Jail.\u201d First, as to testimony that \u201cdefendant was booked and incarcerated in the Gaston County Jail on October 17, 2006[,]\u201d we find no such testimony. The relevant portions of the transcript which defendant cites in this argument do not include testimony by Jailer Davis that defendant was booked or incarcerated in October of 2006. The only time 17 October 2006 is mentioned is in regard to a jail visitor list and photograph of defendant. Defendant did not object to the visitor list and only objected to the photograph on the grounds of his \u201cearlier objection[.]\u201d However, defendant had not made an \u201cearlier objection\u201d regarding the 17 October 2006 photograph; he had objected on the prior day of the trial to entirely different photographs of defendant taken in December of 2006. Therefore, defendant has not properly preserved this issue for appeal.\nSecond, as to testimony that defendant was \u201can inmate in the Jail for some time[,]\u201d we again do not find such a statement in the cited testimony. There was testimony that defendant was an inmate, but this testimony was not objected to nor does it indicate the length of time defendant was an inmate. Again, this issue has not been properly preserved for appeal.\nThird, as to the 17 October 2006 photograph of defendant and the visitor list, as noted above, defendant failed to object to its admission beyond relying upon his \u201cearlier objection,\u201d but the only \u201cearlier objection\u201d related to entirely different photographs taken in December of 2006. Defendant also failed to object to the introduction of the visitor list, State\u2019s exhibit 39.2. Defendant had previously objected to the introduction of a computer screen shot of the visitor list, State\u2019s exhibit 41, and the trial court sustained this objection based upon a lack of foundation. On the next day of trial, when the State presented the actual visitor list, State\u2019s exhibit 39.2, defendant made no objection. This argument has also not been preserved for appeal. Furthermore, defendant failed to argue plain error in his brief, see N.C.R. App. P. 10(c)(4), 28(b)(6), and thus this argument is overruled.\nE. Officer Wes Love\nDefendant next contends that the trial court erred in admitting Officer Wes Love\u2019s \u201chearsay evidence LaToya McSwain identified defendant\u2019s photograph in a pre-trial photo lineup identification procedure into evidence at trial[.]\u201d As defendant failed to object at trial, we review for plain error. As noted above, even assuming arguendo that the trial court erroneously allowed this testimony regarding identification of defendant\u2019s photograph, in light of the State\u2019s evidence we do not conclude \u201cthat the jury probably would have reached a different result had the alleged error not occurred, we will not award defendant a new trial[,]\u201d Lofton at 368, 667 S.E.2d at 321, particularly in light of the fact that Ms. McSwain also made an in-court identification of defendant as the individual who shot an SK[S] long gun into the house. This argument is overruled.\nVI. Insufficient Evidence\nLastly, defendant argues the trial court erroneously denied his motion to dismiss as to his robbery and murder convictions. The jury convicted defendant of murder based on felony murder with the predicate felony being robbery with a dangerous weapon under N.C. Gen. Stat. \u00a7 14-87.\nThe standard of review for a trial court\u2019s denial of a motion to dismiss for insufficient evidence is well-settled:\nEvidence is sufficient to sustain a conviction when, viewed in the light most favorable to the State and giving the State every reasonable inference therefrom, there is substantial evidence to support a jury finding of each essential element of the offense charged, and of defendant\u2019s being the perpetrator of such offense.\nEvidence is substantial if it is relevant and adequate to convince a reasonable mind to accept a conclusion. In considering a motion to dismiss, the trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness\u2019 credibility. Evidence is not substantial if it is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, and the motion to dismiss should be allowed even though the suspicion so aroused by the evidence is strong. This Court reviews the denial of a motion to dismiss for insufficient evidence de novo.\nIf substantial evidence, whether direct, circumstantial, or both, supports a finding that the offense charged has been committed and that the defendant committed it, the motion to dismiss should be denied and the case goes to the jury.\nState v. Wilkerson, - N.C. App. -, \u2014, 675 S.E.2d 678, 680 (2009) (citations and quotation marks omitted).\nA. Robbery with a Dangerous Weapon\nDefendant argues that the \u201cindictment in the robbery case alleged defendant took a \u2018handgun\u2019 and McSwain\u2019s \u2018pocketbook\u2019 from the presence, person, and residence of Petty and McSwain\u201d but that \u201c[a]t trial, there was not a scintilla of evidence defendant himself took a handgun and all the evidence showed any such taking was done by Archie.