{ "id": 4245538, "name": "STATE OF NORTH CAROLINA v. DAMIAN D. JACKSON", "name_abbreviation": "State v. Jackson", "decision_date": "2013-09-17", "docket_number": "No. COA12-1533", "first_page": "644", "last_page": "656", "citations": [ { "type": "official", "cite": "229 N.C. App. 644" } ], "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": "289 S.E.2d 368", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1982, "pin_cites": [ { "page": "373", "parenthetical": "citing Stovall v. Denno, 388 U.S. 293, 18 L. Ed. 2d 1199 (1967); and Oliver, 302 N.C. 28, 274 S.E.2d 183 (1980)" }, { "page": "373" }, { "page": "373" }, { "page": "374" } ], "opinion_index": 0 }, { "cite": "305 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569882 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "364", "parenthetical": "citing Stovall v. Denno, 388 U.S. 293, 18 L. Ed. 2d 1199 (1967); and Oliver, 302 N.C. 28, 274 S.E.2d 183 (1980)" }, { "page": "364" }, { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0356-01" ] }, { "cite": "627 S.E.2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635299 ], "year": 2006, "pin_cites": [ { "parenthetical": "holding failure to lay a proper foundation for introduction of video surveillance into evidence did not amount to plain error where the. State could have supplied the necessary foundation had defendant objected" } ], "opinion_index": 0, "case_paths": [ "/se2d/627/0265-01" ] }, { "cite": "626 S.E.2d 271", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635151 ], "year": 2006, "pin_cites": [ { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/se2d/626/0271-01" ] }, { "cite": "651 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639492 ], "year": 2007, "pin_cites": [ { "page": "875" } ], "opinion_index": 0, "case_paths": [ "/se2d/651/0867-01" ] }, { "cite": "432 U.S. 98", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177400 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "114" }, { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/us/432/0098-01" ] }, { "cite": "308 S.E.2d 293", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "294-95" } ], "opinion_index": 0 }, { "cite": "309 N.C. 606", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4760471 ], "year": 1983, "pin_cites": [ { "page": "609-10" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0606-01" ] }, { "cite": "700 S.E.2d 112", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "pin_cites": [ { "page": "118" }, { "page": "119" } ], "opinion_index": 0 }, { "cite": "207 N.C. App. 415", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4179278 ], "weight": 2, "year": 2010, "pin_cites": [ { "page": "423-24" }, { "page": "425" } ], "opinion_index": 0, "case_paths": [ "/nc-app/207/0415-01" ] }, { "cite": "49 L. Ed. 2d 1205", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "428 U.S. 902", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6180680, 6180492, 6180844, 6180302, 6181071, 6180146 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/428/0902-04", "/us/428/0902-03", "/us/428/0902-05", "/us/428/0902-02", "/us/428/0902-06", "/us/428/0902-01" ] }, { "cite": "203 S.E.2d 10", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "16" } ], "opinion_index": 0 }, { "cite": "285 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561608 ], "year": 1974, "pin_cites": [ { "page": "9" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0001-01" ] }, { "cite": "245 S.E.2d 727", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "739" } ], "opinion_index": 0 }, { "cite": "295 N.C. 265", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562944 ], "year": 1978, "pin_cites": [ { "page": "285-86" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0265-01" ] }, { "cite": "388 U.S. 293", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168284 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/388/0293-01" ] }, { "cite": "274 S.E.2d 183", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1981, "pin_cites": [ { "page": "194-95" }, { "page": "194" }, { "page": "194", "parenthetical": "internal quotation marks and citations omitted" } ], "opinion_index": 0 }, { "cite": "302 N.C. 28", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563765 ], "weight": 4, "year": 1981, "pin_cites": [ { "page": "45" }, { "page": "45" }, { "page": "45" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0028-01" ] }, { "cite": "390 U.S. 377", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6170914 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "384" }, { "page": "1253" } ], "opinion_index": 0, "case_paths": [ "/us/390/0377-01" ] }, { "cite": "287 S.E.2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "837", "parenthetical": "quoting Simmons v. United States, 390 U.S. 377, 384, 19 L. Ed. 2d 1247, 1253 (1968)" }, { "page": "837" } ], "opinion_index": 0 }, { "cite": "305 N.C. 213", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567260 