An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-1180

NORTH CAROLINA COURT OF APPEALS

Filed: 5 July 2006

STATE OF NORTH CAROLINA
                                    Craven County
v .                                 Nos. 04CRS007470-71
                                        04CRS055127
JASON WAYNE GILLIKIN

    Appeal by defendant from judgments entered 25 February 2005 by Judge Kenneth F. Crow in Craven County Superior Court. Heard in the Court of Appeals 12 April 2006.

    Attorney General Roy A. Cooper, III, by Special Deputy Attorney General R. Marcus Lodge and Assistant Attorney General Susan K. Hackney, for the State.

    M. Alexander Charns for defendant-appellant.

    HUNTER, Judge.

    Jason Wayne Gillikin (“defendant”) appeals from judgments entered 25 February 2005 consistent with jury verdicts of guilty as to attempted first degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and robbery with a dangerous weapon. For the reasons stated herein, we find no error.
    The State's evidence tended to show that on 7 September 2004, a man disguised with a mask entered the Riverdale Mini-Mart with a gun shortly before the store's closing. The masked man ordered Edna Broome (“Broome”), the assistant manager of the store, to put the cash register money into a bag. Broome complied, and the masked man then asked for the other money, which Broome understoodto be the money in the safe. Broome also removed the money from the safe and handed it to the robber. A total of $620.00 was taken from the store's register and safe.
    The masked man then ordered Broome to kneel on the floor in front of the safe, and Broome complied with the order. The masked man came around the counter and shot Broome twice, once in the spine and once in the hip. Broome was unable to move from the floor, but was able to push the alarm for the police. Police and rescue workers arrived shortly thereafter and Broome was evacuated to Pitt County Hospital by helicopter. Broome's legs were paralyzed and she remains confined to a wheelchair as a result of the shooting.
    During the crime scene investigation, one of the bullets fired into Broome was recovered. The incident was also captured on the store's digital recording surveillance system and digital photo images were retrieved. The images revealed that the perpetrator was a white male wearing shorts, with material covering his face and a glove or sock covering his free hand. The man in the video had no visible tattoos or markings on his legs. A gun was held in the perpetrator's uncovered hand.
    Jesus Meno (“Meno”) was a customer at the Riverdale Mini-Mart on the evening of 7 September 2004, and contacted the police after hearing of the robbery. Meno reported that he had noticed a dark- colored mid-sized pickup truck parked about one hundred feet away from the Riverdale Mini-Mart in front of the Fisher Oil offices. Meno stated that the map light of the truck was illuminated, but hedid not see anyone inside the truck. When later shown pictures of a pickup truck registered to defendant, Meno stated that the truck looked similar to the one he had seen parked outside the Fisher Oil offices.
    On 19 September 2004, Lieutenant-Detective A. C. Ward (“Detective Ward”), of the Carteret County Sheriff's Department, interviewed defendant, who had been arrested the previous night after refusing to stop his vehicle after an officer activated his lights and siren. Detective Ward notified Craven County officials that he had defendant in custody. Detective Ward interviewed defendant using a form information sheet and advised defendant of his rights while tape-recording the interview.
    Around 11:00 a.m. on the same day, Detective John Whitfield (“Detective Whitfield”) and Lee Thomas (“Thomas”), the primary investigator on the case, arrived from the Craven County Sheriff's Department to interview defendant. Defendant initially denied knowledge of the Riverdale Mini-Mart shooting, and stated he felt faint and needed to check his blood sugar, as he was diabetic. Defendant was allowed to check his blood sugar level and was given some crackers and soda. Defendant agreed to talk with the detectives about the Riverdale Mini-Mart robbery, but asked to first speak with his mother. Defendant's mother was summoned to the interview room and arrived, along with defendant's aunt. Defendant's mother brought defendant food.
    Defendant then made a statement to the detectives with his mother and aunt present. Defendant claimed that Tommy Gaskill(“Gaskill”) committed the robbery, and that defendant had driven him to the Riverdale Mini-Mart and waited outside while Gaskill went into the store. Defendant told the detectives that the .38 caliber gun Gaskill used in the robbery was in the woods near defendant's mother's home. Defendant offered to show the detectives the location. Defendant and the detectives drove to Cedar Island and located the weapon, which later tests linked to the bullet retrieved at the crime scene.
    Gaskill was arrested at his residence. Detective Whitfield noted that Gaskill was extremely thin, unlike the masked man captured on the store's videotape. Gaskill offered an alibi, corroborated by his girlfriend, that he had been attending his daughter's birthday party at the time of the robbery. Gaskill also had a large tattoo that covered his leg from his knee to his ankle, and the detectives were convinced that Gaskill could not have been the robber.
    The detectives confronted defendant, who continued to insist that he was telling the truth. Gaskill was brought into the interrogation room and verbally confronted defendant, while separated from defendant by two long tables and the detectives. Defendant then admitted he had lied and gave another statement admitting that he had robbed the Riverdale Mini-Mart and had shot the clerk twice.
    Defendant was found guilty of attempted first degree murder, robbery with a dangerous weapon, and assault with a deadly weapon with intent to kill inflicting serious injury. Defendant was foundto be a Prior Record Level III and was sentenced consecutively to 220 to 273 months for the charge of attempted first degree murder, and 103 to 133 months for the charge of robbery with a dangerous weapon. Defendant was also sentenced to 116 to 149 months for felony assault, but the trial court arrested judgment on the charge. Defendant appeals.

