State v Gardner 

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NO. COA14-646 NORTH CAROLINA COURT OF APPEALS Filed: 2 December 2014 STATE OF NORTH CAROLINA v. Rowan County No. 13 CRS 53450, 13 CRS 2785 DERRICK GARDNER Appeal by defendant from judgments entered 12 January 2014 by Judge Ronald E. Spivey in Rowan County Superior Court. Heard in the Court of Appeals 22 October 2014. Attorney General Roy Cooper, by Assistant Attorney General Laura Edwards Parker, for the State. Leslie Rawls for defendant. ELMORE, Judge. On 1 July 2013, defendant was indicted for failure to register as a sex offender (N.C. Gen. Stat. § 14-208.11) and for sex offender residential restriction violation based upon his alleged decision to reside residing within 1,000 feet of a child care center (N.C. Gen. Stat. § 14-208.16). On 23 September 2013, defendant was also indicted for habitual felon status. Prior to trial, defendant filed a motion in limine to exclude GPS data obtained from defendant’s satellite-based monitoring -2system. On 16 January 2014, defendant was found guilty of both charges. He subsequently admitted his habitual felon status. Defendant was sentenced as a prior record level IV offender with 12 prior record level points in the presumptive range to a minimum of 88 months and maximum of 118 months imprisonment. On appeal, defendant contends that he was denied his right to confront denied his and cross-examine right seizures. After to be free careful the from witnesses against unreasonable consideration, we him and searches and conclude that defendant received a trial free from error. I. Background The facts of this case are undisputed: On 21 March 2012, defendant was released from the North Carolina Department of Corrections into the custody of probation officer Josh Barrier (Barrier). Barrier provided defendant with a copy of the post- release conditions. As required, defendant registered his post- release address with the sheriff’s department at 930 N. Church Street in Salisbury, his mother’s residence. Defendant was assigned a curfew of 6:00 p.m. to 6:00 a.m. as part of his supervision. Barrier informed defendant he was confined to his residence during those hours. -3Barrier conducted visual curfew checks of defendant two to three times per week to insure defendant’s compliance. Defendant was arrested three times for curfew violations, and he was sent to prison for thirty to sixty days on each occasion. As a result of multiple curfew violations, defendant was placed on electronic monitoring on 25 September 2012. The monitoring device tracked defendant’s whereabouts and monitored whether he abided by the curfew restrictions and whether he stayed out of exclusion zones. At trial, the State called Barrier to testify concerning the operation defendant and of the the electronic data produced monitoring by that device device. worn by Barrier explained that the ankle bracelet used GPS and cell phone towers to pinpoint the location of an offender in real time. He stated that the system is monitored twenty-four hours a day and employs the same GPS satellite technology used in phones and cars for navigation. The system logs information including the specific time an offender enters an inclusion zone, which is generally his home address, or when he enters an exclusion zone, which is a prohibited area. Barrier testified that the information transmitted by the bracelet is stored in a secure database and constitutes an accurate and reliable source of information. -4On 28 December 2012, defendant asked Barrier if he could move to his girlfriend’s residence in Salisbury. Barrier informed defendant that moving to that location would violate the sex offender registry laws as her home was located a block from the Rowan Medical Child Development Center. As an alternative residence, Barrier located a church-run program in Spencer where defendant was permitted to live for free provided he attend church services. Defendant agreed. Defendant registered the church’s address with the sheriff’s department in early 2013. However, defendant resided at the church for only a month before he was asked to leave due to his continued rule violations. He changed his address back to 930 North Church Street. On 6 June 2013, Barrier monitoring inclusion system zone that the was notified by the electronic defendant night had before. failed to Barrier enter his reviewed the electronic records and determined that between 15 May 2013 and 6 June 2013, defendant had spent each night at his girlfriend’s residence, 900 Holmes Street in Salisbury. Barrier complied a report based on the electronic data which was admitted into evidence to illustrate requisite time periods. defendant’s whereabouts during the -5The defense presented the following evidence at trial: Dorothy Gardner, defendant’s mother, testified that defendant lived with her from 15 May to 6 June 2013. Cynthia Houston, defendant’s girlfriend, testified that defendant did not reside with her during the requisite time period. Defendant now appeals from his conviction. II. Analysis A. Confrontation Clause Defendant first argues the admission of the GPS tracking reports violated his rights under the Sixth Amendment’s Confrontation Clause in light of Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004). We disagree and hold that the GPS tracking evidence was properly admitted as a business record. We novo. review defendant’s Confrontation Clause challenge de State v. Ortiz-Zape, ___ N.C. App. ___, ___, 743 S.E.2d 156, 162 (2013) cert. denied, ___ U.S. ___, ___, 189 L. Ed. 2d 208 (2014). The Confrontation Clause of the Sixth Amendment provides: “[i]n all criminal prosecutions, the accused shall enjoy right the against him.” . . . to be confronted with the witnesses Crawford, 541 U.S. at 42, 158 L. Ed. 2d at 187. -6This Court has previously held that GPS tracking evidence and simultaneously business records Jackson, ___ N.C. prepared exception App. reports are to hearsay ___, the ___, 748 admissible under rule. S.E.2d 50, State 55 the v. (2013). “Hearsay” is defined in the North Carolina Rules of Evidence as “a 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.” