State v. Sevilla-Briones ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-240
NORTH CAROLINA COURT OF APPEALS
Filed: 7 October 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County
Nos. 12 CRS 252339-341
JIMMY ANTONIO SEVILLA-BRIONES
Appeal by Defendant from judgments entered 24 July 2013 by
Judge Jeffrey P. Hunt in Mecklenburg County Superior Court.
Heard in the Court of Appeals 27 August 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Matthew L. Liles, for the State.
Law Office of Margaret C. Lumsden PLLC, by Margaret C.
Lumsden, for Defendant.
STEPHENS, Judge.
Evidence and Procedural Background
In the autumn of 2012, a confidential informant (“the CI”)
paid by the Drug Enforcement Agency (“DEA”) reported to officers
of the Charlotte-Mecklenburg Police Department (“CMPD”) that
Defendant Jimmy Antonio Sevilla-Briones was claiming to have
access to large amounts of methamphetamine. Beginning in
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November 2012, the CI initiated three purchases of
methamphetamine from Defendant at the behest of CMPD Officer
Eric Duft and DEA Agent James Billings. On 15 November 2012,
the CI purchased 2.5 grams of methamphetamine from Defendant,
and, on 29 November 2012, the CI bought two ounces of
methamphetamine from Defendant (collectively, “the November
sales”). The CI then set up a buy of 1 kilogram of
methamphetamine to take place on 3 December 2012. The CI,
wearing an audio transmitter that intermittently broadcast the
transaction to law enforcement officers, met Defendant at a
grocery store. They agreed to meet later that afternoon to
complete the sale. Defendant arrived for completion of the
transaction in a Toyota driven by Alberto Salizar. Following
the sale to the CI, CMPD officers arrested Defendant and Salizar
at the scene. Based on the 3 December 2012 transaction,
Defendant was subsequently charged with trafficking 200 grams or
more but less than 400 grams of methamphetamine by possession
and transportation, and conspiracy to traffic 200 grams or more
but less than 400 grams of methamphetamine.
The jury convicted Defendant of all three charges, and the
trial court sentenced him to two consecutive terms of 90-120
months in prison. Defendant was also fined $300,000, and costs
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and attorney’s fees were assessed against him. Defendant gave
notice of appeal in open court.
Discussion
On appeal, Defendant argues that the trial court erred in
(1) denying his motion to identify the CI, (2) permitting
witnesses to testify about out-of-court statements made by the
CI, (3) permitting law enforcement officers to vouch for the
credibility of the CI, (4) admitting evidence of the uncharged
November drug sales between Defendant and the CI, and (5)
admitting video and audiotapes in evidence. We dismiss in part,
find no error in part, and find no prejudicial error part.
I. Motion to identify the CI
Defendant first argues that the trial court erred in
denying his motion to disclose the identity of the CI, alleging
violations of his constitutional due process rights and rights
under State law. Defendant has failed to preserve these issues
for our review.
It is well established that “[c]onstitutional issues not
raised and passed upon at trial will not be considered for the
first time on appeal.” State v. Mack, 214 N.C. App. 169, 171,
718 S.E.2d 637, 638 (2011) (citations and internal quotation
marks omitted). As for any alleged violations of Defendant’s
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rights under State law, our State’s appellate courts “will not
consider arguments based upon matters not presented to or
adjudicated by the trial court.” State v. Haselden, 357 N.C. 1,
10, 577 S.E.2d 594, 600 (citations omitted), cert. denied, 540
U.S. 988, 157 L. Ed. 2d 382 (2003); see also Mack, 214 N.C. App.
at 171, 718 S.E.2d at 638 (noting that, “[a]s to [the]
defendant’s argument that the trial court violated his rights
under State law, [the] defendant properly preserved his
appellate rights as to his motion to disclose the identity of
the State’s CI by raising it before the trial court and
obtaining a ruling on his motion. See N.C.R. App. P.
10(b)(1).”) (emphasis added).
