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									NO. COA05-944                   TWENTY FIFTH JUDICIAL DISTRICT



                 NORTH CAROLINA COURT OF APPEALS

         **********************************************

STATE OF NORTH CAROLINA           )
                                  )
         v.                       )     FROM CATAWBA COUNTY
                                  )     Nos. 04-CRS-52374
THOMAS JOSEPH BERGHELLO           )
                                  )
__________________________________)


          ********************************************

                   DEFENDANT-APPELLANT’S BRIEF

          ********************************************
                                  i

                                INDEX

                                                                  PAGE

TABLE OF AUTHORITIES    . . . . . . . . . . . . . . . . . . . .    ii

QUESTIONS PRESENTED     . . . . . . . . . . . . . . . . . . . .     1

STATEMENT OF THE CASE     . . . . . . . . . . . . . . . . . . .     2

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW . . . . . . . . . 2

STATEMENT OF THE FACTS    . . . . . . . . . . . . . . . . . . .     3

ARGUMENTS    . . . . . . . . . . . . . . . . . . . . . . . . .      5


      I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO
        SUSTAIN DEFENDANT’S OBJECTION AND GRANT HIS MOTION IN
        LIMINE TO EXCLUDE THE ADMITTANCE AND PLAYING FOR THE JURY
        OF A FEW SECONDS OF A VIDEOTAPE FROM THE CONVENIENCE
        STORE COMPUTER AS THE IMAGES WERE NOT CLEAR DID NOT
        PRESENT THE ENTIRE TIME FRAME IN QUESTION AND COULD ONLY
        CONFUSE AND PREJUDICE THE JURY (ASSIGNMENT OF ERROR NO.
        3, Tpp.121-123; Rp.17) . . . . . . . . . . . . . . . . .5

II.   THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO
      GRANT DEFENDANT’S MOTION TO DISMISS FOR INSUFFICIENCY OF THE
      EVIDENCE THE SECOND DEGREE KIDNAPPING CHARGE AS THE STATE
      FAILED TO MEET ITS BURDEN OF PROOF (ASSIGNMENT OF ERROR
      NO.4, Tpp.164; 180) . . . . . . . . . . . . . . . . .. . .10


CONCLUSION   . . . . . . . . . . . . . . . . . . . . . . . . .     15

CERTIFICATE OF SERVICE    . . . . . . . . . . . . . . . . . . .    16
                               ii

CASES                TABLE OF AUTHORITIES               PAGE

State v. Ackerman,144 N.C. App. 452, 551 S.E.2d.139(2001)12,13

State v. Allred, 131 N.C. App. 11 (1998) . . . . . . . . 12

State v. Alston, 307 N.C. 321,298 S.E.2d 631(1983). . . .8,9

State v. Cannon, 92 N.C.App. 246,374 S.E.2d 604(1988). . 6

State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978) . .11

State v. Gray, 137 N.C.App. 345, 528 S.E.2d 46(2000) . . 7,8

State v. Hennis, 323 N.C. 279,374 S.E.2d 523(1988) . . . 9

State v. Irwin, 304 N.C. 93,282 S.E.2d 439(1981) . . . . 11

State v. Jarvis, 56 N.C.App. 678, 290 S.E.2d 228(1982) . .6,7

State v. Lee, 335 N.C. 244,439 S.E.2d 547(1994) . . . . . 6,7

State v. Mason, 144 N.C.App. 20,550 S.E.2d 10(2001) . . . 7,8

State v. Weaver, 123 N.C. App. 276,473 S.E.2d 362(1996) . 12


STATUTES

N.C.G.S. § 8C-1, Rule 403 . . . . . . . . . . . . . . . . 7,9

N.C.G.S. 8C-1, Rule 901 . . . . . . . . . . . . . . . . . 6,7

N.C.G.S. 14-27.3 . . . . . . . . . . . . . . . . . . . . .13

N.C.G.S. 14-87(a) . . . . . . . . . . . . . . . . . . . . 12


CONSTITUTIONAL PROVISIONS

United States Constitution, Amendment V . . . . . . . . . 11

United States Constitution, Amendment XIV . . . . . . . . 11
NO. COA05-944                      TWENTY FIFTH JUDICIAL DISTRICT



