An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                 NO. COA14-280
                        NORTH CAROLINA COURT OF APPEALS

                             Filed: 31 December 2014


STATE OF NORTH CAROLINA

      v.                                      Beaufort County
                                              No. 08CRS050412
ASHLEY HOPE WYNN



      Appeal by Defendant from judgments entered 1 May 2013 by

Judge W. Russell Duke, Jr., in Beaufort County Superior Court.

Heard in the Court of Appeals 27 August 2014.


      Attorney General Roy A. Cooper, III, by Assistant Attorney
      General Brenda Eaddy, for the State.

      McCotter Ashton, PA, by Rudolph A. Ashton, III, for the
      Defendant.


      DILLON, Judge.


      Ashley     Hope    Wynn    (“Defendant”)      appeals     from    judgments

entered upon a jury verdict finding her guilty of felonious

breaking and entering; felonious larceny; and obtaining property

by false pretenses.

                                 I. Background
                                           -2-
       On or about 21 September 2007, a contractor reported that

certain tools, including a nail gun, had been stolen from the

inside of a house that he was constructing.                      Three days later,

two men and a woman took the nail gun to the home of James

Ratcliff and sold it to Mr. Ratcliff for $30.00.                        They gave him

a receipt signed by the woman, using the name “Adrian Phelps”.

       The   State     came    to   suspect      Defendant,     Jonathan       Cox,   and

Ralph Miles as the three individuals who sold the nail gun to

Mr. Ratcliff and charged them with various crimes.                            Mr. Miles

pleaded      guilty    to     certain    charges       and   received     a   mitigated

sentence.      However, Defendant and Mr. Cox did not plead guilty

to any charges and were brought to trial in April 2013 – over

five   and     one-half       years     after    the    incident   –     being      tried

together.

       At    trial,    Mr.     Ratcliff     testified        concerning       the   sale,

including that he knew the co-defendant, Mr. Cox, and that Mr.

Cox had come to his home with a man and woman whom he did not

know to sell him the nail gun.

       Mr.    Miles,    who     had     already    pleaded     guilty     to    certain

charges, testified that he, Defendant, and the co-defendant, Mr.

Cox, sold the stolen nail gun to Mr. Ratcliff.
                                               -3-
       Defendant testified in her own defense, denying that she

had any involvement in the incident.                         Further, she testified

that   she    had    never       met     Mr.      Ratcliff   or     ever      been    to    Mr.

Ratcliff’s home.

       The jury found Defendant guilty of felonious breaking and

entering (the house under construction); felonious larceny (of

the nail gun); and obtaining property (money from Mr. Ratcliff)

by false pretenses.                  The trial court         entered three separate

judgments, sentencing Defendant to eight to ten months for each

offense,      ordering          that        the     sentences     run      consecutively.

Defendant appeals from those judgments.

                                        II. Analysis

       On appeal, Defendant argues that the trial court erred in

admitting     into       evidence       a    certain     document      (the    “Document”)

because      it    was    not        properly       authenticated.         This      Document

purports to be Defendant’s statement made to an investigating

officer in which she admits being at Mr. Ratcliff’s home on the

day in question with Mr. Miles and Mr. Cox, thus contradicting a

key part of her trial testimony that she had never been to Mr.

Ratcliff’s home.              The Document contained two signatures, one

that   purported         to     be    that     of    Defendant    acknowledging            that

statement     as    hers      and     one    that     purported   to    be     that    of    an
                                          -4-
investigating officer acknowledging that he witnessed Defendant

sign the statement.          We agree that it was error to admit the

Document in its entirety.            Even assuming, without deciding, that

it   was    proper     to   allow    the     jury      to    consider      Defendant’s

purported      signature     to     authenticate        the       Document,       it   was

improper to allow the jury to consider the purported signature

of   the   investigating      officer       to    authenticate           the   Document.

Furthermore,      we    believe      that       this   error       was    prejudicial.

