State v. Ross , 249 N.C. App. 672 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-254
Filed: 4 October 2016
Cumberland County, No. 14CRS063901, 14CRS063902
STATE OF NORTH CAROLINA
v.
RODNEY JOHNATHAN ROSS, Defendant.
Appeal by Defendant from judgment entered 16 October 2015 by Judge Ola M.
Lewis in Cumberland County Superior Court. Heard in the Court of Appeals 23
August 2016.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Brian D.
Rabinovitz, for the State.
Winifred H. Dillon for the Defendant.
DILLON, Judge.
Rodney Johnathan Ross (“Defendant”) appeals from jury verdicts finding him
guilty of several felonies including safecracking in conjunction with a breaking and
entering that occurred at a fast-food restaurant in Fayetteville. For the foregoing
reasons, we vacate the conviction for safecracking; we find no error with respect to
the other convictions; and we remand the matter for further proceedings not
inconsistent with this opinion.
I. Background
STATE V. ROSS
Opinion of the Court
At trial, the State’s evidence tended to show as follows:
On the morning of 20 August 2014, an employee arrived at the restaurant and
noticed that an air conditioning unit had been removed from the rear of the building,
leaving a hole in the wall. The store’s surveillance system captured a video of the
break-in which showed a individual pulling out the air conditioning unit and entering
the restaurant. The intruder attempted to access the safe using paper that appeared
to have a safe code on it. After repeatedly attempting to open the safe, the intruder
returned to the opening in the rear wall of the building and appeared to converse with
someone outside. The intruder then took several boxes of hamburger meat from a
cooler and exited the premises.
At least two employees and the store owner testified that they believed the
intruder in the video to be Defendant. The State also presented evidence that
Defendant’s girlfriend (“Ms. Jackson”) had been employed at the restaurant as a
manager; that as a manager, Ms. Jackson had access to the restaurant’s safe
combination; that Ms. Jackson was fired from her position as manager approximately
two days before the break-in; and that coordinates from Ms. Jackson’s GPS tracking
bracelet (worn as a condition of her probation for an unrelated incident) showed that
she was in the vicinity of the restaurant in the early morning hours when the break-
in occurred.
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STATE V. ROSS
Opinion of the Court
Based on this and other evidence presented by the State, a jury found
Defendant guilty of a number of felonies, including safecracking. Following the jury’s
verdicts, Defendant pleaded guilty to the offense of attaining habitual felon status.
The trial court consolidated the charges for judgment and sentenced Defendant to an
active prison term.
Defendant timely appealed; however, his notice of appeal failed to designate
the court to which his appeal was being taken as required by Rule 4 of the North
Carolina Rules of Appellate Procedure. Defendant has filed a petition for a writ of
certiorari requesting review of the judgment of the trial court. In our discretion, we
allow the petition and consider the merits of Defendant’s appeal.
II. Analysis
On appeal, Defendant argues that (1) the trial court committed plain error by
admitting the surveillance video into evidence; and (2) the trial court erred in its jury
instructions regarding the safecracking charge. We address each argument in turn.
A. Videotape Evidence
In his first argument, Defendant contends that the store manager’s testimony
was insufficient to authenticate the surveillance video because the testimony failed
to establish the reliability of the surveillance system. Because defense counsel did
not object to the admission of the video at trial, we review this issue for plain error.
See State v. Black, 308 N.C. 736, 739-41, 303 S.E.2d 804, 806-07 (1983).
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STATE V. ROSS
Opinion of the Court
We hold that the surveillance video was properly authenticated based on
decisions from our Supreme Court, including its recent decision in State v. Snead.
___ N.C. ___, 783 S.E.2d 733 (2016).
In Snead, our Supreme Court held that the recordings from a store’s automatic
surveillance camera “can be authenticated as the accurate product of an automated
process” under North Carolina Rule of Evidence 901(b)(9). Snead, ___ N.C. at ___,
783 S.E.2d at 736 (internal quotation marks omitted). The Supreme Court
determined that a detailed chain of custody for the video need not be shown unless
the video is “not readily identifiable or is susceptible to alteration and there is reason
to believe that it may have been altered.” Id. at ___, 783 S.E.2d at 737 (internal
quotation marks omitted). Rather, the proponent must simply introduce “[e]vidence
that the recording process is reliable and that the video introduced at trial is the same
video that was produced by the recording process.” Id. at ___, 783 S.E.2d at 736. It
is generally sufficient for the party offering the video to “satisfy the trial court that
the item is what it purports to be and has not been altered.” Id. at ___, 783 S.E.2d at
737.
