An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-825


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.

    GEER, Judge.

    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 cut out.
    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 structural error.
    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 evidence , "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 evidence.").
    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 Clark, 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."
Id. (quoting Clark, 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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