An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-328

NORTH CAROLINA COURT OF APPEALS

Filed: 2 August 2005

STATE OF NORTH CAROLINA

v .                         Forsyth County
                            Nos. 03 CRS 54669 and
                                03 CRS 03816
CHRISTOPHER RANDY RUTLEDGE

    Appeal by defendant from judgment entered 14 October 2003 by Judge Henry E. Frye, Jr., in Superior Court, Forsyth County. Heard in the Court of Appeals 2 March 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Jeffrey R. Edwards, for the State.    

    Reita Pendry for defendant-appellant.

    McGEE, Judge.

    Christopher R. Rutledge (defendant) was convicted of operating a motor vehicle while fleeing and attempting to elude a law enforcement officer. Defendant admitted he had attained habitual felon status and was sentenced to 116 to 149 months in prison. Defendant appeals.
    At trial, Deputy J.W. Atkins (Deputy Atkins) of the Forsyth County Sheriff's Office testified for the State that he was on patrol in northwest Forsyth County on the morning of 29 April 2003. Deputy Atkins saw defendant, whom Deputy Atkins had known for approximately five years, driving a green Jeep Cherokee (the Jeep) down Old Rural Hall Road around 9:00 a.m. Deputy Atkins saw defendant pass a vehicle in a no-passing zone and travel at whatappeared to be a high rate of speed. Deputy Atkins signaled with his hand for defendant to pull over. When defendant did not do so, Deputy Atkins turned on his siren and blue lights, radioed for assistance, and began to pursue defendant. Deputy Atkins testified that defendant was driving erratically and continued to increase his speed as Deputy Atkins followed him. Deputy Atkins estimated that defendant was driving in excess of ninety miles per hour. While driving around a hairpin turn in the road, defendant passed another vehicle, forcing it off the road. Deputy Atkins lost sight of defendant's vehicle, but he again radioed a description of the Jeep and asked for assistance.
    Defendant drove into the front yard of a residence on Old Rural Hall Road, where Corporal N.E. Hartgrove (Corporal Hartgrove) of the Forsyth County Sheriff's Office was responding to a burglar alarm call. Defendant drove straight at Corporal Hartgrove, who had heard Deputy Atkins's radio call for assistance. Corporal Hartgrove yelled for defendant to stop. Corporal Hartgrove testified that she drew her weapon because she feared for her safety because defendant was driving toward her. Defendant turned his car around, and in the process of turning, he hit a retaining wall and drove over shrubbery. Defendant then drove back onto Old Rural Hall Road. Corporal Hartgrove radioed defendant's location to Deputy Atkins.
    Deputy Atkins drove toward defendant's location and observed the Jeep traveling at a high rate of speed away from where Corporal Hartgrove had seen the Jeep. Deputy Atkins, who had been travelingin the opposite direction from defendant, turned around to follow defendant.
    Officer J.O. Boger (Officer Boger) of the Forsyth County Sheriff's Office testified that about 9:00 a.m. on 29 April 2003, he was serving process at a house on Old Rural Hall Road, when he heard a radio communication between Deputy Atkins and Corporal Hartgrove. Officer Boger observed a green Jeep traveling west on Old Rural Hall Road, and Deputy Atkins was behind the Jeep with his blue lights and siren on. Officer Boger further testified that the speed limit in that part of Old Rural Hall Road was thirty-five miles per hour; he estimated that defendant was driving in excess of seventy miles per hour when defendant passed Officer Boger. Officer Boger proceeded behind the Jeep and in front of Deputy Atkins, who was still trying to catch up to defendant. Officer Boger testified that he had his blue lights and siren on, and that his car was clearly marked with "Sheriff." The Jeep made "an abrupt left turn" into a residence off Pineview Drive. Officer Boger testified that both he and Deputy Atkins, who had caught up to Officer Boger, also turned into the residence off Pineview Drive where they saw defendant and a passenger exit the Jeep and "[take] off running." Deputy Atkins and Officer Boger pursued defendant and the passenger on foot. Deputy Atkins found the passenger hiding under a shed.
    Detective Mark Elliott (Detective Elliott) of the Forsyth County Sheriff's Office testified that he had heard Deputy Atkins's radio broadcast regarding defendant. Detective Elliott knew thearea of the chase and suspected that defendant might seek assistance from a nearby resident, Carol Chinault (Chinault). On arriving at Chinault's residence, Detective Elliott and another detective saw Chinault driving away from his house and heard the door of another house slam. Detective Elliott found defendant hiding in the other house.
    Defendant testified at trial that he did see Deputy Atkins on Old Rural Hall Road but did not see Deputy Atkins signal him to stop. Defendant further testified that he recognized Deputy Atkins and pulled onto a side street to wait for Deputy Atkins, but that Dexter Trivette (Trivette), who was a passenger riding with defendant, began beating on the dashboard of the car and screaming for defendant not to pull over, apparently because there were outstanding warrants for Trivette's arrest. Deputy Atkins had turned around and was coming toward defendant. Defendant pulled back onto Old Rural Hall Road and headed east, passing Deputy Atkins. Defendant testified that Deputy Atkins turned on his blue lights. Defendant further testified that after he passed Deputy Atkins, he did not see Deputy Atkins again, and that defendant was driving "[m]aybe forty-five miles per hour." Defendant pulled into the driveway of a house, stopped the Jeep, and told Trivette to get out of the Jeep. When Trivette refused, defendant left the driveway, puncturing a tire in the process, and went back up Old Rural Hall Road in the direction from which he had come. He saw officers in pursuit of him at that time. When he realized his tire was going flat he pulled off onto Pineview Drive and got out of thecar, along with Trivette. Defendant testified that he never saw Corporal Hartgrove.
    Deputy Atkins also testified that the vehicle he was driving was equipped with a camera, and that the camera was "operable and running" during the chase, which took place over three to five miles. The videotape was not presented as evidence at trial.

