{ "id": 4364650, "name": "STATE OF NORTH CAROLINA v. ARTHUR JUNIOR COOK, Defendant", "name_abbreviation": "State v. Cook", "decision_date": "2012-01-17", "docket_number": "No. COA11-767", "first_page": "245", "last_page": "256", "citations": [ { "type": "official", "cite": "218 N.C. App. 245" } ], "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": "627 S.E.2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635299 ], "year": 2006, "pin_cites": [ { "page": "269" } ], "opinion_index": 0, "case_paths": [ "/se2d/627/0265-01" ] }, { "cite": "651 S.E.2d 279", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639564 ], "year": 2007, "pin_cites": [ { "page": "287" } ], "opinion_index": 0, "case_paths": [ "/se2d/651/0279-01" ] }, { "cite": "176 N.C. App. 678", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301519 ], "year": 2006, "pin_cites": [ { "page": "684" } ], "opinion_index": 0, "case_paths": [ "/nc-app/176/0678-01" ] }, { "cite": "507 S.E.2d 906", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "909" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 495", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11201779 ], "year": 1998, "pin_cites": [ { "page": "499" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0495-01" ] }, { "cite": "550 S.E.2d 10", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2001, "pin_cites": [ { "page": "15" }, { "page": "15" }, { "page": "16" }, { "page": "16" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 20", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11432583 ], "weight": 5, "year": 2001, "pin_cites": [ { "page": "26" }, { "page": "26" }, { "page": "27" }, { "page": "28" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0020-01" ] }, { "cite": "421 S.E.2d 155", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "332 N.C. 347", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2505255, 2507724, 2504496, 2503514, 2505116 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/332/0347-04", "/nc/332/0347-01", "/nc/332/0347-02", "/nc/332/0347-05", "/nc/332/0347-03" ] }, { "cite": "173 S.E.2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "132" } ], "opinion_index": 0 }, { "cite": "276 N.C. 253", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560935 ], "year": 1970, "pin_cites": [ { "page": "258" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0253-01" ] }, { "cite": "409 S.E.2d 707", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "712", "parenthetical": "citing State v. Strickland, 276 N.C. 253, 258, 173 S.E.2d 129, 132 (1970)" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 362", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521770 ], "year": 1991, "pin_cites": [ { "page": "371", "parenthetical": "citing State v. Strickland, 276 N.C. 253, 258, 173 S.E.2d 129, 132 (1970)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0362-01" ] }, { "cite": "387 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 37", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305037 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0037-01" ] }, { "cite": "374 S.E.2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "608" }, { "page": "608-09", "parenthetical": "alteration in original" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 246", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526755 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "254" }, { "page": "254" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0246-01" ] }, { "cite": "402 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "814", "parenthetical": "\"In order to preserve a question for appellate review, a party must have presented the trial court with a timely request, objection or motion, stating the specific grounds for the ruling sought if the specific grounds are not apparent.\"" }, { "parenthetical": "\"This Court will not consider arguments based upon matters not presented to or adjudicated by the trial tribunal.\"" } ], "opinion_index": 0 }, { "cite": "328 N.C. 409", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541401 ], "year": 1991, "pin_cites": [ { "page": "420", "parenthetical": "\"In order to preserve a question for appellate review, a party must have presented the trial court with a timely request, objection or motion, stating the specific grounds for the ruling sought if the specific grounds are not apparent.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0409-01" ] }, { "cite": "268 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "514", "parenthetical": "\"A defendant may move to suppress evidence at trial only if he demonstrates that he did not have a reasonable opportunity to make the motion before trial; or that the State did not give him sufficient advance notice (twenty working days" } ], "opinion_index": 0 }, { "cite": "300 N.C. 621", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564183 ], "year": 1980, "pin_cites": [ { "page": "625", "parenthetical": "\"A defendant may move to suppress evidence at trial only if he demonstrates that he did not have a reasonable opportunity to make the motion before trial; or that the State did not give him sufficient advance notice (twenty working days" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0621-01" ] }, { "cite": "710 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "opinion_index": 0 }, { "cite": "365 N.C. 202", "category": "reporters:state", "reporter": "N.C.", "year": 2011, "opinion_index": 0 }, { "cite": "707 S.E.2d 700", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "708" } ], "opinion_index": 0 }, { "cite": "330 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "461" } ], "opinion_index": 0 }, { "cite": "313 N.C. 516", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719603 ], "year": 1985, "pin_cites": [ { "page": "532" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0516-01" ] }, { "cite": "560 S.E.2d 141", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 216", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220131, 219911, 219981, 219943 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0216-02", "/nc/355/0216-04", "/nc/355/0216-03", "/nc/355/0216-01" ] }, { "cite": "554 S.E.2d 413", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "416" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 69", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9377955 ], "year": 2001, "pin_cites": [ { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0069-01" ] }, { "cite": "661 S.E.2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "opinion_index": 0 }, { "cite": "362 N.C. 342", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150926 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/nc/362/0342-01" ] }, { "cite": "186 N.C. App. 308", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8156410 ], "year": 2007, "pin_cites": [ { "page": "319" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0308-01" ] } ], "analysis": { "cardinality": 1084, "char_count": 27528, "ocr_confidence": 0.752, "pagerank": { "raw": 5.050994414764645e-08, "percentile": 0.3168088178113859 }, "sha256": "51a7d41ce066a224976537d28620f8d118876a8333d0ce6e5fd1f1d8bcb06588", "simhash": "1:c72d606c66bf1cfe", "word_count": 4405 }, "last_updated": "2023-07-14T20:21:59.538017+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and STEPHENS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ARTHUR JUNIOR COOK, Defendant" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nDefendant Arthur Junior Cook appeals from judgments entered upon jury verdicts finding him guilty of the offenses of felonious breaking or entering, larceny after breaking or entering, and attaining habitual felon status. We remand for resentencing.\nThe evidence presented at trial tended to show that, shortly after 8:00 a.m. on 16 September 2009, two employees of the U.S. Treasury\u2019s Office of the Comptroller of the Currency in Charlotte, North Carolina, reported to the office\u2019s facilities manager, James Robert McDonald, that several items had been taken from their offices sometime after 6:00 p.m. the previous evening. The items missing included a gym bag with a pair of Mizuno running shoes, an OGO tan and black backpack -with assorted athletic apparel, four pairs of tickets to four New York Giants football games and parking passes to each of the games, as well as a government-issued laptop computer and its power cord. The offices from which the items were missing were secured by an electronic card reader and accessible by electronically-keyed identification badges issued only to those who were authorized to enter the restricted area.\nBecause the reported thefts occurred in a federal government office, which occupied the entire fifth floor of the Charlotte office building, both the Federal Bureau of Investigation and the Charlotte-Mecklenburg Police Department investigated. Mr. McDonald accompanied investigators to identify those areas that seemed to have items out of place. Mr. McDonald informed investigators that the television monitor in a small conference room was \u201cmoved away from it\u2019s [sic] normal place\u201d and \u201clooked like somebody was trying to disconnect it.\u201d Mr. McDonald also identified a blue t-shirt located near the \u201cout of kilter\u201d monitor in the conference room, which \u201cobviously didn\u2019t seem to belong to anybody [in the office].\u201d\nMr. McDonald also informed investigators that the offices were monitored by twenty-four-hour surveillance cameras, which were maintained and operated by a third-party vendor. Mr. McDonald arranged for a technician to come to the office to make a copy of the surveillance video footage for the investigators. As the technician copied the surveillance video footage, Mr. McDonald reviewed the footage and saw a person enter the restricted area carrying \u201ca little T shirt in his hand.\u201d Although the person in the surveillance video footage did not enter the restricted area carrying a bag, Mr. McDonald observed that, upon exiting the area, the person carried a backpack on his shoulder and a white object in his hand. Mr. McDonald provided the copy of the surveillance video footage to the police.