{ "id": 8955423, "name": "STATE OF NORTH CAROLINA v. JOHN FRED GAITHER", "name_abbreviation": "State v. Gaither", "decision_date": "2003-11-04", "docket_number": "No. COA02-1477", "first_page": "96", "last_page": "103", "citations": [ { "type": "official", "cite": "161 N.C. App. 96" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "N.C. Gen. Stat. \u00a7 14-415.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "508 S.E.2d 315", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "318" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 514", "category": "reporters:state", "reporter": "N.C. 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Stat.", "weight": 2, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "313 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "587" } ], "opinion_index": 0 }, { "cite": "310 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2395265 ], "year": 1984, "pin_cites": [ { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0563-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "322 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "387" } ], "opinion_index": 0 }, { "cite": "312 N.C. 129", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750010 ], "year": 1984, "pin_cites": [ { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0129-01" ] } ], "analysis": { "cardinality": 841, "char_count": 19118, "ocr_confidence": 0.767, "pagerank": { "raw": 2.843590491686099e-07, "percentile": 0.8401169334582828 }, "sha256": "3747bc08e7749baeb45ad858848c3519e97540e8a96bcf1d21454b12a29e65ad", "simhash": "1:9f7b502f56ee1453", "word_count": 3110 }, "last_updated": "2023-07-14T20:10:07.642184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and ELMORE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JOHN FRED GAITHER" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nJohn Fred Gaither (\u201cdefendant\u201d) appeals his convictions of armed robbery and possession of a firearm by a convicted felon. For the reasons stated herein, we hold that defendant received a trial free of prejudicial error.\nThe evidence presented at trial tended to show the following: On 16 January 2002 at approximately 3:30 p.m., Belk department store security officer Tina Holt (\u201cHolt\u201d) and regional loss prevention manager Brian Phillips (\u201cPhillips\u201d) observed defendant on the second floor of the store in Wilmington, North Carolina via a security camera. Defendant drew the two employees\u2019 attention because he was wearing a large, heavy coat with a drawstring pulled tightly around the waist. Defendant also appeared to nervously look around the store. Holt and Phillips observed defendant conceal inside his coat nine Polo shirts from the boys\u2019 clothing department.\nAfter concealing the shirts, defendant zipped his coat and proceeded out of the boys\u2019 department to the escalator. As defendant rode the escalator to the first floor, Holt called for assistance from mall security officers, James Allen (\u201cAllen\u201d) and Jeffrey Reece (\u201cReece\u201d), while Phillips called 911. Belk security officer Caroline Short (\u201cShort\u201d) was called to the loss prevention office to monitor the situation via security camera while Phillips communicated with the 911 operator. Short eventually took over the communication with the 911 officer from Phillips.\nHolt, Allen and Reece attempted to stop defendant at the bottom of the escalator. As they approached defendant, he immediately put his hands in his pockets. Allen asked defendant to remove his hands from his pockets several times, but defendant refused to do so. Holt, Allen and Reece instructed defendant to accompany them to the loss prevention office, but defendant continued to walk toward the store exit. Allen and Reece placed themselves in front of the exit to prevent defendant from leaving.\nAs Reece stood in front of defendant, he focused on defendant\u2019s hands. Defendant removed his hand from his pocket, and Reece saw the barrel of a small handgun with defendant\u2019s right index finger on the trigger of the gun. Defendant said, \u201cYou don\u2019t \u2014 you don\u2019t want to do that.\u201d Reece immediately moved from defendant\u2019s path, and said, \u201cGun. He\u2019s got a gun.\u201d\nDefendant then exited Belk, walked down the sidewalk for approximately thirty feet and then proceeded into the parking lot, running between cars. Allen and Reece pursued defendant, but remained a distance of twenty feet away out of concern for their safety. Defendant\u2019s hands remained in his pockets the entire time he was running. Defendant ran toward Independence Boulevard.\nSergeant Brian Pettuce of the Wilmington Police Department was in the vicinity when the 911 dispatch reported that a shoplifting involving a weapon had occurred. He responded to the call and as he drove on Independence Boulevard he observed defendant run into the adjacent woods. The sergeant exited his vehicle, drew his weapon, and ordered defendant to come out of the woods and show his hands. Defendant complied with the order and was searched for a weapon. The search revealed no weapon but several Polo shirts were found stuffed inside defendant\u2019s coat. He then called for a K-9 unit to respond to the scene to conduct an article search. The K-9 unit recovered a loaded .22-caliber handgun from the woods. The recovery of the handgun was filmed by a local news crew which had responded to police reports of an armed robbery.