State v. Watlington

NO. COA13-661
NORTH CAROLINA COURT OF APPEALS

Filed: 1 July 2014
STATE OF NORTH CAROLINA

Alamance County
v.
Nos. 11 CRS 55481, 54816, 54822

THORNE OLIVER WATLINGTON

Appeal by defendant from judgments entered 5 October 2012

by Judge Henry W. Hight, Jr., in Alamance County Superior Court.

Heard in the Court of Appeals 9 December 2013.

Attorney General Roy Cooper, by Special Deputy Attorney
General Grady L. Balentine, Jr., for the State.

Appellate Defender Staples Hughes, by Assistant Appellate
Defenders John F. Carella and Benjamin Dowling-Sendor, for
Defendant.

ERVIN, Judge.

Defendant Thorne Oliver Watlington appeals from judgments

sentencing him to a term of eight to ten months imprisonment

based upon his conviction for felonious breaking or entering, to

a consecutive term of eight to ten months imprisonment based

upon his conviction for felonious larceny, to a consecutive term

of fourteen to seventeen months imprisonment based upon his

conviction for possession of a firearm by a felon, and to a

consecutive term of sixty days imprisonment based upon his
 -2-
conviction for assault by pointing a gun. On appeal, Defendant

contends that the trial court erred by refusing to admit the

contents of certain text messages and by failing to deliver his

requested instruction concerning the manner in which the jury

should evaluate the validity of eyewitness identification

evidence. After careful consideration of Defendant’s challenges

to the trial court’s judgments in light of the record and the

applicable law, we conclude that the trial court’s judgments

should remain undisturbed.

I. Factual Background

A. Substantive Facts

1. State’s Evidence

a. Background Information

Defendant’s cousin, Loven McLaughlin, has known Defendant

his entire life. In the summer of 2011, Defendant came to live

with Loven McLaughlin and Loven McLauchlin’s mother in the

Forestdale Apartments because Defendant was not getting along

with his own parents. In the latter part of July, Loven

McLaughlin’s mother told Defendant that he would have to leave.

After Defendant’s departure, Loven McLaughlin noticed that

Defendant was sleeping in the woods near the Mellow Mushroom.
 -3-
b. Firearm Theft

In July 2011, Cody May, who had gone to high school with

Defendant, lived in the Forestdale Apartments. After seeing

Defendant in the apartment complex, Mr. May reestablished a

connection with him.

On 25 July 2011, Mr. May stayed home from work. At noon,

he left to go to a medical appointment with his girlfriend to

learn the gender of their baby. As a result of the fact that

Defendant was present when Mr. May departed, the two of them

left simultaneously. Defendant had only been to Mr. May’s

apartment on a few occasions before the date in question.

About forty-five minutes after leaving his apartment, Mr.

May realized that he had forgotten something and returned home.

Upon arriving at his apartment, Mr. May discovered that the back

door had been kicked in and that an Xbox video game system;

three rifles, including a Norinco SKS with a laser sight and

that held 7.62 millimeter rounds; and a laptop had been stolen.

c. Mellow Mushroom Incident

Kenneth Pryor was working at the Mellow Mushroom on the

evening of 27 July 2011. After going outside for a cigarette

break, Mr. Pryor noticed a man exiting his truck. Upon making

this observation, Mr. Pryor yelled at and ran towards the

intruder, causing him to head in the opposite direction. As Mr.
 -4-
Pryor caught up with the intruder, the intruder turned around,

pulled what appeared to be an SKS rifle out of a bag, pointed it

at Mr. Pryor, and told him to lie down on the ground. Instead

of complying with this command, Mr. Pryor ran in the opposite

direction.

A few days later, Mr. Pryor identified Defendant as his

assailant after viewing a photographic lineup, claiming to be

90% certain that his identification was accurate. At trial,

however, Mr. Pryor only expressed a 50% certainty that his

identification of Defendant as the assailant was correct. In

support of Mr. Pryor’s identification testimony, Loven

McLaughlin testified that he had gone to the Mellow Mushroom on

the date of the incident involving Mr. Pryor so that Defendant

could use his cell phone and that, upon arriving at the Mellow

Mushroom, he had observed Defendant being chased, displaying a

firearm with a laser sight, and chasing the individual who had

been pursuing him.

d. Arby’s Incident

On the night of 29 July 2011, Anja Frick and Jessi

Richardson were working at the Arby’s Restaurant on Huffman Mill

Road. After helping Ms. Frick close the store at around 1:40

a.m., Ms. Richardson got into her car. At that point, she

noticed an African-American male standing beside her car and
 -5-
gesturing as if he wanted her to roll down her window or exit

the car. After Ms. Richardson did neither, the man went away.

As Ms. Frick locked the door to the store, she saw a light

emanating from a laser shining on the wall beside her. Although

Ms. Frick initially believed that the light had been caused by a

co-worker or either her father or her brother, who had come to

pick her up, an individual approached her as she neared the

vehicle in which she was to ride. After telling this person to

go away, Ms. Frick realized that another individual was holding

a long gun with a laser sight to her father’s head on the other

side of the car.

After Ms. Frick’s father stated that he did not have any

money, the individual who had approached Ms. Frick said, “just

shoot him.” At that point, Ms. Frick’s father realized that

another person was present and saw that this person was pointing

a rifle directly at his head. Eventually, the armed assailant

took wallets from both Ms. Frick’s father and brother and took a

cell phone from her brother before running towards the woods

with the individual who had approached her. As the men ran

away, one of them said, “give me the gun.” Ms. Frick then went

to a nearby Walmart with her father and brother and called the

police. Andre McLaughlin, Loven McLaughlin’s first cousin,
 -6-
testified that he and Defendant had committed the Arby’s

robbery.

