State v. Council

NO. COA13-607

NORTH CAROLINA COURT OF APPEALS

Filed: 21 January 2014

STATE OF NORTH CAROLINA

v. Wayne County
Nos. 10 CRS 54558-59
RAMIL MARQUE COUNCIL

Appeal by Defendant from judgments entered 15 November 2012

by Judge Arnold O. Jones, II in Wayne County Superior Court. Heard

in the Court of Appeals 24 October 2013.

Attorney General Roy Cooper, by Special Deputy Attorney
General Robert C. Montgomery,1 for the State.

Marilyn G. Ozer for Defendant.

STEPHENS, Judge.

Evidence at Trial and Procedural History

Defendant Ramil Marque Council appeals from the judgments

entered upon his convictions for one count each of assault with a

deadly weapon with intent to kill inflicting serious injury

1 On 18 September 2013, the State moved to substitute Special
Deputy Attorney General Robert C. Montgomery for Special Deputy
Attorney General Tina A. Krasner due to her leaving her position
with the Office of the Attorney General. By order entered 22
October 2013, this Court allowed that motion.
 -2-
(“AWDWIKISI”) and attempted robbery with a dangerous weapon, and

two counts of robbery with a dangerous weapon. The evidence at

trial tended to show the following: On 28 August 2010, Christopher

Powell, Mary Foy, and Angela Wiggins stopped at a convenience store

in Mount Olive, North Carolina, to buy beer. Defendant,2 who was

standing in a group of men outside the store, offered to sell

Powell some marijuana, and Powell agreed to drive Defendant to

another location to complete the drug purchase. When the women

came out of the store, Powell instructed Wiggins to sit in the

front seat with Foy, who was driving. Powell and Defendant rode

in the back seat. Shortly after the group drove away from the

store, Defendant brandished a chrome revolver in Powell’s face and

demanded his money. When Powell replied that Defendant would have

to shoot him first, Defendant put the gun to Powell’s stomach and

shot him. Powell then handed over his money and began screaming

that he had been shot.

Upon hearing the pop of the handgun and Powell’s cries, Foy

slammed on the brakes. Defendant stuck the gun between the

headrests of the front seats and demanded money from the women.

Foy said that she did not have any money, but Wiggins gave

Defendant about $30. Defendant then jumped out of the car and ran

2 Defendant was seventeen years old at the time.
 -3-
away from the scene. Wiggins called 911, and Powell was taken by

ambulance to a hospital where he underwent two surgical procedures

and remained hospitalized for several weeks. On 31 August 2010,

while still in the hospital, Powell identified Defendant in a

photographic lineup. Foy also picked out Defendant in a photo

lineup, although Wiggins was not able to do so.

In September 2010, Officer Jason Holliday of the Mt. Olive

Police Department (“MOPD”) arrived at the Duplin County home of

Defendant’s grandparents to serve a warrant for Defendant’s

arrest. After being given permission to enter the home, Holliday

eventually located Defendant hiding in the attic and placed him

under arrest. At some point after Defendant’s arrest, MOPD Chief

Ralph Schroeder advised Defendant of his Miranda rights in the

presence of Defendant’s mother.3 Schroeder noted on a juvenile

rights form that Defendant had responded that he understood those

rights and had invoked his right to counsel. Schroeder then

personally transported Defendant from Mt. Olive to Goldsboro,

apparently to the magistrate’s office, in a patrol car equipped

with an interior camera. Schroeder testified that he had chosen

that particular car so that he could record any statements

3 The record and trial transcript are unclear about exactly how
and when Schroeder first came in contact with Defendant or why he
decided to involve himself personally in Defendant’s case.
 -4-
Defendant might make on the way. Defendant and Schroeder talked

during the drive. The video recording of those conversations was

later divided into six five-minute clips. At trial, over

Defendant’s objection, the jury was shown clips 3, 4, and 5.

On 15 November 2012, the jury convicted Defendant of all

charges against him, and the trial court imposed consecutive terms

of 72 to 96 months for the AWDWIKISI charge, 62 to 84 months for

the attempted robbery charge, and 62 to 84 months for each of the

robbery charges. Defendant gave notice of appeal in open court.

On 25 June 2013, Defendant filed a motion for appropriate relief

(“MAR”) with this Court, alleging that he received ineffective

assistance of council (“IAC”) at trial. That motion was referred

for resolution to this panel by order dated 23 July 2013.

Discussion

In his direct appeal, Defendant brings forward two arguments:

that the trial court erred in (1) ruling that Defendant could not

cross-examine Powell about Powell’s pending first-degree murder

charge and (2) failing to suppress statements made by Defendant

while he was being transported to jail. In his MAR, Defendant

contends that his trial counsel’s failure to object to the State’s

motion to bar mention of Powell’s pending criminal charge

constituted IAC. Because they are closely related, we address
 -5-
Defendant’s first issue on appeal and the issue raised in his MAR

together. We find no prejudicial error in Defendant’s trial and

deny his MAR.

I. Powell’s pending criminal charge

Defendant argues that the trial court committed plain error

in ruling that Powell could not be questioned about an unrelated

first-degree murder charge pending against him at the time of his

testimony. Defendant also contends that his trial counsel’s

failure to object to the State’s motion in limine to bar cross-

examination of Powell about that charge constituted IAC. We

disagree with both arguments.

After Powell was shot, he was charged with first-degree murder

in another county in connection with an incident unrelated to his

encounter with Defendant. During a pretrial conference, the State

informed the trial court of Powell’s pending charge and made an

oral motion in limine to prevent Defendant from questioning Powell

about it. Defendant did not object, and the court granted the

State’s motion. Defendant now argues that the court’s ruling

violated his constitutional rights.

