State v. Wynn ( 2014 )


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  • An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-280
    NORTH CAROLINA COURT OF APPEALS
    Filed: 31 December 2014
    STATE OF NORTH CAROLINA
    v.                                      Beaufort County
    No. 08CRS050412
    ASHLEY HOPE WYNN
    Appeal by Defendant from judgments entered 1 May 2013 by
    Judge W. Russell Duke, Jr., in Beaufort County Superior Court.
    Heard in the Court of Appeals 27 August 2014.
    Attorney General Roy A. Cooper, III, by Assistant Attorney
    General Brenda Eaddy, for the State.
    McCotter Ashton, PA, by Rudolph A. Ashton, III, for the
    Defendant.
    DILLON, Judge.
    Ashley     Hope    Wynn    (“Defendant”)      appeals     from    judgments
    entered upon a jury verdict finding her guilty of felonious
    breaking and entering; felonious larceny; and obtaining property
    by false pretenses.
    I. Background
    -2-
    On or about 21 September 2007, a contractor reported that
    certain tools, including a nail gun, had been stolen from the
    inside of a house that he was constructing.                      Three days later,
    two men and a woman took the nail gun to the home of James
    Ratcliff and sold it to Mr. Ratcliff for $30.00.                        They gave him
    a receipt signed by the woman, using the name “Adrian Phelps”.
    The   State     came    to   suspect      Defendant,     Jonathan       Cox,   and
    Ralph Miles as the three individuals who sold the nail gun to
    Mr. Ratcliff and charged them with various crimes.                            Mr. Miles
    pleaded      guilty    to     certain    charges       and   received     a   mitigated
    sentence.      However, Defendant and Mr. Cox did not plead guilty
    to any charges and were brought to trial in April 2013 – over
    five   and     one-half       years     after    the    incident   –     being      tried
    together.
    At    trial,    Mr.     Ratcliff     testified        concerning       the   sale,
    including that he knew the co-defendant, Mr. Cox, and that Mr.
    Cox had come to his home with a man and woman whom he did not
    know to sell him the nail gun.
    Mr.    Miles,    who     had     already    pleaded     guilty     to    certain
    charges, testified that he, Defendant, and the co-defendant, Mr.
    Cox, sold the stolen nail gun to Mr. Ratcliff.
    -3-
    Defendant testified in her own defense, denying that she
    had any involvement in the incident.                         Further, she testified
    that   she    had    never       met     Mr.      Ratcliff   or     ever      been    to    Mr.
    Ratcliff’s home.
    The jury found Defendant guilty of felonious breaking and
    entering (the house under construction); felonious larceny (of
    the nail gun); and obtaining property (money from Mr. Ratcliff)
    by false pretenses.                  The trial court         entered three separate
    judgments, sentencing Defendant to eight to ten months for each
    offense,      ordering          that        the     sentences     run      consecutively.
    Defendant appeals from those judgments.
    II. Analysis
    On appeal, Defendant argues that the trial court erred in
    admitting     into       evidence       a    certain     document      (the    “Document”)
    because      it    was    not        properly       authenticated.         This      Document
    purports to be Defendant’s statement made to an investigating
    officer in which she admits being at Mr. Ratcliff’s home on the
    day in question with Mr. Miles and Mr. Cox, thus contradicting a
    key part of her trial testimony that she had never been to Mr.
    Ratcliff’s home.              The Document contained two signatures, one
    that   purported         to     be    that     of    Defendant    acknowledging            that
    statement     as    hers      and     one    that     purported   to    be     that    of    an
    -4-
    investigating officer acknowledging that he witnessed Defendant
    sign the statement.          We agree that it was error to admit the
    Document in its entirety.            Even assuming, without deciding, that
    it   was    proper     to   allow    the     jury      to    consider      Defendant’s
    purported      signature     to     authenticate        the       Document,       it   was
    improper to allow the jury to consider the purported signature
    of   the   investigating      officer       to    authenticate           the   Document.
    Furthermore,      we    believe      that       this   error       was    prejudicial.
