               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA16-254

                                  Filed: 4 October 2016

Cumberland County, No. 14CRS063901, 14CRS063902

STATE OF NORTH CAROLINA

             v.

RODNEY JOHNATHAN ROSS, Defendant.


      Appeal by Defendant from judgment entered 16 October 2015 by Judge Ola M.

Lewis in Cumberland County Superior Court. Heard in the Court of Appeals 23

August 2016.


      Attorney General Roy A. Cooper, III, by Assistant Attorney General Brian D.
      Rabinovitz, for the State.

      Winifred H. Dillon for the Defendant.


      DILLON, Judge.


      Rodney Johnathan Ross (“Defendant”) appeals from jury verdicts finding him

guilty of several felonies including safecracking in conjunction with a breaking and

entering that occurred at a fast-food restaurant in Fayetteville. For the foregoing

reasons, we vacate the conviction for safecracking; we find no error with respect to

the other convictions; and we remand the matter for further proceedings not

inconsistent with this opinion.

                                     I. Background
                                   STATE V. ROSS

                                  Opinion of the Court



      At trial, the State’s evidence tended to show as follows:

      On the morning of 20 August 2014, an employee arrived at the restaurant and

noticed that an air conditioning unit had been removed from the rear of the building,

leaving a hole in the wall. The store’s surveillance system captured a video of the

break-in which showed a individual pulling out the air conditioning unit and entering

the restaurant. The intruder attempted to access the safe using paper that appeared

to have a safe code on it. After repeatedly attempting to open the safe, the intruder

returned to the opening in the rear wall of the building and appeared to converse with

someone outside. The intruder then took several boxes of hamburger meat from a

cooler and exited the premises.

      At least two employees and the store owner testified that they believed the

intruder in the video to be Defendant.       The State also presented evidence that

Defendant’s girlfriend (“Ms. Jackson”) had been employed at the restaurant as a

manager; that as a manager, Ms. Jackson had access to the restaurant’s safe

combination; that Ms. Jackson was fired from her position as manager approximately

two days before the break-in; and that coordinates from Ms. Jackson’s GPS tracking

bracelet (worn as a condition of her probation for an unrelated incident) showed that

she was in the vicinity of the restaurant in the early morning hours when the break-

in occurred.




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      Based on this and other evidence presented by the State, a jury found

Defendant guilty of a number of felonies, including safecracking. Following the jury’s

verdicts, Defendant pleaded guilty to the offense of attaining habitual felon status.

The trial court consolidated the charges for judgment and sentenced Defendant to an

active prison term.

      Defendant timely appealed; however, his notice of appeal failed to designate

the court to which his appeal was being taken as required by Rule 4 of the North

Carolina Rules of Appellate Procedure. Defendant has filed a petition for a writ of

certiorari requesting review of the judgment of the trial court. In our discretion, we

allow the petition and consider the merits of Defendant’s appeal.

                                      II. Analysis

      On appeal, Defendant argues that (1) the trial court committed plain error by

admitting the surveillance video into evidence; and (2) the trial court erred in its jury

instructions regarding the safecracking charge. We address each argument in turn.

                                A. Videotape Evidence

      In his first argument, Defendant contends that the store manager’s testimony

was insufficient to authenticate the surveillance video because the testimony failed

to establish the reliability of the surveillance system. Because defense counsel did

not object to the admission of the video at trial, we review this issue for plain error.

See State v. Black, 308 N.C. 736, 739-41, 303 S.E.2d 804, 806-07 (1983).



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                                   Opinion of the Court



       We hold that the surveillance video was properly authenticated based on

decisions from our Supreme Court, including its recent decision in State v. Snead.

___ N.C. ___, 783 S.E.2d 733 (2016).

       In Snead, our Supreme Court held that the recordings from a store’s automatic

surveillance camera “can be authenticated as the accurate product of an automated

process” under North Carolina Rule of Evidence 901(b)(9). Snead, ___ N.C. at ___,

783 S.E.2d at 736 (internal quotation marks omitted).              The Supreme Court

determined that a detailed chain of custody for the video need not be shown unless

the video is “not readily identifiable or is susceptible to alteration and there is reason

to believe that it may have been altered.” Id. at ___, 783 S.E.2d at 737 (internal

quotation marks omitted). Rather, the proponent must simply introduce “[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.” Id. at ___, 783 S.E.2d at 736. It

is generally sufficient for the party offering the video to “satisfy the trial court that

the item is what it purports to be and has not been altered.” Id. at ___, 783 S.E.2d at

737.