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "220", "parenthetical": "quoting Simmons v. United States, 390 U.S. 377, 384, 19 L. Ed. 2d 1247, 1253 (1968)" }, { "page": "220" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0213-01" ] }, { "cite": "176 N.C. App. 678", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301519 ], "year": 2006, "pin_cites": [ { "parenthetical": "holding failure to lay a proper foundation for introduction of video surveillance into evidence did not amount to plain error where the. State could have supplied the necessary foundation had defendant objected" } ], "opinion_index": 0, "case_paths": [ "/nc-app/176/0678-01" ] }, { "cite": "342 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "556" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 425", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524130 ], "year": 1986, "pin_cites": [ { "page": "429" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0425-01" ] }, { "cite": "366 S.E.2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "924", "parenthetical": "holding there was an insufficient foundation to admit telephone records under the business records exception to the hearsay rule where the accuracy of a machine that recorded call information had not been verified" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 640", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524353 ], "year": 1988, "pin_cites": [ { "page": "645", "parenthetical": "holding there was an insufficient foundation to admit telephone records under the business records exception to the hearsay rule where the accuracy of a machine that recorded call information had not been verified" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0640-01" ] }, { "cite": "43 So. 3d 885", "category": "reporters:state_regional", "reporter": "So. 3d", "case_ids": [ 7340607 ], "year": 2010, "pin_cites": [ { "parenthetical": "holding a sufficient foundation was laid to admit tracking data from a defendant's electronic monitoring device where an employee of the monitoring company testified how the device operated and a probation officer testified the accuracy of the device had been verified" } ], "opinion_index": 0, "case_paths": [ "/so3d/43/0885-01" ] }, { "cite": "330 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "462" } ], "opinion_index": 0 }, { "cite": "313 N.C. 516", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719603 ], "year": 1985, "pin_cites": [ { "page": "533" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0516-01" ] }, { "cite": "197 S.E.2d 530", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "536" } ], "opinion_index": 0 }, { "cite": "283 N.C. 627", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559705 ], "year": 1973, "pin_cites": [ { "page": "636" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0627-01" ] }, { "cite": "719 S.E.2d 632", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "637", "parenthetical": "quoting State v. Springer, 283 N.C. 627, 636, 197 S.E.2d 530, 536 (1973)" } ], "opinion_index": 0 }, { "cite": "360 N.C. 297", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787721 ], "year": 2006, "pin_cites": [ { "page": "316" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0297-01" ] }, { "cite": "577 S.E.2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "524" } ], "opinion_index": 0 }, { "cite": "354 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138455 ], "year": 2001, "pin_cites": [ { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0131-01" ] }, { "cite": "604 S.E.2d 850", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "881", "parenthetical": "quoting State v. Fair, 354 N.C. 131, 166, 577 S.E.2d 500, 524 (2001)" } ], "opinion_index": 0 }, { "cite": "359 N.C. 77", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3801733 ], "year": 2004, "pin_cites": [ { "page": "122-23", "parenthetical": "quoting State v. Fair, 354 N.C. 131, 166, 577 S.E.2d 500, 524 (2001)" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0077-01" ] }, { "cite": "426 S.E.2d 692", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "697" } ], "opinion_index": 0 }, { "cite": "333 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2546948 ], "year": 1993, "pin_cites": [ { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0431-01" ] }, { "cite": "676 F.2d 995", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 562145 ], "year": 1982, "pin_cites": [ { "page": "1002" } ], "opinion_index": 0, "case_paths": [ "/f2d/676/0995-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "467 S.E.2d 28", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "31" } ], "opinion_index": 0 }, { "cite": "342 N.C. 580", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795978 ], "year": 1996, "pin_cites": [ { "page": "584" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0580-01" ] }, { "cite": "361 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3739107 ], "year": 2007, "pin_cites": [ { "page": "622" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0610-01" ] } ], "analysis": { "cardinality": 1144, "char_count": 29223, "ocr_confidence": 0.716, "pagerank": { "raw": 7.898732801139752e-08, "percentile": 0.46059364851000967 }, "sha256": "d027e1b6e5044688c4aef2a846af6748b964731d306438236de6b31cd9ca467b", "simhash": "1:2d9645ea64b89def", "word_count": 4577 }, "last_updated": "2023-07-14T15:07:10.338246+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and STEELMAN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DAMIAN D. JACKSON" ], "opinions": [ { "text": "McCullough, Judge.