Opinion
NO. COA10-1482
08-02-2011
STATE OF NORTH CAROLINA v. GEORGE BRIAN WILLIAMS
Attorney General Roy A. Cooper, III, by Assistant Attorney General Kenneth A. Sack, for the State. Ryan McKaig for Defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Forsyth County
09 CRS 3309
09 CRS 52017
Appeal by Defendant from judgment entered 12 August 2010 by Judge Ronald E. Spivey in Forsyth County Superior Court. Heard in the Court of Appeals 13 April 2011.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Kenneth A. Sack, for the State.
Ryan McKaig for Defendant-appellant.
HUNTER, JR., Robert N., Judge.
George Brian Williams ("Defendant") appeals from a judgment entered by the trial court after return of a jury verdict finding him guilty of felony breaking and entering and felony larceny after breaking and entering. We find no error.
I. Factual & Procedural History
On 6 July 2 009, Defendant was indicted on charges of felony breaking and/or entering, larceny after breaking and/or entering, and felony larceny for crimes committed on 14 January 2009 and 20 January 2009 against Millennium Landscaping ("Millennium") in Kernersville, North Carolina. On the same day, Defendant was indicted as having attained habitual felon status pursuant to N.C. Gen. Stat. § 14-7.1 (2009). The cases were consolidated and tried during the 9 August 2010 Criminal Session of the Forsyth County Superior Court.
Prior to trial, three motions were offered, two of which are at issue in Defendant's appeal. First, the State moved to admit surveillance video recorded at Millennium as substantive evidence. Second, Defendant moved to suppress testimony by Archdale Police Captain Mickey Denny ("Captain Denny"), identifying Defendant from photographs taken from the surveillance video recorded on 14 January 2009.
In consideration of these motions, the trial court conducted voir dire of several witnesses. Richard Knowles ("Knowles"), owner and general manager of Millennium, testified during voir dire that his company uses several security cameras on the Millennium premises. Knowles narrated two recordings from Millennium's security cameras that were played during his voir dire testimony.
In the 14 January 2009 videotape, Knowles described a pickup truck parked on the ramp to the storage buildings at Millennium. Knowles then described that an individual cut the locks off the storage buildings, and removed several pieces of landscaping equipment from inside. Knowles explained that the person in the video removed a lock from Millennium's office, noticed the surveillance camera, and walked away. It appeared that the same individual returned and broke the camera off the tree to which it was affixed.
The second video captured a second break-in at Millennium on 20 January 2009. Knowles described the video as showing that two individuals exited a pickup truck with a gas can and a hose. The two individuals siphoned gas from another vehicle on the premises and took a ladder, two tires, and an air tank. Knowles also testified that he printed still photographs from the surveillance videos and provided them to the Forsyth County Sherriff's Department with copies of the videos. The trial court noted that none of the photographs depicted the individual completely. Defendant did not cross-examine Knowles. The trial court granted the State's motion to admit the videotape as substantive evidence.
The State then called Captain Denny for voir dire testimony. Captain Denny testified that he viewed the still photographs provided by Knowles at a monthly law enforcement meeting where such photographs and information were routinely shared between law enforcement officials. Captain Denny testified that he recognized the individual in the photographs provided by Knowles and compared Knowles' photographs with a photo of Defendant within his office's in-house computer system. Captain Denny also testified during voir dire that he recognized Defendant from charging Defendant with crimes on two or three occasions and from photographs in sheriffs' department wanted flyers. Defendant moved to suppress Captain Denny's testimony on the grounds that: (1) Captain Denny's testimony would be treated as expert testimony by the jury because of Captain Denny's status as a police officer; and (2) Captain Denny's testimony that he knew Defendant would imply that Defendant had a criminal history.
Defendant also cited State v. Belk, __ N.C. App. __, __, 689 S.E.2d 439, 441-42 (2009), writ denied, review denied, 364 N.C. 129, 695 S.E.2d 761 (2010), in which this Court discussed the factors a trial court should consider when deciding whether to admit lay opinion testimony identifying a person in a photograph or videotape. Defendant's counsel argued that Captain Denny's prior contact with Defendant was not sufficient to "put[] him in a better position to identify the individual in the video than the jury."
