{ "id": 4177405, "name": "STATE OF NORTH CAROLINA v. NATHAN DARNELL WILLIAMSON", "name_abbreviation": "State v. Williamson", "decision_date": "2010-09-07", "docket_number": "No. COA09-1475", "first_page": "599", "last_page": "628", "citations": [ { "type": "official", "cite": "206 N.C. App. 599" } ], "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": "571 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "244", "parenthetical": "abuse of discretion" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 770", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251637 ], "year": 2002, "pin_cites": [ { "page": "773", "parenthetical": "abuse of discretion" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0770-01" ] }, { "cite": "291 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "591", "parenthetical": "\"whether the findings of fact are supported by evidence, whether the findings of fact support the conclusions of law, and whether the conclusions of law support the order entered by the trial court\"" } ], "opinion_index": 0 }, { "cite": "305 N.C. 712", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573095 ], "year": 1982, "pin_cites": [ { "page": "720", "parenthetical": "\"whether the findings of fact are supported by evidence, whether the findings of fact support the conclusions of law, and whether the conclusions of law support the order entered by the trial court\"" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0712-01" ] }, { "cite": "598 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "128", "parenthetical": "internal quotations and citation omitted" } ], "opinion_index": 0 }, { "cite": "358 N.C. 473", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986601 ], "year": 2004, "pin_cites": [ { "page": "477", "parenthetical": "internal quotations and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0473-01" ] }, { "cite": "91 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1956, "pin_cites": [ { "page": "682" }, { "parenthetical": "internal quotations and citation omitted" } ], "opinion_index": 0 }, { "cite": "243 N.C. 525", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626028 ], "year": 1956, "pin_cites": [ { "page": "536" } ], "opinion_index": 0, "case_paths": [ "/nc/243/0525-01" ] }, { "cite": "499 S.E.2d 761", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1998, "pin_cites": [ { "page": "762" }, { "page": "762" }, { "page": "763" } ], "opinion_index": 0 }, { "cite": "348 N.C. 254", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659696 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/348/0254-01" ] }, { "cite": "343 S.E.2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "897" } ], "opinion_index": 0 }, { "cite": "317 N.C. 119", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4774636 ], "year": 1986, "pin_cites": [ { "page": "124" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0119-01" ] }, { "cite": "523 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "698" }, { "page": "698" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238218 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "14" }, { "page": "14" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0001-01" ] }, { "cite": "691 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "4" } ], "opinion_index": 0 }, { "cite": "364 N.C. 29", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4153073 ], "year": 2010, "pin_cites": [ { "page": "35" } ], "opinion_index": 0, "case_paths": [ "/nc/364/0029-01" ] }, { "cite": "360 S.E.2d 660", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1987, "pin_cites": [ { "page": "664", "parenthetical": "superceded by statute on other grounds, as stated in State v. Defoe, 364 N.C. 29, 35, 691 S.E.2d 1, 4 (2010)" }, { "page": "664" }, { "page": "664" }, { "page": "664" } ], "opinion_index": 0 }, { "cite": "320 N.C. 705", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724186 ], "weight": 4, "year": 1987, "pin_cites": [ { "page": "712-13", "parenthetical": "superceded by statute on other grounds, as stated in State v. Defoe, 364 N.C. 29, 35, 691 S.E.2d 1, 4 (2010)" }, { "page": "713" }, { "page": "713" }, { "page": "712-13" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0705-01" ] }, { "cite": "429 S.E.2d 416", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "423" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 155", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525102 ], "year": 1993, "pin_cites": [ { "page": "165" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0155-01" ] }, { "cite": "532 S.E.2d 240", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "245", "parenthetical": "quoting State v. Harding, 110 N.C. App. 155, 165, 429 S.E.2d 416, 423 (1993)" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 620", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11081014 ], "year": 2000, "pin_cites": [ { "page": "627", "parenthetical": "quoting State v. Harding, 110 N.C. App. 155, 165, 429 S.E.2d 416, 423 (1993)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0620-01" ] }, { "cite": "324 S.E.2d 841", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "844" } ], "opinion_index": 0 }, { "cite": "312 N.C. 779", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750808 ], "year": 1985, "pin_cites": [ { "page": "782" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0779-01" ] }, { "cite": "498 U.S. 1092", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6564193, 6564257, 6564033, 6564067, 6564101, 6564166, 6564041, 6564142, 6564239, 6564081, 6564052, 6564278, 6564120, 6564026, 6564220 ], "year": 1991, "opinion_index": 1, "case_paths": [ "/us/498/1092-11", "/us/498/1092-14", "/us/498/1092-02", "/us/498/1092-05", "/us/498/1092-07", "/us/498/1092-10", "/us/498/1092-03", "/us/498/1092-09", "/us/498/1092-13", "/us/498/1092-06", "/us/498/1092-04", "/us/498/1092-15", "/us/498/1092-08", "/us/498/1092-01", "/us/498/1092-12" ] }, { "cite": "488 U.S. 830", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1493856, 1495458, 1494850, 1493316, 1493189, 1494437, 1493253, 1495015, 1495206, 1493323, 1494030, 1493137, 1494577, 1493629 ], "year": 1988, "opinion_index": 1, "case_paths": [ "/us/488/0830-04", "/us/488/0830-06", "/us/488/0830-13", "/us/488/0830-03", "/us/488/0830-11", "/us/488/0830-01", "/us/488/0830-07", "/us/488/0830-02", "/us/488/0830-09", "/us/488/0830-05", "/us/488/0830-12", "/us/488/0830-14", "/us/488/0830-10", "/us/488/0830-08" ] }, { "cite": "628 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635606 ], "pin_cites": [ { "page": "745-46" } ], "opinion_index": 1, "case_paths": [ "/se2d/628/0735-01" ] }, { "cite": "351 N.C. 477", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155616, 1155584, 1155683, 1155722, 1155756 ], "year": 2000, "opinion_index": 1, "case_paths": [ "/nc/351/0477-03", "/nc/351/0477-02", "/nc/351/0477-04", "/nc/351/0477-01", "/nc/351/0477-05" ] }, { "cite": "651 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639560 ], "year": 2007, "pin_cites": [ { "page": "260" } ], "opinion_index": 1, "case_paths": [ "/se2d/651/0256-01" ] }, { "cite": "10 Ga. 511", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 574956 ], "year": 1851, "pin_cites": [ { "parenthetical": "setting forth essentially the same prerequisites but lacking the requirement that the newly discovered evidence be 'probably true'" } ], "opinion_index": 1, "case_paths": [ "/ga/10/0511-01" ] }, { "cite": "320 S.E.2d 670", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "675", "parenthetical": "\"Findings of fact made by a court in its order granting or denying a motion for appropriate relief are binding on appeal if supported by evidence in the record.\"" } ], "opinion_index": 1 }, { "cite": "312 N.C. 34", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753586 ], "year": 1984, "pin_cites": [ { "page": "40", "parenthetical": "\"Findings of fact made by a court in its order granting or denying a motion for appropriate relief are binding on appeal if supported by evidence in the record.\"" } ], "opinion_index": 1, "case_paths": [ "/nc/312/0034-01" ] }, { "cite": "297 S.E.2d 563", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "573" } ], "opinion_index": 1 }, { "cite": "307 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561161 ], "year": 1982, "pin_cites": [ { "page": "168" } ], "opinion_index": 1, "case_paths": [ "/nc/307/0152-01" ] }, { "cite": "373 U.S. 83", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716714 ], "weight": 6, "year": 1963, "pin_cites": [ { "page": "87" }, { "page": "218" }, { "page": "88" }, { "page": "219" } ], "opinion_index": 1, "case_paths": [ "/us/373/0083-01" ] }, { "cite": "112 L. Ed. 2d 1062", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1991, "opinion_index": 1 }, { "cite": "394 S.E.2d 158", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "162", "parenthetical": "\"[T]he purpose of discovery under our statutes is to protect the defendant from unfair surprise[.]\"" } ], "opinion_index": 1 }, { "cite": "327 N.C. 194", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499305 ], "year": 1990, "pin_cites": [ { "page": "202", "parenthetical": "\"[T]he purpose of discovery under our statutes is to protect the defendant from unfair surprise[.]\"" } ], "opinion_index": 1, "case_paths": [ "/nc/327/0194-01" ] }, { "cite": "315 S.E.2d 693", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 1 }, { "cite": "310 N.C. 627", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2402665, 2396169, 2398380, 2395483, 2403644 ], "year": 1984, "opinion_index": 1, "case_paths": [ "/nc/310/0627-03", "/nc/310/0627-04", "/nc/310/0627-01", "/nc/310/0627-02", "/nc/310/0627-05" ] }, { "cite": "308 S.E.2d 913", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "917", "parenthetical": "defendant failed to show new evidence was not merely cumulative, different result would be reached, and due diligence" } ], "opinion_index": 1 }, { "cite": "65 N.C. App. 286", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523478 ], "year": 1983, "pin_cites": [ { "page": "293", "parenthetical": "defendant failed to show new evidence was not merely cumulative, different result would be reached, and due diligence" } ], "opinion_index": 1, "case_paths": [ "/nc-app/65/0286-01" ] }, { "cite": "321 S.E.2d 900", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 1 }, { "cite": "312 N.C. 85", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4757024, 4751561, 4757552, 4757266, 4755539 ], "year": 1984, "opinion_index": 1, "case_paths": [ "/nc/312/0085-02", "/nc/312/0085-05", "/nc/312/0085-03", "/nc/312/0085-04", "/nc/312/0085-01" ] }, { "cite": "310 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "113", "parenthetical": "defendant failed to show a different result would be reached, new evidence tended only to contradict a former witness, and due diligence" } ], "opinion_index": 1 }, { "cite": "65 N.C. App. 430", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524659 ], "year": 1983, "pin_cites": [ { "page": "447", "parenthetical": "defendant failed to show a different result would be reached, new evidence tended only to contradict a former witness, and due diligence" } ], "opinion_index": 1, "case_paths": [ "/nc-app/65/0430-01" ] }, { "cite": "229 S.E.2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "183", "parenthetical": "defendant failed to prove new evidence would not be merely cumulative, and due diligence" } ], "opinion_index": 1 }, { "cite": "291 N.C. 137", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557412 ], "year": 1976, "pin_cites": [ { "page": "144", "parenthetical": "defendant failed to prove new evidence would not be merely cumulative, and due diligence" } ], "opinion_index": 1, "case_paths": [ "/nc/291/0137-01" ] }, { "cite": "259 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "870", "parenthetical": "defendant failed to establish new evidence was material, competent, or relevant, that it was not merely corroborative, a different result would be reached, and. due diligence" } ], "opinion_index": 1 }, { "cite": "298 N.C. 765", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574094 ], "year": 1979, "pin_cites": [ { "page": "771", "parenthetical": "defendant failed to establish new evidence was material, competent, or relevant, that it was not merely corroborative, a different result would be reached, and. due diligence" } ], "opinion_index": 1, "case_paths": [ "/nc/298/0765-01" ] }, { "cite": "262 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "287" } ], "opinion_index": 