\nDamian D. Jackson (\u201cdefendant\u201d) appeals from his convictions for simple assault, sexual battery, larceny from the person, and second-degree sexual offense. For the following reasons, we find no error.\n1. BACKGROUND\nDefendant was indicted by a Mecklenburg County Grand Jury on 24 August 2009 for one count each of simple assault, sexual battery, larceny from the person, and second-degree sexual offense. Defendant\u2019s case came on for jury trial on 25 July 2012, during the Criminal Session of Mecklenburg County Superior Court, the Honorable F. Lane Williamson presiding. The State\u2019s evidence at trial tended to show the following.\nAt approximately 10:40 p.m. on 30 July 2009, the victim left her home on Blue Hampton Lane and walked up Kingville Drive in search of someone with a cigarette. When the victim noticed no one outside, the victim turned around to walk home. As the victim walked back down Kingville Drive towards Blue Hampton Lane, a \u201c[bjlack male\u201d with \u201cdreadlocks\u201d (the \u201cassailant\u201d) approached the victim from behind in the 600 block of Kingville Drive. The assailant first asked the victim if she had a man. The victim responded that she did. The assailant then touched the victim on the butt. The victim told the assailant not to touch her, but the assailant continued to walk beside her and touched her butt a second time. At that point, the victim told the assailant that she was going to call the police. The assailant then pushed the victim to the ground. While on top of the victim, the assailant put his hands under the victim\u2019s shirt and down the victim\u2019s pants. The victim testified that the assailant inserted several fingers into her vagina as far as they would go and touched her breasts. During the assault the victim fought back against the assailant by biting, punching, and yelling for help.\nThe assailant\u2019s assault of the victim ended when the assailant jumped up, grabbed the victim\u2019s phone, and ran away. At that time, the victim ran in the opposite direction to a neighbor\u2019s house and called the police. The police responded within 10 minutes.\nOnce the police arrived, the victim informed the police of the sexual assault and described the assailant as a black male with dreadlocks, about 5 feet 9 inches tall, wearing a white tank top and gray sweat pants. Soon thereafter, a woman approached the police on the scene with additional information. The woman informed the police that she had heard a woman scream as she was walking down Kingville Drive and then saw a black male running through the woods and a black female walking out of the woods. The woman informed police that the black male looked similar to her neighbor and directed them to a residence at 416 Kingville Drive.\nFollowing the tip, the police responded to 416 Kingville Drive and found defendant, who was wearing an electronic monitoring device. Due to the similarity between the description of the assailant provided by the victim and defendant\u2019s appearance, the police performed a \u201cshowup\u201d identification. The showup, which took place approximately one hour after the assault, resulted in a positive identification of defendant by the victim. Defendant was then arrested.\nIn addition to the testimony from the victim and responding officers concerning the events that transpired on 30 July 2009, the victim identified defendant as the assailant a second time at trial and the State introduced evidence from defendant\u2019s electronic monitoring device in order to place defendant at the scene of the assault.\nOn 27 July 2012, the jury returned verdicts finding defendant guilty of simple assault, sexual battery, larceny from the person, and second-degree sexual offense. Thereafter, judgments were entered sentencing defendant to consecutive terms totaling 102 to 133 months\u2019 imprisonment; a term of 96 to 125 months\u2019 imprisonment for the second-degree sexual offense conviction and a consecutive term of 6 to 8 months\u2019 imprisonment for the remaining convictions that were consolidated for judgment. In addition, the trial court ordered defendant to register as a sex offender and enroll in satellite-based monitoring, both for the remainder of his natural life, upon release from prison. Defendant gave notice of appeal in open court.