State v. Fleming

• Decision Date: 07 June 2016
• Docket Number: No. COA16–37.,COA16–37.
• Citation: 786 S.E.2d 760,247 N.C.App. 812
• Parties: STATE of North Carolina v. Timothy Chadwick FLEMING.
• Court: North Carolina Court of Appeals

247 N.C.App. 812

786 S.E.2d 760

STATE of North Carolina

v.Timothy Chadwick FLEMING.

No. COA16–37.

Court of Appeals of North Carolina.

June 7, 2016.

Attorney General, Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State.

Marilyn G. Ozer, Chapel Hill, for defendant.

TYSON, Judge.

Timothy Chadwick Fleming ("Defendant") appeals from jury convictions of common law robbery, conspiracy to commit common law robbery, misdemeanor larceny, and of having attained habitual felon status. The trial court arrested judgment on the misdemeanor larceny charge. We find no error in part, reverse the judgment in part, and remand for re-sentencing.

I. Factual Background

On 30 April 2013, a theft occurred at a Marshalls store located in Charlotte, North Carolina. The store's video surveillance system recorded the theft and depicted a male, later identified as Defendant, enter Marshalls, walk around the women's handbag area, and leave the store. A second male entered the store five minutes later. The second male, identified as Roger McCain ("McCain"), walked directly to the women's handbag area, picked up several handbags, and attempted to exit the store.

Assistant manager Tracy Wetzel ("Wetzel") was working in the front vestibule of the store arranging shopping carts, when she observed McCain approach the exit with an armload of Michael Kors purses. Wetzel stepped toward McCain and asked him "if [she] could help him." McCain pushed Wetzel out of the way and exited the store.

While Wetzel was not physically injured, McCain pushed her with enough force into the sliding doors to knock them off of their hinges. McCain jumped into a white Toyota Camry, which displayed a handmade cardboard license plate. The Toyota was waiting for McCain at the curb. Defendant was the driver.

Charlotte–Mecklenburg Police Department Detective Barry C. Kipp ("Detective Kipp") used license plate information obtained from the Toyota's cardboard plate and learned the vehicle belonged to Defendant's mother and it was parked at Defendant's address. He identified Defendant as the first man seen in the Marshalls surveillance video. Detective Kipp asked to interview Defendant. Defendant waived his Miranda rights and agreed to speak with Detective Kipp.

During the interview, Defendant admitted to his involvement in the Marshalls theft. Defendant stated he and McCain had planned to steal handbags from Marshalls. Defendant identified himself and McCain as the perpetrators in the surveillance video. Defendant stated he was not aware of an altercation with Wetzel until McCain got into the vehicle after stealing the handbags.

On 6 January 2014, Defendant was indicted for common law robbery, conspiracy to commit common law robbery, felonious larceny, and having attained the status of habitual felon.

The State presented the evidence summarized above and the video of Detective Kipp's interview with Defendant. The trial court also admitted the State's Rule 404(b) evidence of other crimes. The first incident was introduced through Marshalls and T.J. Maxx corporate investigator Jonathan Nix ("Nix"). Nix testified that he was called to investigate a theft, which had occurred on 12 April 2013 at a T.J. Maxx retail store in Mooresville, North Carolina.

Nix testified he was familiar with the camera system used at the Mooresville T.J. Maxx store, the system was functioning correctly at the time of the theft, and he made a copy of the surveillance video showing a theft of handbags similar to the theft at the Charlotte Marshalls. Nix testified the video proffered by the State was the one he had copied and it had not been edited. This video was admitted into evidence and published to the jury.

The second incident was introduced through Mark Armstrong ("Armstrong"). Armstrong testified he was operating the surveillance camera system at Dillards Department Store in Gastonia, North Carolina on 1 April 2013. From the surveillance camera, he observed a male subject enter the store and steal five or six handbags.

The court instructed the jury to limit their use of this evidence to:

"show the identity of the person who committed the crimes charged in this case if they were committed, that the defendant had motive for the commission of the crimes charged in this case, that the defendant had the intent which was a necessary element of the crimes charged in this case, that the defendant had the knowledge which is a necessary element of the crimes charged in this case, that there existed in the mind of the defendant a plan, scheme, system or design involving the crimes charged in this case, the absence of mistake and absence of accident."

Defendant did not present any evidence.

The jury convicted Defendant of common law robbery, conspiracy to commit common law robbery, and misdemeanor larceny. He was also convicted of attaining habitual felon status. The trial court arrested judgment on the conviction of misdemeanor larceny.

For common law robbery, Defendant was sentenced to 127 to 165 months imprisonment as an habitual felon. For conspiracy to commit common law robbery, Defendant was sentenced to 89 to 119 months imprisonment as an habitual felon.

