IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-151
Filed 21 March 2023
New Hanover County, Nos. 20 CRS 58467, 21 CRS 721
STATE OF NORTH CAROLINA
v.
GARRY JUNIOR JONES, Defendant.
Appeal by defendant from judgment entered on or about 29 July 2021 by Judge
Clint D. Rowe in Superior Court, New Hanover County. Heard in the Court of
Appeals 4 October 2022.
Attorney General Joshua H. Stein, by Assistant Attorney General Forrest P. Fallanca, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Jillian C. Franke, for defendant-appellant.
STROUD, Chief Judge.
Defendant Garry Junior Jones appeals from a judgment, entered following a
jury trial, for (1) possession of burglary tools and (2) misdemeanor attempted
breaking or entering a building. Because a prior breaking and entering incident
involving Defendant was substantially similar to the charged conduct, temporally
proximate, and introduced for a non-propensity purpose, the trial court did not err in
admitting evidence about the prior incident on Rule of Evidence 404(b) grounds. N.C.
Gen. Stat. § 8C-1, Rule 404(b) (2019). Further, because the probative value of the STATE V. JONES
Opinion of the Court
same evidence was not substantially outweighed by unfair prejudice, the trial court
did not err in admitting it on Rule of Evidence 403 grounds. N.C. Gen. Stat. § 8C-1,
Rule 403 (2019). Finally, as the surveillance video of the prior breaking and entering
incident was properly authenticated, the trial court did not err in admitting the video.
Thus, we conclude there was no error.
I. Background
The State’s evidence at trial showed, “a little bit after midnight” on 15
November 2020, Defendant entered the yard of a private home in Wilmington and
“was trying to get into” the homeowner’s storage shed. Specifically, Defendant
“grabb[ed] the door” and “rattle[d] the knob” in a way the homeowner said the
homeowner would do “to make sure it’s locked[.]”
The homeowner’s security camera captured Defendant approaching the shed
and sent an alert to the homeowner. As the homeowner watched the security video,
which was on “a few second delay,” Defendant grabbed the door and then went around
the side of the shed, which was off camera, towards another door into the shed. At
the same time, the homeowner called 911. After calling 911, the homeowner did not
see Defendant again. Defendant did not “make entry into any other part of [the]
home” or “outside” the home, and the homeowner “kn[e]w of” nothing that was stolen.
When police officers arrived, the homeowner explained what happened,
showed the officers the security footage, and gave them a description of the person he
saw on the security video. After receiving the description, police officers “canvassed
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the area for a suspect” and saw Defendant—who matched the homeowner’s
description and who the officers identified as the person in the security video—about
50 yards from the original home where Defendant was seen on the security video.
When Defendant saw the police officers he “dipped into a neighborhood’s [sic] yard”
to try to “get out of sight from” them and then “conceal[ed] himself behind [a]
vehicle[.]” As Defendant put his hands up in line with commands from the officers,
he dropped “a pair of bolt cutters.” The officers then arrested Defendant. After the
arrest, the officers also found Defendant had a flashlight, a “box cutter that had a
screwdriver head,” and an “aluminum or steel pipe” with an attachment consistent
with drug use.
On or about 8 March 2021, Defendant was indicted for (1) felony attempted
breaking and entering (“attempted B&E”) and (2) possession of implements of a
housebreaking/ burglary tools (“possession of burglary tools”). On or about the same
day, Defendant was also indicted for habitual felon status, to which he subsequently
pled guilty.
The case came for trial starting on 26 July 2021. At trial, the homeowner and
one of the police officers who responded to the homeowner’s 911 call testified
consistent with the above summary of facts. As part of the homeowner’s testimony,
the State admitted into evidence the homeowner’s 911 call and the security video of
the incident. As part of the police officer’s testimony, the State admitted into
evidence: body camera footage of Defendant’s arrest; the bolt cutters and the pipe
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Defendant had on him when arrested; and “still shots” from the security video that
homeowner sent the officer. The State also had the officer show the jury the flashlight
and box cutter found on Defendant as part of his testimony.
The State’s final witness at trial was the investigating officer for a previous
breaking and entering case where Defendant had pled guilty. The State sought to
introduce the evidence of the prior breaking and entering pursuant to Rule of
Evidence 404(b), consistent with its pretrial “Notice of State’s Intent to Present 404(b)
Evidence at Trial[.]” (Capitalization altered.) Outside the presence of the jury, the
trial court held a hearing on the admissibility of the evidence of the prior breaking
and entering incident.