\nII ANALYSIS\nNow on appeal, defendant contends that the trial court committed plain error by admitting: (1) testimony and evidence of GPS tracking based on data from the electronic monitoring device worn by defendant; and (2) out-of-court and in-court identifications of defendant by the victim. Additionally, defendant contends that, to the extent his counsel failed to object to the admission of the tracking evidence and the identifications, he was denied the effective assistance of counsel.\nStandards of Review\nIn regard to defendant\u2019s assertions of plain error, \u201c[i]n criminal cases, an issue that was not preserved by objection noted at trial . . . may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.\u201d N.C.R. App. P. 10(a)(4); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007). The North Carolina Supreme Court \u201chas elected to review unpreserved issues for plain error when they involve either (1) errors in the judge\u2019s instructions to the jury, or (2) rulings on the admissibility of evidence.\u201d State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). Plain error arises when the error is \u201c \u2018so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]\u2019 \u201d State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)). \u201cUnder the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.\u201d State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).\nIn regard to defendant\u2019s claims of ineffective assistance of counsel, \u201c[i]t is well established that ineffective assistance of counsel claims \u2018brought on direct review will be decided on the merits when the cold record reveals that no further investigation is required ....\u2019\u201d State v. Thompson, 359 N.C. 77, 122-23, 604 S.E.2d 850, 881 (2004) (quoting State v. Fair, 354 N.C. 131, 166, 577 S.E.2d 500, 524 (2001)). \u201cTo prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel\u2019s performance was deficient and then that counsel\u2019s deficient performance prejudiced his defense.\u201d State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (2006).\nEvidence of Tracking\nExpanding on the background above, at trial, the State called Sergeant Dave Scheppegrell (\u201cSgt. Scheppegrell\u201d) to testify concerning the electronic monitoring device worn by defendant and the data produced by that device. Sgt. Scheppegrell testified that he is the supervisor of the electronic monitoring unit of the Charlotte-Mecklenburg Police Department (\u201cCMPD\u201d) and has been a member of the unit since he started it in 2007. Sgt. Scheppegrell further testified that he received training from the vendors of the electronic monitoring devices used by the CMPD and from the National Institute of Justice in the electronic monitoring field. Moreover, Sgt. Scheppegrell noted that he was appointed to the National Standard Developing Committee to develop a national standard for the electronic monitoring industry.\nRegarding the specific electronic monitoring device worn by defendant, Sgt. Scheppegrell identified the device as the Omni-Link 210, manufactured by Omni-Link Systems, and described the different components of the device. Sgt. Scheppegrell then testified about how the device operates using a combination of GPS signals and cell phone triangulations to track the location of the electronic monitoring device at least every four minutes. The tracking data is then uploaded from the device to a secured server where it is stored. Sgt. Scheppegrell explained that the device primarily uses GPS signals, which are very accurate, usually within four to ten meters. However, when a GPS signal is unavailable, the device uses cell phone triangulations, which are accurate within forty to fifty meters. Sgt. Scheppegrell testified that he can view the data stored on the secured server via a web service and produce reports based on the data, and routinely does so in the normal course of business. Sgt. Scheppegrell has never had any issue with the accuracy of the data.\nRegarding the evidence admitted in this case, Sgt. Scheppegrell described how he retrieved the data for defendant\u2019s electronic monitoring device for 28 July 2009 through 31 July 2009 and produced the event log entered into evidence as the State\u2019s Exhibit 15. Sgt. Scheppegrell also explained how he used Omni-Link software to produce a video file plotting the tracking data for defendant on the evening of 30 July 2009 from 10:00 p.m. to midnight. The video file contained a sequence of twenty tracking points, each three minutes apart. Sgt. Scheppegrell testified that the video file stored on a CD was a fair and accurate representation of the tracking data and the CD was then admitted into evidence as the State\u2019s Exhibit 16 (\u201cExhibit 16\u201d). As the video file was shown at trial, Sgt. Scheppegrell testified as to certain tracking points in the sequence.