\nTwo days after the theft, while providing off-duty security at Central Piedmont Community College, Sergeant David Scheppegrell of the Charlotte-Mecklenburg Police Department responded to a call reporting a \u201csuspicious person\u201d in a restricted area of the school\u2019s library. After witnesses advised Sergeant Scheppegrell that the suspicious person was exiting the library, the officer made contact with the subject and asked him why he was in the restricted area. At trial, Sergeant Scheppegrell identified defendant as the person with whom he made contact that day. Defendant appeared to Sergeant Scheppegrell to be \u201cvery, very nervous\u201d and his responses seemed to be \u201cevasive.\u201d Defendant was placed in handcuffs and detained while security officers investigated the matter further. After defendant consented to a search, Sergeant Scheppegrell found a Bank of America identification card with a woman\u2019s name and photograph on it, as well as several New York Giants football tickets and parking passes, which the sergeant later determined had been reported stolen from the Office of the Comptroller of the Currency, on defendant\u2019s person.\nWhile defendant was in custody, the police obtained two search warrants: one to search the bin containing the belongings stored for defendant while he was being held, and one to obtain a buccal swab from defendant. Upon searching the bin, the police collected a pair of Mizuno running shoes, an OGO tan and black backpack, and some athletic apparel. At trial, these items were identified as the items taken from one of the fifth-floor offices of the Office of the Comptroller of the Currency.\nThe next day, Special Agent Gerald R. Garren with the U.S. General Services Administration Office of the Inspector General traveled to Charlotte to investigate the reported burglary in the Office of the Comptroller of the Currency. After speaking with Mr. McDonald and reviewing the surveillance video footage, Special Agent Garren learned that the police had arrested someone for an unrelated crime who was in possession of the New York Giants football tickets that were reported stolen from the federal government office; he arranged to interview the suspect, whom the agent identified at trial as defendant.\nDuring his interview with defendant, Special Agent Garren asked whether defendant had been involved in a theft occurring in an office building from which a laptop computer and football tickets were taken. Defendant \u201cadmitted that he had been involved in several burglaries,\u201d and told Special Agent Garren \u201cthat he had taken a laptop and that it was gone, the computer was gone. He also told [the agent] in the same setting [sic] that he had used it to purchase crack cocaine.\u201d Special Agent Garren further testified that defendant \u201ctold [him] that he enters buildings, he walks in through the front door, and he\u2019s able to go through office space and take things, laptops, phones, cameras, that he sells for crack,\u201d and that defendant admitted that, \u201cin the course of four days[,] [defendant] had literally been inside of a hundred different offices.\u201d\nAt trial, Rachael Scott, a criminalist in the biology section of the crime laboratory with the Charlotte-Mecklenburg Police Department, testified that she was asked to obtain a DNA profile from the blue t-shirt collected from the scene and to compare that profile to a buccal swab sample obtained from defendant. Ms. Scott determined that the DNA profile obtained from the t shirt matched the DNA profile obtained from the buccal sample from defendant, and that the \u201cprobability of selecting an unrelated person at random for the source of this DNA profile is approximately 1 in 470 trillion for Caucasians, one in 370 trillion for African[-]Americans, and 1 in 1.81 quadrillion for Hispanics.\u201d\nDefendant did not present any evidence at trial and moved to dismiss the charges at the close of all the evidence. Defendant also moved for a mistrial on the grounds that both the surveillance video footage and the testimony from Special Agent Garren regarding defendant\u2019s \u201chistories of burglary, and entering hundreds of buildings and stealing a laptop\u201d were \u201cvery prejudicial.\u201d Both motions were denied.\nThe jury found defendant guilty of felonious breaking or entering, and larceny after breaking or entering. After hearing additional evidence, the jury found defendant guilty of being a habitual felon. The trial court determined that defendant had a total of twenty four prior record points and was a prior record level VI offender. Defendant was sentenced to two consecutive terms of 120 months to 153 months imprisonment. Defendant appeals.\nI.\nDefendant first contends the trial court erred by allowing Special Agent Garren to testify that, during his interview with defendant, defendant made statements that \u201che had been involved in several burglaries,\u201d that \u201che had in the course of four days[,] he had literally been inside of a hundred different offices,\u201d and that \u201che enters buildings, he walks in through the front door, and he\u2019s able to go through office space and take things, laptops, phones, cameras, that he sells for crack.