State v. Sturdivant, No. COA08-1422 (N.C. App. 6/16/2009)
| Decision Date | 16 June 2009 |
| Docket Number | No. COA08-1422,COA08-1422 |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA v. KENNETH ERSKIN STURDIVANT, JR. |
Anne Bleyman, for defendant.
On 8 June 2006, Lexington Police Department (LPD) Officer Jerrard Hodge (Officer Hodge) was working undercover purchasing illegal drugs on Martin Luther King Drive in Thomasville. Officer Hodge and LPD Detective Kirk Woodall were working with the Thomasville Police Department (TPD) and occupied an unmarked police vehicle equipped with video and audio recording devices. TPD Officer Jason Baity (Officer Baity) was also part of the surveillance team.
A black male approached the driver's side of the car. After the officers asked him for "a twenty," the man handed the officers an off-white rock-like item that the LPD officers suspected of being crack cocaine in exchange for $20.00. Officer Hodge gave a description of the man and his clothing over the wire to Officer Baity. Officer Baity then went to the scene, located a man fitting the description given by Officer Hodge, and asked him for identification. The man with whom Officer Baity spoke on this occasion was Defendant, Kenneth Erskin Sturdivant, Jr. (Defendant).
Prior to trial, Defendant filed a Motion in Limine seeking the entry of an order precluding the introduction of the audio tape recording or a transcript of the exchange between Officer Hodge and the individual alleged to be Defendant. The trial court denied the Motion in Limine after deciding that the tape's "prejudicial effect [was] outweighed by [its] probative value." At trial, Officer Hodge identified Defendant as the individual shown on the videotape of the transaction which he described during his testimony.
Officer Baity mailed the suspected crack cocaine to the State Bureau of Investigation (SBI). A laboratory analysis of the suspected crack rock completed by SBI chemist Amanda Smith revealed the presence of cocaine in an amount weighing less than .1 gram. Defendant did not present any evidence at trial.
At the conclusion of the trial, the jury convicted Defendant of selling cocaine and of attaining the status of an habitual felon. On 11 June 2008, the trial court sentenced Defendant to a minimum term of 121 months and a maximum term of 155 months imprisonment in the custody of the Department of Correction and required Defendant to undergo substance abuse treatment. In addition, the trial court ordered Defendant to make certain monetary payments, including restitution payments in the amount of$20.00 to the TPD and $300.00 to the SBI. Defendant noted an appeal to this Court from the trial court's judgment.
Defendant first contends that the trial court erred by entering its judgment and commitment under the habitual felon case number as opposed to the case number of the substantive felony for which Defendant was convicted. Although the jury returned verdicts finding defendant guilty of the sale of cocaine in File No. 06 CrS 5582 and of attaining the status of an habitual felon in File No. 06 CrS 8364, the judgment was given the habitual felon case number rather than the sale of cocaine case number. As a result of the fact that a "trial court has subject matter jurisdiction to sentence a defendant only on his criminal convictions, not upon his acquired status of being an habitual felon," State v. Taylor, 156 N.C. App. 172, 175, 576 S.E.2d 114, 117 (2003), Defendant argues that the trial court lacked "subject matter jurisdiction to enter judgment only under a habitual felon case number." As Defendant acknowledges, however, established North Carolina law indicates that the trial court's error was clerical rather than jurisdictional in nature. State v. McBride, 173 N.C. App. 101, 109-11, 618 S.E.2d 754, 760-761 (2005), dis. review denied, 360 N.C. 179, 626 S.E.2d 835 (2005) (). "When, on appeal, a clerical error is discovered in the trial court's judgment or order, it is appropriate to remand the case to the trial court for correction because of the importance that the record speak the truth." State v. Streeter, ___ N.C. App. ___, ___, 663 S.E.2d 879, 886 (2008) (citing State v. Smith, 188 N.C. App. 842, 656 S.E.2d 695 (2008)). As a result, this case should be remanded to the trial court with directions to enter and file the judgment and commitment entered against Defendant in File No. 06 CrS 5582 rather than File No. 06 CrS 8364. See McBride, at 110, 618 S.E.2d at 760.
