An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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
NORTH CAROLINA COURT OF APPEALS
Filed: 16 August 2005
In the Matter of: Mecklenburg County
I.O.E. No. 98-J-549
Appeal by juvenile from adjudication order entered 18 December
2003 and disposition and commitment order entered 29 January 2004
by Judge Avril Ussery Sisk in Mecklenburg County District Court.
Heard in the Court of Appeals 2 March 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Jane Ammons Gilchrist, for the State.
M. Alexander Charns, for juvenile-appellant.
I.O.E. ("the juvenile") was adjudicated delinquent of the
offense of robbery with a dangerous weapon. On appeal, the
juvenile argues that the trial court erred (1) in allowing an
interpreter to translate at trial without having been sworn, (2) by
admitting the victim's statement, (3) by admitting a possibly gang-
related letter, and (4) by denying his motion to dismiss. The
juvenile also argues he was denied due process of law because of
the faulty tape-recording of the proceedings below. After
reviewing the record, we hold that the juvenile received a trial
free from prejudicial error.
The State's evidence tended to show the following. At 2:00
a.m. on 26 June 2003, Jose Orlando Ayala was walking through theparking lot of a Bi-Lo grocery store in Charlotte, North Carolina.
Ayala testified, through an interpreter, that three men approached
him in the parking lot and asked for a dollar. After Ayala took a
dollar out of his pocket, the men demanded everything he had, which
included $500.00 for Ayala's rent. Ayala did not look at the men
straight in the face because he was nervous and believed that if he
moved he would be assaulted with a knife. The men then ran towards
the back of the Bi-Lo.
Ayala approached a man who was cleaning the parking lot, told
him that he had been robbed, and that man called the police.
Officers Chat Arnold and David Collins of the Charlotte-Mecklenburg
Police Department arrived at the scene and obtained a description
of the incident and the robbers from Ayala. Ayala told Officer
Arnold that he was robbed by several young, black males and that
one of them was wearing a sweater with a red stripe and the arms
Approximately 35 minutes after leaving the Bi-Lo parking lot,
Office Arnold noticed the juvenile walking along Albemarle Road
approximately one block from the Bi-Lo and wearing a sweater with
a stripe on it. Arnold stopped and talked to the juvenile, who
said he was walking to his group home, which was eight miles away,
because he had missed his ride. Ayala was taken to where the
juvenile was located. When pulling into the parking lot and before
getting out of the car, Ayala immediately identified the juvenile
as one of the persons who robbed him by saying, "[t]hat's him,
that's him, he's the one." At the trial, the juvenile admitted that he was in the Bi-Lo
parking lot, but claimed that a Hispanic man approached him asking
for cocaine. When the juvenile asked how much money he had, the
man replied he had some change. The juvenile then walked away and
went to a friend's house for about ten minutes before walking down
Albemarle Road. When the police brought Ayala to see the juvenile,
the juvenile recognized him as the man who had approached him in
the parking lot. The juvenile denied ever asking the man for his
wallet or threatening him with a knife.
The trial court adjudicated the juvenile delinquent of armed
robbery in its adjudication order entered 18 December 2003. In its
disposition order entered 29 January 2004, the court found that the
juvenile's delinquency history was high, concluded that N.C. Gen.
Stat. § 7B-2508(f) (2003) authorized a Level 3 disposition, and
ordered an indefinite commitment in a training school.
The juvenile first argues that the trial court erred by
allowing the admission of Ayala's testimony when the foreign-
language interpreter was not placed under oath. The juvenile
acknowledges that he did not object at trial, but asks the Court to
review the error as plain error or structural error.
The juvenile did not specifically allege plain error in his
assignment of error. Under Rule 10(c)(4) of the North Carolina
Rules of Appellate Procedure, "a question which was not preserved
by objection noted at trial and which is not deemed preserved by
rule or law without any such action, nevertheless may be made thebasis of an assignment of error where the judicial action
questioned is specifically and distinctly contended to amount to
plain error." (Emphasis added.) In State v. Dennison, 359 N.C.
