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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1009

NORTH CAROLINA COURT OF APPEALS

Filed: 17 July 2007

STATE OF NORTH CAROLINA

    v.                        Forsyth County                                         No. 02 CRS 58925
WARD LEE STATON,
        Defendant.

    Appeal by defendant from judgment entered 28 May 2003 by Judge Andy Cromer in Forsyth County Superior Court. Heard in the Court of Appeals 19 March 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Amanda P. Little, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant.

    GEER, Judge.

    Defendant Ward Lee Staton appeals from his conviction for robbery with a dangerous weapon. On appeal, defendant primarily argues that the trial court failed to comply with N.C. Gen. Stat. § 15A-1233 (2005) in responding to a request by the jury to see certain exhibits, including a videotape. Defendant, however, at trial, expressly agreed to the trial court's sending the exhibits into the jury room and, indeed, facilitated that process by assisting the bailiff with the VCR. Under these circumstances, defendant is not entitled to a new trial for any violation of the statute.

Facts

    The State's evidence at trial tended to show the following facts. In 2002, Robin McNeill was a branch manager at the Advance America payday loan service located on Peter's Creek Parkway in Winston-Salem, North Carolina. At approximately 3:00 p.m. on 3 July 2002, Ms. McNeill was alone in the store. When she went to the store's back room to get a lightbulb, she was alerted to the presence of a customer by the front door's electronic chimes. Ms. McNeill returned to the customer service area where she saw a man, whom she identified at trial as defendant, carrying a blue folder. The man told her that he wished to open an account.
    As Ms. McNeill began the application process, defendant pulled out a gun and announced, "this is a robbery." Ms. McNeill gave the man $537.00, including all the money in the cash drawer at her teller station as well as the money from the store's safe. Before leaving, the robber ordered Ms. McNeill to stay behind the counter and count to 100. Immediately after Ms. McNeill heard the door's electronic chimes, indicating the robber had left, she called another Advance America location nearby, locked the door, and triggered the alarm.
    Police arrived a short time later. Ms. McNeill's initial description of the robber noted that he had "a bump" or growth on his left earlobe. She also told police that the robber had short hair, was in need of a shave, and was wearing a "real colorful" blue shirt. On the same day, officers obtained a videotape from the company's surveillance camera showing the entire incident.     Detective Stanley Nieves of the Winston-Salem Police Department had Ms. McNeill review a series of photographs generated by the police department's "mug shot computer system," which selected photographs based upon Ms. McNeill's description. Defendant was not, however, included in that photographic array because his photograph was not contained in that system. Ms. McNeill concluded that the robber was not among the computer's "mug shots."
    Detective Nieves later learned from another detective that defendant might be a possible suspect in the Advance America robbery. Detective Nieves obtained defendant's photograph from the North Carolina Department of Correction and, on 7 August 2002, showed Ms. McNeill another photographic lineup containing pictures of six different individuals, including defendant. Ms. McNeill immediately identified defendant's photograph as being that of the robber. Ms. McNeill stated at trial that, based upon defendant's general appearance and the "growth or cyst" on his left ear, she had "[n]o doubt at all" that defendant had committed the robbery.
    On 2 December 2002, defendant was indicted for robbery with a dangerous weapon and second degree kidnapping. A superceding indictment including the same charges was filed on 19 May 2003. At trial, during the 28 May 2003 session of Forsyth County Superior Court, the trial court dismissed the second degree kidnapping charge. The jury subsequently found defendant guilty of robbery with a dangerous weapon. The trial court sentenced defendantwithin the presumptive range to a term of 103 to 133 months imprisonment. Defendant appealed to this Court.
    Defendant has also filed a petition for writ of certiorari because he may have lost the right to appeal "by failure to take timely action." Defendant's petition indicates that, to the extent his right to appeal was lost, it was not on account of defendant's own errors, but, rather, was due to errors of the court reporter and defendant's appellate counsel. The State specifically notes in its brief that it does not oppose defendant's petition. We therefore elect to exercise our discretion under N.C.R. App. P. 21(a)(1) and grant defendant's petition.
I

