{
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  "name": "STATE OF NORTH CAROLINA v. JERRY LENELL BELK",
  "name_abbreviation": "State v. Belk",
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    "judges": [
      "Judges CALABRIA and ELMORE concur."
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    "parties": [
      "STATE OF NORTH CAROLINA v. JERRY LENELL BELK"
    ],
    "opinions": [
      {
        "text": "WYNN, Judge.\nDefendant Jerry Lenell Belk appeals his convictions for felony breaking and entering, felony larceny after breaking and entering, and obtaining habitual felon status. He argues that the trial court erred by allowing a police officer to testify that Defendant was the individual depicted in a surveillance video tape. After careful review, we hold that the trial court committed prejudicial error by admitting the testimony of Officer Ring, identifying the Defendant as the person depicted in the video surveillance tape, and remand for a new trial.\nAt trial, the State presented evidence tending to show the following: On 7 October 2007, Officer Aaron Appleman, a police officer with the Charlotte-Mecklenburg Police Department, responded to an alarm call at 500 West Fifth Street in Charlotte, N.C. at approximately 2:42 p.m. At the scene, the lobby door was open but intact. However, the glass door to the interior office suite occupied by Elder Design Limited (doing business as ESD Architecture) \u201chad been smashed into pieces.\u201d The rear office door and side window to the back office were also damaged. Elliott Elder, the chief executive officer of ESD Architecture, later reported that a laptop computer worth approximately $2800 had been stolen.\nOn the day of the break-in, ESD Architecture was equipped with a video security system provided to the company by \u201ca licensed bank security system vendor.\u201d The security company downloaded the video surveillance footage from 7 October 2007 onto a compact disk, which Danielle Matuszczk, an operations manager at ESD Architecture, gave to Charlotte-Mecklenburg Police Officer Christopher Eubanks on 23 October 2007. During the course of the investigation, Charlotte-Mecklenburg Police Officer Donna Ring viewed the video surveillance footage and identified Defendant as the individual in the video.\nDefendant was indicted for felony breaking and entering and felony larceny after breaking and entering on 10 December 2007, and for attaining habitual felon status on 11 August 2008. After a trial in Superior Court, Mecklenburg County, a jury issued guilty verdicts on all three counts. The trial court entered judgment and commitment on 10 September 2008, sentencing Defendant to a term of 133 to 169 months imprisonment with fifty-three days credit for confinement prior to judgment, and recommended a civil lien against Defendant for attorney\u2019s fees ($2460).\nOn appeal, Defendant argues that the trial court erred by allowing Officer Ring\u2019s lay opinion testimony identifying Defendant as the person depicted in the video surveillance footage.\nBecause Officer Ring was in no better position than the jury to identify Defendant as the person in the surveillance video, we hold that the trial court erred by admitting the officer\u2019s testimony. Further, finding the error to be prejudicial, we remand for a new trial.\nPursuant to the N.C. Rules of Evidence, admissible lay opinion testimony \u201cis limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 701 (2007). Although N.C. appellate courts have not addressed the specific issue of lay opinion testimony identifying a defendant as the person depicted in a surveillance video, \u201c[o]rdinarily, opinion evidence of a non-expert witness is inadmissible because it tends to invade the province of the jury.\u201d State v. Fulton, 299 N.C. 491, 494, 263 S.E.2d 608, 610 (1980).\nIn State v. Fulton, our Supreme Court found an officer\u2019s testimony that the design of the shoe tracks in a photograph of the crime scene was-the same pattern as the tread on the defendant\u2019s shoe to be inadmissible lay opinion testimony. The Court reasoned \u201cthe jury was apparently as well qualified as the witness to draw the inferences and conclusions from the facts that [the officer] expressed in his opinion.