\u201d Defendant argues that such statements \u201ceffectually [sic] stripped [him] of the presumption of innocence\u201d and could not have properly been considered by the jury as proof of motive for the charged offenses. We overrule this issue on appeal.\n\u201cStatements elicited by a defendant on cross-examination are, even if error, invited error, by which a defendant cannot be prejudiced as a matter of law.\u201d State v. Gobal, 186 N.C. App. 308, 319, 651 S.E.2d 279, 287 (2007), aff\u2019d per curiam, 362 N.C. 342, 661 S.E.2d 732 (2008). Accordingly, \u201ca defendant who invites error has waived his right to all appellate review concerning the invited error, including plain error review.\u201d State v. Barber, 147 N.C. App. 69, 74, 554 S.E.2d 413, 416 (2001), supersedeas denied and disc. reviews denied and dismissed as moot, 355 N.C. 216, 560 S.E.2d 141-42 (2002). Additionally, \u201c[w]here evidence is admitted without objection, the benefit of a prior objection to the same or similar evidence is lost, and the defendant is deemed to have waived his right to assign as error the prior admission of the evidence.\u201d State v. Wilson, 313 N.C. 516, 532, 330 S.E.2d 450, 461 (1985).\nOur review of the record reveals that, after the State elicited the challenged testimony from Special Agent Garren, on cross-examination, defense counsel repeated Special Agent Garren\u2019s testimony and invited Special Agent Garren to confirm that defendant made the challenged statements. For example, Special Agent Garren was invited to, and did, give affirmative responses to each of the following inquiries by defense counsel: \u201cEven though [defendant] told you that he might have broke [sic] into so many buildings he told you he\u2019s not confessing to anything, correct?\u201d; \u201c[Defendant] said he doesn\u2019t break in doors, I open and walk in?\u201d; and \u201c[Defendant] told you that any items that he takes he sells for crack, correct?\u201d Additionally, during direct examination, Special Agent Garren testified, without objection by defense counsel, that defendant \u201cwalked in through the front doors of office buildings, he didn\u2019t have to break and enter, that he took things to support his crack habit,\u201d and, when asked, \u201cWhen you said [defendant] told you he\u2019s a thief[,] were those his words or are you just summarizing what he said?,\u201d Special Agent Garren responded, again without objection from the defense, \u201cI\u2019m summarizing what he said. He did state that he was a thief.\u201d Therefore, since defendant failed to object each time the same or similar now-challenged testimony was elicited from Special Agent Garren, and since defense counsel repeated the challenged testimony and invited Special Agent Garren to confirm that defendant made such statements to him, see, e.g., State v. Carter,_N.C. App._,_, 707 S.E.2d 700, 708 (\u201cEven assuming arguendo that [the forensic interviewer\u2019s] statement that \u2018something happened\u2019 was erroneously admitted, immediately following her statement, defense counsel repeated her testimony, thereby inviting [the interviewer] to again give her opinion that she thought \u2018something must have happened.\u2019 \u201d), disc. review denied, 365 N.C. 202, 710 S.E.2d 9 (2011), we decline to address this issue on appeal further.\nII.\nDefendant next contends the trial court erred by allowing Special Agent Garren to testify about the incriminating statements that defendant made to him during his interview because defendant argues that any incriminating statements he made were given involuntarily during a custodial interrogation, and that the admission of such statements through Special Agent Garren\u2019s testimony \u201cwas error of a constitutional magnitude,\u201d entitling defendant to a new trial. However, defendant did not move to suppress this evidence pre trial, in accordance with the procedures set forth in N.C.G.S. \u00a7\u00a7 15A 975 through 15A 977, and defendant does not argue that his failure to file a timely motion to suppress this evidence was excused under any of the exceptions to the general rule that motions to suppress must be made pre-trial. See State v. Satterfield, 300 N.C. 621, 625, 268 S.E.2d 510, 514 (1980) (\u201cA defendant may move to suppress evidence at trial only if he demonstrates that he did not have a reasonable opportunity to make the motion before trial; or that the State did not give him sufficient advance notice (twenty working days) of its intention to use certain types of evidence; or that additional facts have been discovered after a pretrial determination and denial of the motion which could not have been discovered with reasonable diligence before determination of the motion.\u201d). Moreover, we find no instance where, during the course of the trial, defendant challenged the voluntariness of the statements he made to Special Agent Garren. See State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991) (\u201cIn order to preserve a question for appellate review, a party must have presented the trial court with a timely request, objection or motion, stating the specific grounds for the ruling sought if the specific grounds are not apparent.