On the following morning, Ms. Frick’s father and brother

returned to the scene of the robbery in the hope of finding

their wallets, which contained family photographs. As the two

men looked for their wallets, they found an identification card

that contained a photograph of Defendant near the edge of the

parking lot. Ms. Frick’s father stated, “that’s the guy that

robbed us,” as soon as he looked at it. Ms. Frick’s father had

a 70% level of confidence in the accuracy of his identification

of the person depicted on the identification card as one of the

perpetrators of the robbery. He then called the police,

informed them that he had found the card, and left it in their

possession. At trial, Ms. Frick’s father identified Defendant

as being the individual who had robbed him and his son.

e. Apprehension of Suspects

During the course of the investigation into the Arby’s

robbery, Ms. Frick’s brother provided Detective Gary Matthew

Fitch of the Burlington Police Department with his cell phone

number. After Detective Fitch called Ms. Fitch’s brother’s cell

phone in order to determine its location, investigating officers

went to the Forestdale Apartments and began randomly knocking on
 -7-
doors for the purpose of seeking information concerning the

Arby’s robbery.

At approximately 12:30 p.m., the investigating officers

went to Apartment H-F. After knocking and receiving no

response, the investigating officers noticed two cell phones in

the rear of a nearby Honda automobile, one of which resembled

the cell phone that had been taken from Ms. Frick’s brother. In

addition, the investigating officers noticed that there was a

rifle shell in the front seat. Upon calling the number assigned

to Ms. Frick’s brother’s cell phone, the investigating officers

heard a cell phone vibration emanating from the interior of the

Honda automobile.

At approximately 3:00 p.m., Rashawn Alston emerged from

Apartment H-F and entered the Honda automobile. Investigating

officers detained Mr. Alston before he was able to leave. About

an hour later, Loven and Andre McLaughlin came out of the same

apartment and were taken into custody. Upon learning that yet

another individual remained in the apartment, investigating

officers entered the apartment and detained Defendant. During a

subsequent search of the apartment, officers found a wallet that

resembled the one that had been taken from Ms. Frick’s father.

At a nearby abandoned building, investigating officers found a

vehicle that contained a rifle with an attached laser sight and
 -8-
7.29 by 39 millimeter rounds that had been loaded into an SKS

magazine. In addition, Defendant’s fingerprints were found on

an ammunition box seized from the vehicle.

2. Defendant’s Evidence

Defendant and Loven McLaughlin, with whom he had grown up,

are second cousins. Defendant knew Andre McLaughlin from high

school. After graduating high school, Defendant enlisted in the

Army. While serving in the military, Defendant was arrested for

being in a stolen vehicle, entered a negotiated plea to a

felony, and received a twelve-month sentence.

After his release from incarceration, Defendant went to

stay with Loven McLaughlin. Defendant denied that Loven

McLaughlin’s mother had requested that he leave and claimed, on

the contrary, that Loven McLaughlin was in the process of

leaving as the result of numerous noise complaints. Upon being

re-called, however, Loven McLaughlin testified that his mother

had told Defendant that he needed to leave because she had heard

that he was getting into trouble around town.

After coming to live with Loven McLaughlin, Defendant

visited Mr. May, whom he had known in high school, on three

occasions. On the first visit, during which he was accompanied

by Loven McLaughlin, Mr. May showed a pistol to the two men. In

the course of the second visit, during which Loven McLaughlin
 -9-
was not present, Mr. May showed Defendant a number of guns and

asked for Defendant’s help in locating a purchaser for these

weapons. Mr. May did not ever show Defendant an SKS rifle.

Subsequently, Defendant mentioned Mr. May’s request to Loven

McLaughlin and Mr. Alston, whom he had met at Loven McLaughlin’s

apartment. The third and final visit to Mr. May’s apartment

occurred on the day of the theft. During his visits to Mr.

May’s apartment, Defendant had noticed ammunition crates in the

living room and touched one of them given his curiosity about

what was inside.

Defendant denied having returned to Mr. May’s apartment on

the day of the theft, breaking into Mr. May’s apartment, or

stealing firearms and ammunition from Mr. May. Similarly,

Defendant denied having asked Loven McLaughlin to come to the

Mellow Mushroom or having pointed a firearm at Mr. Pryor.

Although he initially told investigating officers that he

and his friends had been at home at the time of the Arby’s

robbery, Defendant testified at trial that, after Loven

McLaughlin and Andre McLaughlin arrived at the apartment, a

woman named Sonia, whose last name he did not recall, picked him

up and took him to a hotel, where they stayed all night. The

following morning, Defendant returned to Loven McLaughlin’s

apartment, where he fell asleep. Upon awakening, Defendant
 -10-
noticed that the house was empty, called Loven McLaughlin’s

phone to find out where he was, and went to a Kmart for the

purpose of meeting Loven McLaughlin and Andre McLaughlin.

Subsequently, Mr. Alston picked the group up and took them

back to Loven McLaughlin’s apartment. After arriving at the

apartment, however, Loven McLaughlin observed that investigating

officers were in the area. Although an officer knocked on the

door, no one answered. At that point, Defendant decided to

sleep for a few hours.

Once Defendant woke up, the members of the group began

leaving the apartment. However, Defendant decided to use the

restroom before exiting. As he left the restroom, investigating

officers entered the apartment and took him into custody. He

was then taken to the police department for questioning.

Defendant speculated that he might have dropped his

identification card near the Arby’s at which the robbery

occurred since he regularly used a walking route near that

location. In a letter that Defendant wrote to Mr. May after his

incarceration, Defendant denied having stolen anything from Mr.

