NO. COA04-1306

NORTH CAROLINA COURT OF APPEALS

Filed: 15 November 2005

    Appeal by defendant from judgment entered 14 July 2004 by Judge Quentin T. Sumner in Halifax County Superior Court. Heard in the Court of Appeals 20 April 2005.

    Attorney General Roy Cooper, by Assistant Attorney General J. Philip Allen, for the State.

    James M. Bell, for defendant-appellant.

    HUDSON, Judge.
    In July 2004, a jury convicted defendant of felony larceny and felony breaking and entering. Subsequently, defendant pled guilty to habitual felon status and the court entered a consolidated judgment sentencing defendant to an active sentence of 151-190 months. Defendant appeals. As explained, we conclude that there was no error.
    The State's evidence tends to show that on 5 December 2003, at approximately 5:00 a.m., someone broke into the ABC store in downtown Weldon, North Carolina, and stole some liquor. The store's surveillance camera videotaped the perpetrator. As therehad been a break-in at the adjacent Bradley's store around 3:30 a.m. that same night, Weldon Police Chief Greg Parker was sitting in a darkened patrol car watching the location. About five minutes after the ABC store break-in, Chief Parker observed someone walking out of a dark area next to Bradley's. When the person reached the well-lit parking lot, Chief Parker recognized him as defendant Vance Parker. Chief Parker then drove into the parking lot, got out of his car, and asked defendant what he was doing. At that point, defendant, who was carrying a plastic bag full of what appeared to Chief Parker to be liquor bottles, pushed the car door towards Chief Parker and took off running. Chief Parker followed defendant in his car and eventually got out and pursued him on foot, but gave up the chase after he slipped and fell on the wet ground. Chief Parker subsequently viewed the ABC store surveillance videotape. He, and later Detective Gene Harris, identified the person on the videotape as defendant. Defendant presented no evidence.
    Defendant first contends that the trial court erred by denying his motion to limit the admissibility of the surveillance videotape and in allowing Chief Parker and Detective Harris to identify him as the perpetrator on the videotape. We disagree. Defendant contends that the perpetrator who appeared in the videotape could not have been identified as any specific person. Before trial, defendant filed a motion in limine, arguing that the law enforcement witnesses should not be allowed to testify that the perpetrator on the tape was defendant. The trial court denied defendant's motion. We first note that although defendant asserts otherwise, Chief Parker did not testify over defense objection. In fact, Chief Parker testified about the tape only when cross- examined about it by defense counsel. Such invited error cannot be appealed. N.C. Gen. Stat. § 15A-1443(c) (2000); State v. Chatman, 308 N.C. 169, 177, 301 S.E.2d 71, 76 (1983). On the other hand, Detective Harris did testify over defendant's objection, and thus this matter is properly before us.
    Defendant concedes that the trial court properly admitted the videotape as relevant evidence of the crime committed, but argues that the question of whether defendant was the perpetrator of the crime was strictly a jury question, and that the testimony about the tape invaded the province of the jury. Defendant cites State v. Fulton in support of this argument. 299 N.C. 491, 263 S.E.2d 608 (1980). In Fulton, the court held that it was error to allow a police officer to testify about shoe tracks because the jury was as well-qualified as the officer to view the tracks and make its own inferences and conclusions. Id. at 494, 263 S.E.2d at 611. Defendant argues that here, the jury was as qualified as Detective Harris to view the videotape and draw their ownconclusions about the identity of the perpetrator.
    Although Fulton was decided before our rules of evidence were codified , it addresses the issue now governed by Rule 701. Under Rule 701, a lay witness's opinion testimony is admissible if rationally based on the witness's perception and helpful to the determination of a fact in issue. N.C. Gen. Stat. § 8C-1, Rule 701 (2004). Although our research reveals no North Carolina case directly on point, federal courts have addressed this issue, and as Federal Rule of Evidence 701 is identical, in all relevant aspects, to our Rule 701, we find the federal cases instructive.
    Federal courts have held that lay opinion testimony identifying a defendant in surveillance photographs is admissible if “there is some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the jury.” U.S. v. Pierce, 136 F.3d 770, 774 (11^th Cir. 1998), cert. denied, 575 U.S. 974 (1998) (quoting U.S. v. Farnsworth, 729 F.2d 1158, 1160 (8^th Cir. 1984) and citing similar holdings in other circuits). “Perhaps most critical to this determination is the witness's level of familiarity with the defendant's appearance.” Pierce, 136 F.3d at 774 .
        [T]estimony by those who knew defendants over a period of time and in a variety of circumstances offers to the jury a perspective it could not acquire in its limited exposure to defendants. Human features develop in themind's eye over time. These witnesses had interacted with defendants in a way the jury could not, and in natural settings that gave them a greater appreciation of defendants' normal appearance. Thus, their testimony provided the jury with the opinion of those whose exposure was not limited to three days in a sterile courtroom setting.