    Accordingly,     we    reverse      the   judgments         against      Defendant     and
    order a new trial.
    1. Admission of the Document
    During its case in chief, the State did not attempt to
    offer the Document into evidence.                   Defendant testified in her
    own defense, stating that she was not involved in the crimes;
    that she had never seen Mr. Ratcliff; and that she had never
    been to Mr. Ratcliff’s home.                She also provided a handwriting
    sample, which was admitted into evidence, in an effort to show
    that it was not her handwriting on the receipt which was signed
    by the seller as “Adrian Phelps” and given to Mr. Ratcliff when
    he bought the nail gun.
    During    cross-examination,          counsel         for   the     State    handed
    Defendant the Document in an attempt to authenticate it.                               The
    -5-
    State referred to the Document as a voluntary statement she made
    to “Investigator Gaskins,” purportedly an officer investigating
    the crime.        Defendant was equivocal in her testimony regarding
    her purported signature on the Document.                          She testified that the
    signature looked “similar” to her handwriting, and that it was
    possible that she signed it; however, she stated that she had no
    memory     of    signing       the     statement            or     signing        any    witness
    statement.       After counsel for the State asked her to read the
    Document to herself, she testified that she remembered speaking
    with an investigating officer, but that the statement in the
    Document was not consistent with what she told the officer; that
    she had no recollection of the name of the officer with whom she
    spoke;     and    that     she     did      not    remember             signing     a    witness
    statement.
    During the State’s rebuttal, the State moved to introduce
    the   entire      Document        into      evidence.                  Defendant’s       counsel
    objected,       arguing    that      the    Document             had    not   been      properly
    authenticated.           The   trial       court       overruled        the   objection      and
    admitted    the    Document       into      evidence.              On    appeal,        Defendant
    argues that the Document was erroneously admitted, contending it
    was not properly authenticated.
    An   out-of-court          statement        of    a    defendant        is    admissible
    -6-
    under the exception to the hearsay rule for statements by a
    party-opponent under Rule 801(d)(A) of the North Carolina Rules
    of Evidence.        State v. Gregory, 
    340 N.C. 365
    , 401, 
    459 S.E.2d 638
    , 658 (1995).        However, such a statement is not admissible
    unless it is properly authenticated.                 Rule 901 of our Rules of
    Evidence provides that “[t]he requirement of authentication . .
    . is satisfied by evidence sufficient to support a finding that
    the matter in question is what its proponent claims.”                     N.C. Gen.
    Stat.   §   8C-1,    Rule    901(a)    (2013).        Rule     902   provides   that
    certain types of documents are deemed self-authenticating, not
    requiring    extrinsic      evidence    to     be    considered      authenticated.
    N.C. Gen. Stat. § 8C-1, Rule 902 (2013).
    In the context of a criminal trial, our Supreme Court has
    further limited the manner in which a document purporting to be
    the “confession” of the defendant may be authenticated.                         State
    v.   Walker,   
    269 N.C. 135
    ,    139,     
    152 S.E.2d 133
    ,    137    (1967)
    (holding that “[i]f [a] transcribed statement is not read by or
    to [the] accused, and is not signed by [the] accused, or in some
    other   manner      approved,   or    its     correctness      acknowledged,     the
    instrument is not legally, or per se, the confession of [the]
    accused; and it is not admissible in evidence as the written
    confession     of     [the]     accused.”).            However,        these    extra
    -7-
    limitations         do    not    apply    where      the    statement      by    a    criminal
    defendant sought to be introduced is not a “confession.”                                 State
    v. Moody, 
    345 N.C. 563
    , 579, 
    481 S.E.2d 629
    , 637 (1997).
    Here, we do not believe that the Document is a “confession”
    of Defendant.            Specifically, assuming that the statement in the
    Document is hers, Defendant does not confess to participating in
    the crime.          Rather, she provides an alternate defense, namely
    that       though   she    was    at     Mr.   Ratcliff’s       house   on      the    day   in
    question, she did not participate in the nail gun transaction
    but rather was there to use Mr. Ratcliff’s bathroom.                              Therefore,
    the    statement         would    be     admissible        if   properly     authenticated
    under the Rules of Evidence, not subject to the restrictions
    laid down in Walker.