                  NORTH CAROLINA COURT OF APPEALS

          **********************************************

STATE OF NORTH CAROLINA           )
                                  )
         v.                       )        FROM CATAWBA COUNTY
                                  )        Nos. 04-CRS-52374
THOMAS JOSEPH BERGHELLO           )
                                  )
__________________________________)




           ********************************************

                    DEFENDANT-APPELLANT’S BRIEF

           ********************************************

                          QUESTIONS PRESENTED


      I. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN FAILING TO
        SUSTAIN DEFENDANT’S OBJECTION AND GRANT HIS MOTION IN
        LIMINE TO EXCLUDE THE ADMITTANCE AND PLAYING FOR THE JURY
        OF A FEW SECONDS OF A VIDEOTAPE FROM THE CONVENIENCE
        STORE COMPUTER AS THE IMAGES WERE NOT CLEAR DID NOT
        PRESENT THE ENTIRE TIME FRAME IN QUESTION AND COULD ONLY
        CONFUSE AND PREJUDICE THE JURY?

II.   DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN FAILING TO
      GRANT DEFENDANT’S MOTION TO DISMISS FOR INSUFFICIENCY OF THE
      EVIDENCE THE SECOND DEGREE KIDNAPPING CHARGE AS THE STATE
      FAILED TO MEET ITS BURDEN OF PROOF?
                       STATEMENT OF THE CASE


    The Defendant, Thomas Joseph Berghello, was indicted on one

count of second degree kidnapping and one count of attempted rape

on 10 May 2004. The Defendant’s case was called for trial on the

11 January 2005 session of Criminal Superior Court for Catawba

County before the Honorable James W. Morgan and a jury. On or

around 12 January 2005 the jury returned a verdict finding the

Defendant guilty of attempted second degree rape and second

degree kidnapping. The trial court entered the judgment on 12

January 2005, sentencing Defendant to an active sentence with the

North Carolina Department of Corrections. The Defendant gave

timely notice of appeal on 21 January 2005. The transcript was

ordered on 21 January 2005 and was mailed to the parties on 4

April 2005.

    The final record on appeal was filed with the North Carolina

Court of Appeals on 20 July 2005 and docketed on 2 August 2005.

The printed Record on Appeal was mailed from the Office of the

Clerk of the Court of Appeals on 11 August 2005.

              STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

    The ground for appellate review is a final judgment of

superior court under N.C. Gen. Stat. 7A-27(b).     A timely notice

on appeal was filed by the Defendant on 21 January 2005.



                       STATEMENT OF THE FACTS
         Marie Thompson was a cashier at a Run In convenience

store in Newton, NC in March of 2004. She testified that Mr.

Berghello came into her store around 12:00 p.m. one day dressed

in a dress shirt, slacks and tie and looked at adult magazines

for a while and then asked her strange questions like if she was

married and where security cameras were located. Thompson then

testified that Berghello told her the men’s bathroom was dirty

and when she went in to clean it he tried to force her to have

sexual relations with him and they got into a physical

altercation. He then asked her where the videotape was located

and left. (Tpp.21;28;30;31)

    Over Mr. Berghello’s objection, the jury was allowed to hear

the audiotape of her 911 call, and the tape was admitted into

evidence. Though the police also provided her a photo line-up in

which she identified Mr. Berghello, the trial court ruled that

the photo line up was too suggestive and excluded it from

introduction into evidence. (Tpp.40-42;60)

    Officer Ryan Pippin of the Newton Police Department

testified that he was the first officer on the scene that day. He

testified that the only description Ms. Thompson gave him was

that the perpetrator was a heavy set white customer. He

downloaded “snippets” of video from the computer at the Run In

onto two computer discs. At trial the State moved to introduce

these snippets of computer generated pictures which were on a

loop showing over and over again as State’s exhibit number 10.
Mr. Berghello objected as the State could not produce the video

for the other supposedly twenty minutes Mr. Berghello was alleged

to be in the store by Ms. Thompson. The trial court overruled the

objection and allowed introduction of the exhibit and allowed it

to be shown to the jury. (Tpp.116-119;121)