\u201d). Accordingly, we decline defendant\u2019s invitation to exercise our discretion to consider this issue for the first time on appeal. See id. (\u201cThis Court will not consider arguments based upon matters not presented to or adjudicated by the trial tribunal.\u201d).\nIII.\nDefendant next contends the trial court abused its discretion by admitting the surveillance video footage collected from the scene, because he argues that the footage was not sufficiently authenticated by the State\u2019s witnesses.\nPursuant to N.C.G.S. \u00a7 8 97, \u201c[videotapes are admissible into evidence for both substantive and illustrative purposes,\u201d State v. Cannon, 92 N.C. App. 246, 254, 374 S.E.2d 604, 608 (1988), rev\u2019d in part on other grounds, 326 N.C. 37, 387 S.E.2d 450 (1990), and \u201cmay be admitted into evidence where they are relevant and have been properly authenticated.\u201d State v. Billings, 104 N.C. App. 362, 371, 409 S.E.2d 707, 712 (1991) (citing State v. Strickland, 276 N.C. 253, 258, 173 S.E.2d 129, 132 (1970)), appeal dismissed, 332 N.C. 347, 421 S.E.2d 155 (1992). \u201cThe prerequisite that the offeror lay a proper foundation for the videotape can be met by\u201d any of the following: \u201c(1) testimony that the motion picture or videotape fairly and accurately illustrates the events filmed\u201d; \u201c(2) proper testimony concerning the checking and operation of the video camera and the chain of evidence concerning the videotape\u201d; \u201c(3) testimony that the photographs introduced at trial were the same as those [the witness] had inspected immediately after processing\u201d; or \u201c(4) testimony that the videotape had not been edited, and that the picture fairly and accurately recorded the actual appearance of the area photographed.\u201d Cannon, 92 N.C. App. at 254, 374 S.E.2d at 608-09 (alteration in original) (internal quotation marks omitted). Thus, there are \u201cthree significant areas of inquiry\u201d for a court \u201creviewing the foundation for admissibility of a videotape: (1) whether the camera and taping system in question were properly maintained and were properly operating when the tape was made, (2) whether the videotape accurately presents the events depicted, and (3) whether there is an unbroken chain of custody.\u201d State v. Mason, 144 N.C. App. 20, 26, 550 S.E.2d 10, 15 (2001).\nHere, defendant does not challenge the chain of custody of the copy of the surveillance video footage. Instead, defendant suggests that the authentication of the surveillance video footage was deficient in a manner similar to the deficiencies identified by this Court in State v. Mason, 144 N.C. App. 20, 550 S.E.2d 10 (2001). In Mason, although the store\u2019s employee and general manager testified at trial that the surveillance system \u201cwas in working order\u201d at the time that their store was robbed, \u201cneither one knew anything about the maintenance or operation of the camera system\u201d; one testified that she \u201ccould not even operate her home VCR,\u201d and the other \u201cadmitted that he did not know \u2018how the doggone thing works,\u2019 \u201d and none of the State\u2019s witnesses testified that there was \u201cany routine maintenance or testing of the . . . security system.\u201d Mason, 144 N.C. App. at 26, 550 S.E.2d at 15. In the present case, defendant directs us to Mr. McDonald\u2019s similar response to a question about how one of the surveillance cameras \u201cwork[s],\u201d where Mr. McDonald answered, \u201cExactly \u2014 I mean it\u2019s on all the time. I don\u2019t know anything about how this works.\u201d However, defendant neglects to mention Mr. McDonald\u2019s response immediately following this statement to an almost identical question about how the camera \u201coperate[s],\u201d where Mr. McDonald answered: \u201cIt\u2019s a live streaming recording device that sends the imagine [sic] back to a server that records.\u201d Moreover, Mr. McDonald testified that he viewed the surveillance video as the technician made a copy of the footage immediately following the incident, and further testified that the footage presented in court was the same as that which he viewed when the copy was being made from the surveillance system\u2019s server a few days after the theft. See, e.g., State v. Mewborn, 131 N.C. App. 495, 499, 507 S.E.2d 906, 909 (1998) (\u201cAt trial, during voir dire . . ., Lieutenant Boyd stated that the images on the tape had not been altered and were in the same condition as when she had first viewed them on the day of the robbery. Because Lieutenant Boyd viewed the tape on both the day of the robbery and at trial and testified that it was in the same condition and had not been edited, there is little or no doubt as to the videotape\u2019s authenticity.\u201d). Taken together, we are not persuaded that the trial court abused its discretion by admitting the surveillance video footage in the present case.