Accordingly,     we    reverse      the   judgments         against      Defendant     and

order a new trial.

                        1. Admission of the Document

      During its case in chief, the State did not attempt to

offer the Document into evidence.                   Defendant testified in her

own defense, stating that she was not involved in the crimes;

that she had never seen Mr. Ratcliff; and that she had never

been to Mr. Ratcliff’s home.                She also provided a handwriting

sample, which was admitted into evidence, in an effort to show

that it was not her handwriting on the receipt which was signed

by the seller as “Adrian Phelps” and given to Mr. Ratcliff when

he bought the nail gun.

      During    cross-examination,          counsel         for   the     State    handed

Defendant the Document in an attempt to authenticate it.                               The
                                             -5-
State referred to the Document as a voluntary statement she made

to “Investigator Gaskins,” purportedly an officer investigating

the crime.        Defendant was equivocal in her testimony regarding

her purported signature on the Document.                          She testified that the

signature looked “similar” to her handwriting, and that it was

possible that she signed it; however, she stated that she had no

memory     of    signing       the     statement            or     signing        any    witness

statement.       After counsel for the State asked her to read the

Document to herself, she testified that she remembered speaking

with an investigating officer, but that the statement in the

Document was not consistent with what she told the officer; that

she had no recollection of the name of the officer with whom she

spoke;     and    that     she     did      not    remember             signing     a    witness

statement.

      During the State’s rebuttal, the State moved to introduce

the   entire      Document        into      evidence.                  Defendant’s       counsel

objected,       arguing    that      the    Document             had    not   been      properly

authenticated.           The   trial       court       overruled        the   objection      and

admitted    the    Document       into      evidence.              On    appeal,        Defendant

argues that the Document was erroneously admitted, contending it

was not properly authenticated.

      An   out-of-court          statement        of    a    defendant        is    admissible
                                        -6-
under the exception to the hearsay rule for statements by a

party-opponent under Rule 801(d)(A) of the North Carolina Rules

of Evidence.        State v. Gregory, 340 N.C. 365, 401, 459 S.E.2d

638, 658 (1995).        However, such a statement is not admissible

unless it is properly authenticated.                 Rule 901 of our Rules of

Evidence provides that “[t]he requirement of authentication . .

. 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)    (2013).        Rule     902   provides   that

certain types of documents are deemed self-authenticating, not

requiring    extrinsic      evidence    to     be    considered      authenticated.

N.C. Gen. Stat. § 8C-1, Rule 902 (2013).

      In the context of a criminal trial, our Supreme Court has

further limited the manner in which a document purporting to be

the “confession” of the defendant may be authenticated.                         State

v.   Walker,   269    N.C.    135,    139,     152    S.E.2d    133,    137    (1967)

(holding that “[i]f [a] transcribed statement is not read by or

to [the] accused, and is not signed by [the] accused, or in some

other   manner      approved,   or    its     correctness      acknowledged,     the

instrument is not legally, or per se, the confession of [the]

accused; and it is not admissible in evidence as the written

confession     of     [the]     accused.”).            However,        these    extra
                                               -7-
limitations         do    not    apply    where      the    statement      by    a    criminal

defendant sought to be introduced is not a “confession.”                                 State

v. Moody, 345 N.C. 563, 579, 481 S.E.2d 629, 637 (1997).

       Here, we do not believe that the Document is a “confession”

of Defendant.            Specifically, assuming that the statement in the

Document is hers, Defendant does not confess to participating in

the crime.          Rather, she provides an alternate defense, namely

that       though   she    was    at     Mr.   Ratcliff’s       house   on      the    day   in

question, she did not participate in the nail gun transaction

but rather was there to use Mr. Ratcliff’s bathroom.                              Therefore,

the    statement         would    be     admissible        if   properly     authenticated

under the Rules of Evidence, not subject to the restrictions

laid down in Walker.

