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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-102


Filed: 6 November 2007


v .                         Wake County
                            No. 05 CRS 119261

    Appeal by Defendant from judgment dated 6 September 2006 by Judge J.B. Allen, Jr. in Superior Court, Wake County. Heard in the Court of Appeals 12 September 2007.

    Attorney General Roy Cooper, by Assistant Attorney General David W. Boone, for the State.

    William D. Auman, for Defendant.

    McGEE, Judge.

    Rahlondo Shukell Lane (Defendant) was convicted on 6 September 2006 of felonious possession of stolen goods. The trial court sentenced Defendant to a term of six months to eight months in prison. Defendant appeals.
    The evidence presented at trial tended to show the following: Sri Budi Utomo (Mr. Utomo) worked as a deliveryman at a restaurant in Raleigh, North Carolina. Mr. Utomo returned from a delivery around 10:30 p.m. on 9 October 2005 and parked his 1994 Honda Accord in front of the restaurant. Mr. Utomo turned off the car, but left the keys in the ignition. He then went inside the restaurant to prepare for another delivery. When Mr. Utomo returned ten minutes later, his car was gone. He immediatelycalled police to report the vehicle missing.
    Later that week, law enforcement officers recovered Mr. Utomo's car from a U-Haul parking lot in Raleigh. The car had sustained some minor damage, and a subwoofer and amplifier were missing from the car. The police approached William Junior Danzy II (Mr. Danzy), a U-Haul employee, and asked if he had any information regarding the vehicle. Mr. Danzy gave police a security video that showed the vehicle being driven onto the U-Haul lot. Defendant's mother, Robyn Dineen Lane (Ms. Lane), viewed the security video at trial and testified that the driver of the vehicle appeared to be her son.
    Police took Defendant into custody on 14 March 2006. Raleigh Police Detective Leonard L. Herrington (Detective Herrington) informed Defendant of his Miranda rights. Defendant waived his rights and agreed to give a statement to Detective Herrington. The State later introduced Defendant's statement at trial. According to Defendant's statement, he and a person named Donzell were outside the restaurant where Mr. Utomo worked on the night of 9 October 2005. Defendant and Donzell observed Mr. Utomo exit his car while leaving it running. Despite telling Defendant that he did not know how to drive, Donzell got into the driver's seat of the car and drove away, with Defendant in the passenger seat. Several days later, Defendant was driving the car while Donzell was at school. The car's tire caught on fire, and Defendant pulled the car into the U-Haul parking lot. After putting out the fire, Defendant cleaned the car, retrieved his belongings, and took a bushome. Defendant also later admitted to his mother that he had driven Mr. Utomo's vehicle.
    The trial court instructed the jury on both felonious and non- felonious possession of stolen goods. The jury convicted Defendant on the felony charge. Defendant argues that the trial court erred by overruling his objection to the introduction of the U-Haul security video at trial, and also by denying his motion to dismiss based on the insufficiency of the State's evidence. We find no error.


    Defendant first assigns as error the trial court's overruling of his objection to the introduction of the U-Haul security video. Defendant contends that the State did not lay a proper foundation for this evidence, and that he was prejudiced as a result of the improper admission of the video.
    Videotapes are admissible to the same extent and for the same purposes as photographs. State v. Cannon, 92 N.C. App. 246, 254, 374 S.E.2d 604, 608 (1988), rev'd in part on other grounds, 326 N.C. 37, 387 S.E.2d 450 (1990). See N.C. Gen. Stat. § 8C-1, Rule 1001(2) (2005) (defining "photographs" to include videotapes and motion pictures). We have previously described the foundational requirements for introduction of videotapes:
        The prerequisite that the offeror lay a proper foundation for the videotape can be met by: (1) testimony that the motion picture or videotape 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.'"

