An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-711
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 18 February 2014


STATE OF NORTH CAROLINA

      v.                                      Edgecombe County
                                              No. 11-CRS-5228
DANIEL JUNIOR BANDY



      Appeal by Defendant from judgment entered 27 August 2012 by

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

Heard in the Court of Appeals 27 January 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      David D. Lennon, for the State.

      Larry C. Economos for Defendant.


      DILLON, Judge.


      Defendant     appeals     from   a   judgment     entered     upon   a   jury

verdict finding him guilty of robbery with a dangerous weapon.

All   of   Defendant’s      arguments      derive   from    the   trial    court’s

admission of a surveillance videotape into evidence.                   We find no

error.

      The State presented evidence tending to show that on 24

July 2011, Tannisha Johnson was working as the cashier of the
                                      -2-
Lucky   Land   Sweepstakes    Café    (hereinafter   “Lucky   Land”).     To

permit one to enter the business, Ms. Johnson had to push a

button to unlock the door.           Shortly before the business closed

at 2:00 a.m., Defendant was the last patron in the business.

Soon after Defendant walked out of the business, an unidentified

man wearing a mask entered, pointed a gun at Ms. Johnson, and

demanded money.        Ms. Johnson complied with the man’s demand.

After the man left,       Ms. Johnson called her friend, Taranius

Whitehead, and reported that Defendant had robbed her.              She also

called 911 and reported the crime.

    Mr. Whitehead testified that after receiving a call from

Ms. Johnson, he located Defendant, his cousin, and told him that

he needed to return to Lucky Land.           Defendant told Mr. Whitehead

that a man pointed a gun at him and instructed him to leave

Lucky Land.      Mr.   Whitehead followed       Defendant back to Lucky

Land.

    Sergeant William Moore of the Edgecombe County Sheriff’s

Department testified that he responded to a dispatch to Lucky

Land on 24 July 2011.         When he arrived, he saw Defendant, Ms.

Johnson,   Mr.   Whitehead,    and    an    unidentified   female   standing

outside the business.      Defendant told the officer that as he was

leaving the business, a man wearing a white mask jumped out from
                                         -3-
behind a water cooler, told Defendant to leave or he would kill

Defendant,    and    ran   into    the     business.       Defendant      told   the

officer that he then ran to his truck and left.

    After     Sergeant     Moore    testified,      the    State     announced   its

intention    to     seek   admission       into    evidence     of    a   videotape

recorded by a surveillance camera at the entrance to Lucky Land.

Defendant objected, and the court conducted a voir dire hearing

to determine its admissibility.

    Bonnie     Blackley,     the    co-owner       of   Lucky   Land,     testified

during voir dire that the business had a security system that

included a surveillance camera which recorded what was happening

in each area of the business.            She provided law enforcement with

the recording for 24 and 25 July 2011.                  Detective Sergeant Ross

Ellis   of   the    Edgecombe     County    Sheriff’s      Department     testified

that he received security camera footage from Ms. Blackley’s

daughter, viewed the footage, and turned it over to the district

attorney’s    office.      Detective       Ellis    also    testified     that   the

surveillance camera was motion activated, meaning it did not

record or operate unless it sensed movement.                       Detective John

Denton of the Rocky Mount Police Department testified that he

received the footage from the district attorney’s office and
                                       -4-
shortened the length of the footage to show only the time frame

pertinent to the crime.

       Defendant’s    counsel       conceded      that       the    recording    was

authentic, but argued that the recording was misleading and not

admissible because of time gaps in the recording.                          The trial

court ruled that the recording was authentic and admissible.

When   the    State   later     offered     the    recording       into    evidence,

Defendant did not object.

       Detective Ellis later testified before the jury that he had

searched Defendant’s vehicle and found a wallet belonging to a

person   named    “Leonard      Jenkins,”     several        rounds   of    revolver

ammunition,     and   several    bullet      holes      in   the    vehicle.     His

department has not been able to find Leonard Jenkins.

       To bring forward on appeal a challenge to the admission of

evidence, a defendant must object to the evidence when it is

actually introduced at trial.          State v. Ray, 364 N.C. 272, 277,

697 S.E.2d 319, 322 (2010).            An objection to the admission of

evidence     during   a   hearing    outside      the    presence     of   the   jury

before or during another portion of the trial is insufficient to

preserve the issue for full review.                  Id.           Absent a timely

objection, the defendant can obtain appellate relief only if he

shows that the trial court committed plain error.                          State v.
                                          -5-
Golphin, 352 N.C. 364, 449, 533 S.E.2d 168, 224 (2000).                              The

defendant      must    specifically       contend     that    the    court    committed

plain   error.         State    v.   Dennison,      359    N.C.     312,   312-13,   608

S.E.2d 756, 756 (2005).              Plain error is a “fundamental error”

which had a probable impact upon the jury’s verdict.                          State v.

Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012).

       Here,    Defendant       alleges     that    the    court     committed   plain

error by admitting the videotape.                   We conclude, however, that

the court did not commit plain error.                      Defendant conceded that

the video recording is authentic and accurate as to what it

depicts,    which      is     Defendant’s    exit     from    Lucky    Land    and   the

masked man’s       entrance into the business.                    Defendant has not

shown    that    the    original      length       recording      contains    anything

germane to the issue of his guilt, innocence, or credibility

which was not shown to the jury.                We conclude that the fact that

the videotape was shortened to a specific time frame had no

probable impact upon the jury’s verdict.

       Defendant       also    contends     that      he    was     denied    effective

assistance of counsel because of counsel’s failure to object to

the evidence at the time it was admitted.                     To establish a valid

claim of ineffective assistance of counsel, a defendant must

show    that    counsel’s       performance     was       deficient    and    that   his
                                         -6-
defense     was    prejudiced     by    counsel’s       defective     performance.

Strickland    v.    Washington,        466     U.S.    668,    687   (1984).        To

establish    prejudice,     the    defendant          must    show   that   but   for

counsel’s unprofessional errors, the result of the proceeding

would have been different.             Id. at 694.       For the reasons stated

above, Defendant has not shown a different outcome would have

occurred at trial or on appeal if counsel had interposed an

objection to the condensed videotape when it was offered into

evidence.

    Accordingly,       we   conclude      that    Defendant      received    a    fair

trial free of prejudicial error.

    NO ERROR.

    Chief Judge MARTIN and Judge HUNTER, JR. concur.

    Report per Rule 30(e).
