IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-37
Filed: 7 June 2016
Mecklenburg County, No. 14 CRS 000207-08, 210
STATE OF NORTH CAROLINA
v.
TIMOTHY CHADWICK FLEMING
Appeal by defendant from judgment entered 16 July 2015 by Judge Carla N.
Archie in Mecklenburg County Superior Court. Heard in the Court of Appeals 27
April 2016.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde for
the State.
Marilyn G. Ozer for defendant.
TYSON, Judge.
Timothy Chadwick Fleming (“Defendant”) appeals from jury convictions of
common law robbery, conspiracy to commit common law robbery, misdemeanor
larceny, and of having attained habitual felon status. The trial court arrested
judgment on the misdemeanor larceny charge. We find no error in part, reverse the
judgment in part, and remand for re-sentencing.
I. Factual Background
STATE V. FLEMING
Opinion of the Court
On 30 April 2013, a theft occurred at a Marshalls store located in Charlotte,
North Carolina. The store’s video surveillance system recorded the theft and depicted
a male, later identified as Defendant, enter Marshalls, walk around the women’s
handbag area, and leave the store. A second male entered the store five minutes
later. The second male, identified as Roger McCain (“McCain”), walked directly to
the women’s handbag area, picked up several handbags, and attempted to exit the
store.
Assistant manager Tracy Wetzel (“Wetzel”) was working in the front vestibule
of the store arranging shopping carts, when she observed McCain approach the exit
with an armload of Michael Kors purses. Wetzel stepped toward McCain and asked
him “if [she] could help him.” McCain pushed Wetzel out of the way and exited the
store.
While Wetzel was not physically injured, McCain pushed her with enough force
into the sliding doors to knock them off of their hinges. McCain jumped into a white
Toyota Camry, which displayed a handmade cardboard license plate. The Toyota was
waiting for McCain at the curb. Defendant was the driver.
Charlotte-Mecklenburg Police Department Detective Barry C. Kipp
(“Detective Kipp”) used license plate information obtained from the Toyota’s
cardboard plate and learned the vehicle belonged to Defendant’s mother and it was
parked at Defendant’s address. He identified Defendant as the first man seen in the
-2-
STATE V. FLEMING
Opinion of the Court
Marshalls surveillance video. Detective Kipp asked to interview Defendant.
Defendant waived his Miranda rights and agreed to speak with Detective Kipp.
During the interview, Defendant admitted to his involvement in the Marshalls
theft. Defendant stated he and McCain had planned to steal handbags from
Marshalls. Defendant identified himself and McCain as the perpetrators in the
surveillance video. Defendant stated he was not aware of an altercation with Wetzel
until McCain got into the vehicle after stealing the handbags.
On 6 January 2014, Defendant was indicted for common law robbery,
conspiracy to commit common law robbery, felonious larceny, and having attained
the status of habitual felon.
The State presented the evidence summarized above and the video of Detective
Kipp’s interview with Defendant. The trial court also admitted the State’s Rule
404(b) evidence of other crimes. The first incident was introduced through Marshalls
and T.J. Maxx corporate investigator Jonathan Nix (“Nix”). Nix testified that he was
called to investigate a theft, which had occurred on 12 April 2013 at a T.J. Maxx retail
store in Mooresville, North Carolina.
Nix testified he was familiar with the camera system used at the Mooresville
T.J. Maxx store, the system was functioning correctly at the time of the theft, and he
made a copy of the surveillance video showing a theft of handbags similar to the theft
at the Charlotte Marshalls. Nix testified the video proffered by the State was the one
-3-
STATE V. FLEMING
Opinion of the Court
he had copied and it had not been edited. This video was admitted into evidence and
published to the jury.
The second incident was introduced through Mark Armstrong (“Armstrong”).
Armstrong testified he was operating the surveillance camera system at Dillards
Department Store in Gastonia, North Carolina on 1 April 2013. From the
surveillance camera, he observed a male subject enter the store and steal five or six
handbags.