    Officer Pippin also confirmed that no one took a picture of

the bathroom where the incident allegedly happened. No one at the

police department checked to see if there was a bloody handprint

in the bathroom or if there were footprints or even any

fingerprints in the bathroom or on the magazines. Pippin

testified that he does not know what happened to the remaining

video for the other time Mr. Berghello was allegedly in the

store. He also testified that Mr. Berghello came down to the

police station willingly when contacted by the officers.

(Tpp.127-129;132)

    Casey Hartman testified he was a captain with the Newton

Police Department. He admitted that on his report he documented

that Ms. Thompson brought down the sweater she allegedly had been

wearing on the date of the incident on June 26, 2004, some three

months after the alleged incident. He testified that though he

wrote that date a number of times on his report, it must have

been March 26, 2004 when she brought the sweater by the police

station. (Tpp.137;143)

    Lieutenant Bruce Prestwood with the Newton Police Department

testified that he spoke with Mr. Berghello after he had signed a
waiver. He asked Mr. Berghello where the knife was and Mr.

Berghello told him he did not own a knife. He asked him where the

tape was, and Mr. Berghello told him he had been drinking heavily

and could not remember the events of the day. Prestwood admitted

on cross that he noticed no blood on Mr. Berghello and he did not

look like he had been in an altercation. Prestwood also testified

that Mr. Berghello cooperated with him.    (Tpp.153;158;159)



                               ARGUMENTS

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO
   SUSTAIN DEFENDANT’S OBJECTION AND GRANT HIS MOTION IN LIMINE
   TO EXCLUDE THE ADMITTANCE AND PLAYING FOR THE JURY OF A FEW
   SECONDS OF A VIDEOTAPE FROM THE CONVENIENCE STORE COMPUTER AS
   THE IMAGES WERE NOT CLEAR DID NOT PRESENT THE ENTIRE TIME
   FRAME IN QUESTION AND COULD ONLY CONFUSE AND PREJUDICE THE
   JURY (ASSIGNMENT OF ERROR NO. 3, Tpp.121-123; Rp.17).

     The State introduced at trial a few seconds downloaded from

a videotape present in the store at the time of the alleged

incident. This videotape only contained a few seconds of footage

which apparently showed an unidentifiable man take a videotape

out from behind the desk at the convenience store. The remaining

footage of the time period Mr. Berghello was alleged to be in the

store was not produced by the State or introduced into evidence.

As the videotape portion was unidentifiable and could only serve

to unfairly prejudice Mr. Berghello, it should have been excluded

and failure to do so should result in a new trial.

          Initially,   the   State   failed   to   lay   the   proper

foundation for the admission of the videotape as evidence.         A
proper foundation is laid for the introduction of a videotape by

testimony that the videotape fairly and accurately illustrates

the events filmed or testimony that the videotape accurately

recorded the actual appearance of the area photographed.                          See

State   v.    Cannon,   92   N.C.App.     246,   254,   374    S.E.2d      604,   609

(1988).

A.   The   Convenience           Store     Videotape     was        not    properly
authenticated

    North Carolina General Statute Section 8C-1, Rule 901(a)

  provides:

              The requirement of authentication or identification as
              a condition precedent to admissibility is satisfied by
              evidence sufficient to support a finding that the
              matter in question is what its proponent claims.

In order for a videotape to be introduced, it must be properly

authenticated by a witness with knowledge that the evidence is in

fact what it purports to be.              See State v. Lee, 335 N.C. 244,

270, 439 S.E.2d 547, 560 (1994)(authentication of photographs).

One of the considerations as to proper authentication is whether

the recorded image can be identified. See State v. Jarvis, 56

N.C.App. 678, 681, 290 S.E.2d 228, 231 (1982)(identification of

voice on audio recording).