I.

    Defendant first argues that the trial court erred by denying defendant's motion to suppress his statement to law enforcement authorities, contending he had signed a statement requesting an attorney. In a related assignment of error, defendant contends that the trial court erred as a matter of law in not granting defendant's motion to dismiss all charges due to insufficient evidence. We disagree.
    A trial court's findings of fact are conclusive on appeal if supported by competent evidence; however, a determination of whether an interrogation is custodial is fully reviewable as a matter of law. State v. Smith, 160 N.C. App. 107, 114, 584 S.E.2d 830, 835 (2003). The totality of the circumstances is reviewed in determining whether a confession is voluntary. State v. Hyde, 352 N.C. 37, 45, 530 S.E.2d 281, 288 (2000).
    Defendant contends that he did not waive his Miranda rights and requested an attorney, and further that the length of time between the initial Miranda warning and defendant's second interrogation, the conduct of the second interrogation by officials from a different jurisdiction regarding a different alleged crime,and defendant's state of mind due to physical ailments and threats by a civilian, when considered in total, show that defendant's confession was not voluntary.
    Here, competent evidence supports the trial court's findings that a clerical error was made by Detective Ward in completing the interview sheet so that it erroneously indicated that defendant had requested an attorney, when he had in fact waived his right to an attorney. An audiotape of the conversation between Detective Ward and defendant was admitted in which Detective Ward, after reading the Miranda warning, asked defendant if he wanted to answer questions without an attorney, to which defendant responded in the affirmative. The trial court found there was no evidence that defendant later requested an attorney.
    The trial court further found that, based on the audiotape, defendant's responses to Detective Ward's initial interview were logical, coherent, and articulate. Although the trial court noted that defendant was taking certain medications for health reasons, the trial court found that defendant did not appear to be intoxicated or sleepy. Furthermore, the trial court found that defendant was provided with food twice, and was offered soda. The trial court finally found that defendant's interrogation was intermittent and done in sessions, allowing defendant time and opportunity for reflection. A review of the record shows competent evidence to support these findings.
    With regard to the second interrogation by the Craven County officers, Detective Whitfield testified, and the trial court madefindings, that at the time of the later interrogation, defendant continued to be sober, coherent, and rational, and that Detective Whitfield again advised defendant of his right to an attorney. Although a second written waiver was not executed, the trial court found that Detective Whitfield had been advised that defendant had previously executed a written waiver. The trial court found that defendant indicated that he would be glad to talk to Detective Whitfield without an attorney present, but that he would like to have his mother present. Defendant's mother, who had been present during prior questioning earlier in the day, was again summoned back to the sheriff's department, and returned bringing food. Defendant was also permitted to test his blood sugar and was given soda and crackers. The trial court found that the interrogation was not continuous and that defendant was not coerced or threatened, and concluded that under the totality of the circumstances, defendant made a knowing and intelligent waiver of his rights.
    Competent evidence supports the trial court's findings of fact as to the circumstances surrounding defendant's waiver of rights and statements to officers. We therefore review the trial court's legal conclusion that defendant's statements were voluntarily made. We note that defendant waived his Miranda rights, defendant was not threatened, defendant was offered food and an opportunity to check his blood sugar levels, defendant was not interrogated continuously and was allowed to have a family member present at his request when answering questions from officers, and that defendant was sober andcoherent. In reviewing the totality of circumstances, we therefore conclude that the trial court did not err in denying defendant's motion to suppress. This assignment of error is overruled.
    In a related assignment of error, defendant contends that, assuming arguendo defendant's statement to police was suppressed, there would be insufficient evidence of all crimes. As the trial court did not err in denying defendant's motion to suppress and such evidence was properly before the jury for consideration, we find no merit to this assignment of error.
II.

