Opinion
No. 06-1294.
Filed July 17, 2007.
Wake County No. 05 JB 413.
Appeal by respondent from juvenile dispositional order entered 19 April 2006 by Judge Craig Croom in Wake County District Court. Heard in the Court of Appeals 23 May 2007.
Attorney General Roy Cooper, by Assistant Attorney General Susannah P. Holloway, for the State. Gilda C. Rodriguez, for respondent-appellant.
Respondent juvenile appeals from adjudication and disposition as a delinquent juvenile. We affirm.
On 9 November 2005 the Wake County Department of Social Services (DSS) filed a petition alleging that respondent was a delinquent juvenile, on the grounds that he had committed a felonious breaking and entering and larceny. The petition stated that on 13 October 2005 respondent broke into the home of Donnie Register and stole a camera, watch, coins, and other items.
A hearing on the allegations in the petition was conducted on 26 January 2006. Petitioner's evidence at the hearing is summarized in relevant part as follows: Donnie Register testified that he lived on Carroll Street, in Apex, North Carolina. Respondent lived across the street from Register, with his father; his stepmother, Lisa Ferrell; and his younger sister, Beth. Respondent's grandmother, Ms. Woodluff, lived in the house next to respondent's home. On 13 October 2005 someone broke into Register's house and stole various items, including a bookbag, a cigar box containing coins, a digital camera, a watch, and several bottles containing alcoholic beverages.
To protect the privacy of both the juvenile respondent and of his sister, we refer to her by the pseudonym "Beth."
After the break in, Lisa Ferrell spoke with respondent, who initially denied being involved in the incident. Ferrell then set up a hidden camera in the living room, and made a videotape. Based on information obtained from her review of this videotape, Ferrell talked with Beth about the break-in. Beth told her stepmother that some of the stolen items were in the woods behind respondent's house. Ferrell searched the area behind the house and found Register's bookbag and some coins. Respondent's family later recovered the camera and the cigar box belonging to Register. When Ferrell again confronted respondent about the break-in, he did not deny being involved in the break-in, although he told Ferrell that another boy had also taken part.
Other testimony corroborated that of Ferrell regarding respondent's involvement in the break-in. Beth testified that she was visiting a friend on 13 October 2005 when respondent and another boy arrived. Respondent told Beth about breaking into Register's home and about the items they stole. Beth later told her stepmother where some of the stolen items had been abandoned. Woodluff testified that she found Register's cigar box in respondent's closet, and that respondent admitted being present at the break-in, along with another boy. Detective Michael Pontey of the Wake County Sheriff's Department testified about his investigation of the break-in.
During the hearing, respondent objected to the introduction of testimony from Ferrell, Woodluff, and Beth, on the grounds that their statements were derived from information Ferrell obtained by illegally videotaping respondent. The respondent did not present any evidence. Following the hearing, the trial court adjudicated respondent delinquent, and placed him under court supervision. From this adjudication and disposition, respondent appeals.
Respondent argues that the trial court committed reversible error by admitting evidence derived, directly or indirectly, from the videotape made by respondent's stepmother. We disagree.
It is not disputed that (1) Ferrell set up a videotape camera in the family's living room; (2) the resultant videotape was made without respondent's knowledge or consent; (3) based on the unspecified contents of the videotape, Ferrell confronted both respondent and Beth; and (4) Ferrell ultimately obtained an admission by respondent that he had been involved in the break-in, and was able to recover some of the stolen items. We conclude, however, that respondent failed to produce evidence establishing any illegality in this sequence of events. Respondent argues that the videotape was made in violation of N.C. Gen. Stat. § 15A-287 (2005), which makes it a Class H felony for any person "without the consent of at least one party to the communication" to "intercept" any "oral communication" by another person. However, no evidence was presented that the videotape contained any oral communication. Nowhere in the transcript, which we have carefully read, does Ferrell ever testify that the videotape included any conversation, phone call, or other "oral communication." And, on the facts of this case, there is no reason to assume that the significance of the tape lay in its audio content; it is just as likely that the tape showed a visual image of respondent carrying stolen items to or from his room.
In Kroh v. Kroh, 152 N.C. App. 347, 567 S.E.2d 760 (2002), as in the instant case, (1) the issue was the admissibility and legality of a party's secretly recorded videotape; and (2) there was no evidence of any oral communication in the videotape. This Court has noted that "`oral communication' includes all oral communications `uttered by a person'" and that "in general, recording or endeavoring to record a person's private conversations without the consent of a party to the conversation is a Class H felony under the Electronic Surveillance Act." Id. at 351, 567 S.E.2d at 763 (quoting N.C. Gen. Stat. § 15A-286(17) [2005]). The Court then held:
[Defendant] admits that she videotaped her husband's activities. However, under the plain language of G.S. § 15A-287(1)(a) (as well as the federal Omnibus Act), only oral communications are covered by the Act. Thus, [defendant's] videotaping of her husband would not violate the Electronic Surveillance Act unless such videotaping also included an audio recording. See G.S. § 15A-286(14). . . . Because the record fails to show any evidence or allegation by [plaintiff] establishing that the subject videotaping included sound recordings, we summarily reverse the trial court's order granting him partial summary judgment on his claim of illegal videotaping under the Electronic Surveillance Act.
Id. at 351-52, 567 S.E.2d at 763 (citations omitted). Based on the holding of Kroh, we conclude that, because respondent failed to present any evidence that the videotape contained sound recordings of oral communications, the trial court did not err by denying his motion to exclude evidence derived from the videotape. This assignment of error is overruled.
Without evidence establishing that the videotape included oral communication, we do not reach the other issues raised by respondent pertaining to the legality of the tape. We have considered respondent's other argument and conclude it is without merit. We further conclude that the trial court's order of adjudication and disposition should be
Affirmed.
Judges McGEE and JACKSON concur.
Report per Rule 30(e).
The judges participated and submitted this opinion for filing prior to 10 July 2007.