May, claimed to have been in Raleigh at the time of the theft,

and opined that Mr. Alston had committed the theft given that

evidence of the theft had been found in his car. In addition,

Defendant told Mr. May that he had reached the conclusion that
 -11-
Mr. Alston was the culprit because Mr. Alston had mentioned an

Xbox 360 to him and because Defendant had told Mr. Alston about

Mr. May’s guns. Finally, Defendant requested that Mr. May

contact Loven McLaughlin on his behalf and provided Mr. May with

Loven McLaughlin’s number, which he listed as (336) 263-9913.

B. Procedural History

On 31 July 2011, warrants for arrest were issued charging

Defendant with two counts of robbery with a dangerous weapon,

two counts of attempted robbery with a dangerous weapon,

possession of a stolen motor vehicle, possession of stolen

property, breaking or entering a motor vehicle, assault by

pointing a gun, financial transaction card theft, and possession

of a firearm by a felon. On 29 August 2011, the Alamance County

grand jury returned bills of indictment charging Defendant with

two counts of robbery with a dangerous weapon; two counts of

attempted robbery with a dangerous weapon; possession of a

stolen motor vehicle; possession of stolen property; breaking or

entering into a motor vehicle; assault by pointing a gun;

financial transaction card theft; and possession of a firearm by

a felon. On 1 September 2011, a warrant for arrest charging

Defendant with felonious breaking or entering, felonious

larceny, and possession of stolen goods was issued. On 5 March

2012, the Alamance County grand jury returned a bill of
 -12-
indictment charging Defendant with felonious breaking or

entering, felonious larceny, and possession of stolen goods. On

25 September 2012, the State voluntarily dismissed the financial

transaction card theft charge.

The charges against Defendant came on for trial at the 25

September 2012 criminal session of the Alamance County Superior

Court before the trial court and a jury. At the conclusion of

the trial, the jury found Defendant guilty of felonious breaking

or entering, felonious larceny, one count of felonious

possession of stolen property, breaking or entering a motor

vehicle, assault by pointing a gun, and possession of a firearm

by a convicted felon; not guilty of one count of attempted

robbery with a firearm, possession of a stolen motor vehicle,

and a second count of possession of stolen property; and failed

to reach a unanimous verdict with respect to two counts of

robbery with a dangerous weapon and a second count of attempted

robbery with a dangerous weapon.1 After arresting judgment in

1
The effect of the jury’s verdict in practical terms was to
convict Defendant of breaking into Mr. May’s apartment and
stealing his laptop computer, Xbox, and firearms; breaking into
Mr. Pryor’s motor vehicle, assaulting Mr. Pryor by pointing a
gun, and possessing a firearm at the time of the assault upon
Mr. Pryor; to acquit Defendant of attempting to rob Ms.
Richardson with a dangerous weapon, possessing Ms. Frick’s
brother’s wallet, and possessing a stolen motor vehicle; and to
fail to reach agreement with respect to the issue of whether
Defendant robbed Ms. Frick’s father and brother and attempted to
rob Ms. Frick.
 -13-
connection with Defendant’s conviction for possession of stolen

property, the trial court entered judgments sentencing Defendant

to four consecutive active terms totaling thirty-two to thirty-

nine months imprisonment, and one suspended term of six to eight

months imprisonment, with Defendant being placed on supervised

probation for a period of thirty-six months subject to certain

terms and conditions. Defendant noted an appeal to this Court

from the trial court’s judgments.

II. Legal Analysis

A. Motion to Strike the State’s Brief

As an initial matter, we must address Defendant’s motion to

strike the State’s brief, which was filed in an untimely manner

without any justification or excuse and after several extensions

of the time within which it was authorized to do so had been

obtained. Although the complete failure on the part of counsel

for the State to comply with our rules concerning the timing

within which the State’s brief should have been filed is quite

troubling and although we strongly admonish counsel for the

State to refrain from engaging in such conduct in the future, we

conclude that Defendant’s dismissal motion should be denied for

a number of reasons.

As an initial matter, we note that the filing of an

appellee’s brief, as compared to the filing of an appellant’s
 -14-
brief, is not a prerequisite for the perfection of an appeal.

According to the relevant provisions of the North Carolina Rules

of Appellate Procedure, while “the appeal may be dismissed”

“[i]f an appellant fails to file and serve a brief within the

time allowed,” an appellee’s failure to file his or her brief in

a timely manner simply means that he or she may not “be heard in

oral argument except by permission of the court.” N.C.R. App.

P. 13(c). For that reason, decisions such as Thompson v. First

Citizens Bank & Trust Co., 151 N.C. App. 704, 706, 567 S.E.2d

184, 186-87 (2002), and Dalenko v. Wake Cnty. Dep’t of Human

Servs., 157 N.C. App. 49, 53-54, 578 S.E.2d 599, 602, cert.

denied, 357 N.C. 457, 585 S.E.2d 383 (2003) cert. denied sub nom

Bennett v. Wake Cnty. Dep’t of Human Servs., 540 U.S. 1178, 124

S. Ct. 1411, 158 L. Ed. 2d 79 (2004), in which this Court

dismissed appeals based upon the appellant’s failure to file a

brief, shed little light on the proper resolution of this issue.

As a result, since nothing in the relevant provisions of the

North Carolina Rules of Appellate Procedure mandates the

striking of the State’s brief, we must evaluate the merits of

Defendant’s motion to strike based upon an analysis of the

decisions governing the manner in which violations of the North

Carolina Rules of Appellate Procedure should be sanctioned.
 -15-
Although the Rules of Appellate Procedure “are mandatory

and [the] failure to follow these rules will subject an appeal

to dismissal,” Steingress v. Steingress, 350 N.C. 64, 65, 511

S.E.2d 298, 299 (1999), “a party’s failure to comply with

nonjurisdictional rule requirements normally should not lead to

dismissal of the appeal.” Dogwood Dev. & Mgmt. Co., LLC v.