The Snead Court concluded that the testimony of a retailer’s loss prevention
manager was sufficient to authenticate the store’s surveillance video, although the
manager was not otherwise present at the time of the theft, where the manager
testified that (1) the recording equipment was “industry standard,” (2) it was in
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STATE V. ROSS
Opinion of the Court
proper working order on the date in question, (3) the system contained safeguards to
prevent tampering, such as a time stamp and (4) the video introduced at trial was the
same video he had watched on the digital video recorder. Id.
In the present case, the store manager testified that: (1) the surveillance
system was comprised of sixteen night vision cameras, (2) he knew the cameras were
working properly on the date in question because the time and date stamps were
accurate, and (3) a security company manages the system and routinely checks the
network to make sure the cameras remain online. The store manager also testified
that the video being offered into evidence at trial was the same video he viewed
immediately following the incident and that it had not been edited or altered in any
way. Guided by our Snead and other decisions from our Supreme Court cited therein,
we hold that the store manager’s testimony is sufficient to lay a foundation for the
admission of the surveillance video into evidence under Rule 901.
Even assuming, arguendo, that the store manager’s testimony was not
sufficient to lay a proper foundation, we hold that any error of the video’s admission
into evidence did not rise to the level of plain error in this particular case.
Specifically, Defendant has not made any showing that the State would not have been
able to lay a proper foundation had Defendant lodged an objection or that the video
was somehow flawed. See State v. Cummings, 352 N.C. 600, 620-21, 536 S.E.2d 36,
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STATE V. ROSS
Opinion of the Court
51-52 (2000); State v. Jones, 176 N.C. App. 678, 682-84, 627 S.E.2d 265, 268-69 (2006).
Accordingly, this argument is overruled.
B. Jury Instruction on Safecracking Charge
In his second argument, Defendant contends that the trial court erred by
giving jury instructions on the safecracking charge which varied materially from the
allegations contained in the indictment. See State v. Williams, 318 N.C. 624, 631,
350 S.E.2d 353, 357 (1986) (stating that “the failure of the allegations [in the
indictment] to conform to the equivalent material aspects of the jury charge
represents a fatal variance, and renders the indictment insufficient to support the
resulting conviction”). Specifically, Defendant points out that the indictment charged
him with committing the offense “by means of [] a fraudulently acquired combination
to the safe,” whereas the trial court instructed the jury that it could convict if it
determined that Defendant obtained the safe combination “by surreptitious means.”
Our review of this issue on appeal is for plain error, as Defendant failed to
object to the jury instruction at trial on the basis that it varied materially from the
indictment.1 See State v. Francis, 341 N.C. 156, 159-62, 459 S.E.2d 269, 270-73
(1995); State v. Odom, 307 N.C. 655, 660-62, 300 S.E.2d 375, 378-79 (1983). To
demonstrate plain error, Defendant must not only show error, but also prejudice—
1 In his brief, Defendant acknowledges his failure to lodge a proper objection at trial to the
instruction but argues on appeal for plain error review.
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STATE V. ROSS
Opinion of the Court
that, but for the error, the jury likely would have reached a different result. State v.
Tucker, 317 N.C. 532, 539, 346 S.E.2d 417, 421 (1986).
One essential element of the crime of safecracking is the means by which the
defendant attempts to open a safe. In the present case, no evidence was presented
by the State from which the jury could have concluded that Defendant attempted to
open the safe by the means as alleged in the indictment (by means of a “fraudulently
acquired combination to the safe”). The State, however, did offer evidence from which
the jury could conclude that Defendant attempted to crack the safe by the means
contained in the jury instruction (by using a combination obtained “by surreptitious
means”). Accordingly, as more fully explained below, we reverse Defendant’s
safecracking conviction. See Williams, 318 N.C. at 631, 350 S.E.2d at 357 (holding
that a variance between the indictment and the jury instruction is fatal where the
variance concerns an offense element).
“It is a rule of universal observance in the administration of criminal law that
a defendant must be convicted, if convicted at all, of the particular offense charged in
the bill of indictment. State v. Barnett, ___ N.C. ___, ___, 782 S.E.2d 885, 888 (2016)
(internal quotation marks omitted). If the indictment’s allegations do not conform to
the “equivalent material aspects of the jury charge,” this discrepancy is considered a
fatal variance. Williams, 318 N.C. at 631, 350 S.E.2d at 357.
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STATE V. ROSS
Opinion of the Court
In the present case, Defendant was convicted of safecracking under N.C. Gen.