During the hearing, the investigating officer testified, on voir dire, Defendant
pled guilty to breaking and entering for a 2018 incident in which he broke into a
residential shed shortly after midnight using a small knife. In the 2018 incident, a
homeowner called police after his surveillance camera alerted him Defendant was
breaking into the homeowner’s shed. The investigating officer received surveillance
video of the prior incident from the homeowner, which led to Defendant being
charged. Defendant pled guilty to felony breaking and entering for the incident. The
State admitted the transcript of Defendant’s guilty plea and judgment into evidence
for purposes of the hearing.
As part of the investigating officer’s voir dire testimony, the State also sought
to introduce the surveillance video of the prior breaking and entering incident. As
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part of laying the foundation for admittance of the video, the investigating officer
testified: the video was the same one she had seen the night of the incident; “to [her]
knowledge” the video surveillance system was working correctly at the time of the
incident; and the homeowner from the prior incident described what happened to the
investigating officer in a way that matched the surveillance footage. As to the video
specifically, Defendant’s attorney objected on authentication grounds because the
homeowner whose surveillance system captured the prior incident did not testify.
The trial court admitted the video as part of the voir dire hearing over that objection.
Following the investigating officer’s testimony and the introduction of the
surveillance video of the prior breaking and entering incident, each side argued about
whether the evidence about the past incident could be admitted on Rule 404(b)
grounds. Defendant also argued the evidence of the prior incident was “highly
prejudicial” and had “very limited probative nature[.]” The trial court ruled the
evidence about the prior breaking and entering was admissible, but said neither the
prosecutor nor the investigating officer could “characterize what’s happening in” the
surveillance video.
Following the admissibility hearing, the investigating officer testified about
the prior breaking and entering consistent with her testimony during the hearing,
over Defendant’s renewed objection. As part of that testimony, the State admitted
into evidence the arrest warrant, guilty plea transcript, and judgment for the prior
incident. The trial court also received into evidence the surveillance video of the prior
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incident, which the jury then watched.
Defendant did not present any evidence at trial. The jury then convicted
Defendant of non-felonious attempted B&E and possession of burglary tools. On or
about 29 July 2021, the trial court sentenced Defendant to a term of 35 to 54 months
in prison, as enhanced by his habitual felon status. Defendant gave oral notice of
appeal in open court.
II. Analysis
On appeal, Defendant challenges multiple aspects of the trial court’s decision
to allow the State to present evidence of his prior incident of breaking and entering
conviction. First, Defendant argues “the trial court erred by admitting testimony and
video surveillance evidence regarding” the prior incident under Rules of Evidence
404(b) and 403. (Capitalization altered.) Second, Defendant contends the trial court
erred by admitting the video surveillance of the past incident because “the video was
not properly authenticated” under Rule of Evidence 901. (Capitalization altered.) We
review each contention in turn.
A. Admission of Evidence of Prior Breaking and Entering Under Rules 404(b) and 403
We first examine Defendant’s argument the trial court erred by admitting
evidence of the prior breaking and entering incident under Rules 404(b) and 403.
Rule 404(b) provides: “Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show that he acted in conformity
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therewith” but it “may . . . be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake,
entrapment or accident.” N.C. Gen. Stat. § 8C-1, Rule 404(b). Rule 403 provides even
relevant “evidence may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” N.C. Gen. Stat. § 8C-1, Rule 403. When the admission of the
same evidence is challenged based on both Rules 404(b) and 403, we review the
evidence on 404(b) grounds first before turning to Rule 403. See State v.
Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159 (2012) (explaining the court
would review under Rule 404(b) first before then reviewing under Rule 403); see also
State v. Hembree, 368 N.C. 2, 13, 770 S.E.2d 77, 85 (2015) (explaining Rule 403
“supplies an independent limitation on the ability of trial courts to admit evidence
under” Rule 404(b)). As such, after discussing the standards of review, we will first
examine the admissibility of the evidence under Rule 404(b) and then under Rule
403.
1. Standards of Review
Our Supreme Court has explained “when analyzing rulings applying Rules
404(b) and 403, we conduct distinct inquiries with different standards of review.”
Beckelheimer, 366 N.C. at 130, 726 S.E.2d at 159. “We review de novo the legal
conclusion that the evidence is, or is not, within the coverage of Rule 404(b).” Id.