\nAs an initial matter, we note that defendant\u2019s brief contains arguments supporting only five of the original seven assignments of error on appeal. The two omitted assignments of error are deemed abandoned pursuant to N.C.R. App. R. 28(b)(5) (2002). We therefore limit our review to those assignments of error properly preserved by defendant for appeal.\nThe issues presented for appeal are whether the trial court erred by (1) denying defendant\u2019s motion to dismiss the charge of armed robbery, or in the alternative, refusing to instruct the jury on the lesser-included offense of common law robbery; (2) admitting an audiotape of the 911 call into evidence; (3) admitting a videotaped news report of the gun recovery into evidence; and (4) denying defendant\u2019s motion to dismiss the charge of possession of a firearm by a convicted felon.\nDefendant first argues that the trial court erred in denying his motion to dismiss the charge of armed robbery. Defendant asserts there was insufficient evidence to support the charges. We disagree.\nIn ruling on a motion to dismiss based on insufficiency of evidence, the trial court must determine whether there is substantial evidence of each element of the offense charged. See State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387 (1984). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). When reviewing the evidence, the trial court must consider even incompetent evidence in the light most favorable to the prosecution, granting the State the benefit of every reasonable inference. See State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). Any contradictions or discrepancies in the evidence should be resolved by the jury. See id.\nIn the present case, defendant was convicted of armed robbery. By definition armed robbery is committed when \u201c[a]ny person . . . who, having in possession or with the . . . threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from . . . any place of business . . N.C. Gen. Stat. \u00a7 14-87(a). Absent the firearm or dangerous weapon element, the offense constitutes common law robbery. \u201cThe mere possession of a firearm during the course of taking property is not a violation of N.C. Gen. Stat. \u00a7 14-87(a); the firearm must be used to endanger or threaten the life of a person as that element is the essence of armed robbery.\u201d State v. Thomas, 85 N.C. App. 319, 321, 354 S.E.2d 891, 893 (1987). \u201cProof of armed robbery requires that the victim reasonably believed that the defendant possessed, or used or threatened to use a firearm in the perpetration of the crime.\u201d State v. Lee, 128 N.C. App. 506, 510, 495 S.E.2d 373, 376 (1998). \u201cThe State need only prove that the defendant represented that he had a firearm and that circumstances led the victim reasonably to believe that the defendant had a firearm and might use it.\u201d Id. A defendant\u2019s threatened use of his gun is deemed concomitant with and inseparable from his robbery attempt where the evidence shows that (1) the gun was used to facilitate the defendant\u2019s escape, and (2) the taking of property coupled with the escape constitutes one continuous transaction. State v. Cunningham, 97 N.C. App. 631, 634, 389 S.E.2d 286, 288 (1990). This standard applies even if there is no evidence that defendant used force or intimidation before the taking of property. Id.\nViewing the evidence in the light most favorable to the State, there was sufficient evidence presented at trial from which a jury could find that defendant\u2019s actions fulfilled all of the elements of armed robbery. First, there was an unlawful taking of the Polo shirts from the store premises. Second, defendant showed the security officers that he possessed a gun. Third, Holt, Allen and Reece testified that they believed defendant might use the gun, and thus were threatened.\nThe evidence also supports a finding that while defendant\u2019s use of intimidation occurred after the taking of property, defendant\u2019s effort to avoid apprehension by store and mall security officers is an action continuous with the taking and therefore constitutes a part of the robbery attempt. First, the evidence tends to show that while in the store defendant removed several shirts from a display, concealed them within his coat, and began walking toward the first floor store exits. Then when defendant was approached by three security guards who physically blocked defendant\u2019s exit to the street, defendant presented a gun and made a threatening statement. The defendant did not testify, nor did he present any witnesses to contradict this evidence. Thus, all of the evidence presented permits a reasonable inference of defendant\u2019s guilt sufficient to defeat a motion to dismiss. The fact that only one witness to the incident actually observed the gun in defendant\u2019s possession goes to the weight of the evidence. In ruling on a motion to dismiss, the trial court is not permitted to weigh the evidence. Thus, we conclude that in the light most favorable to the State there was sufficient evidence from which the jury could find that defendant committed armed robbery. Therefore, the trial court did not err in denying defendant\u2019s motion to dismiss the charge of armed robbery.