Even where a criminal defendant does seek disclosure of a
CI’s identity in the trial court, he must still make a
sufficient showing of the need for disclosure before the trial
court is even required to consider the merits of the request:
In Roviaro v. United States, 353 U.S. 53, 77
S. Ct. 623, 1 L. Ed. 2d 639 (1957), the
United States Supreme Court held it was not
error not to order the Government to reveal
the name of an informant when it was alleged
that the informant actually took part in the
drug transaction for which the defendant was
being tried. The Supreme Court recognized
the State has the right to withhold the
identity of persons who furnish information
to law enforcement officers, but said this
privilege is limited by the fundamental
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requirements of fairness. Roviaro held that
no fixed rule with respect to disclosure is
justifiable. Whether a proper balance
renders nondisclosure erroneous must depend
on the particular circumstances of each
case, taking into consideration the crime
charged, the possible defenses, the possible
significance of the informer’s testimony,
and other relevant factors.
The privilege of nondisclosure, however,
ordinarily applies where the informant is
neither a participant in the offense, nor
helps arrange its commission, but is a mere
tipster who only supplies a lead to law
enforcement officers. Moreover, before the
courts should even begin the balancing of
competing interests which Roviaro envisions,
a defendant who requests that the identity
of a confidential informant be revealed must
make a sufficient showing that the
particular circumstances of his case mandate
such disclosure.
Id. at 171-72, 718 S.E.2d at 638 (certain citations, internal
quotation marks, brackets, and ellipsis omitted; emphasis
added).
For example, in one of the leading cases cited by this
Court in Mack, our Supreme Court declined to address a
defendant’s arguments on appeal when he failed to make a
sufficient showing at trial:
At the time the trial court sustained the
district attorney’s objections to defense
counsel’s questions concerning the identity
and remuneration of the confidential
informant, [the] defendant had not apprised
the court of the particular need he had for
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the information. At that point in the
trial, the trial judge could only speculate
as to the need [the] defendant had for the
information. In his brief, [the] defendant
argues that the informant’s identity should
have been revealed so that he could have a
chance to make a full and complete defense
before the jury. Yet, [the] defendant made
no showing before the court at the time of
the questions concerning the informant as to
his particular need for knowing the identity
of the source. The conflicts in the
evidence to which [the] defendant now points
were not apparent at that stage in the
proceeding nor did [the] defendant forecast
their appearance. On the basis of this
conduct, we hold that [the] defendant has
failed to establish that the identity of the
informer was relevant and helpful to his
defense or essential to a fair determination
of the case.
State v. Watson, 303 N.C. 533, 537, 279 S.E.2d 580, 583 (1981)
(citation omitted).
In contrast, in another case cited in Mack, the defendant
did make an argument at trial about the need to obtain
additional information about a confidential informant:
[The law enforcement officer] identified the
informer as Earl Gray, but denied any
knowledge of his present whereabouts.
Following cross[-]examination, [the]
defendant moved for the trial court to
compel the state to produce Gray’s current
address, telephone number, or contact him in
order “to see if he’s [sic] any exculpatory
evidence that we might use.” Defendant
justified this request based on [the
officer’s] testimony that Gray was a witness
to the occurrences inside the restaurant and
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remained in [the] defendant’s presence while
[the officer] and [one of the defendant’s
acquaintances] consummated the alleged drug
sale outside.
State v. Newkirk, 73 N.C. App. 83, 86-87, 325 S.E.2d 518, 521
(reaching the merits of the defendant’s argument and holding
that the trial court’s denial of the defendant’s motion to
compel the State to locate a confidential informant was proper),
disc. review denied, 313 N.C. 608, 332 S.E.2d 81 (1985).
Here, just before jury selection began, the following
exchange took place:
[DEFENSE COUNSEL]: Your Honor, there is one
issue that just popped in my mind in terms
of questioning the jurors about who they
know. There is the issue of the
confidential informant. I think it would be
unfortunate if someone does know the CI.
Maybe there should be an inquiry of if
anybody knows this person, who is the
confidential informant in this case.
