Opinion
No. COA12–971.
2013-03-19
STATE of North Carolina v. Audrey Michelle POLLOCK.
Attorney General Roy Cooper, by Assistant Attorney General Lisa K. Bradley, for the State. Marie H. Mobley, for defendant-appellant.
Appeal by defendant from judgment entered 22 February 2012 by Judge V. Bradford Long in Randolph County Superior Court. Heard in the Court of Appeals 4 March 2013. Attorney General Roy Cooper, by Assistant Attorney General Lisa K. Bradley, for the State. Marie H. Mobley, for defendant-appellant.
HUNTER, JR., ROBERT N., Judge.
Audrey Michelle Pollock (“Defendant”) appeals from a judgment entered upon a jury verdict finding her guilty of felony larceny. Defendant contends the court abused its discretion by admitting evidence of other crimes. We find no error.
The State presented evidence tending to show that on 28 March 2008, Cindy Fisher, asset protection manager of the WalMart store in Randleman arrived at work and discovered a new child seat, without its box, in the store. Recalling an alert she had received from loss prevention headquarters concerning one or more individuals coming into stores, removing a child seat from its box, and using the box to conceal and steal merchandise, Ms. Fisher decided to view the surveillance video from the previous day. After viewing the video, Ms. Fisher went to the electronics department and found sections or rows of DVD movies were missing. She asked the electronics department manager to take an inventory. Dana Everett, the manager of the electronics department, determined that movies valued at a total of $4,032.80 were missing.
The court admitted into evidence excerpts of the store surveillance video on the evening of 27 March 2008. The court played these excerpts to the jury as Ms. Fisher identified the locations in the store depicted on the videotape.
These excerpts show a dark-haired man in a white tee shirt, accompanied by a female with long dark hair and dressed in a white blouse with a square neckline, entering the store together. Each was pushing a shopping cart. The woman stopped in the infants section and placed one or more items in her cart. The man stopped in the bedding section and placed pillows in his cart. The two came together again in the aisle where DVDs are located. With their carts side by side in the same aisle, over a course of approximately one to two minutes they each grabbed handfuls of DVDs from the shelves, placed them into their carts, and concealed them underneath garments. As the woman departed the aisle, she grabbed a pillow out of the man's cart. The woman is later viewed in the infants department, where she is seen placing her hand into a clothing rack and retrieving an item, which she places into her cart. The two are later seen, each pushing a cart, one behind the other. A few minutes later, they are seen leaving the store together, pushing only one cart. As they left the store, the man took a bag out of the cart to show to a store employee. While he was showing the employee the bag, the woman took the cart, which contained a large box, out of the store.
The trial court permitted Antonio Robinson, asset protection officer at the Wal–Mart store number 1127 in Wadesboro to testify that on 25 March 2008, he passed by Defendant in the store and observed that her buggy was completely lined with clothing, which suggested to him that she was attempting to conceal something in the cart. He saw her go to the electronics section, remove large quantities of small external hard drives and jump drives, place them into the buggy, and cover them. She then went to the picture frame aisle, removed items from the buggy, and placed them behind merchandise on shelves. Defendant then went to the DVD section, where she was met by a man and another woman. Defendant and the man removed large quantities of DVDs from the shelves and placed them into their buggies. Defendant returned to the picture frame aisle, unloaded the merchandise, returned to the DVD aisle, and repeated the process. The man also went to the picture frame aisle. The third time Defendant emptied her buggy, left it in the picture frame aisle, and disappeared. The man and other woman went to the housewares section, emptied large boxes containing a trash can and Tupperware set, returned to the picture frame aisle, and deposited the concealed merchandise into the boxes. They paid for one DVD and one box. While this was happening, Robinson called the Wadesboro Police Department, which was waiting for the man and other woman when they exited the store rolling the cart containing the large box. The box was full of DVDs and computer equipment worth in excess of $7,000.00.
The trial court also permitted Manuel Jaramillo, Jr., asset protection manager at the Wal–Mart store in Jacksonville to testify that on 6 May 2008, he observed a man placing multiple DVDs into a cart. Jaramillo followed the man to the bedding section, where he saw the man remove a comforter, transfer items from the cart to a shelf, and place the comforter back on the shelf concealing the DVDs. Once the man departed, Jaramillo removed the comforter and saw a “bunch of DVDs” on the shelf. AS Jaramillo was exiting the area, he observed Defendant go the same comforter, remove it, place DVDs on the shelf, and replace the comforter. Jaramillo subsequently saw Defendant and the man together in the infants section. He saw them select a car seat, return to the bedding section, and transfer DVDs from the shelf into a buggy. At various places within the store, Jaramillo observed Defendant place DVDs into the car seat box while the man looked around. The man returned to the infants section and selected an identical car seat. The man took the car seat to the electronics department, where he purchased it, along with a DVD. The man abandoned the cart containing the car seat he purchased. He met Defendant and together they started to exit the store pushing the cart containing the car seat box which was filled with DVDs. The store alarm activated, and the man handed Jaramillo and another loss prevention officer the DVD he had purchased. The man put up a struggle when he realized the officers were more interested in what was inside the car seat box. Meanwhile, when the alarm sounded Defendant retreated back into the store. She was apprehended inside the store.
Defendant contends the court erred by admitting the evidence concerning the incidents at the Wadesboro and Jacksonville Wal–Mart stores. As a general principle, Rule 404(b) of our Rules of Evidence 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 of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.” N.C. Gen.Stat. § 8C–1, Rule 404(b) (2011). Even if the evidence is determined to be relevant and admissible for one of the stated purposes, the trial judge retains the discretion to exclude the evidence if the judge determines the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury. N.C. Gen.Stat. § 8C–1, Rule 403 (2011). We review the court's decision whether the evidence is relevant and admissible pursuant to Rule 404(b) to determine whether the court's findings support its conclusions. State v. Beckelheimer, ––– N.C. ––––, ––––, 726 S.E.2d 156, 159 (2012). We review the court's decision pursuant to Rule 403 for abuse of discretion. Id.
Defendant does not dispute that the evidence is relevant and admissible to show identity or a common plan or scheme. She argues the court abused its discretion by not excluding the evidence pursuant to Rule 403 because the probative value of the evidence was outweighed by the danger of unfair or undue prejudice.
A court's discretionary ruling admitting evidence will not be disturbed unless the ruling is “so arbitrary that it could not have been the result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988). As in Beckelheimer, where the Court found no abuse of discretion, the trial court here conducted a voir dire hearing and heard arguments of counsel in making its determination whether the evidence should be admitted. The court gave proper limiting instructions before it admitted the evidence, thereby demonstrating its awareness of the possible unfair prejudice to Defendant. The court also noted the similarities between the facts of the present crime and the particular incident under consideration. These circumstances demonstrate a carefully considered decision by the trial court to admit the evidence. We find no abuse of discretion.
We hold Defendant received a fair trial, free of prejudicial error.
No error. Chief Judge MARTIN and Judge STROUD concur.
Report per Rule 30(e).