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          "parenthetical": "quoting State v. Cannon, 92 N.C. App. 246, 254, 374 S.E.2d 604, 608-09 (1988), rev'd on other grounds, 326 N.C. 37, 387 S.E.2d 450 (1990)"
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          "parenthetical": "quoting State v. Cannon, 92 N.C. App. 246, 254, 374 S.E.2d 604, 608-09 (1988), rev'd on other grounds, 326 N.C. 37, 387 S.E.2d 450 (1990)"
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          "parenthetical": "quoting State v. Cannon, 92 N.C. App. 246, 254, 374 S.E.2d 604, 608-09 (1988), rev'd on other grounds, 326 N.C. 37, 387 S.E.2d 450 (1990)"
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    "judges": [
      "Chief Judge MARTIN and Judge ROBERT C. HUNTER concur."
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    "parties": [
      "STATE OF NORTH CAROLINA v. ROY LEE ELKINS"
    ],
    "opinions": [
      {
        "text": "THIGPEN, Judge.\nRoy Lee Elkins (\u201cDefendant\u201d) appeals from judgment entered 4 December 2009 sentencing him to 107 to 138 months incarceration consistent with the jury\u2019s guilty verdict of common law robbery and Defendant\u2019s plea of guilty of having attained the status of an habitual felon. We find no error.\nThe evidence of record tends to show that on 28 January 2009 Defendant entered a Hot Spot convenience store in Asheville, North Carolina. The store cashier, William McHone (\u201cMcHone\u201d), saw Defendant go to the restroom and remain there while McHone continued talking with a friend at the front of the store. When McHone\u2019s friend left the store, Defendant exited the restroom and approached McHone at the cash register. Defendant said, \u201cI need a hundred dollars,\u201d after which McHone laughed, saying \u201c[Yeah], I do, too.\u201d Defendant then said, for a second time, \u201cI need a hundred dollars,\u201d and McHone \u201clooked at his eyes and . . . knew he was serious.\u201d McHone also noticed that Defendant was \u201chiding his arm\u201d under his jacket, and McHone thought Defendant \u201chad a gun.\u201d McHone then opened the cash register and \u201claid the till down on the counter[,]\u201d allowing Defendant to take the cash. Defendant took the cash from the cash register and left the store.\nDefendant was videotaped by the Hot Spot surveillance camera as he approached the cash register, made statements to McHone consistent with McHone\u2019s testimony, took money from the cash register, and left the store. Defendant also made a written statement to the police saying the following: \u201cMy girlfriend and I are living out of her car. She\u2019s been real sick. That night, it was really cold and we didn\u2019t have any money. I was afraid she was going to die so I went there and I took that money. I shouldn\u2019t have done it, I know.\u201d\nOn 20 February 2009, Defendant was indicted on counts of common law robbery and having attained the status of an habitual felon. Defendant was tried during the 30 November 2009 session of the Superior Criminal Court of Buncombe County. A jury found Defendant guilty of common law robbery, and Defendant pled guilty to having attained the status of an habitual felon. The court entered judgment on 4 December 2009 sentencing him to 107 to 138 months incarceration consistent with the jury\u2019s guilty verdict and Defendant\u2019s plea, and ordering restitution in the amount of $59.00. From this judgment, Defendant appeals. We find no prejudicial error in part and vacate in part.\nI: Sufficiency of the Evidence\nIn Defendant\u2019s first argument on appeal, Defendant challenges the trial court\u2019s refusal to grant his motion to dismiss predicated on the alleged absence of sufficient evidence that Defendant took money from McHone by means of violence or fear.\nWhen reviewing a challenge to the denial of a defendant\u2019s motion to dismiss a charge on the basis of insufficiency of the evidence, this Court determines \u201cwhether the State presented \u2018substantial evidence\u2019 in support of each element of the charged offense.\u201d State v. Chapman, 359 N.C. 328, 374, 611 S.E.2d 794, 827 (2005) (quotation omitted). \u201c \u2018Substantial evidence is relevant evidence that a reasonable person might accept as adequate, or would consider necessary to support a particular conclusion.\u2019 \u201d State v. Abshire, 363 N.C. 322, 328, 677 S.E.2d 444, 449 (2009) (quoting State v. McNeil, 359 N.C. 800, 804, 617 S.E.2d 271, 274 (2005)). \u201cIn this determination, all evidence is considered in the light most favorable to the State, and the State receives the benefit of every reasonable inference supported by that evidence.\u201d Id. Additionally, a \u201csubstantial evidence inquiry examines the sufficiency of the evidence presented but not its weight,\u201d which remains a matter for the jury. McNeil, 359 N.C. at 804, 617 S.E.2d at 274. Thus, \u201c[i]f there is substantial evidence \u2014 whether direct, circumstantial, or both \u2014 to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.\u201d Id.\nThe elements of common-law robbery are \u201cthe felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear.\u201d State v. Smith, 305 N.C. 691, 700, 292 S.E.2d 264, 270, cert. denied, 459 U.S. 1056, 74 L. Ed. 2d 622, 103 S. Ct. 474 (1982) (citation omitted). \u201cThe force element required for common law robbery requires violence or fear \u2018sufficient to compel the victim to part with his property\u2019 \u201d or \u201c \u2018to prevent resistance to the taking.