NO. COA03-621

NORTH CAROLINA COURT OF APPEALS

Filed: 4 May 2004

    Appeal by defendant from judgment entered 12 December 2002 by Judge William Z. Wood, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 25 February 2004.

    Attorney General Roy Cooper, by Director, Victims and Citizens Services Section William M. Polk, for the State.

    Irving Joyner for defendant-appellant.

    LEVINSON, Judge.

    Windra Ray Brown (defendant) appeals from judgment and conviction of robbery with a dangerous weapon. We conclude that defendant received a fair trial, free of prejudicial error.
The State's evidence tended to show the following: On 18 January 2002, the Parkwood Video and News Store located in the Kings Plaza Shopping Center in Winston-Salem, North Carolina was robbed. A surveillance camera captured the robbery, and a copy of the videotape was shown to the jury. Ralph Brown, the store clerk, testified that an African-American male wearing a “multi-colored” coat, a cap, and a bandana on his face, held a gun to his head, vaulted over the counter, took approximately $420.00 from the cash register, and left the store. While the robbery was in progress, four Hispanic customers ran out of the store.
Amy Snyder, a detective with the Forsyth County Sheriff's Department, testified that on the evening in question she was working as a security officer for a nearby bingo hall. Snyder was sitting in her patrol car in the parking lot of the Kings Plaza Center, when she observed four Hispanic males run out of the video store yelling that a robbery was taking place. Snyder then saw defendant come out of the store wearing a red plaid coat, a brown ball cap, and a bandana on his face. Snyder followed defendant through the parking lot as he walked towards a green and silver/gray minivan, where he crouched and placed something on the ground. Snyder shouted at defendant to stop, but he kept walking away and ultimately went into the Carolina Stampede. Defendant took a cellular phone from an elderly lady and came back out to the parking lot stating that “he had just been robbed.” Defendant was immediately arrested and taken into custody.
    Snyder and other officers searched the area around the minivan, where they discovered a brown cap, a blue bandana, and several wads of money amounting to $427.00. Snyder also observed Wallace Clayton seated in the passenger side of the minivan. Clayton was arrested a few days later and pled guilty to twelve counts of robbery with a dangerous weapon, including the robbery which is the subject of this appeal. At trial, Clayton testified that on the evening in question he and defendant drove around looking for someone to rob. They stopped at the video store, but Clayton decided to stay in the van because “he wasn't feeling it.” During their investigation, the police were unable to locate either a firearm or the red coat. However, the record reflects that the inside of the minivan was not searched.
    A jury convicted defendant of robbery with a dangerous weapon, and the trial court sentenced him to an active term of 103 to 133 months. From this conviction and judgment, defendant appeals.
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    Defendant first argues that the trial court erred in admitting the videotape of the robbery into evidence, because the State failed to lay a proper foundation for its admissibility. We disagree.
     Videotape recordings may be admitted into evidence to illustrate the testimony of a witness, as long as “they are relevant and have been properly authenticated.” State v. Billings, 104 N.C. App. 362, 371, 409 S.E.2d 707, 712 (1991). “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient tosupport a finding that the matter in question is what its proponent claims.” N.C.G.S. § 8C-1, Rule 901(a) (2003). The proponent of a videotape may satisfy the authentication requirement by:

State v. Smith, 152 N.C. App. 29, 38, 566 S.E.2d 793, 800 (quoting State v. Cannon, 92 N.C. App. 246, 254, 374 S.E.2d 604, 608-09 (1988), rev'd on other grounds, 326 N.C. 37, 387 S.E.2d 450 (1990)), cert. denied, 356 N.C. 311, 571 S.E.2d 208 (2002).
    In the present case, over the defendant's objection, the trial court allowed the videotape of the robbery into evidence for illustrative purposes. The videotape was shown to the jury to help illustrate the testimony of Ralph Brown, the video store clerk, regarding the events of the night in question. Brown testified that (1) the surveillance equipment was always in operation; (2) the camera was pointed towards the computer register and cash box, where the robbery took place; and (3) the videotape fairly and accurately depicted the events that transpired during the robbery. We conclude that this testimony sufficiently meets the authentication requirements for illustrative purposes enunciated in Cannon. This assignment of error is overruled.