1 }, { "cite": "299 N.C. 229", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574230 ], "year": 1980, "pin_cites": [ { "page": "244" } ], "opinion_index": 1, "case_paths": [ "/nc/299/0229-01" ] }, { "cite": "102 L. Ed. 2d 60", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1988, "opinion_index": 1 }, { "cite": "364 S.E.2d 332", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "336" } ], "opinion_index": 1 }, { "cite": "321 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2567183 ], "year": 1988, "pin_cites": [ { "page": "371" } ], "opinion_index": 1, "case_paths": [ "/nc/321/0364-01" ] }, { "cite": "248 S.E.2d 858", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1978, "pin_cites": [ { "page": "859" }, { "page": "859" }, { "page": "860" }, { "page": "861" }, { "page": "861" }, { "page": "861" } ], "opinion_index": 1 }, { "cite": "296 N.C. 75", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564637 ], "year": 1978, "opinion_index": 1, "case_paths": [ "/nc/296/0075-01" ] }, { "cite": "261 S.E.2d 839", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1980, "pin_cites": [ { "page": "840" }, { "page": "840" }, { "page": "841" }, { "page": "841" }, { "page": "841" }, { "page": "842" }, { "page": "843" } ], "opinion_index": 1 }, { "cite": "299 N.C. 319", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574426 ], "year": 1980, "opinion_index": 1, "case_paths": [ "/nc/299/0319-01" ] }, { "cite": "130 S.E.2d 333", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1963, "pin_cites": [ { "page": "334", "parenthetical": "no error in denying MAR when defendant failed to question a testifying witness regarding the evidence" }, { "page": "334" }, { "page": "334" }, { "page": "334", "parenthetical": "defendant established not one of seven factors" } ], "opinion_index": 1 }, { "cite": "259 N.C. 249", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559945 ], "weight": 3, "year": 1963, "pin_cites": [ { "page": "251", "parenthetical": "no error in denying MAR when defendant failed to question a testifying witness regarding the evidence" }, { "page": "250" }, { "page": "251" } ], "opinion_index": 1, "case_paths": [ "/nc/259/0249-01" ] }, { "cite": "335 S.E.2d 318", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 1 }, { "cite": "314 N.C. 546", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686530, 4697061, 4693228, 4693904, 4690324 ], "year": 1985, "opinion_index": 1, "case_paths": [ "/nc/314/0546-02", "/nc/314/0546-05", "/nc/314/0546-04", "/nc/314/0546-01", "/nc/314/0546-03" ] }, { "cite": "327 S.E.2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1985, "pin_cites": [ { "page": "906" }, { "page": "907" }, { "page": "906" }, { "page": "907" }, { "page": "906-07", "parenthetical": "defendant failed to establish new evidence was relevant, and due diligence" } ], "opinion_index": 1 }, { "cite": "74 N.C. App. 178", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523623 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "184" }, { "page": "185" } ], "opinion_index": 1, "case_paths": [ "/nc-app/74/0178-01" ] }, { "cite": "85 N.C. 258", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277513 ], "year": 1881, "pin_cites": [ { "page": "267" } ], "opinion_index": 1, "case_paths": [ "/nc/85/0258-01" ] }, { "cite": "77 L. Ed. 576", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1932, "opinion_index": 1 }, { "cite": "287 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 369581, 369678, 369615, 369593, 370174 ], "year": 1932, "opinion_index": 1, "case_paths": [ "/us/287/0668-03", "/us/287/0668-05", "/us/287/0668-01", "/us/287/0668-02", "/us/287/0668-04" ] }, { "cite": "166 S.E. 292", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1932, "pin_cites": [ { "page": "295" }, { "page": "295-96" } ], "opinion_index": 1 }, { "cite": "203 N.C. 316", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609830 ], "year": 1932, "pin_cites": [ { "page": "322" } ], "opinion_index": 1, "case_paths": [ "/nc/203/0316-01" ] }, { "cite": "166 L. Ed. 2d 378", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2006, "opinion_index": 1 }, { "cite": "549 U.S. 1000", "category": "reporters:federal", "reporter": "U.S.", "year": 2006, "opinion_index": 1 }, { "cite": "360 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3789392 ], "pin_cites": [ { "page": "415" } ], "opinion_index": 1, "case_paths": [ "/nc/360/0400-01" ] }, { "cite": "329 S.E.2d 399", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 1 }, { "cite": "313 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718277, 4723663, 4722611, 4724215, 4722937 ], "year": 1985, "opinion_index": 1, "case_paths": [ "/nc/313/0513-05", "/nc/313/0513-03", "/nc/313/0513-02", "/nc/313/0513-04", "/nc/313/0513-01" ] }, { "cite": "307 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "843", "parenthetical": "conflicting testimony" }, { "page": "843", "parenthetical": "defendant failed to show evidence was newly discovered, that it was not merely cumulative, that it was probably true, that a different result would be reached, and due diligence" } ], "opinion_index": 1 }, { "cite": "64 N.C. App. 485", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527086 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "492", "parenthetical": "conflicting testimony" }, { "page": "492" } ], "opinion_index": 1, "case_paths": [ "/nc-app/64/0485-01" ] }, { "cite": "315 S.E.2d 705", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 1 }, { "cite": "310 N.C. 745", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2404271, 2395058, 2392722, 2404084, 2392959 ], "year": 1984, "opinion_index": 1, "case_paths": [ "/nc/310/0745-04", "/nc/310/0745-03", "/nc/310/0745-01", "/nc/310/0745-05", "/nc/310/0745-02" ] }, { "cite": "311 S.E.2d 5", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "11" } ], "opinion_index": 1 }, { "cite": "66 N.C. App. 21", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522770 ], "pin_cites": [ { "page": "31" } ], "opinion_index": 1, "case_paths": [ "/nc-app/66/0021-01" ] }, { "cite": "334 S.E.2d 74", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "76", "parenthetical": "recanted statements" } ], "opinion_index": 1 }, { "cite": "76 N.C. App. 616", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527730 ], "year": 1985, "pin_cites": [ { "page": "618-19", "parenthetical": "recanted statements" } ], "opinion_index": 1, "case_paths": [ "/nc-app/76/0616-01" ] }, { "cite": "402 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 1 }, { "cite": "328 N.C. 96", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541896, 2540272, 2542224, 2537594, 2541503 ], "year": 1991, "opinion_index": 1, "case_paths": [ "/nc/328/0096-01", "/nc/328/0096-02", "/nc/328/0096-03", "/nc/328/0096-04", "/nc/328/0096-05" ] }, { "cite": "394 S.E.2d 670", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "674", "parenthetical": "conflicting testimony" }, { "page": "674", "parenthetical": "defendant failed to prove evidence was probably true, not merely cumulative, a different result would be reached, and due diligence" } ], "opinion_index": 1 }, { "cite": "100 N.C. App. 149", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526421 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "156", "parenthetical": "conflicting testimony" }, { "page": "156-57" } ], "opinion_index": 1, "case_paths": [ "/nc-app/100/0149-01" ] }, { "cite": "402 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "823", "parenthetical": "recanted confession" } ], "opinion_index": 1 }, { "cite": "328 N.C. 409", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541401 ], "year": 1991, "pin_cites": [ { "page": "435", "parenthetical": "recanted confession" } ], "opinion_index": 1, "case_paths": [ "/nc/328/0409-01" ] }, { "cite": "543 S.E.2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 1 }, { "cite": "186 N.C. App. 373", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8156879 ], "year": 2007, "pin_cites": [ { "page": "380" } ], "opinion_index": 1, "case_paths": [ "/nc-app/186/0373-01" ] }, { "cite": "312 S.E.2d 681", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "682", "parenthetical": "stating evidence gun was unloaded and inoperable \"tended to prove the absence of an element of the offense charged\"" } ], "opinion_index": 1 }, { "cite": "67 N.C. App. 134", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525811 ], "year": 1984, "pin_cites": [ { "page": "136", "parenthetical": "stating evidence gun was unloaded and inoperable \"tended to prove the absence of an element of the offense charged\"" } ], "opinion_index": 1, "case_paths": [ "/nc-app/67/0134-01" ] }, { "cite": "562 S.E.2d 910", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "913-14", "parenthetical": "instruction required when evidence was presented that gun used' during robbery was unloaded" }, { "page": "913-14", "parenthetical": "no harmless error analysis" } ], "opinion_index": 1 }, { "cite": "150 N.C. App. 416", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9081406 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "419-20", "parenthetical": "instruction required when evidence was presented that gun used' during robbery was unloaded" }, { "page": "419-20" } ], "opinion_index": 1, "case_paths": [ "/nc-app/150/0416-01" ] }, { "cite": "290 S.E.2d 614", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1982, "pin_cites": [ { "page": "616", "parenthetical": "instruction required when witness identified the gun used during a robbery as a BB gun" }, { "page": "614" }, { "page": "651" }, { "page": "616" } ], "opinion_index": 1 }, { "cite": "305 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572929 ], "year": 1982, "pin_cites": [ { "page": "651", "parenthetical": "instruction required when witness identified the gun used during a robbery as a BB gun" } ], "opinion_index": 1, "case_paths": [ "/nc/305/0647-01" ] }, { "cite": "254 S.E.2d 526", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "528", "parenthetical": "basing the presumption on the Court's reluctance to intimate \"that a robbery victim should force the issue merely to determine the true character of the weapon.\"" } ], "opinion_index": 1 }, { "cite": "297 N.C. 285", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568828 ], "year": 1979, "pin_cites": [ { "page": "288-89", "parenthetical": "basing the presumption on the Court's reluctance to intimate \"that a robbery victim should force the issue merely to determine the true character of the weapon.\"" } ], "opinion_index": 1, "case_paths": [ "/nc/297/0285-01" ] }, { "cite": "330 S.E.2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "195", "parenthetical": "citations omitted" } ], "opinion_index": 1 }, { "cite": "313 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4721689 ], "year": 1985, "pin_cites": [ { "page": "562-63", "parenthetical": "citations omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/313/0554-01" ] }, { "cite": "320 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "293" } ], "opinion_index": 1 }, { "cite": "70 N.C. App. 449", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522830 ], "year": 1984, "pin_cites": [ { "page": "451" } ], "opinion_index": 1, "case_paths": [ "/nc-app/70/0449-01" ] }, { "cite": "571 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "244" } ], "opinion_index": 1 }, { "cite": "153 N.C. App. 770", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251637 ], "year": 2002, "pin_cites": [ { "page": "773" } ], "opinion_index": 1, "case_paths": [ "/nc-app/153/0770-01" ] }, { "cite": "291 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "591", "parenthetical": "\"In reviewing orders entered pursuant to that act, this court held that the findings of fact of the trial judge were binding upon the petitioner if they were supported by evidence.\"" } ], "opinion_index": 1 }, { "cite": "305 N.C. 712", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573095 ], "year": 1982, "pin_cites": [ { "page": "719-20", "parenthetical": "\"In reviewing orders entered pursuant to that act, this court held that the findings of fact of the trial judge were binding upon the petitioner if they were supported by evidence.\"" } ], "opinion_index": 1, "case_paths": [ "/nc/305/0712-01" ] }, { "cite": "499 S.E.2d 761", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "762", "parenthetical": "emphasis added" }, { "page": "763", "parenthetical": "\"[S]ubsection [(c)(7)] of the statute must be read in pari materia with the other provisions of the same statute.