    At       best,   according    to     the   description     by    the   district

attorney, the videotape shows a heavyset “white guy” removing a

videotape and walking out of the store. It is undisputed that Mr.

Berghello could not be positively identified by the tape. The
State only proffered a few seconds of videotape from the more

than twenty minutes Mr. Berghello was alleged to be in the store.

Further, the officer was not familiar with the videotape system

the footage came off of, and the person who owned and maintained

the video system did not testify at trial. The convenience store

video therefore was not admissible as it could not be properly

authenticated. (Tp.120); See State v. Lee, 335 N.C. at 270, 439

S.E.2d at 560; State v. Jarvis, 56 N.C.App. at 681, 290 S.E.2d at

231; N.C.G.S § 8C-1, Rule 901(a).

B.     The Convenience store video clip was inadmissible because it
       did not accurately portray events depicted.

       A videotape which does not fairly and accurately illustrate

the events filmed is not admissible.                See State v. Mason, 144

N.C.App.   20,   25,    550   S.E.2d    10,    14   (2001).    Exclusion     of

photographic evidence is required where its tendency to prejudice

the jury outweighs any probative value. N.C.G.S. § 8C-1, Rule

403; See State v. Gray, 137 N.C.App. 345, 350, 528 S.E.2d 46, 49

(2000)(use of crime scene photographs not unfairly prejudicial).

To determine whether the video is admissible, the trial court

must   examine   both   the   content    and    the   manner   in   which   the

evidence is used and examine the totality of the circumstances

contained in the presentation sought to be admitted.                The trial

court must consider what the photographic evidence depicts, its

level of detail and scale and the scope and clarity of the

testimony it accompanies in weighing its use by the State against
its tendency to prejudice the jury.                   See State v. Gray, 137

N.C.App.     at   350-1,    528   S.E.2d    at   50   (illustrative    value   of

photographic evidence).

             The Convenience Store video clip shows nothing but a

heavy set Caucasian man apparently reaching over the counter to

retrieve a videotape. No footage was provided concerning the

other time Mr. Berghello was alleged to be in the store. No one

from   the    store   who    owned   and     maintained    the    video   system

testified at trial.         See State v. Alston, 307 N.C. 321, 339, 298

S.E.2d 631, 644 (1983)(evidence without any tendency to prove a

fact in issue is inadmissible). The tape should have also been

excluded     as    the      Officer’s      testimony     did     not   establish

conclusively that the tape showed a time frame Mr. Berghello was

alleged to be in the store. State v. Mason, 144 N.C.App. at 27,

550 S.E.2d at 15; State v. Gray, 137 N.C.App. at 350-1, 528

S.E.2d at 50.      As indicated by the District Attorney in argument

to the Court, there was some footage spliced onto the footage

shown of another time entirely that showed different vehicles in

the parking lot. Further, apparently the video was not shown in

real time but slowed down and shown on a repeating basis, causing

the trial court to question what exactly was going on with what

he was looking at. (Tpp.117-118)

       Any probative value of the Convenience store videotape was

clearly outweighed by its tendency to unfairly prejudice and

mislead the jury. N.C.G.S. § 8C-1, Rule 403. As indicated above,
the trial court had to repeatedly ask questions to understand

exactly what was being shown him by the State. Though the trial

court did ask the State to explain that the footage was not shown

in real time, the jury did not have the benefit of the trial

court’s questions and answers with the State to shed light on

exactly they were seeing.

       The error in admitting this videotape was compounded by the

fact    that   though      the   State    requested       introduction   of   the

videotape to corroborate the description of the person given by

Ms.    Thompson,     the     trial    court   admitted      the   videotape    as

substantive evidence, with no limiting instructions to the jury.

As the only video depiction the jury was allowed to see after

much   testimony     about    videotapes,     and   the    videotaping   of   the

incident, it obviously carried much weight with the jury. The

trial court therefore abused its discretion in admitting the

Convenience store video into evidence.              See State v. Hennis, 323

N.C. 279, 285, 374 S.E.2d 523, 527 (1988)(abuse of discretion

standard).