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“Under a de novo review, the court considers the matter anew and freely substitutes
its own judgment for that of the lower tribunal.” State v. Williams, 362 N.C. 628,
632-33, 669 S.E.2d 290, 294 (2008) (citation and quotation marks omitted).
“We then review the trial court’s Rule 403 determination for abuse of
discretion.” Beckelheimer, 366 N.C. at 130, 726 S.E.2d at 159. “A trial court may be
reversed for an abuse of discretion only upon a showing that its ruling was so
arbitrary that it could not have been the result of a reasoned decision.” State v. Cagle,
346 N.C. 497, 506-07, 488 S.E.2d 535, 542 (1997) (citation and quotation marks
omitted).
2. Rule 404(b)
We first review de novo the trial court’s ruling admitting the evidence of the
prior breaking and entering under Rule 404(b). See Beckelheimer, 366 N.C. at 130,
726 S.E.2d at 159. Initially, we must address the State’s argument “Defendant has
failed to preserve for appellate review any argument concerning the admissibility” of
the past incident evidence “under Rule 404(b), specifically, because he did not object
on 404(b) grounds at trial and did not argue plain error on appeal.”
Under our Rules of Appellate Procedure, “[i]n order to preserve an issue for
appellate review, a party must have presented to the trial court a timely request,
objection, or motion, stating the specific grounds for the ruling the party desired the
court to make if the specific grounds were not apparent from the context.” N.C. R.
App. P. 10(a)(1). The objection must be made in the presence of the jury. See State
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v. Snead, 368 N.C. 811, 816, 783 S.E.2d 733, 737 (2016) (“An objection made only
during a hearing out of the jury’s presence prior to the actual introduction of the
testimony is insufficient.” (citation and quotation marks omitted)). But if the party
made a specific objection outside the presence of the jury, a general objection in the
presence of the jury can be sufficient when it is clear from context the party was
renewing the same objection made outside the presence of the jury. See State v.
Rayfield, 231 N.C. App. 632, 637-38, 752 S.E.2d 745, 751 (2014) (holding an issue was
preserved for appellate review when the defendant made an objection at trial that did
not state the grounds for the objection because it was “clear from the context” the
defendant was renewing an earlier objection made in a pretrial motion to suppress).
Here, as the State argues, Defendant’s attorney only stated, “Objection”
without any reasoning when the State sought to introduce video surveillance of the
prior breaking and entering incident during testimony by the investigating officer
from the prior incident. But it is “clear from the context” this objection related back
to the objections Defendant’s attorney made during the extensive voir dire of the same
witness. Rayfield, 231 N.C. App. at 637-38, 752 S.E.2d at 751. During that voir dire,
Defendant’s attorney specifically argued the evidence of the prior incident could not
be admitted under Rule 404(b) because the prior breaking and entering did not
involve “an unusual set of facts” and was also “very different” from the charged
conduct. Since the objection before the jury clearly related back to the 404(b)
objection during voir dire, Defendant properly preserved the 404(b) argument. See
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id.
Turning to the merits, “[g]enerally, Rule 404 acts as a gatekeeper against
‘character evidence’: evidence of a defendant’s character—as illustrated through
either direct testimony or evidence of prior bad acts—admitted for the purpose of
proving that he acted in conformity therewith on a particular occasion.” State v.
Pabon, 380 N.C. 241, 258, 867 S.E.2d 632, 643-644 (2022) (citation and quotation
marks omitted). Notwithstanding that “important protective role[,]” our Supreme
Court has “repeatedly held that ‘Rule 404(b) state[s] a clear general rule of inclusion.’”
Id. at 258, 867 S.E.2d at 644 (brackets and emphasis in original) (quoting State v.
Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990)). Specifically, “relevant
evidence of past crimes, wrongs, or acts by a defendant are generally admissible for
any one or more of the purposes enumerated in Rule 404(b)’s non-exhaustive list,
‘subject to but one exception requiring its exclusion if its only probative value is to
show that the defendant has the propensity or disposition to commit an offense of the
nature of the crime charged.’” Id. (emphasis in original) (quoting Coffey, 326 N.C. at
279, 389 S.E.2d at 54).
Rule 404(b)’s inclusive nature “is still ‘constrained by the requirements of
similarity and temporal proximity.’” Beckelheimer, 366 N.C. at 131, 726 S.E.2d at
159 (quoting State v. Al-Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 123 (2002)).