       In this case, the record suggests that the State attempted

to authenticate the Document in a number of ways.                                The record

indicates that the State attempted to authenticate the Document

by asking Defendant if she was familiar with the statement or if

she signed it, arguably pursuant to N.C. Gen. Stat. § 8C-1, Rule

901(b)(1) (2013) (allowing authentication through the testimony

of     a    witness      with     knowledge).          However,      the        record    also

demonstrates that Defendant denied that she was familiar with

the Document or that she remembered signing the Document.
                                             -8-
      The State then attempted to authenticate the Document by

questioning Defendant whether the signature on the Document was

similar    to    hers,     again   arguably         under     Rule    901(b)(1).          The

record also suggests that the State may have authenticated the

Document by allowing the jury to compare Defendant’s purported

signature on the Document with the handwriting sample Defendant

produced    during        her    trial       testimony,       arguably       under    Rule

901(b)(3)       (allowing       authentication          or    identification         of    a

signature       through    “[c]omparison           by   the   trier    of    fact    or    by

expert witness with specimens which have been authenticated”).

      Notwithstanding,           the     record         shows        that    the     State

represented the Document to be a statement made by Defendant to

a law enforcement officer named “Investigator Gaskins” who was

investigating the crime.               Investigator Gaskins was never called

as a witness at trial.               In other words, the jury was led to

believe that the Document was a statement made to Investigator

Gaskins;    and,    accordingly,         the    State     implicitly        attempted      to

authenticate       the    Document      by     Investigator      Gaskins’      purported

signature acknowledging that he witnessed Defendant’s statement

and   signature.          Specifically,        during     the   State’s      attempt      to

authenticate the document on its cross-examination of Defendant,

the following exchange took place:
                                        -9-
            Q:   Did you ever talk               to Investigator
            Gaskins of the Sheriff’s             Department about
            this case?

            A:        I don’t remember.

            [District   Attorney             hands   Document   to
            Defendant.]

            Q:   I’ll   show  you  . .   .  a   written
            statement,    one   that  says    “Criminal
            Investigation Division Voluntary Statement
            Form”. . . .

            *         *     *

            Q:   You    don’t   remember    talking             to
            Investigator Gaskins in January of 2008?

            A:        No, sir. . . .

            *         *     *

            Q:   So   this  statement   to  Investigator
            Gaskins . . . you’re saying you don’t
            remember making this statement.

            A:        No, sir.

(Emphasis added.)

    Therefore, assuming, arguendo, that it was appropriate to

authenticate the Document in the other ways identified above, we

believe it was error for the Document to be authenticated by the

admission        of       the    purported     signature/acknowledgment   of

Investigator Gaskins.            The State did not offer any evidence to

authenticate Investigator Gaskins’ signature, nor did the State

call him to testify.             His signature was not notarized nor is
                                -10-
there any indication that Investigator Gaskins was signing as a

notary or that his signature otherwise served as a proper means

to deem the Document as self-authenticated under Rule 902.1

     The difficulty in this case is that Defendant’s counsel was

not allowed the opportunity to elaborate on the basis of the

objection, though, the record reflects that Defendant’s counsel

attempted to do so:

          [PROSECUTOR]: Your Honor, for rebuttal, I
          would move to introduce [the Document into
          evidence].

          THE COURT:       It’s admitted.

          *    *       *

          [DEFENSE ATTORNEY]: Your      Honor,   I   would
          object to that.

          THE COURT:       All right.

          [DEFENSE ATTORNEY]: It was not identified –

          THE COURT:    Don’t argue before the jury.
          The objection is noted and the objection is
          overruled.

