Appeal by defendant from judgment entered 20 August 2003 by
Judge Robert H. Hobgood in Vance County Superior Court. Heard in
the Court of Appeals 17 February 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Kimberly W. Duffley, for the State.
Anne Bleyman for defendant-appellant.
TIMMONS-GOODSON, Judge.
Charles Lamont Ayscue (“defendant”) appeals his conviction of
robbery with a firearm. For the reasons discussed herein, we hold
that defendant received a trial free of prejudicial error, but we
remand the case for a new sentencing hearing.
The State's evidence presented at trial tends to show the
following: On 13 April 2002, Regina Durham (“Durham”) and Leon
Debnam (“Debnam”) were working at Currin's Mini Mart in Henderson
when defendant entered the store and asked Durham for change for a
fifty dollar bill. Durham had seen defendant “[n]umerous times” in
the store, and the two had “conversations” on more than one
occasion. Durham told defendant that she did not keep that much
change that late at night, and defendant left the store. Defendant
then returned to the store and told Durham, “you know you just made
me miss a drug deal.” Durham replied, “well, maybe I just kept you
from getting in trouble[,]” and she continued working with other
customers.
As Durham was waiting on another customer, defendant “pulled
out [a] gun” and demanded that Durham give him money. Durham
initially “didn't pay him any attention,” but after defendant
“clicked the gun,” Durham opened the cash register and gave
defendant approximately $580.00 in cash. After defendant fled the
store, Durham “pushed the panic button” and locked up the store.
Debnam did not notice defendant when he first entered the
store, but while Debnam was mopping the floor in front of the cash
register he noticed defendant “was real fidgety, and went from one
-- one end of the register to the other.” Debnam saw what“[l]ooked like a nine millimeter” hanging out of defendant's pants
pocket, and he heard defendant say, “give it all here.” Debnam
initially believed defendant was talking to a customer in the
store, but stated that “when I heard the (makes sound and
demonstrates chambering bullet), I looked back, he had the gun
pointed at [Durham].” Debnam then saw defendant flee the store
after Durham gave him money from the cash register.
When law enforcement officers arrived at the store, Durham
described what had happened during the robbery and informed the
officers that the store had a videotaping system. While watching
the videotape with the officers, Durham told the officers that
“she knew the guy, but she just couldn't kind of think of his
name.” She informed the officers that the assailant had twin
sisters, one of whom worked at a local middle school. Vance County
Sheriff's Department Deputy J.L. Goolsby (“Deputy Goolsby”), who
was called to the scene to investigate the incident, had attended
school with one of defendant's sisters, who worked at the middle
school Durham had indicated. When Deputy Goolsby suggested that
defendant was the assailant, Durham snapped her fingers and said,
“that's his name.” Durham also told the officers where she
believed one of defendant's twin sisters lived, as well as which
way defendant had fled.
On 8 July 2002, defendant was indicted for robbery with a
dangerous weapon. A grand jury reindicted defendant for the same
charge on 2 June 2003 and 7 July 2003. Defendant's trial began 19
August 2003. At trial, defendant objected to the State'sintroduction of the videotape into evidence. The trial court
overruled defendant's objection and initially allowed the
introduction of the videotape solely for illustrative purposes.
However, following testimony related to the chain-of-custody of the
videotape, the trial court allowed the State to introduce the
videotape for substantive purposes as well.
Following the State's presentation of its case, defendant
requested that the trial court prohibit the State from introducing
evidence related to defendant's prior out-of-state conviction for
possession of stolen property in the fifth degree. The trial court
denied defendant's request, and defendant subsequently testified on
direct examination that he did not participate in the robbery of
Currin's Mini Mart and that he was at another location on the night
upon which the robbery occurred. Defendant also testified that the
conviction for possession of stolen property in the fifth degree
occurred in New York, and that he “didn't spend no time in jail for
it, or nothing.” Defendant testified that he “thought they”
dismissed the charge.
On 20 August 2003, the jury found defendant guilty of robbery
with a firearm. The trial court reviewed defendant's criminal
record and determined that defendant had a prior felony record
level II. The trial court thereafter sentenced defendant to
seventy to ninety-three months incarceration. Defendant appeals.