\u201d Defendant also argues that the evidence did not show how Ms. McSwain\u2019s pocketbook ended up with its \u201ccontents \u2018spilled out\u2019 under a[n] old \u2018door\u2019 in the carport of the nearby vacant house[.]\u201d Essentially, defendant argues that there was no direct evidence that he actually took and carried away the pocketbook or gun from the person or presence of Ms. McSwain or Mr. Petty. However, direct evidence of defendant\u2019s taking the gun or pocketbook was not required. See State v. Salters, 137 N.C. App. 553, 557, 528 S.E.2d 386, 390 (\u201c[J]urors may rely on circumstantial evidence to the same degree as they rely on direct evidence. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. Rather, the law requires only that the jury shall be fully satisfied of the truth of the charge.\u201d (citations and quotation marks omitted)), cert. denied, 352 N.C. 361, 544 S.E.2d 556 (2000). Even if we assume arguendo that defendant did not personally remove either the gun or the pocketbook from Mr. Petty\u2019s home or carry them away, the State presented substantial evidence that defendant made overt acts in an attempt to rob Mr. Petty by use of a firearm and that lives were endangered; indeed, Mr. Petty\u2019s life was lost.\n\u201cThe elements of robbery with a dangerous weapon are: (1) an unlawful taking or an attempt to take personal property from the person or in the presence of another; (2) by use or threatened use of a firearm or other dangerous weapon; (3) whereby the life of a person is endangered or threatened.\u201d State v. Cole, - N.C. App. -, -, 681 S.E.2d 423, 427 (2009) (emphasis added) (citation and quotation marks omitted). The crime of robbery with a dangerous weapon, as defined by N.C. Gen. Stat. \u00a7 14-87, includes within the definition of the crime an attempt to commit the crime; that is, the State may present evidence that defendant either completed the crime or that he attempted the crime, but either way the evidence would be sufficient that defendant may be found guilty of robbery with a dangerous weapon. See N.C. Gen. Stat. \u00a7 14-87 (2005).\nOur Supreme Court has described the law regarding an attempt to commit robbery with a dangerous weapon:\nThe elements of an attempt to commit any crime are: (1) the intent to commit the substantive offense, and (2) an overt act done for that purpose which goes beyond mere preparation, but (3) falls short of the completed offense. An attempted robbery with a dangerous weapon occurs when a person, with the specific intent to unlawfully deprive another of personal property by endangering or threatening his life with a dangerous weapon, does some overt act calculated to bring about this result.\nIn State v. Price, 280 N.C. 154, 184 S.E.2d 866 (1971), this Court summarized the requirement of an overt act as follows:\nIn order to constitute an attempt, it is essential that the defendant, with the intent of committing the particular crime, should have done some overt act adapted to, approximating, and which in the ordinary and likely course of things would result in the commission thereof. Therefore, the act must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation. It must not be merely preparatory. In other words, while it need not be the last proximate act to the consummation of the offense attempted to be perpetrated, it must approach sufficiently near to it to stand either as the first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made.\nState v. Miller, 344 N.C. 658, 667-68, 477 S.E.2d 915, 921 (1996) (citations and quotation marks omitted).\nIn State v. McDowell, 329 N.C. 363, 407 S.E.2d 200 (1991), the Supreme Court determined \u201cthat the trial court erred in denying defendant\u2019s motion to dismiss the charge of attempted robbery with a dangerous weapon,\u201d id. at 368, 407 S.E.2d at 203, where the evidence failed to show that the defendant had actually intended to rob anyone and that the victim\u2019s \u201cpurse was left undisturbed on the front seat of her car, which tend[ed] to contradict the State\u2019s theory that defendant killed Mrs. Gillie in an unsuccessful attempt to take her purse.\u201d Id. at 390, 407 S.E.2d at 215.\nHowever, the facts here are more similar to those in Miller, where the court noted evidence that the \u201cdefendant clearly intended to rob [the victim] and took substantial overt actions toward that end.\u201d Miller at 668, 477 S.E.2d at 922. Even though after shooting the victim, the defendant in Miller \u201cbecame scared and ran away\u201d without taking any property from the victim, the Court noted that \u201c[t]he sneak approach to the victim with the pistol drawn and the first attempt to shoot were each more than enough to constitute an overt act toward armed robbery, not to mention the two fatal shots fired thereafter.\u201d Id. at 668-69, 477 S.E.2d at 922 (citation omitted).