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2013). Although generally inadmissible at trial, hearsay may be allowed by statute or the North Carolina Rules of Evidence. Stat. § N.C. Gen. Stat. § 8C–1, Rule 802 (2013). 8C–1, Rule 803(6) establishes an N.C. Gen. exception to the general exclusion of hearsay evidence as applied to business records. A business record includes: A 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 “business” as used in this paragraph includes business, institution, association, -7profession, occupation, and calling of every kind, whether or not conducted for profit. N.C. Gen. Stat. § 8C-1, Rule 803(6) (2013). When a business record is stored electronically, it is still admissible if (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. State v. Crawley, 217 N.C. App. 509, 516 , 719 S.E.2d 632, 637(2011) (quoting State v. Springer, 283 N.C. 627, 636, 197 S.E.2d 530, 536 (1973)), rev. denied, 365 N.C. 553, 722 S.E.2d 607 (2012). The electronic business records authenticated by the person who made them. need not be Id. at 516, 719 S.E.2d at 637-38. Defendant argues that the facts of this case are distinguishable from the Eighth Circuit decision United States v. Brooks, 715 F.3d 1069 (8th Cir. 2013). defendant. persuasive. Instead, In Brooks, we the find Brooks Eighth We disagree with both Circuit on point determined and that a -8business record under Rule 803(6), while generally non- testimonial in nature, may occasionally be testimonial and “run afoul” of the Confrontation Clause if the business record was created for the purpose of establishing or proving some fact at trial. Brooks, 715 F.3d at 1079. record is testimonial “when Put another way, a business the circumstances objectively indicate that . . . the primary purpose of [an] interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Davis v. Washington, 547 U.S. 813, 822, 165 L. Ed. 2d 224, 237 (2006). On appeal, defendant contends that the GPS data and report offered into evidence at trial was generated solely “for the purposes of criminal prosecution.” Therefore, he argues that the GPS evidence was testimonial in nature and subject to the Confrontation Clause. As in Brooks, the GPS evidence admitted in this case was not generated purely for the purpose of establishing some fact at trial. Instead, it was generated to monitor defendant’s compliance with his post-release supervision conditions. The GPS evidence was only pertinent at trial because defendant was alleged to have violated his post-release conditions. We hold that the GPS report was non-testimonial and its admission did not violate defendant’s Confrontation Clause rights. See id. -9To clarify, monitoring the device compilation. tracking worn The by State’s data from defendant exhibit 1, the electronic constitutes which a data consisted of Barrier’s report compiling the data gathered from defendant’s electronic monitoring device, is “merely an extraction of that data produced for trial.” S.E.2d at 55. Jackson, ___ N.C. App. at ___, 748 It is well established that “[t]rustworthiness is the foundation of the business records exception.” State v. Miller, 80 N.C. App. 425, 429, 342 S.E.2d 553, 556 (1986). On appeal, of defendant does not dispute the trustworthiness exhibit 1, meaning he does not dispute that the report was made or recorded in the regular course of business at or near the time of the incident. We hold that the tracking data at issue, which was gathered for the purpose of monitoring defendant’s compliance reliable with source his of post-release information. supervision, Barrier’s constitutes testimony a further established a sufficient foundation of trustworthiness for the tracking evidence to be admitted as a business record. Jackson, supra. See Accordingly, we overrule defendant’s argument. B. Unreasonable Search and Seizure -10Defendant argues that the data obtained from the GPS device violated his constitutional rights because previously ordered that the device be removed. the trial court We disagree. “In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or ruling party the motion, stating desired the the specific court to grounds for if specific make grounds were not apparent from the context.” 10(a)(1). raised the the N.C. R. App. P. It is well settled that constitutional issues not and passed upon at trial will considered for the first time on appeal. not ordinarily be State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988). Because there is no evidence in the record that defendant raised this issue at trial and because there is no evidence in the record that the trial court did, in fact, order defendant’s tracking device removed, we decline to address this issue. In sum, we hold that the trial court did not err in admitting the GPS tracking evidence because such evidence was non-testimonial in nature and fell within the business records exception to the hearsay rule. Accordingly, defendant received a trial free from error. No error. we hold that -11Judges BRYANT and ERVIN concur.

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