We note initially that defendant's brief contains arguments
supporting only ten of the original twenty-one assignments oferror. Pursuant to N.C.R. App. P. 28(b)(6) (2004), the omitted
assignments of error are deemed abandoned. Therefore, we limit our
present review to those issues properly preserved by defendant for
appeal.
The issues on appeal are whether the trial court erred by:
(I) admitting the videotape into evidence; (II) admitting evidence
of defendant's prior out-of-state conviction; and (III) determining
defendant's prior record level.
Defendant first argues that the trial court erred by admitting
the videotape into evidence. Defendant asserts that a proper
foundation was not laid prior to the introduction of the videotape
into evidence. We disagree.
Upon proper foundation, N.C. Gen. Stat. § 8-97 (2003) allows
the introduction of videotapes into evidence for both illustrative
and substantive purposes.
The prerequisite that the offeror lay a proper
foundation for the videotape can be met by:
(1) testimony that the motion picture or
videotape fairly and accurately illustrates
the events filmed (illustrative purposes); (2)
“proper testimony concerning the checking and
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,”
(substantive purposes); 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[.]'”
State v. Cannon, 92 N.C. App. 246, 254, 374 S.E.2d 604, 608-09
(1988) (citations omitted),
rev'd on other grounds, 326 N.C. 37,
387 S.E.2d 450 (1990). In the instant case, Durham testified that the videotape was
the one taken out of the camera on the night of the robbery and
that the videotape accurately represented the incident she had
described to the jury. Following this testimony, the trial court
allowed the introduction of the videotape into evidence for
illustrative purposes only. Durham then continued to testify, and
on cross-examination, she explained the discrepancy between the
date and time of the incident and the date and time contained on
the screen when the videotape was played. Durham testified that
the store had previously been robbed, but that the store had not
yet “timed [the videotape system] back up.” Durham further
testified that “[w]e change that tape every day.” Deputy Goolsby
testified that after viewing the tape, he “went back to the office
and did the report on it.” Deputy Goolsby testified that “[t]he
tape was put into evidence” and that “it went under Detective
Almond's case load.” Vance County Sheriff's Department Detective
John Almond (“Detective Almond”) testified that he investigated the
robbery and took the videotape into custody on 13 April 2002, and
that the videotape had been in his custody, unaltered and
unchanged, since that date. Following this testimony, the trial
court admitted the videotape into evidence for substantive
purposes. In light of the foregoing, we conclude that a proper
foundation was laid for the introduction of the videotape into
evidence for both substantive and illustrative purposes.
Defendant asserts a second basis for contesting the
admissibility of the videotape. While he concedes that he did notobject to the introduction of the evidence for substantive
purposes, defendant maintains that the trial court committed plain
error by allowing the State to introduce the videotape into
evidence for substantive purposes because the videotape was “highly
prejudicial” to his case. We disagree.
“Plain error exists where, after reviewing the entire record,
the claimed error is so fundamental, so basic, so prejudicial, or
so lacking in its elements that justice could not have been done.”
State v. Fleming, 350 N.C. 109, 132, 512 S.E.2d 720, 736,
cert.
denied, 528 U.S. 941, 145 L. Ed. 2d 274 (1999). “A prerequisite to
our engaging in a 'plain error' analysis is the determination that
the [trial court's action] constitutes 'error' at all.”
State v.
Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468,
cert. denied, 479
U.S. 836, 93 L. Ed. 2d 77 (1986). Once we have determined that the
trial court erred, “'[b]efore deciding that an error by the trial
court amounts to “plain error,” we must be convinced that absent
the error the jury probably would have reached a different
verdict.'”
Id. (quoting
State v. Walker, 316 N.C. 33, 39, 340 S.E.
2d 80, 83 (1986)).
“Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” N.C. Gen. Stat. § 8C-1, Rule
403 (2003). Our Supreme Court has previously concluded that
“relevant evidence is properly admissible . . . unless the judgedetermines that it must be excluded, for instance, because of the
risk of 'unfair prejudice.'”