\nNext, we address defendant\u2019s argument that the trial court erred in refusing to instruct the jury on the lesser-included offense of common law robbery. The North Carolina Supreme Court has held that:\nwhere the uncontroverted evidence is positive and unequivocal as to each and every element of armed robbery, and there is no evidence supporting defendant\u2019s guilt of a lesser offense, the trial court does not err in failing to instruct the jury on the lesser included offense of common law robbery.\nState v. Peacock, 313 N.C. 554, 562, 330 S.E.2d 190, 195 (1985). \u201cThe sole factor determining the judge\u2019s obligation to give such an instruction is the presence, or absence, of any evidence in the record which might convince a rational trier of fact to convict the defendant of a less grievous offense.\u201d State v. Wright, 304 N.C. 349, 351, 283 S.E.2d 502, 503 (1981).\nAs stated supra, there was no evidence presented to support an instruction of the lesser-included offense of common law robbery. The trial court therefore did not err by not instructing the jury on the lesser-included offense of common law robbery.\nDefendant next argues that the trial court improperly allowed the State to introduce an audiotape of the telephone call by Phillips and Short to 911 emergency services. We disagree.\nDefendant argues that the tape was not properly authenticated and therefore should not have been admitted into evidence. Defendant assigned error to the failure of the trial court to apply the foundational standard for the admission of tape recorded evidence as set out in State v. Lynch, 279 N.C. 1, 181 S.E.2d 561 (1971).\nThe seven-prong test established in Lynch has been superceded by North Carolina Rule of Evidence 901, which states that \u201c[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.\u201d N.C. Gen. Stat. \u00a7 8C-1, Art. 9. The Rule further states that a voice may be identified \u201cwhether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.\u201d Id. See State v. Stager, 329 N.C. 278, 315-17, 406 S.E.2d 876, 897-98 (1991); State v. Martinez, 149 N.C. App. 553, 559-60, 561 S.E.2d 528, 532 (2002). In State v. Rourke, this Court concluded that where two of the parties to a 911 call identified their own voices and the voices of two additional parties to the call on an audiotape, there was sufficient evidence to authenticate the tape as a recording of the 911 call made during the incident in question. 143 N.C. App. 672, 676, 548 S.E.2d 188, 191 (2001). Thus, we hold that the audiotape presented in this case was properly authenticated by the testimony of Phillips and Short, both of whom were able to identify their own voice and the voices of each other on the tape. The trial court therefore did not err in overruling defendant\u2019s objection to the admission of the tape into evidence on grounds of authentication.\nDefendant next argues that the trial court improperly allowed the State to introduce a video news report of the K-9 unit recovering a gun from the scene where defendant was apprehended. The evidence presented tends to show that a television news crew arrived at the scene after the suspect was apprehended and while the K-9 unit search for the weapon was in progress.\nVideotapes are admissible under North Carolina law for both illustrative and substantive purposes. Campbell v. Pitt County Memorial Hosp., 84 N.C. App. 314, 352 S.E.2d 902, aff\u2019d, 321 N.C. 260, 362 S.E.2d 273 (1987), overruled on other grounds by Johnson v. Ruark Obstetrics & Assoc., 327 N.C. 283, 395 S.E.2d 85 (1990). The North Carolina Rules of Evidence provide that \u201c[a]ny party may introduce a... video tape ... as substantive evidence upon laying a proper foundation and meeting other applicable evidentiary requirements. This section does not prohibit a party from introducing a photograph or other pictorial representation solely for the purpose of illustrating the testimony of a witness.\u201d N.C. Gen. Stat. \u00a7 8-97.\nIn the present case, the trial transcript reflects that the State offered the videotape for the sole purpose of illustrating the testimony of the K-9 officer. Additionally, the trial judge properly instructed the jury that the \u201cvideotape was being received into evidence for the limited purpose of illustrating the witnesses\u2019s testimony. ...\u201d Therefore, the trial court did not err in admitting the videotape into evidence.\nDefendant\u2019s final argument is that the trial court erred in admitting evidence of defendant\u2019s previous conviction without properly authenticating the document. We disagree.\nThe evidence admitted was a Judgment and Commitment of defendant\u2019s prior conviction for conspiracy to sell and deliver cocaine. State\u2019s witness, Detective Brad Overman (\u201cOverman\u201d) testified that the document was an exact copy of the original commitment order, that he observed the original document as it was pulled from the Sampson County records, and witnessed the copy produced and certified by the Clerk of Court.