An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1076 NORTH CAROLINA COURT OF APPEALS
Filed: 15 April 2014
STATE OF NORTH CAROLINA
v. Rowan County No. 11 CRS 51850-51 DONALD GENE BARNETTE, JR.
Appeal by defendant from judgments entered 24 April 2013 by
Judge W. Erwin Spainhour in Rowan County Superior Court. Heard
in the Court of Appeals 19 March 2014.
Attorney General Roy Cooper, by Assistant Attorney General Rajeev K. Premakumar, for the State.
Attorney Michael J. Reece, for defendant.
ELMORE, Judge.
After being found guilty by a jury on 24 April 2013,
judgment was entered against Donald Gene Barnette, Jr.
(defendant) for the offenses of assault with a deadly weapon
inflicting serious injury (AWDWISI) and intimidating a witness.
Defendant was sentenced to consecutive terms of 38-55 months and
11-14 months active imprisonment. Defendant appealed his -2- convictions at sentencing on the basis that 1.) the trial court
erroneously admitted secondary evidence of voice mail contents
and 2.) he received ineffective assistance of counsel. After
careful consideration, we find no error.
I. Facts
Defendant was scheduled to appear in Rowan County District
Court on 24 March 2011 for a communicating threats charge
brought against him by Bobby Austin (the victim). A few days
prior, between 11 March 2011 and 18 March 2011, the victim
received two voice mails on his cell phone from defendant. The
victim identified defendant as the person who left the voice
mail messages because he recognized defendant’s voice and phone
number. The victim and defendant had known each other for over
a year because defendant lived at the victim’s house for three
months while defendant dated the victim’s daughter. The
victim’s wife, Robin Austin (Mrs. Austin), also heard
defendant’s voice mails, in which defendant said “I’m going to
come get you; I ain’t got nothing to lose. I’m going to kill
you” and “[t]ell [victim’s daughter] I ain’t got nothing to do
with her . . . family[.]” On 20 March 2011, defendant called
the victim’s daughter and told her that “there will be
repercussions” if the victim did not drop the communicating -3- threats charge. A day later, the victim was attacked outside
his residence at 135 Cedar Ridge Lane in China Grove by two
people in ski masks. When the two people knocked the victim to
the ground, the victim pulled off one of the person’s masks and
saw that the formerly masked person was defendant. Defendant
then told the victim, “I’m going to kill you now[.]” Defendant
and the other masked person hit the victim numerous times, cut
his arm, and then ran away into the woods.
Thereafter, defendant was arrested and the State indicted
him for AWDWISI and intimidating a witness. Before trial, the
State informed the trial court of its intent to introduce the
contents of the voice mails without having the actual voice mail
messages. After the trial court impaneled the jury, it
conducted a hearing outside the jury’s presence to determine
whether the victim and Mrs. Austin could testify at trial as to
the contents of the voice mails. At the hearing, the victim and
Mrs. Austin testified that they bought a new phone, and despite
their best efforts, they could not find the old phone that
stored the voice mails. At no point did defendant claim that
the victim or Mrs. Austin destroyed or lost the phone in bad
faith. Over defendant’s objection during the hearing, the trial
court determined that both the victim and Mrs. Austin would be -4- allowed to testify as to the contents of the voice mails. At
trial, the victim and Mrs. Austin testified about what they
heard on the voice mail messages without any renewed objection
by defendant.
II. Analysis
a.) Voice mails
Defendant argues that the trial court committed plain error
by allowing the State to present witness testimony as to the
contents of the voice mails in lieu of the actual voice mails.
We disagree.
“In criminal cases, an issue that was not preserved by
objection noted at trial and that is not deemed preserved by
rule or law without any such action nevertheless may be made the
basis of an issue presented on appeal when the judicial action
questioned is specifically and distinctly contended to amount to
plain error.” N.C.R. App. P. 10(a)(4); see also State v. Goss,
361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007), cert. denied, 555
U.S. 835, 172 L. Ed. 2d 58 (2008). Plain error arises when the
error is “‘so basic, so prejudicial, so lacking in its elements
that justice cannot have been done[.]’” State v. Odom, 307 N.C.
655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v.
McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 -5- U.S. 1018, 74 L. Ed. 2d. 513 (1982)). “Under the plain error
rule, defendant must convince this Court not only that there was
error, but that absent the error, the jury probably would have
reached a different result.” State v. Jordan, 333 N.C. 431,
440, 426 S.E.2d 692, 697 (1993).
Pursuant to North Carolina Rule of Evidence 1002, “[t]o
prove the content of a writing, recording, or photograph, the
original writing, recording, or photograph is required, except
as otherwise provided in these rules or by statute.” N.C. Gen.