    Citing a variety of violations of the Rules of Evidence, defendant argues next that the trial court erred by admitting testimony of Wallace Clayton regarding defendant's participation in other robberies. We disagree.
    Over defendant's objection, Clayton was allowed to testify that defendant participated in six prior robberies with him. At issue is the following exchange, which occurred during the State's redirect examination of Clayton:
PROSECUTION: Of the twelve robberies that you plead [sic] guilty to and you wrote on your agreement that you did eleven that you didn't do one; is that right?

WALLACE CLAYTON: Yes, sir.

PROSECUTION: Of the eleven that you did, how many were with this defendant?

DEFENSE COUNSEL: Objection, your Honor.

THE COURT: Overruled.

PROSECUTION: He's opened the door.

WALLACE CLAYTON: Six.

    Defendant generally contends that Clayton's testimonyregarding his participation in six prior robberies with defendant is character evidence introduced in violation of N.C.G.S. § 8C-1, Rules 404 and 405 (2003). It is unnecessary to address this argument, however, as our review of the record demonstrates that defendant opened the door to the admission of this evidence.
    The law in this area is well settled:
[O]therwise inadmissible evidence may be admissible if the door has been opened by the opposing party's cross-examination of the witness. “Opening the door refers to the principle that where one party introduces evidence of a particular fact, the opposing party is entitled to introduce evidence in explanation or rebuttal thereof, even though the rebuttal evidence would be incompetent or irrelevant had it been offered initially.”

State v. Baymon, 336 N.C. 748, 752-53, 446 S.E.2d 1, 3 (1994) (quoting State v. Sexton, 336 N.C. 321, 360, 444 S.E.2d 879, 901 (1994) (citation omitted)).
“A party cannot be allowed to impeach a witness on the cross-examination by calling out evidence culpatory of himself and there stop, leaving the opposing party without opportunity to have the witness explain his conduct, and thus place it in an unobjectionable light if he can. In such case the opposing party has the right to such explanation, even though it may affect adversely the party who cross-examined. Upon the examination in chief, the evidence may not be competent, but the cross-examination may make it so.”

Id. at 755, 446 S.E.2d at 4 (quoting State v. Glenn, 95 N.C. 677, 679 (1886)).     In the instant case, Clayton testified during cross- examination that he had committed several robberies with defendant. Specifically, the trial transcript reflects the following:
DEFENSE COUNSEL: So, they had you red-handed on some other robberies. So then you decided you're going to go say Mr. (W) Brown [defendant] committed a robbery out there at the video store; is that correct?

WALLACE CLAYTON: I admitted to all the robberies we did.

In general, the record reveals defense counsel engaged in a thorough cross-examination of this State's witness and questioned him on a variety of issues. With respect to the above question, defense counsel attempted to undermine Clayton's credibility, by suggesting that his testimony regarding defendant's involvement in the video store robbery was false and motivated by his being caught “red-handed” in other robberies. Defense counsel's question also intimated that Clayton only incriminated defendant with respect to a single robbery. In response, Clayton testified that he had admitted to “all the robberies” they did together. Once Clayton testified that he and defendant participated in several robberies together, the State could properly inquire into the number of robberies in its redirect examination. Therefore, even if Clayton's testimony regarding the six prior robberies was otherwise inadmissible, it became admissible when defense counsel opened thedoor to the inquiry at issue. Accordingly, the trial court properly allowed the introduction of Clayton's testimony regarding the six prior robberies. This assignment of error is overruled.

