An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-788

NORTH CAROLINA COURT OF APPEALS

Filed: 20 April 2004

STATE OF NORTH CAROLINA

    v .                             Mecklenburg County
                                Nos. 00 CRS 007455,
                                    00 CRS 137614
CHARLES FRANCIS GRAHAM

    Appeal by defendant from judgments dated 4 October 2002 by Judge C. Preston Cornelius in Mecklenburg County Superior Court. Heard in the Court of Appeals 17 March 2004.

    Attorney General Roy Cooper, by Assistant Attorney General David N. Kirkman, for the State.

    Kathryn L. VandenBerg for defendant-appellant.

    BRYANT, Judge.

    Charles Francis Graham (defendant) appeals a judgment dated 4 October 2002 entered consistent with a jury verdict finding him guilty of first-degree murder. The jury also found defendant guilty of using an instrument to injure a pregnant woman, but the trial court arrested judgment on this conviction.
    The trial evidence pertinent to this appeal indicated that, in the evening hours of 15 February 2000, defendant, with the assistance of two other men, lured the victim, a seventeen-year-old female pregnant with his child, away from her home. Friends of the victim testified defendant had wanted the victim to get an abortion because he already had too many children to support. The victim did not want to abort her child.    On 16 February 2000, the victim's body was discovered floating in a lake with a gunshot wound to the head. Defendant's current girlfriend testified defendant was driving a brown 1989 Cadillac on the evening of February 15. When she used the vehicle on February 16, she found blood on the passenger seat. Blood samples obtained by the police from the passenger seat of the Cadillac and from the crime scene matched the victim's DNA.
    Steven G. Combs, a special agent and crime scene search specialist with the North Carolina State Bureau of Investigation, testified at trial about his inspection of the crime scene. Following his arrival at the crime scene on 16 February 2000, Combs took photographs and a video recording of the area in which the victim's body was found. Over defendant's objection, the approximately eleven-minute long video recording was introduced into evidence and played to the jury to illustrate Combs' testimony as he described his observations and evidence found at the scene.   (See footnote 1)  Defendant did not ask for a limiting instruction to the jury at this time, and the trial court did not give one. Combs testified, as illustrated by the videotape, that he recorded images of the lake, the road, and the dirt path leading from the road to the lake. The video scans of the scenery also included several seconds of views of the victim's body, floating face-down at the edge of the lake, just off the dirt path. The majority of thevideotape was devoted to closeup views of various tire impressions, footprints, drag marks, and blood stains found on the dirt path. The final minute of the videotape showed the victim's body, after it had been taken from the lake, lying face-up on the ground. The victim had some blood on her face but no visible wounds. She was wearing black warm-up pants, a light-blue basketball shirt, and a black sports jacket. The camera also focused for several seconds on the soles of the victim's shoes.

______________________

    The issues are whether: (I) use of the short-form murder indictment was unconstitutional and (II) the video images of the victim's body were irrelevant and unduly prejudicial.
I

    Defendant argues the short-form murder indictment against him insufficiently alleges the elements of first-degree murder and is therefore invalid. Defendant acknowledges in his brief to this Court that our Supreme Court has previously held short-form indictments, including those for first-degree murder, that comply with the statutes authorizing short-form indictments but fail to allege all the elements of the crime charged to be constitutional. See State v. Hunt, 357 N.C. 257, 582 S.E.2d 593, cert. denied, --- U.S. ---, 156 L. Ed. 2d 702 (2003). As we are bound by our Supreme Court's holding, this assignment of error is overruled.
II

    Defendant next contends the playing of the videotape for the jury was improper because the tape was (1) irrelevant under Rule401 of the North Carolina Rules of Evidence and (2) unduly prejudicial as prohibited by Rule 403.
    The same principles that govern the admissibility of photographs also apply to motion pictures. State v. French, 342 N.C. 863, 866, 467 S.E.2d 412, 414 (1996) (citing State v. Strickland, 276 N.C. 253, 258, 173 S.E.2d 129, 132 (1970)). Thus, “[a] videotape may be played for a jury even if it is gory and gruesome if it is relevant and is not used solely to arouse the passions of the jury.” Id.; State v. Kandies, 342 N.C. 419, 444, 467 S.E.2d 67, 80 (1996) (“relevant videotapes of crime scenes are admissible when they are not inflammatory or so unduly prejudicial [under Rule 403] as to outweigh any probative value”). Photographic evidence, such as a videotape, is relevant if introduced for illustrative purposes. See State v. Blakeney, 352 N.C. 287, 309-10, 531 S.E.2d 799, 816 (2000); State v. Daughtry, 340 N.C. 488, 510, 459 S.E.2d 747, 758 (1995). “The exclusion of photographic evidence under Rule 403 of the North Carolina Rules of Evidence is generally left to the discretion of the trial court.” State v. Brewington, 343 N.C. 448, 455, 471 S.E.2d 398, 403 (1996); see Blakeney, 352 N.C. at 309, 531 S.E.2d at 816 (the trial court's ruling should not be overturned on appeal unless it was “'manifestly unsupported by reason or [was] so arbitrary that it could not have been the result of a reasoned decision'”) (citation omitted) (alteration in original).
    In this case, the trial court reviewed the video recording before allowing it into evidence and entered the followingfindings:
            The Court would find that the video shows the surroundings and the scenery in which the body was found; it depicts the efforts made to preserve the crime scene with tapes and markers. . . . [I]t shows the distance of the lake and the size of the lake and the location of the lake in regard to its surroundings in close proximity to the road, in which the body . . . would be able to be viewed from the road if a person looked closely.
            That the video shows the impressions in the mud and sand and from the roadway down to the lake that are relevant and would be helpful in illustrating the testimony of the witness as to what was found where.
            The pictures of the body show the location that's already been testified to, the position of the lake and the position from the road.
            And also the final picture of the body actually removed from the lake shows the type of clothing which was testified to as the type that the victim had been wearing when she was last -- showing the relevancy whether or not a change of clothes from the time they last saw her to the time she -- the body was discovered in the lake.
            The Court finds all these elements of the video to be relevant, and will further find they are not excessive in numbers with regard to the extent that they prejudice or the jury would find them to be gory or gruesome or to the degree that they would be incensed by the showing.