    Defendant first argues that the trial court erred by admitting, over objection, the testimony of one of the responding officers regarding Ms. McNeill's description of the robber on the day of the robbery. Defendant contends that the testimony was non- corroborative hearsay.   (See footnote 1)  It is well-established in North Carolina that, regardless whether the statement might otherwise be hearsay, "[a] prior consistent statement of a witness is admissible to corroborate the testimony of the witness." State v. Jones, 329N.C. 254, 257, 404 S.E.2d 835, 836 (1991). On the other hand, "[p]rior statements by a witness which contradict trial testimony . . . may not be introduced under the auspices of corroborative evidence." State v. McGraw, 137 N.C. App. 726, 730, 529 S.E.2d 493, 497, disc. review denied, 352 N.C. 360, 544 S.E.2d 554 (2000).
    "'In order to be admissible as corroborative evidence, a witness' prior consistent statements merely must tend to add weight or credibility to the witness' testimony.'" State v. Walters, 357 N.C. 68, 89, 588 S.E.2d 344, 356 (quoting State v. Farmer, 333 N.C. 172, 192, 424 S.E.2d 120, 131 (1993)), cert. denied, 540 U.S. 971, 157 L. Ed. 2d 320, 124 S. Ct. 442 (2003). Such corroborative evidence may, therefore, contain new or additional facts so long as it tends to add strength and credibility to the testimony it corroborates. Id. If the previous statements are generally consistent with the trial testimony, slight variations affect only credibility and not admissibility. Id.
    Here, defendant disputes the following testimony by Officer T.J. Trentini of the Winston-Salem Police Department, admitted over defendant's objection:
        Q. And what was the description [of the robber] that [Ms. McNeill] gave . . . [?]

            . . . .

        A. She told me that he was a black male in his 40's about 6 foot, 185, medium build. She told me that he was wearing a bright blue shirt, possibly a short sleeve, button down shirt. . . . [S]he said that he had a knot or some type of cyst on the lower left ear lobe that stood out and she kept pointing to her ear lobe and she said that it appeared to besome type of extra skin growth, or a cyst or a knot.

Ms. McNeill subsequently testified regarding the description of the robber she provided to police as follows:
        Q. What did you tell [police] when you gave the description of the robber?

        A. Okay. That he had short hair. That he needed to shave. And that he had a bump on his left earlobe, a big bump. And he had on a real colorful blue shirt, it was long tailed and it had people on it.

        . . . .

        Q. Do you recall if you gave them an estimation as to his height and weight?

            . . . .

        A. I probably did give them an estimation.

        Q. Do you remember today what you told them that day? . . . .

        A. No.

The witnesses were sequestered, so Ms. McNeill had not heard Officer Trentini's testimony regarding her prior description.
    According to defendant, Officer Trentini's testimony that Ms. McNeill said the robber was a "black male in his 40's about 6 foot, 185, medium build" was contradictory to her in-court testimony, and, therefore, was inadmissible as non-corroborative hearsay. We disagree. Ms. McNeill testified that she thought she had told the police the robber's height and weight, but could not recall specifically what she had said. Officer Trentini supplied the details that she had forgotten by the time of trial. Thus, Ms. McNeill's prior statement merely contained additional facts notcontained in her in-court testimony. Compare State v. Baity, 340 N.C. 65, 69-70, 455 S.E.2d 621, 624 (1995) (prior statement that victim was carrying gun was not contradictory to in-court testimony that did not mention whether victim had gun) with State v. Burton, 322 N.C. 447, 451, 368 S.E.2d 630, 632 (1988) (prior statement that victim was sitting atop defendant's friend beating him was "directly contradicted" by in-court testimony that victim was underneath defendant's friend being beaten).
    Moreover, Ms. McNeill's prior statement added weight and credibility to her in-court testimony since the prior description was substantially similar to the description given in court. See Walters, 357 N.C. at 89, 588 S.E.2d at 356. The key aspect of Ms. McNeill's descriptions was the growth on defendant's ear, although the prior statement also included the corroborative detail of defendant's shirt. The details regarding his height and weight simply made Ms. McNeill's identification of defendant more credible. The trial court did not, therefore, err by admitting Officer Trentini's testimony. See also State v. Rogers, 299 N.C. 597, 601, 264 S.E.2d 89, 92 (1980) (trial court did not err by admitting prior statement that witness saw defendant throw victim off bridge, despite witness' in-court testimony that it was too dark to actually see defendant throw victim, because both versions were "substantially the same account of the activities which occurred").

II

    Defendant next argues that the trial court committed plain error by not striking and instructing the jury to disregard the following exchange between the State's attorney and Detective Nieves:
        Q. Through the course of your investigation were you able to get some information concerning the involvement of this defendant?

        A. Yes through my investigation I learned from another detective that the defendant was a possible suspect of my case.

        Q. And then were you able to obtain a photograph and present that in a photographic line up for Ms. McNeill to view?

        A. Yes. What happened was once he provided me the information I corroborated the information through him and through his department, also through the department of correction[], the North Carolina Department of Correction[], I had to turn _ you know, I found a picture of him.