State v. Mercer, 317 N.C. 87, 94, 343
S.E.2d 885, 889 (1986). According to its official commentary,
“unfair prejudice” within the context of Rule 403 “means an undue
tendency to suggest decision on an improper basis, commonly, though
not necessarily, as an emotional one.” N.C. Gen. Stat. § 8C-1,
Rule 403 (Commentary).
In the instant case, the record does not reflect that the
probative value of the videotape was outweighed by any undue
prejudice. The videotape depicted the events of the robbery and
corroborated the testimony of Durham and Debnam. We note that
“[e]vidence which is probative of the State's case necessarily will
have a prejudicial effect upon the defendant; the question is one
of degree.”
State v. Coffey, 326 N.C. 268, 281, 389 S.E.2d 48, 56
(1990). Here, there is no indication that the videotape was
suggestive, confusing, or misleading, nor is there any indication
that the videotape provided an improper basis for the jury's
verdict. Therefore, we conclude that the trial court did not err
in allowing the introduction of the videotape as substantive
evidence, and, accordingly, we overrule defendant's first argument.
Defendant next argues that the trial court erred by allowing
the State to cross-examine him regarding his prior out-of-state
conviction for possession of stolen property in the fifth degree.
Defendant asserts that the State failed to present sufficient
evidence that the conviction met the requirements of N.C. Gen.
Stat. § 8C-1, Rule 609(a). However, assuming
arguendo that thetrial court erred by ruling that the State would be allowed to
present this evidence, defendant has failed to demonstrate that he
was unfairly prejudiced by this error.
We note initially that defendant did not object to the State's
questions during his testimony regarding the prior conviction. In
order to preserve a question for appellate review, N.C.R. App. P.
10(b)(1) (2004) requires that “the complaining party . . . obtain
a ruling upon the party's request, objection or motion.” When the
party's complaint involves the admissibility of evidence, the
complaining party must present an objection when the evidence is
introduced at trial, even where, as here, the objection was
previously considered in a motion
in limine.
State v. Hayes, 350
N.C. 79, 80, 511 S.E.2d 302, 303 (1999);
but see N.C. Gen. Stat. §
8C-1, Rule 103(a)(2) (2003) (effective October 1, 2003) (“Once the
court makes a definitive ruling on the record admitting or
excluding evidence, either at or before trial, a party need not
renew an objection or offer of proof to preserve a claim of error
for appeal.”). Nevertheless, a party may preserve an evidentiary
issue where the party assigns plain error to the issue on appeal.
See N.C.R. App. P. 10(c) (2004).
In the instant case, defendant concedes that he did not object
to the introduction of this evidence during his testimony, and thus
on appeal he assigns plain error to the trial court's ruling. As
discussed above, “[b]efore deciding that an error by the trial
court amounts to 'plain error,' we must be convinced that absent
the error the jury probably would have reached a differentverdict.”
Walker, 316 N.C. at 39, 340 S.E.2d at 83. In the
instant case, during the initial investigation of the robbery,
Durham identified defendant as the individual who had allegedly
robbed the store. At trial, both Durham and Debnam identified
defendant as the individual who had robbed the store, and Durham
and Debnam also provided versions of the incident consistent with
that displayed on the videotape and played before the jury.
Defendant testified that the prior charge for possession of stolen
property in the fifth degree had occurred in New York in 1999, and
that he believed the charges had been dismissed. After reviewing
the record of the instant case, including the foregoing evidence,
we are not convinced that the jury would have reached a different
result absent the introduction of evidence regarding defendant's
prior conviction for possession of stolen property in the fifth
degree. Therefore, we conclude that the trial court did not commit
plain error by allowing the State to introduce evidence regarding
the prior conviction. Accordingly, defendant's second argument is
overruled.
Defendant's final argument is that the trial court erred in
determining his prior record level. Defendant asserts that the
State produced insufficient evidence to support the trial court's
conclusion that he possessed a prior felony record level II. We
agree.
