Appeal by defendant from judgments entered 12 January 2005 by
Judge James W. Morgan in Catawba County Superior Court. Heard in
the Court of Appeals 7 March 2006.
Attorney General Roy Cooper, by Assistant Attorney General
John F. Oates, Jr., for the State.
James N. Freeman, Jr., for defendant-appellant.
GEER, Judge.
Defendant Thomas Joseph Berghello appeals from his convictions
for one count of attempted second degree rape and one count of
second degree kidnapping based on events that took place in a
convenience store in Newton, North Carolina. Defendant first
argues that the trial court erred by admitting an excerpt from a
surveillance videotape from the convenience store. Defendant's
arguments, however, go to the weight of the evidence, and defendant
has failed to demonstrate that the trial court abused its
discretion under N.C.R. Evid. 403 in admitting the videotape. We
also find no merit in defendant's contention that the trial court
should have granted his motion to dismiss the kidnapping charge for
insufficient evidence of restraint beyond those inherent in thecrime of attempted forcible rape. For these reasons, we uphold
defendant's convictions.
Factual and Procedural History
The State's evidence tended to show the following. At around
noon on 24 March 2004, defendant entered the J&L Run-In convenience
store in Newton, North Carolina. Marie Thompson was working behind
the counter at the register when defendant entered. Defendant
looked at adult magazines in the back of the store and engaged in
a short conversation with Thompson, asking her about her family.
In response to a question from defendant, Thompson confirmed that
J&L cashed out-of-town checks.
Defendant continued to look at magazines while Thompson waited
on other customers. When everyone else had left, defendant
approached Thompson, told her that the restroom needed cleaning,
and explained that he was going to go out to his car to get an out-
of-town check for her to cash. Defendant started toward the
outside door, while Thompson came out from behind the counter and
headed towards the back of the store to clean the men's restroom.
Thompson testified that as she entered the restroom, something
hit her in the back of the head with sufficient force to slam her
against the restroom's back wall. She immediately felt a knife at
her throat and heard defendant say, "Take your clothes off, bitch."
When Thompson said, "Oh, no, God, please don't do this," defendant
continued to hold the knife to her throat while attempting to rip
off her shirt and telling her that he was going to rape her. Thompson tried to convince defendant to let her go, telling
him that her husband and the store manager would both be back
momentarily and that the store would soon be filling up with
customers because it was almost lunch time. In response, defendant
slammed Thompson's face against the wall. Thompson struggled and
fought with defendant, and, at one point, she broke free and
started to run out the door. Defendant grabbed her hair, pulled
her back inside the restroom, and beat her in the face. When
defendant demanded that Thompson tell him where the store's
videotapes were kept, she told him that they were underneath the
cash register.
Defendant then told Thompson that he was not finished with her
yet and that she should face the wall in the restroom and count to
200. Defendant left the restroom, and the victim started counting.
When she reached 50, she heard the buzzer on the front door of the
convenience store, so she looked out the restroom door in time to
see defendant backing out of the parking lot in a black Jeep
Cherokee. Thompson ran out of the restroom and called 911. She
was able to tell the dispatcher defendant's license plate number,
which she read directly off the Jeep as it sat behind several other
cars at a red light on the street next to the store. Using the
license plate number, the police tracked defendant to his home, and
Thompson later identified him in a photographic lineup and in
court.
A jury convicted defendant of second degree kidnapping and
attempted second degree rape. He received a sentence of 64 to 86months for the attempted rape conviction followed by a consecutive
sentence of 25 to 39 months for the kidnapping conviction.
Defendant timely appealed to this Court.
Admissibility of the Videotape
Defendant's first argument on appeal is that the trial court
improperly allowed the jury to see a short excerpt of the
surveillance videotape from the convenience store. We note that
defendant has failed to file a copy of this exhibit with this
Court, even though the parties stipulated in the record on appeal
that "[a]ny designated exhibits which either party deems necessary
for the understanding of errors assigned on appeal may be filed
with the Court by that party pursuant to Rule 9(d)[.]"
The trial transcript indicates that a small portion of the
convenience store's surveillance tape recording from the day of the
crime was transferred from the convenience store surveillance
equipment onto a videotape that was eventually offered into
evidence by the State. It appears from statements of the attorneys
at trial that the original full recording from the convenience
store was no longer in existence. The transcript suggests that the
brief 15-second sequence that was preserved on the State's
proffered videotape showed a heavyset white male reaching over the
store counter to retrieve something behind it.
At the time the video was introduced, the State argued that it
served to corroborate the victim's testimony that defendant wanted
to remove the videotape of himself from the store's recording
equipment. Defendant's written pre-trial motion to exclude thevideotape was addressed at the point in the trial when the State
sought to introduce the tape. The hearing included a viewing of
the challenged tape and testimony as to its contents and origins.
Defendant argued in his written pre-trial motion that "[t]he
recording is negligible at best. The images are too distorted for
anyone to positively identify the defendant or anyone else as the
individual inside the store. There is no sound. . . . Any showing
of the recording of the tape to a jury would be highly prejudicial
and would violate the defendant's rights to a fair trial. The
recording would be highly suggestive to the jury without positive
identification beyond a reasonable doubt." At the hearing,
defendant additionally argued that the video from the remainder of
the time defendant was allegedly in the store should also be played
and that, if the remainder was no longer available, it would be
unfair to allow the State to present only the portion showing a
white male reaching behind the counter.