\u2019 \u201d State v. Williams, \u2014 N.C. App. \u2014 ,-, 689 S.E.2d 412, 424 (2009) (quoting State v. Sipes, 233 N.C. 633, 635, 65 S.E.2d 127, 128 (1951), State v. Sawyer, 224 N.C. 61, 65, 29 S.E.2d 34, 37 (1944)). \u201c[I]t is not necessary to prove both violence and putting in fear \u2014 proof of either is sufficient.\u201d Sawyer, 224 N.C. at 65, 29 S.E.2d at 37.\nThe element of force, which requires proof of a taking either by violence or putting the victim in fear, may be \u201cactual or constructive.\u201d Sipes, 233 N.C. at 635, 65 S.E.2d at 128. \u201c \u2018Constructive force\u2019 includes all demonstrations of force, menaces, and other means by which the person robbed is put in fear sufficient to suspend the free exercise of his will or prevent him from resisting the taking.\u201d Id.\nNo matter how slight the cause creating the fear may be or by what other circumstances the taking may be accomplished, if the transaction is attended with such circumstances of terror, such threatening by word or gesture, as in common experience are likely to create an apprehension of danger and induce a man to part with his property for the sake of his person, the victim is put in fear.\nSawyer, 224 N.C. at 65, 29 S.E.2d at 37. The Supreme Court has also noted \u201cthat the word \u2018fear\u2019 ... in the definition of common-law robbery is not confined to fear of death[,]\u201d and \u201cthe use or threatened use of a firearm or other dangerous weapon is not an essential of common-law robbery.\u201d State v. Moore, 279 N.C. 455, 458, 183 S.E.2d 546, 547-48 (1971).\nIn the case sub judice, McHone testified at trial with regard to the common law robbery element of violence or fear, stating that a man came into the convenience store and walked \u201ctoward the restroom.\u201d McHone \u201cjust went on with [his] work and started talking ... to a friend of mine.\u201d When McHone\u2019s friend left the store, \u201cthe guy [came] out of the restroom and [walked] up to me,\u201d demanding, \u201c T need a hundred dollars[.]\u2019 \u201d At first, McHone \u201cstarted laughing\u201d because McHone \u201cthought he was joking.\u201d However, the man again demanded, \u201c T . . . need a hundred dollars.\u2019 \u201d This time, McHone \u201clooked at his eyes and ... I knew he was serious.\u201d When asked specifically, \u201cWhat about his eyes?\u201d McHone responded, \u201cThey looked evil looking. . . . [I]t was just like he meant it[;] [y]ou know how you get mad and angry at somebody and you mean something[,] . . . [y]our eyes can tell the story.\u201d McHone also noticed that the man \u201chad [his hand] under his jacket[,]\u201d and McHone \u201cthought he . . . might have had a gun or something[.]\u201d McHone repeated, \u201cI thought that he had a gun under his jacket\u201d because \u201che was hiding his arm.\u201d \u201cI knew he was trying to rob me,\u201d McHone said. The man \u201c[h]ad his arm under [the] jacket there[,] [and] ... I thought it was a gun.\u201d After the man\u2019s second demand for one-hundred dollars, McHone \u201cwent to the cash register],]\u201d \u201copened it up[,]\u201d and \u201claid the till down on the counter [to] let him get the money[.]\u201d McHone said he took the money and left the store. When specifically asked, \u201cbased on your fear that he may have ... a gun, is that when you gave him the money?\u201d McHone answered, \u201cThat\u2019s right. That\u2019s right.\u201d\nDefendant argues that State v. Parker, 322 N.C. 559, 369 S.E.2d 596 (1988), is binding authority. We disagree. In Parker, the evidence surrounding the alleged common law robbery tended to show the victim was abducted at gunpoint and forced into the back seat of the defendant\u2019s car. Id., 322 N.C. at 561, 369 S.E.2d at 597. When the defendant asked \u201cif [the victim] had any money or valuables[,] [s]he told him she had only a watch on a chain around her neck[,]\u201d which the defendant took. Id., 322 N.C. at 561, 369 S.E.2d at 597-98. The defendant then returned the victim to her dormitory, at which point the victim testified \u201cshe talked to her assailant in an attempt to keep him calm.\u201d\nShe told the defendant that the watch he had taken was a gift from her mother and that she would get money from her dormitory room and give it to him in exchange for the watch. They returned to the campus where the victim went to her room, got some money and returned to the parking lot. The defendant drove up beside the victim; she leaned into the car window and handed him the money in exchange for her watch. He then drove away.\nId., 322 N.C. at 561, 369 S.E.2d at 598. The Court concluded there was insufficient evidence of the element of violence or fear, reasoning:\nAll of the evidence unequivocally tended to show that the victim was not induced to part with her money as a result of violence or fear. To the contrary, she clearly testified that no weapon was in sight and she was not afraid at the time she left the defendant in his car and went to her dormitory room to get her money Neither was there any evidence that violence or fear induced her to give her money to the defendant when she returned.\nId., 322 N.C. at 566-67, 369 S.E.2d at 601. Parker is distinguishable from this case in several ways. At the time the victim in Parker gave the defendant her money, there was no weapon in sight, and the victim in Parker \u201ctestified . . . she was not afraid\u201d when she left the defendant\u2019s car. In the case sub judice, McHone testified that Defendant was \u201chiding his arm\u201d under his jacket, and McHone thought Defendant \u201chad a gun.