Heard in the Court of Appeals January 21, 2015
Roy Cooper, Attorney General, by Grady L. Balentine, Jr., Special Deputy Attorney General, for the State.
Brock & Meece, P.A., by C. Scott Holmes, for defendant-appellant.
TYSON, Judge. Judges ELMORE and DAVIS concur.
Appeal by defendant from judgment entered 13 March 2014 by Judge Christopher W. Bragg in Cabarrus County Superior Court, No. 13 CRS 50775, 756.
Demario Lamont Snead (" Defendant" ) appeals from convictions of felony larceny and conspiracy to commit felony larceny. We vacate the judgment in part and remand for entry of judgment on a lesser included offense and for resentencing. We find no error in Defendant's conviction of conspiracy to commit felonious larceny and affirm Defendant's guilty plea and conviction as an habitual felon.
I. Factual Background
On 1 February 2013, a theft was reported at Belk Department Store (" Belk" ) at Carolina Mall in Concord, North Carolina. The store's video surveillance system recorded the theft and showed two men entered the store at approximately 4:58 p.m. One of the men, identified as Defendant, is seen grabbing an armful of Polo-style shirts and running out of the store. The other man is shown grabbing a pile of hooded sweatshirts.
On 4 March 2013, Defendant was indicted for felony larceny. On 25 March 2013, Defendant was indicted for attaining habitual felon status. On 10 February 2014, a superseding indictment was entered for the felony larceny charge that added the charge of conspiracy to commit felony larceny. The superseding indictment stated, in pertinent part, as follows:
The jurors for the State upon their oath present that on or about the date of the offense shown and in the county named above, the defendant named above unlawfully, willfully and feloniously did steal, take and carry away store merchandise, clothing including but not limited to Ralph Lauren Polo shirts, the personal property of Belk, Inc., such property having a value in excess of $1,000.
The jurors for the State upon their oath present that on or about the date of the offense shown and in the county named above, the defendant conspire [sic] with others to commit the crime of felony larceny 14-72(a) against Belk, Inc. by stealing and taking away store merchandise, including but not Limited [sic] to Ralph Lauren Polo shirts, the personal property of Belk, Inc., such property having a value in excess of $1,000.
A. State's Evidence
A jury trial was held in Cabarrus County Superior Court on 11 March 2014. Toby Steckler (" Mr. Steckler" ), regional loss prevention manager for Belk, testified he was familiar with the operation of the video surveillance system. He explained that the system was an " industry standard digital video recorder," which allowed for live monitoring and recording. He further stated the images produced by the video recorders were water-marked to ensure against tampering and displayed a time and date stamp. He also testified that he reviewed the surveillance camera video recording after the theft was reported.
During voir dire, Mr. Steckler testified that, after viewing the video and based on his familiarity with the layout of Belk stores and Belk merchandise displayed on the table from which the shirts were taken, he believed the shirts stolen were Ralph Lauren Polo shirts. He also stated the stacks of shirts on the table would have consisted of six to eight shirts per stack, valued at $85 to $89.50 per shirt.
During Mr. Steckler's testimony, the trial court intervened and excused the jury to engage in a discussion with the prosecutor, Defendant's counsel, and Mr. Steckler. During this discussion, the trial court asked Mr. Steckler whether he had reviewed the surveillance video directly from the monitor or after it had been copied onto a disk. Mr. Steckler responded " I'm not sure. Yes. Yes." Mr. Steckler also testified the recording equipment was in working order on the date of the theft.
However, Mr. Steckler later testified he was not present at the store when the incident occurred. The video recording was admitted as substantive evidence of the crimes over Defendant's objection.
After the video recording was admitted into evidence, it was shown and published to the jury, while Mr. Steckler gave a narration of the images. He described the layout of the store and stated the videotape showed Defendant in the Ralph Lauren Polo section. He testified that the fair market value of the Ralph Lauren Polo shirts on the date of the theft would have been between $85 and $89.50 each. When the prosecutor asked Mr. Steckler whether he could tell from the videotape how many shirts were taken, Mr. Steckler replied, " An exact ...