State v. Talbot , 234 N.C. App. 297 ( 2014 )

NO. COA13-1077
NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
STATE OF NORTH CAROLINA
v. Wilson County
No. 12 CRS 53966
ALEXANDER SCOTT TALBOT
Appeal by Defendant from judgment entered 3 May 2013 by
Judge Alma L. Hinton in Wilson County Superior Court. Heard in
the Court of Appeals 5 February 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Deborah M. Greene, for the State.
Bowen and Berry, PLLC, by Sue Genrich Berry, for the
defendant.
MCCULLOUGH, Judge.
Alexander Scott Talbot, (“Defendant”) was indicted on 30
December 2012 for the offense of Common Law Robbery. He was
tried in Wilson County Superior Court, Judge Alma L. Hinton,
presiding and on 3 May 2013 convicted of Larceny from a Person
at which time he was sentenced to a minimum of eight (8) months
and maximum of nineteen (19) months in the custody of the North
Carolina Department of Corrections. Defendant was also ordered
to pay $44.00 in restitution. On 9 May 2013, Defendant filed
Notice of Appeal. After a careful review of the proceedings
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below we find No Error in the trial conducted in Superior Court,
but vacate the sentence of restitution and remand for re-
sentencing on that issue.
I. BACKGROUND
On 7 September 2012, Defendant’s father who is the owner
and operator of a business called 8 Ball Cycle Work in the
Wilson area, requested that Defendant watch his shop while he
ran some errands. On that date, Defendant, his girlfriend,
Cassandra Setzer (“Setzer”) and Jamy Reid (“Reid”), a friend of
Defendant who on occasion lived with Defendant, left his
apartment traveling to the father’s business. Along the way the
trio stopped at Valvoline to pay for some repairs made to
Defendant’s Jeep before reaching his father’s business.
Defendant began to have concerns about the repairs as he heard
noises coming from his Jeep, so all three proceeded to an auto
parts store to buy parts. Before returning to 8 Ball Cycle,
they made a stop at McDonald’s. While at McDonald’s Reid
announced he was going to go make some money. Reid then left.
After receiving a call from his father about the length of time
it was taking for Defendant to arrive at his business, Defendant
informed Setzer that he was going to go find Reid.
Churchwell’s Jewelers, a near-by custom jewelry business
was open as it was now past 10:00 a.m., its opening time, and
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jewelry had been placed in glass-top counter displays. The
owners, Angie and Anderson Bass were present in their upstairs
office over-looking the showroom while two employees, Cora
Wooten and Ashley Townsand, were on the main floor. Ms. Wooten
moved to the display case when Reid entered the store while Mr.
Townsand, who was in the repair area, stood up and watched Reid.
After Reid asked to see some rings, Ms. Wooten removed a display
of rings from inside a glass case in order to show them to Reid.
Shortly thereafter, Defendant entered the store. At this
juncture, one of the owners, Mr. Bass, came downstairs to the
showroom and Defendant asked Mr. Bass what time the restaurant
located next door opened for business. When Mr. Bass replied
that the restaurant opened at 5:00 p.m. Defendant began to exit
the store and opened the door. At that moment Reid grabbed the
ring display and ran out the open door behind Defendant. Reid
ran in one direction and Defendant walked in another, until
Townsand caught up with Defendant and requested he return to the
store.
Reid ran back to McDonald’s, got in the back seat of the
Jeep, and told Setzer to drive. While doing so, she called
Defendant, and learned he was being held for acting as a decoy.
Once the police arrived, a lookout for the Jeep was issued and
shortly thereafter Reid and Setzer were taken into custody. A
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consent search resulted in officers discovering the stolen
jewelry hidden inside an antifreeze container in the rear of the
Jeep.
II. Discussion
On appeal the Defendant raises three issues, (1) Did the
trial court err in re-playing the surveillance video twice
during jury deliberations; (2) Did the trial court err by
failing to instruct the jury in accordance with N.C.P.I.-
Criminal 104.50; and (3) Did the Court err in ordering
restitution without sufficient evidence?
1. Did the Trial Court Err by Playing Video Surveillance Tape
Twice, Thereby Expressing an Opinion in Contravention of
N.C.G.S. § 15A-1222?
Following the trial and closing arguments, the trial court
instructed the jury that they should not think the judge had any
opinion stating:
[the trial court had] implied any of the
evidence should be believed or disbelieved,
that a fact has been proven or not or what
your findings ought to be. Instead you alone
are to find the facts and render a verdict
reflecting the truth.
Defendant now argues, that despite the preceding instruction, by
re-playing the jewelry store surveillance tape of this incident,
the trial court overly emphasized Defendant’s role thus
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implicitly commenting on Defendant’s guilt. We do not believe
this argument has merit.
Shortly after the jury began considering Defendant’s case,
the jury requested to review certain exhibits that had been
admitted during the trial. These exhibits included certain
photographs, a copy of Defendant’s statement, a copy of Setzer’s
statement and a receipt. The trial court agreed to allow the
jurors to review these exhibits in the courtroom without
objection. Before the exhibits could be given to the jury, the
foreperson asked if the jury could also review the jewelry store
video surveillance film. The prosecutor announced that the
equipment could be set up to re-play the tape. The foreperson
requested that the tape be played from the point where Defendant
entered the store. Following the first playing of the video,
the trial judge instructed the prosecutor to play the tape a
second time. This action was taken without a request from
either counsel. The jury then resumed its deliberations finding
Defendant guilty as previously stated.
As a preliminary matter, it should be noted that the court
was well within its discretion in permitting the inspection of
evidence including the re-playing of the video. In N.C. Gen.