For the similarity requirement, “prior acts are considered sufficiently similar under
Rule 404(b) ‘if there are some unusual facts present in both crimes that would
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indicate that the same person committed them.’” Pabon, 380 N.C. at 259, 867 S.E.2d
at 644 (quoting Beckelheimer, 366 N.C. at 131, 726 S.E.2d at 159). The similarities
need only “be specific enough to distinguish the acts from any generalized commission
of the crime[;]” they do not need to “‘rise to the level of the unique and bizarre.’” Id.
(quoting Beckelheimer, 366 N.C. at 131, 726 S.E.2d at 159). The other constraint,
temporal proximity, is considered on a case-by-case basis. See id. at 259, 867 S.E.2d
at 645 (“[R]emoteness for purposes of 404(b) must be considered in light of the specific
facts of each case[.]” (quoting Beckelheimer, 366 N.C. at 132, 726 S.E.2d at 160)).
Thus, Rule 404(b) has three requirements for the admission of evidence. First,
relevant evidence of the past acts by a defendant must have probative value beyond
showing “the defendant has the propensity or disposition to commit an offense of the
nature of the crime charged.” Id. at 258, 867 S.E.2d at 644. Second, the past act
must be similar enough to the charged crime to “distinguish the acts from any
generalized commission of the crime[.]” Id. at 259, 867 S.E.2d at 644. Third, the past
act must be temporally proximate to the presently charged act. See id.
Of those three requirements, Defendant only contests whether the past
breaking and entering incident was similar enough to the charged incident.
Defendant specifically argues “[t]he similarities between the incidents begin and end
with generic features of breaking and entering—trying to open or opening and
entering a shed at night.” Further, Defendant highlights certain differences between
the past and present incidents.
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Contrary to Defendant’s arguments, the past breaking and entering incident
is similar enough to the charged incident to be admissible under Rule 404(b). The
bar for similarity in cases where houses are broken into, such as a breaking and
entering case, see N.C. Gen. Stat. Chapter 14, Subchapter IV, Article 14 (grouping
the offenses with which Defendant was charged in an Article entitled “Burglary and
Other Housebreakings”), is relatively low. In State v. Martin, while doing a 404(b)
analysis in a burglary case, this Court summarized a past decision on similarity in
relation to breaking and entering as follows: “This Court has found prior acts of ‘(1)
shoplifting of a vacuum cleaner from K–Mart, (2) breaking and entering and larceny
at a place of business, and (3) car theft . . . relevant to show defendant’s intent and
motive for unlawfully entering the victim’s residence.’” State v. Martin, 191 N.C. App.
462, 467-68, 665 S.E.2d 471, 474-75 (2008) (ellipses in original) (brackets omitted)
(quoting State v. Hutchinson, 139 N.C. App. 132, 136-37, 532 S.E.2d 569, 572 (2000)).
In Martin itself, this Court found a prior incident with both breaking and entering
and larceny was relevant to the burglary charge at issue in the case because both
involved breaking into a car at a residential location. See id.
Here, the incidents are even more similar than the incidents discussed in
Martin. See id. In the previous situation, Defendant pled guilty to felony breaking
and entering for an incident where he broke into a residential shed shortly after
midnight using a small knife. In the instant case, Defendant approached a shed
shortly after midnight with, among other items, a box cutter. In Martin, the
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similarities in residential setting and type of item broken into were sufficient for the
404(b) similarity requirement. See id. Here, those similarities are present because
in both instances Defendant broke into or attempted to break into a residential shed.
Additionally, here both the prior and current incidents took place shortly after
midnight. And Defendant had a similar instrument with him each time, a knife in
the prior incident and a box cutter in the instant case. Thus, the State presented
adequate evidence of the similarity of the prior offense and the current conduct.
Defendant’s arguments do not convince us otherwise. Defendant first argues
“[t]he similarities between the incidents begin and end with generic features of
breaking and entering—trying to open or opening and entering a shed at night.”
Defendant is wrong to describe “trying to open or opening and entering a shed at
night” as the “generic features of breaking and entering[.]” “The essential elements
of felonious breaking or entering are (1) the breaking or entering (2) of any building
(3) with the intent to commit any felony or larceny therein.” State v. Cox, 375 N.C.
