State v. Hester

736 S.E.2d 571, 224 N.C. App. 353, 2012 WL 6596115, 2012 N.C. App. LEXIS 1451

• Court: Court of Appeals of North Carolina
• Decided: December 18, 2012
• Docket: No. COA12-480
• Status: Published

Opinions

STEPHENS, Judge.

Procedural History and Evidence

On 14 October 2011, a jury found Defendant Darryl Hester guilty of felonious larceny. Defendant then pled guilty to having attained the status of habitual felon. The trial court sentenced Defendant to 84— 110 months imprisonment. From the judgment entered upon his convictions, Defendant appeals. For the reasons discussed herein, we dismiss.

The evidence at trial tended to show the following: Sin Wol Kang and Kyong Kang Wentworth hired Defendant for a small remodeling project at their beauty supply store, Beauty 101. In turn, Defendant enlisted Kevin King to assist with the project. On the evening of 15 August 2010, Wentworth noticed that four to six expensive hair extension pieces, together worth between $2,000 and $2,300, were missing from the store. Wentworth reported the theft to police on 16 August 2010. Officer Brian Long of the Charlotte-Mecklenburg Police Department met with Kang and Wentworth, who showed Long the store’s surveillance video from 15 August 2010.

At trial, the State introduced and played for the jury a copy of the original surveillance video. In addition, Wentworth, Kang, and Long each testified to what they had seen on the original surveillance video. Kang and Wentworth testified that the original surveillance video showed both Defendant and King taking the hair extension pieces, while Long testified that he only saw Defendant putting the hair extension pieces under his shirt before exiting through the back door of the store. However, all three witnesses agreed that the copy of the surveillance video shown at trial had a much lower picture quality than the original surveillance video. The poor quality of the copy made it very difficult to tell whether Defendant or King had taken any hair extension pieces. Defendant did not object to the introduction of the copy or to any of the testimony about what the original surveillance video showed.

Long testified that, when he arrived at the store to view the surveillance video, King was there with Kang and Wentworth. King gave Long a written statement which was introduced at trial as Defense Exhibit 2. In the statement, King denied taking any hair extension pieces, but reported that he had seen Defendant take them. King did not testify. Defendant did not object to Long’s testimony about King’s statement.

Defendant testified on his own behalf. He denied having taken the hair extension pieces, but admitted making two restitution payments to Kang and Wentworth: one for $500 and another for $400. Defendant explained that, when he learned about the theft of the hair extension pieces, he felt sorry for Kang and Wentworth as a fellow small business owner. Defendant explained that he felt bad about having hired King, whom he blamed for the theft (although Defendant acknowledged that he had not seen King steal anything). Defendant testified that he had agreed and intended to pay Kang and Wentworth $2,000, but his difficult financial circumstances prevented this:

I have no money. I don’t have a bunch of money. Like I said, I called and apologized for my company, for the employees that work for my company. I did do that, but to just have $2,000 on hand, like I said, I don’t have that. My fiancee, she’s pregnant. I just had a seven-month-old daughter. We have four, other kids, and we had just moved into our own apartment[.]

Discussion

On appeal, Defendant makes three arguments: (1) that the trial court committed plain error in allowing the State’s three witnesses to describe what they had seen in the original surveillance video, (2) that there existed a fatal variance between the facts alleged in the indictment and the evidence produced at trial, and (3) that Defendant’s trial counsel provided ineffective assistance. After careful review, we dismiss Defendant’s first and second arguments as not properly before this Court. As to Defendant’s third argument, we dismiss without prejudice.

I. Testimony about the contents of the original surveillance video

Defendant first argues that it was plain error for the trial court to allow Kang, Wentworth, and Long to testify about what they saw on the original surveillance video. We must dismiss this argument.

Because Defendant did not object to this testimony at trial, we review only for plain error. State v. Lawrence, _ N.C. _ , _, 723 S.E.2d 326, 333 (2012).

The plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where the error is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury’s finding that the defendant was guilty.

This Court and the United States Supreme Court have emphasized that plain error review should be used sparingly, only in exceptional circumstances, to reverse criminal convictions on the basis of unpreserved error[.]

Id. (citations, quotations marks, and brackets omitted) (alteration in original, second emphasis added). In sum, for a defendant to establish plain error, he must show not only error, but also prejudice. Id.