The court instructed the jury to limit their use of this evidence to:
“show the identity of the person who committed the crimes charged in
this case if they were committed, that the defendant had motive for the
commission of the crimes charged in this case, that the defendant had
the intent which was a necessary element of the crimes charged in this
case, that the defendant had the knowledge which is a necessary
element of the crimes charged in this case, that there existed in the mind
of the defendant a plan, scheme, system or design involving the crimes
charged in this case, the absence of mistake and absence of accident.”
Defendant did not present any evidence.
The jury convicted Defendant of common law robbery, conspiracy to commit
common law robbery, and misdemeanor larceny. He was also convicted of attaining
habitual felon status. The trial court arrested judgment on the conviction of
misdemeanor larceny.
For common law robbery, Defendant was sentenced to 127 to 165 months
imprisonment as an habitual felon. For conspiracy to commit common law robbery,
Defendant was sentenced to 89 to 119 months imprisonment as an habitual felon.
-4-
STATE V. FLEMING
Opinion of the Court
II. Issues
Defendant argues the trial court erred by: (1) admitting his videotaped
confession into evidence; (2) admitting 404(b) evidence of other crimes or bad acts
through hearsay testimony; (3) denying his motion to dismiss; and, (4) sentencing
Defendant to two consecutive sentence terms which would run consecutively to any
sentence which may be imposed upon Defendant in the future.
III. Admission of Videotape Confession as Illustrative Evidence
Defendant argues the State failed to lay a proper foundation for admission of
the videotape of his confession. We disagree.
A. Standard of Review
“In determining whether to admit photographic evidence, the trial court must
weigh the probative value of the photographs against the danger of unfair prejudice
to defendant.” State v. Blakeney, 352 N.C. 287, 309, 531 S.E.2d 799, 816 (2000). “This
determination lies within the sound discretion of the trial court, and the trial court’s
ruling should not be overturned on appeal unless the ruling was manifestly
unsupported by reason or [was] so arbitrary that it could not have been the result of
a reasoned decision.” State v. Goode, 350 N.C. 247, 258, 512 S.E.2d 414, 421
(quotations omitted).
B. Analysis
-5-
STATE V. FLEMING
Opinion of the Court
“Photographs and video are usually competent to be used by a witness to
explain or illustrate anything that it is competent for him to describe in words.” State
v. Stewart, 231 N.C. App. 134, 141, 750 S.E.2d 875, 880 (2013) (citation omitted). See
also State v. Billings, 104 N.C. App. 362, 371, 409 S.E.2d 707, 712 (1991) (basic
principles governing the admissibility of photographs apply also to motion pictures).
Video images may be introduced into evidence for illustrative purposes after a
proper foundation is laid. N.C. Gen. Stat. § 8-97 (2015). The proponent for admission
of a video lays this foundation with “testimony that the motion picture or videotape
fairly and accurately illustrates the events filmed (illustrative purposes).” State v.
Cannon, 92 N.C. App. 246, 254, 374 S.E.2d 604, 608-09 (1988), rev’d on other grounds,
326 N.C. 37, 387 S.E.2d 450 (1990), cert. denied, 356 N.C. 311, 571 S.E.2d 208 (2002).
Over Defendant’s objection, videotape of Detective Kipp’s interview with
Defendant was allowed into evidence. Defendant’s objection only addressed whether
the State had laid a proper foundation to admit the evidence, not whether Detective
Kipp was competent to testify to the interview. He testified that the videotape was a
“fair and accurate depiction of the interview.” The videotape was shown to the jury
solely to illustrate Detective Kipp’s testimony.
Because the videotape was admitted only for illustrative purposes, and
testimony asserted the videotape fairly and accurately illustrated the events filmed,
-6-
STATE V. FLEMING
Opinion of the Court
this testimony meets the authentication requirements enunciated in Cannon for
admission for illustrative purposes. This assignment of error is overruled.