THE COURT: I don’t know quite what you are
asking.
[DEFENSE COUNSEL]: I would be more than
happy to make the inquiry if someone knows
this person.
THE COURT: This person is apparently not
going to testify.
[THE STATE]: No, Your Honor, he is not. I
can tell the [c]ourt I don’t actually know
his full name. I don’t know his name.
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THE COURT: I am not going to let you ask
that question. I don’t think it’s proper to
ask that. If you want to get on the record
your objection to that, that is fine.
[DEFENSE COUNSEL]: I think for the record
we will object.
THE COURT: Yes. Note your exception.
Defendant raised no constitutional issue, and, just as in
Watson, Defendant utterly “failed to establish that the identity
of the informer was relevant and helpful to his defense or
essential to a fair determination of the case.” 303 N.C. at
537, 279 S.E.2d at 583. Unlike the defendant in Newkirk,
Defendant did not request disclosure of the CI’s identity in
order to prepare his defense. Rather, he only sought the CI’s
identity in order to question prospective jurors about whether
any of them knew the CI, presumably so that, if a prospective
juror admitted knowing the CI, Defendant could seek to excuse
that juror for cause or use a peremptory challenge to excuse him
or her. However, the trial court denied Defendant’s request
because the State did not intend to, and, indeed, did not, call
the CI as a witness and his identity was obviously not disclosed
to the jury. Accordingly, there was simply no need to question
the prospective jurors about their familiarity with the CI.
Since the CI’s identity was never disclosed to the jurors, they
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cannot have been influenced by any familiarity with him. Simply
put, the factual circumstance underlying Defendant’s only stated
reason for wanting to know the CI’s identity never arose.
We also reject Defendant’s argument in his reply brief
that, “[a]fter the State’s evidence was presented, trial counsel
noted that the CI was a critical witness because he was the only
person with knowledge of the entire transaction, because police
witnesses knew only some of the facts.” The transcript page
cited by Defendant in support of this contention is part of
Defendant’s argument that evidence of the November sales should
not be admitted under Rules of Evidence 403 and 404(b). See
N.C. Gen. Stat. § 8C-1, Rules 403, 404(b) (2013). Defense
counsel stated,
this [evidence] would confuse the jury about
making a decision about whether or not this
actually happened. We have got a big
question here. We don’t have the only
person with actual personal knowledge of
everything of what was said and what was
heard, including the video. Bits and pieces
of law enforcement standing off, listening
or observing and seeing and saying, trust
me. We know what we are doing.
Thus, while defense counsel did allude to the CI’s importance,
he did not request disclosure of the CI’s identity or make any
constitutional or State law based argument about the need for
Defendant or the jury to know the CI’s identity. On the
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contrary, his sole reference to the CI was made to support his
argument that the Rule 404(b) evidence regarding the November
sales should be excluded.
Further, unlike the defendant in Mack, Defendant did not
present his appellate arguments regarding the identity of the CI
to the trial court. We are wholly unpersuaded by Defendant’s
argument before this Court that seeking to ask prospective
jurors if they knew the CI — an “issue that popped in [trial
counsel’s] head” as jury selection began — constituted a motion
for the State to identify the CI based on an articulated need
for such information to prepare Defendant’s case. Thus, we
decline to consider Defendant’s arguments on appeal concerning
this issue. See Haselden, 357 N.C. at 10, 577 S.E.2d at 600.
Defendant did not argue plain error in his brief to this
Court, but in his reply brief, Defendant contends that, if “[the
State is correct that] the proper standard of review on this
issue is plain error[,] . . . . Defendant would still be
entitled to a new trial, because the failure to identify the CI
deprived Defendant of a fair trial and had a probable impact on
the jury’s verdict[.]” However, “plain error review in North
Carolina is normally limited to instructional and evidentiary
error.” State v. Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326,
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333 (2012) (citation omitted). This Court has held that,
because the denial of a motion to disclose the identity of a
confidential informant “does not involve instructional or
evidentiary error, it will not be reviewed for plain error on
appeal.” State v. Reid, __ N.C. App. __, __, 735 S.E.2d 389,
395 (2012). Accordingly, we dismiss Defendant’s arguments
regarding the identity of the CI.