    Defendant contends in related assignments of error that the trial court committed plain error in allowing into evidence testimony regarding defendant's other uncharged crimes, and also erred in failing to order a mistrial based on comments related to other crimes. We disagree.
    The standard for plain error is well established, and must be an error “'so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.'” State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993) (citation omitted). Prior bad acts are admissible to show a chain of events or complete the story of the crime for the jury. See State v. Agee, 326 N.C. 542, 549- 50, 391 S.E.2d 171, 175 (1990).
    Defendant here contends that statements made in testimony to the jury by officers alluded to other crimes that defendant had committed, and that such references were unduly prejudicial. Specifically, defendant refers to a comment made in response to a question regarding whether defendant was continuously questioned, where the testifying officer explained that defendant was “carried over to the jail for processing on some non-related matters.” Defendant also points to a question asked of a Craven County officer regarding how he came to question defendant while in Carteret County custody, where the testifying officer explained that “Carteret County had called the Sheriff's Office and let us know that they had a suspect in custody that we may be interested in talking to . . . we . . . talked with the detectives, to get kind of up to speed about how he was arrested that night prior.” Defendant also cites a question asked regarding the search for the gun, which referenced a gap in time where defendant took officers to other areas “concerning matters other than this case[.]” Finally, defendant references Exhibit 29, defendant's confession given to investigators, which, in unredacted form, contained references to other crimes defendant had committed. However, the record indicates that the trial court admitted the Exhibit in redacted form, excluding material related to other matters.
    The trial court's admittance of this testimony and exhibit was not error, as the limited comments were necessary to complete the story of the crime for the jury. The testimony specifically related to the investigation and capture of defendant and explained how defendant, while in the custody of the Carteret County Sheriff's Department, gave a confession to Craven County officials. As we find no error in the admittance of this evidence, we need notreach the issue of plain error. This assignment of error is overruled.
    In defendant's related assignment of error, he contends that the trial court erred in denying defendant's motion for mistrial based on the evidence discussed supra, as well as a response made by Detective Ward that he interviewed defendant because “[w]e had had a string of robberies, breaking and entering and armed robberies in Carteret County.”
    The grant of a motion for mistrial is within the sound discretion of the trial court and will only be disturbed for abuse of discretion. State v. Wood, 168 N.C. App. 581, 583, 608 S.E.2d 368, 370, disc. review denied, 359 N.C. 642, 614 S.E.2d 923 (2005).
    As discussed supra, we find no error in the admission of the contested statements as evidence necessary to complete the story of the crime. We further note that the record reveals that the trial court specifically instructed the jury to disregard Detective Ward's statement regarding the string of armed robberies. We find no abuse of discretion in the trial court's denial of the motion for mistrial. This assignment of error is overruled.
III.

    Defendant next contends that the trial court committed plain error by allowing testimony as to what appeared in a videotape. We disagree.
    Defendant contends that testimony by witnesses regarding images viewed on the surveillance tape from the Riverdale Mini-Mart violated the best evidence rule. Rule 1002 of the North CarolinaRules of Evidence states that, “[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.” N.C. Gen. Stat. § 8C-1, Rule 1002 (2005).
    Here, however, the surveillance videotape was introduced into evidence for both illustrative and substantive purposes. Defendant's assignment of error is without merit. Our Supreme Court has recognized that video evidence may be used to “'illustrate competent and relevant testimony of a witness[.]'” State v. Strickland, 276 N.C. 253, 260-61, 173 S.E.2d 129, 134 (1970) (citation omitted). Further, we find no merit to defendant's argument that such evidence violates defendant's right to confrontation, as the videotape itself was not testimonial in nature, and as defendant had ample opportunity to cross-examine the witnesses regarding their testimony. See Strickland, 276 N.C. at 260, 173 S.E.2d at 134 (citation omitted), (noting that “'[t]alking motion pictures of an accused in a criminal action are not per se testimonial in nature'”). Defendant's assignment of error is overruled.
IV.

    Defendant finally contends that defendant's trial counsel provided ineffective assistance in failing to request recordation of all bench conferences, opening and closing statements, and jury selection. We disagree.
    The standard for ineffective counsel, conduct below an objective standard of reasonableness, is well established. Statev. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693 (1984)). N.C. Gen. Stat. § 15A-1241(a) (2005) governs recording of criminal proceedings in superior court and exempts from recording jury selection, opening and closing statements, and arguments of counsel on points of law. In State v. Hardison, 326 N.C. 646, 392 S.E.2d 364 (1990), our Supreme Court held that the mere failure to request recordation of these elements of the trial did not rise to the level of ineffective assistance of counsel. Id. at 661-62, 392 S.E.2d at 373.
    Here, as in Hardison, defendant argues only that the failure to request recordation of the jury selection, opening and closing arguments, and bench conferences “make[] it impossible for appellate counsel to weigh the full impact of defense attorney's failure to object to repeated references to outstanding warrants and the other crimes[.]” Defendant has argued these issues on appeal as addressed supra, and assigns no further error to the jury selection process or to statements raised in opening and closing arguments. As in Hardison, we conclude that these arguments fall “far short of satisfying the burden set forth in Strickland[.]” Id. at 662, 392 S.E.2d at 373. Defendant's assignment of error is overruled.
    As the trial court did not err in denying defendant's motion to suppress and motion for mistrial, and as we find no error in the trial court's admission of testimony illustrated by a properly admitted videotape, or ineffective assistance of counsel forfailure to request recordation of certain portions of the trial, we find no error in defendant's conviction and judgment.
    No error.
    Judges McGEE and STEPHENS concur.
    Report per Rule 30(e).

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