An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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


NO. COA04-1199

NORTH CAROLINA COURT OF APPEALS

Filed: 21 June 2005

STATE OF NORTH CAROLINA

v .                         Harnett County
                            Nos. 02 CRS 7376-78
NEIL CLIFTON CAMERON                02 CRS 7388-90
                                02 CRS 7392-96
                                02 CRS 55386
                                03 CRS 5481-82
    

    Appeal by Defendant from judgment entered 16 January 2004 by Judge Gregory A. Weeks in Superior Court, Harnett County. Heard in the Court of Appeals 17 May 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Diane G. Miller, for the State.

    Russell J. Hollers III, for the defendant-appellant.

    WYNN, Judge.

    Videotapes may be admitted into evidence at trial where a proper foundation is laid. State v. Smith, 152 N.C. App. 29, 38, 566 S.E.2d 793, 800, cert. denied, 356 N.C. 311, 571 S.E.2d 208 (2002). Here, Defendant Neil C. Cameron contends that the trial court erred by admitting videotapes of himself committing sex offenses because no proper foundation was laid. Because Defendant stipulated to the authenticity and chain of custody of the videotapes, we hold that the trial court properly admitted the videotapes in this trial .     The record reflects that the victims in this case are Defendant's two young nieces and his severely mentally retarded sister-in-law. The nieces often stayed with Defendant and his wife at their home while their mother, Defendant's sister-in-law, was at work. In June 2003, Defendant's nephew and daughter were in Defendant's home seeking a videotape of a family reunion. The nephew and daughter looked at some unlabeled tapes in Defendant's computer room and discovered two videotapes of Defendant engaging in sexual acts with one of Defendant's nieces and with Defendant's mentally retarded sister-in-law. The nephew and daughter took the tapes to their maternal grandmother, who showed the tapes to her daughters, one of whom was the mother of the two child victims. The mother of the child victims contacted the Sheriff's Department and took the tapes to the Sheriff's Department.
    Defendant was arrested and indicted on multiple sex offenses. A jury found Defendant guilty of one count of first-degree statutory sexual offense, two counts of second-degree rape, two counts of second-degree sexual offense, seven counts of taking indecent liberties with a child, and two counts of first-degree sexual exploitation of a minor . Defendant appealed.

______________________________________
    Defendant first argues on appeal that the trial court erred in admitting into evidence two videotapes as substantive evidence of the crimes alleged without properly authenticating the videotapes. While Defendant failed to object on this basis at trial, he alleged plain error as to this issue in both the relevant assignment oferror and his brief. We therefore review only for plain error.
    Plain error is error that amounts to the denial of a fundamental right or is “so lacking in its elements that justice cannot have been done.” State v. Carpenter, 147 N.C. App. 386, 397, 556 S.E.2d 316, 323 (2001), cert. denied, 536 U.S. 967, 153 L. Ed. 2d 851 (2002) (citations omitted). To prevail under the plain error analysis, a defendant must show that there was error, and that absent the error, the jury would have reached a different result. Id.
    A trial court may allow a videotape into evidence for substantive and/or illustrative purposes where the offeror has laid a proper foundation for such evidence. N.C. Gen. Stat. § 8-97 (2004). North Carolina General Statutes section 8C-1, Rule 901 states that “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” N.C. Gen. Stat. § 8C-1, Rule 901 (2004). A proper foundation for a videotape may be laid 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.'”

Smith, 152 N.C. App. at 38, 566 S.E.2d at 800 (quoting State v.Cannon, 92 N.C. App. 246, 254, 374 S.E.2d 604, 608-09 (1988), rev'd on other grounds, 326 N.C. 37, 387 S.E.2d 450 (1990)).
    Here, defense counsel stipulated to the authenticity of the videotapes, stating “I have not made an issue nor do I intend to make an issue of identity of the tapes made wherein [Defendant]'s interacting with [the child victims and with the mentally retarded adult victim]. Again, the tapes speak for themselves on that.” Defense counsel also stipulated to the chain of custody of the videotapes, stating “Your Honor, I'm not contesting chain of custody[]” and suggesting that “[f]or court efficiency if she wants to dispense with the regular formalities.” Nevertheless, extensive testimony regarding the videotapes' chain of custody was provided by Defendant's nephew, who, along with Defendant's daughter, found the videotapes, the child victims' grandmother and mother, to whom Defendant's nephew and daughter showed the tapes, and the police, who received the videotapes from the child victims' mother. Moreover, on the very transcript page to which Defendant assigned error, Detective Christina McMurray of the Harnett County Sheriff's Office testified that the videotapes accurately depicted the actual appearance of Defendant's home and that the videotapes did not appear to have been altered since the first time she viewed them. Under these circumstances, the trial court committed neither error nor plain error in admitting the videotapes for lack of a proper foundation.
    Defendant also contends that the admission of the videotapes into evidence violated his Sixth Amendment right to confront hisaccusers under Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004) .
    