\nNorth Carolina Rule of Evidence 1005 states that \u201c[t]he contents of an official record ... if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. N.C. Gen. Stat. \u00a7 8C-1, Art. 10. The Judgment and Committment constitutes a certified official record of defendant\u2019s prior conviction per the seal and signature of the Deputy Clerk of Superior Court. The trial record tends to show that Overman testified that the Judgment and Commitment was correct. Therefore, we conclude that the document was properly authenticated.\nDefendant also argues that because the possession of a firearm occurred more than five years after the previous felony conviction, this Court\u2019s ruling in State v. Alston precludes a conviction on this charge. 131 N.C. App. 514, 518, 508 S.E.2d 315, 318 (1998). We disagree. Alston is superceded by the current language of N.C. Gen. Stat. \u00a7 14-415.1 which contains no time bar for this charge. We therefore overrule defendant\u2019s final assignment of error.\nFor the reasons contained herein, we hold that the trial court did not err.\nNo error.\nJudges HUNTER and ELMORE concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Tina A. Krasner, for the State.", "McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III and Terri W. Sharp, attorneys for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOHN FRED GAITHER\nNo. COA02-1477\n(Filed 4 November 2003)\n1. Robbery\u2014 armed \u2014 motion to dismiss \u2014 sufficiency of evidence \u2014 lesser-included offense of common law robbery\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of armed robbery, or in the alternative, refusing to instruct the jury on the lesser-included offense of common law robbery, because: (1) there was an unlawful taking of shirts from store premises, defendant showed the security officers that he possessed a gun, and the security officers testified that they believed defendant might use the gun; (2) while defendant\u2019s use of intimidation occurred after the taking of property, defendant\u2019s effort to avoid apprehension by store and mall security officers is an action continuous with the taking and therefore constitutes a part of the robbery attempt; (3) the fact that only one witness to the incident actually observed the gun in defendant\u2019s possession goes to the weight of the evidence; and (4) there was no evidence presented to support an instruction on the lesser-included offense of common law robbery.\n2. Evidence\u2014 audiotape of 911 call \u2014 authentication\nThe trial court did not err in an armed robbery and possession of a firearm by a convicted felon case by admitting an audiotape of the 911 call into evidence because the audiotape was properly authenticated by the testimony of two witnesses, both of whom were able to identify their own voice and the voices of each other on the tape.\n3. Evidence\u2014 videotaped news report of gun recovery \u2014 illustrative purpose\nThe trial court did not err in an armed robbery and possession of a firearm by a convicted felon case by admitting a videotaped news report of the gun recovery into evidence, because: (1) the State offered the videotape for the sole purpose of illustrating the testimony of the K-9 officer; and (2) the trial court properly instructed the jury that the videotape was being received into evidence for the limited purpose of illustrating the witnesses\u2019 testimony.\n4. Evidence\u2014 prior crimes or bad acts \u2014 conspiracy to sell and deliver cocaine \u2014 authentication\nThe trial court did not err in an armed robbery and possession of a firearm by a convicted felon case by admitting evidence of defendant\u2019s previous conviction for conspiracy to sell and deliver cocaine allegedly without proper authentication of the document, because: (1) N.C.G.S. \u00a7 8C-1, Rule 1005 states that the contents of an official record if otherwise admissible may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original; and (2) a witness testified that the document was an exact copy of the original commitment order, that he observed the original document as it was pulled from county records, and witnessed the copy produced and certified by the clerk of court.\n5. Firearms and Other Weapons\u2014 possession of a firearm by a convicted felon \u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of possession of a firearm by a convicted felon even though the possession of a firearm occurred more than five years after the previous felony conviction, because N.C.G.S. \u00a7 14-415.1 contains no time bar for this charge.\nAppeal by defendant from judgment entered 18 March 2002 by Judge Thomas D. Haigwood in New Hanover County Superior Court. Heard in the Court of Appeals 27 August 2003.\nAttorney General Roy Cooper, by Assistant Attorney General Tina A. Krasner, for the State.\nMcCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III and Terri W. Sharp, attorneys for defendant-appellant." }, "file_name": "0096-01", "first_page_order": 126, "last_page_order": 133 }