IV. 404(b) Evidence of Other Crimes
Defendant argues the trial court erred by allowing the State to introduce
hearsay evidence of other crimes committed by Defendant pursuant to N.C. Gen. Stat.
§ 8C-1, Rule 404(b).
A. Standard of Review
“Determining the competency of a witness to testify is a matter which rests in
the sound discretion of the trial court.” State v. Phillips, 328 N.C. 1, 17, 399 S.E.2d
293, 301, cert. denied, 501 U.S. 1208, 115 L. Ed. 2d 977 (1991). “To test the
competency of a witness, the trial judge must assess the capacity of the proposed
witness to understand and to relate under oath the facts which will assist the jury in
determining the truth with respect to the ultimate facts.” State v. Liles, 324 N.C. 529,
533, 379 S.E.2d 821, 823 (1989).
“The trial court must make only sufficient inquiry to satisfy itself that the
witness is or is not competent to testify. The form and manner of that inquiry rests
within the discretion of the trial judge.” In re Will of Leonard, 82 N.C. App. 646, 649,
347 S.E.2d 478, 480 (1986).
B. Analysis
-7-
STATE V. FLEMING
Opinion of the Court
The challenged testimony was elicited during the voir dire of Nix, who
investigated a theft of handbags in Union County. The voir dire was held to
determine the admissibility of surveillance video of the theft. This evidence was
introduced pursuant to Rule 404(b) for the purpose of showing motive, intent,
preparation, or plan. See N.C. Gen. Stat. § 8C–1, Rule 404(b) (2015). “[P]reliminary
questions concerning the qualification of a person to be a witness are determined by
the trial court, which is not bound by the rules of evidence in making such a
determination. In determining whether a person is competent to testify, the court
may consider any relevant information which may come to its attention.” In re
Faircloth, 137 N.C. App. 311, 316, 527 S.E.2d 679, 682 (2000) (citation omitted).
The trial court was not acting as the trier of fact, and was not bound by the
Rules of Evidence while making a preliminary determination outside the presence of
the jury. The testimony of Nix was properly admitted by the trial court during the
voir dire hearing.
Defendant also argues surveillance video from the Union County T.J. Maxx
was inadmissible because it was not based on Nix’s personal knowledge. Nix was not
present when the theft recorded took place.
“Real evidence is properly received into evidence if it is identified as being the
same object involved in the incident and it [is] shown that the object has undergone
no material change.” State v. Snead, __ N.C. __, __, 783 S.E.2d 733, __, 2016 WL
-8-
STATE V. FLEMING
Opinion of the Court
1551403, at *3 (N.C. Apr. 15, 2016) (internal quotation marks and citation omitted).
“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).”
Id. (quotation and citation omitted). The State may authenticate the video and lay a
proper foundation for its admission with evidence showing that the recording process
is reliable and that the video introduced at trial is the same video that was produced
by the recording process. Id.
During voir dire, Nix 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. The
surveillance video was adequately authenticated. See id. The State laid a proper
foundation to support its introduction into evidence. This assignment of error is
overruled.
V. Conspiracy to Commit Common Law Robbery
Defendant argues the State presented insufficient evidence tending to show he
entered into an agreement to perform every element of common law robbery. We
agree.
A. Standard of Review
“Upon defendant’s motion for dismissal, the question for the court is whether
there is substantial evidence (1) of each essential element of the offense charged, or
-9-
STATE V. FLEMING
Opinion of the Court
of a lesser offense included therein, and (2) of defendant’s being the perpetrator of
such offense.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (citation
and internal quotation marks omitted). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). “In making its
determination, the trial court must consider all evidence admitted, whether
competent or incompetent, in the light most favorable to the State, giving the State
the benefit of every reasonable inference and resolving any contradictions in its
favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515
U.S. 1135, 132 L. Ed. 2d 818 (1995). “This Court reviews the trial court’s denial of a
motion to dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33
(2007).
B. Analysis
“A criminal conspiracy is an agreement between two or more persons to do an
unlawful act or to do a lawful act in an unlawful way or by unlawful means.” State v.