The trial court denied Defendant's motion in limine to the extent that Captain Denny could testify in order to identify Defendant as the individual in the surveillance video, but granted the motion to the extent that Captain Denny could not testify that he had knowledge of Defendant from prior arrests. The trial court then proceeded with Defendant's trial.
During the trial, the State called Captain Denny to testify. Prior to Captain Denny taking the stand, Defendant renewed his Motion to Suppress Captain Denny's testimony. The trial court denied the Motion. Captain Denny identified the still photographs admitted into evidence as being the same photographs distributed at the area law enforcement meeting he attended. Captain Denny also admitted that he had only seen Defendant in photographs, and had never seen Defendant in person, contrary to his voir dire testimony.
Upon learning Captain Denny had not previously arrested or charged Defendant, the trial court excused the jury and acknowledged a "misunderstanding" of the facts in ruling on Defendant's motion in limine. The trial court struck all references in the record that stated Captain Denny previously arrested or charged Defendant. However, this did not change the ruling on Defendant's Motion; the trial court reasoned Captain Denny's immediate recognition of Defendant based upon seeing Defendant's photograph in several other settings was sufficient to allow him to testify.
The State also called Detective Todd Blakely of the Randolph County Sheriff's Office ("Detective Blakely") to testify. Detective Blakely testified that he knew Defendant, that he had seen Defendant in contexts other than photographs, and that he had seen Defendant at Defendant's residence. Detective Blakely testified that he took photographs of Defendant's Ford F-150 pickup truck during a visit to Defendant's residence, which were admitted into evidence without objection.
At the close of the State's evidence, Defendant made a Motion to Dismiss all charges for insufficient evidence. The trial court denied Defendant's Motion. Defendant did not present a case and renewed his Motion to Dismiss. The trial court granted Defendant's Motion to Dismiss the charges stemming from the break-in that occurred on 2 0 January 2 009, but denied his Motion to Dismiss the charges stemming from the break-in that occurred on 14 January 2 009.
The jury found Defendant guilty of felonious breaking and entering and felonious larceny after breaking and entering. Defendant pled guilty to attaining habitual felon status and was sentenced to a prison term of 136 to 173 months on 12 August 2010. Defendant gave oral notice of appeal in open court.
II. Jurisdiction & Standard of Review
This Court has jurisdiction to hear the matter pursuant to N.C. Gen. Stat. § 7A-27(b) (2009). "Appellate review of the denial of a motion to suppress is limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law." State v. Williams, 195 N.C. App. 554, 555, 673 S.E.2d 394, 395 (2009) (citation and quotation marks omitted).
III. Analysis
A. Captain Denny's Testimony
Defendant argues the trial court erred in denying his pre-trial Motion to Suppress Captain Denny's testimony identifying Defendant in the surveillance photographs. Defendant also argues the trial court erred in failing to reverse its denial of his Motion upon learning Captain Denny did not have prior contact with Defendant, as he testified he did during his voir dire testimony. We agree with the State that Defendant failed to preserve this issue for appeal with a timely objection. However, Defendant has requested this Court to review the issue under plain error analysis.
"In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." N.C.R. App. P. 10(a)(1) (2011). This Court has consistently interpreted former Rule 10(b)(1) of our Rules of Appellate Procedure (now Rule 10(a)(1)) "to provide that a trial court's evidentiary ruling on a pretrial motion is not sufficient to preserve the issue of admissibility for appeal unless a defendant renews the objection during trial." State v. Oglesby, 361 N.C. 550, 554, 648 S.E.2d 819, 821 (2007) (citations omitted).