\nNow on appeal, defendant contends that the trial court plainly erred in admitting testimony and evidence of tracking based on data from the electronic monitoring device worn by defendant. We disagree.\nDefendant first argues the GPS tracking evidence was not properly authenticated and was inadmissible hearsay. We disagree and hold the GPS tracking evidence was properly admitted as a business record.\n\u201cHearsay\u201d is defined in the North Carolina Rules of Evidence as \u201ca statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 801(c) (2011). Although generally inadmissible at trial, hearsay may be allowed by statute or the North Carolina Rules of Evidence. N.C. Gen. Stat. \u00a7 8C-1, Rule 802 (2011). N.C. Gen. Stat. \u00a7 8C-1, Rule 803(6) establishes an exception to the general exclusion of hearsay for business records. A business record includes:\nA memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term \u201cbusiness\u201d as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 803(6) (2011).\nBusiness records stored electronically are admissible if\n\u201c(1) the computerized entries were made in the regular course of business, (2) at or near the time of the transaction involved, and (3) a proper foundation for such evidence is laid by testimony of a witness who is familiar with the computerized records and the methods under which they were made so as to satisfy the court that the methods, the sources of information, and the time of preparation render such evidence trustworthy.\u201d\nState v. Crawley,_N.C. App._,_, 719 S.E.2d 632, 637 (2011) (quoting State v. Springer, 283 N.C. 627, 636, 197 S.E.2d 530, 536 (1973)). \u201cThere is no requirement that the records be authenticated by the person who made them.\u201d State v. Wilson, 313 N.C. 516, 533, 330 S.E.2d 450, 462 (1985).\nAt the outset, we hold that the tracking data from the electronic monitoring device worn by defendant stored on the secured server is a data compilation and that Exhibit 16, the CD containing the video file plotting the data from defendant\u2019s electronic monitoring device on the evening of 30 July 2009, is merely an extraction of that data produced for trial. Thus, Exhibit 16 was properly admitted as a business record if the tracking data was recorded in the regular course of business near the time of the incident and a proper foundation is laid.\nOn appeal, defendant does not dispute that the data from defendant\u2019s electronic monitoring device was recorded in the regular course of business near the time of the incident. Instead, defendant\u2019s primary contention concerning the admissibility of the tracking evidence is that the State failed to establish a proper foundation to verify the authenticity and trustworthiness of the data. Citing Ruise v. Florida, 43 So. 3d 885 (Fla. Dist. Ct. App. 2010) (holding a sufficient foundation was laid to admit tracking data from a defendant\u2019s electronic monitoring device where an employee of the monitoring company testified how the device operated and a probation officer testified the accuracy of the device had been verified) and State v. Agudelo, 89 N.C. App. 640, 645, 366 S.E.2d 921, 924 (1988) (holding there was an insufficient foundation to admit telephone records under the business records exception to the hearsay rule where the accuracy of a machine that recorded call information had not been verified), defendant asserts it was necessary for the State to elicit testimony to verify the accuracy of the electronic monitoring data.\nAs described above, Sgt. Scheppegrell established his familiarity with the GPS tracking system by testifying about his experience and training in the field of electronic monitoring. Sgt. Scheppegrell then testified concerning how the electronic monitoring device worn by defendant transmits data to a secured server where the data was stored and routinely accessed in the normal course of business. Sgt. Scheppegrell then explained how, in this particular instance, he accessed the tracking data for defendant\u2019s electronic monitoring device and produced Exhibit 16 for trial. According to Sgt. Scheppegrell, producing reports such as Exhibit 16 was normal in the course of business.\nAs we have recognized, \u201c[t]rustworthiness is the foundation of the business records exception.