    In this case, the record suggests that the State attempted
    to authenticate the Document in a number of ways.                                The record
    indicates that the State attempted to authenticate the Document
    by asking Defendant if she was familiar with the statement or if
    she signed it, arguably pursuant to N.C. Gen. Stat. § 8C-1, Rule
    901(b)(1) (2013) (allowing authentication through the testimony
    of     a    witness      with     knowledge).          However,      the        record    also
    demonstrates that Defendant denied that she was familiar with
    the Document or that she remembered signing the Document.
    -8-
    The State then attempted to authenticate the Document by
    questioning Defendant whether the signature on the Document was
    similar    to    hers,     again   arguably         under     Rule    901(b)(1).          The
    record also suggests that the State may have authenticated the
    Document by allowing the jury to compare Defendant’s purported
    signature on the Document with the handwriting sample Defendant
    produced    during        her    trial       testimony,       arguably       under    Rule
    901(b)(3)       (allowing       authentication          or    identification         of    a
    signature       through    “[c]omparison           by   the   trier    of    fact    or    by
    expert witness with specimens which have been authenticated”).
    Notwithstanding,           the     record         shows        that    the     State
    represented the Document to be a statement made by Defendant to
    a law enforcement officer named “Investigator Gaskins” who was
    investigating the crime.               Investigator Gaskins was never called
    as a witness at trial.               In other words, the jury was led to
    believe that the Document was a statement made to Investigator
    Gaskins;    and,    accordingly,         the    State     implicitly        attempted      to
    authenticate       the    Document      by     Investigator      Gaskins’      purported
    signature acknowledging that he witnessed Defendant’s statement
    and   signature.          Specifically,        during     the   State’s      attempt      to
    authenticate the document on its cross-examination of Defendant,
    the following exchange took place:
    -9-
    Q:   Did you ever talk               to Investigator
    Gaskins of the Sheriff’s             Department about
    this case?
    A:        I don’t remember.
    [District   Attorney             hands   Document   to
    Defendant.]
    Q:   I’ll   show  you  . .   .  a   written
    statement,    one   that  says    “Criminal
    Investigation Division Voluntary Statement
    Form”. . . .
    *         *     *
    Q:   You    don’t   remember    talking             to
    Investigator Gaskins in January of 2008?
    A:        No, sir. . . .
    *         *     *
    Q:   So   this  statement   to  Investigator
    Gaskins . . . you’re saying you don’t
    remember making this statement.
    A:        No, sir.
    (Emphasis added.)
    Therefore, assuming, arguendo, that it was appropriate to
    authenticate the Document in the other ways identified above, we
    believe it was error for the Document to be authenticated by the
    admission        of       the    purported     signature/acknowledgment   of
    Investigator Gaskins.            The State did not offer any evidence to
    authenticate Investigator Gaskins’ signature, nor did the State
    call him to testify.             His signature was not notarized nor is
    -10-
    there any indication that Investigator Gaskins was signing as a
    notary or that his signature otherwise served as a proper means
    to deem the Document as self-authenticated under Rule 902.1
    The difficulty in this case is that Defendant’s counsel was
    not allowed the opportunity to elaborate on the basis of the
    objection, though, the record reflects that Defendant’s counsel
    attempted to do so:
    [PROSECUTOR]: Your Honor, for rebuttal, I
    would move to introduce [the Document into
    evidence].
    THE COURT:       It’s admitted.
    *    *       *
    [DEFENSE ATTORNEY]: Your      Honor,   I   would
    object to that.
    THE COURT:       All right.
    [DEFENSE ATTORNEY]: It was not identified –
    THE COURT:    Don’t argue before the jury.
    The objection is noted and the objection is
    overruled.
    However, in her brief to this Court, Defendant argues that the
    Document was not properly authenticated, in part, because the
    1
    Whether the purported signature of the officer, if properly
    authenticated, would have been inadmissible based on some other
    grounds, e.g., hearsay or the right to confrontation, is not
    before us.   Therefore, our holding should not be construed to
    support the proposition that the signature would have been
    admissible merely based on a conclusion that it had been
    properly authenticated.
