STATE OF NORTH CAROLINA
v
.
Washington County
No. 01 CRS 482
BRENDA LOUISE PHELPS
Roy Cooper, Attorney General, by G. Patrick Murphy, Special
Deputy Attorney General, for the State.
The Robinson Law Firm, by Leslie S. Robinson, for defendant-
appellant.
STEELMAN, Judge.
Defendant, Brenda Louise Phelps, appeals two convictions of
aiding and abetting an embezzlement. She sets forth nine
assignments of error. For the reasons discussed herein, we find no
error.
The State's evidence tended to show that at both 2:27 a.m. and
3:19 a.m. on 27 February 2000, defendant was observed going through
a checkout line in a Food Lion grocery store located in Plymouth,
North Carolina, with a grocery cart full of meat products. Defendant's sister-in-law, Cynthia Phelps, was the cashier.
Defendant went through the check out line without paying for the
groceries. Apparently, Cynthia allowed defendant to take the items
by turning off the scanner and passing the groceries over the
scanner without recording a sale. The store manager saw the
transactions on the store's security camera, which recorded the
events onto a videotape.
On 14 April 2000, defendant was interviewed by John Floyd,
Chief of Police for the Town of Plymouth. Defendant stated in the
interview that she was not present at the Food Lion on 27 February
2000. Chief Floyd advised Washington County Sheriff Stanley James
about the incident. Defendant, who was employed by the Washington
County Sheriff's Department as a dispatcher, was subsequently
suspended from her employment. Defendant filed a civil action
against Sheriff James in federal court.
Defendant presented evidence that although she had been in the
store, she had not taken any groceries and that she was not the
person on the videotape. Defendant's daughter, Tara Patrick,
testified that she was the person shown on the videotape.
On 7 March 2001, defendant was indicted on two counts of
aiding and abetting the embezzlements of groceries by Cynthia
Phelps. On 10 April 2002, a jury found defendant guilty on each
count. The trial court imposed consecutive sentences of six toeight months, but suspended the sentences and placed defendant on
probation for thirty-six months. Conditions of her probation
included five months' electronic house arrest, payment of joint and
several restitution in the amount of $272.74, a $1,000.00 fine,
costs, and 100 hours of community service. Defendant appeals.
In her first assignment of error, defendant argues that the
trial court abused its discretion and erred by denying her motion
to continue the trial of her case so that an alleged contention of
witness intimidation could be resolved. We disagree.
Defendant contends that the trial court's denial of her motion
to continue substantially violated N.C. Gen. Stat. § 7A-49.4.
Defendant's trial was originally set for 27 August 2001 before
Judge Jerry R. Tillett. On 29 August 2001, counsel for the defense
alleged that the State had attempted to intimidate Cynthia Phelps
into identifying defendant as the person who took the items through
Cynthia Phelps's checkout line. On the previous day, Cynthia
Phelps had pled guilty to embezzlement and thought that her
involvement with the case was concluded. She then discovered that
the State had subpoenaed her to testify in the instant case. At
that point, she advised the State that she could not identify who
had taken the items through her checkout line because it had been
such a long time ago. Defendant contended that the chief of police
and the assistant district attorney attempted to intimidate CynthiaPhelps into identifying defendant, her sister-in-law, as the other
person involved in the embezzlement. Judge Tillett heard testimony
from Cynthia Phelps and then allowed her to consult with her
lawyer. The hearing was never concluded, no ruling was ever made,
and Judge Tillett told the lawyers that they needed to “work things
out.” The case was subsequently re-calendared by the district
attorney for an 8 October 2001 trial date.
On 24 September 2001, defense counsel contacted the district
attorney about removing the case from the calendar. The
prosecution agreed and the case was subsequently calendared for 8
April 2002. As of that date, no ruling had been made on the
intimidation allegations. On 8 April 2002, defendant moved the
trial court to continue the trial based Cynthia Phelps's allegation
of witness intimidation. Judge Cy A. Grant denied defendant's
motion for a continuance, citing defendant's lack of prejudice.
Defendant contends that the trial court abused its discretion
in denying her motion for a continuance based on N.C. Gen. Stat. §
7A-49.4(b), which provides:
If the parties have not otherwise agreed upon
a trial date, then upon the conclusion of the
final administrative setting, the district
attorney shall announce a proposed trial date.
The court shall set that date as the tentative
trial date unless, after providing the parties
an opportunity to be heard, the court
determines that the interests of justice
require the setting of a different date.