\u201d State v. Miller, 80 N.C. App. 425, 429, 342 S.E.2d 553, 556 (1986). We hold Sergeant Scheppegrell\u2019s testimony established a sufficient foundation of trustworthiness for the tracking evidence to be admitted as a business record. Furthermore, assuming arguendo, that Sgt. Scheppegrell\u2019s testimony was insufficient to lay a proper foundation and authenticate the tracking evidence, we find it likely that, had defendant objected to the admission of the tracking evidence at trial, the State could have produced additional testimony to overcome the objection. As a result, the insufficiency of foundation does not amount to plain error. See State v. Jones, 176 N.C. App. 678, 627 S.E.2d 265 (2006) (holding failure to lay a proper foundation for introduction of video surveillance into evidence did not amount to plain error where the. State could have supplied the necessary foundation had defendant objected). Moreover, we note that defendant did not dispute the reliability of the tracking evidence at trial, but instead used the tracking data on cross-examination of Sgt. Scheppegrell to show that the tracking data never placed defendant within 325 feet of the location where the assault occurred. Where defendant attempted to use the tracking data to his advantage, we will not hold the trial court plainly erred in admitting it into evidence.\nIn addition to arguing the GPS evidence was improperly admitted into evidence, defendant argues that Sergeant Scheppegrell\u2019s testimony concerning the GPS data was inadmissible as lay witness testimony and expert witness testimony. We disagree and hold Sergeant Scheppegrell\u2019s testimony was properly admitted as testimony of a lay witness based on his perception of the data.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 602 provides that a witness may testify to a matter to which he has personal knowledge.\nIf the witness is not testifying as an expert, his testimony in the form of opinions or inferences is 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.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 701 (2011).\nAt trial, Sgt. Scheppegrell testified regarding the operation of the electronic monitoring device and tracking data retrieved from the secured server. When questioned about specific tracking points in the sequence of points mapped in Exhibit 16, Sgt. Scheppegrell identified the date, time, accuracy reading, and relative location of the tracking points. We hold this testimony by Sgt. Scheppegrell was rationally based on his perception of the tracking data, not Sgt. Scheppegrell\u2019s personal knowledge as to defendant\u2019s actual location. Nonetheless, we find the testimony helpful to a clear understanding of defendant\u2019s whereabouts around the time of the assault on 30 July 2009. We find this holds true even in the single instance where Sgt. Scheppegrell testified as to defendant\u2019s location instead of the location of the tracking point stating, \u201cIn my professional opinion, at 10:42 P.M., [defendant] was on Aerial Court.\u201d As a result, we hold the testimony based on the tracking data was properly admitted as lay witness testimony.\nDefendant\u2019s final argument concerning the admissibility of Sgt. Scheppegrell\u2019s testimony is that it was highly prejudicial and should have been excluded by the trial court pursuant to N.C. Gen. Stat. \u00a7 8C-1, Rule 403. N.C. Gen. Stat. \u00a7 8C-1, Rule 403 provides, \u201c[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice... or misleading the jury----\u201d Specifically, defendant contends Sgt. Scheppegrell\u2019s testimony was highly prejudicial and likely to mislead the jury \u201cbecause of the aura of reliability incident to his testimony as a skilled, experienced officer.\u201d\nUpon review of defendant\u2019s argument, we hold the trial court did not err by admitting the evidence. The trial court does abuse its discretion under N.C. Gen. Stat. \u00a7 8C-1, Rule 403, simply because the testimony was provided by a skilled, experienced officer. Moreover, we find Sgt. Scheppegrell\u2019s testimony highly probative of defendant\u2019s whereabouts around the time of the assault.\nIdentifications\nOn appeal, defendant also contends that the trial court plainly erred in admitting evidence concerning the out-of-court \u201cshowup\u201d identification because the identification was impermissibly suggestive and violated his due process rights. We disagree and hold defendant\u2019s due process rights were not violated by the admission of the identification.\n\u201cDue process forbids an out-of-court confrontation which is so unnecessarily \u2018suggestive as to give rise to a very substantial likelihood of irreparable misidentification.\u2019 \u201d State v. Leggett, 305 N.C. 213, 220, 287 S.E.2d 832, 837 (1982) (quoting Simmons v. United States, 390 U.S. 377, 384, 19 L. Ed. 2d 1247, 1253 (1968)). \u201cIf an out-of-court identification procedure is so suggestive that it leads to a substantial likelihood of misidentification, the out-of-court identification is inadmissible.\u201d State v. Oliver, 302 N.C. 28, 45, 274 S.E.2d 183, 194-95 (1981).\nAs both defendant and the State recognize, \u201c[s]how-ups, the practice of showing suspects singly to witnesses for purposes of identification, have been criticized as an identification procedure by both [the N.C. Supreme Court] and the U.S. Supreme Court.