II. Testimony about the CI’s out-of-court statements
Defendant next argues that the trial court erred in
permitting witnesses to testify about out-of-court statements
made by the CI. We must dismiss this argument because Defendant
has again failed to preserve the issue for appellate review.
“‘Hearsay’ is a statement, other than the one made by the
declarant while testifying at trial or hearing offered in
evidence to prove the truth of the matter asserted.” N.C. Gen.
Stat. § 8C-1, Rule 801(c). A “[d]efendant cannot assign error
to hearsay testimony which he elicited[,]” State v. Mitchell,
342 N.C. 797, 806, 467 S.E.2d 416, 421 (1996) (citation
omitted), and where a defendant fails to object to hearsay
testimony, he is only entitled to plain error review on appeal.
State v. Dyson, 165 N.C. App. 648, 651, 599 S.E.2d 73, 76
(2004), disc. review denied, 359 N.C. 412, 612 S.E.2d 325
 -12-
(2005). However, where a defendant fails to specifically argue
plain error, he waives any consideration of the alleged error.
State v. Waring, 364 N.C. 443, 508, 701 S.E.2d 615, 656 (2010),
cert. denied, __ U.S. __, 181 L. Ed. 2d 53 (2011).
Here, Defendant identifies five statements which he
contends were inadmissible hearsay. However, Defendant elicited
three of the statements during his cross-examination of Officer
Duft and failed to object to any of the five statements at
trial. Defendant further fails to argue plain error in the
admission of the statements. Accordingly, we dismiss this
argument.
III. Testimony vouching for the CI’s credibility
Defendant next argues that the trial court committed plain
error in permitting law enforcement officers to vouch for the
credibility of the CI. We disagree.
When
an [evidentiary] issue is not preserved in a
criminal case, we apply plain error review.
We find plain error only in exceptional
cases where, after reviewing the entire
record, it can be said the claimed error is
a fundamental error, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done. Thus, the
appellate court must study the whole record
to determine if the error had such an impact
on the guilt determination, therefore
constituting plain error. Accordingly, we
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must determine whether the jury would
probably have reached a different verdict if
this testimony had not been admitted.
State v. Hammett, 361 N.C. 92, 98, 637 S.E.2d 518, 522 (2006)
(citations and internal quotation marks omitted; emphasis in
original).
“A lay witness is entitled to testify ‘in the form of
opinions or inferences . . . [which are] (a) rationally based on
[his] perception . . . and (b) helpful to a clear understanding
of his testimony or the determination of a fact in issue.’”
State v. Dew, __ N.C. App. __, __, 738 S.E.2d 215, 219 (quoting
N.C. Gen. Stat. § 8C-1, Rule 701), disc. review denied, __ N.C.
__, 743 S.E.2d 187 (2013). Under Rule 701, one witness may not
“vouch for the veracity of another witness.” State v. Robinson,
355 N.C. 320, 334, 561 S.E.2d 245, 255, cert. denied, 537 U.S.
1006, 154 L. Ed. 2d 404 (2002). However, a law enforcement
officer may offer testimony that will assist the jury in
understanding his investigative process. State v. Wallace, 179
N.C. App. 710, 715, 635 S.E.2d 455, 460 (2006), disc. review
denied and appeal dismissed, 361 N.C. 436, 649 S.E.2d 896
(2007).
On direct examination, Agent Billings testified as follows:
Q For the purposes of this, I will just
ask you about the prior dealings you had
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with [D]efendant and the substance of the
deal you witnessed on 12 — start with
November 15. What were you doing that day?
A On November 15, 2012, I participated in
something we call a buy walk, where we used
a confidential source to purchase a small
amount of meth[]amphetamines from
[Defendant].
Q This CI, had you ever used that person
before?
