Converted WP file 061201-1

Appeal by Defendant from judgment entered 1 March 2006 by Judge Richard D. Boner in Superior Court, Catawba County. Heard in the Court of Appeals 22 May 2007.

Attorney General Roy Cooper, by Assistant Attorney General Robert K. Smith, for the State.

Brian Michael Aus, for the defendant-appellant.

    WYNN, Judge.

    When an audiotape or videotape is being used for the sole purpose of illustrating the testimony of a witness, it may be properly admitted through testimony of personal knowledge that it fairly and accurately depicts or records the events in question.   (See footnote 2) Because the State offered such evidence as foundation for the admission of an audiotape and videotape in this case, we find noerror.
    On 14 October 2004, Sergeant Melissa Johnson of the Taylorsville Police Department, working with Investigator Patrick Clark of the Hickory Police Department, telephoned Defendant Chaztanious Lintay Blackburn and left a message on his voice mail. When Defendant returned her call a short time later, Sergeant Johnson told him she wanted to purchase two ounces of crack cocaine from him. Although Defendant informed Sergeant Johnson that he did not have that amount available for sale, they agreed to instead exchange $1,140 for approximately thirty-seven grams of crack cocaine. They then arranged to meet at a car wash on Highway 127 in Hickory. That conversation was recorded on an audiotape by police.
    Sergeant Johnson drove an undercover vehicle to the car wash and parked, and Defendant arrived shortly thereafter in a gold- and bronze-colored Chevrolet Caprice with spinning rims. At trial, Sergeant Johnson testified that she and Defendant again spoke on the telephone after they had both arrived at the car wash. He requested that she come to his vehicle, as he was concerned that she might have a video recorder in her car. After going to Defendant's vehicle, Defendant instructed Sergeant Johnson to find the cocaine on top of the contents of a nearby trash can. She retrieved the cocaine, got a set of scales from her car, and sat with Defendant in his vehicle.
    According to Sergeant Johnson's testimony, she gave Defendant the agreed-upon $1,140 and returned to her vehicle after confirmingthe weight of the cocaine. She then signaled to the surveillance team that the transaction had occurred, and Defendant was arrested. Following his arrest, Defendant was searched, and Investigator Clark recovered $1,167.21 in cash; the serial numbers of $1,140 of that currency matched those of the currency Sergeant Johnson had used to pay Defendant. The “chunks of an off-white in color substance” turned in by Sergeant Johnson were submitted for testing by the State Bureau of Investigation and later determined to be cocaine. Four cameras on Sergeant Johnson's undercover car recorded her telephone conversation with Defendant while they were both at the car wash, as well as her returning to the car twice, but the cameras did not capture any actual exchange with Defendant, as his vehicle was parked away from Sergeant Johnson's car.
    Sergeant Johnson's testimony as to the chain of events of 14 October 2004 was corroborated at trial by Investigator Clark, as well as by Sergeant Brian Adams of the Hickory Police Department, who also participated in the surveillance of Defendant. Investigator Clark was present when Sergeant Johnson initially telephoned Defendant; he and Sergeant Adams also heard Sergeant Johnson's conversation with Defendant in Defendant's vehicle, but that conversation was not recorded, and neither officer witnessed the transaction directly.
    At the conclusion of the State's evidence, Defendant declined to present any evidence. The jury then returned guilty verdicts for trafficking in cocaine by sale, by possession, and by delivery, and for being an habitual felon. After entering judgment on theverdicts, the trial court sentenced Defendant in the presumptive range to one hundred thirty-six to one hundred seventy-three months' imprisonment, to be served at the expiration of the sentence Defendant was then serving on other charges, and fined Defendant $50,000 and attorney's fees.
    Defendant now appeals, arguing the trial court erred and committed plain error, respectively, by admitting an audiotape and a videotape into evidence without a proper foundation being laid.