165, 172, 846 S.E.2d 482, 488 (2020) (emphasis added) (citation and quotation marks
omitted); see also N.C. Gen. Stat. § 14-54(a) (2019) (“Any person who breaks or enters
any building with intent to commit any felony or larceny therein shall be punished
as a Class H felon.”). Under the statute, a building is “any dwelling, dwelling house,
uninhabited house, building under construction, building within the curtilage of a
dwelling house, and any other structure designed to house or secure within it any
activity or property.” N.C. Gen. Stat. § 14-54(c). Our past cases on breaking and
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entering have shown a wide variety of buildings that can fit within the element of
“any building.” Id.; see, e.g., State v. Avery, 315 N.C. 1, 24, 337 S.E.2d 786, 799 (1985)
(business complex); State v. Bost, 55 N.C. App. 612, 613, 615, 286 S.E.2d 632, 633-34
(1982) (trailer on construction site); State v. Winston, 45 N.C. App. 99, 101, 262 S.E.2d
331, 333 (1980) (office of county clerk of court). As a result, the fact that both
instances involved trying to or actually entering a shed alone takes them beyond the
generic features of breaking and entering. The commonalities in timing and
instruments carried, as discussed above, further demonstrate the similarities
between the prior incident and the instant case are not merely superficial. As a
result, we reject Defendant’s argument the incidents both involve only the “generic
features of breaking and entering[.]”
Defendant’s focus on the differences between the two incidents is also
misplaced. When reviewing the similarity requirement in a Rule 404(b) analysis, “we
must not ‘focus on the differences between the prior and current incidents,’ but rather
‘review the similarities noted by the trial court.’” State v. Wilson-Angeles, 251 N.C.
App. 886, 893, 795 S.E.2d 657, 664 (2017) (brackets omitted) (quoting Beckelheimer,
366 N.C. at 131-32, 726 S.E.2d at 159). As already explained, there are sufficient
similarities between the past breaking and entering incident and the current one to
meet the first 404(b) requirement.
The other two requirements, probative value for some non-propensity reason
and temporal proximity, are also met here. See Pabon, 380 N.C. at 259, 867 S.E.2d
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at 644. Focusing on non-propensity probative value first, as the prosecutor argued at
trial and the State argues on appeal, the prior breaking and entering incident had
probative value as to Defendant’s intent. The State had to prove Defendant had the
intent to commit a breaking for the charges of attempted B&E and possession of
burglary tools under both N.C. Gen. Stat. § 14-54 and § 14-55. See N.C. Gen. Stat. §§
14-54, 14-55; Cox, 375 N.C. at 172, 846 S.E.2d at 488 (“The essential elements of
felonious breaking or entering are (1) the breaking or entering (2) of any building (3)
with the intent to commit any felony or larceny therein.” (emphasis added)); State v.
Bagley, 300 N.C. 736, 740-41, 268 S.E.2d 77, 79-80 (1980) (holding, under N.C. Gen.
Stat. § 14-55, “the burden rests on the State to show beyond a reasonable doubt that
the defendant possessed the article in question with a general intent to use it at some
time for the purpose of facilitating a breaking”); see also State v. Smith, 300 N.C. 71,
79, 265 S.E.2d 164, 169-70 (1980) (explaining one of the elements of “an attempt to
commit a crime” is “the intent to commit the substantive offense”). Defendant
pleading guilty to felony breaking and entering for a similar previous incident is
probative of intent here because it shows in the past in similar circumstances
Defendant had the requisite intent. If Defendant in similar circumstances in the past
had the intent to commit a breaking, the jury could reason he had the same intent in
the instant case.
The prior breaking and entering was also temporally proximate to the conduct
in the instant case. First, we note “‘remoteness in time is less significant when,’ as is
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the case here, ‘the prior conduct is used to show intent[.]’” Martin, 191 N.C. App. at
467, 665 S.E.2d at 474-75 (brackets from original omitted) (quoting State v. Stager,
329 N.C. 278, 307, 406 S.E.2d 876, 893 (1991)). Second, the gap in time between the
offenses is not particularly long in light of our precedent. The prior breaking and
entering occurred on 31 January 2018. The instant offense occurred on 15 November
2020. Thus, the gap in time is a little over two and a half years. In another case
regarding house break-ins, with a 404(b) analysis, this Court “d[id] not find the time
span of two years to be too remote in time to show motive and intent.” See id. at 468,
665 S.E.2d at 475. We similarly do not find a time span just a few months longer to
be too remote in time to show intent in this case. See id.