\nHere, there was substantial evidence that defendant and Mr. Archie planned to rob Mr. Petty, obtained a weapon, formulated a plan to rob Mr. Petty, and went to Mr. Petty\u2019s house; defendant entered the house, which was occupied by both Ms. McSwain and Mr. Petty, and began shooting. Although the circumstantial evidence would suggest that defendant did actually take Ms. McSwain\u2019s pocketbook and remove it from the house, the crime of robbery with a dangerous weapon was complete even before any actual removal of the pocketboolc. See N.C. Gen. Stat. \u00a7 14-87.\nDefendant also argues that \u201cthere was insufficient evidence of taking from Petty\u2019s or McSwain\u2019s person or presence.\u201d However,\n[t]he word \u2018presence\u2019 . . . must be interpreted broadly and with due consideration to the main element of the crime-intimidation or force by the use or threatened use of firearms. \u2018Presence\u2019 here means a possession or control by a person so immediate that force or intimidation is essential to the taking of the property. And if the force or intimidation by the use of firearms for the purpose of taking personal property has been used and caused the victim in possession or control to flee the premises and this is followed by the taking of the property in a continuous course of conduct, the taking is from the \u2018presence\u2019 of the victim.\nState v. Tuck, 173 N.C. App. 61, 67, 618 S.E.2d 265, 270 (2005) (citations omitted).\nThe evidence here showed that both Ms. McSwain and Mr. Petty were present in the home when defendant arrived and began shooting. Ms. McSwain fled the residence, while Mr. Petty was shot and killed. Defendant had gone into the residence with a firearm with the stated intent of robbing Mr. Petty because he needed some money. He used \u201cforce or intimidation[,]\u201d id., by shooting into the residence in furtherance of his plan to rob someone for money. As noted above, even if we assume that defendant did not actually remove the pocketbook or gun from the persons of the two victims, the crime of robbery with a dangerous weapon was complete before the removal occurred.\nDefendant last argues as to robbery with a dangerous weapon that \u201cthere was insufficient evidence the pocketbook was \u2018carried away.\u2019 Thus, there was no evidence defendant transported the pocketbook from McSwain\u2019s person or presence to the nearby carport on December 6.\u201d However, as explained above, the crime of robbery with a dangerous weapon was complete upon defendant\u2019s attempt, see N.C. Gen. Stat. \u00a7 14-87, even if he did not \u201ccarry away\u201d the pocketbook or gun from the home, although we note that the circumstantial evidence would certainly support an inference that defendant removed the pocketbook from the residence and dumped it nearby after the shooting. We conclude there was sufficient evidence of robbery with a dangerous weapon for the trial court to deny defendant\u2019s motion to dismiss as the State presented testimony regarding all of the essential elements of the crime of robbery with a dangerous weapon. See Cole at -, 681 S.E.2d at 427; Wilkerson at -, 675 S.E.2d at 680.\nB. Murder\nDefendant\u2019s last argument is that\neven if there [wa]s sufficient evidence of armed robbery, there is insufficient evidence of first-degree murder because there is insufficient evidence of the essential element defendant killed Petty with a deadly weapon. There is simply no evidence defendant was the perpetrator of Petty\u2019s shooting. Thus, there was no direct, eyewitness, or forensic evidence defendant shot Petty.\nDefendant's argument assumes that \u201cdirect, eyewitness, or forensic evidence\u201d is required and overlooks the numerous cases in which our courts have held that circumstantial evidence is adequate to support a conviction of murder. See, e.g., State v. Franklin, 327 N.C. 162, 172, 393 S.E.2d 781, 787-88 (1990) (\u201cWhile we concede that the evidence in this case is primarily circumstantial, we cannot say that the State\u2019s evidence is so lacking as to any material element that this Court must conclude, as a matter of law, that no reasonable juror could have found defendant guilty beyond a reasonable doubt.\u201d). Circumstantial evidence is frequently adequate to support a murder conviction, depending upon the facts of the individual case and the type of circumstantial evidence presented. See, e.g., id.\nWhen the evidence is circumstantial, the trial court\u2019s function is to test whether a reasonable inference of the defendant\u2019s guilt of the crime charged may be drawn from the evidence. See also State v. Rowland, 263 N.C. 353, 358, 139 S.E.2d 661, 665 (1965) (\u201c[I]t 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.\u201d). The Court views the evidence in the light most favorable to the State.\nState v. Lowry, - N.C. App. -, -, 679 S.E.2d 865, 870 (citations, quotation marks, and brackets omitted), cert. denied, 363 N.C. 660, 686 S.E.2d 899 (2009). Circumstantial evidence of guilt is sometimes classified into\nseveral rather broad categories. Although the language is by no means consistent, courts often speak in terms of proof of motive, opportunity, capability and identity, all of which are merely different ways to show that a particular person committed a particular crime. In most cases these factors are not essential elements of the crime, but instead are circumstances which are relevant to identify an accused as the perpetrator of a crime.