\u201d Moreover, McHone\u2019s testimony indicates he gave Defendant the money from the cash register because \u201c[Defendant] may have ... a gun[.]\u201d\nWe find the opinion, State v. White, 142 N.C. App. 201, 542 S.E.2d 265 (2001), instructive here. In White, the Court concluded there was sufficient evidence of the element of violence or fear when the defendant handed a threatening note to the convenience store clerks implying the defendant had a gun, even though \u201cnone of the victims saw a firearm in defendant\u2019s possession.\u201d Id., 142 N.C. App. at 205, 542 S.E.2d at 268. In the case sub judice, the manner in which Defendant kept his arm under his jacket implied Defendant was hiding a weapon; congruently, McHone believed Defendant had a gun under his jacket. We see no material difference between (1) the defendant in White indicating he had a weapon by passing a note, and (2) Defendant in this case indicating he had a weapon by hiding his arm under his jacket in a manner suggesting he had a gun. Furthermore, McHone indicates he gave Defendant the money from the cash register because he thought \u201c[Defendant] may have ... a gun[.]\u201d See Williams,-N.C. App. at-, 689 S.E.2d at 424 (stating that \u201c[t]he force element required for common law robbery requires violence or fear sufficient to compel the victim to part with his property [or] . . . to prevent resistance to the taking\u201d). Lastly, even though the evidence here tends to show that McHone believed Defendant had a gun, we reiterate that this belief was not necessary to establish the force element of common law robbery: \u201c[Threatened use of a firearm or other dangerous weapon is not an essential of common-law robbery.\u201d Moore, 279 N.C. at 458, 183 S.E.2d at 548.\nBased on this Court\u2019s opinion in White, 142 N.C. App. 201, 542 S.E.2d 265, and its application to the facts of this case, we believe that McHone\u2019s testimony, which indicated that (1) Defendant hid his arm underneath his jacket in a manner suggesting that Defendant had a gun; (2) McHone knew Defendant was \u201cserious\u201d because his eyes were \u201cevil looking\u201d; (3) and that McHone was afraid and therefore gave Defendant the money from the cash register, is sufficient evidence to support the element of violence or fear. We conclude that this argument on appeal is without merit.\nII: Speculative Testimony\nIn Defendant\u2019s second argument on appeal, he contends the court abused its discretion in allowing testimony that constituted mere speculation. We disagree.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 602 (2009), states, in pertinent part, the following: \u201cA witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matterf.]\u201d Accordantly, \u201c[t]estimony that is mere speculation is inadmissible.\u201d State v. Garcell, 363 N.C. 10, 36, 678 S.E.2d 618, 635 (2009).\nPursuant to N.C. Gen. Stat. \u00a7 8C-1, Rule 701 (2009), \u201ca lay witness may testify as to his or her opinion, provided the opinion is rationally based upon his or her perception and is helpful to the jury\u2019s understanding of the testimony\u201d or the determination of a fact in issue. State v. Anthony, 354 N.C. 372, 411, 555 S.E.2d 557, 583 (2001), cert. denied, 536 U.S. 930, 153 L. Ed. 2d 791, 122 S. Ct. 2605 (2002). \u201c[P]ersonal knowledge is not an absolute but may consist of what the witness thinks he knows from personal perception.\u201d State v. Wright, 151 N.C. App. 493, 495, 566 S.E.2d 151, 153 (2002) (quotation omitted). In certain cases, \u201cstatements, while reflecting either poor memory or indistinct perception, are nonetheless competent and admissible because they were rationally based on the firsthand observation of the witness, rather than mere speculation or conjecture.\u201d State v. Davis, 77 N.C. App. 68, 73, 334 S.E.2d 509, 512 (1985) (citing State v. Joyner, 301 N.C. 18, 24, 269 S.E.2d 125, 129 (1980)).\n\u201cThe standard of review for this Court assessing evidentiary rulings is abuse of discretion.\u201d State v. Boston, 165 N.C. App. 214, 218, 598 S.E.2d 163, 166 (2004) (citing State v. Meekins, 326 N.C. 689, 696, 392 S.E.2d 346, 350 (1990)).\nIn this case, McHone gave the following testimony:\nA: ... I thought that he had a gun under his jacket, is the reason why he was hiding his arm.\nDefense Counsel: Objection. Speculation.\nThe Court: Overruled. . . .\nA: And that\u2019s the reason why I went over to the cash register and opened the cash register and laid the till down on the counter because I knew he was trying to rob me, you know. Had his arm under jacket there. I mean, I thought it was a gun. I \u2014 -like you say, it\u2019s speculation but I don\u2019t know.\nWe find Davis, 77 N.C. App. 68, 334 S.E.2d 509 instructive here. In Davis, this Court stated that an \u201cindistinct perception,\u201d may be \u201ccompetent and admissible\u201d if that perception is \u201crationally based on the firsthand observation of the witness, rather than mere speculation or conjecture.\u201d Id., 77 N.C. App. at 73, 334 S.E.2d at 512. In Davis, the following testimony of an eye-witness was alleged by the defendant to be speculation:\nWhen asked by the State where she saw the defendant go upon his arrival at the motel, she answered, \u201cI would say what looks like room fifty-one.