In Crawford , the United States Supreme Court held that recorded out-of-court statements made by the defendant's wife to police regarding the defendant's alleged stabbing of another were testimonial in nature and thus inadmissible due to Confrontation Clause requirements. Regarding the definition of testimonial, it has been held that “Crawford at least suggests that the determinative factor in determining whether a declarant bears testimony is the declarant's awareness or expectation that his or her statements may later be used at a trial.” United States v. Saget, 377 F.3d 223, 228 (2d Cir. 2004), cert denied, _ U.S._, 160 L. Ed. 2d 821 (2005).
    Defendant here has failed to explain how videotapes depicting himself engaging in sex offenses constitute statements, and how those purported statements could possibly be considered to be testimonial in nature.
    In sum, we find Defendant's contention that the trial court committed plain error by admitting the videotapes into evidence to be without merit.
    Defendant next contends that defense counsel rendered ineffective assistance in failing to object to the admission of the videotapes.
    An ineffective assistance of counsel claim is subject to a two-part analysis, where Defendant must show: (1) his “counsel's performance fell below an objective standard of reasonableness asdefined by professional norms[,]” and (2) “the error committed was so serious that a reasonable probability exists that the trial result would have been different absent the error.” State v. Lee, 348 N.C. 474, 491, 501 S.E.2d 334, 345 (1998) (citing Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984); State v. Braswell, 312 N.C. 553, 562-63, 324 S.E.2d 241, 248 (1985) (same)).
    Our Supreme Court has made clear that a party “may not swap horses after trial in order to obtain a thoroughbred upon appeal.” State v. Hester, 343 N.C. 266, 271, 470 S.E.2d 25, 28 (1996) (quotation omitted). Moreover, this Court has held that “[i]neffective assistance of counsel claims are not intended to promote judicial second-guessing on questions of strategy and trial tactics.” State v. Taylor, 79 N.C. App. 635, 638, 339 S.E.2d 859, 861 (quotation omitted), disc. review denied, 317 N.C. 340, 346 S.E.2d 146 (1986).
    Here, Defendant has failed to show that his counsel's performance fell below an objective standard of reasonableness by failing to object to the videotapes. Before trial, Defendant adopted the strategy of conceding his guilt as to the indecent liberty charges while maintaining his innocence as to the other offenses. The trial court questioned Defendant about this strategy during voir dire, and Defendant stated on the record that he had discussed the strategy with his counsel and had authorized his counsel to take such a strategy. At trial, Defendant attempted to demonstrate, through showing the videotapes and questioning Detective McMurray about the acts being committed on the tapes,that Defendant did not engage in a number of the offenses committed because, inter alia, Defendant 's penis was in a flaccid state during parts of the videotape in which he allegedly committed sex offenses against the child victims, the acts committed against the mentally retarded victim were not nonconsensual, and the mentally retarded victim was not incapacitated. While Defendant may be dissatisfied with the outcome of his trial, he may not now contend that his consciously chosen trial strategy constituted ineffective assistance of counsel.
    Finally, Defendant contends that the trial court erred in omitting jury instructions on two of the seven counts of indecent liberties.     
    Because Defendant failed to object on this basis at trial, the proper standard for review is plain error. State v. Odum, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”); N.C. R. App. P. 10(b) (a party must object to a jury charge omission to preserve the issue for appeal, and the party must specifically and distinctly contend plain error where such issue is unpreserved). Defendant failed, however, to assert plain error in both his relevant assignment of error and his appellate brief. Where a defendant fails specifically and distinctly to allege plain error, the defendant waives his right to have the issues reviewed for plain error, and we therefore refrain from any review. State v. Forrest, 164 N.C. App. 272, 277, 596 S.E.2d 22, 25-26 (2004) (“when a defendant failsto specifically and distinctly allege that the trial court's ruling amounts to plain error, defendant waives his right to have the issues reviewed under plain error[]”) (citing State v. Hamilton, 338 N.C. 193, 208, 449 S.E.2d 402, 411 (1994); State v. Flippen, 349 N.C. 264, 274-75, 506 S.E.2d 702, 710 (1998) (same), cert. denied, 526 U.S. 1135, 143 L. Ed. 2d 1015 (1999)).
    Defendant failed to argue his remaining assignments of error. They are therefore deemed abandoned. N.C. R. App. P. 28(b).     No error.
    Judges BRYANT and JACKSON concur .
    Report per Rule 30(e).

*** Converted from WordPerfect ***