\"" }, { "page": "762" } ], "opinion_index": 1 }, { "cite": "348 N.C. 254", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659696 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "499" }, { "page": "257" }, { "page": "257" } ], "opinion_index": 1, "case_paths": [ "/nc/348/0254-01" ] }, { "cite": "343 S.E.2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1986, "pin_cites": [ { "page": "897" }, { "page": "897", "parenthetical": "\"If . . . there is any evidence that the weapon was, in fact, not what it appeared to the victim to be, the jury must determine what, in fact, the instrument was.\"" }, { "page": "897" }, { "page": "897" } ], "opinion_index": 1 }, { "cite": "317 N.C. 119", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4774636 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "124" }, { "page": "125" }, { "page": "124" }, { "page": "124" } ], "opinion_index": 1, "case_paths": [ "/nc/317/0119-01" ] }, { "cite": "523 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "698" }, { "page": "698", "parenthetical": "recanted confession" } ], "opinion_index": 1 }, { "cite": "136 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238218 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "14" }, { "page": "13" } ], "opinion_index": 1, "case_paths": [ "/nc-app/136/0001-01" ] }, { "cite": "691 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "4" } ], "opinion_index": 1 }, { "cite": "360 S.E.2d 660", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "666", "parenthetical": "recanted testimony" }, { "page": "664", "parenthetical": "recognizing the test as \"a modification of the 'Berry' rule, initially set forth in Berry v. State, 10 Ga. 511 (1851) (setting forth essentially the same prerequisites but lacking the requirement that the newly discovered evidence be 'probably true').\"" } ], "opinion_index": 1 }, { "cite": "320 N.C. 705", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724186 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "717" }, { "page": "713", "parenthetical": "recognizing the test as \"a modification of the 'Berry' rule, initially set forth in Berry v. State, 10 Ga. 511 (1851) (setting forth essentially the same prerequisites but lacking the requirement that the newly discovered evidence be 'probably true').\"" } ], "opinion_index": 1, "case_paths": [ "/nc/320/0705-01" ] }, { "cite": "324 S.E.2d 841", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1985, "pin_cites": [ { "page": "845", "parenthetical": "common law robbery instruction required when there was evidence rifle used during robbery was unloaded and missing firing pin" }, { "page": "844" }, { "page": "844" }, { "page": "845-46", "parenthetical": "instruction on common law robbery must be given when there was some evidence that the rifle used during a robbery was unloaded and the firing pin was missing" }, { "page": "845" }, { "page": "845" } ], "opinion_index": 1 }, { "cite": "312 N.C. 779", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750808 ], "weight": 7, "year": 1985, "pin_cites": [ { "page": "784", "parenthetical": "common law robbery instruction required when there was evidence rifle used during robbery was unloaded and missing firing pin" }, { "page": "782" }, { "page": "783" }, { "page": "784" }, { "page": "784" }, { "page": "784" } ], "opinion_index": 1, "case_paths": [ "/nc/312/0779-01" ] } ], "analysis": { "cardinality": 1707, "char_count": 68777, "ocr_confidence": 0.737, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1370716980024704 }, "sha256": "6ac4d0ec335eee30cd5d1c31cef8aea888b10a19dc4d54843eb8a52b6ad055b3", "simhash": "1:83eadc26769a0874", "word_count": 11740 }, "last_updated": "2023-07-14T18:24:03.194595+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge STEELMAN concurs.", "Judge WYNN dissents by separate opinion.", "Judge WYNN dissented prior to 10 August 2010." ], "parties": [ "STATE OF NORTH CAROLINA v. NATHAN DARNELL WILLIAMSON" ], "opinions": [ { "text": "CALABRIA, Judge\u2019\nNathan Darnell Williamson (\u201cdefendant\u201d) appeals from (1) a judgment entered upon a jury verdict finding him guilty of two counts of robbery with a dangerous weapon and (2) the trial court\u2019s denial of defendant\u2019s post-trial motion for appropriate relief (\u201cMAR\u201d). We find no error at trial and affirm the trial court\u2019s denial of defendant\u2019s MAR.\nI. Background\nOn 13 June 2009, defendant and. Dorsey Lemon (\u201cLemon\u201d) entered T&B Amusements (\u201cT&B\u201d) in Winston-Salem, North Carolina. Upon entering, Lemon struck employee Cecil Sanderlin (\u201cSanderlin\u201d) in the head with a black semiautomatic pistol. Lemon then cocked the gun in Sanderlin\u2019s face and announced, \u201cthis is a robbery.\u201d During the course of the robbery, defendant and Lemon took between five and seven hundred dollars and a radio belonging to T&B employee Ann Cheek. Once the robbery was completed, Lemon returned the gun to its owner, Jabriel Bailey, who was acting as a lookout during the robbery. The gun was never recovered by police.\nDetective Phillip Cox (\u201cDet. Cox\u201d) of the Winston-Salem Police Department was assigned to investigate the robbery. Witnesses interviewed by Det. Cox identified defendant as a participant in the robbery. Based upon this identification, Det. Cox located defendant, who voluntarily agreed to provide a statement to him. In his statement, defendant admitted his involvement in the robbery. Defendant additionally told Det. Cox that Lemon carried the gun during the robbery and that Jabriel Bailey and Donte Crews were the lookouts.\nDefendant was subsequently arrested and indicted for two counts of robbery with a dangerous weapon and one count of conspiracy to commit robbery with a dangerous weapon. Defendant\u2019s jury trial in Forsyth County Superior Court began on 5 May 2009, in the afternoon. At the close of the State\u2019s evidence, defendant made a motion to dismiss all charges. The trial court allowed the motion to dismiss for the one count of conspiracy to commit robbery with a dangerous weapon but denied the motion for the two counts of robbery with a dangerous weapon. Defendant did not present any evidence.\nAt the charge conference, defendant\u2019s counsel requested a jury. instruction on common law robbery, contending that the State failed to prove that the gun used was actually an operational weapon. The trial court refused defendant\u2019s request.\nOn 6 May 2009, the jury returned a verdict finding defendant guilty of two counts of robbery with a dangerous weapon. These convictions were consolidated and defendant was sentenced to a minimum of 45 months to a maximum of 63 months in the North Carolina Department of Correction.\nFollowing his conviction, defendant filed an MAR on 18 May 2009, based upon allegedly new evidence. In the MAR, defendant asserted that on 4 May 2009, the State obtained a statement from Lemon that the handgun he used in the robbery was inoperable and unloaded, and that defendant\u2019s counsel, Michael Archenbronn, was not made aware of that statement until after defendant had been convicted and sentenced.\nOn 17 June 2009, the trial court conducted a hearing on defendant\u2019s MAR. At the hearing, it was established that after obtaining Lemon\u2019s statement that the gun used in the robbery was inoperable, the State placed a one-page report documenting Lemon\u2019s statement in defendant\u2019s counsel\u2019s mailbox located in the courthouse. Defendant\u2019s counsel did not check his mailbox either in the late afternoon on 4 May or at any time on 5 May. As a result, defendant\u2019s counsel did not obtain the State\u2019s report until after defendant had been convicted on 6 May 2009. However, defendant\u2019s counsel conceded that he had independently interviewed Lemon during the evening of the first day of trial, 5 May 2009.\nLemon testified at the hearing that the gun he used during the robbery was unloaded and missing a firing pin, making it inoperable. Lemon stated that he had not previously mentioned that the gun was inoperable \u201c[bjecause I robbed somebody and I had a gun. I didn\u2019t know\u2014 I didn\u2019t know the law, that even if it was broken, it could have been broken down to common law. I didn\u2019t know that. You know what I\u2019m saying?\u201d Defendant\u2019s counsel told the trial court that when he interviewed Lemon on 5 May, Lemon never mentioned that the gun was inoperable. Defendant\u2019s counsel also told the trial court that if he had been aware of the information sooner, he would have called Lemon to testify at defendant\u2019s trial. The trial court denied defendant\u2019s MAR in open court. Defendant appeals.\nII. Errors During Trial\nDefendant appeals, in part, from alleged errors during his trial. Specifically, defendant argues that the trial court erred by failing to instruct the jury on the lesser included offense of common law robbery and by denying defendant\u2019s motion to dismiss the robbery with a dangerous weapon charges. However, both arguments are essentially premised upon the evidence obtained after the trial tending to show that the gun was inoperable.\nIn State v. Joyner, our Supreme Court held that \u201cwhere there is evidence that a defendant has committed a robbery with what appears to the victim to be a firearm or other dangerous weapon and nothing to the contrary appears in evidence, the presumption that the victim\u2019s life was endangered or threatened is mandatory.\u201d 312 N.C. 779, 782, 324 S.E.2d 841, 844 (1985). Defendant acknowledges that the jury was presented with no evidence at his trial that the gun was inoperable or unloaded. Since defendant presented no evidence at trial to rebut the presumption that the firearm used in the robbery was functioning properly, he was not entitled to either an instruction on common law robbery or dismissal of the two counts of robbery with a dangerous weapon. Defendant\u2019s arguments regarding errors during his trial are overruled.\nIII. Motion for Appropriate Relief\nDefendant argues that the trial court erred by denying his MAR. We disagree.\nA. Standard of Review\nUpon review of the denial of a defendant\u2019s MAR, \u201cthis Court is bound by the trial court\u2019s findings of fact if they are supported by any competent evidence, and \u2018the trial court\u2019s ruling on the facts may be disturbed only when there has been a manifest abuse of discretion, or when it is based on an error of law.\u2019 \u201d State v. Doisey, 138 N.C. App. 620, 627, 532 S.E.2d 240, 245 (2000) (quoting State v. Harding, 110 N.C. App. 155, 165, 429 S.E.2d 416, 423 (1993)). To prevail on an MAR on the basis of newly discovered evidence, a defendant must establish the following factors:\n(I) that the witness or witnesses will give newly discovered evidence, (2) that such newly discovered evidence is probably true, (3) that it is competent, material and relevant, (4) that due diligence was used and proper means were employed to procure the testimony at the trial, (5) that the newly discovered evidence is not merely cumulative, (6) that it does not tend only to contradict a former witness or to impeach or discredit him, (7) that it is of such a nature as to show that on another trial a different result will probably be reached and that the right will prevail.\nStukes, 153 N.C. App. at 773, 571 S.E.2d at 244 (citing N.C. Gen. Stat. \u00a7 15A-1415(c) (2001) and State v. Britt, 320 N.C. 705, 712-13, 360 S.E.2d 660, 664 (1987) (superceded by statute on other grounds, as stated in State v. Defoe, 364 N.C. 29, 35, 691 S.E.2d 1, 4 (2010)). At an MAR hearing, the defendant has the burden of establishing each of the facts essential to his claim by a preponderance of the evidence. N.C. Gen. Stat. \u00a7 15A-1420(c)(5) (2009).\nIn the instant case, the trial court determined that defendant did not provide sufficient evidence to establish three factors: (1) the second factor \u2014 that the evidence is probably true; (2) the fourth factor\u2014 that due diligence was used to procure the testimony at the trial; and (3) the seventh factor \u2014 that the evidence was of such a nature that a different result would probably have been reached on another trial.