However, in her brief to this Court, Defendant argues that the

Document was not properly authenticated, in part, because the

1
  Whether the purported signature of the officer, if properly
authenticated, would have been inadmissible based on some other
grounds, e.g., hearsay or the right to confrontation, is not
before us.   Therefore, our holding should not be construed to
support the proposition that the signature would have been
admissible merely based on a conclusion that it had been
properly authenticated.
                                            -11-
State   did    not       call    the     officer     who    purportedly      wrote       down

Defendant’s statement and because the Document was not properly

self-authenticated.

                                 2. Prejudicial Effect

    Having concluded that the court erred, we must determine if

the error is reversible.               We believe it is.

    Because         we    believe        Defendant     properly        objected    to    its

admission at trial, the error of admitting the entire Document

is reversible if it was prejudicial.                        N.C. Gen. Stat. § 15A-

1443(a) (2013).               The test for prejudicial             error is       “whether

there   [exists]          a    reasonable       possibility       that     the    evidence

complained of contributed to the conviction[.]”                          State v. Milby,

302 N.C. 137, 142, 273 S.E.2d 716, 720 (1981) (emphasis added).

    In this case, Defendant’s entire defense was based on her

contention that she was not “the woman” at Mr. Ratcliff’s home

with Mr. Miles and the co-defendant, Mr. Cox, on the day in

question.          Defendant emphatically testified that she was not

involved      in    the       incident    and   that       she   had    never     seen   Mr.

Ratcliff or been to his home.                   The Document, however, contains

Defendant’s purported statement in which she admits being “the

woman” at Mr. Ratcliff’s home with Mr. Miles and Mr. Cox on the

day in question.
                                      -12-
    We believe that        it is      reasonably possible        that    a juror

would not have been convinced            of Defendant’s guilt           beyond a

reasonable doubt based on the other evidence presented by the

State, apart from the Document.                 The State’s     other    evidence

essentially consisted of the testimony of Mr. Miles and the in-

court identification by Mr. Ratcliff.

    Regarding Mr. Miles’ testimony, while he was unequivocal

regarding Defendant’s involvement, he testified that Defendant

was his former girlfriend and that he agreed to testify against

her in exchange for a reduced sentence.                  Accordingly, it is

reasonably    possible     that   a     juror    would   have       afforded     his

testimony very little weight.

    Regarding Mr. Ratcliff’s testimony, though he did identify

Defendant    as   “the   woman”   who    sold    him   the   nail    gun,   it    is

reasonably possible that a juror was not convinced that his in-

court identification was sufficiently reliable.                  Most notably,

he admitted that the co-defendant, Mr. Cox, was a long-time

acquaintance of his and that – somewhat incredibly –                    he had a

conversation with Mr. Cox just prior to taking the stand in

which Mr. Cox indicated that Defendant was “the woman” who sold

him the nail gun, signing the receipt given to him as “Adrian

Phelps”:
                                          -13-
               Q:   Well,   how  [d]o  you   know  whether
               [Defendant’s] name is Ashley Wynn or Adrian
               Phelps?

               [MR. RATCLIFF:]     Because I just talked to
               [co-defendant] Jonathan [Cox] today and he
               told me what her name was.

Further, Mr. Ratcliff admitted that the only time he had ever

seen “the woman” – prior to his identification of Defendant at

trial – was over five and one-half years earlier, on the day he

bought the nail gun.            When asked if Defendant was “the woman”

who signed the receipt, his response was rather equivocal:                          “I

think so.”       Finally, Mr. Ratcliff acknowledged his memory of the

day    in     question    had   faded     somewhat;    for      example,    when    he

admitted misremembering the exact amount he paid for the nail

gun, he stated that the sale had happened “long ago” and that he

“can’t remember some of it.”

       The     trial     court,    obviously        adressing     Mr.      Ratcliff’s

equivocal      identification      of    Defendant,    directly     asked     him    to

clarify       his      testimony       concerning     his     identification        of

Defendant,       at    which    time    Mr.   Ratcliff      responded   with       more

certainty.       However, despite his increased certainty in response

to the trial court’s questioning, it is reasonably possible that

a     juror     still     could        have   found      that     Mr.   Ratcliff’s

identification of Defendant was not sufficiently reliable, based
                                   -14-
on the manner in which the trial court questioned him and his

response.    Specifically, the trial court commanded Defendant and

Mr. Cox to stand together, whereupon the trial court asked Mr.