            [Defense Counsel]: OBJECTION.

                THE COURT: SUSTAIN.

(Emphasis added.) According to defendant, this testimony showed he "had been convicted of other crimes in the past" and was, therefore, highly prejudicial.   (See footnote 2)      As a general rule, "a defendant is not prejudiced when his objection to an improper question is sustained . . . ." State v. Trull, 349 N.C. 428, 446, 509 S.E.2d 178, 190 (1998), cert. denied, 528 U.S. 835, 145 L. Ed. 2d 80, 120 S. Ct. 95 (1999). See also State v. Quick, 329 N.C. 1, 29, 405 S.E.2d 179, 196 (1991) ("[W]here the trial court sustains defendant's objection, he has no grounds to except."). Indeed, our Supreme Court has previously held that a defendant was not prejudiced when the trial court sustained his objection to the prosecutor's question regarding whether a witness knew that the defendant was a "convicted felon." State v. Whisenant, 308 N.C. 791, 794, 303 S.E.2d 784, 786 (1983). We see no basis upon which to distinguish Whisenant.
    Defendant nevertheless argues that merely sustaining defense counsel's objection was inadequate and that the trial court committed plain error by not striking Detective Nieves' testimony or instructing the jury to completely disregard it. A prerequisite to plain error analysis is the determination that the trial court's action constituted error. State v. Fisher, 171 N.C. App. 201, 212- 13, 614 S.E.2d 428, 436 (2005), cert. denied, 361 N.C. 223, 642 S.E.2d 711 (2007). Our Supreme Court has held that "it is not error for the trial court to fail to give a curative jury instruction after sustaining an objection, when defendant does not request such an instruction." State v. Williams, 350 N.C. 1, 24, 510 S.E.2d 626, 642 (emphasis added), cert. denied, 528 U.S. 880, 145 L. Ed. 2d 162, 120 S. Ct. 193 (1999). See also State v. Williamson, 333 N.C. 128, 139, 423 S.E.2d 766, 772 (1992) ("A trialcourt does not err by failing to give a curative jury instruction when, as here, it is not requested by the defense."); Quick, 329 N.C. at 29, 405 S.E.2d at 196 (noting that because "defendant failed to move to strike the testimony he considered objectionable," he "waiv[ed] his right to assert error on appeal"). Accordingly, we overrule this assignment of error.
III

    Defendant next argues that, after the jury retired for deliberations, the trial court erred by failing to conduct the jury back into courtroom following its request to review certain evidence. We agree that the trial court erred in this respect.
    N.C. Gen. Stat. § 15A-1233(a) provides: "If the jury after retiring for deliberation requests a review of certain testimony or other evidence, the jurors must be conducted to the courtroom. The judge in his discretion, after notice to the prosecutor and defendant, may direct that requested parts of the testimony be read to the jury and may permit the jury to reexamine in open court the requested materials admitted into evidence." This Court has previously stated that this statute "requires that the jury be present in the courtroom when the judge receives its request, and when the judge responds to it." State v. Helms, 93 N.C. App. 394, 401, 378 S.E.2d 237, 241 (1989). Notably, "[a] lack of objection at trial does not bar a defendant's right to assign error to a judge's failure to comply with the mandates of Section 15A-1233(a)." Id.    Here, after retiring for its deliberations, the jury sent a note containing the following request: "We would like to see the . . . video and mug shots again." Upon receiving this note, "[t]he attorneys and the judge . . . agreed that [the jury could] see these," and counsel met "with the bailiff [to] show him how to operate the VCR and remote and allow him to demonstrate that to the jury." It is undisputed that the jury was not conducted into the courtroom during this time, and, accordingly, the trial court erred under N.C. Gen. Stat. § 15A-1233(a). Helms, 93 N.C. App. at 401, 378 S.E.2d at 241.
    This error does not automatically entitle defendant to a new trial. He must still "demonstrate that there is a reasonable possibility that a different result would have been reached had the trial court's error not occurred." State v. Nobles, 350 N.C. 483, 506, 515 S.E.2d 885, 899 (1999). In Nobles, the Supreme Court held that the defendant had failed to meet this burden when "there was unanimous agreement among the State, the defendant, and the trial judge concerning the items requested by the jury; and the prosecution and defendant consented to permitting the jury to have those items." Id. See also State v. Pointer, __ N.C. App. __, __, 638 S.E.2d 909, 913 (2007) (holding that "when a defendant's lawyer consents to the trial court's communication with the jury in a manner other than bringing the jury back into the courtroom, the defendant waives his right to assert a ground for appeal based on failure to bring the jury back into the courtroom").    In this case, defense counsel not only did not object to the trial court's communication with the jury without returning the jurors to the courtroom, he facilitated it by showing the bailiff how to operate the VCR to show the video in the jury room. In addition, although defendant on appeal suggests that there might have been some confusion regarding what items were being requested by the jury, defense counsel, the prosecution, and the trial judge were unanimous in their agreement regarding which items should be sent back to the jury room. Finally, both the prosecution and defendant consented to providing the items to the jury. In light of Nobles, we hold defendant failed to meet his burden of showing prejudice.   (See footnote 3)  Defendant is not, therefore, entitled to a new trial on this ground.
IV