Here, while Defendant labels his argument as based on plain error and properly cites his burden under that standard of review, he does not argue prejudice. That is, Defendant does not explain how the challenged testimony, even if erroneously admitted, “tipped the scales” toward a guilty verdict or why the other evidence of his guilt was probably not sufficient standing alone to have resulted in a guilty verdict. Nor does Defendant compare the evidence of his guilt to that in other plain error cases in an effort to analogize or distinguish his case from others. As our Supreme Court has noted, an “empty assertion of plain error, without supporting argument or analysis of prejudicial impact, does not meet the spirit or intent of the plain error rule.” State v. Cummings, 352 N.C. 600, 637, 536 S.E.2d 36, 61 (2000) (emphasis added), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001). In such cases, a defendant has waived appellate review of his argument, and the reviewing court should dismiss. Id.; see also State v. Whitted, _ N.C. App. _ , _, 705 S.E.2d 787, 793 (2011). By failing to provide this Court any analysis of the prejudicial impact of the challenged testimony, Defendant has waived appellate review of this issue.¹ Accordingly, we must dismiss.

II. Defendant’s Indictment

Defendant next argues that a variance existed between the facts alleged in his indictment and the evidence produced at trial. We must dismiss this argument.

The question of variance between the indictment and the proof at trial is properly raised by a motion to dismiss in the trial court. State v. Skinner, 162 N.C. App. 434, 446, 590 S.E.2d 876, 885 (2004) (citation omitted). In addition, the defendant must specifically assert variance as grounds for his motion to dismiss. State v. Curry, 203 N.C. App. 375, 384, 692 S.E.2d 129, 137, disc, review denied and appeal dismissed, 364 N.C. 437, 702 S.E.2d 496 (2010). Where the defendant fails to do so, he has waived his right to raise this issue on appeal. Id. at 385, 692 S.E.2d at 138. Further, “by presenting evidence after the close of the State’s case, a defendant waives any previous motion to dismiss, and in order to preserve [the grounds for the motion to dismiss] for appeal, [the] defendant must renew his motion to dismiss at the close of all evidence.” State v. Boyd, 162 N.C. App. 159, 161, 595 S.E.2d 697, 698 (2004).

Here, Defendant made a general motion to dismiss at the close of the State’s evidence, but did not specifically raise the question of a variance. Defendant also failed to renew his motion to dismiss at the close of all evidence. Defendant has waived this issue for appellate review, and accordingly, we dismiss.

III. Ineffective Assistance of Counsel

Finally, Defendant argues that he received ineffective assistance from his trial counsel. We dismiss this argument.

The two-part test for ineffective assistance of counsel is the same under both the state and federal constitutions. A defendant must first show that his defense counsel’s performance was deficient and, second, 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. Thompson, 359 N.C. 77, 115, 604 S.E.2d 850, 876 (2004) (citations and quotation marks omitted), cert. denied, 546 U.S. 830, 163 L. Ed. 2d 80 (2005). However, this Court will only decide ineffective assistance claim brought on direct review

when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing. Thus, when this Court reviews ineffective assistance of counsel claims on direct appeal and determines that they have been brought prematurely, we dismiss those claims without prejudice, allowing [the] defendant to bring them pursuant to a subsequent motion for appropriate relief in the trial court.

Id. at 122-23, 604 S.E.2d at 881.

Here, Defendant bases his claim of ineffective assistance on four alleged errors by his trial counsel: (1) failure to object to the admission of the copy of the surveillance video, (2) failure to object to testimony from Kang, Wentworth, and Long about what they saw on the original surveillance video, (3) failure to specifically raise variance in his motion to dismiss, and (4) failure to renew that motion at the close of all evidence. We note that Defendant did not provide the copy of the surveillance video introduced as an exhibit at trial, and a full and thorough review thereof appears necessary for proper review of Defendant’s first ground for ineffective assistance of counsel. Accordingly, we dismiss Defendant’s claim for ineffective assistance of counsel without prejudice to Defendant’s right to file a motion for appropriate relief in the superior court.

DISMISSED in part; DISMISSED WITHOUT PREJUDICE in part.

Judge CALABRIA concurs. Judge ELMORE dissents in part and concurs in part.

1 . We note that, even were this argument not waived, any error here would not rise to the level of plain error. “It is well settled that all of the essential elements of larceny must be established by sufficient, competent evidence; and the essential facts can be proved by circumstantial evidence where the circumstance raises a logical inference of the fact to be proved and not just a mere suspicion or conjecture.” State v. Boomer, 33 N.C. App. 324, 327, 235 S.E.2d 284, 286, cert. denied, 293 N.C. 254, 237 S.E.2d 536 (1977). Here, there was direct evidence of Defendant’s guilt in the form of King’s statement to Wilson that King saw Defendant take the hair extension pieces. Further, there was circumstantial evidence of Defendant’s guilt in the form of his restitution payments totaling $900. Although Defendant testified that he made the payments because he felt sorry for the store’s owners, the payments raise a logical inference that Defendant was actually the thief and felt guilty about his crime. This evidence would likely have led to Defendant’s conviction, even without the testimony about the contents of the original surveillance video. Indeed, given the conflicting testimony about whether the original surveillance tape showed Defendant and King stealing the hair extension pieces (according to Wentworth and Kang) or showed only Defendant stealing them (according to Long), the jury likely treated this testimony with some skepticism.