\u201d Id. (citations omitted); see also State v. White, 154 N.C. App. 598, 605, 572 S.E.2d 825, 831 (2002) (holding inadmissible an officer\u2019s testimony that a recovered television was \u201cmore than probably\u201d the victim\u2019s where testimony was not based on his perception); State v. Shaw, 106 N.C. App. 433, 417 S.E.2d 262 (holding opinion testimony not based on personal knowledge and not helpful to the jury was inadmissible because the jury was as qualified as the officer to infer from the facts that the defendant had broken into the victim\u2019s home), disc. review denied, 333 N.C. 170, 424 S.E.2d 914 (1992).\nBecause Rule 701 of the Federal Rules Evidence is identical to Rule 701 of the North Carolina Rules of Evidence, the federal jurisdictions\u2019 treatment of this issue is persuasive. See Fed. R. Evid. 701 (2007). As this Court noted in State v. Buie:\nThe current national trend is to allow lay opinion testimony identifying the person, usually a criminal defendant, in a photograph or videotape where such testimony is based on the perceptions and knowledge of the witness, the testimony would be helpful to the jury in the jury\u2019s fact-finding function rather than invasive of that function, and the helpfulness outweighs the possible prejudice to the defendant from admission of the testimony.\n-N.C. App. -, -, 671 S.E.2d 351, 354-55 (internal quotation marks and citation omitted) (holding the trial court erred in admitting detective\u2019s testimony interpreting surveillance videotapes, where the tapes were played for the jury), disc. review denied, 363 N.C. 375, 679 S.E.2d 135 (2009). Specifically, courts adopting the majority trend have found the following factors to be relevant to this analysis:\n(1) the witness\u2019s general level of familiarity with the defendant\u2019s appearance; (2) the witness\u2019s familiarity with the defendant\u2019s appearance at the time the surveillance photograph was taken or when the defendant was dressed in a manner similar to the individual depicted in the photograph; (3) whether the defendant had disguised his appearance at the time of the offense; and (4) whether the defendant had altered his appearance prior to trial.\nUnited States v. Dixon, 413 F.3d 540, 545 (6th Cir. 2005) (citing United States v. Pierce, 136 F.3d 770, 774-75 (11th Cir. 1998)); see, e.g., United States v. Henderson, 68 F.3d 323 (9th Cir. 1995) (upholding the admission of testimony where witness had known defendant for fifteen years and seen him frequently throughout that period); United States v. Jackson, 688 F.2d 1121 (7th Cir. 1982) (upholding the admission of testimony where witness had met the defendant only once, concluding the amount of time witness spent with the defendant goes to the weight rather than the admissibility of the evidence), cert. denied, 460 U.S. 1043, 75 L. Ed. 2d 797 (1983); United States v. Borrelli, 621 F.2d 1092 (10th Cir. 1980) (defendant\u2019s stepfather was in a better position than the jury to compare defendant\u2019s in-court appearance with that of the individual in the surveillance photograph where defendant had altered his appearance by changing his hairstyle and growing a mustache), cert. denied, 449 U.S. 956, 66 L. Ed. 2d 222 (1980); United States v. Saniti, 604 F.2d 603, 604-05 (9th Cir. 1979) (upholding the admission of testimony of defendant\u2019s roommates who identified the specific clothing worn by the individual in the surveillance photograph as belonging to the defendant).\nThese courts have also considered the clarity of the surveillance image and completeness with which the subject is depicted in their analysis. As the Sixth Circuit explained:\nLay opinion identification testimony is more likely to be admissible . . . where the surveillance photograph is of poor or grainy quality, or where it shows only a partial view of the subject. See, e.g., United States v. Jackman, 48 F.3d 1, 4-5 (1st Cir.1995) (upholding the admission of lay opinion identification testimony primarily because \u201c[a]ll the surveillance photographs of the . . . robber are somewhat blurred, and they show only part of the robber\u2019s face, primarily the left side from eye-level down\u201d); United States v. Allen, 787 F.2d 933, 936 (4th Cir. 1986) (upholding the admission of lay opinion identification testimony where one surveillance photograph showed one individual \u201cwith his jacket hood pulled over his head so that his hair, forehead and right eye are not visible,\u201d and two other photographs were \u201cincomplete reproductions of the man in the bank,\u201d one showing \u201ca profile of a man wearing a hardhat, rubbing his forehead, with his mouth open,\u201d and the other showing \u201clittle more than a blurred profile, with most of the left half of the individual\u2019s face hidden\u201d), vacated on other grounds, 479 U.S. 1077, 94 L. Ed. 2d 132 (1987).