Appeal by defendant from judgment entered 14 October 2004 by
Judge William C. Griffin, Jr. in Beaufort County Superior Court.
Heard in the Court of Appeals 16 November 2005.
Attorney General Roy Cooper, by Special Deputy Attorney
General Richard L. Harrison, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Katherine Jane Allen, for defendant-appellant.
Defendant David Allen Jones appeals his conviction for robbery
of a convenience store with a dangerous weapon. On appeal, he
argues that the trial court committed plain error by (1) admitting
into evidence a surveillance videotape of the crime, (2) failing to
exclude testimony regarding another robbery involving defendant,
and (3) permitting a police officer to testify as to statements of
the convenience store clerk. Based upon our review of the record,
we hold that defendant has failed to meet his burden of showing
plain error with respect to any of this evidence and we, therefore,
uphold his conviction.
Defendant was indicted for robbery with a dangerous weapon in
connection with the September 2002 robbery of the Bridge Street 66
convenience store in Washington, North Carolina. Upon defendant's
plea of not guilty, the case was tried beginning on 11 October2004. The State called as witnesses: (1) Washington Police
Department Detective Brad Boyd, who initially investigated the
robbery; (2) Terrance Satchel, who joined with defendant in
committing the robbery; and (3) Narcotics Detective Jonathan Kuhn,
who interviewed Satchel. In his defense, defendant offered alibi
testimony by his girlfriend, Brandy Elliott, and her father,
Clifton Lee Elliot.
Detective Boyd testified that he was called to the Bridge
Street 66 during the very early morning hours of 3 September 2002
to investigate an armed robbery. At the scene, Detective Boyd
interviewed both Satchel and the clerk at the store, Corey Hill.
Detective Boyd testified that Satchel reported he was checking the
price on a candy bar when he saw a man with a do-rag covering his
face approach the door. According to Satchel, the masked man
entered the store, pointed a chrome nine-millimeter handgun at the
clerk, and demanded money. Satchel told Detective Boyd that, after
the clerk turned over cash from the register, the robber then
demanded the phone from the store's wall, smashed it on the floor,
and left the store.
Detective Boyd also testified that Hill _ who did not testify
at trial _ told him that at around 11:00 p.m., a heavy-set male,
wearing a black shirt and black jeans, entered the store with a do-
rag over his face. Hill reported to Detective Boyd that the man
produced a chrome handgun and said, "Give me your money."
According to Hill, he gave the man the money from the store's cash
register but, when the robber demanded the store's "money bag,"Hill told the robber he did not have it. Hill, like Satchel,
described the robber as demanding the store's phone, which the
robber then threw to the floor and broke. The robber made Hill lie
on the floor until after he left.
During his investigation of the robbery, Detective Boyd
obtained the store's surveillance videotape. After the detective
testified that it had not been altered and was in substantially the
same condition as on the evening of the robbery, the tape was
admitted into evidence, without objection, and played for the jury.
The tape shows events substantially similar to those described to
the detective by both Satchel and Hill.
The State next called Satchel to testify. Satchel told the
jury that he was friends with defendant. Prior to the robbery on
2 September 2002, defendant had complained to Satchel about not
having enough money to both pay rent and buy marijuana and had told
Satchel they were going to rob the Bridge Street 66 around
midnight. Satchel would be the "lookout," while defendant
committed the robbery. According to Satchel, they met at a park
near the store at about 11:30 p.m. At that time, defendant had a
chrome nine-millimeter handgun with him.
Sometime before midnight, Satchel entered the store to
distract anyone inside. Satchel, who knew Hill from shopping at
the Bridge Street 66 in the past, asked Hill for the price of
several items. Defendant then approached Hill with a do-rag
covering most of defendant's face. Satchel's trial testimonydescribing the actual robbery was substantially similar to what he
had previously told Detective Boyd.
The State next called Detective Kuhn as a witness. He
testified that Satchel contacted him about two weeks after the
robbery and told him that, on 2 September 2002, defendant had
mentioned committing a robbery to get money for bills and
marijuana. Satchel told Detective Kuhn that he had agreed to help
defendant rob the Bridge Street 66 by going into the store first
"to buy something and pretend to be looking around," so that the
clerk would not see defendant coming. Satchel's description to
Detective Kuhn of the actual robbery was substantially similar to
the previous accounts.
Defendant did not testify in his own defense. Rather, he
first called Clifton Lee Elliot, the father of his girlfriend,
Brandy Elliot. According to Mr. Elliot, defendant lived with him
and his daughter. Mr. Elliot testified that, on 2 September 2002,
defendant and his daughter had left in the afternoon to go to a
party that evening in Greenville, North Carolina. Brandy Elliot
similarly testified that she and defendant went to the party in
Greenville, stayed there until nearly midnight, and then returned
directly to the Elliots' apartment.