\nB. Whether the Newlv Discovered Evidence was Probably True\nDefendant was required to show that the newly discovered evidence was probably true. Britt, 320 N.C. at 713, 360 S.E.2d at 664. As the dissent acknowledges, it is for the trial court to assess the credibility of a witness. State v. Garner, 136 N.C. App. 1, 14, 523 S.E.2d 689, 698 (1999). However, the dissent argues that it was error to find that the evidence was probably not true when the evidence was uncontradicted at the hearing.\nIn the instant case, Lemon made a statement to Det. Cox that the gun was inoperable and not loaded on 4 May 2009. This was apparently the first time that he made that assertion, even though he had previously been charged with and pled guilty to robbery with a dangerous weapon for his conduct during the robbery. Lemon reiterated his assertion at the MAR hearing.\nThe evidence presented at the MAR hearing was far from being uncontradicted. Lemon had made an earlier statement to police and was interviewed by defendant\u2019s counsel during defendant\u2019s trial and made no mention of the gun being inoperable. Some of Lemon\u2019s testimony at the MAR hearing was as follows:\nQ. Did you ever tell your attorney that the gun you had that day didn\u2019t work?\nA. I believe I did, man, but I don\u2019t even remember who the attorney was. All he was telling me was that this robbery with a dangerous weapon was the best plea I had, that I need to take that.\nAnd I said, \u201cI did the crime. Give me my time. I\u2019m going to go on and get it over with and get this behind me.\u201d\nQ. So it\u2019s your testimony today that you in fact told your attorney, who \u2014 was it Ron Short? Does that name ring a bell to you?\nA. I don\u2019t \u2014 I don\u2019t remember who he was. I don\u2019t \u2014 man, I don\u2019t remember nothing about what I told him, man.\nQ. You don\u2019t remember if you told him that the gun was inoperable?\nA. No, I ain\u2019t even going to say I was, because I don\u2019t even remember who this guy was.\nQ. You don\u2019t think that would have been an important fact to point out to your attorney?\nA. Man, I was just ready to get it over with, Sipprell.\nQ. So you pled guilty to robbery with a dangerous weapon?\nA. Because I robbed somebody and I had a gun. I didn\u2019t know \u2014 I didn\u2019t know the law, that even if it was broken, it could have been broken down to common law. I didn\u2019t know that. You know what I\u2019m saying? I just\u2014\nQ. So now Jabriel was telling you that it was not\u2014\nA. Well, see, he showed me while he was telling me, no firing pin and no bullets.\nQ. So Jabriel told you that when he gave you the gun.\nA. Yeah, and I saw with my own eyes.\nQ. And you didn\u2019t pass any of that information on to the police detectives in what you told them in that interview, did you?\nA. And it don\u2019t look like I told them that the gun was broke, but I told them I got the gun from Jabriel.\nQ. But you didn\u2019t tell that he told you it was \u2014 had no firing pin or that it was unloaded.\nA. Yeah.\nQ. You apparently didn\u2019t tell your attorney\u2014\nA. I didn\u2019t even tell them that the gun was broken.\nQ. And you didn\u2019t tell your attorney that information, did you?\nA. I mean, it doesn\u2019t say that in here, man.\nQ. Right. And before \u2014 let me try and clear up something. I\u2019m getting a little confused here. Before that last meeting, do you recall ever mentioning to anybody, law enforcement, prosecutor, anyone else, the government, that the gun did not work and was unloaded, that it was missing a firing pin and was unloaded?\nA. I don\u2019t really remember if\u2014\nTHE COURT: Okay. What kind of gun was it? Do you know?\nTHE WITNESS: I don\u2019t know what type it was or nothing like that. I don\u2019t remember. It was \u2014 it might have been in here.\nTHE COURT: Might have been what?\nTHE WITNESS: It might be in this statement.\nTHE COURT: Okay. I didn\u2019t see it. I was just wondering if you remember what kind of gun it was.\nTHE WITNESS: Nah. Nah. This all is just \u2014 I\u2019m ready to go home, man. Are you going to let me go home?\nThe trial court stated that he could not find that the evidence was probably true. In doing so, he commented upon the demeanor of Lemon: \u201cFrom Mr. Lemon\u2019s demeanor on the stand, Mr. Archenbronn, I can sure understand why you didn\u2019t call him as a witness after you interviewed him on the evening of, what, the 5th, or the 6th?\u201d The combination of Lemon\u2019s prior statements, his refusal to answer whether he discussed the operability of the gun with his attorney, and his own plea of guilty to armed robbery demonstrate that his testimony that the gun was not operable was not uncontroverted.\nThe dissent correctly states that \u201c[o]ur Courts have accordingly upheld the trial court\u2019s ruling on whether the probably true factor is met when there is conflicting evidence upon which to make such a determination. \u201d (Emphasis in original). It goes on to assert that there was \u201cno conflicting evidence regarding the condition of the gun.\u201d This is simply incorrect. Lemon\u2019s testimony, prior statements, and conduct were rife with contradictions. His prior statements failed to mention the inoperability of the gun. He also failed to mention the gun\u2019s inoperability when interviewed by defendant\u2019s counsel during the trial of the defendant. Even more disturbing and inexplicable is that Lemon apparently failed to mention that the gun was inoperable to his own counsel, and pled guilty to robbery with a dangerous weapon. As a result, we cannot say that the evidence was not uncontroverted at the MAR hearing.\nUnder these circumstances, we must defer to the trial court, who actually observed Lemon testify, as to whether the defendant met his burden of proof to establish the second factor of the Britt test. In the instant case, this issue largely turns upon the credibility of Mr. Lemon as a witness. Such questions are best left for the trial court, and not the appellate court. See Garner, 136 N.C. App. at 14, 523 S.E.2d at 698.\nUnder the dissent\u2019s analysis, any evidence presented, however incredible, would be sufficient, if uncontradicted, to satisfy the \u201cnewly discovered evidence\u201d factor as set forth in Britt. We do not believe this to be the law. Evidence sufficient to establish a fact by the preponderance of the evidence pursuant to N.C. Gen. Stat. \u00a7 15A-1420(c)(5) must be credible evidence.\nFinally, the dissent cites the case of State v. Allen, 317 N.C. 119, 124, 343 S.E.2d 893, 897 (1986) for the proposition that if there is some evidence that the firearm used in a robbery was not a dangerous weapon, it is for the jury to decide whether the firearm was a dangerous weapon. This proposition, while inherently correct in the context of whether a judge should instruct the jury on the lesser offense of common law robbery in a trial, has no applicability in the current MAR proceeding. The issue before this Court is whether the defendant met his burden of proof in establishing that the \u201cnewly discovered evidence\u201d was probably true. The trial court correctly determined that defendant failed to meet this burden.\nC. Due Diligence\nDefendant was required to show that \u201cdue diligence was used and proper means were employed to procure the testimony at the trial.\u201d Britt, 320 N.C. at 713, 360 S.E.2d at 664. In finding that defendant failed to do so, the trial court noted that Lemon did not mention in his 5 May interview with defendant\u2019s counsel that the gun was inoperable and unloaded. The trial court also noted that defendant\u2019s counsel did not see the notice that was put in his mailbox on 4 May until after defendant was convicted. The trial court concluded that it could not find that defendant\u2019s counsel had exercised due diligence.\nAccording to the testimony at the MAR hearing, the State interviewed Lemon on 4 May 2009 at approximately 11:05 p.m. The State represented to the trial court that at some point on the afternoon of 4 May 2009, a legal assistant left a one-page report in defendant\u2019s counsel\u2019s mailbox at the courthouse which read: \u201cDorsey Lemon said that the gun he had during the robbery did not work and was not loaded.\u201d The bottom of that report contained a Certificate of Service, which stated:\nI certify that I served a copy of this motion by:\n_delivering a copy personally to_, attorney for defendant, or\n_placing a copy in the mail to_, or\n_leaving a copy with the receptionist at the office of the attorney for the defendant,\nx placing a copy in the defense attorney\u2019s mailbox maintained by the Clerk of Superior Court.\nThe report was filed and date stamped 3:12 p.m. on 4 May 2009. Defendant\u2019s counsel stated at the MAR hearing that he had checked his mailbox earlier on 4 May, but did not check it again later that day.\nThe next day, 5 May 2009, defendant\u2019s trial began shortly after 12:00 p.m. Prospective jurors were brought in and given initial instructions at 12:18 p.m. Jury selection commenced at 12:25 p.m. At 12:41 p.m., the court went into recess for lunch until 2:03 p.m. Defendant\u2019s counsel did not check his courtroom mailbox during the morning of 5 May or during the lunch recess.\nAfter the court went into the evening recess on 5 May, defendant\u2019s counsel interviewed Lemon. Defendant\u2019s counsel told the trial court about this interview at the MAR hearing:\nNow, I will tell the court also what happened that \u2014 that evening, on Tuesday \u2014 Tuesday, on the 5th. I did actually meet with Mr. Dorsey Lemon. When I found out he was a witness, I went down to the jail and just basically said, you know, \u201cTell me what happened. I just want to hear the truth, and explain to me what you\u201d \u2014 asked him if he spoke to the government. He said yes, he had talked to them. I just said, \u201cTell me what happened.\u201d\nAnd he began to tell me what happened. Based upon what he told me, I concluded that he may not be the best witness for us. And I explained to [defendant], and we agreed that based upon how we were going to \u2014 our strategy conducting the trial, it wouldn\u2019t be probably the best to have him testify.\nHowever, Mr. Lemon never mentioned to me about the gun being inoperable.\nThis statement clearly indicates that defendant had access and opportunity to interview Lemon before defendant\u2019s trial was completed. Because Lemon had already made the statement about the inoperable nature of the gun to the State, a reasonable interview by defendant\u2019s counsel should have revealed this same information to defendant.\nThe dissent goes to considerable lengths to attack both the State\u2019s method of service of Lemon\u2019s statement and the State\u2019s supposed failure to mention the statement to defendant\u2019s counsel during the course of the trial. The dissent is particularly troubled by the following argument, made by the State during the charge conference:\nI think there is absolutely no evidence of anything other than robbery with a dangerous weapon in this case. There\u2019s no evidence that it was inoperable, no evidence that it was unloaded. The only evidence we have is that there was a gun displayed and they felt threatened and scared by that. I think there\u2019s no grounds for a common law instruction.\nHowever, it is clear that this statement was made in reference to the evidence presented during the course of defendant\u2019s trial. As previously noted, defendant has conceded that there was no evidence presented at trial that the gun used during the robbery was inoperable, and the State\u2019s argument during the charge conference was consistent with that fact.\nAdditionally, neither the dissent, defendant\u2019s brief, nor defendant\u2019s counsel at the MAR hearing argue that placing the statement in defendant\u2019s counsel\u2019s mailbox was an invalid method of service. Rather, the argument put forth is that the delivery of the statement to defendant\u2019s counsel\u2019s mailbox was not the ideal form of service. As defendant\u2019s counsel argued at the MAR hearing:\nYour Honor, as I mentioned, it\u2019s true Mr. Sipprell \u2014 the government did leave \u2014 or his assistant did leave this notice in my box on May 4th. There\u2019s no contest that there was. I see it was date-stamped around 3:12.\nI\u2019m not trying to say the government was hiding the ball on me, but I was with the government for three days \u2014 two days after that and it was never hand-delivered to me.