White Oak Transp. Co., 362 N.C. 191, 198, 657 S.E.2d 361, 365

(2008). Instead, N.C.R. App. P. 25(b) and N.C.R. App. P. 34

provide this Court with substantial discretion in determining an

appropriate sanction in the event that a party commits a non-

jurisdictional violation of the North Carolina Rules of

Appellate Procedure.

Admittedly, a decision to strike a party’s brief is not as

significant as a decision to dismiss a party’s appeal. However,

striking an appellee’s brief is among the most significant

sanctions, if not the most significant, that can be imposed upon

an appellee. For that reason, we are inclined to believe that

an appellee’s failure to file his or her brief in a timely

manner should not, as a general proposition, result in the

striking of that party’s brief in the absence of a showing that

the appellee’s conduct has resulted in material prejudice to the

appellant. Although the record clearly establishes that the

State has completely failed to provide any legitimate excuse for
 -16-
its failure to file its brief in a timely manner, the record

also clearly establishes that Defendant has not demonstrated

that he suffered any particularized prejudice as a result of the

State’s lack of timely action. As a result, we hereby conclude,

in the exercise of our discretion, that Defendant’s motion to

strike the State’s brief should be, and hereby is, denied.

Counsel for the State is, however, strongly admonished to

refrain from engaging in such inexcusable conduct in the future

and should understand that any repetition of the conduct

disclosed by the present record will result in the imposition of

significant sanctions upon both the State and himself

personally.

B. Substantive Legal Issues

1. Admissibility of Text Messages

In his brief, Defendant contends that the trial court erred

by sustaining the State’s objections to the admission of

evidence concerning the contents of certain text messages

obtained by investigating officers during an examination of Mr.

Alston’s cell phone. More specifically, Defendant contends that

the cell phone messages were relevant and properly authenticated

and that the exclusion of the evidence in question prejudiced

his chances for a more favorable outcome at trial. We do not

find Defendant’s argument persuasive.
 -17-
a. Relevant Facts

The phone number listed on Loven McLaughlin’s arrest report

was (336) 263-9913. According to Loven McLaughlin, the

investigating officers did not confiscate his cell phone at the

time that he was taken into custody and never asked him to

verify his phone number. In addition, Loven McLaughlin

testified that he could not remember the cell phone number

assigned to his phone as of the date upon which he was arrested

given the large number of phones that he had utilized.

Although Detective Jennifer Bradley Matherly of the

Burlington Police Department prepared Loven McLaughlin’s arrest

report, she acknowledged that the names, dates, phone numbers,

and other information that she recorded on that document could

have emanated from a range of sources, such as information

provided by the suspect, information contained in the warrant

for arrest, or information on file with or available to the

Burlington Police Department. For that reason, Detective

Matherly indicated that, while she could have confirmed a phone

number shown on the arrest report with the suspect, she might

have obtained that information in another way as well and did

not know the source of any specific item of information shown on

Loven McLaughlin’s arrest report. Detective Matherly did state,

however, that she would not have used information obtained from
 -18-
one suspect in filling out an arrest report relating to a

different suspect.

After recovering Mr. Alston’s cell phone, investigating

officers photographed each individual text message found in that

instrument. During this process, investigating officers found

messages sent to Mr. Alston from individuals identified as

“LuvBoat” and “SnakeNDAGrass.” Although Andre McLaughlin

testified that Mr. Alston referred to Loven McLaughlin as

“LuvBoat,” Loven McLaughlin denied that Mr. Alston called him by

that name and asserted, instead, that Mr. Alston called him

“Slogey.” In addition, Loven McLaughlin testified that he was

not planning on moving, that he is not related to Mr. Alston,

and that he and Mr. Alston never referred to each other as

“cuz.”

After Defendant began to cross-examine Loven McLaughlin

about the text messages taken from Mr. Alston’s phone, the State

lodged a successful objection. Subsequently, during his own

case in chief, Defendant sought to obtain the admission of the

text messages in question. However, the trial court sustained

the State’s objection to the admission of these text messages.

In both instances, the State’s objections were predicated on

authentication and relevance grounds.
 -19-
The text messages sought to be introduced showed a callback

number of (336) 263-9913. Without reciting the contents of

these text messages in their entirety, certain messages that

“LuvBoat” sent to Mr. Alston’s phone contained repeated

statements concerning “LuvBoat’s” need for money in order “to

find a place to stay,” inquiring if “ur cuzin” was going to

“sell it,” and asking if Mr. Alston had “got the money.” During

the same time that he was receiving these text messages from

“LuvBoat,” messages were sent from Mr. Alston’s phone to “Cuz”

stating “u gta choppa” and “r u strap[p]ed.” The undisputed

evidence reflects that “choppa” is a reference to an assault

rifle, while the fact that someone is “strapped” means that he

or she is in possession of a weapon.

b. Admissibility of Text Messages

According to well-established North Carolina law, the

requirement that an item be properly authenticated before being

admitted into evidence is “satisfied by evidence sufficient to

support a finding that the matter in question is what its

proponent claims.” N.C. Gen. Stat. § 8C-1, Rule 901(a). “A

trial court’s determination as to whether a document has been

sufficiently authenticated is reviewed de novo on appeal as a

question of law.” State v. Crawley, __ N.C. App. __, __, 719

S.E.2d 632, 637 (2011), disc. review denied, 365 N.C. 553, 722
 -20-
S.E.2d 607 (2012). Similarly, evidence is relevant when it has

“any tendency to make the existence of any fact that is of

consequence to the action more probable or less probable than it

would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule

401. “Although ‘[a] trial court’s rulings on relevancy

technically are not discretionary and therefore are not reviewed

under the abuse of discretion standard applicable to [N.C. Gen.