    -11-
    State   did    not       call    the     officer     who    purportedly      wrote       down
    Defendant’s statement and because the Document was not properly
    self-authenticated.
    2. Prejudicial Effect
    Having concluded that the court erred, we must determine if
    the error is reversible.               We believe it is.
    Because         we    believe        Defendant     properly        objected    to    its
    admission at trial, the error of admitting the entire Document
    is reversible if it was prejudicial.                        N.C. Gen. Stat. § 15A-
    1443(a) (2013).               The test for prejudicial             error is       “whether
    there   [exists]          a    reasonable       possibility       that     the    evidence
    complained of contributed to the conviction[.]”                          State v. Milby,
    
    302 N.C. 137
    , 142, 
    273 S.E.2d 716
    , 720 (1981) (emphasis added).
    In this case, Defendant’s entire defense was based on her
    contention that she was not “the woman” at Mr. Ratcliff’s home
    with Mr. Miles and the co-defendant, Mr. Cox, on the day in
    question.          Defendant emphatically testified that she was not
    involved      in    the       incident    and   that       she   had    never     seen   Mr.
    Ratcliff or been to his home.                   The Document, however, contains
    Defendant’s purported statement in which she admits being “the
    woman” at Mr. Ratcliff’s home with Mr. Miles and Mr. Cox on the
    day in question.
    -12-
    We believe that        it is      reasonably possible        that    a juror
    would not have been convinced            of Defendant’s guilt           beyond a
    reasonable doubt based on the other evidence presented by the
    State, apart from the Document.                 The State’s     other    evidence
    essentially consisted of the testimony of Mr. Miles and the in-
    court identification by Mr. Ratcliff.
    Regarding Mr. Miles’ testimony, while he was unequivocal
    regarding Defendant’s involvement, he testified that Defendant
    was his former girlfriend and that he agreed to testify against
    her in exchange for a reduced sentence.                  Accordingly, it is
    reasonably    possible     that   a     juror    would   have       afforded     his
    testimony very little weight.
    Regarding Mr. Ratcliff’s testimony, though he did identify
    Defendant    as   “the   woman”   who    sold    him   the   nail    gun,   it    is
    reasonably possible that a juror was not convinced that his in-
    court identification was sufficiently reliable.                  Most notably,
    he admitted that the co-defendant, Mr. Cox, was a long-time
    acquaintance of his and that – somewhat incredibly –                    he had a
    conversation with Mr. Cox just prior to taking the stand in
    which Mr. Cox indicated that Defendant was “the woman” who sold
    him the nail gun, signing the receipt given to him as “Adrian
    Phelps”:
    -13-
    Q:   Well,   how  [d]o  you   know  whether
    [Defendant’s] name is Ashley Wynn or Adrian
    Phelps?
    [MR. RATCLIFF:]     Because I just talked to
    [co-defendant] Jonathan [Cox] today and he
    told me what her name was.
    Further, Mr. Ratcliff admitted that the only time he had ever
    seen “the woman” – prior to his identification of Defendant at
    trial – was over five and one-half years earlier, on the day he
    bought the nail gun.            When asked if Defendant was “the woman”
    who signed the receipt, his response was rather equivocal:                          “I
    think so.”       Finally, Mr. Ratcliff acknowledged his memory of the
    day    in     question    had   faded     somewhat;    for      example,    when    he
    admitted misremembering the exact amount he paid for the nail
    gun, he stated that the sale had happened “long ago” and that he
    “can’t remember some of it.”
    The     trial     court,    obviously        adressing     Mr.      Ratcliff’s
    equivocal      identification      of    Defendant,    directly     asked     him    to
    clarify       his      testimony       concerning     his     identification        of
    Defendant,       at    which    time    Mr.   Ratcliff      responded   with       more
    certainty.       However, despite his increased certainty in response
    to the trial court’s questioning, it is reasonably possible that
    a     juror     still     could        have   found      that     Mr.   Ratcliff’s
    identification of Defendant was not sufficiently reliable, based
    -14-
    on the manner in which the trial court questioned him and his
    response.    Specifically, the trial court commanded Defendant and
    Mr. Cox to stand together, whereupon the trial court asked Mr.
