Appeal by defendant from judgment entered 2 August 2002 by
Judge F. Donald Bridges in Gaston County Superior Court. Heard in
the Court of Appeals 21 May 2003.
Attorney General Roy Cooper, by Assistant Attorney General
David N. Kirkman, for the State.
Marjorie S. Canaday for defendant appellant.
TIMMONS-GOODSON, Judge.
Jerry Woods (“defendant”) appeals his convictions of
possession of cocaine, possession of drug paraphernalia, and
robbery with a dangerous weapon. For the reasons discussed herein,
we find no error by the trial court.
The State presented evidence at trial tending to show the
following: On 26 April 2001, Lester Hawes (“Hawes”), an employee
at the Bi-Lo grocery store, observed defendant enter the store and
place approximately six to eight packs of cigarettes into a
shopping basket. Hawes further observed defendant approach the
cash register, and fail to give Kay Williams (“Williams”), the
cashier, several packs of cigarettes defendant originally placed in
his basket upon entering the store. Hawes approached defendant andquestioned him about additional packs of cigarettes. In response
to Hawes' questioning, defendant removed one pack of cigarettes
from his pocket, and offered to pay for it. However, Hawes refused
payment and demanded that defendant return merchandise, which he
“felt [defendant] had.”
Upon hearing Hawes' demand, defendant refused to return any
merchandise, gathered his purchased items, and proceeded to leave
the store. Hawes, via an intercom, ordered additional store
personnel to respond to the front of the store. Hawes also
informed defendant that he would have to wait for the police.
According to Hawes, he “put [his] hand out and held [defendant]
back” in order to keep defendant from exiting the store. In
response to Hawes' actions, defendant said, “It's on now,”
displayed a pocketknife, and stabbed at Hawes several times. Hawes
blocked defendant's stabbing motions with a “bag rack.” As
defendant stabbed at Hawes, he moved in the direction of the
store's front door and exited the store. Defendant then attempted
to mount his motorized bicycle (“moped”), which was located in the
store's parking lot.
Rodney McElhaney (“McElhaney”), responding to Hawes' intercom
request for assistance, witnessed the above described altercation
between defendant and Hawes. As a result, McElhaney retrieved a
pipe from the store office, followed defendant outside, and
attempted to place the pipe through the wheel of defendant's moped.
Subsequently, Hawes removed the pipe from McElhaney and defendant
proceeded to mount his moped. In an attempt to stop defendant fromleaving the parking lot, McElhaney recovered his automobile and
collided with defendant's moped.
Following the collision, Officer Steve Moore (“Officer Moore”)
arrived at the store. Officer Moore searched defendant and found
two pocket knives, tobacco products, cigarette lighters, and
candles. Several of the items recovered from defendant had not
been purchased by him. Defendant was transported to the hospital
by an emergency response unit, treated for his injuries, and later
arrested.
At trial, defendant pled guilty to possession of cocaine and
drug paraphernalia. A jury found defendant guilty of robbery with
a dangerous weapon. Defendant's convictions were consolidated and
he was sentence to a minimum of eighty months and a maximum of 105
months imprisonment. Defendant appeals.
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Defendant presents two arguments on appeal, arguing that the
trial court erred in (1) admitting testimony from Officer Moore
regarding statements made by Hawes; and (2) failing to include in
the record the response to a jury request to view evidence. For
the reasons stated herein, we find no error.
In his first assignment of error, defendant argues that the
trial court committed prejudicial error by allowing hearsay
testimony from Officer Moore. Specifically, defendant objects to
the following testimony given by Officer Moore on direct
examination:
Q: Did you write a report indicating what
Mr. Hawes had told you?
A: Yes, sir.
Q: What did Mr. Hawes tell you?
A: Mr. Hawes said he observed a black male
come into the store. He saw him pick up
several items and go to the register. He
said while he was picking up the items he
observed the black male stuff several
items inside of his clothing. He said he
confronted the black male about the
items; and when he did, the black male
produced a pocketknife and told him if he
tried to stop him he would cut him. He
said then the black male went outside and
got onto a moped; and while he was trying
to leave, he was struck -- either -- the
pickup truck and him [ran] into each
other.
We note that defendant failed to object to Officer Moore's
testimony at trial, therefore, any error must be reviewed under the
plain error rule.
See State v. Jordan, 333 N.C. 431, 440, 426
S.E.2d 692, 697 (1993). In applying the plain error rule, the
defendant must show that there was error and absent that error, the
jury probably would have reached a different conclusion.
Id.
Assuming
arguendo that the trial court erred in admitting
testimony from Officer Moore regarding Hawes' statement, the
testimony was not prejudicial. The record reveals that Hawes'
testimony identified defendant as the individual who (1) entered
the store, (2) failed to pay for several items, (3) was confronted
about possible stolen merchandise, and (4) attempted to stab Hawes
while leaving the store. In addition to Hawes' testimony, both
McElhaney and Williams testified that defendant was in the store,
was confronted by Hawes regarding stolen merchandise, and attempted
to stab Hawes. Given the testimony of Hawes, McElhaney andWilliams, defendant fails to show that absent Officer Moore's
testimony, the jury would have reached a different verdict.
See
State v. Holbrook, 137 N.C. App. 766, 769, 529 S.E.2d 510, 511
(2000) (holding that under the plain error rule it must be obvious
and apparent that the error affected the defendant's substantial
rights). Accordingly, this assignment of error is overruled.
Defendant's final assignment of error concerns a request by
the jury to examine materials admitted into evidence.
Specifically, defendant contends that the trial court erred by
failing to include in the record the court's response to the
following jury request: “Need to see 2 knives.” Defendant argues
that by failing to record the trial court's response to the above
jury request, he has been deprived of a “meaningful appellate
review.” We find no merit in this assignment of error.
Rule 9(a) of the Rules of Appellate Procedure provides that
appellate review is limited to the record on appeal. N.C.R. App.
P. 9(a) (2002). “It is the [defendant's] responsibility to make
sure that the record on appeal is complete and in proper form.”
Miller v. Miller, 92 N.C. App. 351, 353, 374 S.E.2d 467, 468
(1988);
see also Fortis Corp. v. Northeast Forest Products, 68 N.C.
App. 752, 754, 315 S.E.2d 537, 538 (1984).
This Court cannot
assume or speculate that there was prejudicial error, when none
appears on the record before it.
See N.C.R. App. P. 9(a);
see also
State v. Moore, 75 N.C. App. 543, 548, 331 S.E.2d 251, 254,
disc.
review denied, 315 N.C. 188, 337 S.E.2d 862-63 (1985). Here, this
Court is precluded from the possibility of effectively reviewingthis assignment of error, because it requires speculation that the
trial court committed prejudicial error. The record is devoid of
the trial court's response to the jury request and our review is
limited to the record on appeal. Therefore, defendant's final
assignment of error is overruled. However, we recognize that
defendant complains that the trial court's alleged error denies him
a “meaningful appellate review.” We note that defendant is not
precluded from filing a motion for appropriate relief in order to
ascertain the court's response to the jury request.
See N.C. Gen.
Stat. § 15A-1411 (2001). A motion for appropriate relief is a
post-verdict motion (or a post-sentencing motion where there is no
verdict) commonly used to correct errors occurring prior to,
during, and after a criminal trial.
Id.;
see also State v. Handy,
326 N.C. 532, 535, 391 S.E.2d 159, 160-61 (1990).
For the reasons contained herein, we hold that the trial court
did not err.
No error.
Judges HUDSON and STEELMAN concur.
Report per Rule 30(e).
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