312, 312-13, 608 S.E.2d 756, 757 (2005), the Supreme Court reversed
this Court for reviewing an issue under the plain error doctrine,
holding that "because defendant did not 'specifically and
distinctly' allege plain error as required by North Carolina Rule
of Appellate Procedure 10(c)(4), defendant is not entitled to plain
error review of this issue." Accordingly, we may not review this
issue under the plain error doctrine.
Defendant also failed to assert in his assignment of error
that any error was structural. Our Supreme Court has recently held
that "[s]tructural error is a rare form of constitutional error
resulting from a defect affecting the framework within which the
trial proceeds, rather than simply an error in the trial process
itself." State v. Allen, __ N.C. __, __, __ S.E.2d __, __, 2005
N.C. LEXIS 695, at *33-34 (July 1, 2005) (internal quotation marks
omitted). The juvenile has cited no authority _ and we have found
none _ supporting its contention that the failure to administer an
oath to an interpreter is an error affecting the framework of the
trial rather than an error in trial process such as to constitute
Indeed, other jurisdictions have generally held that such an
error does not even constitute plain error without a showing that
the interpreter failed to make a truthful interpretation of the
proceedings. See, e.g., People v. Avila, 797 P.2d 804, 805 (Colo.Ct. App. 1990) ("Although it was error for the court to fail to
administer an oath or affirmation of true translation to the
interpreter, . . . it was not plain error affecting the substantial
right of the defendant."); People v. Delgado, 10 Ill. App. 3d 33,
37, 294 N.E.2d 84, 87 (1973) ("'[D]efendant asserts that it does
not appear that the interpreter was sworn. We have recently
rejected such a formal contention first made on appeal as not
approaching plain error.'" (quoting Marxuach v. United States, 398
F.2d 548, 552 (1968)). We hold that the failure to administer the
oath to the interpreter does not constitute structural error and,
therefore, overrule this assignment of error.
The juvenile next challenges the admission of Ayala's
statement taken by the police at the scene of the robbery with the
assistance of an interpreter. He argues that the statement should
not have been admitted because (1) the interpreter at the scene did
not swear to translate accurately, and (2) the statement was
inadmissible hearsay. We disagree.
First, with respect to the interpreter at the scene, the
juvenile refers generally to Rule 604 of the North Carolina Rules
of Evidence, but cites no other authority for his contention that
the interpreter at the scene was required to be sworn. Rule 604
states that "[a]n interpreter is subject to the provisions of these
rules relating to qualification as an expert and the administration
of an oath or affirmation that he will make a true translation."
N.C.R. Evid. 603 governs the administration of oaths oraffirmations and provides: "Before testifying, every witness shall
be required to declare that he will testify truthfully, by oath or
affirmation administered in a form calculated to awaken his
conscience and impress his mind with his duty to do so." (Emphasis
added.) Thus, under Rules 603 and 604, an oath or affirmation must
be administered to an interpreter before he or she testifies at
trial. Since the translation of Ayala's statement at the scene
does not fall under Rule 604, this aspect of the juvenile's
contention has no merit.
With respect to the juvenile's hearsay objection, Ayala's
statement was admissible as corroborative evidence. In North
Carolina it is well established that "[a] prior consistent
statement of a witness is admissible to corroborate the testimony
of the witness whether or not the witness has been impeached."
State v. Jones, 329 N.C. 254, 257, 404 S.E.2d 835, 836 (1991).
"Corroborative evidence by definition tends to 'strengthen,
confirm, or make more certain the testimony of another witness.'"
State v. McGraw, 137 N.C. App. 726, 730, 529 S.E.2d 493, 497
(quoting State v. Adams, 331 N.C. 317, 328-29, 416 S.E.2d 380, 386
(1992)), disc. review denied, 352 N.C. 360, 544 S.E.2d 554 (2000).
