               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
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                                   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



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                                   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



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                                  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.


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                                   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




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                                   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,




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                                   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




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                                  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



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                                   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



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                                   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



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                                     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



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                                 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.

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                                  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)).




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                                   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).




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                                 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.



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                                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.




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