Stat. § 15A-1233(a) it is provided that:
[i]f the jury after retiring for
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deliberation requests a review of certain
testimony or other evidence, the jurors must
be conducted to the courtroom. The judge in
[her] discretion, after notice to the
prosecutor and defendant, may direct that
requested parts of the testimony be read to
the jury and may permit the jury to
reexamine in open court the requested
materials admitted into evidence. In [her]
discretion the judge may also have the jury
review other evidence relating to the same
factual issue so as not to give undue
prominence to the evidence requested.
N.C. Gen. Stat. § 15A-1233(a) (2013).
The decision by the trial court to either grant or deny a
jury’s request to review evidence previously admitted lies
within the court’s discretion, State v. Johnson, 346 N.C. 119,
124, 484 S.E.2d 372, 375 (1997) and it is presumed that the
court does so in accordance with this statute. State v.
Weddington, 329 N.C. 202, 208, 404 S.E.2d 671, 675 (1991). When
the examination takes place in open court as in the case at bar,
there is no necessity for obtaining the consent of the parties.
State v. Lee, 128 N.C. App. 506, 509, 495 S.E.2d 373, 375, cert.
denied 348 N.C. 76, 505 S.E.2d 883 (1998). Thus, in the case
now before us we fail to see how merely playing a moving picture
(video) of an event which evidently did not contain any audio,
so that the jurors would have an ample opportunity to review
this evidence without having to ask to see the tape again later,
constitutes error nor do we see how the trial court by such an
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action expresses any opinion whatsoever. Jurors are presumed to
follow jury instructions and curative instructions, including
the one given in this case as set forth above, State v. Little,
56 N.C. App. 765, 770, 290 S.E.2d 393, 396 (1982). We do not
believe the record demonstrates the court rendering any opinion
about Defendant’s guilt rather the record demonstrates the court
properly instructed the jury wherein the court stated it was
expressing no opinion. The record also demonstrates that the
trial judge complied with the proper statutory method of
allowing jurors to review evidence which they had previously
examined. Appellant’s arguments to the contrary are overruled.
2. Did the Trial Court Commit Prejudicial Error by Failing to
Properly Instruct Pursuant to N.C.P.I.-Criminal 104.50?
During the charge conference, Defendant’s counsel requested
that the court issue N.C.P.I.-Criminal 104.50 which states "A
photograph was introduced into evidence in this case for the
purpose of illustrating and explaining the testimony of a
witness. This photograph may not be considered by you for any
other purpose.” The State requested the court instruct that the
video could be viewed as substantive evidence. The trial judge
informed counsel that N.C.P.I.-Criminal 104.50A includes both.
This instruction provides, in part, "A [photograph] [video] was
introduced into evidence in this case. This [photograph]
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[video] may be considered by you as evidence of facts it
illustrates or shows." The trial court instructed the jury in
accordance with the latter pattern instruction, without any
additional objection.
When a party, requests an instruction which is supported by
the evidence, it is recognized that a failure to give that
instruction or an instruction in substantial conformity thereto
is error. State v. Rose, 323 N.C. 455, 458, 373 S.E.2d 426, 428
(1988). When defendant requests an instruction which was not
given, the lack of objection does not waive the error and the
issue is deemed preserved. State v. Ross, 322 N.C. 261, 265-66,
367 S.E.2d 889, 891-92 (1988). In the case sub judice some
photographs were for illustrative purposes, those being the
photos of the jewelry shop and its goods while the video was
undoubtedly admitted as substantive evidence depicting actual
events that transpired. While the trial judge did not clarify
which portion of the instruction as given applied to the video
or to the other photos it hardly seems likely that the jury
failed to understand the distinction and it is difficult to see
how the muddled instruction prejudiced Defendant. Accordingly,
this argument is likewise overruled.
3. Restitution
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Although we are constrained by the Supreme Court’s ruling
in State v. Mumford, 364 N.C. 394, 402-03, 699 S.E.2d 911, 917
(2010) to review restitution awards on appeal regardless of
whether a defendant has objected to the restitution amount at
trial, we note that this issue is frequently before this Court
due to easily correctable errors. As this Court noted in State
v. Moore, 365 N.C. 283, 285, 715 S.E.2d 847, 849 (2011), “the
quantum of evidence needed to support a restitution award is not
high.” In the interest of judicial economy, we urge prosecutors
and trial judges to ensure that this minimal evidentiary
threshold is met before entering restitution awards.
Here, the trial judge entered an order directing that
Defendant re-pay Churchwell’s Jewelers the sum of $44.00. There
is no evidentiary support for this amount in the record and both
parties concede the trial court erred in ordering restitution.
An order of restitution must be supported by evidence, State v.
Shelton, 167 N.C. App. 225, 233, 605 S.E.2d 228, 233 (2004) and
neither a prosecutor’s unsworn statement nor a restitution
worksheet is adequate to support an order of restitution, State
v. Mauer, 202 N.C. App. 546, 552, 688 S.E.2d 774, 778 (2010).
Here Appellant argues that Defendant is entitled to a new
sentencing hearing on the issue of restitution and the State
agrees. Therefore the sentence of restitution is vacated and
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the case remanded for a new sentencing hearing on this sole
issue.
III. Conclusion
In summary, we find no error in Defendant’s conviction and
sentence save for the issue of restitution. The order of
restitution is vacated and the case is remanded for re-
sentencing on the issue of restitution only.
No Error, Restitution Order Vacated and Remanded
Judges HUNTER, Robert C. and GEER concur.