\u201d . . . The witness, as a resident of Room 41, had earlier testified she knew where Room 51 was in reference to her own room.\nId., 77 N.C. App. at 72, 334 S.E.2d at 512. The Court held that \u201c[b]ased on her observations, her response was properly admitted as a \u2018natural and instinctive inference\u2019 or \u2018instantaneous conclusions . . . derived from observation of a variety of facts presented to the senses at one and the same time.\u2019 \u201d Id., 77 N.C. App. at 72, 334 S.E.2d at 512 (quoting Joyner, 301 N.C. at 23, 269 S.E.2d at 129). The Court in Davis further examined the following testimony by the same eye-witness: \u201c[Wjhen asked whether defendant entered Room 51\u201d the eye-witness stated, \u201cI presume because I heard . . . [and] [s]aw him . . . shut the door or whatever.\u201d Id., 77 N.C. App. at 73, 334 S.E.2d at 512. The Court in Davis concluded that \u201c[t]hese statements, while reflecting either poor memory or indistinct perception, are nonetheless competent and admissible because they were rationally based on the firsthand observation of the witness, rather than mere speculation or conjecture.\u201d Id.\nHere, based on McHone\u2019s observation of Defendant, McHone believed Defendant had a gun because Defendant was \u201chiding his arm\u201d under his jacket. We believe that McHone\u2019s perception, although indistinct, because McHone did not know with certainty that Defendant had a gun, was nonetheless rationally based on McHone\u2019s firsthand observation of Defendant and is more than mere speculation or conjecture. For the foregoing reasons, we conclude the evidence in question was admissible, and that the trial court did not err, and certainly did not abuse its discretion, by allowing McHone\u2019s testimony that he believed Defendant had a gun under his jacket.\nIII: Leading Questions\nIn Defendant\u2019s third argument on appeal, he contends the court committed plain error in allowing testimony that was derived from leading questions by the prosecutor. We disagree.\nRule 10(a)(4) of the North Carolina Rules of Appellate Procedure governs this Court\u2019s review of matters employing the plain error standard: \u201cIn criminal cases, an issue that was not preserved by objection noted at trial. . . nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.\u201d\nPlain error analysis applies to evidentiary matters and jury instructions. State v. Cummings, 361 N.C. 438, 469, 648 S.E.2d 788, 807 (2007), cert. denied, 552 U.S. 1319, 128 S. Ct. 1888, 170 L. Ed. 2d 760 (2008). \u201cA reversal for plain error is only appropriate in the most exceptional cases.\u201d State v. Raines, 362 N.C. 1, 16, 653 S.E.2d 126,136 (2007), cert. denied,-U.S.-, 174 L. Ed. 2d 601, 129 S. Ct. 2857 (quotation omitted). \u201cThe plain error rule is critical in the context of admitting physical evidence or testimony without an objection because the trial court is not expected to second-guess a party\u2019s trial strategy[;] [t]he possibility always exists that a party intentionally declines to object for some strategic reason.\u201d State v. Garcell, 363 N.C. 10, 35, 678 S.E.2d 618, 634, cert. denied,-U.S.-, 175 L. Ed. 2d 362, 130 S. Ct. 510 (2009) (citing State v. Black, 308 N.C. 736, 740, 303 S.E.2d 804, 806 (1983)). To show plain error, the \u201c \u2018defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result,\u2019 \u201d State v. Allen, 360 N.C. 297, 310, 626 S.E.2d 271, 282, cert. denied, 549 U.S. 867, 166 L. Ed. 2d 116, 127 S. Ct. 164 (2006) (quoting State v. Haselden, 357 N.C. 1, 13, 577 S.E.2d 594, 602, cert. denied, 540 U.S. 988,157 L. Ed. 2d 382, 124 S. Ct. 475 (2003)); or we must be convinced that any error was so \u201cfundamental\u201d that it caused \u201ca miscarriage of justice.\u201d State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quotation omitted).\nN.C. Gen. Stat. \u00a7 8C-1, Rule 611(c) (2009), provides, in pertinent part, that \u201c[l]eading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony.\u201d\nOn appeal, Defendant specifically challenges the admission of the following evidence, even though Defendant failed to lodge an objection at trial:\nQ: And based on your fear that he may have \u2014 that he may have a gun, is that when you gave him the money?\nA: That\u2019s right. That\u2019s right.\nThe essence of Defendant\u2019s argument is, assuming this Court concluded there was sufficient evidence to support the violence or fear element of common law robbery, the sufficiency of the evidence must necessarily hinge on the foregoing leading question and inadmissible elicited response from McHone. We find Defendant\u2019s argument unpersuasive due to other evidence of record tending to satisfy the violence or fear element of common law robbery.\nIn the case sub judice, McHone believed Defendant threatened him by gesture; more specifically, McHone believed Defendant hid his arm underneath his jacket to conceal a gun. Moreover, McHone said Defendant was \u201cserious\u201d and his eyes were \u201cevil looking.\u201d The evidence also shows that McHone did, in fact, part with the money from Hot Spot\u2019s cash register after Defendant twice demanded one-hundred dollars while ostensibly concealing a gun. See Williams,N.C. App. at-, 689 S.E.2d at 424 (stating that \u201c[t]he force element required for common law robbery requires violence or fear sufficient to compel the victim to part with his property [or]... to prevent resistance to the taking\u201d). We believe the foregoing evidence was sufficient evidence to support the element of violence and fear without the testimony elicited by the above leading question containing the word \u201cfear.