\nDefendant\u2019s counsel conceded that the State provided defendant with written notice of Lemon\u2019s statement within hours after the information was received by the State. Defendant\u2019s counsel had multiple opportunities to check his courthouse mailbox after Lemon\u2019s statement was delivered, but simply failed to do so. The dissent seeks to shift the blame for this to the State, but the State is not required to ensure that defendant\u2019s counsel actually received and reviewed information that was properly served upon him.\nThe evidence presented at defendant\u2019s MAR hearing fully supports the trial court\u2019s determination that defendant failed to establish the exercise of due diligence in procuring Lemon\u2019s statement. Lemon\u2019s statement was placed in the courthouse mailbox of defendant\u2019s counsel on 4 May 2009. Defendant\u2019s counsel failed to check his mailbox at the end of the day on 4 May and in the morning and during the lunch recess on 5 May. Most importantly, defendant\u2019s counsel independently interviewed Lemon on 5 May, after Lemon had given the statement at issue to the State. These facts were sufficient for the trial court to conclude that defendant\u2019s counsel had not exercised due diligence in discovering the evidence provided by Lemon\u2019s statement.\nSince defendant failed to establish at least two of the factors set forth in Britt, the trial court properly denied defendant\u2019s motion for appropriate relief. 320 N.C. at 712-13; 360 S.E.2d at 664. This assignment of error is overruled.\nIV. The Trial Court\u2019s Oral Order\nDefendant argues that the trial court erred by failing to enter a written order containing its findings of fact and conclusions of law when it denied defendant\u2019s MAR. We disagree.\nThe procedural aspects of MAR proceedings are governed by N.C. Gen. Stat. \u00a7 15A-1420(c) (2009). The portions of that statute relevant to the proceedings in the instant case are as follows:\n(1) Any party is entitled to a hearing on questions of law or fact arising from the motion and any supporting or opposing information presented unless the court determines that the motion is without merit. The court must determine, on the basis of these materials and the requirements of this subsection, whether an evidentiary hearing is required to resolve questions of fact.\n(4) If the court cannot rule upon the motion without the hearing of evidence, it must conduct a hearing for the taking of evidence, and must make findings of fact. The defendant has a right to be present at the evidentiary hearing and to be represented by counsel. A waiver of the right to be present must be in writing.\n(5) If an evidentiary hearing is held, the moving party has the burden of proving by a preponderance of the evidence every fact essential to support the motion.\n(6) A defendant who seeks relief by motion for appropriate relief must show the existence of the asserted ground for relief. Relief must be denied unless prejudice appears, in accordance with G.S. 15A-1443.\n(7) The court must rule upon the motion and enter its order accordingly. When the motion is based upon an asserted violation of the rights of the defendant under the Constitution or laws or treaties of the United States, the court must make and enter conclusions of law and a statement of the reasons for its determination to the extent required, when taken with other records and transcripts in the case, to indicate whether the defendant has had a full and fair hearing on the merits of the grounds so asserted.\nN.C. Gen. Stat. \u00a7 15A-1420(c) (2009).\nBoth defendant and the dissent rely primarily upon State v. McHone, 348 N.C. 254, 499 S.E.2d 761 (1998) to support their contention that the trial court in MAR proceedings is required to make written findings of fact and conclusions of law. In McHone, the defendant appealed the trial court\u2019s summary denial, without a hearing, of his MAR. Id. at 256, 499 S.E.2d at 762. In his first argument, the defendant argued that because he asserted specific errors of constitutional law, he was entitled to a hearing on his MAR. Id. Our Supreme Court was unpersuaded by this argument, rejecting defendant\u2019s argument with, inter alia, the following analysis:\nN.C.G.S. \u00a7 15A-1420 provides that \u201c[a]ny party is entitled to a hearing on questions of law or fact... unless the court determines that the motion is without merit.\u201d N.C.G.S. \u00a7 15A-1420(c)(l)' (1997) (emphasis added). Subsection (c)(7) of the statute also provides that if a defendant asserts with specificity in his motion for appropriate relief that his conviction was obtained in violation of the Constitution of the United States, the defendant is entitled to have the trial court make conclusions of law and state its reasons before denying the motion. N.C.G.S. \u00a7 15A-1420(c)(7). However, we do not read subsection (c)(7) as an expansion either of defendant\u2019s right to be heard or his right to present evidence. Instead, this provision is merely a directive to the trial court to make written conclusions of law and to give its legal reasoning for entering its order, such that its ruling can be subjected to meaningful appellate review. Therefore, summary denial without conclusions and a statement of the trial court\u2019s reasoning is not proper where the defendant bases his motion upon an asserted violation of his constitutional rights.\nId. at 256-57, 499 S.E.2d at 762. After conducting further analysis of various portions of N.C. Gen. Stat. \u00a7 15A-1420(c), the McHone Court determined that the \u201c[defendant's contention that he was entitled to a hearing and entitled to present evidence simply because his motion for appropriate relief was based in part upon asserted denials of his rights under the Constitution of the United States [was] without merit.\u201d Id. at 258, 499 S.E.2d at 763.\nThe dissent interprets the McHone Court\u2019s passing reference to the trial court\u2019s apparent directive to \u201cmake written conclusions of law and to give its legal reasoning for entering its order, such that its ruling can be subjected to meaningful appellate review\u201d as creating binding precedent that requires written findings of fact and conclusions of law whenever the trial court enters an order regarding a defendant\u2019s MAR. Because the only question before the McHone Court was whether the defendant was entitled to an evidentiary hearing, we treat the McHone Court\u2019s statements regarding the nature of an order denying a defendant\u2019s MAR as dicta.\n[T]he doctrine of the law of the case contemplates only such points as are actually presented and necessarily involved in determining the case. The doctrine does not apply to what is said by the reviewing court, or by the writing justice, on points arising outside of the case and not embodied in the determination made by the court. Such expressions are obiter dicta and ordinarily do not become precedents in the sense of settling the law of the case.\nHayes v. Wilmington, 243 N.C. 525, 536, 91 S.E.2d 673, 682 (1956). \u201cIn every case what is actually decided is the law applicable to the particular facts; all other legal conclusions therein are but obiter dicta.\u201d Id. (internal quotations and citation omitted).\nAs previously noted, the McHone Court was not called upon to determine whether a trial court could deny a defendant\u2019s MAR with either oral or written findings of fact and conclusions of law; in fact, there were no questions regarding the trial court\u2019s order presented whatsoever. The questions before the McHone Court dealt strictly with whether a hearing was required at all. As a result, the McHone Court\u2019s reference to written conclusions of law did not create binding precedent on how to interpret the portion of N.C. Gen. Stat. \u00a7 15A-1420(c) directing the trial court to make findings of fact and conclusions of law.\nTurning to the statute itself, we note, as does the dissent, that the statute makes no reference to \u201cwritten\u201d findings of fact or \u201cwritten\u201d conclusions of law. We decline to judicially create such a requirement, as it is a well-known rule of statutory construction that \u201c[w]hen the language of a statute is clear and unambiguous, there is no room for judicial construction, and the courts must give it its plain and definite meaning.\u201d State v. Jones, 358 N.C. 473, 477, 598 S.E.2d 125, 128 (2004) (internal quotations and citation omitted).\nMoreover, there is no reason why oral findings of fact and conclusions of law would frustrate our ability to conduct appellate review of the order. In the instant case, the trial court\u2019s order denying defendant\u2019s MAR appears in the transcript as follows:\nTHE COURT: Okay. Well, first of all, I\u2019ll find the gun is not available. Mr. Jiraud Bailey, according to both the \u2014 Mr. Lemon\u2019s statement and the defendant, Mr. Williamson\u2019s statement, Mr. Jiraud Bailey got the gun back from Mr. Lemon during \u2014 right at the end of the robbery or shortly after it was over.\nI\u2019m going to find the defendant made the two statements that were introduced as A and B, and Mr. Lemon made the statement to police that were C; that during none of those three statements was there any mention of the gun being inoperable or not having a firing pin or being unloaded.\nCertainly, from what I\u2019ve heard \u2014 and then I\u2019ll further find that the gun was returned \u2014 brought to the scene by Mr. Bailey, Jabriel Bailey, and was returned to Jabriel Bailey by Mr. Lemon shortly after the robbery; that Mr. Lemon did hold the gun during the robbery.\nThat the defendant\u2019s role in the robbery was basically to get Mr. Lemon inside the door of the Joker Poker parlor, I guess you would say, or poker-machine parlor that was robbed, because the defendant\u2019s mother had played poker there before.\nGoing on, though, as to the first point, one, the witness will give newly discovered evidence, yeah, I think that\u2019s newly- \u2014 new evidence. It was not mentioned anytime before the 4th of May of nineteen \u2014 of 2009, so as of May 4th 2009, it was newly discovered evidence.\nTwo, the newly discovered evidence is probably true. I cannot find that this evidence is probably true.\nFrom Mr. Lemon\u2019s demeanor on the stand, Mr. Archenbronn, I can sure understand why you didn\u2019t call him as a witness after you interviewed him on the evening of, what, the 5th, or the 6th?\nOkay. Second, that the newly discovered.evidence is competent, material, and relevant. It is certainly \u2014 whether or not the gun was loaded or whether or not Mr. Lemon says the gun was loaded was competent, material, and relevant.\nThat due diligence was used and proper means were employed to procure the testimony at trial.\nWell, Mr. Archenbronn, you interviewed Mr. Lemon on the evening of \u2014 during the middle of the trial on the evening of the 5th. Is that right?\nMR. ARCHENBRONN: That is correct, Your Honor. I did.\nTHE COURT: Yeah. And I don\u2019t know what was said during the interview, but Mr. Lemon didn\u2019t mention to you that the gun was inoperable and unloaded, so \u2014 I mean, you did what you should do in interviewing Mr. Lemon.\nAs to whether you should have asked that question or not, I don\u2019t \u2014 you know, you hadn\u2019t seen the notice dated the 4th of May that was put in your box on the 4th of May. So I can\u2019t find that due diligence was used.\nI will find the newly discovered evidence is not merely cumulative. The newly discovered evidence does not tend only to contradict a former witness or to impeach or discredit witnesses.\nAnd I cannot find that the newly discovered evidence is of such a nature as to show that on another trial a different result would probably be reached \u2014 or will probably be reached and that the right will prevail.\nAnd considering this, I do consider the fact that your client made two statements that were totally admissible, Mr. Archenbronn. I think when you look at the balance, those two statements were so overwhelming that any mistake in not putting this evidence in was probably harmless.\nSo, one, I don\u2019t think that Mr. Lemon is \u2014 the newly discovered evidence from Mr. Lemon is probably true.\nAnd, two, I don\u2019t believe it would result in a new trial, and I\u2019m not \u2014 I don\u2019t believe that you\u2019ve shown that due diligence was used when you got it in your box on 5/4 and interviewed him on 5/5.