II. Issues

Defendant argues the trial court erred by: (1) admitting his videotaped confession into evidence; (2) admitting 404(b) evidence of other crimes or bad acts through hearsay testimony; (3) denying his motion to dismiss; and, (4) sentencing Defendant to two consecutive sentence terms which would run consecutively to any sentence which may be imposed upon Defendant in the future.

III. Admission of Videotape Confession as Illustrative Evidence

Defendant argues the State failed to lay a proper foundation for admission of the videotape of his confession. We disagree.

A. Standard of Review

"In determining whether to admit photographic evidence, the trial court must weigh the probative value of the photographs against the danger of unfair prejudice to defendant." State v. Blakeney, 352 N.C. 287, 309, 531 S.E.2d 799, 816 (2000). "This determination lies within the sound discretion of the trial court, and the trial court's ruling should not be overturned on appeal unless the ruling was manifestly unsupported by reason or [was] so arbitrary that it could not have been the result of a reasoned decision." State v. Goode, 350 N.C. 247, 258, 512 S.E.2d 414, 421 (quotations omitted).

B. Analysis

"Photographs and video are usually competent to be used by a witness to explain or illustrate anything that it is competent for him to describe in words." State v. Stewart, 231 N.C.App. 134, 141, 750 S.E.2d 875, 880 (2013) (citation omitted). See also State v. Billings, 104 N.C.App. 362, 371, 409 S.E.2d 707, 712 (1991) (basic principles governing the admissibility of photographs apply also to motion pictures).

Video images may be introduced into evidence for illustrative purposes after a proper foundation is laid. N.C. Gen.Stat. § 8–97 (2015). The proponent for admission of a video lays this foundation with "testimony that the motion picture or videotape fairly and accurately illustrates the events filmed (illustrative purposes)."

State v. Cannon, 92 N.C.App. 246, 254, 374 S.E.2d 604, 608–09 (1988), rev'd on other grounds, 326 N.C. 37, 387 S.E.2d 450 (1990), cert. denied, 356 N.C. 311, 571 S.E.2d 208 (2002).

Over Defendant's objection, videotape of Detective Kipp's interview with Defendant was allowed into evidence. Defendant's objection only addressed whether the State had laid a proper foundation to admit the evidence, not whether Detective Kipp was competent to testify to the interview. He testified that the videotape was a "fair and accurate depiction of the interview." The videotape was shown to the jury solely to illustrate Detective Kipp's testimony.

Because the videotape was admitted only for illustrative purposes, and testimony asserted the videotape fairly and accurately illustrated the events filmed, this testimony meets the authentication requirements enunciated in Cannon for admission for illustrative purposes. This assignment of error is overruled.

IV. 404(b) Evidence of Other Crimes

Defendant argues the trial court erred by allowing the State to introduce hearsay evidence of other crimes committed by Defendant pursuant to N.C. Gen.Stat. § 8C–1, Rule 404(b).

A. Standard of Review

"Determining the competency of a witness to testify is a matter which rests in the sound discretion of the trial court." State v. Phillips, 328 N.C. 1, 17, 399 S.E.2d 293, 301, cert. denied, 501 U.S. 1208, 111 S.Ct. 2804, 115 L.Ed.2d 977 (1991). "To test the competency of a witness, the trial judge must assess the capacity of the proposed witness to understand and to relate under oath the facts which will assist the jury in determining the truth with respect to the ultimate facts." State v. Liles, 324 N.C. 529, 533, 379 S.E.2d 821, 823 (1989).

"The trial court must make only sufficient inquiry to satisfy itself that the witness is or is not competent to testify. The form and manner of that inquiry rests within the discretion of the trial judge." In re Will of Leonard, 82 N.C.App. 646, 649, 347 S.E.2d 478, 480 (1986).

B. Analysis

The challenged testimony was elicited during the voir dire of Nix, who investigated a theft of handbags in Union County. The voir dire was held to determine the admissibility of surveillance video of the theft. This evidence was introduced pursuant to Rule 404(b) for the purpose of showing motive, intent, preparation, or plan. See N.C. Gen.Stat. § 8C–1, Rule 404(b) (2015). "[P]reliminary questions concerning the qualification of a person to be a witness are determined by the trial court, which is not bound by the rules of evidence in making such a determination. In determining whether a person is competent to testify, the court may consider any relevant information which may come to its attention." In re Faircloth, 137 N.C.App. 311, 316, 527 S.E.2d 679, 682 (2000) (citation omitted).

The trial court was not acting as the trier of fact, and was not bound...