State v. Moody
Annotate this Case
Download PDF
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-122 NORTH CAROLINA COURT OF APPEALS Filed: 3 December 2013 STATE OF NORTH CAROLINA v. Brunswick County Nos. 11 CRS 3477 11 CRS 53615 11 CRS 53616 ERSKIN HOWARD MOODY, Defendant. Appeal by defendant from judgments entered 27 September 2012 by Judge Thomas H. Lock in Brunswick County Superior Court. Heard in the Court of Appeals 29 October 2013. Attorney General Roy Cooper, by Assistant Attorney General Ann W. Matthews, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Kathleen M. Joyce, for defendant-appellant. GEER, Judge. Defendant Erskin Howard Moody appeals from judgments entered based upon his conviction for trafficking in an opium compound or derivative, selling hydrocodone, and possession of hydrocodone. Defendant primarily contends on appeal that a videotape of the drug buy and still photographs taken from that videotape were admitted without proper foundation. However, -2even assuming without deciding that the evidence should have been excluded, defendant has failed to show sufficient prejudice given the totality of the evidence against defendant. Facts The State's evidence tended to show the following facts. On 27 May 2011, narcotics investigators with the Brunswick County Sheriff's Office and the Shallotte Police Department set up a "controlled buy," during which George Kirby, a confidential informant, would purchase Lorcet tablets from defendant. Before Kirby met defendant at the Hill's Shopping Center parking lot, officers searched Kirby and his vehicle, gave Kirby a camera with full audio and video, and supplied Kirby with bills to be used in the controlled buy. Kirby then drove his car to the shopping center parking lot, followed by officers who set up surveillance of the parking lot. When defendant arrived in his truck, Kirby walked up to the truck and completing purchased the 17 Lorcet transaction, pills Kirby and from defendant. defendant After returned to their respective vehicles, and both vehicles exited the parking lot. Kirby drove to a predetermined location where he turned over the pills and recording equipment to the officers. The State Bureau of Investigation Crime Lab confirmed the tablets purchased from defendant contained hydrocodone, a -3Schedule III preparation of an opium derivative, and the weight of the tablets was 13.85 grams. Department of Revenue that Officers then notified the defendant had received money in exchange for the pills, and a tax bill was sent to defendant. Defendant went to the Shallotte Police Department to inquire about the tax bill he had received for the sale of illegal narcotics. An officer informed defendant that the tax bill was generated after the police notified the Department of Revenue that a police informant had purchased from defendant four or more grams of an opium derivative that did not have tax stamps affixed. Defendant told the police that "he's not a drug dealer; he just sold his pills to help pay the bills." When the State sought to introduce the surveillance video and four photograph stills from the video during Kirby's testimony, defendant objected on the grounds that the State had not laid a proper foundation. After the objection, Kirby testified that he had observed the video of the transaction; that the photos and video fairly and accurately depicted what he observed during the transaction; that the photos and video did not appear to have been changed or altered; and that they would aid in his testimony. The trial court overruled defendant's objections and admitted the surveillance video and photos into evidence. -4The jury possession of found four defendant grams or guilty more of of an trafficking opium compound by or derivative, selling hydrocodone, and possession of hydrocodone. The trial court sentenced defendant to 70 imprisonment for the trafficking conviction. to 84 months The trial court consolidated the two remaining charges into a six- to eightmonth sentence, suspended the sentence, and placed defendant on supervised probation for 30 months to be served following the active sentence. Defendant timely appealed to this Court. Discussion Defendant reversible first error photographs into contends by that admitting evidence because the the trial court videotape committed and still the State failed to lay a proper foundation for their admission. Generally, the rules governing the admissibility of photographs apply to videotapes. State v. Strickland, 276 N.C. 253, 258, 173 S.E.2d 129, 132 (1970). Videotapes may be admissible for illustrative and substantive purposes upon the laying of a proper foundation as noted in N.C. Gen. Stat. § 8-97 (2011), which states: Any party may introduce a photograph, video tape [sic], motion picture, X-ray or other photographic representation as substantive evidence upon laying a proper foundation and meeting other applicable evidentiary requirements. This section does not prohibit a party from introducing a photograph or other pictorial representation -5solely for the purpose of illustrating the testimony of a witness. On the other hand, this Court has held that "when a videotape depicts conduct of a defendant in a criminal case, its potential impact requires the trial judge to inquire carefully into its authenticity, relevancy, and competency[.]" State v. Mason, 144 N.C. App. 20, 25, 550 S.E.2d 10, 14 (2001) (internal quotation marks omitted). To lay the proper foundation for admission of a videotape as substantive evidence, the offeror must meet the standard articulated in State v. Cannon, 92 N.C. App. 246, 254, 374 S.E.2d 604, 608-09 (1988) (internal citations and quotation marks omitted), rev'd on other grounds, 326 N.C. 37, 387 S.E.2d 450 (1990), which requires: (1) testimony that the motion picture or videotape fairly and accurately illustrates the events filmed[] (illustrative purposes); (2) proper testimony concerning the checking and operation of the video camera and the chain of evidence concerning the videotape . . .; (3) testimony that the photographs introduced at trial were the same as those [the witness] had inspected immediately after processing, (substantive purposes); or (4) testimony that the videotape had not been edited, and that the picture fairly and accurately recorded the actual appearance of the area photographed. In this case, assuming without deciding that a proper foundation was lacking, the erroneous admission of a videotape and photographs does not require reversal if the error is not -6prejudicial. Mason, 144 N.C. App. at 27-28, 550 S.E.2d at 16. An not error is prejudicial unless "there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial[.]" N.C. Gen. Stat. § 15A-1443(a) (2011). show that he was The burden is on the defendant to prejudiced by the error question. in Mason, 144 N.C. App. at 28, 550 S.E.2d at 16. Here, defendant has not shown prejudice given the testimony at trial. Kirby testified that he had known Sergeant Edwin Marti of the Shallotte Police Department for five years and defendant for 20 years; that he had participated in controlled buys of prescription drugs for Sergeant Marti on prior occasions; that he had discussed defendant with Sergeant Marti; that he met Sergeant Marti and other officers on 27 May 2011 at a middle school where he and his car were searched; that he was given money provided defendant a to purchase camera; because that 20 Lorcet he purchased defendant only pills had 17 17 from defendant Lorcet pills; pills that and from the transaction took place at the Hill's Shopping Center; that as soon as he made the buy, he returned to the middle school as instructed; and that he turned over the pills and the video to Sergeant Marti. -7Further, after defendant received a tax bill for the 17 Lorcet tablets he sold to Kirby, defendant asked Sergeant Marti about the bill. Defendant explained that he was not a drug dealer but just sold his prescription medications to supplement his income. In light of Kirby's testimony combined with defendant's admission that he sold his prescription medications, there is no reasonable possibility that had the challenged videotape and photos not been admitted, a different result would have been reached at trial. Next, defendant contends that the trial court erred by denying his motion to dismiss the trafficking charges on the grounds that the General Assembly never intended N.C. Gen. Stat. § 90-95(h)(4) (2011), the trafficking in opium or heroin statute, to apply to the total weight of prescription pills but only to that portion of the medication which was a controlled substance. Defendant concedes that this Court rejected this argument in State v. Ellison, 213 N.C. App. 300, 713 S.E.2d 228 (2011), but notes that our North Carolina Supreme Court allowed the defendants' petition for discretionary review. Ellison, ___ N.C. ___, 722 S.E.2d 593 (2012). State v. However, four days after defendant filed his brief, our Supreme Court affirmed this Court's decision in State v. Ellison, ____ N.C. ___, ___, 738 S.E.2d 161, 164 (2013) (holding that "the opium trafficking -8statute applies prescription in cases pharmaceutical involving drugs"). tablets The and pills trial therefore, did not err in denying the motion to dismiss. No error. Judges ERVIN and DILLON concur. Report per Rule 30(e). of court,
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