Stat. § 14-89.1 for attempting2 to open the restaurant safe. The elements of this crime
are set forth in the statute as follows:
(a) A person is guilty of safecracking if he unlawfully opens,
enters, or attempts to open or enter a safe or vault:
(1) By the use of explosives, drills, or tools; or
(2) Through the use of a stolen combination, key,
electronic device, or other fraudulently acquired
implement or means; or
(3) Through the use of a master key, duplicate key
or device made or obtained in an unauthorized
manner, stethoscope or other listening device,
electronic device used for unauthorized entry in a
safe or vault, or other surreptitious means; or
(4) By the use of any other safecracking implement
or means.
N.C. Gen. Stat. § 14-89.1(a)(1)-(4) (2013) (emphasis added). The means element
which must be alleged and proven by the State is outlined in subsections (1)-(4) of the
statute.
In the present case, the safecracking indictment alleged that Defendant
attempted to open the restaurant safe “by means of [] a fraudulently acquired
combination to the safe.” This allegation is sufficient on its face to support a
2 Our Supreme Court has held that N.C. Gen. Stat. § 14-89.1 makes “the completed act of
safecracking and the attempted safecracking offenses of equal dignity.” State v. Sanders, 280 N.C. 81,
88, 185 S.E.2d 158, 163 (1971).
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STATE V. ROSS
Opinion of the Court
conviction under subsection (2) of N.C. Gen. Stat. § 14-89.1, which proscribes
safecracking “[t]hrough the use of [some] fraudulently acquired implement or means.”
Id. § 14-89.1(a)(2).
The record shows, however, that the trial court instructed the jury that it could
convict Defendant if it determined that he attempted to open the restaurant safe
using a combination obtained “by surreptitious means,” as indicated in subsection (3)
of N.C. Gen. Stat. § 14-89.1. Id. § 14-89.1(a)(3).
The term “surreptitious” is defined in Black’s Law Dictionary as “unauthorized
and clandestine; stealthily and usu. fraudulently done.” BLACK’S LAW DICTIONARY
1458 (7th ed. 1999) (emphasis added). As indicated in this definition, the term
“surreptitious” undoubtedly includes fraudulent acts; however, it also encompasses
other conduct, such as an “unauthorized” act not involving fraud.
In the context of the present case, while the “surreptitious means” jury
instruction could include a finding that Defendant fraudulently obtained the
combination (as alleged in the indictment), the instruction also allows for a conviction
based on a finding that Defendant obtained the combination in an unauthorized, non-
fraudulent manner. Our Court has previously held that an error of this type is
harmless where essentially the same evidence is required to prove both the State’s
theory as contained in the indictment and the theory as contained in the erroneous
instruction. State v. Clinding, 92 N.C. App. 555, 562, 374 S.E.2d 891, 895 (1989).
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STATE V. ROSS
Opinion of the Court
However, here, we conclude that the variance is not harmless. The State offered no
evidence that Defendant “fraudulently obtained” the combination. Rather, the
evidence indicates that Defendant’s girlfriend, Ms. Jackson, was given the
combination when she worked as a manager of the restaurant but that she used the
combination in an unauthorized (surreptitious) manner when she provided the
combination to Defendant.
We note that the trial court recognized that the State’s evidence did not
support the crime as alleged in the indictment. The court initially instructed the jury
that it could convict Defendant if it found that he “fraudulently acquired” the
combination, as alleged in the indictment. However, after consulting with counsel,
the trial court modified the instruction, replacing the term “fraudulently” with
“surreptitious,” stating that the original instruction did not “fit[] the evidence as
presented in this case.”
In reaching our result, we are guided by decisions from our Supreme Court.
For instance, in Williams, our Supreme Court reversed the conviction of a defendant
for forcible rape under N.C. Gen. Stat. § 14-27.21. Williams, 318 N.C. at 632, 350
S.E.2d at 358. Under that statute, an individual is guilty of forcible rape if he
commits a rape and does one of three additional acts set forth in the statute. N.C.