       The Snead Court concluded that the testimony of a retailer’s loss prevention

manager was sufficient to authenticate the store’s surveillance video, although the

manager was not otherwise present at the time of the theft, where the manager

testified that (1) the recording equipment was “industry standard,” (2) it was in



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                                  Opinion of the Court



proper working order on the date in question, (3) the system contained safeguards to

prevent tampering, such as a time stamp and (4) the video introduced at trial was the

same video he had watched on the digital video recorder. Id.

      In the present case, the store manager testified that: (1) the surveillance

system was comprised of sixteen night vision cameras, (2) he knew the cameras were

working properly on the date in question because the time and date stamps were

accurate, and (3) a security company manages the system and routinely checks the

network to make sure the cameras remain online. The store manager also testified

that the video being offered into evidence at trial was the same video he viewed

immediately following the incident and that it had not been edited or altered in any

way. Guided by our Snead and other decisions from our Supreme Court cited therein,

we hold that the store manager’s testimony is sufficient to lay a foundation for the

admission of the surveillance video into evidence under Rule 901.

      Even assuming, arguendo, that the store manager’s testimony was not

sufficient to lay a proper foundation, we hold that any error of the video’s admission

into evidence did not rise to the level of plain error in this particular case.

Specifically, Defendant has not made any showing that the State would not have been

able to lay a proper foundation had Defendant lodged an objection or that the video

was somehow flawed. See State v. Cummings, 352 N.C. 600, 620-21, 536 S.E.2d 36,




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51-52 (2000); State v. Jones, 176 N.C. App. 678, 682-84, 627 S.E.2d 265, 268-69 (2006).

Accordingly, this argument is overruled.

                        B. Jury Instruction on Safecracking Charge

       In his second argument, Defendant contends that the trial court erred by

giving jury instructions on the safecracking charge which varied materially from the

allegations contained in the indictment. See State v. Williams, 318 N.C. 624, 631,

350 S.E.2d 353, 357 (1986) (stating that “the failure of the allegations [in the

indictment] to conform to the equivalent material aspects of the jury charge

represents a fatal variance, and renders the indictment insufficient to support the

resulting conviction”). Specifically, Defendant points out that the indictment charged

him with committing the offense “by means of [] a fraudulently acquired combination

to the safe,” whereas the trial court instructed the jury that it could convict if it

determined that Defendant obtained the safe combination “by surreptitious means.”

       Our review of this issue on appeal is for plain error, as Defendant failed to

object to the jury instruction at trial on the basis that it varied materially from the

indictment.1 See State v. Francis, 341 N.C. 156, 159-62, 459 S.E.2d 269, 270-73

(1995); State v. Odom, 307 N.C. 655, 660-62, 300 S.E.2d 375, 378-79 (1983). To

demonstrate plain error, Defendant must not only show error, but also prejudice—




       1  In his brief, Defendant acknowledges his failure to lodge a proper objection at trial to the
instruction but argues on appeal for plain error review.

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                                   Opinion of the Court



that, but for the error, the jury likely would have reached a different result. State v.

Tucker, 317 N.C. 532, 539, 346 S.E.2d 417, 421 (1986).

      One essential element of the crime of safecracking is the means by which the

defendant attempts to open a safe. In the present case, no evidence was presented

by the State from which the jury could have concluded that Defendant attempted to

open the safe by the means as alleged in the indictment (by means of a “fraudulently

acquired combination to the safe”). The State, however, did offer evidence from which

the jury could conclude that Defendant attempted to crack the safe by the means

contained in the jury instruction (by using a combination obtained “by surreptitious

means”).   Accordingly, as more fully explained below, we reverse Defendant’s

safecracking conviction. See Williams, 318 N.C. at 631, 350 S.E.2d at 357 (holding

that a variance between the indictment and the jury instruction is fatal where the

variance concerns an offense element).

      “It is a rule of universal observance in the administration of criminal law that

a defendant must be convicted, if convicted at all, of the particular offense charged in

the bill of indictment. State v. Barnett, ___ N.C. ___, ___, 782 S.E.2d 885, 888 (2016)

(internal quotation marks omitted). If the indictment’s allegations do not conform to

the “equivalent material aspects of the jury charge,” this discrepancy is considered a

fatal variance. Williams, 318 N.C. at 631, 350 S.E.2d at 357.




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                                        Opinion of the Court



       In the present case, Defendant was convicted of safecracking under N.C. Gen.

