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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 17 July 2007
IN THE MATTER OF:
C.J.F., No. 05 JB 413
Appeal by respondent from juvenile dispositional order entered
19 April 2006 by Judge Craig Croom in Wake County District Court.
Heard in the Court of Appeals 23 May 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Susannah P. Holloway, for the State.
Gilda C. Rodriguez, for respondent-appellant.
Respondent juvenile appeals from adjudication and disposition
as a delinquent juvenile. We affirm.
On 9 November 2005 the Wake County Department of Social
Services (DSS) filed a petition alleging that respondent was a
delinquent juvenile, on the grounds that he had committed a
felonious breaking and entering and larceny. The petition stated
that on 13 October 2005 respondent broke into the home of Donnie
Register and stole a camera, watch, coins, and other items.
A hearing on the allegations in the petition was conducted on
26 January 2006. Petitioner's evidence at the hearing is
summarized in relevant part as follows: Donnie Register testified
that he lived on Carroll Street, in Apex, North Carolina.
Respondent lived across the street from Register, with his father;his stepmother, Lisa Ferrell; and his younger sister, Beth.
(See footnote 1)
Respondent's grandmother, Ms. Woodluff, lived in the house next to
respondent's home. On 13 October 2005 someone broke into
Register's house and stole various items, including a bookbag, a
cigar box containing coins, a digital camera, a watch, and several
bottles containing alcoholic beverages.
After the break in, Lisa Ferrell spoke with respondent, who
initially denied being involved in the incident. Ferrell then set
up a hidden camera in the living room, and made a videotape. Based
on information obtained from her review of this videotape, Ferrell
talked with Beth about the break-in. Beth told her stepmother that
some of the stolen items were in the woods behind respondent's
house. Ferrell searched the area behind the house and found
Register's bookbag and some coins. Respondent's family later
recovered the camera and the cigar box belonging to Register. When
Ferrell again confronted respondent about the break-in, he did not
deny being involved in the break-in, although he told Ferrell that
another boy had also taken part.
Other testimony corroborated that of Ferrell regarding
respondent's involvement in the break-in. Beth testified that she
was visiting a friend on 13 October 2005 when respondent and
another boy arrived. Respondent told Beth about breaking into
Register's home and about the items they stole. Beth later told
her stepmother where some of the stolen items had been abandoned. Woodluff testified that she found Register's cigar box in
respondent's closet, and that respondent admitted being present at
the break-in, along with another boy. Detective Michael Pontey of
the Wake County Sheriff's Department testified about his
investigation of the break-in.
During the hearing, respondent objected to the introduction of
testimony from Ferrell, Woodluff, and Beth, on the grounds that
their statements were derived from information Ferrell obtained by
illegally videotaping respondent. The respondent did not present
any evidence. Following the hearing, the trial court adjudicated
respondent delinquent, and placed him under court supervision.
From this adjudication and disposition, respondent appeals.
Respondent argues that the trial court committed reversible
error by admitting evidence derived, directly or indirectly, from
the videotape made by respondent's stepmother. We disagree.
It is not disputed that (1) Ferrell set up a videotape camera
in the family's living room; (2) the resultant videotape was made
without respondent's knowledge or consent; (3) based on the
unspecified contents of the videotape, Ferrell confronted both
respondent and Beth; and (4) Ferrell ultimately obtained an
admission by respondent that he had been involved in the break-in,
and was able to recover some of the stolen items. We conclude,
however, that respondent failed to produce evidence establishing
any illegality in this sequence of events. Respondent argues that the videotape was made in violation of
N.C. Gen. Stat. § 15A-287 (2005), which makes it a Class H felony
for any person without the consent of at least one party to the
communication to intercept any oral communication by another
person. However, no evidence was presented that the videotape
contained any oral communication. Nowhere in the transcript, which
we have carefully read, does Ferrell ever testify that the
videotape included any conversation, phone call, or other oral
communication. And, on the facts of this case, there is no reason
to assume that the significance of the tape lay in its audio
content; it is just as likely that the tape showed a visual image
of respondent carrying stolen items to or from his room.
In Kroh v. Kroh, 152 N.C. App. 347, 567 S.E.2d 760 (2002), as
in the instant case, (1) the issue was the admissibility and
legality of a party's secretly recorded videotape; and (2) there
was no evidence of any oral communication in the videotape. This
Court has noted that 'oral communication' includes all oral
communications 'uttered by a person' and that in general,
recording or endeavoring to record a person's private conversations
without the consent of a party to the conversation is a Class H
felony under the Electronic Surveillance Act. Id. at 351, 567
S.E.2d at 763 (quoting N.C. Gen. Stat. § 15A-286(17) ). The
Court then held:
[Defendant] admits that she videotaped her
husband's activities. However, under the
plain language of G.S. § 15A-287(1)(a) (as
well as the federal Omnibus Act), only oral
communications are covered by the Act. Thus,
[defendant's] videotaping of her husband wouldnot violate the Electronic Surveillance Act
unless such videotaping also included an audio
recording. See G.S. § 15A-286(14). . . .
Because the record fails to show any evidence
or allegation by [plaintiff] establishing that
the subject videotaping included sound
recordings, we summarily reverse the trial
court's order granting him partial summary
judgment on his claim of illegal videotaping
under the Electronic Surveillance Act.
Id. at 351-52, 567 S.E.2d at 763 (citations omitted). Based on the
holding of Kroh, we conclude that, because respondent failed to
present any evidence that the videotape contained sound recordings
of oral communications, the trial court did not err by denying his
motion to exclude evidence derived from the videotape. This
assignment of error is overruled.
Without evidence establishing that the videotape included oral
communication, we do not reach the other issues raised by
respondent pertaining to the legality of the tape. We have
considered respondent's other argument and conclude it is without
merit. We further conclude that the trial court's order of
adjudication and disposition should be
Judges McGEE and JACKSON concur.
Report per Rule 30(e).
The judges participated and submitted this opinion for filing
prior to 10 July 2007.
To protect the privacy of both the juvenile respondent and
of his sister, we refer to her by the pseudonym Beth.
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