C.     Admission of the videotape was unduly prejudicial.

       The   trial   court’s     error   in   admitting     the   videotape   was

material and prejudicial.            See State v. Alston, 307 N.C. at 339,

298 S.E.2d at 644.           As with the photo lineup created by the

police which was excluded by the trial court because it was

unduly suggestive, the police chose to only record a few seconds

of videotape that showed an unidentifiable, heavy set Caucasian
man reaching behind a counter to get a videotape. No effort was

made    to    retrieve       the    remaining    eighteen       or    so    minutes    of

videotape during the time frame Mr. Berghello was alleged to be

in    the    store.    The     sole   purpose    presented      by    the    State    for

introduction      was        to    corroborate     Ms.       Thompson’s      testimony.

However, the prejudicial impact was great, and as stated above

the trial court admitted the tape as substantive evidence and

gave no limiting instruction. This was the only visual image of

the date in question presented to the jury. The fact that the

police only secured these few seconds and failed to download the

remaining      time        frame   which   could      have    provided      exonerating

material for Mr. Berghello should have precluded the admission of

this    portion       of    the    videotape,    as    its    undue   suggestiveness

requires reversal on that basis alone.


     II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO
       GRANT DEFENDANT’S MOTION TO DISMISS FOR INSUFFICIENCY OF THE
       EVIDENCE THE SECOND DEGREE KIDNAPPING CHARGE AS THE STATE
       FAILED TO MEET ITS BURDEN OF PROOF (ASSIGNMENT OF ERROR
       NO.4, Tpp.164; 180).

       Mr. Berghello was convicted of both attempted second degree

rape and second degree kidnapping, the trial court denying Mr.

Berghello’s motions to dismiss both counts at the close of

State’s evidence and close of all the evidence. As the evidence

in the light most favorable to the State, showed no confinement

of Ms. Thompson beyond that inherent in the attempted second

degree rape charge, and no other conduct that would “terrorize”
Ms. Thompson beyond the act of attempting to rape her, the charge

of second degree kidnapping should have been dismissed.

    Mr. Berghello’s second-degree kidnapping conviction must be

vacated because there is insufficient evidence of the essential

element of “restraint” separate and apart from that which was

inherent in the commission of the separately-punished attempted

rape. Thompson was not subjected to the kind of danger and abuse

our kidnapping statute is designed to prevent; the conviction

violates the Double Jeopardy Clause of the Fifth Amendment and

the Due Process Clause of the Fourteenth Amendment to the United

States Constitution and the decision in State v. Fulcher, 294

N.C. 503, 243 S.E.2d 338 (1978).

    Our Courts have recognized that “it is self-evident”

that certain felonies, including rape, cannot be

committed without some restraint of the victim.     State v.

Irwin, 304 N.C. 93, 103, 282 S.E.2d 439, 446 (1981);

State v. Fulcher, 294 N.C. at 523, 243 S.E.2d at 351.

When a defendant has been convicted of both such a felony

and kidnapping for the purpose of facilitating that

felony, the kidnapping conviction violates double

jeopardy if the removal upon which it is based “is an

inherent, inevitable feature of such other felony.”     Id.

The kidnapping conviction must be vacated unless “the

victim is exposed to greater danger than that inherent in

the [separately-punished crime] itself or subjected to
the kind of danger and abuse the kidnapping statute was

designed to prevent.”   State v. Weaver, 123 N.C. App.

276, 281, 473 S.E.2d 362, 365 (1996).

    In the present case, the State sought to convict Mr.

Berghello for second degree kidnapping on the basis that he had

confined Thompson for the purpose of terrorizing her. Though the

basis of the kidnapping charge was not that he restrained her to

commit another felony, the analysis our Courts have used still

applies, as restraint “which is an inherent, inevitable feature

of the other felony may not be used to convict a defendant of

kidnapping.” State v. Allred, 131 N.C. App. 11 (1998).

