State v. Talbot

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.