\nId. at -, 679 S.E.2d 870-71. The court examined several cases involving circumstantial evidence and concluded that where the State has presented evidence of \u201cboth motive and opportunity[,]\u201d the evidence will normally be sufficient to survive a motion to dismiss. Id. at , 679 S.E.2d at 873.\nHere, the evidence \u201cviewed in the light most favorable to the State,\u201d Wilkerson at -, 675 S.E.2d at 680, shows that defendant had the motive, the opportunity, and the capability to kill Mr. Petty. Defendant entered Mr. Petty\u2019s home, shooting repeatedly, seeking Mr. Petty in an attempt to rob him, and immediately after defendant fired the weapon, Mr. Archie found Mr. Petty, dead or dying from gunshot wounds. The State presented very substantial evidence of defendant\u2019s motive to rob Mr. Petty, the actual robbery, defendant\u2019s opportunity to kill Mr. Petty, and defendant\u2019s capability to kill Mr. Petty by shooting him with the weapon defendant procured for the very purpose of robbing Mr. Petty. It is entirely unnecessary that the State present eyewitness testimony that defendant shot Mr. Petty, as suggested by defendant\u2019s argument. See, e.g., Franklin, at 170-74, 393 S.E.2d at 786-89. The trial court did not err in denying defendant\u2019s motion to dismiss for insufficiency of the evidence. This argument is overruled.\nVII. Conclusion\nFor the foregoing reasons, we arrest judgment on defendant\u2019s conviction for robbery with a dangerous weapon, remand defendant\u2019s judgment for discharging a weapon into occupied property for correction of a clerical error, and find no prejudicial error as to defendant\u2019s other arguments.\nJUDGMENT ARRESTED, REMANDED FOR CORRECTION OF CLERICAL ERROR, NO PREJUDICIAL ERROR.\nJudge STEPHENS concurs.\nJudge BEASLEY concurs with separate opinion.\n. Agent Kaiser did not specifically testify that defendant had been incarcerated in the Gaston County Jail prior to the shooting. In addition, the fact that defendant had been on probation would not necessarily mean that he had been previously incarcerated, as he could have received a suspended sentence and been placed on probation without ever having been incarcerated. Defendant\u2019s argument is apparently based upon the fact that Agent Kaiser identified letters which were addressed to defendant at the Gaston County jail, although the dates of these letters are not in the record before us.",
        "type": "majority",
        "author": "STROUD, Judge."
      },
      {
        "text": "BEASLEY, Judge\nconcurring in a separate opinion.\nWhile I concur with the result in the majority opinion, I am compelled to write separately on the issues below.\nDefendant did not preserve his objection to Mr. Archie\u2019s testimony and requested that we review his argument applying the plain error standard. However, Defendant did not specifically argue this. I agree with the majority that N.C. R. App. P. 28 (b)(6) dictates our actions on this issue and that Defendant\u2019s argument is deemed abandoned. As any further analysis of Defendant\u2019s contentions is unnecessary, my analysis on this issue would cease here.\nIt is worth noting however, that the Defendant argues that the trial court committed prejudicial error by admitting Mr. Archie\u2019s testimony about Mr. Archie and Defendant\u2019s relationship as noted by the dialogue set forth in the majority opinion.\nQ. Okay. While you and Martavious Curry were becoming friends, what type of activities did you all participate in? And I\u2019m talking about such as playing cards, going to the movies, generally, what types of things did you all do together to become friends?\nA. We just hung out. You know what I\u2019m saying? Just hang out, sell drugs.\nMR. ANTHONY: Objection.\nTHE COURT: Overruled\nThe majority opinion correctly states this series of questioning. However, it was not the question to which Defendant objected, but the answer. As it was unlikely that Defendant\u2019s counsel anticipated that Mr. Archie would testify that he and Defendant sold drugs, the only logical opportunity for Defendant\u2019s counsel to object was after the witness had answered the question. See State v. Goss, 293 N.C. 147, 155, 235 S.E.2d 844, 850 (1977) (\u201cWhere inadmissibility of testimony is not indicated by the question, but appears only in the witness\u2019 response, the proper form of objection is a motion to strike the answer, or the objectionable part of it, made as soon as the inadmissibility is evident\u201d).\nHowever, I agree with the majority that pursuant to well-grounded law in North Carolina, Defendant waived this issue. Defendant\u2019s counsel asked the trial court to repeat its ruling, whereby the prosecutor again asked Mr. Archie about the manner by which he and Defendant established a relationship, Mr. Archie essentially repeated his answer that he and the Defendant \u201chung out and sell drugs\u201d and the trial court repeated its ruling, overruling Defendant\u2019s objection. Defendant\u2019s counsel did not move to strike, nor renew his objection, therefore this issue was not preserved for our review. Id.; State v. Alford, 339 N.C. 562, 570, 453 S.E.2d 512, 516 (1995). Further, any error that may have resulted from the unfavorable testimony provided by Mr. Archie was harmless.",