\nDixon, 413 F.3d at 545; see also Nooner v. State, 907 S.W.2d 677, 687 (Ark. 1995) (upholding the admission of testimony where surveillance images were \u201csomewhat blurred and indistinct[,]\u201d the witnesses had special familiarity with the defendant, associated him with the clothing seen in the footage, and defendant had altered his appearance at trial), cert. denied, 517 U.S. 1143, 134 L. Ed. 2d 558 (1996); People v. Mixon, 180 Cal. Rptr. 772, 779 (Cal App. 1982) (upholding the admission of officer\u2019s testimony who had seen the defendant, in a \u201cvariety of contexts both indoors and outdoors\u201d where the surveillance photograph was taken at a downward angle, in poor lighting, and the subject was partially obscured).\nWe review a trial court\u2019s ruling on the admissibility of lay opinion testimony for abuse of discretion. See State v. Washington, 141 N.C. App. 354, 362, 540 S.E.2d 388, 395 (2000), disc. review denied, 353 N.C. 396, 547 S.E.2d 427 (2001). Thus, in this case, we must uphold the admission of Officer Ring\u2019s lay opinion testimony if there was a rational basis for concluding that she was more likely than the jury correctly to identify Defendant as the individual in the surveillance footage. See Robinson v. People, 927 P.2d 381, 382 (Colo. 1996) (upholding testimony by a police officer that identified the individual depicted in the surveillance videotape as the defendant on review for abuse of discretion).\nHere, there was no'evidence presented by either party tending to show that the individual depicted in the surveillance footage had disguised his appearance at the time of the offense or that Defendant had altered his appearance prior to trial. Further, there was no testimony indicating that the individual\u2019s face or other features were obscured in the footage or blocked by any item of clothing. Indeed, at the trial, Officer Ring recounted seeing Defendant on a few occasions, all of which involved minimal contact. Based on this limited contact with Defendant and his \u201cvery distinctive profile,\u201d Officer Ring concluded that the person depicted in the surveillance video was the Defendant.\nAdditionally, Officer Ring and Detective Caldwell testified to the clarity of the surveillance footage as viewed by the officers, stating that the resolution was clear or \u201cgreat\u201d when viewed on the desktop computer in the police station but \u201cvery fuzzy\u201d when shown on the large projection screen to the jury. While viewing the footage on a laptop at trial, Officer Ring commented, \u201cThis shows more of what I was looking at. You can tell that the picture is a lot clearer than what y\u2019all [the jury] saw on the display.\u201d\nHowever, as the trial transcript reveals, the jurors had the opportunity to view the video footage on a personal computer. During Officer Ring\u2019s testimony and at the State\u2019s request, the trial court instructed the officer on a number of occasions to turn the laptop computer toward the jury \u201cso the jurors can see it,\u201d and to \u201cshow the people on the other end that can\u2019t see.\u201d\nAlthough in Officer Ring\u2019s brief contacts with Defendant she may have become familiar with Defendant\u2019s \u201cdistinctive\u201d profile, we hold that there was no basis for the trial court to conclude that the officer was more likely than the jury correctly to identify Defendant as the individual in the surveillance footage. Here, there is no evidence that Defendant altered his appearance between the time of the incident and the trial, that the individual depicted in the footage was wearing a disguise, or that there were any issues regarding the clarity of the surveillance footage not ameliorated by allowing the jurors to view the footage on the laptop. The only factor supporting the trial court\u2019s conclusion is Officer Ring\u2019s familiarity with Defendant\u2019s appearance, based on three brief encounters, the most recent being when she passed by Defendant in her patrol car. Accordingly, we hold that the trial court erred by allowing Officer Ring to testify that, in her opinion, the individual depicted in the surveillance video was Defendant.