\nNevertheless, even assuming arguendo that the surveillance video footage was not sufficiently authenticated by the State\u2019s evidence, we are not persuaded that any error in its admission was prejudicial. See Mason, 144 N.C. App. at 27, 550 S.E.2d at 16. Here, a couple of days after the thefts from the Office of the Comptroller of the Currency, defendant was arrested and found to be in possession of the victim\u2019s missing Mizuno running shoes, the OGO tan and black backpack with some of the missing athletic apparel, and the four pairs of tickets to four New York Giants football games and parking passes which were reported as stolen. Further, defendant\u2019s DNA profile was matched to the blue t shirt found next to the jostled conference room monitor, and Special Agent Garren testified, without objection, that defendant told him that \u201c[defendant] would have taken the monitor if he had had something to carry it out with.\u201d Since this evidence, taken together with defendant\u2019s other admissions to Special Agent Garren and the other evidence in the record, as well as defendant\u2019s failure to direct us to \u201c[anything suggesting that the videotape in this case is inaccurate or otherwise flawed,\u201d see State v. Jones, 176 N.C. App. 678, 684, 627 S.E.2d 265, 269 (2006), was sufficient to establish that there was \u201csubstantial evidence of... defendant\u2019s guilt,\u201d see Mason, 144 N.C. App. at 28, 550 S.E.2d at 16, we hold that the admission of the surveillance video footage, even if erroneous, does not entitle defendant to any relief.\nIV.\nDefendant next contends the trial court erred by allowing the jury to view still images during its deliberations, which were made by freezing the surveillance video footage at specified intervals. Defendant does not argue that the still images were erroneously admitted based on an insufficient authentication of the surveillance video footage from which the still images were made; instead, he asserts only that the trial court acted in violation of N.C.G.S. \u00a7 15A 1233, which provides that the trial judge \u201cmay permit the jury to reexamine in open court the requested materials admitted into evidence.\u201d N.C. Gen. Stat. \u00a7 15A 1233 (2011). Specifically, defendant asserts that the trial court erred because it allowed the jury to review \u201cevidence that had not been admitted into evidence.\u201d However, the still images made available to the jury during its deliberations were admitted, albeit over defendant\u2019s objections, as State\u2019s Exhibits 13 through 18. Therefore, there was no violation of N.C.G.S. \u00a7 15A 1233 in allowing the jury to review the still images, which had been admitted into evidence. Additionally, defendant suggests, without authority, that the court acted in contravention of this statute because it allowed the jury to \u201cview zoomed in portions of the[se] photographs\u201d while reviewing the images in the courtroom. Because defendant failed to provide any legal authority in support of his assertion that the court abused its discretion or acted beyond the scope of its statutory authority by allowing the jury to get a closer view of the admitted evidence, we overrule the remainder of this issue on appeal.\nV.\nFinally, defendant contends the trial court erred by sentencing him as a prior record level VI offender, because defendant asserts that the court incorrectly determined that he had twenty four prior record points. Defendant argues that sixteen of the twenty four prior record points assigned by the court were derived from out of state convictions, and asserts that the State failed to prove by a preponderance of the evidence whether such convictions were felonies or misdemeanors.\n\u201cFor each prior [North Carolina] felony Class H or I conviction, [an offender will be assigned] 2 points\u201d; \u201c[f]or each prior [Class Al and Class 1 nontraffic North Carolina] misdemeanor conviction . . ., [an offender will be assigned] 1 point.\u201d N.C. Gen. Stat. \u00a7 15A 1340.14(b)(4)-(5) (2011). A conviction occurring in \u201ca jurisdiction other than North Carolina is classified as a Class I felony if the jurisdiction in which the offense occurred classifies the offense as a felony, or is classified as a Class 3 misdemeanor if the jurisdiction in which the offense occurred classifies the offense as a misdemeanor.\u201d N.C. Gen. Stat. \u00a7 15A 1340.14(e). \u201cThe State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists and that the offender before the court is the same person as the offender named in the prior conviction.\u201d N.C. Gen. Stat. \u00a7 15A 1340.14(f). A prior conviction may be proved by \u201c[stipulation of the parties,\u201d \u201c[a]n original or copy of the court record of the prior conviction,\u201d or \u201c[a] copy of records maintained by the Division of Criminal Information [(\u201cDCI\u201d)], the Division of Motor Vehicles, or of the Administrative Office of the Courts.\u201d N.C. Gen. Stat. \u00a7 15A 1340.14(f)(1)-(3).