N.C. Gen. Stat. § 15A-1340.14(e) (2003) provides as follows:
Except as otherwise provided in this
subsection, a conviction occurring in a
jurisdiction other than North Carolina is
classified as a Class I felony if thejurisdiction in which the offense occurred
classifies the offense as a felony, or is
classified as a Class 3 misdemeanor if the
jurisdiction in which the offense occurred
classifies the offense as a misdemeanor. . . .
If the State proves by the preponderance of
the evidence that an offense classified as a
misdemeanor in the other jurisdiction is
substantially similar to an offense classified
as a Class A1 or Class 1 misdemeanor in North
Carolina, the conviction is treated as a Class
A1 or Class 1 misdemeanor for assigning prior
record level points.
While “[t]here is no question that a worksheet, prepared and
submitted by the State, purporting to list a defendant's prior
convictions is, without more, insufficient to satisfy the State's
burden in establishing proof of prior convictions[,]”
State v.
Eubanks, 151 N.C. App. 499, 505, 565 S.E.2d 738, 742 (2002), the
State is permitted to provide a computerized worksheet to the trial
court in order to prove a prior out-of-state conviction.
State v.
Rich, 130 N.C. App. 113, 116, 502 S.E.2d 49, 51,
disc. review
denied, 349 N.C. 237, 516 S.E.2d 605 (1998) (computerized printout
with the heading “DCI - Record” and containing various identifying
characteristics of the defendant held to be a copy of a Division of
Criminal Information record and competent to prove prior
convictions).
In the instant case, prior to defendant's trial testimony, the
trial court conducted a
voir dire hearing in which the parties
discussed the introduction of evidence regarding defendant's prior
conviction for possession of stolen property in the fifth degree.
The State informed the trial court that it was “pulling the DCI
records[,]” and that “a copy of [defendant's] record from New Yorkindicates that it's a Class B felony in New York.” The trial court
thereafter determined that the charge “would be a grade of felony”
and it admitted into evidence the record provided by the State.
Following defendant's conviction for robbery with a firearm, the
State submitted a judgment and commitment worksheet to the trial
court. The judgment and commitment sheet indicated that, by virtue
of the one point assigned to the prior possession of stolen
property in the fifth degree conviction, defendant possessed a
prior felony record level II. Defendant objected to the submission
of the worksheet, arguing that “the State has not proven that
[possession of stolen property in the fifth degree] is a Class [1]
misdemeanor under the law.” The trial court readmitted the record
provided by the State, and, after being informed that the record
was provided by “NCIC,” the trial court found that the record “has
reasonable guarantees of trustworthiness.” Without other evidence,
the trial court thereafter concluded that the prior conviction
“would be at least” a Class 1 misdemeanor in North Carolina, and
therefore the trial court determined that defendant had a prior
felony record level II. On appeal, defendant does not challenge
the State's proof of his prior conviction for possession of stolen
property in New York. Instead, defendant contends that the State
failed to demonstrate that the offense “is substantially similar”
to a Class 1 misdemeanor in North Carolina.
We note that NY CLS Penal § 165.40 (2003) provides that
“[c]riminal possession of stolen property in the fifth degree is a
class A misdemeanor.” Although the State presents an argument inits brief comparing the elements of NY CLS Penal § 165.40 with the
elements of N.C. Gen. Stat. § 14-72(a) (2003), no such argument was
presented to the trial court during defendant's trial. Instead,
the trial court considered only the State's judgment and commitment
sheet and a copy of defendant's record, which the State incorrectly
asserted “indicates that [the crime is] a Class B felony in New
York.” In light of the foregoing, we conclude that the State
failed to produce sufficient evidence tending to show that
defendant's prior conviction for possession of stolen property in
the fifth degree was substantially similar to a Class 1 misdemeanor
in North Carolina. Therefore, defendant is entitled to a new
sentencing hearing, during which both parties may present that
evidence necessary to determine whether the offense is
substantially similar to a Class 1 misdemeanor in North Carolina.
In light of the foregoing conclusions, we hold that defendant
received a trial free of prejudicial error, but we remand the case
for a new sentencing hearing.
No error at trial; remand for new sentencing hearing.
Judges BRYANT and LEVINSON concur.
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