(See footnote 1)
Following the hearing,
the trial court denied defendant's motion, concluding that his
arguments went to the weight of the evidence rather than its
admissibility. At the time the State played the video for the
jury, defendant also made a general objection that the court
overruled.
Defendant on appeal repeats his arguments made at trial that
the trial court should have excluded the video on the grounds ofrelevance and undue prejudice. In addition, defendant contends
that the videotape should have been excluded based on insufficient
authentication.
A.
Authentication
We first address defendant's argument that the State did not
properly authenticate the video. Defendant did not raise the issue
of authentication before the trial court, and, therefore, has not
preserved this argument for appellate review.
See N.C.R. App. P.
10(b)(1) ("In order to preserve a question for appellate review, a
party must have presented to the trial court a timely request,
objection or motion, stating the specific grounds for the ruling
the party desired the court to make if the specific grounds were
not apparent from the context.");
State v. Benson, 323 N.C. 318,
321-22, 372 S.E.2d 517, 519 (1988) (noting that the Court cannot
consider new arguments raised for the first time on appeal because
"[d]efendant may not swap horses after trial in order to obtain a
thoroughbred upon appeal").
Even in the absence of a proper and specific objection below,
however, this Court may still review an evidentiary issue for plain
error. N.C.R. App. P. 10(c)(4) ("In criminal cases, 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 the basis of an assignment of error where
the judicial action questioned is specifically and distinctly
contended to amount to plain error."). Here, however, defendant
has not asserted plain error regarding the State's authenticationof the video in his assignments of error, nor has he argued it in
his brief. Our Supreme Court has held that, in these
circumstances, a defendant is "not entitled to plain error review
of [the] issue."
State v. Dennison, 359 N.C. 312, 313, 608 S.E.2d
756, 757 (2005). Accordingly, we decline to address defendant's
arguments regarding authentication.
B.
Relevance
We next turn to a consideration of defendant's arguments
regarding the relevance of the tape. "Evidence which is not
relevant is not admissible." N.C.R. Evid. 402. "Relevant
evidence" is evidence "having any tendency to make the existence of
any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence." N.C.R. Evid. 401.
The 15-second videotape in this case was relevant because it
tended to corroborate the victim's testimony that defendant asked
her where the surveillance tape for the store was kept. It showed
a person meeting defendant's general description searching for
something under the counter where the victim told defendant the
videotape was kept, on the pertinent date, at the pertinent time of
day.
See State v. Wilds, 133 N.C. App. 195, 208-09, 515 S.E.2d
466, 477 (1999) (audiotape of 911 call properly admitted as
corroborative of witness' testimony).
Defendant argues that the video's fuzziness and the limited
time frame made it impossible to identify defendant on the tape.
The trial court ruled, and we agree, that the jury could properlyconsider these arguments in assessing the weight of the evidence,
but that they did not necessitate exclusion of the tape from the
jury's consideration for lack of relevance.
See State v. Collins,
64 N.C. App. 656, 662, 308 S.E.2d 353, 358 (1983) (holding that
alleged inaccuracy of photographs went to their weight, not their
admissibility).
C.
Overly Prejudicial Effect
Finally, we address defendant's argument that the videotape's
prejudicial effect substantially outweighed its probative value.
See N.C.R. Evid. 403 ("Although relevant, evidence may be excluded
if its probative value is substantially outweighed by the danger of
unfair prejudice . . . ."). The decision whether to exclude
evidence under Rule 403 is a matter within the sound discretion of
the trial judge.
State v. Mason, 315 N.C. 724, 731, 340 S.E.2d
430, 435 (1986). "A trial court may be reversed for an abuse of
discretion only upon a showing that its ruling was so arbitrary
that it could not have been the result of a reasoned decision."
State v. Wilson, 313 N.C. 516, 538, 330 S.E.2d 450, 465 (1985).
In arguing unfair prejudice, defendant contends generally that
the videotape "obviously carried much weight with the jury" and
"the prejudicial impact was great," although he also concedes that
the video was only a few seconds long. Since defendant has not
supplied this Court with the videotape, despite the stipulation in
the record on appeal, we are not in a position to fully assess any
prejudice from the videotape. Nevertheless, considering the
description of the videotape in the materials in the record,defendant has failed to demonstrate any abuse of discretion under
Rule 403 in admitting the 15-second video, especially given the
testimony of the victim, including her identification of defendant,
the identification of defendant's license plate, and other
evidence. In short, when the video is considered in the context of
the rest of the evidence introduced at trial, it does not appear
likely to have had the significant impact on the jury's
deliberations that defendant claims.