Thus, all three requirements for evidence to be admissible under Rule 404(b)
are met here. Therefore, after our de novo review, we conclude the trial court did not
err on Rule 404(b) grounds in admitting the evidence about the past breaking and
entering incident.
3. Rule 403
Defendant also argues the evidence about the past breaking and entering
incident “was inadmissible under Rule 403.” Specifically, Defendant contends
“utilizing multiple types of evidence—testimony, court records and videos—was
needlessly cumulative and unnecessary” and “[t]he cumulative effect of this evidence
was that the probative value was substantially outweighed by the danger of unfair
prejudice to” Defendant. We review the trial court’s decision to admit the evidence of
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the prior breaking and entering over Defendant’s Rule 403 objection for abuse of
discretion. See Beckelheimer, 366 N.C. at 130, 726 S.E.2d at 159.
Under Rule 403, evidence “may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” N.C. Gen. Stat. § 8C-1, Rule 403. “‘Unfair
prejudice,’ as used in Rule 403 means an undue tendency to suggest decision on an
improper basis, commonly, though not necessarily, as an emotional one.” Cagle, 346
N.C. at 506, 488 S.E.2d at 542 (citation and quotation marks omitted).
In the context of evidence of prior acts admissible under Rule 404(b), the Rule
403 inquiry has two components. First, reviewing courts again consider the
similarities between the prior conduct and charged conduct. See Beckelheimer, 366
N.C. at 133, 726 S.E.2d at 161 (finding no abuse of discretion based in part on “the
similarities between the accounts of the victim and the 404(b) witness”); State v.
Mangum, 242 N.C. App. 202, 213-14, 773 S.E.2d 555, 564 (2015) (finding no abuse of
discretion based in part on “the significant points of commonality between the Rule
404(b) evidence and the offense charged”). This consideration addresses the probative
side of Rule 403’s weighing of whether evidence’s “probative value is substantially
outweighed by the danger of unfair prejudice[.]” N.C. Gen. Stat. § 8C-1, Rule 403; see
Pabon, 380 N.C. at 258-59, 867 S.E.2d at 643-45 (explaining the role of similarity in
a Rule 404(b) analysis after saying Rule 404(b) evidence “is objectionable not because
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it has no appreciable probative value but because it has too much” such that
similarity relates to probativeness (citation and quotation marks omitted)).
Second, reviewing courts consider whether the trial court “careful[ly] handl[ed]
the process[.]” Beckelheimer, 366 N.C. at 133, 726 S.E.2d at 161 (finding no abuse of
discretion in part because of “the trial judge’s careful handling of the process”); see
also Mangum, 242 N.C. App. at 213-14, 773 S.E.2d at 564 (finding no abuse of
discretion based in part on “the trial court’s conscientious handling of the process”).
When examining this issue, reviewing courts consider whether the trial court “first
heard the testimony of the 404(b) witness outside the presence of the jury” to help
rule on its admissibility; excluded testimony about any incidents without sufficient
similarity; and gave limiting instructions to the jury. Beckelheimer, 366 N.C. at 133,
726 S.E.2d at 160-61 (discussing those facts before determining the trial judge had
carefully handled the process); Mangum, 242 N.C. App. at 213-14, 773 S.E.2d at 564
(mentioning the trial court’s review of the evidence outside the jury’s presence and
use of limiting instructions). The trial court’s careful handling of the process relates
to the other part of the Rule 403 weighing equation, “the potential danger of unfair
prejudice[.]” Beckelheimer, 366 N.C. at 133, 726 S.E.2d at 160-61 (starting its
discussion of whether the trial court carefully handled the process by stating, “a
review of the record reveals that the trial court was aware of the potential danger of
unfair prejudice to defendant” (quoting State v. Hipps, 348 N.C. 377, 406, 501 S.E.2d
625, 642 (1998))).
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Here, reviewing both factors, the trial court did not abuse its discretion when
it determined the danger of unfair prejudice did not substantially outweigh the
probative value of the prior breaking and entering incident. As we have explained
above in the main Rule 404(b) analysis, the prior incident and the charged conduct
shared substantial similarities. Further, the trial court carefully handled the
process. The trial court conducted a voir dire of the investigating officer from the
prior incident outside the jury’s presence to rule on whether the evidence about the
past incident would be admissible. The trial court also gave a limiting instruction
that explicitly told the jury the purposes for which they could consider the prior
breaking and entering incident and warned them they could “not consider it for any
other purpose.”