N.C. Gen. Stat. § 7A-49.4(b) (2001). Defendant argues that she did
not agree to the 8 April 2002 trial date and, in fact, objected to
that date.
The portion of section 7A-49.4(b) cited by defendant deals
with the initial setting of a trial date at an administrative
hearing. This case had been previously set for trial on 27 August
2001. Therefore the provisions dealing with an administrative
hearing are not applicable.
The portion of section 7A-49.4 which is applicable to the
facts of this case is subsection (f), which provides:
A case may be continued from the trial
calendar only by consent of the State and the
defendant or upon order of the presiding judge
or resident superior court judge for good
cause shown. The district attorney, after
consultation with the parties, shall schedule
a new trial date for cases not reached during
that session of court.
N.C. Gen. Stat. § 7A-49.4 (2003).
The record in this case affirmatively shows that there were
conversations and correspondence between the district attorney's
office and defense counsel concerning the calendaring of this case
for trial following the 29 August 2001 hearing. This
correspondence makes it clear that defense counsel wanted the
matter heard by Judge Tillett. However, neither the provisions of
sections 7A-49.4(b) or (f) require defendant's consent to aparticular trial date. Under subsection (f), the only requirement
is that the district attorney consult with the parties. This was
done in the instant case.
A motion to continue is ordinarily addressed to the sound
discretion of the trial court, and the ruling will not be disturbed
absent a showing of abuse of discretion. State v. Blakeney, 352
N.C. 287, 301-02, 531 S.E.2d 799, 811 (2000), cert. denied, 531
U.S. 1117, 148 L. Ed. 2d 780 (2001). There is no evidence that the
trial court abused its discretion in denying the motion to continue
the trial of this matter from the 8 April 2002 session. This
assignment of error is without merit.
In her second and third assignments of error, defendant argues
that the trial court erred by denying her request to reopen the
hearing on the allegations of witness intimidation and by denying
her motion to dismiss on those grounds. We disagree.
The witness, Cynthia Phelps, was one of the State's witnesses.
She was subpoenaed by the State to testify at the trial scheduled
for 27 August 2001. Cynthia Phelps was never subpoenaed by
defendant, nor is there any statement or indication in the record
that defendant ever intended to call her as a witness. At the 8
April 2002 trial, Cynthia Phelps was not called by the State to
testify against defendant. The only evidence in the record
concerning the testimony of Cynthia Phelps was that she would notor could not identify defendant as the person allegedly involved in
the embezzlement. The applicable standard of review of the trial
court's ruling is abuse of discretion. See State v. Melvin, 326
N.C. 173, 189, 388 S.E.2d 72, 80 (1990). There was no abuse of
discretion here. Further, defendant has failed to show that she
was prejudiced in any way by Judge Grant's denial of her motions.
This assignment of error is without merit.
In her fourth and fifth assignments of error, defendant argues
that the trial court erred by allowing the actual and a copy of the
security video without a proper foundation. We disagree.
Videotapes are admissible for both substantive and
illustrative purposes under N.C. Gen. Stat. § 8-97. State v.
Mewborn, 131 N.C. App. 495, 498, 507 S.E.2d 906, 909 (1998). To
lay an evidentiary foundation for the admission of a videotape, the
proponent must show: (1) testimony that the videotape fairly and
accurately illustrates the events filmed; (2) proper testimony
concerning the operation of the video camera and the chain of
evidence concerning the videotape; (3) testimony that the
photographs introduced at trial were the same as those the witness
had inspected immediately after processing; or (4) testimony that
the videotape had not been edited, and that the picture fairly and
accurately recorded the actual appearance of the area photographed.
Id. at 498, 507 S.E.2d at 909 (citing State v. Cannon, 92 N.C. App.246, 374 S.E.2d 604 (1988), rev'd on other grounds, 326 N.C. 37,
387 S.E.2d 450 (1990)).
In the instant case, Lester Woodley, grocery manager at Food
Lion, testified that the video accurately and fairly depicted the
activity on the morning of the incident. He further testified that
the surveillance system was working accurately on that date. Laura
Ricketts of the Food Lion Loss Prevention Department testified that
she was familiar with the stores' surveillance systems. She
further testified about the systematic surveillance of the store
and how the videotapes are catalogued. Ricketts stated that she
picked up the video from the Food Lion store on 12 March 2000. She
“popped the tab” on the videotape so that it could not be recorded
over. Ricketts described that the master tape included eleven
different angles. She copied the angle which focused closest on
Cynthia Phelps's register. She testified that she did not change
alter or edit either tape while it was in her possession. When she
finished with the tapes, she gave them to Chief Floyd.