Stat. § 8C-1,] Rule 403, such rulings are given great deference

on appeal.’” Dunn v. Custer, 162 N.C. App. 259, 266, 591 S.E.2d

11, 17 (2004) (quoting State v. Wallace, 104 N.C. App. 498, 502,

410 S.E.2d 226, 228 (1991), appeal dismissed, 331 N.C. 290, 416

S.E.2d 398, cert. denied, 506 U.S. 915, 113 S. Ct. 321, 121 L.

Ed. 2d 241 (1992)). “A defendant is prejudiced by errors

relating to rights arising other than under the Constitution of

the United States when there is a reasonable possibility that,

had the error in question not been committed, a different result

would have been reached at the trial out of which the appeal

arises.” N.C. Gen. Stat. § 15A-1443(a).

Assuming, without deciding, that the text messages at issue

in this case were properly authenticated and were relevant to

the matters at issue at trial, we are unable to determine that

there was a reasonable possibility that the outcome at

Defendant’s trial would have been different had these errors not
 -21-
been committed. The ultimate effect of the jury’s verdicts was

to convict Defendant of breaking into Mr. May’s apartment and

stealing various electronic items and firearms and breaking into

Mr. Pryor’s motor vehicle and pointing an assault rifle at him.

In attempting to persuade us that the exclusion of these text

messages constituted prejudicial error, Defendant contends that

these messages undercut the credibility of Loven McLaughlin’s

testimony by refuting his contention that he, rather than

Defendant, was being forced to move and suggested that Loven

McLaughlin had been involved in the theft of the firearms from

Mr. May’s apartment and their subsequent use in the commission

of other offenses given his attempt to get Mr. Alston to sell

the firearms taken at that time. Although the record might

support the inferences that Defendant contends should be drawn

from these text messages, those inferences have little strength.

As an initial matter, even if the record suffices to

support an inference that the text messages from “LuvBoat” were

sent by Loven McLaughlin, the record contains substantial

evidence that would support a contrary inference. Secondly, the

record contains no evidence concerning the identity of “Cuz,” to

whom the text messages concerning the firearms were sent.

Thirdly, the text messages from “LuvBoat” simply inquire whether

“ur cuzin [is] goin to sell it,” which is less than a clear cut
 -22-
reference to the sale of one or more firearms, much less those

taken from Mr. May’s apartment. Fourthly, the inference that

the firearms referred to in the text messages to “Cuz” are the

same weapons that had been taken from Mr. May’s apartment is

less than compelling. Finally, as the trial court noted, even

if the text messages in question establish that Loven McLaughlin

was involved in the entry into Mr. May’s apartment, that fact,

without more, does not exonerate Defendant of any involvement in

the commission of that crime given the undisputed evidence that

Defendant, Loven McLaughlin, Andre McLaughlin, and Mr. Alston

were spending a great deal of time together during the time in

which that crime was committed. As a result, the inference that

Defendant wishes us to draw from the text messages in question

is, at best, an ambiguous and equivocal one.

In addition, the record contains substantial additional

evidence of Defendant’s guilt. For example, the record contains

the essentially undisputed testimony of Mr. May to the effect

that Defendant was familiar with his property and that his

apartment had been broken into and his property taken within a

relatively short period of time after he and Defendant left the

premises. In addition, Mr. Pryor identified Defendant as the

individual who broke into his motor vehicle and pointed a rifle

at him. Although the strength of Mr. Pryor’s identification of
 -23-
Defendant waned between the time of the investigation and the

time of trial, that fact, standing alone, should not divert our

attention from the fact that the jury heard evidence that Mr.

Pryor was 90% certain that Defendant was the individual who had

broken into his vehicle and pointed an assault rifle at him

shortly after the commission of those crimes. In short, the

other evidence of Defendant’s guilt, while perhaps not

overwhelming, was certainly strong. As a result, given the

limited strength of the inferences that Defendant wishes us to

draw from the text messages at issue in this case coupled with

the relative strength of the State’s other evidence of

Defendant’s guilt, we are unable to say that Defendant has shown

that there is a reasonable possibility that the outcome at trial

would have been different had the evidence in question been

admitted at Defendant’s trial. For that reason, we hold that

Defendant is not entitled to an award of appellate relief based

upon this challenge to the trial court’s judgments.

2. Jury Instructions

Secondly, Defendant contends that the trial court erred by

refusing to instruct the jury in accordance with his requested

instruction relating to the manner in which it should consider

the credibility of eyewitness identification evidence. More

specifically, Defendant contends that the trial court should
 -24-
have informed the jury about the results of recent research into

factors bearing upon the accuracy of such evidence during its

instructions to the jury. Defendant is not entitled to relief

from the trial court’s judgments on the basis of this

contention.

a. Standard of Review

“It is the duty of the trial court to instruct the jury on

all substantial features of a case raised by the evidence.”

State v. Shaw, 322 N.C. 797, 803, 370 S.E.2d 546, 549 (1988).