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    Defendant next contends that the trial court erred by admitting, in violation of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966), a statement by defendant. We disagree.
    Officer Tangela Watts, an officer with the Winston-Salem Police Department, was responsible for transporting defendant from the Public Safety Center. Defendant made spontaneous, uninvited statements on the way to the Public Safety Center that he had not been in any trouble since he spent time in prison for armed robbery and that he was the one robbed that evening. Defendant also informed her that he was only arrested because he was black and that he had a good work history. It was a cold night, and defendant was only wearing a thin, white t-shirt. While waiting for another officer to arrive at the Public Safety Center, Watts asked defendant the following question: “You look cold, where's your coat?” Defendant momentarily stared blankly and replied, “My cousin has my gun. My cousin Easton has my gun.”
    It is uncontested that defendant was not advised of his Miranda rights and that he was in custody when he made the statement concerning the gun. The issue, therefore, is whether thestatement was the result of an interrogation. “[I]nterrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 64 L. Ed. 2d 297, 308 (1980) (citations omitted).
    The trial court made findings, inter alia, that Officer Watts was unaware “that the police were looking for a coat”; that the officer believed the defendant was cold because of the ashy color of his skin; that the statement was not intended to elicit any type of incriminating statement; and that the “defendant's response was nothing [sic] about the coat.” While the trial court's findings are binding on this Court when supported by the record, State v. Eason, 336 N.C. 730, 745, 445 S.E.2d 917, 926 (1994), legal conclusions are fully reviewable on appeal. State v. Greene, 332 N.C. 565, 577, 422 S.E.2d 730, 737 (1992).
    Our examination of the record reveals the trial court's findings are amply supported by the record. Moreover, we agree that the defendant's statement under all these circumstances was not the result of any words and/or conduct on the part of law enforcement that Officer Watts should have known were reasonably likely to elicit an incriminating response from the suspect. Accord State v. McQueen, 324 N.C. 118, 377 S.E.2d 38 (1989). This assignment of error is overruled.

    Defendant next contends that the trial court erred by instructing the jury regarding an admission made by defendant, because his statement did not amount to an admission. We disagree.
    At issue is the same statement that was the basis of the Miranda challenge: “My cousin has my gun. My cousin Easton has my gun.” The trial judge, relying on N.C.P.I., Crim. 104.60, instructed the jury as follows:
        There is evidence which tend[s] to show that the defendant has admitted the fact related to the crime charged in this case regarding something he said to the lady police officer as he was being transported. If you find that the defendant -- or after he got to the police station -- if you find that the defendant made that admission, then you should consider all of the evidence and circumstances which was made, and in determining whether it was a truthful admission, and weight you will give it.

    A trial judge properly charges a jury with a requested instruction if it is correct in law and supported by the evidence at trial. State v. Jordan, 120 N.C. App. 364, 368, 462 S.E.2d 234, 237 (1995). Defendant was on trial for robbery with a dangerous weapon. The elements of this offense are:
“(1) an unlawful taking or an attempt to take personal property from the person or in thepresence of another, (2) by use or threatened use of a firearm or other dangerous weapon, (3) whereby the life of a person is endangered or threatened.”

State v. McConico, 153 N.C. App. 723, 728, 570 S.E.2d 776, 780-81 (2002) (quoting State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1998)), disc. review denied, 357 N.C. 168, 581 S.E.2d 439 (2003).
    Defendant's statement that his cousin had his gun is some evidence tending to show that defendant was previously in possession of a firearm. The use of a firearm is an element of the crime of robbery with a dangerous weapon. Therefore, defendant's statement, if believed by the jury, could amount to an admission relating to one of the facts in this case. The admission was therefore supported by the evidence at trial. Accord State v. Cummings, 353 N.C. 281, 295-96, 543 S.E.2d 849, 858 (2001). This assignment of error is overruled.
    Defendant received a fair trial, free of prejudicial error.
    No Error.
    Judges HUNTER and McCULLOUGH concur.
    Report per rule 30(e).

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