    Ratcliff    three   times   in   succession   if   he   was   certain   that
    Defendant and Mr. Cox, together, were the “people” who sold him
    the gun, to which he responded in the affirmative each time,
    however, with his last response being, “Yes, sir.               I’ve known
    [the co-defendant] Jonathan [Cox] forever.”2
    We conclude that it is reasonably possible that a juror
    became convinced of Defendant’s guilt beyond a reasonable doubt
    by giving substantial weight to the Document.           We recognize that
    any such juror may have reached his conclusion regarding the
    Document’s authenticity based on any one of the number of ways
    that the State sought to authenticate the Document.            However, we
    also recognize that it is reasonably possible that at least one
    of these jurors found that the Document as a whole was only
    2
    While a trial court is permitted to question a witness, N.C.
    Gen. Stat. § 8C-1, Rule 614(b)(2013), our Supreme Court has held
    that “[s]uch questioning must be conducted in such a manner as
    to avoid prejudice to either party.” State v. Whittington, 
    318 N.C. 114
    , 125, 
    347 S.E.2d 403
    , 409 (1986) (emphasis added). We
    do not reach the issue of whether the trial court conducted its
    questioning in a manner that prejudiced Defendant. However, in
    this situation where Mr. Ratcliff had been unequivocal about
    knowing Mr. Cox, the better practice would have been for the
    trial court to ask Mr. Ratcliff about the certainty of his
    identification of Defendant separately.
    -15-
    properly authenticated by Investigator Gaskins’ acknowledgement,
    or   that   said    juror     afforded    the   Document     substantial   weight
    based on Investigator Gaskins’ acknowledgement, which itself was
    not properly authenticated.              Therefore, we must conclude that
    the error was prejudicial to Defendant and that she is entitled
    to a new trial.
    III. Defendant’s Motion to Dismiss
    Though we conclude that Defendant is entitled to a new
    trial   based      on   the   improper      admission   of   the   Document,   we
    address another argument raised by Defendant in this appeal, as
    it may come up in a new trial.                  In this argument, Defendant
    contends that the trial court erred in denying her motion to
    dismiss the charge of breaking and entering into the house under
    construction due to insufficient evidence.
    Regarding this charge, the State relied on the testimonies
    of the owner of the contracting corporation constructing the
    house   and   an    employee     of   the    corporation.      These   witnesses
    essentially     testified      that   the    corporation     was   occupying   the
    house for the purposes of completing construction and that the
    house had been broken into and tools had been stolen.                  Defendant
    contends that there was no evidence as to the owner of the house
    and that the State was required to identify and call the owner
    -16-
    of   the   house   to    testify   that    (s)he     had   not   given     Defendant
    permission to enter the house.              We believe the decision by our
    Supreme Court in State v. Sellers, 
    273 N.C. 641
    , 
    161 S.E.2d 15
    (1968), is instructive.            In that case, the Supreme Court held
    that an indictment for breaking and entering is sufficient where
    it alleges the identity of the entity who owns or is occupying
    the building.          
    Id. at 650,
    161 S.E.2d at 21-22.               Here, we note
    that the indictment charging Defendant states that the house was
    “occupied” by the contractor.              We believe that testimony from
    the contractor who was occupying the house was sufficient to
    sustain     Defendant’s     conviction.         We   do    not   believe     that   a
    conviction for breaking and entering fails because the State
    failed     to   call    every   person   who    might     have   a    possessory    or
    ownership interest in the property to testify.                       Therefore, this
    argument is overruled.
    IV. Conclusion
    Based on the foregoing, we reverse the judgments against
    Defendant and hold that she is entitled to a new trial.
    NEW TRIAL.
    Judge HUNTER, Robert C. and Judge DAVIS concur.
    Report per Rule 30(e).