Stat. § 8C-1, Rule 1002 (2013). The relevant exception found in
Rule 1004 provides: “The original is not required, and other
evidence of the contents of a writing, recording, or photograph
is admissible if: (1) Originals Lost or Destroyed.--All
originals are lost or have been destroyed, unless the proponent
lost or destroyed them in bad faith[.]” N.C. Gen. Stat. § 8C-1,
Rule 1004 (2013) (emphasis in original). According to this
rule, the defendant must show that the evidence was destroyed in
bad faith. State v. Jarrell, 133 N.C. App. 264, 269, 515 S.E.2d
247, 251 (1999). However, the party seeking to offer parol
evidence must show that the evidence could not be located after
a diligent search. City of Gastonia v. Parrish, 271 N.C. 527,
529, 157 S.E.2d 154, 156 (1967). -6- Here, the victim testified during the admissibility hearing
that the phone storing the voice mails was “lost. I don't know
what happened to it.” When asked by the trial court about
whether he intended to save the phone, the victim stated, “it
got lost or something, couldn't find it. . . . I was going to
save it. I think my wife tell [sic] me to keep that voice mail
in case we go to court, but like I said, I lost it. I don’t
know what happened to it.” Mrs. Austin also testified about the
location of the phone, and she said that “[w]e was [sic] paying
by the -- every month and that phone got old and I wanted a
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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. COA13-1076 NORTH CAROLINA COURT OF APPEALS
Filed: 15 April 2014
STATE OF NORTH CAROLINA
v. Rowan County No. 11 CRS 51850-51 DONALD GENE BARNETTE, JR.
Appeal by defendant from judgments entered 24 April 2013 by
Judge W. Erwin Spainhour in Rowan County Superior Court. Heard
in the Court of Appeals 19 March 2014.
Attorney General Roy Cooper, by Assistant Attorney General Rajeev K. Premakumar, for the State.
Attorney Michael J. Reece, for defendant.
ELMORE, Judge.
After being found guilty by a jury on 24 April 2013,
judgment was entered against Donald Gene Barnette, Jr.
(defendant) for the offenses of assault with a deadly weapon
inflicting serious injury (AWDWISI) and intimidating a witness.
Defendant was sentenced to consecutive terms of 38-55 months and
11-14 months active imprisonment. Defendant appealed his -2- convictions at sentencing on the basis that 1.) the trial court
erroneously admitted secondary evidence of voice mail contents
and 2.) he received ineffective assistance of counsel. After
careful consideration, we find no error.
I. Facts
Defendant was scheduled to appear in Rowan County District
Court on 24 March 2011 for a communicating threats charge
brought against him by Bobby Austin (the victim). A few days
prior, between 11 March 2011 and 18 March 2011, the victim
received two voice mails on his cell phone from defendant. The
victim identified defendant as the person who left the voice
mail messages because he recognized defendant’s voice and phone
number. The victim and defendant had known each other for over
a year because defendant lived at the victim’s house for three
months while defendant dated the victim’s daughter. The
victim’s wife, Robin Austin (Mrs. Austin), also heard
defendant’s voice mails, in which defendant said “I’m going to
come get you; I ain’t got nothing to lose. I’m going to kill
you” and “[t]ell [victim’s daughter] I ain’t got nothing to do
with her . . . family[.]” On 20 March 2011, defendant called
the victim’s daughter and told her that “there will be
repercussions” if the victim did not drop the communicating -3- threats charge. A day later, the victim was attacked outside
his residence at 135 Cedar Ridge Lane in China Grove by two
people in ski masks. When the two people knocked the victim to
the ground, the victim pulled off one of the person’s masks and
saw that the formerly masked person was defendant. Defendant
then told the victim, “I’m going to kill you now[.]” Defendant
and the other masked person hit the victim numerous times, cut
his arm, and then ran away into the woods.
Thereafter, defendant was arrested and the State indicted
him for AWDWISI and intimidating a witness. Before trial, the
State informed the trial court of its intent to introduce the
contents of the voice mails without having the actual voice mail
messages. After the trial court impaneled the jury, it
conducted a hearing outside the jury’s presence to determine
whether the victim and Mrs. Austin could testify at trial as to
the contents of the voice mails. At the hearing, the victim and
Mrs. Austin testified that they bought a new phone, and despite
their best efforts, they could not find the old phone that
stored the voice mails. At no point did defendant claim that
the victim or Mrs. Austin destroyed or lost the phone in bad
faith. Over defendant’s objection during the hearing, the trial
court determined that both the victim and Mrs. Austin would be -4- allowed to testify as to the contents of the voice mails. At
trial, the victim and Mrs. Austin testified about what they
heard on the voice mail messages without any renewed objection
by defendant.
II. Analysis
a.) Voice mails
Defendant argues that the trial court committed plain error
by allowing the State to present witness testimony as to the
contents of the voice mails in lieu of the actual voice mails.
We disagree.
