An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1724


Filed: 18 November 2003


v .                         Washington County
                            No. 01 CRS 482

    Appeal by defendant from judgment entered 10 April 2002 by Judge Cy A. Grant, Sr. in Washington County Superior Court. Heard in the Court of Appeals 15 October 2003.

    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.
    Judges MARTIN and LEVINSON concur.
    Report per Rule 30(e).

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