A Yes.
Q About how many times?
A I have known this particular individual
about five-and-a-half years in my time here
in Charlotte. It’s difficult to say, but
numerous times on numerous different
case[s].
Q The information that you have received
from him, were you able ever to corroborate
as true?
A Yes. He has been proven to be very
truthful.
Q You said on November 15, he set up the
deal?
A Yes, at our direction.
Officer Duft also testified about his past work with the CI:
Q Detective Duft, how did you initially
come into contact with the CI?
A The CI called the DEA office back in
2007. He just said he was new to the area.
He was familiar with drug trafficking and
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drug traffickers, and he was interested in
providing information.
Q Have you worked with him consistently
since 2007?
A I have worked with him since 2007.
Q Approximately how many times have you
used him since then?
A I would say in the range of 20
different times on cases. I would say 10 to
20 cases. We are in contact with him almost
weekly.
Q Has he been a reliable informant for
you?
A Yes, he has.
The testimony of both officers was largely in the context of
explaining the course of the investigative process which led to
Defendant’s arrest. Even assuming arguendo that any portion of
the above-quoted testimony was impermissible vouching, we cannot
conclude that the passing references to the CI as “reliable” and
“truthful” likely altered the outcome of Defendant’s trial. In
Dew, we concluded that a defendant had failed to establish plain
error where a mother testified that she believed her daughters
when they told her the defendant had sexually abused them. __
N.C. App. at __, 738 S.E.2d at 219 (“Simply put, in view of
. . . the fact that most jurors are likely to assume that a
mother will believe accusations of sexual abuse made by her own
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children, we cannot conclude that the challenged portion of [the
mother]’s testimony had any significant impact on the jury’s
decision to convict [the d]efendant.”). Similarly, here, it is
likely most jurors would assume that law enforcement officers
believe in the truthfulness and reliability of their
confidential informants, since officers would plainly not pursue
investigations with informants they did not trust. This
argument is overruled.
IV. Evidence of the November sales
Defendant next argues that the trial court erred in
admitting evidence of the November sales in violation of Rules
of Evidence 403 and 404(b). We disagree.
As our Supreme Court has recently clarified,
when analyzing rulings applying Rules 404(b)
and 403, we conduct distinct inquiries with
different standards of review. . . . We
review de novo the legal conclusion that the
evidence is, or is not, within the coverage
of Rule 404(b). We then review the trial
court’s Rule 403 determination for abuse of
discretion.
State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159
(2012) (italics added). Rule 404(b) provides that
[e]vidence of other crimes, wrongs, or acts
is not admissible to prove the character of
a person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
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of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident. We have
characterized Rule 404(b) as a general rule
of inclusion of relevant evidence of other
crimes, wrongs or acts by a defendant,
subject to but one exception requiring its
exclusion if its only probative value is to
show that the defendant has the propensity
or disposition to commit an offense of the
nature of the crime charged.
State v. Carpenter, 361 N.C. 382, 386, 646 S.E.2d 105, 109
(2007) (citations and internal quotation marks omitted; emphasis
in original). This general rule of inclusion
is constrained by the requirements of
similarity and temporal proximity. This
Court has stated that remoteness in time is
less significant when the prior conduct is
used to show intent, motive, knowledge, or
lack of accident; remoteness in time
generally affects only the weight to be
given such evidence, not its admissibility.
Nevertheless, we note that the two offenses
in the case at bar are separated by eight
years. Moreover, as to the similarity
component, evidence of a prior bad act must
constitute substantial evidence tending to
support a reasonable finding by the jury
that the defendant committed a similar act.
Under Rule 404(b) a prior act or crime is
similar if there are some unusual facts
present in both crimes. Finally, if the
propounder of the evidence is able to
establish that a prior bad act is both
relevant and meets the requirements of Rule
404(b), the trial court must balance the
danger of undue prejudice against the
probative value of the evidence, pursuant to
Rule 403.
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Id. at 388-89, 646 S.E.2d at 110 (citations, internal quotation
marks, and brackets omitted; emphasis in original).