“In criminal cases, an issue that was not preserved by
objection noted at trial and that is not deemed preserved by
rule or law without any such action nevertheless may be made the
basis of an issue presented on appeal when the judicial action
questioned is specifically and distinctly contended to amount to
plain error.” N.C.R. App. P. 10(a)(4); see also State v. Goss,
361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007), cert. denied, 555
U.S. 835, 172 L. Ed. 2d 58 (2008). Plain error arises when the
error is “‘so basic, so prejudicial, so lacking in its elements
that justice cannot have been done[.]’” State v. Odom, 307 N.C.
655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v.
McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 -5- U.S. 1018, 74 L. Ed. 2d. 513 (1982)). “Under the plain error
rule, defendant must convince this Court not only that there was
error, but that absent the error, the jury probably would have
reached a different result.” State v. Jordan, 333 N.C. 431,
440, 426 S.E.2d 692, 697 (1993).
Pursuant to North Carolina Rule of Evidence 1002, “[t]o
prove the content of a writing, recording, or photograph, the
original writing, recording, or photograph is required, except
as otherwise provided in these rules or by statute.” N.C. Gen.
Stat. § 8C-1, Rule 1002 (2013). The relevant exception found in
Rule 1004 provides: “The original is not required, and other
evidence of the contents of a writing, recording, or photograph
is admissible if: (1) Originals Lost or Destroyed.--All
originals are lost or have been destroyed, unless the proponent
lost or destroyed them in bad faith[.]” N.C. Gen. Stat. § 8C-1,
Rule 1004 (2013) (emphasis in original). According to this
rule, the defendant must show that the evidence was destroyed in
bad faith. State v. Jarrell, 133 N.C. App. 264, 269, 515 S.E.2d
247, 251 (1999). However, the party seeking to offer parol
evidence must show that the evidence could not be located after
a diligent search. City of Gastonia v. Parrish, 271 N.C. 527,
529, 157 S.E.2d 154, 156 (1967). -6- Here, the victim testified during the admissibility hearing
that the phone storing the voice mails was “lost. I don't know
what happened to it.” When asked by the trial court about
whether he intended to save the phone, the victim stated, “it
got lost or something, couldn't find it. . . . I was going to
save it. I think my wife tell [sic] me to keep that voice mail
in case we go to court, but like I said, I lost it. I don’t
know what happened to it.” Mrs. Austin also testified about the
location of the phone, and she said that “[w]e was [sic] paying
by the -- every month and that phone got old and I wanted a
newer phone. . . . I really don’t remember where it’s at. I
really don’t remember. . . . I looked everywhere for it. . . .
It’s been gone for so long, honey, I looked for it and I can’t
find it. I’ve looked for it.” The victim’s and Mrs. Austin’s
testimony indicate that the phone was lost despite their
reasonable efforts to locate it. Their combined testimony
coupled with no assertion by defendant that the voice mails were
destroyed or lost in bad faith were sufficient grounds for the
trial court to allow other evidence of the voice mails’
contents. Thus, the trial court did not err in allowing the
victim and Mrs. Austin to later testify about the contents of
the voice mails during the State’s case-in-chief. -7- b.) Ineffective Assistance of Counsel
Next, defendant argues that he received ineffective
assistance of counsel at trial because his counsel failed to
renew his objection during the State’s case-in-chief as to the
entry of secondary evidence of the voice mail contents during
the victim’s and Mrs. Austin’s testimony. We disagree.
To prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel’s performance was deficient and then that counsel’s deficient performance prejudiced his defense. Deficient performance may be established by showing that counsel’s representation fell below an objective standard of reasonableness. Generally, to establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286
(citations and quotation marks omitted), cert. denied, 549 U.S.
867, 166 L. Ed. 2d 116 (2006). Under the deficiency prong
above, the defendant must first establish that his trial counsel
erred. State v. Lee, 348 N.C. 474, 492, 501 S.E.2d 334, 345
(1998) However, counsel does not err if he “fail[s] to object -8- to admissible evidence[.]” State v. Mewborn, 200 N.C. App. 731,
739, 684 S.E.2d 535, 540 (2009).
In the case sub judice, we have already ruled that the
testimony by the victim and Mrs. Austin concerning the contents
of the voice mails was properly admitted by the trial court.
Thus, trial counsel’s failure to object to the evidence during
the State’s case-in-chief was not error, and defendant’s
ineffective assistance of counsel claim necessarily fails. See
id. (holding that defendant’s claim for ineffective assistance
of counsel “must fail” because his claim was solely based on
trial counsel’s “failure to object to admissible evidence”).
III. Conclusion
In sum, the trial court did not commit error, much less
plain error, by allowing the State to present witness testimony
as to the contents of the voice mails in lieu of the actual
voice mails. Moreover, defendant did not receive ineffective
assistance of counsel at trial.
No error.
Judges McCULLOUGH and DAVIS concur.
Report per Rule 30(e).