Criminal Practice – Larceny – Appeals – Unpreserved Issues – Ineffective Assistance Claim

State v. Hester (Lawyers Weekly No. 12-07-1242, 17 pp.) (Linda Stephens, J.) (Rick Elmore, J., dissenting in part & concurring in part) Appealed from Mecklenburg County Superior Court (Richard D. Boner, J.) N.C. App.

Holding: Where defendant asserts plain error in the admission of evidence but does not argue prejudice, he has waived appellate review.

Defendant also failed to preserve the issue of a fatal variance between the indictment and the evidence. Although he made a general motion to dismiss at the close of the state’s evidence, he did not specifically raise the question of a variance. He also failed to renew his motion to dismiss at the close of all evidence.

We dismiss defendant’s appeal. His ineffective assistance of counsel claim is dismissed without prejudice to his right to file a motion for appropriate relief in the superior court.

Dissent

(Elmore, J.) Defendant sufficiently argued plain error in the trial court’s admission of witnesses’ testimony about what they saw in a surveillance video. Defendant specifically asserts prejudice because the witnesses’ opinion testimony was the only evidence tending to show his guilt and because the trial court failed to charge the jury with interpreting the surveillance video.

The state argues it presented sufficient other evidence of defendant’s guilt: (1) the jury viewed the surveillance video on a large screen during deliberations, (2) the investigating officer testified that defendant’s employee accused defendant of committing the larceny, and (3) defendant paid the victims restitution. This evidence would not necessarily have led to defendant’s conviction absent the opinion testimony; (1) the trial court did not charge the jury with interpreting the video, (2) the employee did not testify and would naturally accuse defendant so as to avoid becoming a suspect himself, and (3) defendant testified that he paid restitution because he was responsible for hiring the employee he believed committed the larceny.