I.
    Defendant first argues that the trial court erred in not ordering the State to produce the videotape of the vehicle chase to the defense after the State failed to comply with defendant's request that the tape be produced. We disagree.
    Under N.C. Gen. Stat. § 15A-902(a) (2003), "[a] party seeking discovery . . . must, before filing any motion before a judge, request in writing that the other party comply voluntarily with the discovery request." If the party from whom discovery is sought does not comply with the discovery request within seven days or does not give a satisfactory response, "the party requesting discovery may file a motion for discovery . . . concerning any matter as to which the voluntary discovery was not made pursuant to request." Id. Only "[u]pon motion of the defendant" must the trial court
        order the prosecutor to permit the defendant to inspect and copy or photograph books, papers, documents, photographs, motion pictures, mechanical or electronic recordings, buildings and places, or any other crime scene, tangible objects, or copies or portions thereof which are within the possession, custody, or control of the State and which are material to the preparation of his defense, are intended for use by the State as evidenceat the trial, or were obtained from or belong to the defendant.

N.C. Gen. Stat. § 15A-903 (d) (2003) .
    In the present case, defendant made a discovery request in writing pursuant to N.C.G.S. § 15A-902(a) on 3 September 2003. However, defendant does not argue, nor does the record show, that defendant filed a motion to compel the State to comply with defendant's discovery request before or during the trial. Defendant, by his own admission, did not make such a motion until 30 August 2004, which was more than ten months after the judgment against him was entered on 14 October 2003. Since defendant never moved to compel discovery, defendant waived his statutory right to discovery. See State v. Hoskins, 36 N.C. App. 92, 96, 242 S.E.2d 900, 903 ("The failure to seek discovery pursuant to the terms of G.S. 15A-902 and 903 constituted a waiver of the right to discovery pursuant to those statutes."), disc. review denied, 295 N.C. 469, 246 S.E.2d 11 (1978); see also State v. Abbott, 320 N.C. 475, 482, 358 S.E.2d 365, 370 (1987) ("A defendant is not entitled to discovery of materials in the possession of the State unless he makes a motion to compel discovery.") . We overrule defendant's assignment of error.
II.
    Defendant next argues that the trial court improperly allowed the State to refer in its closing argument to the videotape of the arrest of Rodney King. In its closing argument, the State mentioned the videotape made by Deputy Atkins and what it would nothave shown had it been presented as evidence:
        [THE STATE]: . . . And this videotape that he wants you to see, it's not going to be able to tell you which road, which side of the road they were on, whether or not they were going east or west, because the camera is on the vehicle. And the vehicle's always going to be on the right side of the roadway; it's not going to show you on that camera that he's going east or west. It's not going to be able to determine speed in which he was traveling. And don't be confused about that, Members of the Jury, they had a videotape of Rodney King.