Next, Defendant assigns error to that portion of the trial court's judgment requiring Defendant to make a $300.00 payment to the SBI. In support of this assignment of error, Defendant notes that he did not stipulate to the amount of the payment, which he characterizes as restitution, to be awarded to the SBI, and argues that there was no evidence at trial to support the $300.00 amount other than the prosecutor's unsworn statement. As a result, Defendant contends that the trial court erred by ordering the payment of $300.00 to the SBI. After careful consideration of Defendant's contentions, we disagree.
As a general proposition, "`[r]egardless of whether restitution is ordered or recommended by the trial court, the amount must be supported by the evidence.'" State v. Wilson, 340 N.C. 720, 726, 459 S.E.2d 192, 196 (1995) (quoting State v. Daye, 78 N.C. App. 753, 757, 338 S.E.2d 557, 560, disc. review allowed, 316 N.C. 554, 344 S.E.2d 11, aff'd per curiam, 318 N.C. 502, 349 S.E.2d 576 (1986). "In the absence of an agreement or stipulation between defendant and the State, evidence must be presented in support of an award of restitution." State v. Buchanan, 108 N.C. App. 338, 341, 423 S.E.2d 819, 821 (1992). The unsworn statement of a prosecutor is insufficient to support a decision to require the payment of a specific amount of restitution. State v. Shelton, 167 N.C. App. 225, 233, 605 S.E.2d 228, 233 (2004) (citing State v. Buchanan, 108 N.C. App. 338, 423 S.E.2d 819 (1992)). Although Defendant correctly notes that there is no evidence in the record tending to show the cost of the laboratory analysis work performed by the SBI on the material that Defendant handed to Officer Hodge, the general rule upon which Defendant relies does not apply in this instance.
N.C. Gen. Stat. § 7A-304(7) provides:
For the services of the State Bureau of Investigation laboratory facilities, the. . . superior court judge shall, upon conviction, order payment of the sum of three hundred dollars ($300.00) to be remitted to the Department of Justice . . . . This cost shall be assessed only in cases in which, as part of the investigation leading to the defendant's conviction, . . . the laboratories have performed analysis of any controlled substance possessed by the defendant or the defendant's agent. The court may waive or reduce the amount of any payment required . . . upon a finding of just cause to grant such a waiver.
N.C. Gen. Stat. § 7A-304(7). As a result, N.C. Gen. Stat. § 7A-304(7) permits a trial judge to require the payment of $300.00 to be remitted to the Department of Justice in the event that the SBI crime laboratory performed an analysis of any controlled substances possessed by the defendant or an agent of the defendant. At trial, SBI Agent Amanda Smith testified that she analyzed the substance sold by Defendant to Officer Hodge and determined that it "contained Cocaine base, which is a Schedule II controlled substance . . . ." This fact, coupled with Defendant's conviction for sale or delivery of cocaine, provides all the record support needed to justify the trial court's decision to require Defendant to pay $300.00 to the SBI, particularly given that the record provides no indication that Defendant requested a waiver in or reduction of the statutorily mandated fee. As a result, the trial court did not err by requiring Defendant to make this $300.00 payment, so that Defendant's assignment of error directed to this aspect of the trial court's judgment is overruled.
At trial and on appeal, Defendant argues that the trial court erred by admitting the videotape of the transaction between Defendant and Officer Hodge into evidence.1 Defendant contends that the State failed to adequately authenticate the videotape and that the admission of this improperly authenticated videotape constituted prejudicial error. After careful consideration of Defendant's contentions and the applicable law, we disagree.
"Any party may introduce a . . . video tape . . . as substantive evidence upon laying a proper foundation and meeting other applicable evidentiary requirements." N.C. Gen. Stat. §8-97. "Videotapes are admissible under North Carolina law for both illustrative and substantive purposes." State v. Gaither, 161 N.C. App. 96, 102, 587 S.E.2d 505, 509 (2003), disc. review denied, 358 N.C.157, 593 S.E.2d 83 (2004)).
Videotapes should be admissible under the rules and for the purposes of any other photographic evidence. State v. Johnson, 18 N.C. App. 606, 197 S.E.2d 592 (1973). 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, Campbell v. Pitt County Memorial Hospital, 84 N.C. App. 314, 352 S.E.2d 902, aff'd, 321 N.C. 260, 362...
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