Accordingly, we hold that a proper foundation was laid for the
admissibility of the videotape. These assignments of error are
without merit.
In defendant's sixth assignment of error, she argues that the
trial court erred by admitting into evidence the electronic journal
because a proper foundation was not laid. We disagree. Business records are admissible at trial pursuant to N.C. Gen.
Stat. § 8C-1, Rule 803(6):
A memorandum, report, record, or data
compilation, in any form, of acts, events,
conditions, opinions, or diagnoses, made at or
near the time by, or from information
transmitted by, a person with knowledge, if
kept in the course of a regularly conducted
business activity, and if it was the regular
practice of that business activity to make the
memorandum, report, record, or data
compilation, all as shown by the testimony of
the custodian or other qualified witness,
unless the source of information or the method
or circumstances of preparation indicate lack
of trustworthiness.
N.C. Gen. Stat. § 8C-1, Rule 803(6) (2003).
Ricketts explained that the electronic journal is a computer
report that can recreate a cashier's daily transactions. It
included information about the time, store number, voids of sales,
items purchased, and the respective prices. She testified that the
electronic journal was available within thirty days of a
transaction. Ricketts's testimony showed that it was a regular
business activity to compile this information. The electronic
journal entry in question showed information from terminal seven,
which was the register being operated by Cynthia Phelps. According
to the journal, nothing was scanned at Cynthia Phelps's register
between 1:54 a.m. and 3:27 a.m. However, the videotape showed
items coming out of Cynthia Phelps's checkout line at approximately2:27 a.m. and 3:19 a.m. There was no evidence to indicate a lack
of trustworthiness. This assignment of error is without merit.
In her seventh assignment of error, defendant argues that the
trial court erred by allowing evidence of her deposition testimony
in a civil case in violation of the Rules of Professional Conduct.
We disagree.
Rule 4.2(a) of the Revised Rules of Professional Conduct
provide:
During the representation of a client, a
lawyer shall not communicate about the subject
of the representation with a person the lawyer
knows to be represented by another lawyer in
the matter, unless the lawyer has the consent
of the other lawyer or is authorized by law to
do so. It is not a violation of this Rule for
a lawyer to encourage his or her client to
discuss the subject of the representation with
the opposing party in a good faith attempt to
resolve the controversy.
N.C. R.P.C. 4.2(a) (2003).
In the instant case, the State introduced portions of
defendant's deposition testimony given in the civil action
instituted by her against Sheriff James. Defendant contends that
counsel for Sheriff James had a duty to notify defendant's criminal
defense attorney of the deposition and to warn defendant of her
right to remain silent or to contact her criminal defense attorney
before answering any questions.
First, it should be noted that defendant instituted the civilaction against Sheriff James in federal court. Once this was done,
she was subject to discovery in accordance with the Federal Rules
of Civil Procedure. See generally Fed. R. Civ. P.
Second, defendant was represented by her civil attorney at her
deposition.
Third, defendant sought to impose a duty upon Sheriff James's
counsel to notify defendant's criminal counsel of the deposition in
a civil case and to affirmatively administer Miranda warnings to
her during the course of the deposition. Counsel for Sheriff James
was under no duty to notify defendant's criminal attorney of the
deposition. Rule 4.2(a) of the Revised Rules of Professional
Conduct prohibit communications unless “authorized by law.” Rules
26 and 30 of the Federal Rules of Civil Procedure authorize
discovery, specifically the deposition of an opposing party.
Miranda warnings are applicable only to a custodial interrogation.
State v. Hyatt, 355 N.C. 642, 566 S.E.2d 61 (2002), cert. denied,
537 U.S. 1133, 154 L. Ed. 2d 823 (2003). Defendant's deposition
was not such an interrogation. Further, she was represented by
counsel at the deposition.
In addition, defendant's statements made during her deposition
are admissible as statements by a party-opponent. See N.C. Gen.
Stat. § 8C-1, Rule 801(d) (2001). “A statement is admissible as an
exception to the hearsay rule if it is offered against a party andit is (A) his own statement, in either his individual or a
representative capacity[.]” Id. This assignment of error is
without merit.
In her eighth assignment of error, defendant argues that the
trial court erred by denying her motion to dismiss based on
insufficiency of the evidence. We disagree.