Stat. § 14-89.1 for attempting2 to open the restaurant safe. The elements of this crime

are set forth in the statute as follows:

               (a) A person is guilty of safecracking if he unlawfully opens,
               enters, or attempts to open or enter a safe or vault:

                       (1) By the use of explosives, drills, or tools; or

                       (2) Through the use of a stolen combination, key,
                       electronic device, or other fraudulently acquired
                       implement or means; or

                       (3) Through the use of a master key, duplicate key
                       or device made or obtained in an unauthorized
                       manner, stethoscope or other listening device,
                       electronic device used for unauthorized entry in a
                       safe or vault, or other surreptitious means; or

                       (4) By the use of any other safecracking implement
                       or means.

N.C. Gen. Stat. § 14-89.1(a)(1)-(4) (2013) (emphasis added). The means element

which must be alleged and proven by the State is outlined in subsections (1)-(4) of the

statute.

       In the present case, the safecracking indictment alleged that Defendant

attempted to open the restaurant safe “by means of [] a fraudulently acquired

combination to the safe.”         This allegation is sufficient on its face to support a



       2  Our Supreme Court has held that N.C. Gen. Stat. § 14-89.1 makes “the completed act of
safecracking and the attempted safecracking offenses of equal dignity.” State v. Sanders, 280 N.C. 81,
88, 185 S.E.2d 158, 163 (1971).

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                                   Opinion of the Court



conviction under subsection (2) of N.C. Gen. Stat. § 14-89.1, which proscribes

safecracking “[t]hrough the use of [some] fraudulently acquired implement or means.”

Id. § 14-89.1(a)(2).

       The record shows, however, that the trial court instructed the jury that it could

convict Defendant if it determined that he attempted to open the restaurant safe

using a combination obtained “by surreptitious means,” as indicated in subsection (3)

of N.C. Gen. Stat. § 14-89.1. Id. § 14-89.1(a)(3).

       The term “surreptitious” is defined in Black’s Law Dictionary as “unauthorized

and clandestine; stealthily and usu. fraudulently done.” BLACK’S LAW DICTIONARY

1458 (7th ed. 1999) (emphasis added). As indicated in this definition, the term

“surreptitious” undoubtedly includes fraudulent acts; however, it also encompasses

other conduct, such as an “unauthorized” act not involving fraud.

       In the context of the present case, while the “surreptitious means” jury

instruction could include a finding that Defendant fraudulently obtained the

combination (as alleged in the indictment), the instruction also allows for a conviction

based on a finding that Defendant obtained the combination in an unauthorized, non-

fraudulent manner. Our Court has previously held that an error of this type is

harmless where essentially the same evidence is required to prove both the State’s

theory as contained in the indictment and the theory as contained in the erroneous

instruction. State v. Clinding, 92 N.C. App. 555, 562, 374 S.E.2d 891, 895 (1989).



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                                  Opinion of the Court



However, here, we conclude that the variance is not harmless. The State offered no

evidence that Defendant “fraudulently obtained” the combination.          Rather, the

evidence indicates that Defendant’s girlfriend, Ms. Jackson, was given the

combination when she worked as a manager of the restaurant but that she used the

combination in an unauthorized (surreptitious) manner when she provided the

combination to Defendant.

      We note that the trial court recognized that the State’s evidence did not

support the crime as alleged in the indictment. The court initially instructed the jury

that it could convict Defendant if it found that he “fraudulently acquired” the

combination, as alleged in the indictment. However, after consulting with counsel,

the trial court modified the instruction, replacing the term “fraudulently” with

“surreptitious,” stating that the original instruction did not “fit[] the evidence as

presented in this case.”

      In reaching our result, we are guided by decisions from our Supreme Court.

For instance, in Williams, our Supreme Court reversed the conviction of a defendant

for forcible rape under N.C. Gen. Stat. § 14-27.21. Williams, 318 N.C. at 632, 350

S.E.2d at 358. Under that statute, an individual is guilty of forcible rape if he

commits a rape and does one of three additional acts set forth in the statute. N.C.

