Opinion
No. COA02-1135
Filed 1 July 2003 This case not for publication
Appeal by defendant from judgment entered 2 August 2002 by Judge F. Donald Bridges in Gaston County Superior Court. Heard in the Court of Appeals 21 May 2003.
Attorney General Roy Cooper, by Assistant Attorney General David N. Kirkman, for the State. Marjorie S. Canaday for defendant-appellant.
Gaston County Nos. 01 CRS 55426, 01 CRS 55428, 01 CRS 55429.
Jerry Woods ("defendant") appeals his convictions of possession of cocaine, possession of drug paraphernalia, and robbery with a dangerous weapon. For the reasons discussed herein, we find no error by the trial court.
The State presented evidence at trial tending to show the following: On 26 April 2001, Lester Hawes ("Hawes"), an employee at the Bi-Lo grocery store, observed defendant enter the store and place approximately six to eight packs of cigarettes into a shopping basket. Hawes further observed defendant approach the cash register, and fail to give Kay Williams ("Williams"), the cashier, several packs of cigarettes defendant originally placed in his basket upon entering the store. Hawes approached defendant and questioned him about additional packs of cigarettes. In response to Hawes' questioning, defendant removed one pack of cigarettes from his pocket, and offered to pay for it. However, Hawes refused payment and demanded that defendant return merchandise, which he "felt [defendant] had."
Upon hearing Hawes' demand, defendant refused to return any merchandise, gathered his purchased items, and proceeded to leave the store. Hawes, via an intercom, ordered additional store personnel to respond to the front of the store. Hawes also informed defendant that he would have to wait for the police. According to Hawes, he "put [his] hand out and held [defendant] back" in order to keep defendant from exiting the store. In response to Hawes' actions, defendant said, "It's on now," displayed a pocketknife, and stabbed at Hawes several times. Hawes blocked defendant's stabbing motions with a "bag rack." As defendant stabbed at Hawes, he moved in the direction of the store's front door and exited the store. Defendant then attempted to mount his motorized bicycle ("moped"), which was located in the store's parking lot.
Rodney McElhaney ("McElhaney"), responding to Hawes' intercom request for assistance, witnessed the above described altercation between defendant and Hawes. As a result, McElhaney retrieved a pipe from the store office, followed defendant outside, and attempted to place the pipe through the wheel of defendant's moped. Subsequently, Hawes removed the pipe from McElhaney and defendant proceeded to mount his moped. In an attempt to stop defendant from leaving the parking lot, McElhaney recovered his automobile and collided with defendant's moped.
Following the collision, Officer Steve Moore ("Officer Moore") arrived at the store. Officer Moore searched defendant and found two pocket knives, tobacco products, cigarette lighters, and candles. Several of the items recovered from defendant had not been purchased by him. Defendant was transported to the hospital by an emergency response unit, treated for his injuries, and later arrested.
At trial, defendant pled guilty to possession of cocaine and drug paraphernalia. A jury found defendant guilty of robbery with a dangerous weapon. Defendant's convictions were consolidated and he was sentence to a minimum of eighty months and a maximum of 105 months imprisonment. Defendant appeals.
Defendant presents two arguments on appeal, arguing that the trial court erred in (1) admitting testimony from Officer Moore regarding statements made by Hawes; and (2) failing to include in the record the response to a jury request to view evidence. For the reasons stated herein, we find no error.
In his first assignment of error, defendant argues that the trial court committed prejudicial error by allowing hearsay testimony from Officer Moore. Specifically, defendant objects to the following testimony given by Officer Moore on direct examination:
Q: Did you write a report indicating what Mr. Hawes had told you?
A: Yes, sir.
Q: What did Mr. Hawes tell you?
A: Mr. Hawes said he observed a black male come into the store. He saw him pick up several items and go to the register. He said while he was picking up the items he observed the black male stuff several items inside of his clothing. He said he confronted the black male about the items; and when he did, the black male produced a pocketknife and told him if he tried to stop him he would cut him. He said then the black male went outside and got onto a moped; and while he was trying to leave, he was struck — either — the pickup truck and him [ran] into each other.
We note that defendant failed to object to Officer Moore's testimony at trial, therefore, any error must be reviewed under the plain error rule. See State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993). In applying the plain error rule, the defendant must show that there was error and absent that error, the jury probably would have reached a different conclusion. Id.
Assuming arguendo that the trial court erred in admitting testimony from Officer Moore regarding Hawes' statement, the testimony was not prejudicial. The record reveals that Hawes' testimony identified defendant as the individual who (1) entered the store, (2) failed to pay for several items, (3) was confronted about possible stolen merchandise, and (4) attempted to stab Hawes while leaving the store. In addition to Hawes' testimony, both McElhaney and Williams testified that defendant was in the store, was confronted by Hawes regarding stolen merchandise, and attempted to stab Hawes. Given the testimony of Hawes, McElhaney and Williams, defendant fails to show that absent Officer Moore's testimony, the jury would have reached a different verdict. See State v. Holbrook, 137 N.C. App. 766, 769, 529 S.E.2d 510, 511 (2000) (holding that under the plain error rule it must be obvious and apparent that the error affected the defendant's substantial rights). Accordingly, this assignment of error is overruled.
Defendant's final assignment of error concerns a request by the jury to examine materials admitted into evidence. Specifically, defendant contends that the trial court erred by failing to include in the record the court's response to the following jury request: "Need to see 2 knives." Defendant argues that by failing to record the trial court's response to the above jury request, he has been deprived of a "meaningful appellate review." We find no merit in this assignment of error.
Rule 9(a) of the Rules of Appellate Procedure provides that appellate review is limited to the record on appeal. N.C.R. App. P. 9(a) (2002). "It is the [defendant's] responsibility to make sure that the record on appeal is complete and in proper form." Miller v. Miller, 92 N.C. App. 351, 353, 374 S.E.2d 467, 468 (1988); see also Fortis Corp. v. Northeast Forest Products, 68 N.C. App. 752, 754, 315 S.E.2d 537, 538 (1984). This Court cannot assume or speculate that there was prejudicial error, when none appears on the record before it. See N.C.R. App. P. 9(a); see also State v. Moore, 75 N.C. App. 543, 548, 331 S.E.2d 251, 254, disc. review denied, 315 N.C. 188, 337 S.E.2d 862-63 (1985). Here, this Court is precluded from the possibility of effectively reviewing this assignment of error, because it requires speculation that the trial court committed prejudicial error. The record is devoid of the trial court's response to the jury request and our review is limited to the record on appeal. Therefore, defendant's final assignment of error is overruled. However, we recognize that defendant complains that the trial court's alleged error denies him a "meaningful appellate review." We note that defendant is not precluded from filing a motion for appropriate relief in order to ascertain the court's response to the jury request. See N.C. Gen. Stat. § 15A-1411 (2001). A motion for appropriate relief is a post-verdict motion (or a post-sentencing motion where there is no verdict) commonly used to correct errors occurring prior to, during, and after a criminal trial. Id.; see also State v. Handy, 326 N.C. 532, 535, 391 S.E.2d 159, 160-61 (1990).
For the reasons contained herein, we hold that the trial court did not err.
No error.
Judges HUDSON and STEELMAN concur.
Report per Rule 30(e).