Id. (quoting U.S. v. Allen, 787 F.2d 933, 936 (4^th Cir. 1986), vacated on other grounds, 479 U.S. 1077 (1987). Here, Detective Harris stated that he had known defendant for twenty years. We thus conclude that Detective Harris's familiarity with defendant's appearance made him more likely to be able to correctly identify defendant in the surveillance video than the jury. In turn, we also conclude that his testimony was rationally based on his perception and “helpful to the determination of a fact in issue, ” within the meaning of Rule 701.
    Defendant next argues that the court erred in allowing Chief Parker to testify that he believed the bag defendant was carrying contained liquor bottles. We disagree. Defendant contends that this testimony should not have been allowed because it was too speculative, and asserts that Chief Parker did not have the requisite personal knowledge required to give his opinion pursuant to Rule 602. N.C. Gen. Stat. § 8C-1, Rule 602 (2004). Rule 602 prohibits witnesses from testifying on matters outside of their personal knowledge. Id. Chief Parker testified that although thebag defendant was carrying was not transparent, that some of the bottles were
        right up against the plastic [and] you could actually see the outline of the bottles . . . . They appeared to be liquor bottles. I'm not a drinker, but they had-they were bottles with labels on them that were consistent with what I see in the liquor store and what I see people drinking.
As Chief Parker testified as to what he saw, we fail to see how he lacked personal knowledge. Thus, we overrule this assignment of error.
    Defendant also argues that the trial court erred in failing to instruct the jury to disregard testimony that implied that there were outstanding warrants against defendant at the time of his arrest and that this error prejudiced his trial. We disagree. In its direct examination of the arresting officer, the following exchange took place:
        Q: What did you do when Vance Parker came out from behind the wall?

        A: He was placed under arrest.

        Q: For what?

        Mr. Summey: Objection.

        Court: Overruled; if you know.

        A: He was placed under arrest. I had an order for his arrest in my possession.

        Q: What was that order for arrest for?     
        Mr. Summey: Objection.

        Court: Sustained.
Defendant contends that this implied that he had outstanding warrants for other crimes and was thus impermissible evidence of other criminal acts. Defendant did not request that the trial court instruct the jury to disregard this testimony. However, as the trial court sustained the second objection, “the jurors must have been aware that the questions and answers were not to be considered by them.” State v. Arnold, 314 N.C. 301, 306, 333 S.E.2d 34, 37 (1985). “Under such circumstances the trial court was not required to specifically instruct the jury ex mero motu that it is not to consider the testimony.” Id. Morever, we conclude that even if the trial court erred , the jury would not have reached a different result absent such error. N.C. Gen. Stat. § 15A-1443(a). Given the testimony of Chief Parker and Detective Harris , and the vagueness of the statement regarding the order for arrest, we hold that any error was harmless.
    Finally, defendant contends that the evidence was insufficient to support his conviction. We disagree. In reviewing a motion to dismiss for insufficiency of the evidence, we must view the evidence in the light most favorable to the State and determine whether it presented “substantial evidence” in support of eachelement of the charged offense and of defendant's identity as the perpetrator of the offense. State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990) (internal citation omitted). The ultimate question is whether a reasonable inference of the defendant's guilt may be drawn from the circumstances. State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998) (internal citation omitted) . Here, defendant was identified by two police officers, who knew him well, as the perpetrator of the break-in shown on the surveillance videotape, the jury had the opportunity to view the videotape, and an officer testified that he observed defendant in the vicinity of the break-in with a bag that appeared to be filled with liquor bottles, and he fled when approached. We conclude that this constitutes sufficient evidence from which a jury could infer defendant's guilt.
    No error.
    Judges HUNTER and GEER concur.
    Report per Rule 30 (e).

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