        "type": "concurrence",
        "author": "BEASLEY, Judge"
      }
    ],
    "attorneys": [
      "Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Ronald M. Marquette, for the State.",
      "Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. MARTAVIOUS SANTONIO CURRY, Defendant\nNo. COA09-547\n(Filed 20 April 2010)\n1. Homicide\u2014 felony murder \u2014 merger\u2014conviction arrested\u2014 sentence imposed not prejudicial\nThe trial court erred by not merging Defendant\u2019s robbery conviction into his conviction for first-degree murder and defendant\u2019s robbery conviction was arrested. However, defendant was not prejudiced as the felony upon which defendant\u2019s murder conviction was based was the robbery and the trial court consolidated the two convictions and imposed a life sentence, which was required for the murder conviction.\n2. Sentencing\u2014 discharging a firearm into an occupied dwelling \u2014 clerical no error\nThe trial court did not err in sentencing defendant for a Class D rather than a Class E felony for his conviction of discharging a firearm into occupied property. The terms \u201cdwelling\u201d and \u201cresidence\u201d are synonymous in the context of this case and the indictment and the jury instructions were sufficient to charge defendant with a Class D felony under N.C.G.S. \u00a7 14-34.1(b). Defendant\u2019s judgment was remanded for correction of a clerical error.\n3. Appeal and Error\u2014 preservation of issues \u2014 failure to raise issue of fatal variance at trial\nDefendant failed to argue a variance between his indictment for possession of a firearm and the evidence presented at trial or even to argue generally the sufficiency of the evidence regarding the type of firearm or weapon possessed to the trial court. Thus, he waived this issue for appeal.\n4. Appeal and Error\u2014 preservation of issues \u2014 failure to object and move to strike\nDefendant\u2019s argument that the trial court erred in admitting certain testimony into evidence was overruled. Defendant waived his objection to certain testimony by objecting to the testimony only after it was given and failing to make a motion to strike.\n5. Appeal and Error\u2014 preservation of issues \u2014 failure to include order in record on appal \u2014 failure to object\nDefendant\u2019s contention that the trial court erred in admitting testimony that defendant had been on probation was overruled where the sole argument on appeal was based on an alleged order by the trial court which was not included in the record on appeal. Defendant also failed to object to the testimony at trial on the basis that it was beyond the scope permitted by the trial court\u2019s earlier ruling.\n6. Evidence\u2014 prior crimes or bad acts \u2014 not plain error\nThe trial court did not commit plain error in allowing into evidence testimony that defendant had been incarcerated shortly before the shooting and was on probation because the State presented substantial evidence of the crimes charged in this case and even if the testimony was erroneously admitted, defendant failed to show that the jury probably would have reached a different result had the error not occurred.\n7. Appear and Error\u2014 preservation of issues \u2014 failure to object to evidence at trial\nDefendant failed to timely object to the admission of certain evidence at trial and failed to argue plain error on appeal. Defendant thus failed to preserve for appellate review issues concerning the admission of evidence.\n8. Evidence\u2014 hearsay \u2014 not plain error\nEven assuming arguendo that the trial court erred in allowing into evidence hearsay testimony regarding defendant\u2019s pre-trial identification in a photographic lineup, in light of the State\u2019s evidence the jury probably would not have reached a different result had the error not occurred.\n9. Homicide\u2014 felony murder \u2014 sufficient evidence \u2014 motion to dismiss properly granted\nThe trial court did not err by denying defendant\u2019s motion to dismiss robbery and murder charges as the State presented sufficient evidence of each element of the crimes.\nJudge BEASLEY concurs with separate opinion.\nAppeal by defendant from judgments entered on or about 29 May 2008 by Judge David S. Cayer in Superior Court, Cleveland County. Heard in the Court of Appeals 15 October 2009.\nAttorney General Roy A. Cooper, III, by Special Deputy Attorney General Ronald M. Marquette, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant."
  },
  "file_name": "0375-01",
  "first_page_order": 403,
  "last_page_order": 426
}