\u201d For that reason, any error the trial court may have made by allowing the admission of the leading question does not amount to plain error, as the trial was not prejudiced. This assignment of error is overruled.\nIV: Plain Error\nIn Defendant\u2019s next argument on appeal, he contends that the admission of a series of evidence and testimony during the examination of Detective Janice Hawkins (\u201cHawkins\u201d), including (1) alleged hearsay testimony by Hawkins regarding statements by Andy Edwards (\u201cEdwards\u201d) and a hospital employee, (2) photographs allegedly admitted without authentication or identification, and (3) Hawkins\u2019 testimony that she \u201cfelt like [she] was building a solid case,\u201d constituted plain error.\nDefendant did not object at trial to the admission of this evidence. Therefore, these errors will be reviewed applying the plain error standard. As we have previously stated, to show plain error, \u201c \u2018defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result,\u2019 \u201d Allen, 360 N.C. at 310, 626 S.E.2d at 282, or we must be convinced that any error was so \u201cfundamental\u201d that it caused \u201ca miscarriage of justice.\u201d Odom, 307 N.C. at 660, 300 S.E.2d at 378.\nA: Hearsay\n\u201c \u2018Hearsay\u2019 is a statement, other than one made by the declarant while testifying at the trial, or hearing, offered in evidence to prove the truth of the matter asserted.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 801(c) (2009). \u201c[0]ut-of-court statements that are offered for purposes other than to prove the truth of the matter asserted are not considered hearsay.\u201d State v. Call, 349 N.C. 382, 409, 508 S.E.2d 496, 513 (1998). \u201c[Statements are not hearsay if they are made to explain the subsequent conduct of the person to whom the statement was directed.\u201d State v. Gainey, 355 N.C. 73, 87, 558 S.E.2d 463, 473 (2002) (citation omitted).\ni: Andy Edwards\nDefendant first challenges the following testimony given by Hawkins regarding statements made by Edwards in the course of Hawkins\u2019 investigation:\nAnd [Edwards] said that... Roy always wore that jacket and then at one \u2014 one night, you know, he just decided not to wear that jacket any more and he asked to borrow one of Andy\u2019s jackets. He said he had not worn that jacket any more. It was right around the time he thought he\u2019d seen the news. I said okay. He also said that ... he thought that Roy had come down to Asheville during that time because his girlfriend was sick. And so Andy told me that Roy took his girlfriend down to Asheville to the hospital and then he \u2014 and they came back a day or so later and it was all in this time that it was on the news. He just knew it was Roy because all that seemed to fit for Mr. Edwards in his mind.\nWe believe the foregoing statements were not offered to prove the truth of the matter asserted, but rather to explain Hawkins\u2019 subsequent actions. Gainey, 355 N.C. at 87, 558 S.E.2d at 473 (holding that \u201cstatements are not hearsay if they are made to explain the subsequent conduct of the person to whom the statement was directed\u201d). After Hawkins spoke with Edwards, Hawkins asked for and received Defendant\u2019s jacket as evidence; Hawkins also subsequently went to the hospital in Asheville for the purpose of obtaining a surveillance video as further evidence in this case. The statement explains the subsequent conduct of Hawkins after speaking with Edwards. Accordingly, this testimony was proper nonhearsay evidence, and the trial court did not err in admitting it.\nAssuming arguendo the foregoing evidence did constitute hearsay, the error of its admission would not have reached the level of plain error, as other evidence incriminating Defendant, including evidence of a surveillance video from Hot Spot and Defendant\u2019s own written statement of confession, was plenary.\nii: Hospital Employee\nDefendant also challenges the admission of an alleged hearsay statement by Hawkins, who stated that a hospital employee \u201cindicated . . . they did see this person (Defendant) on video.\u201d Again, we believe this statement was not offered to prove the truth of the matter asserted, but rather to explain Hawkins\u2019 subsequent actions. Gainey, 355 N.C. at 87, 558 S.E.2d at 473. The statement was offered to show why Hawkins obtained a search warrant to procure the hospital surveillance video as evidence. Accordingly, this testimony was proper nonhearsay evidence, and the trial court did not err in admitting it. Again, assuming arguendo the foregoing statement was inadmissible hearsay, the uncontested and plenary evidence incriminating Defendant was sufficient to convict Defendant, such that the admission of this statement did not amount to plain error.\nB: Photograph Authentication\nIn his next argument on appeal, Defendant contends the trial court erred in allowing the State to introduce three photographs, which were part of the hospital surveillance video, because the photographs were not properly authenticated.\nN.C. Gen. Stat. \u00a7 8-97 (2009), provides that \u201c[a]ny party may introduce a photograph, video tape, motion picture, X-ray or other photographic representation as substantive evidence upon laying a proper foundation and meeting other applicable evidentiary requirements];] [t]his section does not prohibit a party from introducing a photograph or other pictorial representation solely for the purpose of illustrating the testimony of a witness.