    Finally, defendant argues that the trial court also violated N.C. Gen. Stat. § 15A-1233(b), which provides:
Upon request by the jury and with consent of all parties, the judge may in his discretion permit the jury to take to the jury room exhibits and writings which have been received in evidence. If the judge permits the jury to take to the jury room requested exhibits and writings, he may have the jury take additional material or first review other evidence relating to the same issue so as not to give undue prominence to the exhibits or writings taken to the jury room. If the judge permits an exhibit to be taken to the jury room, hemust, upon request, instruct the jury not to conduct any experiments with the exhibit.

According to defendant, the statute requires not only a request by the jury to see certain evidence, but also a request to take that evidence into the jury room.
    We do not believe defendant's construction of § 15A-1233(b) to be a plausible reading, nor is it consistent with prior decisions. See State v. Hines, 54 N.C. App. 529, 536-37, 284 S.E.2d 164, 169 (1981) (holding that trial court did not err in allowing evidence to be sent to jury room under N.C. Gen. Stat. § 15A-1233(b) when jury foreman asked "to examine the written stuff that was submitted"). Defendant cites only State v. Platt, 85 N.C. App. 220, 354 S.E.2d 332, disc. review denied, 320 N.C. 516, 358 S.E.2d 529 (1987), in support of his construction of the statute. In Platt, however, this Court simply held that the trial court erred in sending into the jury room an exhibit requested by the jury when defense counsel objected. See id. at 228, 354 S.E.2d at 337 ("Defendant here objected to the jury's taking this statement into the jury room, and the court thus violated G.S. § 15A-1233(b) in allowing the exhibits to go into the jury room.").
    Even if this construction were correct, defense counsel specifically agreed to having those exhibits sent into the jury room. Unlike N.C. Gen. Stat. § 15A-1233(a), a failure to object to a trial court's decision under N.C. Gen. Stat. § 15A-1233(b) waives the right to appellate review. See State v. Byrd, 50 N.C. App. 736, 743, 275 S.E.2d 522, 527 (holding that "defendant waived his right to object" and presented "no question for our review" whendefendant failed "to enter an objection or otherwise indicate his lack of consent" to trial court's decision to permit review of evidence in jury room under N.C. Gen. Stat. § 15A-1233(b)), disc. review denied, 303 N.C. 316, 281 S.E.2d 654 (1981). Consequently, defendant's agreement to the trial court's sending the exhibits into the jury room precludes our review of this issue. See also Helms, 93 N.C. App. at 401, 378 S.E.2d at 241 (holding that defendant waived right to challenge trial court's violation of § 15A-1233(a) when defense counsel, "beyond simply failing to enter an objection, consented to the communication procedure").

    No error.
    Chief Judge MARTIN and Judge WYNN concur.
    Report per Rule 30(e).


Footnote: 1
    Defendant asserts in passing that the admission of the testimony violated his rights under the Confrontation Clause of the Sixth Amendment to the federal constitution. He does not, however, include any specific argument in support of this contention, and, in any event, defendant did not raise this constitutional issue at trial. The issue was not, therefore, properly preserved for appellate review. State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982) (noting that "a constitutional question which is not raised and passed upon in the trial court will not ordinarily be considered on appeal").
Footnote: 2
    We note that defendant also argues this exchange impermissibly indicated that the Department of Correction "corroborated" that defendant committed the Advance America robbery. We do not find this to be a plausible reading of the transcript, which indicates only that Detective Nieves corroborated defendant's status as a potential suspect with "another detective" before obtaining defendant's photograph from the Department of Correction. At most, the testimony could be construed as meaning that the Department of Correction corroborated that defendant was a potential suspect.
Footnote: 3
    Defendant cannot meet this burden through the speculation in his brief as to the "possibility" that the jury was requesting evidence not provided, that the court _ with the concurrence of defense counsel _ may have sent back the wrong evidence, that improper instructions may have been given to the delivery person, and that the delivery person might have said something improper.

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