At trial, Defendant objected under Rule 404(b) to the
admission of evidence about the November sales of
methamphetamine by Defendant to the CI.1 The trial court
overruled Defendant’s objection and admitted evidence of the
November sales to show that Defendant had the knowledge and
intent to traffic methamphetamine. The court also issued a
limiting instruction, specifically directing the jury that the
evidence of the November sales “was received solely for the
purpose of showing the intent and knowledge that might be
necessary as an element in the crimes that are charged in this
case. Also, that [D]efendant may have had in his mind a plan,
scheme, system, or design involving the crimes that are charged
in this case.”
On appeal, Defendant contends that the November sales were
not sufficiently similar and were too remote in time because the
sales took place over three weeks, different amounts of
methamphetamine were sold, Defendant drove a different car for
one of the November sales, the sales took place in different
1
Defendant was not charged in connection with the November
sales.
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locations, and Defendant was accompanied by different people for
each sale. However, the sales all involved the same drug sold
at the same price, Defendant used the same phone to set up the
sales, the sales were concluded in the same apartment parking
lot, and all sales were between Defendant and the same
confidential informant. These similarities are greater than
those present in State v. Houston, 169 N.C. App. 367, 610 S.E.2d
777, disc. review denied and appeal dismissed, 359 N.C. 639, 617
S.E.2d 281 (2005), the case on which the trial court relied in
admitting the evidence of the November sales. In Houston, the
defendant was charged with trafficking cocaine by possession,
and the State sought to introduce evidence of previous uncharged
drug sales by the defendant to an informant. Id. at 372, 610
S.E.2d at 781. We held the prior sales were admissible under
Rule 404(b) because the prior sales also involved the defendant
and the informant, primarily included the sale of cocaine at the
same price, mainly occurred in the same location, were for the
same amount of drugs, and the final prior sale had taken place
within the preceding four months. Id. at 373, 610 S.E.2d at
782. Here, although the amounts of methamphetamine increased
with each sale by Defendant, every sale involved the same drug
and occurred within a much shorter timeframe, to wit, three
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weeks. Accordingly, as in Houston, we conclude that the prior
sales were sufficiently similar and not too remote in time to
show Defendant’s knowledge and intent to sell methamphetamine.
Rule 403 provides that, “[a]lthough relevant, evidence may
be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste
of time, or needless presentation of cumulative evidence.”
N.C. Gen. Stat. § 8C-1, Rule 403. “Necessarily, evidence which
is probative in the State’s case will have a prejudicial effect
on the defendant; the question, then, is one of degree.” State
v. Mercer, 317 N.C. 87, 93-94, 343 S.E.2d 885, 889 (1986). “The
exclusion of evidence under Rule 403 is a matter generally left
to the sound discretion of the trial court, which is left
undisturbed unless the trial court’s ruling is manifestly
unsupported by reason or is so arbitrary it could not have been
the result of a reasoned decision.” State v. Badgett, 361 N.C.
234, 244-45, 644 S.E.2d 206, 212-13 (citation and internal
quotation marks omitted), cert. denied, 552 U.S. 997, 169 L. Ed.
2d 351 (2007). Further, our Supreme Court has repeatedly held
that the admission of prior bad acts is not unfairly prejudicial
under Rule 403 in cases where the trial court gave a specific
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limiting instruction regarding permissible uses of Rule 404(b)
evidence. See, e.g., id.; see also State v. Hyatt, 355 N.C.
642, 662, 566 S.E.2d 61, 74-75 (2002), cert. denied, 537 U.S.
1133, 154 L. Ed. 2d 823 (2003); State v. Lemons, 348 N.C. 335,
353, 501 S.E.2d 309, 320 (1998), vacated and remanded on other
grounds, 527 U.S. 1018, 144 L. Ed. 2d 768 (1999).