\u201d The proper foundation for a videotape may be shown by:\n(1) testimony that the motion picture or videotape fairly and accurately illustrates the events filmed (illustrative purposes); (2) \u201cproper testimony concerning the checking and operation of the video camera and the chain of evidence concerning the videotape . . .\u201d; (3) testimony that \u201cthe photographs introduced at trial were the same as those [the witness] had inspected immediately after processing,\u201d (substantive purposes); or (4) \u201ctestimony that the videotape had not been edited, and that the picture fairly and accurately recorded the actual appearance of the area \u201cphotographed.\u2019 \u201d\nState v. Smith, 152 N.C. App. 29, 38, 566 S.E.2d 793, 800, cert. denied, 356 N.C. 311, 571 S.E.2d 208 (2002) (quoting State v. Cannon, 92 N.C. App. 246, 254, 374 S.E.2d 604, 608-09 (1988), rev\u2019d on other grounds, 326 N.C. 37, 387 S.E.2d 450 (1990)).\nHere, the trial court allowed the admission of the photographs derived from a hospital surveillance video into evidence without objection from Defendant. In fact, the court specifically asked counsel for defense if there was \u201cany objection,\u201d to which counsel responded, \u201cNo, Your Honor.\u201d However, a review of the transcript shows the photographs were not authenticated by any mechanism of proper foundation provided in Smith, 152 N.C. App. 29, 566 S.E.2d 793. Hawkins did not testify that the photographs accurately portrayed what she had observed, because Hawkins did not observe Defendant in the hospital at the time the surveillance video captured images of Defendant. Hawkins subsequently obtained and viewed the hospital surveillance videos in the course of her investigation of Defendant as a suspect. Therefore, Hawkins was unqualified to testify that the photographs accurately portrayed Defendant in the hospital, such that the photographs were properly authenticated for illustrative purposes: Hawkins had made no such observation. Compare, State v. Alston, 91 N.C. App. 707, 713, 373 S.E.2d 306, 311 (1988) (holding that because \u201c[t]he officer clearly indicated that the photographs accurately portrayed what he had observed[,] ... the photographs were properly authenticated for illustrative purposes\u201d); State v. Gaither, 161 N.C. App. 96, 102-03, 587 S.E.2d 505, 509 (2003), disc, review denied, 358 N.C. 157, 593 S.E.2d 83 (2004) (holding a videotape properly authenticated for illustrative purposes when \u201ca television news crew [recorded] . . . the K-9 unit search for the weapon\u201d and the videotape \u201cillustratfed] the testimony of the K-9 officer\u201d). We agree with Defendant that the photographs were not properly authenticated. This conclusion notwithstanding, the plenary uncontested evidence incriminating Defendant, including the Hot Spot surveillance video, the testimony of McHone, and Defendant\u2019s own statement of confession, was such that the admission of these three photographs depicting Defendant in a hospital were not prejudicial to Defendant\u2019s trial. Therefore, the trial court did not commit plain error in admitting the photographs into evidence.\nC: Opinion Testimony\nDefendant next contends that a statement by Hawkins on direct examination constituted an inadmissible opinion by a lay witness in violation of N.C. Gen. Stat. \u00a7 8C-1, Rule 701 (2009), and \u201cinvaded the province of the jury.\u201d\nRule 701 provides the following: \u201cIf the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.\u201d However, N.C. Gen. Stat. \u00a7 8C-1, Rule 704 (2009), provides that \u201c[t]estimony in the form of an opinion or inference is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.\u201d\nRule 704 \u201cdoes allow admission of lay opinion evidence onultimate issues, but to qualify for admission the opinion must be helpful to the jury.\u201d Mobley v. Hill, 80 N.C. App. 79, 86, 341 S.E.2d 46, 50 (1986) (citing N.C. Gen. Stat. \u00a7 8C-1, Rule 701). \u201c \u2018[M]eaningless assertions which amount to little more than choosing up sides\u2019 are properly excludable as lacking helpfulness under the Rules.\u201d Hill, 80 N.C. App. at 86, 341 S.E.2d at 50. Furthermore, \u201cwhile opinion testimony may embrace an ultimate issue, the opinion may not be phrased using a legal term of art carrying a specific legal meaning not readily apparent to the witness.\u201d State v. Najewicz, 112 N.C. App. 280, 293, 436 S.E.2d 132, 140 (1993), disc. review denied, 335 N.C. 563, 441 S.E.2d 130 (1994) (citing State v. Rose, 327 N.C. 599, 602-04, 398 S.E.2d 314, 315-17 (1990)).\nIn our analysis of this case, we must first ask whether the statement at issue was inadmissible pursuant to Rule 701 and Rule 704. If it was error to allow the statement\u2019s admission, we must then determine whether that error constituted plain error. Defendant argues that the following testimony was impermissible lay opinion testimony:\nQ: ... Now Detective Hawkins, after you received this information from the hospital, what were your next steps? Were you building a case at this point?\nA: I felt like I was building a solid case. Mr. Elkins was, indeed, the offender in this case.