Cannon, 92 N.C. App. at 254, 374 S.E.2d at 608-09 (alteration in original) (internal citations omitted).
    Defendant argues that the State did not meet any of these requirements. Specifically, Defendant claims that Mr. Danzy could not recall what day the car arrived on the U-Haul lot, or the date when he first saw the security video. Nor did Mr. Danzy testify as to whether the tape had been edited, or whether the surveillance system had been functioning properly. Further, Defendant claims that the State offered no evidence to establish a chain of custody for the videotape between the date it was recorded and the date it was shown at trial.
    Defendant relies on State v. Sibley, 140 N.C. App. 584, 537 S.E.2d 835 (2000), to demonstrate that under these circumstances, the videotape was inadmissible. In Sibley, the State introduced into evidence a videotape showing the defendant holding a number of weapons. Id. at 585, 537 S.E.2d at 837. The State offered chain- of-custody evidence, but offered no evidence that the camera functioned properly or that the video accurately represented the scene at the time it was recorded. Id. at 586, 537 S.E.2d at 838. With none of the four possible foundational options set out in Cannon satisfied, we held that the videotape "[was] not properly authenticated and thus [was] not admissible for any purpose." 587, 537 S.E.2d at 838.
    Defendant's reliance on Sibley is unavailing, however, because his characterization of the State's foundational proffer in the case before us is inaccurate. It is true that Mr. Danzy did not identify a specific date when Mr. Utomo's car appeared on the U- Haul lot. Nor did Mr. Danzy identify a specific date when police questioned him, or when he first saw the security video. However, Mr. Danzy was nevertheless certain that Mr. Utomo's car appeared some time between 9 October and 11 October 2005. Further, Mr. Danzy testified that, although he was not certain, he believed he spoke with police and gave them the security video on Thursday of that week, which would have been 13 October 2005. Mr. Danzy also described the video security system at the U-Haul business, including the specific locations where security cameras were installed. According to Mr. Danzy, one camera was pointed in the exact location where Mr. Utomo's car was found. Mr. Danzy was sure of this because he personally helped install the camera. He also testified that the video equipment was operating properly, and that the contents of the video as shown at trial were identical to the contents of the video when he viewed it in October 2005. Mr. Danzy explained that because of the technology used in recording and maintaining the security video, he was confident that it had never been edited or altered.
    As for chain-of-custody evidence, Detective Herrington testified that Detective Porterfield, also with the Raleigh Police Department, interviewed Mr. Danzy at the U-Haul business andretrieved the video from Mr. Danzy at that time by downloading it from the U-Haul security system. Detective Porterfield then brought the video to Detective Herrington. This testimony was sufficient to establish an adequate chain of custody for admissibility purposes. See State v. Fleming, 350 N.C. 109, 131, 512 S.E.2d 720, 736, cert. denied, 528 U.S. 941, 145 L. Ed. 2d 274 (1999) ("'A detailed chain of custody need be established only when the evidence offered is not readily identifiable or is susceptible to alteration and there is reason to believe that it may have been altered.' Any weak links in the chain of custody pertain only to the weight to be given to the evidence and not to its admissibility." (internal citation omitted) (quoting State v. Campbell, 311 N.C. 386, 389, 317 S.E.2d 391, 392 (1984))).
    In sum, the State's foundational evidence for the videotape clearly satisfied the requirements set forth in Cannon. Therefore, the trial court did not err in admitting the evidence over Defendant's objection, and the video could have been properly considered for any purpose. Any remaining deficiencies concerning the videotape were for the jury to consider in assessing the weight of the evidence. See State v. Mewborn, 131 N.C. App. 495, 498-99, 507 S.E.2d 906, 909 (1998) (trial court did not err in allowing admission of grocery store surveillance video where State introduced sufficient chain-of-custody evidence and other evidence to satisfy foundational requirements set out in Cannon).
    In addition to his foundational attack, Defendant argues that introduction of the U-Haul videotape violated his right to confrontwitnesses against him, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. Defendant cites Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004) to support this claim. At trial, Defendant objected to the introduction of the videotape on foundational grounds (T pp.35-43), but did not raise a Crawford objection. Therefore, Defendant's argument is not properly before this Court. See State v. Chapman, 359 N.C. 328, 366, 611 S.E.2d 794, 822 (2005) ("constitutional error will not be considered for the first time on appeal"); State v. Hewson, ___ N.C. App. ___, ___, 642 S.E.2d 459, 468, disc. review denied, ___ N.C. ___, ___, ___ S.E.2d ___, ___ (2007) (citing Chapman and declining to address the defendant's Crawford argument where the defendant objected to introduction of evidence at trial but did not state the grounds for his objection). This assignment of error is dismissed.