Ratcliff    three   times   in   succession   if   he   was   certain   that

Defendant and Mr. Cox, together, were the “people” who sold him

the gun, to which he responded in the affirmative each time,

however, with his last response being, “Yes, sir.               I’ve known

[the co-defendant] Jonathan [Cox] forever.”2

     We conclude that it is reasonably possible that a juror

became convinced of Defendant’s guilt beyond a reasonable doubt

by giving substantial weight to the Document.           We recognize that

any such juror may have reached his conclusion regarding the

Document’s authenticity based on any one of the number of ways

that the State sought to authenticate the Document.            However, we

also recognize that it is reasonably possible that at least one

of these jurors found that the Document as a whole was only



2
  While a trial court is permitted to question a witness, N.C.
Gen. Stat. § 8C-1, Rule 614(b)(2013), our Supreme Court has held
that “[s]uch questioning must be conducted in such a manner as
to avoid prejudice to either party.” State v. Whittington, 318
N.C. 114, 125, 347 S.E.2d 403, 409 (1986) (emphasis added). We
do not reach the issue of whether the trial court conducted its
questioning in a manner that prejudiced Defendant. However, in
this situation where Mr. Ratcliff had been unequivocal about
knowing Mr. Cox, the better practice would have been for the
trial court to ask Mr. Ratcliff about the certainty of his
identification of Defendant separately.
                                         -15-
properly authenticated by Investigator Gaskins’ acknowledgement,

or   that   said    juror     afforded    the   Document     substantial   weight

based on Investigator Gaskins’ acknowledgement, which itself was

not properly authenticated.              Therefore, we must conclude that

the error was prejudicial to Defendant and that she is entitled

to a new trial.

                    III. Defendant’s Motion to Dismiss

      Though we conclude that Defendant is entitled to a new

trial   based      on   the   improper      admission   of   the   Document,   we

address another argument raised by Defendant in this appeal, as

it may come up in a new trial.                  In this argument, Defendant

contends that the trial court erred in denying her motion to

dismiss the charge of breaking and entering into the house under

construction due to insufficient evidence.

      Regarding this charge, the State relied on the testimonies

of the owner of the contracting corporation constructing the

house   and   an    employee     of   the    corporation.      These   witnesses

essentially     testified      that   the    corporation     was   occupying   the

house for the purposes of completing construction and that the

house had been broken into and tools had been stolen.                  Defendant

contends that there was no evidence as to the owner of the house

and that the State was required to identify and call the owner
                                         -16-
of   the   house   to    testify   that    (s)he     had   not   given     Defendant

permission to enter the house.              We believe the decision by our

Supreme Court in State v. Sellers, 273 N.C. 641, 161 S.E.2d 15

(1968), is instructive.            In that case, the Supreme Court held

that an indictment for breaking and entering is sufficient where

it alleges the identity of the entity who owns or is occupying

the building.          Id. at 650, 161 S.E.2d at 21-22.               Here, we note

that the indictment charging Defendant states that the house was

“occupied” by the contractor.              We believe that testimony from

the contractor who was occupying the house was sufficient to

sustain     Defendant’s     conviction.         We   do    not   believe     that   a

conviction for breaking and entering fails because the State

failed     to   call    every   person   who    might     have   a    possessory    or

ownership interest in the property to testify.                       Therefore, this

argument is overruled.

                                 IV. Conclusion

      Based on the foregoing, we reverse the judgments against

Defendant and hold that she is entitled to a new trial.

      NEW TRIAL.

      Judge HUNTER, Robert C. and Judge DAVIS concur.

      Report per Rule 30(e).