        [DEFENSE COUNSEL]: Objection, Your Honor; it's got nothing to do with this case.

        THE COURT: Well, he didn't say anything else related to it. Overruled.

Defendant argues that the trial court erred in allowing the statement concerning Rodney King to go uncorrected when the statement was inflammatory and prejudicial. Defendant asserts that he is entitled to a new trial because the trial court did not disallow this statement about the Rodney King arrest. We disagree.
    "It is well settled that arguments of counsel rest within the control and discretion of the presiding trial judge." State v. Worthy, 341 N.C. 707, 709, 462 S.E.2d 482, 483 (1995). "A trial court may be reversed for an abuse of discretion only upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision." State v. Gladden, 315 N.C. 398, 412, 340 S.E.2d 673, 682, cert. denied, 479 U.S. 871, 93 L. Ed. 2d 166 (1986) . In the present case, defendant does not argue, nor do we see, how the trial court's overruling ofdefendant's objection regarding the State's comment about the Rodney King videotape was "so arbitrary that it could not have been the result of reasoned decision." See id. Prosecutors are permitted to argue what is deemed to be general knowledge, see State v. Reeves, 337 N.C. 700, 732, 448 S.E.2d 802, 817 (1994), cert. denied, 514 U.S. 1114, 131 L. Ed. 2d 860 (1995), and it can be considered to be general knowledge that there was a videotape in the Rodney King case. Since the trial court specifically stated that the State "didn't say anything else related to" the Rodney King videotape after defendant objected, the trial court weighed the prejudicial effect of the comment and decided to overrule defendant's objection.
    Moreover, our Supreme Court has stated,
        as this Court has previously pointed out, "for an inappropriate prosecutorial comment to justify a new trial, it 'must be sufficiently grave that it is prejudicial error.'" In order to reach the level of "prejudicial error" in this regard, it now is well established that the prosecutor's comments must have "so infected the trial with unfairness as to make the resulting conviction a denial of due process."

Worthy, 341 N.C. at 709-10, 462 S.E.2d at 483 (quoting State v. Green, 336 N.C. 142, 186, 443 S.E.2d 14, 40 (citations omitted), cert. denied, 513 U.S. 1046, 130 L. Ed. 2d 547 (1994)). The State's mention of the Rodney King videotape does not rise to the level of prejudicial error. Again defendant does not argue how the State's reference to the Rodney King arrest could have "so infected the trial with unfairness as to make the resulting conviction adenial of due process." See Green, 336 N.C. at 186, 443 S.E.2d at 40 (citation omitted) . Defendant's argument that the trial court erred in overruling defendant's objection to the State's comment is without merit.
III.
    Pursuant to Rule 10 of the North Carolina Rules of Appellate Procedure, we dismiss defendant's remaining two arguments because they were not properly preserved at trial. First, defendant argues that the trial court erred in instructing the jury on the charge of operating a vehicle to elude arrest. The crime of fleeing and eluding an officer is codified at N.C. Gen. Stat. § 20-141.5 (2003), which provides:

         (a) It shall be unlawful for any person to operate a motor vehicle on a street, highway, or public vehicular area while fleeing or attempting to elude a law enforcement officer who is in the lawful performance of his duties. Except as provided in subsection (b) of this section, violation of this section shall be a Class 1 misdemeanor.
        (b) If two or more of the following aggravating factors are present at the time the violation occurs, violation of this section shall be a Class H felony.

        (1) Speeding in excess of 15 miles per hour over the legal speed limit.

        . . . .

        (3) Reckless driving as proscribed by G.S. 20-140.

N.C. Gen. Stat. § 20-140(a) (2003) provides that "[a]ny person who drives any vehicle upon a highway or any public vehicular area carelessly and heedlessly in willful or wanton disregard of therights or safety of others shall be guilty of reckless driving."
    At trial, the State presented evidence that defendant drove at an excessive speed, passed in a no passing zone, passed in a curve, and ran a vehicle off the road. During the jury instruction conference, the State asked the trial court to instruct the jury on two aggravating factors: speeding in excess of fifteen miles per hour over the speed limit and reckless driving.
        THE COURT: I believe you had, Mr. Saunders, on the indictment, there were two of the aggravating factors?

        [THE STATE]: Yes, sir.