The presence of additional details, slight variances, or
inconsistencies "'do not render the corroborative testimony
inadmissible.'" State v. Love, 152 N.C. App. 608, 616, 568 S.E.2d
320, 326 (2002) (quoting State v. Burns, 307 N.C. 224, 230, 297
S.E.2d 384, 387 (1982)), disc. review denied, 357 N.C. 168, 581
S.E.2d 66 (2003). In this case, Ayala's statement made at thescene was consistent with and corroborated Ayala's trial testimony
and, therefore, was admissible.
The juvenile next argues that the trial court erred by
admitting an alleged gang letter that was found on the juvenile
when he was searched. Even assuming arguendo that this evidence
was inadmissible, the juvenile has not demonstrated that the trial
judge relied upon this letter in its final determination.
"In a nonjury trial, if incompetent evidence is admitted and
there is no showing that the judge acted on it, the trial court is
presumed to have disregarded it." In re Oghenekevebe, 123 N.C.
App. 434, 438, 473 S.E.2d 393, 397 (1996). The effect of this
presumption "is that the burden rests on the juvenile to rebut the
presumption that any incompetent evidence was disregarded and
demonstrate prejudice." In re Hartsock, 158 N.C. App. 287, 290,
580 S.E.2d 395, 398 (2003). Since the juvenile has not attempted
to rebut the presumption that the trial court disregarded the
letter, this assignment of error is overruled.
Next, the juvenile argues that the court erred by denying his
motion to dismiss the charge of armed robbery. The juvenile made
a motion to dismiss at the close of the State's evidence, but
failed to renew the motion at the close of all the evidence. When
a defendant fails to renew his motion to dismiss at the close of
"the issue of insufficiency [is] not preserved forappellate review." State v. Richardson, 341 N.C. 658, 676_77, 462
S.E.2d 492, 504 (1995).
Acknowledging that the question of the sufficiency of the
evidence was not preserved, the juvenile asserts that the trial
court committed plain error.
Plain error, however, only applies to
jury instructions and evidentiary matters. State v. Freeman, 164
N.C. App. 673, 677, 596 S.E.2d 319, 322 (2004). The doctrine does
not apply when a defendant has failed to make a motion to dismiss
at the close of all the evidence. Richardson, 341 N.C. at 676-77,
462 S.E.2d at 504 (refusing to apply plain error doctrine when a
defendant failed to renew his motion to dismiss);
State v. Bartley,
156 N.C. App. 490, 494, 577 S.E.2d 319, 322 (2003) ("Defendant's
attempt to invoke plain error review is inappropriate as this
assignment of error concerns the sufficiency of the evidence, not
an instructional error or an error concerning the admissibility of
Finally, the juvenile contends that he was denied due process
of law because there were inaudible portions of the trial
transcript that prevented his appellate counsel from providing
complete assistance of counsel. An appellant who raises the issue
of an inadequately recorded proceeding must show that the failure
to properly record the evidence resulted in prejudice. In re
, 159 N.C. App. 75, 83, 582 S.E.2d 657, 662 (2003).
As this Court stated in In re Bradshaw
, 160 N.C. App. 677,
681, 587 S.E.2d 83, 86 (2003): Furthermore, the use of general
allegations is insufficient to show reversible
error resulting from the loss of specific
portions of testimony caused by gaps in
recording. Where a verbatim transcript of the
proceedings is unavailable, there are "means .
. . available for [a party] to compile a
narration of the evidence, i.e.,
reconstructing the testimony with the
assistance of those persons present at the
hearing." If an opposing party contended "the
record on appeal was inaccurate in any
respect, the matter could be resolved by the
trial judge in settling the record on appeal."
, 159 N.C. App. at 80, 582 S.E.2d at 660-61).
The juvenile in this case has not argued that he was unable to
reconstruct the testimony by compiling a narrative and he has not
specifically shown how the inaudible portions caused him prejudice
in preparing for this appeal. Accordingly, this assignment of
error is overruled.
Judges MCGEE and TYSON concur.
Report per Rule 30(e).
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