For that reason, a “[f]ailure [by the trial court] to instruct

upon all substantive or material features of the crime charged

is error.” State v. Bogle, 324 N.C. 190, 195, 376 S.E.2d 745,

748 (1989). While “[i]t is well established in this

jurisdiction that the trial court is not required to give a

requested instruction in the exact language of the request,”

“when the request is correct in law and supported by the

evidence in the case, the court must give the instruction in

substance.” State v. Green, 305 N.C. 463, 476-77, 290 S.E.2d

625, 633 (1982). This Court reviews issues relating to the

substance of the trial court’s instructions using a de novo

standard of review. State v. Osorio, 196 N.C. App. 458, 466,

675 S.E.2d 144, 149 (2009).

b. Applicable Background Information
 -25-
In 2012, the New Jersey Supreme Court released a new

pattern jury instruction addressing eyewitness identification

issues2 that was based upon its decision in State v. Henderson,

208 N.J. 208, 27 A.3d 872 (2011). In Henderson, the defendant

contended “that the identification [of him as the culprit] was

not reliable because the officers investigating the case

intervened during the identification process and unduly

influenced the eyewitness.” 208 N.J. at 217, 27 A.3d at 877.

During its consideration of Henderson, the New Jersey Supreme

Court ordered that an evidentiary hearing be held for the

purpose of evaluating whether the “assumptions and other factors

reflected in the two-part” test set out in Manson v. Brathwaite,

432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), and the

five factors that must be considered in the course of applying

that test remained “valid and appropriate in light of recent

scientific and other evidence.” Id. at 228, 27 A.3d at 884. On

remand, the parties developed a record that included testimony

from “seven experts and [contained] more than 2,000 pages of

transcripts along with hundreds of scientific studies.” Id. at

217-18, 27 A.3d at 877. In reviewing the resulting special

master’s report, the New Jersey Supreme Court determined “that

2
Supreme Court Releases Eyewitness Identification Criteria
for Criminal Cases, (19 July 2012),
http://www.judiciary.state.nj.us/pressrel/2012/pr120719a.htm.
 -26-
the scientific evidence considered at the remand hearing [was]

reliable”; that, “based on the testimony and ample record

developed at the hearing,” “a number of system and estimator

variables can affect the reliability of eyewitness

identifications”; and that the “evidence offer[ed] convincing

proof that the current test for evaluating the trustworthiness

of eyewitness identifications should be revised.” Id. at 218,

283-85, 27 A.3d at 877, 916-17.

After making these preliminary determinations, the New

Jersey Supreme Court concluded that, “[t]o evaluate whether

there is evidence of suggestiveness to trigger a [pretrial]

hearing, courts should consider the following non-exhaustive

list of system variables,” including:

1. Blind Administration. Was the lineup
procedure performed double-blind? If
double-blind testing was impractical, did
the police use a technique like the
“envelope method” . . . to ensure that the
administrator had no knowledge of where the
suspect appeared in the photo array or
lineup?

2. Pre-identification Instructions. Did
the administrator provide neutral, pre-
identification instructions warning that the
suspect may not be present in the lineup and
that the witness should not feel compelled
to make an identification?

3. Lineup Construction. Did the array or
lineup contain only one suspect embedded
among at least five innocent fillers? Did
 -27-
the suspect stand out from other members of
the lineup?

4. Feedback. Did the witness receive any
information or feedback, about the suspect
or the crime, before, during, or after the
identification procedure?

5. Recording Confidence. Did the
administrator record the witness’ statement
of confidence immediately after the
identification, before the possibility of
any confirmatory feedback?

6. Multiple Viewings. Did the witness
view the suspect more than once as part of
multiple identification procedures? Did
police use the same fillers more than once?

7. Showups. Did the police perform a
showup more than two hours after an event?
Did the police warn the witness that the
suspect may not be the perpetrator and that
the witness should not feel compelled to
make an identification?

8. Private Actors. Did law enforcement
elicit from the eyewitness whether he or she
had spoken with anyone about the
identification and, if so, what was
discussed?

9. Other Identifications Made. Did the
eyewitness initially make no choice or
choose a different suspect or filler?

Id. at 289-91, 27 A.3d at 920-21. In addition, the New Jersey

Supreme Court held that, in order to determine whether an

identification was valid, courts should consider particular

“estimator” variables, including:

1. Stress. Did the event involve a high
level of stress?
 -28-

2. Weapon focus. Was a visible weapon
used during a crime of short duration?

3. Duration. How much time did the
witness have to observe the event?

4. Distance and Lighting. How close were
the witness and perpetrator? What were the
lighting conditions at the time?

5. Witness Characteristics. Was the
witness under the influence of alcohol or
drugs? Was age a relevant factor under the
circumstances of the case?

6. Characteristics of Perpetrator. Was
the culprit wearing a disguise? Did the
suspect have different facial features at
the time of the identification?

7. Memory decay. How much time elapsed
between the crime and the identification?

8. Race-bias. Does the case involve a
cross-racial identification?

Some of the above estimator variables
overlap with the five reliability factors
outlined in Neil v. Biggers, supra, 409
U.S.at 199-200, 93 S. Ct. at 382, 34 L. Ed.
2d at 411, which we nonetheless repeat:

9. Opportunity to view the criminal at the
time of the crime.

10. Degree of attention.

11. Accuracy of prior description of the
criminal.

12. Level of certainty demonstrated at the
confrontation.
 -29-
Did the witness express high confidence at
the time of the identification before
receiving any feedback or other information?