    Defendant first contends that the trial court erred and plainly erred by admitting into evidence the audiotape of the telephone conversation between Sergeant Johnson and Defendant without a proper foundation being laid. We disagree.
    Under the North Carolina Rules of Evidence, a witness's testimony as to the accuracy of an audio recording, based on that witness's personal knowledge, is all that is required to authenticate that audio recording. N.C. Gen. Stat. § 8C-1, Rule 901 (2005); see also State v. Stager, 329 N.C. 278, 317, 406 S.E.2d 876, 898 (1991) (finding audiotape admissible so long as legally obtained and otherwise competent, including witness identification of voices). Additionally, there is no mandated statutory procedure for the introduction of such evidence. Although a trial court will typically conduct voir dire “in the absence of the jury, find facts, and thereupon determine the admissibility” of the evidence, the failure to do so does not necessarily render the evidence incompetent. State v. Sharratt, 29 N.C. App. 199, 201, 223 S.E.2d906, 907, disc. review denied, 290 N.C. 554, 226 S.E.2d 512 (1976).
    At trial, after Sergeant Johnson had already testified as to her recollection of the telephone conversation and subsequent transaction with Defendant, the following exchange took place :
        [PROSECUTOR]: Showing you what's been marked as State's Exhibit 1, I'll ask you if you can identify it.
        [JOHNSON]: That's the tape, I believe, that we used when I made the phone calls.
        Q: Have you had a chance to listen to State's Exhibit 1?
        A: Yes.
        Q: Does State's Exhibit 1 fairly and accurately record conversations that you had with the defendant on the 14th of October of 1004, around 10:00 o'clock?
        A: Yes, it does.
        Q: Could you use State's Exhibit 1 to illustrate your testimony?
        A: Yes, I could.

The prosecutor then offered the audiotape into evidence; when defense counsel objected to its introduction, the trial court asked if it was being offered as substantive evidence. The prosecutor responded that it was not, and the trial court then offered - unrequested - a limiting instruction that the audiotape was “admitted for the limited purpose of illustrating [Sergeant Johnson's] testimony if, in fact, you find that this exhibit illustrates the testimony. You may not consider it for any other purpose.”
     Sergeant Johnson's testimony was sufficient to authenticate the audiotape; additionally, the trial court's limiting instruction cured any potential error. The audiotape merely corroborated the earlier substance of Investigator Clark's and Sergeant Johnson's testimony as to the content of the telephone conversation withDefendant. This assignment of error is overruled.

    Defendant next argues that the trial court committed plain error by admitting into evidence the videotape from Sergeant Johnson's undercover car without a proper foundation being laid. We disagree.
    Because Defendant failed to object at trial to the admission into evidence of the videotape, he now contends its admission was plain error, an error “so basic, so prejudicial, so lacking in its elements that justice cannot have been done” or having “a probable impact on the jury's finding that the defendant was guilty.” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (internal citation and quotation omitted).
    We have previously noted that “[v]ideotapes are admissible in evidence for both substantive and illustrative purposes[.]” State v. Mewborn, 131 N.C. App. 495, 498, 507 S.E.2d 906, 909 (1998) . The foundation for videotapes may properly be laid through:
        (1) testimony that the motion picture or video tape fairly and accurately illustrates the events filmed (illustrative purposes); (2) “proper testimony concerning the checking and operation of the video camera and the chain of evidence concerning the videotape . . .”; (3) testimony that “the photographs introduced at trial were the same as those [the witness] had inspected immediately after processing,” (substantive purposes); or (4) “testimony that the videotape had not been edited, and that the picture fairly and accurately recorded the actual appearance of the area 'photographed.'”

Id. (quoting State v. Cannon, 92 N.C. App. 246, 254, 374 S.E.2d 604, 608 (1988) (citations omitted), rev'd on other grounds, 326N.C. 37, 387 S.E.2d 450 (1990)).
    In the instant case, Investigator Clark testified that his responsibilities included “set[ting] up the undercover vehicle” and “mak[ing] sure that we have tapes for the officer,” that he had provided Sergeant Johnson with a tape and a recorder prior to her conversations with Defendant, and that the undercover car was equipped with an audio and video recorder. Sergeant Johnson identified the videotape at trial and stated that it fairly and accurately depicted and recorded the telephone conversations between Sergeant Johnson and Defendant at the car wash and her activities in the parking lot that took place inside her undercover car. The trial court admitted the videotape into evidence and - again unrequested - gave the jury a limiting instruction to consider the videotape only for the purpose of illustrating Sergeant Johnson's testimony.
    As with the audiotape, Sergeant Johnson's and Investigator Clark's testimony were enough to authenticate the videotape. Additionally, the trial court's limiting instruction cured any potential prejudice to Defendant. This assignment of error is overruled.
    No error.
    Judges TYSON and CALABRIA concur.
    Report by Rule 30(e).

Footnote: 1