On 14 October 2004, the jury found defendant guilty of robbery
with a dangerous weapon. The trial court
within the presumptive range to 90 to 117 months imprisonment.
Defendant timely appealed.
 Defendant first contends that the trial court committed
plain error when it admitted the surveillance videotape into
evidence because the State failed to establish a proper foundation.
"'The plain error rule applies only in truly exceptional cases.
Before deciding that an error by the trial court amounts to "plain
error," the appellate court must be convinced that absent the error
the jury probably would have reached a different verdict. In other
words, the appellate court must determine that the error in
question "tilted the scales" and caused the jury to reach its
verdict convicting the defendant.'" State v. Duke
, 360 N.C. 110,
138-39, 623 S.E.2d 11, 29-30 (2005) (internal citations omitted)
(quoting State v. Walker
, 316 N.C. 33, 39, 340 S.E.2d 80, 83-84
In State v. Mason
, 144 N.C. App. 20, 550 S.E.2d 10 (2001),
this Court considered the admission of a surveillance camera
videotape showing an armed robbery of a drug store. This Court
held that there are "three significant areas of inquiry for a court
reviewing the foundation for admissibility of a videotape: (1)
whether the camera and taping system in question were properly
maintained and were properly operating when the tape was made, (2)
whether the videotape accurately presents the events depicted, and
(3) whether there is an unbroken chain of custody." Id.
at 26, 550
S.E.2d at 15. In Mason
, although the State's witnesses testified
that the video camera was in working order, they subsequently
admitted that they knew nothing about the maintenance or operation
of the system. In addition, no testimony was offered as to theaccuracy of the events shown on the tape, and the State failed to
establish an unbroken chain of custody. Based on this showing, the
Court held that the tape was improperly admitted over the
defendant's objection and ordered a new trial. Id.
at 27, 550
S.E.2d at 15-16. See also State v. Sibley
, 140 N.C. App. 584, 586,
537 S.E.2d 835, 838 (2000) (ordering new trial when "[t]he State
did not call any witnesses to testify that the camera was operating
properly or that the information depicted on the videotape was an
accurate representation of the events at the time of filming").
In this case, although the State established an unbroken chain
of custody, it failed to present either evidence regarding the
maintenance and operation of the recording equipment or testimony
that the videotape accurately portrayed the robbery. Nevertheless,
defendant has not cited any case _ and we have found none _ in
which our courts have found an inadequacy in the foundation for the
admission of a videotape to constitute plain error.
Based upon our review of the record, it appears that if
defendant had made a timely objection, the State could have
supplied the necessary foundation through testimony of the police
officer, Satchel, or other witnesses. Cases addressing the
admissibility of surveillance videotapes suggest it is a relatively
straightforward matter to lay the necessary foundation. See, e.g.
State v. Mewborn
, 131 N.C. App. 495, 498-99, 507 S.E.2d 906, 909
(1998) (concluding that police officers' testimony was sufficient
to lay foundation when they testified that they watched
surveillance videotape twice on the day of the robbery, and thatclip shown at trial was in same condition and had not been edited);
State v. Cannon
, 92 N.C. App. 246, 254, 374 S.E.2d 604, 608-09
(1988) (concluding store manager's testimony laid a sufficient
foundation when she testified that surveillance videotape
accurately showed robbery, camera was only six weeks old, and
system was working properly both before and after robbery), disc.
review denied in part
, 324 N.C. 249, 377 S.E.2d 757, appeal
dismissed in part sub nom. State v. Redmon
, 324 N.C. 249, 377
S.E.2d 761 (1989), rev'd in part on other grounds
, 326 N.C. 37, 387
S.E.2d 450 (1990).
Since defendant has made no showing that the foundational
prerequisites, upon objection, could not have been supplied and has
pointed to nothing suggesting that the videotape in this case is
inaccurate or otherwise flawed, we decline to conclude the
omissions discussed above amount to plain error. Any error in the
introduction of the videotape "into evidence without adequate
foundation is not the type of exceptional case where we can say
that the claimed error is so fundamental that justice could not
have been done." State v. Cummings
, 352 N.C. 600, 620-21, 536
S.E.2d 36, 51-52 (2000), cert. denied
, 532 U.S. 997, 149 L. Ed. 2d
641, 121 S. Ct. 1660 (2001). See also State v. McNeil
, 165 N.C.