\nThe record shows that, in the present case, defense counsel declined to stipulate to defendant\u2019s prior convictions in open court and declined to sign the \u201cStipulation\u201d section of the Prior Record Level Worksheet prepared by the State. Although the trial court found that, \u201c[f]or sentencing purposes],]... [defendant] has nine prior Class H or I felony convictions, and five prior class A 1 or 1 misdemeanor convictions for a total of twenty[ ]three points,\u201d the State only presented the trial court with certified copies of two DCI reports from Richland County, South Carolina, as evidence of defendant\u2019s February 2005 and September 2005 out of state felony convictions for burglary in the third degree and auto breaking, and with a certified copy of defendant\u2019s August 2007 Mecklenburg County, North Carolina, judgment and plea agreement for three counts of felony larceny. Thus, it is not clear to this Court from which of the thirty seven offenses listed in Section IV of defendant\u2019s Prior Record Level Worksheet the trial court assigned defendant\u2019s twenty three prior record level points. We further note that, based on the evidence presented with respect to the two South Carolina felony convictions, the court could only assign defendant four prior record points for these convictions. Cf. N.C. Gen. Stat. \u00a7 15A 1340.14(e) (\u201cIf the State proves by the preponderance of the evidence that an offense classified as either a misdemeanor or a felony in the other jurisdiction is substantially similar to an offense in North Carolina that is classified as a Class I felony or higher, the conviction is treated as that class of felony for assigning prior record level points.\u201d). Since the court did not identify from which convictions it assigned its twenty three prior record points, we cannot determine whether the State proved by a preponderance of the evidence that such convictions \u2014 either from out of state or from within this jurisdiction \u2014 existed and that defendant was the convicted perpetrator. See N.C. Gen. Stat. \u00a7\u00a7 15A 1340.13, 15A 1340.14 (2011). Accordingly, we must remand this matter to the trial court to identify on which of the thirty seven prior felonies and misdemeanors the court based its prior conviction point assignments to determine that defendant was a prior record level VI offender.\nNo error; Remanded for resentencing.\nJudges ELMORE and STEPHENS concur.", "type": "majority", "author": "MARTIN, Chief Judge." } ], "attorneys": [ "Roy Cooper, Attorney General, by David P. Brenskelle, Special Deputy Attorney General, for the State.", "Anne Bleyman, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ARTHUR JUNIOR COOK, Defendant\nNo. COA11-767\n(Filed 17 January 2012)\n1. Evidence \u2014 defendant\u2019s statement to officer \u2014 same or similar testimony repeated\nThe trial court did not err by allowing a federal special agent to testify about defendant\u2019s statement that defendant walked through office buildings and took things to sell for crack. Defense counsel did not object to similar testimony, himself repeated the challenged testimony during cross-examination, and invited the witness to confirm that defendant made such statements.\n2. Evidence \u2014 defendant\u2019s statements \u2014 voluntariness\u2014no pretrial motion to suppress \u2014 no challenge at trial\nThe trial court did not err by allowing a federal special agent to testify about incriminating statements made to him by defendant where defendant challenged the voluntariness and constitutionality of the statements on appeal, but did not move to suppress the evidence pretrial, as required by statute, and did not challenge the voluntariness of the statements at trial.\n3. Evidence \u2014 surveillance video \u2014 sufficiently substantiated\nThe trial court did not abuse its discretion by admitting surveillance video of a federal office from which items were stolen where defendant did not challenge the chain of custody, the facilities manager of the office testified that the video was a live streaming recording on a server, that he viewed the video as a technician made a copy immediately following the incident, and that the footage presented in court was the same. Assuming error in admitting the video footage, there was substantial evidence of defendant\u2019s guilt and no prejudice.\n4. Evidence \u2014 surveillance video \u2014 frozen frames \u2014 zoomed images\nThe trial court did not err by allowing the jury to view during deliberations still images made by freezing surveillance video where the video had been admitted over defendant\u2019s objections. Allowing the jury to view zoomed portions of the photographs in the courtroom was also not error.\n5. Sentencing \u2014 prior record points \u2014 convictions not identified\nDefendant\u2019s sentencing was remanded where the Court of Appeals did not identify the convictions to which it assigned prior record points, so that it could not be determined whether the State proved by a preponderance of the evidence that such convictions (in-state or out-of-state) existed and that defendant was the convicted perpetrator.\nAppeal by defendant from judgments entered 27 January 2011 by Judge W. Robert Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 28 November 2011.\nRoy Cooper, Attorney General, by David P. Brenskelle, Special Deputy Attorney General, for the State.\nAnne Bleyman, for defendant-appellant." }, "file_name": "0245-01", "first_page_order": 255, "last_page_order": 266 }