In considering a motion to dismiss, the only issue for the
trial court is whether there is substantial evidence of each
essential element of the charged offense and of the defendant being
the perpetrator. State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d
920, 925 (1996). Substantial evidence is such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.
State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995).
The court must consider the evidence in the light most favorable to
the State and give the State the benefit of every reasonable
inference from that evidence. State v. Jaynes, 342 N.C. 249, 274,
464 S.E.2d 448, 463 (1995), cert. denied, 518 U.S. 1024, 135 L. Ed.
2d 1080 (1996). Contradictions and discrepancies in the evidence
are resolved in favor of the State. State v. Gibson, 342 N.C. 142,
150, 463 S.E.2d 193, 199 (1995).
In order to convict a defendant of aiding and abetting, the
State must show that: (1) the defendant was present at the scene of
the crime; (2) the defendant intended to aid the perpetrator in thecrime; and (3) the defendant communicated his intent to aid to the
perpetrator. State v. Johnson, 310 N.C. 574, 578, 313 S.E.2d 560,
563 (1984); State v. Pryor, 59 N.C. App. 1, 5-6, 295 S.E.2d 610,
614 (1982).
“The communication or intent to aid does not have to be shown
by express words of the defendant but may be inferred from his
actions and from his relation to the actual perpetrators.” State
v. Goode, 350 N.C. 247, 260, 512 S.E.2d 414, 422 (1999). Moreover,
when the bystander is a friend of the perpetrator and knows that
her presence will be regarded by the perpetrator as an
encouragement and protection, presence alone may be regarded as an
encouragement. State v. Goode, 350 N.C. at 260, 512 S.E.2d at 422.
Therefore, a defendant may be guilty of a crime by her mere
presence if the perpetrator knows the friend's presence will be
regarded as encouragement and protection. State v. Lemons, 348
N.C. 335, 377, 501 S.E.2d 309, 334 (1998), sentence vacated on
other grounds, 527 U.S. 1018, 144 L. Ed. 2d 768 (1999).
Here, there was evidence to show that defendant was present at
the time of the embezzlement. There was video evidence as well as
defendant's own admission in the deposition that she was present at
the times in question. The video showed defendant in line at
Cynthia Phelps's register and then taking the cart out of the
store. Defendant was Cynthia Phelps's sister-in-law. Defendantadmitted that Cynthia Phelps was entrusted with Food Lion's goods.
(T133). Defendant appears on the videotape taking out her
checkbook but failing to actually give the check to Cynthia Phelps,
whose scanner was turned off when defendant went through her
checkout line. Accordingly, we hold that there was sufficient
evidence for the charge to go to the jury. This assignment of
error is without merit.
In her ninth and final assignment of error, defendant argues
that the trial court erred by denying her motion to dismiss based
on the indictment failing to charge defendant with any crime. We
disagree.
The purpose of an indictment is to inform a party so that she
may learn with reasonable certainty the nature of the crime of
which she is accused. State v. Coker, 312 N.C. 432, 437, 323
S.E.2d 343, 347 (1984). Section 15A-924(a)(5) provides that
A criminal pleading must contain a plain and
concise factual statement in each count which,
without allegations of an evidentiary nature,
asserts facts supporting every element of a
criminal offense and the defendant's
commission thereof with sufficient precision
clearly to apprise the defendant or defendants
of the conduct which is the subject of the
accusation.
N.C. Gen. Stat. § 15A-924(a)(5) (2003).
In the instant case, the indictment charged that:
defendant feloniously did aid and abet CynthiaDanyell Phelps to unlawfully, willfully, and
feloniously embezzle, fraudulently and
knowingly misapply and convert to the
defendant's own use, and take away with and
secrete with the intent to embezzle and
fraudulently misapply and convert to the
defendant's own use groceries and grocery
items belonging to Food Lion, Inc. At the time
the defendant and Cynthia Danyell Phelps were
over 16 years of age and Cynthia Danyell
Phelps was the administrator, agent, bailee.
Consignee, clerk, employee, executor,
guardian, officer, public officer, receiver,
servant, trustee, and fiduciary of Food Lion,
Inc. and in that capacity had been entrusted
to receive the property described above and in
that capacity the defendant had received and
taken that property into the defendant's care
and possession.
This indictment appropriately averred the charges against
defendant. It further averred the charges of embezzlement against
Cynthia Phelps. See N.C. Gen. Stat. § 14-90 (2001). This
assignment of error is without merit.
NO ERROR.
Judges MARTIN and LEVINSON concur.
Report per Rule 30(e).
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