\nHaving found that the trial court committed error by allowing the testimony of Officer Ring, we turn now to the question of whether such error was prejudicial, warranting a new trial. Under N.C. Gen. Stat. \u00a7 15A-1443(a) (2007):\nA defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. The burden of showing such prejudice under this subsection is upon the defendant.\nHere, the record reflects that the State\u2019s case rested exclusively on the surveillance video and Officer Ring\u2019s identification testimony. The State offered no fingerprint evidence, DNA evidence, or other identification testimony. Further, because the witness was a police officer with eighteen years of experience, the jury likely gave significant weight to Officer Ring\u2019s testimony. Officer Ring\u2019s testimony identifying the individual depicted in the surveillance video as the Defendant played a significant if not vital role in the State\u2019s case, making it reasonably possible that, had her testimony been excluded, a different result would have been reached at trial. See State v. Hernendez, 184 N.C. App. 344, 646 S.E.2d 579.(2007) (holding exclusion of admissible character evidence regarding complaining witness was prejudicial where the State\u2019s case rested almost exclusively on complaining witness\u2019s testimony, there was little or no physical or medical evidence at issue, and credibility of complaining witness was of significant probative value). Accordingly, we reverse and remand for a new trial.\nNew Trial.\nJudges CALABRIA and ELMORE concur.\n. In their briefs, both parties refer to the business as \u201cE.D.S. Architecture.\u201d At trial, however, Mr. Elder, the CEO, called the business \u201cESD Architecture,\u201d and explained that ESD is a doing-business-as name. Both the arrest warrant and the indictments call the business \u201cESD Architecture.\u201d\n. This witness\u2019s name is spelled inconsistently in the transcript. It appears as both Matusczck and Matuszczk. The parties in their briefs use the latter, though it would appear from the transcript that the former may be correct, since it was apparently spelled out by the witness herself.",
        "type": "majority",
        "author": "WYNN, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General, Judith Tillman, for the State.",
      "Jarvis John Edgerton, IV for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JERRY LENELL BELK\nNo. COA09-187\n(Filed 8 December 2009)\n1. Evidence\u2014 lay opinion testimony\nBecause the testifying police officer was in no better position than the jury to identify defendant as the person depicted in the surveillance video, the trial court erred by admitting the officer\u2019s lay opinion testimony.\n2. Evidence\u2014 lay opinion testimony\nThere was no rational basis for the trial court to conclude that the police officer was more likely than the jury correctly to identify defendant as the individual depicted in the surveillance video where the officer\u2019s familiarity with defendant\u2019s appearance was based solely on three brief encounters with defendant and there was no evidence that defendant had altered his appearance prior to trial, that the individual depicted in the surveillance video had disguised his appearance at the time of the offense, that the individual\u2019s face or other features were obscured in the video or blocked by any item of clothing, or that the surveillance video viewed by the jury was unclear or blurred.\n3. Evidence\u2014 prejudicial error\nAs the jury was likely to give significant weight to the officer\u2019s testimony and the State\u2019s case rested exclusively on the surveillance video and the officer\u2019s identification of defendant in the video, the trial court committed prejudicial error by allowing into evidence the officer\u2019s identification testimony.\nAppeal by defendant from judgment entered 10 September 2008 by Judge Robert C. Ervin in Superior Court, Mecklenburg County. Heard in the Court of Appeals 1 September 2009.\nAttorney General Roy Cooper, by Assistant Attorney General, Judith Tillman, for the State.\nJarvis John Edgerton, IV for defendant-appellant."
  },
  "file_name": "0412-01",
  "first_page_order": 440,
  "last_page_order": 447
}