\u201d State v. Turner, 305 N.C. 356, 364, 289 S.E.2d 368, 373 (1982) (citing Stovall v. Denno, 388 U.S. 293, 18 L. Ed. 2d 1199 (1967); and Oliver, 302 N.C. 28, 274 S.E.2d 183 (1980)). As our Supreme Court explained, \u201csuch a procedure . . . may be \u2018inherently suggestive\u2019 because the witness \u2018would likely assume that the police had brought [him] to view persons whom they suspected might be the guilty parties.\u2019 \u201d Oliver, 302 N.C. at 45, 274 S.E.2d at 194 (quoting State v. Matthews, 295 N.C. 265, 285-86, 245 S.E.2d 727, 739 (1978). Nevertheless, \u201c[p]retriai show-up identifications . . . , even though suggestive and unnecessary, are not per se violative of a defendant\u2019s due process rights.\u201d Turner, 305 N.C. at 364, 289 S.E.2d at 373. \u201cThe test under the due process clause as to pretrial identification procedures is whether the totality of the circumstances reveals pretrial procedures so unnecessarily suggestive and conducive to irreparable mistaken identification as to offend fundamental standards of decency, fairness and justice.\u201d State v. Henderson, 285 N.C. 1, 9, 203 S.E.2d 10, 16 (1974), death penalty vacated, 428 U.S. 902, 49 L. Ed. 2d 1205 (1976).\nIn evaluating such claims of denial of due process, this Court employs a two-step process. First, we must determine whether an impermissibly suggestive procedure was used in obtaining the out-of-court identification. If this question is answered in the negative, we need inquire no further. If it is answered affirmatively, the second inquiry we must make is whether, under all the circumstances, the suggestive procedures employed gave rise to a substantial likelihood of irreparable misidentification.\nState v. Leggett, 305 N.C. at 220, 287 S.E.2d at 837.\nIn the present case, the victim was told by police that they \u201cbelieved they had found the suspect\u201d and was then taken in a patrol car to 416 Kingville Drive where defendant was standing in the front yard with police officers. With a light shone on defendant, the victim then identified defendant as the perpetrator from the patrol car. As we have held in cases addressing similar showup identifications, see State v. Rawls, 207 N.C. App. 415, 423-24, 700 S.E.2d 112, 118 (2010), we hold the showup identification in this case impermissibly suggestive.\nNevertheless, as explained above, a holding that the showup identification was impermissibly suggestive does not end our inquiry. \u201cAn unnecessarily suggestive show-up identification does not create a substantial likelihood of misidentification where under the totality of the circumstances surrounding the crime, the identification possesses sufficient aspects of reliability.\u201d Turner, 305 N.C. at 364, 289 S.E.2d at 373.\nThe factors to be considered in evaluating the likelihood of irreparable misidentification include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness\u2019s degree of attention; (3) the accuracy of the witness\u2019s prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation.\nState v. Grimes, 309 N.C. 606, 609-10, 308 S.E.2d 293, 294-95 (1983). \u201c \u2018Against these factors is to be weighed the corrupting effect of the suggestive identification itself.\u2019 \u201d Turner, 305 N.C. at 365, 289 S.E.2d at 374 (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 53 L. Ed. 2d 140, 154 (1977)).\nConsidering the above factors, we find the showup identification in the present case possessed sufficient aspects of reliability to outweigh the suggestiveness of the identification procedures.\nDespite the facts that it was dark and the assault on the victim lasted only 5 minutes, the victim had the opportunity to view her assailant while he walked beside her and spoke to her, and while he was on top of her during the assault. From her observations of the assailant, the victim was able to describe the assailant to police as a black male with dreadlocks, about 5 feet 9 inches tall, wearing a white tank top and gray sweat pants. Although defendant was not dressed exactly as described by the victim, defendant largely matched the description of the assailant the victim provided to the police. Furthermore, the showup identification in this case occurred shortly after the assault, approximately one hour, and the victim testified that she was one hundred percent certain that defendant was the assailant.\n\u201c[Although the discrepancy between [the victim\u2019s] description and defendant\u2019s attire detracts from the reliability of the identification, other factors \u2014 including her certainty, her ability to view him directly from a short distance, and the short window between the crime and the identification \u2014 substantially bolster it.\u201d State v. Rawls, 207 N.C. App. at 425, 700 S.E.2d at 119. Thus, considering the totality of the circumstances, we hold the trial court did not err in admitting evidence of the out-of-court showup identification at trial.