Opinion
No. COA09-1438
Filed 1 June 2010 This case not for publication
Appeal by defendant from order entered by Judge W. Osmond Smith during the 31 July 2009 criminal session in Person County Superior Court. Heard in the Court of Appeals 15 April 2010.
Attorney General Roy Cooper, by Assistant Attorney General Stanley G. Abrams, for the State. Daniel J. Clifton for defendant-appellant.
Person County No. 08 CRS 51750.
Defendant Jamar Maurice Wilson was indicted on one count of robbery with a firearm. On 28 July 2009, he moved to suppress his out-of-court identification by a witness. On 31 July 2009, a jury found defendant guilty as charged. The trial court sentenced him to an active term of 77 to 102 months. Defendant appeals. As discussed below, we dismiss.
Facts
The evidence tended to show the following. On the afternoon of 1 August 2008, Fat Boys Market in Roxboro was robbed. The only person in the store at the time was clerk Janet Whitt, who testified that a man wearing a dark purple hooded sweat shirt, orange do-rag, and white t-shirt tied around his face entered the store and held a gun twelve inches from her face. The man directed Ms. Whitt to lie on the floor while he attempted unsuccessfully to open the cash register. Ms. Whitt told the man that money was kept in a particular drawer, which she opened for him. The man took the money, made Ms. Whitt get back on the floor, and then left the store.
Approximately ten to twenty minutes prior to the robbery, Harry Lee Pierce had been working at the National Guard Armory near Fat Boys. Pierce testified that he noticed a man walking along the fence line of the Armory. Mr. Pierce watched the man walk towards Fat Boys until he was out of sight. Roughly thirty minutes later, Mr. Pierce witnessed the same man run approximately 800 meters in the opposite direction, away from Fat Boys. The man wore a dark-colored hooded sweat shirt, dark pants, and a t-shirt around his mouth.
Later that day, police arrested defendant at his home. The officers conducted two "show-ups" to see whether Ms. Whitt could identify defendant as the man who robbed Fat Boys. Ms. Whitt was not able to identify defendant during the "show-ups." However, shortly thereafter, defendant was placed in an interrogation room at the Person County Sheriff's Department where Ms. Whitt identified him with one hundred percent certainty as the man who had robbed Fat Boys.
Around 7:30 p.m. that evening, police officers took defendant to the National Guard Armory for a "show up" with Mr. Pierce, who identified defendant as the man who ran past him earlier that day. Defendant moved to suppress Mr. Pierce's out-of-court identification and related testimony. Defendant contends that the trial court denied his motion and purports to appeal therefrom.
In his brief, defendant contends the trial court erred by denying his motion to suppress evidence of out-of-court identifications and in-court identification testimony of (I) Janet Whitt, and (II) Harry Lee Pierce. For the reasons discussed below, we dismiss this appeal.
Analysis
Defendant purports to appeal from the trial court's denial of his motion to suppress. Our standard of review relating to the denial of a motion to suppress is well-established:
"This Court's review of a trial court's denial of a motion to suppress in a criminal proceeding is strictly limited to a determination of whether the court's findings are supported by competent evidence, even if the evidence is conflicting, and in turn, whether those findings support the court's conclusions of law." In re Pittman, 149 N.C. App. 756, 762, 561 S.E.2d 560, 565 (citation omitted), disc. review denied, 356 N.C. 163, 568 S.E.2d 608 (2002), cert. denied, 538 U.S. 982, 155 L. Ed. 2d 673 (2003).
State v. Veazey, ___ N.C. App. ___, ___, 689 S.E.2d 530, ___ (2009), disc. review denied, 363 N.C. 811, ___ S.E.2d ___ (2010).
A defendant-appellant is responsible for ensuring that the record on appeal is complete. State v. Alston, 307 N.C. 321, 341, 298 S.E.2d 631, 644 (1983). Rule 9 of the North Carolina Rules of Appellate Procedure states the record on appeal must contain "copies of the verdict and of the judgment, order, or other determination from which appeal is taken." N.C. R. App. P. Rule 9(a)(3)(g) (2009). Compliance with the Appellate Rules is mandatory, although not every violation requires dismissal. State v. Hart, 361 N.C. 309, 311, 644 S.E.2d 201, 202 (2007). However, where a defendant fails to comply with the above-quoted portion of Rule 9, he has failed to perfect his appeal and "this Court is without jurisdiction to hear th[e] appeal." State v. McMillian, 101 N.C. App. 425, 427, 399 S.E.2d 410, 411, disc. review denied, 328 N.C. 335, 402 S.E.2d 842 (1991); see also Abels v. Renfro Corp., 126 N.C. App. 800, 804, 486 S.E.2d 735, 738, disc. review denied, 347 N.C. 263, 493 S.E.2d 450 (1997). "A jurisdictional default . . . precludes the appellate court from acting in any manner other than to dismiss the appeal." Dogwood Dev. Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 197, 657 S.E.2d 361, 365 (2008). "[I]n the absence of jurisdiction, the appellate courts lack authority to consider whether the circumstances of a purported appeal justify application of Rule 2." Id. at 198, 657 S.E.2d at 365. Even if we could invoke Rule 2 in such a situation, given the applicable standard of review, the absence from the record of the purported order appealed from completely prevents any review on the merits and warrants dismissal. Id. at 200, 657 S.E.2d at 366-67 ("In determining whether a party's noncompliance with the appellate rules rises to the level of a substantial failure or gross violation, the court may consider, among other factors, whether and to what extent the noncompliance impairs the court's task of review. . . .") (emphasis added).
Here, in addition to depriving this Court of jurisdiction to hear his appeal, defendant's Appellate Rules violations completely impair our task of review. We first note that the sole motion to suppress in the record addresses only Mr. Pierce's identification and related testimony. Based on the record before us, it appears that defendant did not move to suppress Ms. Whitt's identification. Thus, defendant's arguments as to Ms. Whitt are not before this Court.
In addition, the record does not contain any order from the trial court either granting or denying defendant's motion to suppress Mr. Pierce's identification of defendant. Without the order, we cannot review the trial court's findings of fact and conclusions of law and, thus, cannot resolve the merits of defendant's case. Defendant's appeal is dismissed.
Even if defendant had included the trial court's purported order denying his motion to suppress in the record, defendant did not assign error to any specific findings of fact or conclusions of law. Unchallenged findings of fact are "presumed to be supported by competent evidence and are binding on appeal." Anderson Chevrolet/Olds, Inc. v. Higgins, 57 N.C. App. 650, 653, 292 S.E.2d 159, 161 (1982).
Dismissed.
Judges ELMORE and ERVIN concur.
Report per Rule 30(e).