\nWhile our review of this order would be improved by having the trial court\u2019s order reduced to a written order in the record on appeal, it is difficult to discern how it makes meaningful appellate review of the order impossible. The dissent asserts that the lack of a written order somehow frustrates our review, but it provides no reason for why this is so. Indeed, the dissent discusses the trial court\u2019s findings extensively in its analysis of the trial court\u2019s denial of defendant\u2019s MAR.\nThe plain language of N.C. Gen. Stat. \u00a7 15A-1420(c) contains no reference to written findings, and the absence of a written order does not frustrate our review of the trial court\u2019s denial of defendant\u2019s MAR, as the transcript contains the findings and conclusions the trial court orally made in open court. Consequently, we hold that while the best practice is for the trial court to enter a written order containing its findings of fact and conclusions of law, the trial court is not required to make written findings of fact or conclusions of law when it enters an order on a defendant\u2019s MAR. This assignment of error is overruled.\nV. Conclusion\nBecause there was no evidence presented during defendant\u2019s trial that the gun used during the robbery of T&B was inoperable, defendant was not entitled to either a jury instruction on common law robbery or dismissal of the robbery charges. Thus, defendant received a fair trial, free from error. Because defendant\u2019s counsel failed to establish (1) that the newly discovered evidence was probably true, and (2) that he exercised due diligence in discovering Lemon\u2019s statement, the trial court properly denied defendant\u2019s MAR. While it is the best practice for the trial court to enter a written order with its findings of fact and conclusions of law when ruling on a defendant\u2019s MAR, this practice is not required by the MAR statute. Consequently, the order of the trial court denying defendant\u2019s MAR is affirmed.\nNo error at trial.\nAffirmed.\nJudge STEELMAN concurs.\nJudge WYNN dissents by separate opinion.\nJudge WYNN dissented prior to 10 August 2010.\n. The cases from our Courts involving a motion for appropriate relief exhibit different and conflicting standards of review. Compare State v. Stevens, 305 N.C. 712, 720, 291 S.E.2d 585, 591 (1982) (\u201cwhether the findings of fact are supported by evidence, whether the findings of fact support the conclusions of law, and whether the conclusions of law support the order entered by the trial court\u201d), with State v. Stukes, 153 N.C. App. 770, 773, 571 S.E.2d 241, 244 (2002) (abuse of discretion)\n. Defendant\u2019s brief does not make this argument.", "type": "majority", "author": "CALABRIA, Judge\u2019" }, { "text": "WYNN, Judge,\ndissenting.\nI agree with the majority that Defendant\u2019s trial was free of prejudicial error, based on the evidence there presented. Insofar as the majority implicitly recognizes that Defendant was entitled to an instruction on common law robbery, based on evidence existing at the time of his trial, I agree also with that conclusion. See State v. Joyner, 312 N.C. 779, 784, 324 S.E.2d 841, 845 (1985) (common law robbery instruction required when there was evidence rifle used during robbery was unloaded and missing firing pin). I disagree, however, that the trial court did not err in denying Defendant\u2019s Motion for Appropriate Relief (\u201cMAR\u201d). I disagree also that N.C. Gen. Stat. \u00a7 15A-1420 does not require the trial court to enter a written order ruling upon Defendant\u2019s MAR.\nDefendant was tried and convicted for armed robbery based on his admitted involvement in the 13 June 2009 robbery of T&B Amusements in Winston Salem. Defendant\u2019s accomplice in the robbery, Dorsey Lemon, carried the gun that elevated this crime from common law robbery to robbery with a dangerous weapon. The gun used was never recovered. The day before Defendant\u2019s trial, prosecutors interviewed Lemon and learned that the gun he carried during the robbery was unloaded and inoperable.\nThe prosecutor created a report detailing Lemon\u2019s statement and left it in Defense counsel\u2019s mailbox at the courthouse the afternoon before Defendant\u2019s trial. Defense counsel interviewed Lemon during a recess after the first day of trial, but Lemon did not tell Defense counsel what he had told the prosecutor regarding the gun. Based on the information he.leamed from Lemon, the prosecutor chose not to call him at trial. Instead he stated to the trial court:\nI think there is absolutely no evidence of anything other than robbery with a dangerous weapon in this case. There\u2019s no evidence that it was inoperable, no evidence that it was unloaded. The only evidence we have is that there was a gun displayed and they felt threatened and scared by that. I think there\u2019s no grounds for a common law instruction.\nDefense counsel did not discover the report until after Defendant had been convicted. D\u00e9fendant filed an MAR alleging that he was entitled to a new trial on the basis of new evidence. The trial court denied the motion.\nOn appeal, Defendant argues that the trial court erred by (I) denying his motion to dismiss the charges; (II) denying his request for an instruction on common law robbeiy; (III) denying his MAR; and (TV) failing to file a written order with findings of fact and conclusions of law.\nI & II\nAs the majority recognizes, Defendant\u2019s arguments regarding errors at his trial rest on evidence which Defendant did not obtain until after his trial.\n\u201cCommon law robbery is a lesser included offense of armed robbery[.]\u201d State v. Tarrant, 70 N.C. App. 449, 451, 320 S.E.2d 291, 293 (1984).\nThe critical difference between armed robbery and common law robbery is that the former is accomplished by the use or threatened use of a dangerous weapon whereby the life of a person is endangered or threatened. The use or threatened use of a dangerous weapon is not an essential element of common law robbery.\nState v. Peacock, 313 N.C. 554, 562-63, 330 S.E.2d 190, 195 (1985) (citations omitted).\nWhen a person commits a robbery with what appears to be an operable firearm, and there is no evidence presented to the contrary, the law presumes that the firearm is a dangerous weapon. Joyner, 312 N.C. at 782, 324 S.E.2d at 844; State v. Thompson, 297 N.C. 285, 288-89, 254 S.E.2d 526, 528 (1979) (basing the presumption on the Court\u2019s reluctance to intimate \u201cthat a robbery victim should force the issue merely to determine the true character of the weapon.\u201d). When there is no evidence the gun is not dangerous, a defendant is not entitled to an instruction on common law robbery. Joyner, 312 N.C. at 783, 324 S.E.2d at 844. But,\n[i]f there is some evidence that the implement used was not a firearm or other dangerous weapon which could have threatened or endangered the life of the victim, the mandatory presumption disappears leaving only a permissive inference, which permits but does not require the jury to infer that the instrument used was in fact a firearm or other dangerous weapon whereby the victim\u2019s life was endangered or threatened.\nState v. Allen, 317 N.C. 119, 124, 343 S.E.2d 893, 897 (1986).\nThus, North Carolina law states that when there is evidence that the implement used during a robbery was not in fact a dangerous weapon, the trial court is required to instruct the jury on common law robbery. Joyner, 312 N.C. at 784, 324 S.E.2d at 845-46 (instruction on common law robbery must be given when there was some evidence that the rifle used during a robbery was unloaded and the firing pin was missing); State v. Alston, 305 N.C. 647, 651, 290 S.E.2d 614, 616 (1982) (instruction required when witness identified the gun used during a robbery as a BB gun); State v. Frazier, 150 N.C. App. 416, 419-20, 562 S.E.2d 910, 913-14 (2002) (instruction required when evidence was presented that gun used' during robbery was unloaded). Without such an instruction, there is a possibility that a defendant could be convicted of a crime he did not commit. See State v. Joyner, 67 N.C. App. 134, 136, 312 S.E.2d 681, 682 (1984) (stating evidence gun was unloaded and inoperable \u201ctended to prove the absence of an element of the offense charged\u201d), aff\u2019d, 312 N.C. 779, 324 S.E.2d 841 (1985). It is axiomatic that the State must satisfy the jury beyond a reasonable doubt of each element of the offense charged. State v. McArthur, 186 N.C. App. 373, 380, 651 S.E.2d 256, 260 (2007).\nIn the present case, the prosecutor at the time of Defendant\u2019s trial possessed evidence that the gun used during the robbery was unloaded and inoperable, evidence which tended to prove the absence of an element of the offense charged. Notwithstanding, the prosecutor told the trial court \u201cthere is absolutely no evidence of anything other than robbery with a dangerous weapon in this case.\u201d Based on the precedent discussed above, I must agree with the majority that there was no evidence introduced at Defendant\u2019s trial to support an instruction on the lesser-included offense of common law robbery. Likewise, there was no evidence at trial to indicate that Defendant was entitled to a dismissal of the charge of armed robbery.\nIll\nDefendant next argues that the trial court erred in denying his MAR on the basis of newly discovered evidence.\nTo determine whether a defendant should prevail on an MAR on the basis of newly discovered evidence, the trial court must consider the following factors:\n(1) that the witness or witnesses will give newly discovered evidence, (2) that such newly discovered evidence is probably true, (3) that it is competent, material and relevant, (4) that due diligence was used and proper means were employed to procure the testimony at the trial, (5) that the newly discovered evidence is not merely cumulative, (6) that it does not tend only to contradict a former witness or to impeach or discredit him, (7) that it is of such a nature as to show that on another trial a different result will probably be reached and that the right will prevail.\nState v. Stukes, 153 N.C. App. 770, 773, 571 S.E.2d 241, 244 (2002). Defendant has the burden at an MAR hearing of establishing the facts essential to his claim by a preponderance of the evidence. N.C. Gen. Stat. \u00a7 15A-1420(c)(5) (2009).\nIn the present case, the trial court ruled that Defendant did not satisfy (1) the second factor: that the evidence is probably true; (2) the fourth factor: that due diligence was used to procure the testimony at trial; or (3) the seventh factor: that the evidence was of such a nature that a different result would probably have been reached on another trial. The majority discusses only the second and the fourth factor, upholding the trial court\u2019s order on the basis of the trial court\u2019s determination of probable truth and due diligence. Because I would reverse the trial court, my review is perforce more expansive.\n1\nRegarding the second factor: that the evidence is probably true, we have recognized that \u201c[t]he trial court is in the best position to judge the credibility of a witness.\u201d State v. Garner, 136 N.C. App. 1, 14, 523 S.E.2d 689, 698 (1999), appeal dismissed, disc. review denied, 351 N.C. 477, 543 S.E.2d 500 (2000). Our Courts have accordingly upheld the trial court\u2019s ruling on whether the probably true factor is met when there is conflicting evidence upon which to make such a determination. See, e.g., State v. Eason, 328 N.C. 409, 435, 402 S.E.2d 809, 823 (1991) (recanted confession); Britt, 320 N.C. at 717, 360 S.E.2d at 666 (recanted testimony); Garner, 136 N.C. App. at 13, 523 S.E.2d at 698 (recanted confession); State v. Riggs, 100 N.C. App. 149, 156, 394 S.E.2d 670, 674 (1990) (conflicting testimony), disc. review denied, 328 N.C. 96, 402 S.E.2d 425 (1991); State v. Hoots, 76 N.C. App. 616, 618-19, 334 S.E.2d 74, 76 (1985) (recanted statements); State v. Carter, 66 N.C. App. 21, 31, 311 S.E.2d 5, 11 (recanted testimony), disc. review denied, 310 N.C. 745, 315 S.E.2d 705 (1984); State v. Thompson, 64 N.C. App. 485, 492, 307 S.E.2d 838, 843 (1983) (conflicting testimony), cert. denied, 313 N.C. 513, 329 S.E.2d 399 (1985).