\nWe find the opinion in State v. Carrillo, 164 N.C. App. 204, 595 S.E.2d 219 (2004), appeal dismissed, disc. review denied, 359 N.C. 283, 610 S.E.2d 710 (2005), instructive here. In Carrillo, a policeman gave testimony regarding his opinion of the defendant\u2019s guilt, which was elicited by counsel for defense, and to which the defendant did not object. Specifically, the policeman responded to the question of whether the defendant might have been an \u201cunwilling participant in the transfer of drugs,\u201d by saying, \u201cNo, because you\u2019re talking about $28,000.00 street value worth of cocaine. ... I think your client knew what was in that package.\u201d Id., 164 N.C. App. at 209, 595 S.E.2d at 223. Moreover, in the same case, a U.S. Customs Agent gave testimony regarding his opinion of the defendant\u2019s guilt by explaining, \u201c[the] defendant dropped his head, stared at the ground, and \u2018would not answer\u2019 when asked... who had provided him with a fictitious Social Security Card],]\u201d and because of his reaction, \u201cI think he realized he had been caught.\u201d Id., 164 N.C. App. at 209-10, 595 S.E.2d at 223. He reiterated that \u201c[m]y opinion is that he realized he was caught and that he couldn\u2019t bluff or lie his way out of it.\u201d Id., 164 N.C. App. at 210, 595 S.E.2d at 223.\nThe Court in Carrillo concluded \u201cthat the trial court erred in allowing the officers to offer their opinions of whether defendant was guilty.\u201d Id., 164 N.C. App. at 210, 595 S.E.2d at 223 (citing State v. Fleming, 350 N.C. 109, 126, 512 S.E.2d 720, 732, cert. denied, 528 U.S. 941, 145 L. Ed. 2d 274, 120 S. Ct. 351 (1999)). However, the Court further concluded that \u201c[although it was error to allow the law enforcement officers to provide their opinions regarding defendant\u2019s guilt, defendant has failed to show that without this testimony the jury would have reached a different verdict.\u201d Id., 164 N.C. App. at 211, 595 S.E.2d at 224. Therefore, the error did not constitute plain error.\nWhile we note that Rule 704 \u201cdoes allow admission of lay opinion evidence on ultimate issues,\u201d Hill, 80 N.C. App. at 86, 341 S.E.2d at 50 (1986), Rule 701 requires that, \u201cto qualify for admission[,] the opinion [evidence] must be helpful to the jury.\u201d Id. (citing N.C. Gen. Stat. \u00a7 8C-1, Rule 701). Here, we do not believe that the statement, \u201cI felt like I was building a solid case[;] Mr. Elkins was, indeed, the offender in this case,\u201d is helpful, pursuant to Rule 701, to the \u201cdetermination of a fact in issue.\u201d Rather, the foregoing statement is solely and simply an opinion of the ultimate issue of Defendant\u2019s guilt, and as such, the statement\u2019s admission was error.\nHowever, given that Defendant did not object to the admission of the testimony at trial, and because Defendant\u2019s failure to object necessitates that we review for plain error, we cannot conclude that \u201cabsent the error, the jury probably would have reached a different result,\u2019 \u201d Allen, 360 N.C. at 310, 626 S.E.2d at 282, or that the error was so \u201cfundamental\u201d that it caused \u201ca miscarriage of justice.\u201d Odom, 307 N.C. at 660, 300 S.E.2d at 378. The plenary evidence incriminating Defendant, including the surveillance video from the convenience store, McHone\u2019s testimony, and Defendant\u2019s own statement of confession, was such that the admission of Hawkins\u2019 statement did not prejudice Defendant\u2019s trial. See Carrillo, 164 N.C. App. at 211, 595 S.E.2d at 224. Therefore, even though the admission of the statement was error, we conclude it was not plain error.\nV: Restitution\nIn Defendant\u2019s final argument on appeal, he contends that the $59.00 restitution order was not supported by the evidence addused at trial or at sentencing. We agree.\nPrimarily, we note that Defendant did not object to the restitution order at trial. In State v. Shelton, 167 N.C. App. 225, 605 S.E.2d 228 (2004), this Court reasoned that \u201c[w]hile defendant did not specifically object to the trial court\u2019s entry of an award of restitution, this issue is deemed preserved for appellate review under N.C. Gen. Stat. \u00a7 15A-1446(d)(18).\u201d Id., 167 N.C. App. at 233, 605 S.E.2d at 233 (citing State v. Reynolds, 161 N.C. App. 144, 149, 587 S.E.2d 456, 460 (2003)).\n\u201c[T]he amount of restitution recommended by the trial court must be supported by evidence adduced at trial or at sentencing.\u201d Id. (citing State v. Wilson, 340 N.C. 720, 726, 459 S.E.2d 192, 196 (1995)). \u201cThe unsworn statement of the prosecutor is insufficient to support the amount of restitution ordered. \u201d Id. (citing State v. Buchanan, 108 N.C. App. 338, 423 S.E.2d 819 (1992)). However, \u201c[i]ssues at a sentencing hearing may be established by stipulation of counsel if that stipulation is definite and certain.\u201d State v. Mumford, 364 N.C. 394, 403, 699 S.E.2d 911, 917 (2010) (quotation omitted).\nHere, the prosecutor made the following unsworn statement: \u201cWe do have a- \u2014 in regards to the common law robbery, we have the restitution to the Hot Spot in the amount of $59.\u201d No other evidence was presented during sentencing with regard to restitution. Defendant did not object to the foregoing amount of restitution; however, neither is there any evidence of record that Defendant stipulated to the foregoing amount. Essentially, the sole evidence supporting the restitution order of $59.00 is the unsworn statement of the prosecutor. This alone is insufficient to support the amount of restitution ordered. See Shelton, 167 N.C. App. at 233, 605 S.E.2d at 233 (stating that \u201c[an] unsworn statement of the prosecutor is insufficient to support the amount of restitution ordered\u201d).