Gen. Stat. § 14-27.21 (2013). In Williams, the defendant was charged with the first-
degree rape of his 12-year-old daughter in an indictment that alleged the rape was
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STATE V. ROSS
Opinion of the Court
“by force and against her will[,]” but that did not allege that his daughter was under
the age of 13 years of age, an alternate theory for the offense. Williams, 318 N.C. at
625, 350 S.E.2d at 354. See generally N.C. Gen. Stat. § 14-27.2(a)(1), (2) (2013).3
However, the trial court instructed the jury that it could find the defendant guilty of
first-degree rape if the jurors found that the defendant engaged in the act, “at the
time, [the victim] was a child under the age of thirteen years.” Williams, 318 N.C. at
630, 350 S.E.2d at 357 (internal quotation marks omitted). Our Supreme Court
additionally stated:
The requirements of a valid indictment are that it be
sufficiently certain in the statement of the accusation so as
to identify the offense with which the accused is charged;
to protect the accused from being twice put in jeopardy for
the same offense; to enable the accused to prepare for trial
and to enable the court on conviction or plea of guilty to
pronounce sentence according to the rights of the case. . . .
An indictment that does not accurately and clearly allege
all of the elements of the offense is inadequate to support a
conviction. . . . Finally, the failure of the allegations to
conform to the equivalent material aspects of the jury
charge represents a fatal variance, and renders the
indictment insufficient to support that resulting
conviction. . . .
Because the jury in this case was instructed and reached
its verdict on the basis of the elements set out in N.C.G.S.
§ 14.27.2(a)(1), whereas defendant had been charged with
rape on the basis of the elements set out in N.C.G.S. § 14–
27.2(a)(2) [by means of force] . . . , the indictment under
which [the] defendant was brought to trial cannot be
considered to have been a valid basis on which to rest the
3 Section 14-27.2 was re-codified as N.C. Gen. Stat. § 14-27.21 by Session Laws 2015-181, s.
3(a) effective 1 December 2015, and applicable to offenses committed on or after that date.
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STATE V. ROSS
Opinion of the Court
judgment. Therefore, we hold that the instructions given to
the jury pursuant to N.C.G.S. § 14–27.2(a)(1) were
fundamentally in error.
Id. at 630-31, 350 S.E.2d at 357 (citations omitted). See also Tucker, 317 N.C. at 540,
346 S.E.2d at 422 (finding plain error where the defendant was indicted for
kidnapping by removal, but convicted after the jury was instructed on a theory of
kidnapping by restraint); State v. Brown, 312 N.C. 237, 248, 321 S.E.2d 856, 862-63
(1984) (finding plain error where the defendant was indicted for first-degree
kidnapping on theories of facilitation of a felony and the victim was not released in a
safe place, but the jury was instructed on the theory that the victim was terrorized
and sexually assaulted). The Court therefore vacated the judgment because the
defendant was never charged in the rape indictment under the only theory which the
jury was instructed to consider. Williams, 318 N.C. at 631, 350 S.E.2d at 357. See
also State v. Taylor, 301 N.C. 164, 270 S.E.2d 409 (1980) (vacating a kidnapping
conviction, stating that “[i]t is a well-established rule in this jurisdiction that it is
error, generally prejudicial, for the trial judge to permit a jury to convict upon some
abstract theory not supported by the bill of indictment”); State v. Thorpe, 274 N.C.
457, 164 S.E.2d 171 (1968).
The critical similarity between Williams and the present case is that there was
no evidence produced at trial that would support the pertinent element alleged in the
indictment, while there was evidence presented which supported the element on
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STATE V. ROSS
Opinion of the Court
which the jury was instructed. It is not surprising that each jury (in Williams and in
the present case) returned a guilty verdict after being instructed on an element
supported by the evidence produced at trial, though not alleged in the indictment.
Likewise, it is clear that if instructed only on the theory alleged in the indictment,
each jury, faced with a complete lack of evidence in support of the relevant element,4
would have returned a not-guilty verdict. This is precisely the prejudice required to
show plain error: that, but for the erroneous instruction, the jury likely would have
reached a different result. See Tucker, 317 N.C. at 539, 346 S.E.2d at 421.
III. Conclusion
For the foregoing reasons, we hereby vacate Defendant’s conviction for
felonious safecracking and remand this matter to the trial court for resentencing and
further proceedings consistent with this opinion. See State v. Wortham, 318 N.C. 669,
674, 351 S.E.2d 294, 297 (1987) (holding that when offenses are consolidated for
judgment, the proper procedure is “to remand for resentencing when one or more but
not all of the convictions consolidated for judgment has been vacated”). We find no
error in Defendant’s remaining convictions.
NO ERROR IN PART, VACATED AND REMANDED IN PART.
Judges BRYANT and STEPHENS concur.
4 The complete lack of evidence that Defendant obtained the combination by fraud led the trial
court to stop proceedings in the middle of the jury charge, send the jury out of the courtroom, and
initiate a discussion with counsel about how to instruct the jury on the safecracking charge, noting,
“The [S]tate has a problem.”
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