13. The time between the crime and the
confrontation. (Encompassed fully by “memory
decay” above.)

Id. at 291-92, 27 A.3d at 921-22. After describing the manner

in which the trial courts should evaluate the admissibility of

eyewitness identification testimony, the New Jersey Supreme

Court noted that “juries will continue to hear about all

relevant system and estimator variables at trial, through direct

and cross-examination and arguments by counsel”; directed that

“enhanced instructions be given to guide juries about the

various factors that may affect the reliability of an

identification in a particular case” “[b]ased on the record

developed on remand”; and created a process under which various

committees would draft proposed revisions to the existing

pattern instructions relating to the validity of eyewitness

identification evidence based upon the determinations set out in

the Henderson opinion for its consideration. Id. at 296, 298-

99, 27 A.3d at 924-26.3

c. Defendant’s Requested Eyewitness Identification Instruction

3
The pattern instructions are available in full at
http://www.judiciary.state.nj.us/pressrel/2012/jury_instruction.
pdf.
 -30-
The eyewitness identification instruction that Defendant

requested the trial court to deliver in this case was eight

pages long and contained language that bore a strong resemblance

to the New Jersey instruction developed as a result of the

Henderson decision. Among other things, Defendant requested the

trial court to instruct the jury that “there are risks of making

mistaken identifications” and that the jury should consider a

number of factors in evaluating the credibility of the

eyewitness identification testimony presented in this case,

including, among other things, the witness’ “opportunity to view

the person who committed the offense”; the witness’ “level of

stress,” given that high levels of stress can reduce an

eyewitness’s ability to recall; “[t]he amount of time [the

witness had] to observe an event”; whether the “witness saw a

weapon during the incident,” since “the presence of a visible

weapon may reduce the reliability of a subsequent

identification”; the distance between the witness and the person

being identified; the adequacy of the lighting conditions at the

time that the witness saw the perpetrator; the extent to which

the witness’ level of intoxication “affect[ed] the reliability

of the identification”; the possible use of a disguise; the

“accuracy of any description [that] the witness gave after

observing the incident and before identifying the perpetrator”;
 -31-
the degree to which the witness is confident about the accuracy

of his or her identification, subject to the caveat that an

“eyewitness’s confidence is generally an unreliable indicator of

accuracy”; the extent to which there have been “delays between

the commission of a crime and the time an[] identification is

made”; and, since “[r]esearch has shown that people may have

greater difficulty in accurately identifying members of a

different race,” whether the witness and the alleged perpetrator

are of the same or different races. In addition, Defendant’s

proposed instruction informed the jury that, in considering the

reliability of any identification procedure described in the

record, the jury should consider whether any person stood “out

from other members of the lineup”; whether a minimum of “six

persons or photos” had been included in the lineup; whether the

witness viewed the suspect in multiple lineups, since “the risk

of mistaken identification is increased” “if a witness views an

innocent suspect in multiple identification procedures”; whether

the witness identified the suspect in a show-up, since “show ups

conducted more than two hours after an event present a

heightened risk of misidentification”; whether the line-up

administrator knew the suspect’s identity; what was said to the

witness prior to viewing a lineup or photographic array; and

whether “police officers or witnesses to an event who are not
 -32-
law enforcement officials[] signal to eyewitnesses that they

correctly identified the suspect.”

d. Trial Court’s Eyewitness Identification Instruction

The trial court declined to give the eyewitness

identification instruction that Defendant requested and,

instead, instructed the jury that:

You, ladies and gentlemen, are the sole
judges of the credibility and the
believability of each and every witness,
that is their worthiness of belief. You
must decide for yourselves whether to
believe the testimony of any witness, or you
may believe all or any part or none of what
a witness has said on the witness stand.

In determining whether to believe any
witness, you should apply the same tests of
truthfulness which you do apply in your own
everyday affairs. As applied to this trial,
these tests may include the opportunity of
the witness to see, hear, know or remember
the facts or occurrence about which the
witness testified; the manner and the
appearance of the witness; any interest,
bias or prejudice the witness may have; the
apparent understanding and fairness of the
witness; whether the witness’s testimony is
reasonable and whether such testimony is
consistent with other believable evidence in
the case.

You are the sole judges of the weight
to be given to any evidence. By this I
mean, if you decide that certain evidence is
believable, you must then determine the
importance of that evidence in light of all
other believable evidence in the case.

. . . .
 -33-
I instruct you that the State has the
burden of proving the identity of the
defendant as the perpetrator of the crime
charged beyond a reasonable doubt. This
means that you, the jury, must be satisfied
beyond a reasonable doubt that the defendant
was the perpetrator of the crime charged
before you may return a verdict of guilty.

In addition, the trial court delivered the instruction relating

to the manner in which the jury should evaluate the validity of

photographic identification procedures as required by N.C. Gen.

Stat. § 15A-284.52(d)(3), with this instruction having included

a lengthy recitation of the criteria for a proper identification

procedure set out in N.C. Gen. Stat. § 15A-284.52(b). We do not

believe, given the record developed before the trial court in

this case and the content of the instructions actually delivered

by the trial court, that the trial court erred by declining to

deliver Defendant’s requested eyewitness identification

instruction.

e. Relevant Appellate Decisions

The appellate courts in this jurisdiction have addressed

the appropriateness of delivering additional instructions

concerning the credibility of eyewitness identification

testimony on a number of occasions. In State v. Green, the

defendant requested the trial court to instruct the jury to

consider the mental state of the witness and the adequacy of the

witness’ eyesight in evaluating the credibility of the
 -34-
eyewitness identification testimony. 305 N.C. at 475-76, 290

S.E.2d at 633. In lieu of delivering the instruction requested

by the defendant, the trial court instructed the jury in

accordance with the pattern jury instructions addressing the

weight and credibility of the evidence and the necessity for the

jury to find beyond a reasonable doubt that the defendant was

the perpetrator of the crime charged before returning a verdict

of guilty. Id. at 476, 290 S.E.2d at 633. In reviewing the

defendant’s challenge on appeal to the trial court’s refusal to

deliver his requested instruction, the Supreme Court held that

the instructions delivered by the trial court, considered as a

whole, were “adequate[] [to] explain[] to the jury the various

factors they should consider in evaluating the testimony of

witnesses.” Id. at 477, 290 S.E.2d at 633.