App. 777, 784-85, 600 S.E.2d 31, 36-37 (2004) (concluding that,
where trial court admitted unauthenticated judgment sheets of
defendant's prior convictions, defendant failed to establish plain
error when he had an opportunity to inspect judgment sheets at
trial and offered no evidence they were not authentic or that priorconvictions had not occurred), aff'd on other grounds
, 359 N.C.
800, 617 S.E.2d 271 (2005). This assignment of error is,
 Defendant next assigns plain error to the admission of
Detective Boyd's testimony regarding certain statements made to him
by the store clerk Hill on the grounds that the testimony violated
his Sixth Amendment right of confrontation and constituted
inadmissible hearsay. Defendant acknowledges that no objection was
made to this testimony at trial.
"[C]onstitutional error will not be considered for the first
time on appeal. Because defendant did not raise these
constitutional issues at trial, he has failed to preserve them for
appellate review and they are waived." State v. Chapman
, 359 N.C.
328, 366, 611 S.E.2d 794, 822 (2005) (internal citations omitted).
Accordingly, we decline to consider defendant's Sixth Amendment
Regarding defendant's hearsay contention, defendant challenges
only Detective Boyd's testimony as to Hill's statements that (1)
the robber had a large chrome gun, (2) the robber demanded money,
and (3) Hill gave the robber $67.69. Assuming, without deciding,
that the trial court did err by admitting these statements,
defendant has nonetheless failed to establish under the plain error
doctrine that their admission "tilted the scales" so as to cause
the jury to render a guilty verdict. State v. Dyson
, 165 N.C. App.648, 653, 599 S.E.2d 73, 77 (2004), disc. review denied
, 359 N.C.
412, 612 S.E.2d 326 (2005).
Both the surveillance videotape and Satchel's trial testimony,
as corroborated by Detectives Boyd and Kuhn, provided substantial
evidence that the robber had a chrome gun, that he demanded money,
and that Hill gave the robber currency from the store's register.
The precise amount of money taken from the register was immaterial.
See State v. Call
, 349 N.C. 382, 417-18, 508 S.E.2d 496, 518 (1998)
(concluding State met its burden on "taking" element of armed
robbery where, despite not proving exactly how much money was
taken, evidence suggested victim commonly carried large sums of
money but was found dead with only $9.00). Although defendant has
challenged the admission of the videotape, this Court has held:
"Where, as here, defendant contests separate admissions of evidence
under the plain error rule, each admission will be analyzed
separately for plain error, not cumulatively." State v. Bellamy
174 N.C. App. 649, 662, 617 S.E.2d 81, 90 (2005). We cannot
conclude, in light of the other evidence presented at trial, that
the specific statements challenged had a probable effect on the
verdict. Accordingly, we overrule this assignment of error.
 Defendant next argues that the trial court erred, under
North Carolina Rule of Evidence 404(b), by admitting the testimony
of Detective Boyd and Satchel regarding defendant's involvement ina second robbery. During the course of the trial, Satchel
testified that he and defendant had been arrested on another charge
approximately two weeks after the Bridge Street 66 robbery.
Detective Boyd similarly testified that he had received another
call regarding a common law robbery at a residence on 15 September
2002 and that, in the course of his investigation, he had
determined that Satchel and defendant, together with a third
person, had committed that robbery. Detective Boyd described the
robbery as "basically the same scenario: One of the suspects went
in somewhat as a lookout because she knew the victim, and at that
point in time, the other two entered and robbed him or attempted to
rob him." Since defendant did not object to this testimony at
trial, we again review only for plain error. N.C.R. App. P.
"Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show that he acted
in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake,
entrapment or accident." N.C.R. Evid. 404(b). It is well-
established that Rule 404(b) sets forth "a clear general rule of
of relevant evidence of other crimes, wrongs or acts by
a defendant, subject to but one exception
requiring its exclusion
if its only
probative value is to show that the defendant has the
propensity or disposition to commit an offense of the nature of thecrime charged." State v. Coffey
, 326 N.C. 268, 278-79, 389 S.E.2d
48, 54 (1990).
The State argues in this case that the evidence of a second
robbery involving defendant and Satchel is admissible to establish
the identity of the perpetrator of the Bridge Street 66 robbery by
showing a modus operandi
. See State v. Sokolowski
, 351 N.C. 137,
150, 522 S.E.2d 65, 73 (1999) ("[T]he other crime may be offered to
show defendant's identity as the perpetrator when the modus
is similar enough to make it likely that the same person
committed both crimes."). Another crime "is sufficiently similar
to warrant admissibility under Rule 404(b) if there are some
unusual facts present in both crimes or particularly similar acts
which would indicate that the same person committed both crimes."