        THE COURT: Let's see, one was speeding in excess of fifteen miles per hour over the speed limit, and then, the other one was reckless driving, is that correct?

        [THE STATE]: Yes, sir.

        . . .

        THE COURT: The Defendant drove a motor vehicle upon a highway, second, that he drove a vehicle _ it says describe the manner of driving _ and that in so doing he acted carelessly and heedlessly in willful wanton disregard rights and safety of others [sic]. What, describe the manner of driving, what would you want me, the Court, to put in that partic ---

        [THE STATE]: Excessive speed, Your Honor -

        THE COURT: Okay --

        [THE STATE]: -- and passing in a no zone, passing in a curve, running a vehicle off of the road.

        [DEFENSE COUNSEL]: Just for the record, I'm going to object to the excessive speed, because we've already got the speed in the first prong of this.The trial court considered the objection and, the following day, ruled that defendant's alleged excessive speed could be considered for both factors. Defense counsel then interrupted with a question:
        [DEFENSE COUNSEL]: Excuse me, Your Honor, did you say for the second element that you were going to use speed?

        THE COURT: I'm going to use it in this manner, that he drove the vehicle at an excessive speed while passing on a curve and running a vehicle off the road.

        [DEFENSE COUNSEL]: For the record, I'm going to object.

    These two exchanges indicate that defendant's objection was to the trial court's instruction to the jury that defendant's excessive speed could be considered for both of the aggravating factors on the charge of fleeing and eluding an officer. Defendant's argument to this Court, however, is that the phrasing of the trial court's instructions to the jury was essentially an instruction to convict defendant.
    To preserve an issue for appellate review,         "a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." N.C.R. App. P. 10(b)(1). In this case, defendant does not argue on appeal the same theory on which he based his objection at trial. Thus, defendant's argument to our Court is a new theory not previously raised before the trial court. As our Court recently wrote:        Our Supreme Court "has long held that where a theory argued on appeal was not raised before the trial court, 'the law does not permit parties to swap horses between courts in order to get a better mount'" in the appellate courts. . . . "The defendant may not change his position from that taken at trial to obtain a 'steadier mount' on appeal."

State v. Holliman, 155 N.C. App. 120, 123, 573 S.E.2d 682, 685 (2002) (citations omitted). We thus dismiss defendant's argument on the jury instructions.
    We similarly dismiss defendant's argument that the State improperly argued facts not in evidence during its closing arguments. Defendant specifically argues that the State claimed that the contents of the videotape from Deputy Atkins's vehicle would not corroborate defendant's testimony. However, at trial defendant did not object to the State's discussion of the contents of the videotape from Deputy Atkins's vehicle.
    Rather, as discussed above, defense counsel only objected to the State's reference to the videotape of the Rodney King arrest. In making the objection, d efense counsel's statement: "[I]t's got nothing to do with this case" and the trial court's comment on ruling: "Well, he didn't say anything else related to it" show that defendant made the objection in response to the State's mention of the Rodney King videotape. Moreover, defendant's argument above regarding the State's closing argument, relied on the premise that defense counsel was objecting to the State's reference to the Rodney King videotape. As such, defendant's argument to our Court that the State's mention of the videotape taken from DeputyAtkins's vehicle was improper when the videotape was not in evidence, is another attempt "to swap horses between courts in order to get a better mount." See Holliman, 155 N.C. App. at 123, 573 S.E.2d at 685 (citation omitted) . Thus, we dismiss defendant's assignment of error as to the State's closing argument.