Similarly, in State v. Dodd, 330 N.C. 747, 752, 412 S.E.2d

46, 49 (1992), the defendant requested the trial court to

instruct the jury in such a manner as to “emphasize[] at length

the jury’s need to examine the testimony of the witnesses to

assess whether they had the opportunity to observe the alleged

crime, their ability to identify the perpetrator given the

length of time they had to observe, their mental and physical

conditions, and the lighting and other conditions that might

have affected their observation.” Although these instructions
 -35-
focused on a somewhat different set of factors than were

addressed in the requested instruction at issue in Green, the

Supreme Court upheld the trial court’s decision to refrain from

delivering the instruction requested by the defendant and to

utilize the pattern jury instructions concerning the weight and

credibility of the evidence and the necessity for the jury to

find beyond a reasonable doubt that the defendant was the

perpetrator of the crime charged before returning a guilty

verdict on the grounds that the instructions actually delivered

by the trial court adequately informed the jury about the

factors that should be considered in evaluating the credibility

of eyewitness identification testimony. Id. at 753, 412 S.E.2d

at 49.

An examination of the Supreme Court’s decisions in Green

and Dodd, coupled with our similar decision in State v. Summey,

109 N.C. App. 518, 525-26, 428 S.E.2d 245, 249-50 (1993)

(holding that the trial court did not err by failing to instruct

the jury to consider certain additional factors in evaluating

the validity of eyewitness identification testimony), reveals

that this Court and the Supreme Court have clearly held that the

existing pattern jury instructions governing the manner in which

jurors should evaluate the weight and credibility of the

evidence and the necessity for the jury to find that the
 -36-
defendant perpetrated the crime charged beyond a reasonable

doubt sufficiently address the issues arising from the

presentation of eyewitness identification testimony. In

recognition of these decisions, Defendant contends that, while

the weight, credibility, and identity instructions held to be

adequate in Green and Dodd are sufficient in cases, such as

those involving poor lighting, distance, or intoxication, in

which the alleged deficiencies in an eyewitness identification

should be obvious, they do not suffice to provide jurors with

adequate information concerning more subtle and less obvious

deficiencies in eyewitness identification evidence. In support

of this argument, Defendant relies upon the logic set out in

Henderson, in which the New Jersey Supreme Court stated, among

other things, that, while “[e]veryone knows, for instance, that

bad lighting conditions make it more difficult to perceive the

details of a person’s face,” other “findings are less obvious,”

with many people clearly believing that “witnesses to a highly

stressful, threatening event will ‘never forget a face’ because

of their intense focus at the time, the research suggests that

is not necessarily so.” Henderson, 208 N.J. at 272, 27 A.3d at

910. As a result, Defendant essentially argues that we should

treat Green, Dodd, and Summey as distinguishable based upon the
 -37-
nature of the factors addressed in the requested instructions

deemed unnecessary there.

Assuming, without deciding, that the distinction upon which

Defendant relies is a valid one, a point that we need not

address in this instance, we do not believe that the additional

instruction that Defendant requested in this case had adequate

evidentiary support. In essence, the difference between the

instructions that the trial court delivered and the instruction

that Defendant requested is that the latter, unlike the former,

contained numerous factual statements about the impact of

weapons, focus, stress, racial differences, and the degree of

certainty expressed by the witness in identifying the defendant

as the perpetrator. For example, the effect of a decision to

deliver Defendant’s requested instruction would put the trial

courts in the position of making numerous factual statements

about the impact of various factors on the validity of

eyewitness identification testimony, such as assertions that

“[t]he process of remembering consists of three stages”; that

“research has shown that there are risks of making mistaken

identifications”; that “[r]esearch has revealed that human

memory is not like a video recording”; that “the presence of a

visible weapon may reduce the reliability of a subsequent

identification if the crime is of short duration”; that an
 -38-
“eyewitness’s confidence is generally an unreliable indicator of

accuracy”; and that “[r]esearch has shown that people may have

greater difficulty in accurately identifying members of a

different race.” Although the record developed in Henderson

contained evidence relating to these issues, there is no such

evidence in the present record and Defendant has not argued,

much less established, that we are entitled to take judicial

notice of the information upon which the Henderson Court relied

in adopting the pattern instruction upon which Defendant relies.

West v. G. D. Reddick, Inc., 302 N.C. 201, 203, 274 S.E.2d 221,

223 (1981) (stating that, “generally a judge or a court may take

judicial notice of a fact which is either so notoriously true as

not to be the subject of reasonable dispute or is capable of

demonstration by readily accessible sources of indisputable

accuracy”). As a result, a decision to reverse the trial court

for failing to deliver Defendant’s requested instruction

relating to the credibility of eyewitness identification

testimony would, in essence, put this Court in the position of

making factual determinations and exercising rule-making

authority, neither of which we have the authority to do. Shera

v. N.C. State Univ. Veterinary Teaching Hosp., __ N.C. App. __,

__, 723 S.E.2d 352, 358 (2012) (holding that “[t]his Court is an

error-correcting court, not a law-making court”). As a result,
 -39-
we hold, in light of the previous decisions of the Supreme Court

and this Court, by which we are bound; the absence of any

evidentiary support for the instruction that Defendant contends

that the trial court should have delivered; and the well-

established limitations under which this Court operates, that

the trial court did not commit prejudicial error by failing to

give Defendant’s requested instruction concerning the manner in

which the jury should evaluate the credibility of the eyewitness

identification testimony presented for its consideration.

III. Conclusion

Thus, for the reasons set forth above, we conclude that

neither of Defendant’s challenges to the trial court’s judgments

have merit. As a result, the trial court’s judgments should,

and hereby do, remain undisturbed.

NO ERROR.

Chief Judge MARTIN and Judge MCCULLOUGH concur.