On appeal, Defendant contends that admission of the
November sales was unfairly prejudicial because it led the jury
to believe a statement the CI made to the police “that Defendant
bragged about his access to large quantities of
meth[amphetamine].” We believe the trial court’s specific
instruction to the jury that evidence of the November sales
could be considered only to the extent it shed light on
Defendant’s “intent[,] knowledge[,] . . . . plan, scheme,
system, or design” in committing the crimes for which he was
charged effectively blunted any possibility of undue prejudice.
Juries are presumed to follow instructions by our trial courts.
State v. Tirado, 358 N.C. 551, 581, 599 S.E.2d 515, 535 (2004)
(citation omitted), cert. denied sub nom. Queen v. North
Carolina, 544 U.S. 909, 161 L. Ed. 2d 285 (2005). We conclude
that the trial court’s decision to admit evidence of the
November sales was not “manifestly unsupported by reason or . .
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. so arbitrary it could not have been the result of a reasoned
decision.” Badgett, 361 N.C. at 245, 644 S.E.2d at 212-13.
Accordingly, we overrule this argument.
V. Evidence from video and audiotapes
Defendant finally argues that the trial court erred in
admitting video and audiotape evidence. We disagree.
Defendant failed to object to admission of the recordings
he challenges on appeal, with the exception of one videotape.
As for the other videotapes and all of the audiotapes,
Defendant’s failure to object at trial limits him to plain error
review regarding the unchallenged recordings. See N.C.R. App.
P. 10(a)(4). However, Defendant has failed to argue plain error
in the admission of those recordings and thus has waived any
appellate review. See Waring, 364 N.C. at 508, 701 S.E.2d at
656. Accordingly, we consider Defendant’s argument on appeal
only as to the one videotape to which he objected at trial,
State’s exhibit 1.
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, (2) proper
testimony concerning the checking and
operation of the video camera and the chain
of evidence concerning the videotape, (3)
testimony that the [videotapes] introduced
at trial were the same as those the witness
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had inspected immediately after processing,
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.
State v. Cannon, 92 N.C. App. 246, 254, 374 S.E.2d 604, 608-09
(1988) (citations, internal quotation marks, and ellipsis
omitted; emphasis added), reversed on other grounds, 326 N.C.
37, 387 S.E.2d 450 (1990).
Exhibit 1 is a videotape of a meeting between the CI and
Defendant in the parking lot of Compare Foods, a grocery store.
At trial, the State sought to introduce the recording during
Officer Duft’s direct examination. Defendant objected, stating
“Objection; lack of foundation, who played the video and whether
or not [Officer Duft] actually saw what was shown on the video
at the time.” The court sustained the objection, and the State
then elicited the following testimony from Officer Duft:
Q Detective Duft, were you present when this
video was filmed?
A I was.
Q Were you at the same vantage point when this
individual was being filmed?
A The video was shot in the parking lot of the
Compare Foods. I was in the same parking lot.
Q How close do you estimate that you were next
to the person who was filming this video?
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A The same distance, from me to this wall.
Different angles, but seeing the same thing.
Q Have you reviewed this video yourself?
A I did.
Q Is it a fair and accurate representation of
the scene that you saw on December 3 at the
Compare Foods?
A It is.
This testimony from Officer Duft indicates that “the videotape
fairly and accurately illustrated the events filmed” and thus
provided a proper foundation under Cannon. See id. Defendant
contends that the State was also required to provide evidence
about the maintenance and functioning of the video camera.
However, the four methods listed in Cannon are joined with the
disjunctive “or” plainly indicating that any one of the methods
will suffice to establish a proper foundation for the admission
of videotape evidence. See id.; see, e.g., State v. Ayscue, 169
N.C. App. 548, 610 S.E.2d 389 (2005) (concluding that a
videotape was properly admitted based on testimony solely
regarding chain of custody, the second method listed in Cannon).
Here, a proper foundation was laid for admission of the
videotape, and we see no error in the trial court’s admission of
it. Accordingly, this argument is overruled.
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DISMISSED in part; NO ERROR in part; NO PREJUDICIAL ERROR
in part.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).