A pretrial motion to suppress is a type of motion in limine, and is not sufficient to preserve for appeal the question of the admissibility of a witness' statement if the appealing party did not object at the time the statement was offered into evidence. State v. Conaway, 339 N.C. 487, 521, 453 S.E.2d 824, 845 (1995) ("A motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial." (citations omitted)). Furthermore, "[f]or purposes of appeal preservation, objections to testimony must be contemporaneous with the time such testimony is offered into evidence." State v. Thibodeaux, 352 N.C. 570, 581-82, 532 S.E.2d 797, 806 (2000) (concluding counsel's objections to what he anticipated a witness would say were "tantamount to motions in limine" and did not preserve the issue for appeal), cert, denied, 531 U.S. 1155, 148 L. Ed. 2d 976 (2001).
In the present case, Defendant made a motion in limine to suppress the entirety of Captain Denny's testimony, and the motion was denied. During trial, Defendant renewed this motion at the time Captain Denny took the stand, which was also denied. By his testimony, Captain Denny identified the surveillance photographs and stated that the person in the photographs was Defendant. Defendant did not specifically object to the introduction of the photographs into evidence, and did not object during Captain Denny's testimony. Having failed to object specifically to Captain Denny's testimony at the time the evidence was introduced into the record, our review of the trial court's alleged error is limited to a plain error review. N.C.R. App. P. 10(a)(4) (2011); State v. Bagley, 321 N.C. 201, 212, 362 S.E.2d 244, 250 (1987).
Under a plain error review, Defendant must meet a heightened standard of review such that, to receive a new trial, Defendant must establish that "the error was so fundamental that, absent the error, the jury probably would have reached a different result." State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002) (citation omitted).
A review of the record reveals that during jury deliberations, the jury requested "to have the defendant stand up before us for a better identity." The trial court accommodated the request, allowed the jury to return to the courtroom, and asked Defendant to walk to the jury box and stand before the jury. After approximately eight or nine seconds, a couple of jurors asked Defendant to turn sideways. Defendant did so, and remained standing for approximately five more seconds before returning to his seat. After resuming deliberations, the jury requested the photographs from the surveillance video be sent to the jury room, which the trial court did. The jury then returned a unanimous verdict finding Defendant guilty of both charges.
Given the jury's request to view Defendant in person and subsequent review of the photographs from the surveillance video, we cannot conclude that they relied solely on Captain Denny's testimony in reaching their verdict. Nor can we conclude that absent Captain Denny's testimony it is probable the jury would have reached a different conclusion. Thus, without determining whether the trial court erred in allowing Captain Denny to testify, we conclude that permitting his testimony did not rise to the level of plain error. Defendant's argument is overruled.
C. Denial of Defendant's Motion to Dismiss
Defendant also argues that the trial court erred in denying Defendant's Motion to Dismiss at the close of all the evidence. Specifically, Defendant contends that the State failed to present substantial evidence that Defendant was the perpetrator of the crimes that occurred at Millennium. We disagree.
When reviewing a motion to dismiss in a criminal trial, this Court must consider "whether there is substantial evidence (1) of each essential element of the offense charged . . . and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied." State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (citation omitted). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Denny, 361 N.C. 662, 664-65, 652 S.E.2d 212, 213 (2007) (citation and quotation marks omitted). Additionally, the evidence must be viewed "in the light most favorable to the State, giving the State the benefit of all reasonable inferences." Scott, 356 N.C. at 596, 573 S.E.2d at 869 (citation omitted).
The State offered the testimony of Detective Blakely, who identified Defendant in the courtroom, as well as evidence identifying Defendant's F-150 pickup truck. Knowles testified during trial to the distinctive characteristics of the truck in the video, its stripes, and chrome trim, and what appeared to be a custom grille. The State also offered the testimony of Captain Denny, in which he identified Defendant as the individual depicted in the surveillance video. We conclude this evidence, when viewed in the light most favorable to the State, is substantial evidence of each essential element of the charges against Defendant and that Defendant was the perpetrator of the offenses. Thus, the Motion to Dismiss was properly denied.
IV. Conclusion
Under a plain error analysis, we conclude the trial court did not err in denying Defendant's Motion to Suppress Captain Denny's testimony. We further conclude the State presented substantial evidence of Defendant's guilt and the trial court properly denied the Motion to Dismiss. Accordingly, we find
No error.
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).