Gen. Stat. § 14-27.21 (2013). In Williams, the defendant was charged with the first-

degree rape of his 12-year-old daughter in an indictment that alleged the rape was



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                                       Opinion of the Court



“by force and against her will[,]” but that did not allege that his daughter was under

the age of 13 years of age, an alternate theory for the offense. Williams, 318 N.C. at

625, 350 S.E.2d at 354. See generally N.C. Gen. Stat. § 14-27.2(a)(1), (2) (2013).3

However, the trial court instructed the jury that it could find the defendant guilty of

first-degree rape if the jurors found that the defendant engaged in the act, “at the

time, [the victim] was a child under the age of thirteen years.” Williams, 318 N.C. at

630, 350 S.E.2d at 357 (internal quotation marks omitted). Our Supreme Court

additionally stated:

               The requirements of a valid indictment are that it be
               sufficiently certain in the statement of the accusation so as
               to identify the offense with which the accused is charged;
               to protect the accused from being twice put in jeopardy for
               the same offense; to enable the accused to prepare for trial
               and to enable the court on conviction or plea of guilty to
               pronounce sentence according to the rights of the case. . . .
               An indictment that does not accurately and clearly allege
               all of the elements of the offense is inadequate to support a
               conviction. . . . Finally, the failure of the allegations to
               conform to the equivalent material aspects of the jury
               charge represents a fatal variance, and renders the
               indictment insufficient to support that resulting
               conviction. . . .

               Because the jury in this case was instructed and reached
               its verdict on the basis of the elements set out in N.C.G.S.
               § 14.27.2(a)(1), whereas defendant had been charged with
               rape on the basis of the elements set out in N.C.G.S. § 14–
               27.2(a)(2) [by means of force] . . . , the indictment under
               which [the] defendant was brought to trial cannot be
               considered to have been a valid basis on which to rest the

       3  Section 14-27.2 was re-codified as N.C. Gen. Stat. § 14-27.21 by Session Laws 2015-181, s.
3(a) effective 1 December 2015, and applicable to offenses committed on or after that date.

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                                   Opinion of the Court



             judgment. Therefore, we hold that the instructions given to
             the jury pursuant to N.C.G.S. § 14–27.2(a)(1) were
             fundamentally in error.

Id. at 630-31, 350 S.E.2d at 357 (citations omitted). See also Tucker, 317 N.C. at 540,

346 S.E.2d at 422 (finding plain error where the defendant was indicted for

kidnapping by removal, but convicted after the jury was instructed on a theory of

kidnapping by restraint); State v. Brown, 312 N.C. 237, 248, 321 S.E.2d 856, 862-63

(1984) (finding plain error where the defendant was indicted for first-degree

kidnapping on theories of facilitation of a felony and the victim was not released in a

safe place, but the jury was instructed on the theory that the victim was terrorized

and sexually assaulted). The Court therefore vacated the judgment because the

defendant was never charged in the rape indictment under the only theory which the

jury was instructed to consider. Williams, 318 N.C. at 631, 350 S.E.2d at 357. See

also State v. Taylor, 301 N.C. 164, 270 S.E.2d 409 (1980) (vacating a kidnapping

conviction, stating that “[i]t is a well-established rule in this jurisdiction that it is

error, generally prejudicial, for the trial judge to permit a jury to convict upon some

abstract theory not supported by the bill of indictment”); State v. Thorpe, 274 N.C.

457, 164 S.E.2d 171 (1968).

      The critical similarity between Williams and the present case is that there was

no evidence produced at trial that would support the pertinent element alleged in the

indictment, while there was evidence presented which supported the element on



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                                        Opinion of the Court



which the jury was instructed. It is not surprising that each jury (in Williams and in

the present case) returned a guilty verdict after being instructed on an element

supported by the evidence produced at trial, though not alleged in the indictment.

Likewise, it is clear that if instructed only on the theory alleged in the indictment,

each jury, faced with a complete lack of evidence in support of the relevant element,4

would have returned a not-guilty verdict. This is precisely the prejudice required to

show plain error: that, but for the erroneous instruction, the jury likely would have

reached a different result. See Tucker, 317 N.C. at 539, 346 S.E.2d at 421.

                                          III. Conclusion

       For the foregoing reasons, we hereby vacate Defendant’s conviction for

felonious safecracking and remand this matter to the trial court for resentencing and

further proceedings consistent with this opinion. See State v. Wortham, 318 N.C. 669,

674, 351 S.E.2d 294, 297 (1987) (holding that when offenses are consolidated for

judgment, the proper procedure is “to remand for resentencing when one or more but

not all of the convictions consolidated for judgment has been vacated”). We find no

error in Defendant’s remaining convictions.

       NO ERROR IN PART, VACATED AND REMANDED IN PART.

       Judges BRYANT and STEPHENS concur.


       4  The complete lack of evidence that Defendant obtained the combination by fraud led the trial
court to stop proceedings in the middle of the jury charge, send the jury out of the courtroom, and
initiate a discussion with counsel about how to instruct the jury on the safecracking charge, noting,
“The [S]tate has a problem.”

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