\nIn addition to challenging the out-of-court showup identification, defendant contends that the trial court erred in admitting the victim\u2019s subsequent in-court identification of defendant on the ground that the in-court identification did not have an origin independent of the prior out-of-court identification.\nWhen the pre-trial investigatory identification procedures have created a likelihood of irreparable misidentification, neither the pre-trial procedures nor an in-court identification is admissible. Stated another way, in-court identifications are permissible only if the out-of-court suggestiveness was not conducive to irreparable mistaken identity. In this jurisdiction, this often meant that the in-court identification was admissible if the state could show that the in-court identification was of independent origin from the suggestive pre-trial procedures.\nState v. Oliver, 302 N.C. at 45, 274 S.E.2d at 194 (internal quotation marks and citations omitted).\nHaving determined that the trial court did not err in admitting evidence of the out-of-court identification, we hold defendant\u2019s argument that the trial court erred in admitting the in-court identification is meritless.\nIneffective Assistance of Counsel\nIn addition to asserting the trial court plainly erred in admitting the tracking evidence and identifications of defendant at trial, defendant argues that, to the extent his trial counsel failed to object to the admission of the evidence, he received ineffective assistance of counsel. Defendant\u2019s arguments are overruled. It is axiomatic that, having determined the trial court did not err in admitting the evidence challenged on appeal, defense counsel\u2019s performance was not deficient.\nIII. CONCLUSION\nFor the reasons discussed above, we find the trial court did not err, much less plainly err, in admitting the testimony and evidence of GPS tracking and the identifications of defendant. Moreover, where the challenged evidence was properly admitted at trial, failure by defense counsel to object did not deprive defendant of effective assistance of counsel. Accordingly, we find no error below.\nNo error.\nJudges CALABRIA and STEELMAN concur.\n. In Turner, Oliver is incorrectly cited as filed in 1980. As cited, supra, Oliver was . filed in 1981.", "type": "majority", "author": "McCullough, Judge." } ], "attorneys": [ "Attorney GeneralRoy Cooper, by Assistant Attorney General Sarah Y. Meacham, for the State.", "Assistant Public Defender Julie Ramseur Lewis for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DAMIAN D. JACKSON\nNo. COA12-1533\nFiled 17 September 2013\n1. Evidence \u2014 admission of testimony and records \u2014 business record \u2014 lay witness \u2014 not unduly prejudicial\nThe trial court did not err in an assault, sexual battery, larceny from the person, and second-degree sexual offense case by admitting testimony and evidence of GPS tracking based on data from the electronic monitoring device worn by defendant. The GPS tracking evidence was properly admitted as a business record, Sergeant Scheppegrell\u2019s testimony was properly admitted as testimony of a lay witness based on his perception of the data, and the evidence was not unduly prejudicial pursuant to N.C.G.S. \u00a7 8C-1, Rule 403.\n2. Identification of Defendants \u2014 show-up identification\u2014 impermissibly suggestive \u2014 sufficient aspects of reliability\u2014 in-court identification admissible\nThe trial court did not plainly err in an assault, sexual battery, larceny from the person, and second-degree sexual offense case by admitting evidence concerning an out-of-court \u201cshowup\u201d identification of defendant. Although the identification was impermissibly suggestive, it possessed sufficient aspects of reliability to outweigh the suggestiveness of the identification procedures. Furthermore, defendant\u2019s argument that an in-court identification did not have an origin independent of the prior out-of-court identification was meritless.\n3. Constitutional Law \u2014 effective assistance of counsel \u2014 no deficient performance\nDefendant did not receive ineffective assistance of counsel in an assault, sexual battery, larceny from the person, and second-degree sexual offense case. The trial court did not err in admitting the evidence challenged on appeal and defense counsel's performance was not deficient.\nAppeal by defendant from judgments entered 27 July 2012 by Judge F. Lane Williamson in Mecklenburg County Superior Court. Heard in the Court of Appeals 8 May 2013.\nAttorney GeneralRoy Cooper, by Assistant Attorney General Sarah Y. Meacham, for the State.\nAssistant Public Defender Julie Ramseur Lewis for defendant appellant." }, "file_name": "0644-01", "first_page_order": 654, "last_page_order": 666 }