Defendant also argues that the video's probative value was
substantially outweighed by its potential to confuse and mislead
the jury. In support of this argument, defendant references
questions that the trial judge asked during voir dire regarding why
the video appeared to repeat itself several times and whether it
was slowed down for viewing purposes. We note that at trial the
State limited the portion of the video that the jury saw in order
to eliminate any repetitiveness, and the trial court required the
State to explain to the jury that the video was not being shown in
real time. Thus, the two possible bases for confusion identified
by defendant were eliminated.
We note defendant also argues in his appellate brief that the
trial court should have instructed the jury to consider the video
for corroborative purposes only rather than for substantive
purposes. Since no such instruction was requested at trial, we do
not address this issue on appeal.
State v. Byrd, 67 N.C. App. 168,
172, 312 S.E.2d 528, 531 (1984) (holding that defendant could not
complain on appeal of trial court's error in failing to givelimiting instruction where defendant did not request limiting
instruction at trial). Defendant's assignment of error with
respect to the videotape is, therefore, overruled.
Motion to Dismiss
Defendant also argues on appeal that the State failed to meet
its burden of proof with respect to the kidnapping charge, and,
therefore, the trial court should have granted defendant's motion
to dismiss. "Second-degree kidnapping occurs when the victim is
released in a safe place without having been sexually assaulted or
seriously injured and the following elements, in relevant part, are
met: '(1) [unlawful] confinement, restraint, or removal from one
place to another; (2) of a person; (3) without the person's
consent; (4) for the purpose of [terrorizing the victim].'"
State
v. Petro, 167 N.C. App. 749, 752, 606 S.E.2d 425, 427 (2005)
(quoting
State v. Lucas, 353 N.C. 568, 582-83, 548 S.E.2d 712, 722
(2001),
overruled in part on other grounds by State v. Allen, 359
N.C. 425, 615 S.E.2d 256 (2005));
see also N.C. Gen. Stat. § 14-39
(2005) (defining first and second degree kidnapping).
Here, defendant contends that the State presented insufficient
evidence of the first element of kidnapping because there was no
evidence that he confined, restrained, and removed the victim
beyond that inherent in the crime of attempted second degree rape.
Our Supreme Court has held:
It is self-evident that certain felonies
(
e.g., forcible rape and armed robbery) cannot
be committed without some restraint of the
victim. We are of the opinion, and so hold,
that G.S. 14-39 was not intended by the
Legislature to make a restraint, which is aninherent, inevitable feature of such other
felony, also kidnapping so as to permit the
conviction and punishment of the defendant for
both crimes. To hold otherwise would violate
the constitutional prohibition against double
jeopardy. Pursuant to the above mentioned
principle of statutory construction, we
construe the word "restrain," as used in G.S.
14-39, to connote a restraint separate and
apart from that which is inherent in the
commission of the other felony.
State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978);
see also State v. Weaver, 123 N.C. App. 276, 281, 473 S.E.2d 362,
365 (holding that a kidnapping conviction violates double jeopardy
principles unless "'the victim is exposed to greater danger than
that inherent in the [separately punished crime] itself or
subjected to the kind of danger and abuse the kidnapping statute
was designed to prevent'" (quoting
State v. Johnson, 337 N.C. 212,
221, 446 S.E.2d 92, 98 (1994) (internal quotation marks omitted))),
disc. review denied and cert. denied, 344 N.C. 636, 477 S.E.2d 53
(1996).
The question on this appeal is "whether there was substantial
evidence that the defendant[] restrained or confined the victim
separate and apart from any restraint necessary to accomplish the
act[] of [attempted] rape."
State v. Mebane, 106 N.C. App. 516,
532, 418 S.E.2d 245, 255,
disc. review denied, 332 N.C. 670, 424
S.E.2d 414 (1992). It is well-established that "[a]sportation of
a rape victim is sufficient to support a charge of kidnapping if
the defendant could have perpetrated the offense when he first
threatened the victim, and instead, took the victim to a more
secluded area to prevent others from witnessing or hindering therape."
State v. Walker, 84 N.C. App. 540, 543, 353 S.E.2d 245, 247
(1987). This principle applies equally in instances of attempted
rape.
State v. Mangum, 158 N.C. App. 187, 195, 580 S.E.2d 750,
755-56,
disc. review denied, 357 N.C. 510, 588 S.E.2d 378 (2003).
Removal accomplished by fraud or trickery is the equivalent of
removal by force.
Fulcher, 294 N.C. at 523, 243 S.E.2d at 351.
In this case, by telling the victim that the restroom was
dirty, the defendant tricked her into entering a more secluded area
to prevent others from witnessing or hindering the intended rape.
This fact pattern indicates an act of removal by trickery under
Fulcher, independent of the act of attempted rape. Moreover,
defendant's actions in violently restraining the victim (grabbing
her by her hair when she tried to flee the restroom) also support
an independent act of restraint. Finally, telling the victim he
was not finished with her and ordering her to stay in the restroom
and count to 200, while defendant tried to make his escape, also
constitutes an act of confinement that is independent of the
attempted rape. The State has thus presented evidence of acts of
removal, restraint, and confinement, any one of which would be
sufficient to support the kidnapping charge independent of the
attempted rape charge.
No error.
Judges McGEE and CALABRIA concur.
Report per Rule 30(e).
Footnote: 1