State v. Kelly, 2022-NCCOA-713, ___ N.C. App. ___ (Nov. 1, 2022)

In this Pender County case, defendant appealed his convictions for armed robbery, arguing the trial court erred by (1) admitting testimony by a detective identifying defendant as the perpetrator, (2) denying defendant’s motion to dismiss, and (3) entering judgment and commitment on two counts of armed robbery. The Court of Appeals found no error with (1) and (2), but did find error under (3), remanding for resentencing.  

In October of 2019, a man in a sweatshirt, dark athletic pants, and gray sneakers robbed a gas station in Rocky Point, brandishing a firearm and taking money from the cash registers. After law enforcement responded and reviewed surveillance footage, an officer spotted defendant walking along a road five miles north of the gas station, and detained defendant for questioning by the detective on duty. A subsequent search found $736 in cash in defendant’s clothes. Defendant was indicted for robbing the gas station, and at trial, the State admitted surveillance video and called the detective who questioned defendant to testify. During his testimony, the detective said that defendant fit the description of the suspect, and then testified over defendant’s objection that “’defendant is the person that robbed the Phoenix Travel Mart.’” Slip Op. at 4. 

Reviewing (1) defendant’s objection to the detective’s testimony, the court first noted that defendant did not properly object by requesting to strike an unresponsive answer. However, the court performed analysis under the plain error standard, concluding that the additional information supporting that defendant met the description of the suspect, and testimony from the arresting officer also supporting that defendant fit the description, suggested the jury would not have reached a different verdict but for the objectionable testimony from the detective. This evidence also supported (2) the denial of defendant’s motion to dismiss, as it represented substantial evidence linking defendant to the crime.

When reviewing (3) the entry of judgment and commitment, the Court of Appeals found error with the entry of two counts for what should have been a single count of armed robbery. The court applied the reasoning from State v. Potter, 285 N.C. 238 (1974), explaining that although two employees were involved in the robbery, defendant could only be said to have taken property from one person, the employer. Slip Op. at 12-13. The court remanded with instructions to arrest judgment on one of the convictions and resentence the defendant accordingly.