IV.
    In addition to making the above arguments, defendant filed a motion for appropriate relief related to the videotape of the vehicle chase. Defendant seeks a new trial, asserting that his "conviction was obtained in violation of the Constitution of the United States[.]" See N.C. Gen. Stat. § 15A-1415(b)(3) (2003). Specifically, defendant contends that his due process rights were violated because the State failed to disclose the videotape recorded by Deputy Atkins, which, defendant argues, was material, exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215 (1963).
    As our Court has previously stated: "Brady stands for the proposition that a defendant's due process rights are violated when the prosecution fails to disclose evidence which may favor defendant, either by tending to show his innocence, or by tending to show mitigating factors that would ameliorate his punishment." State v. Campbell, 133 N.C. App. 531, 541, 515 S.E.2d 732, 739 (citing Brady, 373 U.S. at 87, 10 L. Ed. 2d at 218 )), disc. review denied, 351 N.C. 111, 540 S.E.2d 370 (1999). "Favorable" evidence also includes "'any evidence adversely affecting the credibility ofthe government's witnesses.'" State v. Johnson, 165 N.C. App. 854, 856, 599 S.E.2d 599, 601 (2004) (quoting State v. McGill, 141 N.C. App. 98, 102, 539 S.E.2d 351, 355 (2000)). "However, failure to give evidence to the defense violates defendant's right to due process only if the evidence was 'material' to the outcome of the trial." Campbell, 133 N.C. App. at 541, 515 S.E.2d at 739 (citing United States v. Bagley, 473 U.S. 667, 674-75, 87 L. Ed. 2d 481, 489 (1985)). Evidence not disclosed "is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Bagley, 473 U.S. at 682, 87 L. Ed. 2d at 494; see also State v. Coats, 100 N.C. App. 455, 464, 397 S.E.2d 512, 518 (1990), disc. review denied, 328 N.C. 573, 403 S.E.2d 515 (1991).
    The videotape submitted to our Court begins with a silver- colored vehicle traveling on the other side of the road from the police car filming the video. A sign showing that the speed limit for the road was thirty-five miles per hour comes into view, and then a green Jeep approaches the police car from the opposite direction. The Jeep is only visible for a couple of seconds. The videotape then shows the police car making a three-point turn to follow the Jeep. The police car accelerates quickly to come behind another police car with its blue lights flashing. Both police cars turn left to pull into the front yard of a residence where a green Jeep is parked. An unidentified person can briefly be seen jumpingover the fence behind the residence. Two police officers are shown pursuing on foot the person who jumped the fence. The videotape ends with the officers returning to their vehicles with a person in handcuffs.
     Defendant argues that the videotape was exculpatory because it "adversely affect[ed] the credibility of the government's witnesses[,]" see Johnson, 165 N.C. App. at 856, 599 S.E.2d at 601 , because the videotape "squarely contradicts the testimony of Deputy Atkins." Deputy Atkins testified at trial that the video camera in his vehicle was "operable and running" during the chase, that the chase occurred over three to five miles, that defendant was driving in excess of ninety miles per hour, that defendant drove erratically forcing another vehicle off the road, and that defendant passed another vehicle in a no-passing zone. Defendant asserts that the videotape "shows a green jeep proceeding at a normal pace, two police cars following the car with lights flashing, no erratic movements, and no approaching vehicles being forced from the roadway." Defendant also argues that the videotape contradicted the testimony of Corporal Hartgrove and Officer Boger that defendant was driving recklessly and at high rates of speed.     However, this Court's review of the tape reveals nothing inculpatory or exculpatory about defendant with regards to how fast defendant was driving or whether defendant was driving recklessly. Since the Jeep was only visible for a few seconds and it was traveling in the opposite direction of the police car filming the video, the speed at which the Jeep was traveling cannot bedetermined from the videotape. The videotape shows only a small portion of the end of the chase, and what it shows is consistent with the testimony of Deputy Atkins and Officer Boger: that defendant turned left into a residence off of Pineview Drive where defendant and Trivette "took off running."
    Defendant argues that the length of the videotape is itself exculpatory because Deputy Atkins testified that the camera was operating throughout the chase. Defendant asserts that if the length of the videotape covers the whole chase, "then the chase lasted a fraction of the time [Deputy Atkins] testified to, and at no time was defendant speeding or driving recklessly." However, our review of the record indicates only that Deputy Atkins said: "The video was operable, yes it was. . . . It was operable and running, so yes, it was [taking videos of the chase]." Deputy Atkins did not testify as to how long the videotape was recording or as to whether he saw the contents of the tape to know whether or not it covered the entire chase. Thus, we disagree with defendant's argument that the videotape would have adversely affected the credibility of Deputy Atkins or any other State's witness.
    Moreover, since defendant's speed cannot be determined from the videotape, defendant fails to show that the videotape was material. In light of the testimony of the three police officers that they personally observed defendant speeding and driving recklessly, there is not "a reasonable probability that, had the evidence been disclosed to the defense, the result of theproceeding would have been different." See Bagley, 473 U.S. at 682, 87 L. Ed. 2d at 494. We therefore deny defendant's motion for appropriate relief.
    No error; motion for appropriate relief denied.
    Judges TYSON and GEER concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***