Defendant’s other argument that “utilizing multiple types of evidence—
testimony, court records and videos—was needlessly cumulative and unnecessary”
was not preserved. Longstanding precedent dictates when a defendant fails to make
an argument before the trial court, he cannot “swap horses between courts in order
to get a better mount[.]” See, e.g., State v. Hamilton, 351 N.C. 14, 22, 519 S.E.2d 514,
519 (1999) (quoting, inter alia, Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838
(1934)). Before the trial court, Defendant’s attorney only argued the evidence of the
prior breaking and entering was “highly prejudicial” and had “very limited probative
nature.” Defendant made no argument below that the multiple types of evidence
were unnecessarily cumulative. Therefore, we do not address this unpreserved
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argument.
Given the similarities between the prior incident and charged conduct as well
as the trial court’s “careful handling of the process,” Beckelheimer, 366 N.C. at 133,
726 S.E.2d at 161, the trial court did not abuse its discretion in ruling under Rule 403
that the probative nature of the evidence was not substantially outweighed by any
unfair prejudice. Because we have already concluded the trial court did not err under
Rule 404(b), we now hold the trial court did not commit error in allowing the State to
present evidence of the prior breaking and entering incident.
B. Authentication of Video Surveillance of Prior Breaking and Entering
Beyond his arguments on Rule 404(b) and 403 grounds, Defendant contends
“the trial court erred by allowing video surveillance of” the prior breaking and
entering because “the video was not properly authenticated.” (Capitalization
altered.) Specifically, Defendant asserts the State failed to present testimony the
security cameras used “were generally reliable” and did not address the “type of
recording equipment that was used.”
1. Standard of Review
We review de novo rulings on authentication issues under Rule of Evidence
901. See State v. Crawley, 217 N.C. App. 509, 515-16, 719 S.E.2d 632, 637 (2011)
(explaining a trial court ruling on authentication “is reviewed de novo on appeal as a
question of law” in a case about the admission of cell phone records under Rule 901).
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2. Merits
Turning to the merits for our de novo review, N.C. Gen. Stat. § 8-97 allows a
party to introduce, inter alia, videotapes “as substantive evidence upon laying a
proper foundation and meeting other applicable evidentiary requirements.” N.C.
Gen. Stat. § 8-97 (2019). For authentication purposes, the main evidentiary
requirement comes from Rule of Evidence 901. Rule 901(a) provides: “The
requirement of authentication or identification as a condition precedent to
admissibility 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) (2019).
Rule 901(b) then provides a non-exhaustive list of “examples of authentication or
identification conforming with the requirements of this rule[.]” N.C. Gen. Stat. § 8C-
1, Rule 901(b).
In State v. Snead, our Supreme Court recognized the example listed in Rule
901(b)(9) applies to surveillance videotapes like the ones at issue here: “Recordings
such as a tape from an automatic surveillance camera can be authenticated as the
accurate product of an automated process under Rule 901(b)(9).” Snead, 368 N.C. at
814, 783 S.E.2d at 736 (citation and quotation marks omitted). As a result,
“[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 is sufficient to
authenticate the video and lay a proper foundation for its admission as substantive
evidence.” Id. Additionally, video surveillance can be authenticated by a witness
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testifying the video “accurately depicted events that he had observed[.]” See State v.
Moore, 254 N.C. App. 544, 565, 803 S.E.2d 196, 210 (2017) (holding the video was not
properly authenticated in part because no testimony was presented about “whether
the video accurately depicted events that [a witness] had observed”).
Two examples are illustrative. In State v. Fleming, the investigating officer
testified “the surveillance video system was functioning properly at the time the video
was captured and the video images introduced at trial were unedited and were the
same video images created by this system.” State v. Fleming, 247 N.C. App. 812, 817-
18, 786 S.E.2d 760, 765-66 (2016). As a result, this Court held the “surveillance video
was adequately authenticated.” Id. at 818, 786 S.E.2d at 766. By contrast, in Moore,
this Court held the State “failed to offer a proper foundation” to admit video
surveillance testimony because “no testimony was elicited at trial concerning the type
of recording equipment used to make the video, its condition” on the date of the
offense, “or its general reliability.” Moore, 254 N.C. App. at 565, 803 S.E.2d at 210.
Further, no witness testified “the video accurately depicted events that he had
observed.” Id.