\nWhile the credibility of witnesses remains the exclusive province of the trier of fact, I can discern no valid basis upon which a witnesses\u2019 uncontradicted testimony might be dismissed by the trial court as incredible as a matter of law at an MAR proceeding. Recognizing the potential impact of cross-examination, I recognize also that a defendant\u2019s right to exculpatory evidence does not turn on any judicial determination that it is more likely true than not. See State v. Elliott, 360 N.C. 400, 415, 628 S.E.2d 735, 745-46 (recognizing prosecutor\u2019s duty to turn over favorable and material evidence), cert. denied, Elliott v. North Carolina, 549 U.S. 1000, 166 L. Ed. 2d 378 (2006).\nIn the present case, the trial court was confronted with no conflicting evidence regarding the condition of the gun. There was therefore no valid basis under the precedents examined above for the trial court to conclude that Lemon\u2019s testimony was not probably true. The majority agrees that the trial court\u2019s determination of probable truth must be predicated on some conflicting evidence. The majority insists, however, that Lemon\u2019s \u201cevidence at the MAR hearing was not uncontradicted.\u201d It is significant to point out that despite reciting two pages of testimony, the majority does not locate any evidence that contradicted Lemon\u2019s statement that the gun was not loaded or operational.\nIn sum, the determination of whether Lemon was telling the truth \u2014 i.e. whether the gun was in fact unloaded and inoperable\u2014 should be determined by a jury in a criminal proceeding, not by a trial judge using a preponderance of the evidence standard. See Allen, 317 N.C. at 125, 343 S.E.2d at 897 (\u201cIf . . . there is any evidence that the weapon was, in fact, not what it appeared to the victim to be, the jury must determine what, in fact, the instrument was.\u201d). Accordingly, I would hold, that the trial court erred in ruling that the new evidence was not probably true.\n2\nRegarding the fourth factor: that due diligence was used and proper means were employed to procure the testimony at the trial, the trial court noted that Lemon did not mention in his 5 May interview with Defendant\u2019s counsel that the gun was inoperable and unloaded. The trial court noted also that Defendant\u2019s counsel did not see the notice that was put in his mailbox on 4 May until after Defendant was convicted. The trial court concluded that it could not find that due diligence was employed.\nOur Supreme Court has indicated that in requesting a new trial on the basis of newly discovered evidence, \u201cboth counsel and litigants are presumed to have been properly advised in preparing for trial, and this presumption is not to be lightly overthrown or rebutted.\u201d State v. Lea, 203 N.C. 316, 322, 166 S.E. 292, 295, cert. denied, Lea v. North Carolina, 287 U.S. 668, 77 L. Ed. 576 (1932). In defining the proper standard by which to test this presumption of diligence, the Court stated, \u201c[i]f it should appear that the newly discovered evidence, \u2018by ordinary diligence, could have been discovered and used at the hearing, or was in possession of the counsel or agent of the party,\u2019 the application will be denied.\u201d Id. at 322, 166 S.E. at 295-96 (quoting Matthews v. Joyce, 85 N.C. 258, 267 (1881)).\nIn State v. Stanley, 74 N.C. App. 178, 327 S.E.2d 902, disc. review denied, 314 N.C. 546, 335 S.E.2d 318 (1985), this Court considered a challenge to the trial court\u2019s denial of a defendant\u2019s MAR. Id. at 184, 327 S.E.2d at 906. The defendant presented new testimony at the MAR hearing of a witness who had testified at trial. Id. This Court affirmed the denial of the defendant\u2019s MAR in part because the defendant had already had an opportunity to question the witness during the trial about the issue, and failed to do so. Id. at 185, 327 S.E.2d at 907. We concluded that this represented a lack of due diligence. Id.; see also State v. Dixon, 259 N.C. 249, 251, 130 S.E.2d 333, 334 (1963) (no error in denying MAR when defendant failed to question a testifying witness regarding the evidence).\nNeither of these cases involved evidence that would have entitled the defendant to a different instruction at trial. In Stanley, the defendant sought to introduce evidence of a similar sexual encounter by another male with the female he was accused of raping. Stanley, 74 N.C. App. at 184, 327 S.E.2d at 906. This Court held that the new evidence was not relevant. Id. at 185, 327 S.E.2d at 907. The defendant in Dixon was convicted of driving while under the influence, and sought a new trial after learning that his blood sample had been destroyed prior to trial. Dixon, 259 N.C. at 250, 130 S.E.2d at 334. Our Supreme Court held that the defendant did not establish a single one of the seven factors. Id. at 251, 130 S.E.2d at 334.\nIn State v. Saults, 299 N.C. 319, 261 S.E.2d 839 (1980), our Supreme Court considered a challenge to the trial court\u2019s denial of a defendant\u2019s MAR. In that case, the defendant was convicted as an accessory to arson. Id. at 320, 261 S.E.2d at 840. He later filed an MAR, presenting affidavits of witnesses which tended to contradict the evidence against him. Id. at 321, 261 S.E.2d at 840. The trial court denied the defendant a new trial on the basis of his lack of due diligence in discovering or utilizing the evidence. Id. at 322, 261 S.E.2d at 841.\nOn appeal, our Supreme Court recognized the new evidence as relevant to the defendant\u2019s guilt. Id. at 322-23, 261 S.E.2d at 841. The Court then framed the issue in terms of \u201cwhether [defendant] had sufficient information so that he should have talked to [the newly offered witnesses] some time before\u201d his conviction. Id. at 323, 261 S.E.2d at 841. Considering the evidence in terms of when it became known to the defendant, the Court concluded that the defendant had no additional \u201creason to believe that [the new witnesses] had relevant information that could aid him in his defense.\u201d Id. at 323, 261 S.E.2d at 842. The Court therefore held that the defendant was entitled to a new hearing. Id. at 325, 261 S.E.2d at 843.\nOur Supreme Court considered another MAR in State v. Jones, 296 N.C. 75, 248 S.E.2d 858 (1978). The Jones defendant was tried for arson based on the testimony of a witness who claimed that defendant threw kerosene on the floor of their shared apartment and started a fire. Id. at 76, 248 S.E.2d at 859. The defendant maintained that he returned home to find the apartment in flames. Id. at 77, 248 S.E.2d at 859. After his conviction, the defendant learned of a police report that indicated his clothing (which had been seized) showed no evidence of the presence of kerosene or other flammable accelerants. Id. at 78-79, 248 S.E.2d at 860.\nThe State argued on appeal that the defendant failed to show due diligence because he did not make a motion to compel discovery. Id. at 79, 248 S.E.2d at 861. Our Supreme Court disagreed, stating that there was nothing to put the defendant on notice of the report, and that the prosecutor \u201cwas under a continuing duty to disclose relevant, discoverable information as he received it.\u201d Id. at 79-80, 248 S.E.2d at 861. The Court concluded that \u201c[t]he report was clearly, on these facts, a factor which defendant was entitled to have the jury consider.\u201d Id. at 80, 248 S.E.2d at 861. The Court therefore granted the defendant a new trial. Id.\nIn the present case, the State did not obtain Lemon\u2019s statement until the day before Defendant was tried. At so late an hour, Defendant had no reason to believe that the State had obtained any other relevant information that could aid him in his defense. Furthermore, the report was clearly a factor which Defendant was entitled to have the jury consider. Unlike Stanley and Dixon where the defendant had an opportunity at trial to question the witness, once the prosecutor here learned of Lemon\u2019s statement regarding the gun, he chose not to call Lemon to testify in Defendant\u2019s trial. Also unlike Stanley and Dixon, the evidence in this case would have required a different instruction at trial. Allen, 317 N.C. at 124, 343 S.E.2d at 897; Joyner, 312 N.C. at 784, 324 S.E.2d at 845. On the basis of Saults and Jones, I would hold that the trial court erred in concluding that Defendant failed to show due diligence in discovering the evidence.\nMoreover, cases in which a defendant\u2019s failure to establish due diligence alone justified denying him a new trial consistently involve a defendant who knew of the evidence when he was tried. See State v. Powell, 321 N.C. 364, 371, 364 S.E.2d 332, 336, cert. denied, Powell v. North Carolina, 488 U.S. 830, 102 L. Ed. 2d 60 (1988); State v. Cronin, 299 N.C. 229, 244, 262 S.E.2d 277, 287 (1980). Generally, we have denied other defendants new trials only when additional factors were also lacking. See State v. Person, 298 N.C. 765, 771, 259 S.E.2d 867, 870 (1979) (defendant failed to establish new evidence was material, competent, or relevant, that it was not merely corroborative, a different result would be reached, and. due diligence); State v. Beaver, 291 N.C. 137, 144, 229 S.E.2d 179, 183 (1976) (defendant failed to prove new evidence would not be merely cumulative, and due diligence); Dixon, 259 N.C. at 251, 130 S.E.2d at 334 (defendant established not one of seven factors); Riggs, 100 N.C. App. at 156-57, 394 S.E.2d at 674 (defendant failed to prove evidence was probably true, not merely cumulative, a different result would be reached, and due diligence); Stanley, 74 N.C. App. at 185, 327 S.E.2d at 906-07 (defendant failed to establish new evidence was relevant, and due diligence); State v. Baker, 65 N.C. App. 430, 447, 310 S.E.2d 101, 113 (1983) (defendant failed to show a different result would be reached, new evidence tended only to contradict a former witness, and due diligence), cert. denied, 312 N.C. 85, 321 S.E.2d 900 (1984); State v. Clark, 65 N.C. App. 286, 293, 308 S.E.2d 913, 917 (1983) (defendant failed to show new evidence was not merely cumulative, different result would be reached, and due diligence), disc. review denied, 310 N.C. 627, 315 S.E.2d 693 (1984); Thompson, 64 N.C. App. at 492, 307 S.E.2d at 843 (defendant failed to show evidence was newly discovered, that it was not merely cumulative, that it was probably true, that a different result would be reached, and due diligence).\nIn the present case, there is no evidence that Defendant actually knew about Lemon\u2019s statement when he was tried. Under the precedents examined above, I would hold that Defendant is entitled to a new trial.\n3\nRegarding element No. 7: that the evidence was of such a nature that a different result would probably have been reached on another trial, the State argues that the jury had ample evidence with which to \u25a0 convict Defendant. At the end of the MAR proceeding, the trial court stated. \u201cI think when you look at the balance, those two statements [i.e. Defendant\u2019s confession] were so overwhelming that any mistake in not putting this evidence in was probably harmless.\u201d\nHarmless error analysis is not appropriate in evaluating a trial court\u2019s failure, in an armed robbery prosecution, to provide an instruction on the lesser included offense of common law robbery. A defendant tried for armed robbery is entitled to an instruction on the lesser included offense of common law robbery when some evidence is presented that the apparent gun was not in fact a dangerous weapon. See Joyner, 312 N.C. at 784, 324 S.E.2d at 845. Granting that a trial court errs when it fails to provide such an instruction, an analysis that asks only whether the verdict was affected would render our review of such errors meaningless.\nOur Supreme Court recognized this principle in State v. Alston. Defendants in Alston were tried for armed robbery. 305 N.C. at 648, 290 S.E.2d at 614. The Court held that when evidence was presented that the gun wielded was not in fact a dangerous weapon (but a BB rifle), the trial court erred in failing to instruct the jury on the lesser included offense of common law robbery. Id. at 651, 290 S.E.2d at 616. Defendants were granted a new trial on the basis of that error without any inquiry into whether the requested instruction would have affected the verdict. Id.) see also Frazier, 150 N.C. App. at 419-20, 562 S.E.2d at 913-14 (no harmless error analysis).