    In Allred, the defendants were convicted of armed robbery

and kidnapping. As to two of the victims, it was found that the

defendants held them at gunpoint while the robbery was committed.

This Court found that restraint was an inherent part of the armed

robbery conviction under G.S. 14-87(a), vacating defendants

kidnapping convictions as a result.

    In State v. Ackerman, 144 N.C. App. 452, 551 S.E.2d. 139

(2001), this Court heard an appeal of defendant’s convictions for

first-degree sexual offense, first degree kidnapping, assault on

a female, assault with a deadly weapon, injury to personal

property and communicating threats. In that case, the State’s

evidence showed that after seeing the defendant at a bar, the

victim went out to her car and prepared to drive from the parking

lot. The defendant entered her car through the open window and
after getting the car to stop began to beat her with a full beer

bottle, and then began to choke her telling her that he was going

to rape her and then kill her. The victim then managed to get

away after suffering bite wounds, scratches, swelling and

bruising at the hands of the defendant.

    The Ackerman Court found that the trial court erred in not

dismissing the first degree kidnapping charge. This Court held

that the restraint inherent in the first degree sexual offense

was not separate and apart from any other restraint that could

support a conviction of first degree kidnapping. The Ackerman

Court reasoned that, as in our case, there was no confinement of

the victim beyond the Defendant preventing the victim from

escaping the vehicle. “The restraint was an inherent part of the

commission of the sexual offense, and cannot be used to convict

defendant of kidnapping.”

    In our case, the evidence most favorable to the State shows

a situation similar to Ackerman as Thompson and Mr. Berghello

were in the bathroom during the entire altercation, and that

confinement was inherent in the allegations of attempted second

degree rape against Mr. Berghello. G.S. 14-27.3 defines second

degree rape in pertinent part as “A person is guilty of rape in

the second degree if the person engages in vaginal intercourse

with another person: (1)By force and against the will of the

other person”. Though Ms. Thompson testified that Mr. Berghello

struck her and pulled her back in the bathroom, all these actions
were in furtherance of his attempt to rape her. The restraint was

not separate and apart from the attempted rape and the trial

court erred in not dismissing the kidnapping charge on this

basis.

    The State might argue that in this case the second degree

kidnapping charge was not based on restraint or removal to commit

the underlying felony of attempted rape but to terrorize her. The

analysis from above still applies. The conduct that Ms. Thompson

alleged caused her to be terrorized consisted of the attempted

rape which Mr. Berghello has been punished severely for pursuant

to his conviction for attempted second degree rape. Alas, both

the restraint and the offending conduct for both crimes are the

same, and pursuant to double jeopardy analysis, Fulcher, and

Ackerman, the kidnapping charge should be dismissed.
                       CONCLUSION

    The Defendant respectfully requests that this Court

reverse the trial court as argued above, and remand to

the trial court for a new trial on the attempted rape

charge and dismissal of the kidnapping charge.

    This the ____ day of August, 2005.




                              ___________________________________
                              James N. Freeman, Jr.
                              Attorney for Defendant-Appellant
                              Thomas Joseph Berghello
                              Post Office Box 347
                              Elkin, North Carolina 28621
                              Telephone: (336) 835-4407
                              State Bar No.: 18188
                     CERTIFICATE OF SERVICE

     I hereby certify that I have this day served a copy of the
Appeal Information Sheet and Appellant’s Brief by placing said
copy in a postpaid envelope addressed to the person(s)
hereinafter named, at the place(s), and addresses stated below,
which is/are the last known address(es) and by depositing said
envelope and its contents in the United States Mail at Elkin,
North Carolina.



    Roy Cooper
    Attorney General
    Department of Justice
    PO Box 629
    Raleigh, North Carolina 27602-0629


         This the ___ day of August, 2005.



                                   ___________________________
                                   James N. Freeman, Jr.
                                   Post Office Box 347
                                   Elkin, North Carolina 28621
                                   State Bar No. 18188
                                   Telephone: (336) 835-4407

								
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