Bindyke, 288 N.C. 608, 615, 220 S.E.2d 521, 526 (1975) (citations omitted).
Whether or not an agreement exists to support a finding of guilt in a conspiracy
case is generally inferred from an analysis of the surrounding facts and
circumstances, rather than established by direct proof. State v. Whiteside, 204 N.C.
710, 712-13, 169 S.E. 711, 712 (1933). The mere fact that the crime the defendant
- 10 -
STATE V. FLEMING
Opinion of the Court
allegedly conspired with others to commit took place does not, without more, prove
the existence of a conspiracy. State v. Arnold, 329 N.C. 128, 142, 404 S.E.2d 822, 831
(1991). “If the conspiracy is to be proved by inferences drawn by the evidence, such
evidence must point unerringly to the existence of a conspiracy.” State v. Massey, 76
N.C. App. 660, 662, 334 S.E.2d 71, 72 (1985). “There is a distinction between the
offense to be committed and the conspiracy to commit the offense. In the one, the
corpus delicti is the act itself; in the other, it is the conspiracy to do the act.” Whiteside,
204 N.C. at 712, 169 S.E. at 712 (citations omitted).
Here, to survive a motion to dismiss, the State was required to prove “an
agreement [between Defendant and Roger McCain] to perform every element of”
common law robbery. State v. Dubose, 208 N.C. App. 406, 409, 702 S.E.2d 330, 333
(2010) (quoting State v. Suggs, 117 N.C. App. 654, 661, 453 S.E.2d 211, 215 (1995))
(emphasis supplied). Common law robbery is “the felonious, non-consensual taking
of money or personal property from the person or presence of another by means of
violence or fear.” State v. Smith, 305 N.C. 691, 700, 292 S.E.2d 264, 270, cert. denied,
459 U.S. 1056, 74 L.Ed.2d 622 (1982).
The State attempted to connect Defendant with the “violence or fear” element
of the common law robbery through the testimony of Detective Kipp. When asked
whether Defendant stated “he was aware of the altercation with the manager at
Marshalls” [Ms. Wetzel], during his conversations with police, Detective Kipp
- 11 -
STATE V. FLEMING
Opinion of the Court
testified that Defendant indicated that he was only aware an altercation had occurred
once Roger McCain “got back in the vehicle” as they escaped following the robbery.
During cross-examination of Detective Kipp, this exchange occurred regarding
the common law robbery charge:
Q. Now, in your interview and investigation in this case you had no –
you received no information at all that Mr. Fleming was involved at
all with the actual assault upon Ms. Wetzel; is that correct?
A. Correct.
Q. He was sitting in the car [sic] far as what you understand the
situation?
A. He was driving the car, correct.
Q. He said he didn’t see the incident at all, and you don’t have any
evidence to prove otherwise, do you?
A. No.
Q. Now, when Assistant DA says a plan, you haven’t – Mr. Fleming
said nothing about any plan, did he?
A. I don’t remember.
Q. Okay. And, in fact, there is no evidence at all from Mr. Fleming
about any plan to commit any kind of common law robbery, was
there – or has he?
A. No. There’s no plan for that, no.
Considering this evidence in the light most favorable to the State, giving the
State the benefit of every reasonable inference, and resolving any contradictions in
its favor, the State presented no evidence of an agreement to support a conspiracy to
commit common law robbery between Defendant and McCain.
- 12 -
STATE V. FLEMING
Opinion of the Court
The only evidence presented at trial tended to show the absence of such an
agreement. McCain’s use of or “means of violence or fear” to push Wetzel aside to
consummate the larceny was unknown to Defendant until after the robbery. None of
the other “grab and run” larcenies involving Defendant and McCain showed any other
takings occurred “by means of violence or fear.” The trial court erred by denying
Defendant’s motion to dismiss the charge of conspiracy to commit common law
robbery.