\nIn the present case, the inquiry of how the requested instruction would affect whether Defendant is convicted of armed robbery or common law robbery is for a jury to decide. See Allen, 317 N.C. at 124, 343 S.E.2d at 897. Because Defendant\u2019s request for an instruction on common law robbery would have been granted had the new evidence been considered, I would hold that the trial court erred in ruling that the evidence was not of such a nature that a different result would probably have been reached on another trial. The majority does not disagree that the trial court erred in applying a harmless error standard in considering this factor.\nIn light of the foregoing, I would hold that the trial court erred in ruling that Defendant failed to establish all seven factors of the relevant test. I would therefore reverse the trial court\u2019s order denying Defendant\u2019s MAR. Beyond the technical considerations of precedent addressed thus far, there is a more fundamental reason to grant Defendant a new trial in this case: to prevent manifest injustice.\nThe record demonstrates that the prosecutor obtained a statement from Dorsey Lemon that the gun he carried in the robbery was not operational. The prosecutor created a report detailing Lemon\u2019s statement, and left it in defense counsel\u2019s mailbox at the courthouse the afternoon before Defendant\u2019s trial. Aware of what Lemon would say at Defendant\u2019s trial, the prosecutor chose not to call him as a witness, and never mentioned his statement to defense counsel during Defendant\u2019s trial. This sequence of events leads to an obvious conclusion: at the time the prosecutor told the court that there was \u201cabsolutely no evidence\u201d that the gun was unloaded and inoperable, he was aware that defense counsel did not know of the existing evidence to the contrary.\nThat the prosecutor could rely on the defense attorney\u2019s ignorance of exculpating evidence strongly suggests a patent unfairness in Defendant\u2019s trial. See State v. Payne, 327 N.C. 194, 202, 394 S.E.2d 158, 162 (1990) (\u201c[T]he purpose of discovery under our statutes is to protect the defendant from unfair surprise[.]\u201d), cert. denied, Payne v. North Carolina, 498 U.S. 1092, 112 L. Ed. 2d 1062 (1991). I recognize that Defendant does not here allege any violation of his right to discovery under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215 (1963). I cannot ignore the fact, however, that of the available methods of delivery, the one chosen by the prosecutor here was the one calculated least likely to ensure Defendant\u2019s actual notice. Though this practice may represent adherence to the strict letter of the law, it also comes very near to violating the spirit of fair dealing articulated in Brady: \u201cSociety wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.\u201d Id. at 87, 10 L. Ed. 2d at 218. Indeed, the record in this case \u201ccasts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice.\u201d Id. at 88, 10 L. Ed. 2d at 219.\nThe majority holds that defense counsel failed to establish that he exercised due diligence in discovering Lemon\u2019s statement. This conclusion penalizes Defendant for the conduct of his own attorney with no consideration given to the conduct of opposing counsel. I have found no case defining due diligence where a prosecutor engages in a subtle but deliberate attempt to forestall a defendant\u2019s discovery of existing exculpatory evidence. I believe that such a scenario demands a different calculus of due diligence than is here employed. The alternative is the perpetuation of such prosecutorial gamesmanship as appears in the facts of this case. If it is legal, that does not make it just.\nIV\nDefendant also argues that the trial court erred in failing to file a written order with findings of fact and conclusions of law. I believe this error also militates against affirming the trial court\u2019s disposition.\nAt the conclusion of the MAR hearing, the trial court instructed the prosecutor to draw up an order. Although the prosecutor indicated that such an order would be drafted, it does not appear that the order was ever filed. There is thus no order disposing of Defendant\u2019s MAR in the record before us.\nN.C. Gen. Stat. \u00a7 15A-1420 deals with the procedure on motions for appropriate relief. That statute, in pertinent part, states:\n(4) If the court cannot rule upon the motion without the hearing of evidence, it must conduct a hearing for the taking of evidence, and must make findings of fact. . . .\n(7) The court must rule upon the motion and enter its order accordingly. When the motion is based upon an asserted violation of the rights of the defendant under the Constitution or laws or treaties of the United States, the court must make and enter conclusions of law and a statement of the reasons for its determination to the extent required, when taken with other records and transcripts in the case, to indicate whether the defendant has had a full and fair hearing on the merits of the grounds so asserted.\nN.C. Gen. Stat. \u00a7 15A-1420(c) (2009). The State contends that the trial court is not required to make written findings of fact or conclusions of law when, as here, the motion is not based upon an asserted violation of the rights of the defendant under the Constitution, laws or treaties of the United States.\n\u201cWhen post-conviction relief is sought by way of a motion for appropriate relief in the Superior Court, that court ordinarily must make findings of fact and conclusions of law in its order granting or denying relief.\u201d State v. Bush, 307 N.C. 152, 168, 297 S.E.2d 563, 573 (1982). Our Supreme Court considered the relevant statute in State v. McHone, 348 N.C. 254, 499.S.E.2d 761 (1998). In the context of determining whether defendant was entitled to a hearing, the Court there stated:\nSubsection (c)(7) of the statute . . . provides that if a defendant asserts with specificity in his motion for appropriate relief that his conviction was obtained in violation of the Constitution of the United States, the defendant is entitled to have the trial court make conclusions of law and state its reasons before denying the motion. . . . [T]his provision is merely a directive to the trial court to make written conclusions of law and to give its legal reasoning for entering its order, such that its ruling can be subjected to meaningful appellate review.\nId. at 257, 499 S.E.2d at 762 (emphasis added). The Court thus read subsection (c)(7) to require a written order, although the word \u201cwritten\u201d does not appear in that subsection.\nMcHone does not, however, stand for the principle that a written order is required only where a constitutional violation is alleged, as the State contends. Rather, subsection (c)(4) must be read in conjunction with subsection (c)(7). See id. at 257, 499 S.E.2d at 763 (\u201c[S]ubsection [(c)(7)] of the statute must be read in pari materia with the other provisions of the same statute.\u201d). Subsection (c)(4) specifies that when a trial court conducts an evidentiary hearing, it must make findings of fact. N.C. Gen. Stat. \u00a7 15A-1420(c)(4). The first sentence of subsection (c)(7) states, without reference to any alleged constitutional violation, \u201c[t]he court must rule upon the motion and enter its order accordingly.\u201d N.C. Gen. Stat. \u00a7 15A-1420(c)(7).\nFollowing the reasoning in McHone, I believe that when the trial court makes findings of fact pursuant to subsection (c)(4), it must also file a written order stating those findings. It is only thereby \u201cthat its ruling can be subjected to meaningful appellate review.\u201d McHone, 348 N.C. at 257, 499 S.E.2d at 762. No such order appears in the record before us.\nMoreover, I disagree with the State\u2019s assertion that the trial court\u2019s findings which appear in the transcript provide a sufficient basis to overlook this error. As the State acknowledges elsewhere, the correct standard of review for the trial court\u2019s disposition of an MAR requires us to consider an order entered by the trial court. See State v. Stevens, 305 N.C. 712, 719-20, 291 S.E.2d 585, 591 (1982) (\u201cIn reviewing orders entered pursuant to that act, this court held that the findings of fact of the trial judge were binding upon the petitioner if they were supported by evidence.\u201d); State v. Baker, 312 N.C. 34, 40, 320 S.E.2d 670, 675 (1984) (\u201cFindings of fact made by a court in its order granting or denying a motion for appropriate relief are binding on appeal if supported by evidence in the record.\u201d). We are unable to follow the prescribed standard of review in the absence of a proper order.\nIt follows that the trial court erred in not filing a written order as required by N.C. Gen. Stat. \u00a7 15A-1420(c)(4) & (7). In the present case, this procedural error compounds the substantive errors discussed above. I would hold that the trial court erred by denying Defendant\u2019s MAR. Accordingly, I respectfully dissent from the majority\u2019s conclusion to the contrary.\n. In this regard the probably true factor resembles the sixth factor: that the new evidence does not tend only to contradict a former witness. The probably true factor may thus be extraneous. See State v. Britt, 320 N.C. 705, 713, 360 S.E.2d 660, 664 (1987) (recognizing the test as \u201ca modification of the \u2018Berry\u2019 rule, initially set forth in Berry v. State, 10 Ga. 511 (1851) (setting forth essentially the same prerequisites but lacking the requirement that the newly discovered evidence be \u2018probably true\u2019).\u201d), superceded by statute on other grounds, as stated in State v. Defoe, \u2014 N.C. \u2014, \u2014 691 S.E.2d 1, 4 (2010).\n. The trial court observed at the MAR hearing that Defendant had identified the gun as a .38. Detective Poe testified at the MAR hearing that a .38 is a revolver, not an automatic as Lemon described. This inconsistency of type does not constitute a contradiction of Lemon\u2019s evidence that the gun was not loaded.\n. Defendant asserts in his brief \u201c[t]he Court requested a written order, which was never filed.\u201d The State does not dispute that no order was filed, and does not explain the omission.", "type": "dissent", "author": "WYNN, Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Sharon Patrick-Wilson, for the State.", "Christy E. Wilhelm, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. NATHAN DARNELL WILLIAMSON\nNo. COA09-1475\n(Filed 7 September 2010)\n1. Robbery\u2014 inoperable gun \u2014 instruction\u2014not given\nDefendant was not entitled to an instruction on common law robbery or to the dismissal of two counts of robbery with a dangerous weapon where the jury was not presented with evidence that his gun was unloaded or inoperable.\n2. Criminal Law\u2014 motion for appropriate relief \u2014 newly discovered evidence \u2014 truthfulness\u2014burden not met\nThe trial court correctly determined that a defendant making a motion for appropriate relief did not meet his burden of proof in establishing that newly discovered evidence was probably true. The issue largely turned upon the credibility of a witness; such questions were best left for the trial court.\n3. Criminal Law\u2014 motion for appropriate relief \u2014 newly discovered evidence \u2014 due diligence \u2014 burden not met\nA defendant making a motion for appropriate relief based on newly discovered evidence did not establish due diligence where the State had placed a witness\u2019s statement in the courthouse mailbox of defendant\u2019s attorney the day before trial, defense counsel did not check his mailbox until the trial was over, and defense counsel independently interviewed the witness without asking the key question.\n4. Criminal Law\u2014 motion for appropriate relief \u2014 newly discovered evidence \u2014 findings and conclusions \u2014 not written\nThe trial court did not err by failing to enter a written order containing its findings of fact and conclusions of law when it denied defendant\u2019s motion for appropriate relief. Neither statute nor precedent required written findings or conclusions, and there was no reason that oral findings and conclusions would frustrate appellate review.\nJudge WYNN dissenting prior to 10 August 2010.\nAppeal by defendant from judgment entered 6 May 2009 and order entered 17 June 2009 by Judge William Z. Wood, Jr., in Forsyth County Superior Court. Heard in the Court of Appeals 27 April 2010.\nAttorney General Roy Cooper, by Special Deputy Attorney General Sharon Patrick-Wilson, for the State.\nChristy E. Wilhelm, for defendant-appellant." }, "file_name": "0599-01", "first_page_order": 623, "last_page_order": 652 }