    Defendant next assigns as error the trial court's denial of his motion to dismiss the charge against him based on the insufficiency of the State's evidence.
    To survive a motion to dismiss based on insufficient evidence, the State must present "substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of [the] defendant's being the perpetrator of such offense." State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). Substantial evidence exists if, considered in the light most favorable to the State, the evidence "gives rise to areasonable inference of guilt." State v. Jones, 303 N.C. 500, 504, 279 S.E.2d 835, 838 (1981). However, a defendant's motion to dismiss must be granted "[i]f the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it[.]" Powell, 299 N.C. at 98, 261 S.E.2d at 117.
    The elements of felonious possession of stolen property under N.C. Gen. Stat. § 14-71.1 and N.C. Gen Stat. § 14-72 are: "(1) possession of personal property; (2) having a value in excess of $[1000.00]; (3) which has been stolen; (4) the possessor knowing or having reasonable grounds to believe the property was stolen; and (5) the possessor acting with a dishonest purpose." State v. Martin, 97 N.C. App. 19, 25, 387 S.E.2d 211, 214 (1990).
    Defendant first contends that element three was not met because there was no evidence that Defendant intended to permanently deprive the owner of the use of the vehicle. According to Defendant, he could have merely taken the car for a joyride, and the fact that he parked the vehicle in a U-Haul lot suggests that he wished for Mr. Utomo to recover it. However, the State's evidence, and specifically, Defendant's own statement, contradict Defendant's version of the facts. Defendant admitted that he was still in possession of Mr. Utomo's car for at least one day after the car was taken. Defendant drove the car until it caught fire, at which point he pulled the car into the U-Haul parking lot. There was no evidence that Defendant would have done the same if the car had not caught on fire. Defendant's statement, therefore,supports a reasonable inference that Defendant did not merely take the vehicle for a joyride, but rather intended to possess the car indefinitely.
    Defendant next argues that he did not know the car was stolen, and that he did not act with a dishonest purpose, thus negating elements four and five of the offense. Again, Defendant's own statement demonstrates otherwise. Defendant admitted that he and his companion, Donzell, observed Mr. Utomo inside the vehicle shortly before they drove the vehicle away. Defendant suggests that, for all he knew, the car belonged to Donzell. However, according to Defendant's statement, Donzell informed Defendant that he did not know how to drive. The fact that Donzell did not know how to operate the vehicle should have put Defendant on notice that the vehicle did not belong to Donzell.
    Further, other overwhelming evidence suggests that Defendant acted with a dishonest purpose. In addition to the evidence noted above, Mr. Utomo's subwoofer and amplifier were missing from the car when it was recovered. There was a dent near the gas tank, the inside of the car was filled with litter, and the outside of the car was covered in mud. Defendant admitted in his statement that after he parked the car in the U-Haul lot, he "wiped the car down," suggesting that Defendant was attempting to avoid criminal liability by removing evidence of his wrongdoing.
    We find that the State presented substantial evidence that Defendant committed each element of the offense of felonious possession of stolen goods. Therefore, we hold that the trialcourt did not err by denying Defendant's motion to dismiss.
    No error.
    Judges TYSON and ELMORE concur.
    Report per Rule 30(e).

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