Here, the State sufficiently authenticated the surveillance video of the prior
breaking and entering incident. The investigating officer testified multiple times the
surveillance video introduced at trial was the same video that she had seen the night
of the prior breaking and entering, thereby fulfilling one requirement. See Snead,
368 N.C. at 814, 783 S.E.2d at 736 (requiring “the video introduced at trial” to be “the
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same video that was produced by the recording process”).
The State also presented sufficient evidence that the recording process was
reliable. Similar to Fleming, see 247 N.C. App. at 817-18, 786 S.E.2d at 765-66, the
investigating officer testified “to [her] knowledge” the video surveillance system was
working correctly that night. In addition, the investigating officer testified the
footage the homeowner sent matched what the homeowner described had happened.
This testimony resembles the scenario discussed in Moore where video surveillance
can be authenticated by a witness testifying the video “accurately depicted events
that he had observed[.]” Moore, 254 N.C. App. at 565, 803 S.E.2d at 210. While the
homeowner did not testify to this directly, the fact that his description matched the
footage provides further support for the reliability of the surveillance footage by
showing it recorded accurately as checked by someone who had observed the events.
Thus, the State sufficiently authenticated the surveillance video of the prior breaking
Even if the State had not sufficiently authenticated the surveillance video, we
would still reject Defendant’s argument because Defendant failed to show prejudice
from this purported error. For errors in rulings on authentication grounds, a
defendant must show prejudice. See Moore, 254 N.C. App. at 565-66, 803 S.E.2d at
210 (addressing prejudice immediately after ruling the trial court erred in admitting
video surveillance on authentication grounds). According to our statutes:
A defendant is prejudiced by errors relating to rights
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arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. The burden of showing such prejudice under this subsection is upon the defendant. Prejudice also exists in any instance in which it is deemed to exist as a matter of law or error is deemed reversible per se.
N.C. Gen. Stat. § 15A-1443(a) (2019).
Defendant cannot carry that burden here. As already discussed, the video
surveillance of the prior breaking and entering was introduced to prove Defendant
had the requisite intent. Taking away the surveillance video, the jury had before it
significant other evidence of Defendant’s intent because evidence about the same
incident came in through multiple other avenues. See Moore, 254 N.C. App. at 566-
67, 803 S.E.2d at 210-11 (summarizing other evidence presented on the same issue
as a piece of evidence admitted in error to determine whether there was prejudice
from the error in admitting the one piece of evidence). First, the State admitted into
evidence the plea agreement and judgment from the prior incident. Further, the
investigating officer testified about the prior breaking and entering depicted in the
surveillance footage. As part of that testimony, the investigating officer specifically
said the homeowner had surveillance footage that depicted “a male suspect” inside
the shed, and, based in part on those clips, she charged Defendant with felony
breaking and entering for the prior incident. This testimony clearly suggests the
surveillance footage depicted Defendant breaking and entering into the shed in this
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prior instance, which as discussed above helps show his intent to commit a breaking
in the current case.
In another part of his brief, Defendant even implicitly recognized the large
amount of evidence presented on the prior breaking and entering incident.
Specifically, Defendant argued, as part of his Rule 403 argument, “utilizing multiple
types of evidence—testimony, court records and videos—was needlessly cumulative
and unnecessary.” If the surveillance videos helped make the evidence about the
prior break-ins “needlessly cumulative and unnecessary[,]” then, taking away the
videos, the other evidence was still sufficient on its own to show intent. As a result,
Defendant cannot show a reasonable possibility a different verdict would have
happened at trial even if that admission were error and therefore cannot demonstrate
prejudice. See N.C. Gen. Stat. § 15A-1443(a).
III. Conclusion
After reviewing all the issues on appeal, the trial court did not commit an error.
The past breaking and entering incident was sufficiently similar and temporally
proximate to the charged conduct, and the State introduced it for a permissible
purpose. As a result the trial court did not err in admitting the evidence of the past
incident on Rule 404(b) grounds. The trial court also did not err in admitting the
evidence about the prior incident on Rule 403 grounds because its probative value
was not substantially outweighed by the risk of unfair prejudice. Finally, the State
properly authenticated surveillance footage of the prior breaking and entering
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incident, and, even if it had been error to admit the footage, Defendant could not
demonstrate prejudice. Therefore, we conclude there was no error.
NO ERROR.
Judges MURPHY and GORE concur.
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