VI. Sentencing
Defendant argues the trial court erred by sentencing him to two consecutive
sentences, which would also run consecutively to any sentence imposed upon
Defendant in the future. Defendant contends such sentence violates his
constitutional right to be free from cruel and unusual punishment. U.S. Const.
Amend. VIII; N.C. Const. Art. I, Sec. 27.
A. Preservation of Error
The State argues Defendant has not preserved this issue for appellate review,
as he failed to raise this constitutional issue at trial. See State v. Garcia, 358 N.C.
382, 410, 597 S.E.2d 724, 745 (2004) (“[C]onstitutional matters that are not raised
and passed upon at trial will not be reviewed for the first time on appeal.” (Internal
citations and quotation marks omitted)).
- 13 -
STATE V. FLEMING
Opinion of the Court
“An error at sentencing is not considered an error at trial for the purpose of
[Appellate] Rule 10(a) because this rule is directed to matters which occur at trial and
upon which the trial court must be given an opportunity to rule in order to preserve
the question for appeal.” State v. Curmon, 171 N.C. App. 697, 703, 615 S.E.2d 417,
422 (2005) (internal citation and quotation marks omitted). Defendant was not
required to object at sentencing to preserve the issue on appeal. State v. Pettigrew,
204 N.C. App. 248, 258, 693 S.E.2d 698, 704-05 (2010) (citation omitted).
B. Standard of Review
Within the limits of the sentence permitted by law, the character and extent of
the punishment to be imposed rests within the sound discretion of the court. We
review the sentence for manifest and gross abuse. State v. Hullender, 8 N.C. App. 41,
42, 173 S.E.2d 581, 583 (1970), see also State v. Sudderth, 184 N.C. 753, 114 S.E. 828
(1922).
C. Analysis
Not every improper remark made by the trial court requires re-sentencing.
“When considering an improper remark in the light of the circumstances under which
it was made, the underlying result may manifest mere harmless error.” State v.
Pickard, 143 N.C. App. 485, 490, 547 S.E.2d 102, 106 (2001) (quotation and citation
omitted).
- 14 -
STATE V. FLEMING
Opinion of the Court
The sentence contained in the written judgment is the actual entry of judgment
and the sentence imposed. State v. Crumbley, 135 N.C. App. 59, 66, 519 S.E.2d 94, 99
(1999). The sentence announced in open court is merely the rendering of judgment
and does not control. State v. Hanner, 188 N.C. App. 137, 139, 654 S.E.2d 820, 821
(2008). See also Abels v. Renfro Corp., 126 N.C. App. 800, 803, 486 S.E.2d 735, 737
(“Announcement of judgment in open court merely constitutes ‘rendering’ of
judgment, not entry of judgment.”), disc. review denied, 347 N.C. 263, 493 S.E.2d 450
(1997).
While the transcript shows the trial court made oral comments during
sentencing that the sentences imposed would run consecutively to any sentence
Defendant might receive in the future, these comments or conditions are not reflected
in Defendant’s written and entered judgment. Defendant’s sentence was imposed
within the presumptive range allowed by statute and is presumed to be regular and
valid. State v. Earls, 234 N.C. App. 186, 193, 758 S.E.2d 654, 659 (2014). Defendant
has not overcome this presumption. This argument is overruled.
VII. Conclusion
The State laid a proper foundation to admit a recording of Defendant’s
confession to illustrate the witness’ testimony. Surveillance recordings of other
larcenies Defendant participated in were properly introduced and limited as Rule
404(b) evidence.
- 15 -
STATE V. FLEMING
Opinion of the Court
The State’s evidence was insufficient to support submitting the charge of
conspiracy to commit common law robbery to the jury. Defendant’s motion to dismiss
should have been granted. Defendant’s conviction for conspiracy to commit common
law robbery is reversed.
Defendant has failed to show any reversible error resulting from the trial
court’s comments at sentencing. These comments are not reflected in the final
written judgment entered.
NO ERROR IN PART, REVERSED IN PART, AND REMANDED.
Judges CALABRIA and HUNTER, JR concur.
- 16 -