The trial court concluded that the videotape could be introduced into evidence and played to the jury “to illustrate and explain the testimony of the witnesses” and “for substantive purposes as to the locations of different aspects of the case.”
    Having reviewed the video recording at issue, we agree with the trial court that its contents were relevant to illustrate Combs' testimony on: the location of the body with respect to theroad, the footprints, tire impressions and drag marks, the location of the blood, and the clothing worn by the victim. See French, 342 N.C. at 866, 467 S.E.2d at 414 (holding a videotape including footage of the deceased was properly used in that case to illustrate the testimony of an agent of the State Bureau of Investigation as to what he saw at the crime scene); Daughtry, 340 N.C. at 510, 459 S.E.2d at 758 (photographs depicting the victim's body from four different angles at the crime scene were relevant to illustrate testimony); State v. Leazer, 337 N.C. 454, 456-57, 446 S.E.2d 54, 55-56 (1994) (upholding admission of videotape of crime scene, including removal of victim).   (See footnote 2) 
    We also agree with the trial court that the video recording is not excessively gory or gruesome and therefore not unduly prejudicial. The 360-degree scenery shots at the beginning of the videotape show the victim's body for only a few seconds at a time: The victim is floating in the water face-down, and only her clothes and shoes are visible. The final minute of the videotape shows the victim's body face-up on the ground after having been brought ashore. Blood is visible on the victim's face, but there are no apparent wounds. At one point during this closeup of the victim's body, the camera pans to the victim's shoes to capture an image of the soles. We further note that the videotape was only elevenminutes long, with the majority of time devoted solely to a recording of the evidence observed on the dirt path. See Kandies, 342 N.C. at 444, 467 S.E.2d at 80 (twenty-minute videotape portraying the discovery and removal of the victim's body and containing ninety seconds of footage that focused on the bloodied head and body of the victim was properly admitted for the purpose of illustrating the witnesses' testimony with respect to the crime scene); see also Blakeney, 352 N.C. at 309, 531 S.E.2d at 816 (“[i]n determining whether to admit photographic evidence, the trial court must weigh the probative value of the photographs against the danger of unfair prejudice to defendant”). We thus conclude that defendant was not unduly prejudiced by the presentation of the video recording to the jury.
    Defendant further argues the trial court should have heeded his request to show only a few select frames of the videotape to reduce the jury's exposure to the images. As the final minute of the videotape essentially amounts to one still photograph of the victim's body, we see no difference in viewing selected frames or publishing photographs to the jury as opposed to permitting the jury to view the videotape itself. Either approach would have exposed the jury to at least one minute of viewing time.
    Finally, defendant takes issue with the trial court's failure to give a limiting instruction to the jury with respect to the videotape. As a general rule, “[t]he jury should be instructed to consider photographs for illustrative purposes only; however, where the defendant does not request that the limiting instruction begiven, . . . it is not error when the instruction is not given.” State v. Handsome, 300 N.C. 313, 319, 266 S.E.2d 670, 675 (1980); State v. Alston, 91 N.C. App. 707, 713, 373 S.E.2d 306, 311 (1988) (failure to give a limiting instruction is not reversible error in the absence of a request made at the time the photographs are received into evidence). Defendant did not request a limiting instruction in this case and can therefore not assign error to its omission.   (See footnote 3) 
    No error.
    Judges McCULLOUGH and ELMORE concur.
    Report per Rule 30(e).


Footnote: 1
    Defendant objected on the grounds that the video was not probative of any issue before the jury and, if found to be relevant, requested that only select still images of the video be introduced.
Footnote: 2
    In response to defendant's additional argument that the video recording was irrelevant because there was no dispute as to the victim's cause of death, we note that our Supreme Court has held: “The State may introduce photographs [of the victim] into evidence although the defendant stipulates the cause of death.” French, 342 N.C. at 866, 467 S.E.2d at 414.
Footnote: 3
    In his brief to this Court, defendant assigns as an additional error that his conviction of using an instrument to injure a pregnant woman should be vacated. Since the trial court arrested judgment on this conviction, this assignment of error is without merit.

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