(internal quotation marks omitted). It is not, however,
"necessary that the similarities between the two situations rise to
the level of the unique and bizarre." Id.
marks omitted). Instead, "the similarities must tend to support a
reasonable inference that the same person committed both the
earlier and later acts." Id.
On appeal, defendant argues that the two robberies did not
possess any unusual facts, but rather involved only facts generic
to all robberies. We disagree. As Detective Boyd testified, the
second robbery, only two weeks later, again involved Satchel and
defendant working together plus the unusual but "basically . . .
same scenario" of one robber, who knew the victim, distracting the
victim while the other robber entered the building to commit therobbery. In our view, these similarities are sufficient to
identify defendant as the perpetrator of both. See State v. Davis
340 N.C. 1, 14, 455 S.E.2d 627, 633-34 (finding sufficient
similarity between robbery and attempted robbery where suspects in
both: (1) entered premises armed and waited until closing time, (2)
pretended to be on premises to conduct legitimate business, and (3)
one suspect remained silent during both crimes), cert. denied
U.S. 846, 133 L. Ed. 2d 83, 116 S. Ct. 136 (1995); State v. Diehl
147 N.C. App. 646, 652, 557 S.E.2d 152, 156-57 (2001) (holding that
evidence of a second robbery was admissible when the defendant was
driven to and picked up from the crime scene by a single
accomplice, the robberies occurred in the same area at night, the
defendant used a knife, and the crimes occurred within five days of
each other), cert. denied
, 356 N.C. 170, 568 S.E.2d 624 (2002);
State v. Allred
, 131 N.C. App. 11, 18, 505 S.E.2d 153, 158 (1998)
(finding evidence admissible under Rule 404(b) when both robberies
occurred at midnight beginning with a knock at the door, involved
two perpetrators, included a demand that the victims give up their
"stash," and occurred within 10 days of each other).
Even if the robberies were not sufficiently similar, defendant
has failed to establish under the plain error standard that "'the
error was so fundamental that, absent the error, the jury probably
would have reached a different result.'" State v. Augustine
N.C. 709, 717, 616 S.E.2d 515, 523 (2005) (quoting State v. Jones
355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002)). We do not believe,
given Satchel's testimony as corroborated by his statements to thedetectives and the videotape, that the jury would have "probably"
reached a different result had the challenged testimony been
Defendant also argues that the trial court committed plain
error in failing to exclude the evidence under Rule 403. "Whether
or not to exclude evidence under Rule 403 of the Rules of Evidence
is a matter within the sound discretion of the trial court and its
decision will not be disturbed on appeal absent a showing of an
abuse of discretion." State v. McCray
, 342 N.C. 123, 131, 463
S.E.2d 176, 181 (1995). Our Supreme Court has previously held:
"[T]his Court has not applied the plain error rule to issues which
fall within the realm of the trial court's discretion, and we
decline to do so now." State v. Steen
, 352 N.C. 227, 256, 536
S.E.2d 1, 18 (2000), cert. denied
, 531 U.S. 1167, 148 L. Ed. 2d
997, 121 S. Ct. 1131 (2001). We, therefore, do not address
defendant's Rule 403 argument.
 Finally, defendant argues that because his trial counsel
failed to object to the admission of the videotape, Detective
Boyd's hearsay testimony regarding what he was told by Hill, and
the evidence regarding defendant's involvement in another robbery,
he received ineffective assistance of counsel. Claims of
ineffective assistance of counsel are, however, most properly
raised in a motion for appropriate relief. Our Supreme Court has
held that an ineffective assistance claim brought on direct review
will be decided on the merits only "when the cold record revealsthat no further investigation is required, i.e., claims that may be
developed and argued without such ancillary procedures as the
appointment of investigators or an evidentiary hearing." State v.
, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001), cert. denied
535 U.S. 1114, 153 L. Ed. 2d 162, 122 S. Ct. 2332 (2002).
In this case, we "have no way of knowing whether a seemingly
unusual or misguided action by counsel had a sound strategic motive
or was taken because the counsel's alternatives were even worse."
Massaro v. United States
, 538 U.S. 500, 505, 155 L. Ed. 2d 714,
720, 123 S. Ct. 1690, 1694 (2003). Because we cannot assess
without "further investigation" whether defendant received
ineffective assistance of counsel, we dismiss defendant's appeal on
this issue without prejudice to his filing a motion for appropriate
relief asserting this claim.
Judges HUNTER and McCULLOUGH concur.
*** Converted from WordPerfect ***