\nFor the foregoing reasons, we conclude that Defendant had a fair trial, free from prejudicial error, with the exception of the restitution recommended. Consequently, the portion of the judgment recommending restitution in the amount of $59.00 is vacated.\nNO ERROR, in part, VACATED, in part.\nChief Judge MARTIN and Judge ROBERT C. HUNTER concur.\n. Primarily, we note that Defendant did not object at trial to the admission of the evidence admitted through alleged leading questions. Therefore, plain error review is appropriate.\n. Defendant also cites Taylor v. Kentucky, 436 U.S. 478, 56 L. Ed. 2d 468, 98 S.Ct. 1930 (1978), State v. White, 331 N.C. 604, 419 S.E.2d 557 (1992), and State v. Canady, 355 N.C. 242, 559 S.E.2d 762 (2002), for the proposition that the cumulative effect of the potentially damaging and erroneous admissions of evidence violated Defendant\u2019s due process and deprived Defendant of a fair trial. This concern was not raised at the trial, and therefore we must apply the prejudice standard as we have done in the corpus of the opinion. See State v. Elam, 302 N.C. 157, 160-61, 273 S.E.2d 661, 664 (1981) (stating that the Court will not review constitutional questions \u201cnot raised or passed upon in the trial court\u201d).",
        "type": "majority",
        "author": "THIGPEN, Judge."
      }
    ],
    "attorneys": [
      "Roy Cooper, Attorney General, by Steven A. Armstrong, Assistant Attorney General, for the State.",
      "William B. Gibson, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ROY LEE ELKINS\nNo. COA10-916\n(Filed 1 March 2011)\n1. Robbery\u2014 common law robbery \u2014 element of fear \u2014 evidence sufficient\nThe trial court did not err by denying defendant\u2019s motion to dismiss a common law robbery charge for insufficient evidence of violence or fear where defendant went into a convenience store and told the cashier he needed $100; defendant hid his arm under his jacket in a manner suggesting that he had a gun; the clerk testified that he knew that defendant was serious because of defendant\u2019s eyes; and the clerk gave defendant the money because he was afraid.\n2. Evidence\u2014 convenience store cashier \u2014 belief that defendant had gun \u2014 first-hand observation\nA convenience store cashier\u2019s testimony that he believed that defendant was holding a gun under his jacket was rationally based on his firsthand observation of defendant and was more than mere speculation or conjecture. The trial court did not abuse its discretion by admitting the testimony in defendant\u2019s robbery prosecution.\n3. Evidence\u2014 leading question \u2014 not plain error\nThere was no plain error in a common law robbery prosecution where the prosecutor was allowed to ask the victim a leading question concerning the element of fear. There was sufficient evidence to support the element of fear or violence without the testimony elicited by the leading question.\n4. Evidence\u2014 hearsay \u2014 offered to explain subsequent action \u2014other evidence of guilt\nThere was no plain error in a common law robbery prosecution where the trial court admitted alleged hearsay testimony from a detective about a jacket that defendant suddenly stopped wearing and about taking defendant to the hospital. These statements were offered to explain the detective\u2019s subsequent actions rather than as proof of the matter asserted and were not hearsay; even so, there was other evidence incriminating defendant, including his own written confession.\n5. Evidence\u2014 hearsay \u2014 offered to explain subsequent actions\u2014 no plain error\nThere was no plain error in a common law robbery prosecution where the trial court admitted a detective\u2019s testimony about a hospital employee\u2019s statements. The testimony was admitted to explain the detective\u2019s subsequent actions; however, assuming that it was hearsay, there was sufficient uncontested evidence to convict defendant.\n6. Evidence\u2014 unauthenticated surveillance photographs\u2014 other evidence of guilt\nThere was no plain error in admitting hospital surveillance photographs into evidence where the photographs were not properly authenticated but there was plenary uncontested evidence incriminating defendant.\n7. Evidence\u2014 officer\u2019s opinion of guilt \u2014 no prejudice\nThere was no plain error in a common law robbery prosecution from the trial court\u2019s erroneous admission of a detective\u2019s testimony that he was \u201cbuilding a solid case.\u201d The statement was an opinion of the ultimate issue of defendant\u2019s guilt, but the other evidence incriminating defendant-was such that there was no prejudice.\n8. Damages and Remedies\u2014 restitution \u2014 evidence not sufficient\nA restitution order in a common law robbery case supported only by the unsworn statement of the prosecutor was vacated.\nAppeal by Defendant from judgment entered 4 December 2009 by Judge James U. Downs in Buncombe County Superior Court. Heard in the Court of Appeals 10 January 2011.\nRoy Cooper, Attorney General, by Steven A. Armstrong, Assistant Attorney General, for the State.\nWilliam B. Gibson, for defendant-appellant."
  },
  "file_name": "0110-01",
  "first_page_order": 118,
  "last_page_order": 135
}