It is error for a trial court to bar a defendant from cross-

examining a State’s witness regarding pending criminal charges,

even if those charges are unrelated to those for which the
 -6-
defendant faces trial. State v. Hoffman, 349 N.C. 167, 180, 505

S.E.2d 80, 88 (1998). Cross-examination can be used to impeach

the witness by showing a possible source of bias in his testimony,

to wit, that the State may have some undue power over the witness

by virtue of its ability to control future decisions related to

the pending charges. Id. at 180-81, 505 S.E.2d at 88. However,

as Defendant concedes, his failure to object to the trial court’s

ruling requires him to establish plain error in order to obtain

relief. As our Supreme Court has recently reaffirmed,

the plain error standard of review applies on
appeal to unpreserved instructional or
evidentiary error. For error to constitute
plain error, a defendant must demonstrate that
a fundamental error occurred at trial. To
show that an error was fundamental, a
defendant must establish prejudice — that,
after examination of the entire record, the
error had a probable impact on the jury’s
finding that the defendant was guilty.
Moreover, because plain error is to be applied
cautiously and only in the exceptional case,
the error will often be one that seriously
affects the fairness, integrity or public
reputation of judicial proceedings.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)

(citations, internal quotation marks, and brackets omitted).

To establish IAC,

a defendant must first show that his counsel’s
performance was deficient and then that
counsel’s deficient performance prejudiced
his defense. Deficient performance may be
 -7-
established by showing that counsel’s
representation fell below an objective
standard of reasonableness. Generally, to
establish prejudice, a defendant must show
that there is a reasonable probability that,
but for counsel’s unprofessional errors, the
result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine
confidence in the outcome.

State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (citations

and internal quotation marks omitted), cert. denied, 549 U.S. 867,

166 L. Ed. 2d 116 (2006). Further, “if a reviewing court can

determine at the outset that there is no reasonable probability

that in the absence of counsel’s alleged error[] the result of the

proceeding would have been different, then the court need not

determine whether counsel’s performance was actually deficient.”

State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 249 (1985).

Thus, for Defendant to prevail on either his claim of plain error

or of IAC, he must show prejudice. This Defendant cannot do.

Here, as noted supra, it was error for the trial court to

prohibit cross-examination of Powell regarding his pending

criminal charge. See Hoffman, 349 N.C. at 180-81, 505 S.E.2d at

88. However, Defendant fails to show that this “error had a

probable impact on the jury’s finding that [D]efendant was guilty.”

Lawrence, 365 N.C. at 518, 723 S.E.2d at 334. As Defendant himself

notes, Powell’s credibility was impeached on several fronts at
 -8-
trial. During his testimony, Powell revealed that, although he

was only seventeen years old at the time Defendant shot him, he

used alcohol and had stopped to have one of his companions buy

alcohol on the evening of the crime. On cross-examination, Powell

admitted to buying and using marijuana previously and, of course,

Powell was trying to purchase marijuana from Defendant when he was

shot. Defendant’s counsel also extensively cross-examined Powell

about inconsistencies between Powell’s various pretrial statements

to police officers and his trial testimony, such as whether he had

ever purchased marijuana from Defendant before the evening of the

crime and whether Defendant stole money from him at the time of

the shooting. In sum, Powell’s credibility was substantially

impeached as he was shown to be an underage drinker and illegal

drug user who gave inconsistent statements regarding a variety of

facts connected to the shooting.

Further, we observe that Powell first identified Defendant as

the man who shot him on 31 August 2010, only a few days after the

crime occurred. Powell did not allegedly commit the murder for

which he was later charged until 23 October 2010. Thus, the most

crucial piece of Powell’s testimony, his original identification

of Defendant as the man who shot him, cannot have been influenced

in any way by the pending charge. Even had Defendant been able to
 -9-
cross-examine Powell about his pending charge, Powell’s original

identification of Defendant, which never varied and which was

corroborated by Foy’s identification of Defendant as the

assailant, would have been entirely unaffected. In light of that

consistent and definite identification and Foy’s testimony that

Defendant was the man who shot Powell and robbed her, we see no

reasonable probability that the result of Defendant’s trial would

have been different if he had been able to cross-examine Powell

about Powell’s pending criminal charge. Accordingly, we overrule

Defendant’s first argument and deny his MAR.

II. Defendant’s post-arrest statements during transport

Defendant next argues that the trial court erred in failing

to suppress both the statements he made while being transported by

Schroeder in the camera-equipped car and the video clips of those

statements. Defendant contends (1) the admission of the video

clips violated his right to counsel and (2) the clips were

irrelevant and grossly prejudicial and thus inadmissible under our

Rules of Evidence. We conclude that the trial court misapprehended

the applicable law on the right-to-counsel issue in considering

Defendant’s motion to suppress. However, this error was harmless.

Because any error in the admission of the video clips was not

prejudicial to Defendant, any error in the trial court’s
 -10-
determination of their relevancy and prejudicial impact was also

harmless.

A. Standard of review

This Court’s review of a trial court’s denial
of a motion to suppress in a criminal
proceeding is strictly limited to a
determination of whether the court’s findings
are supported by competent evidence, even if
the evidence is conflicting, and in turn,
whether those findings support the court’s
conclusions of law. If so, the trial court’s
conclusions of law are binding on appeal.

State v. Veazey, 201 N.C. App. 398, 400, 689 S.E.2d 530, 532 (2009)

(citations and internal quotation marks omitted), disc. review

denied, 363 N.C. 811, 692 S.E.2d 876 (2010). However, the trial

court’s conclusions of law are reviewed de novo. State v. Biber,

365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011) (citation omitted).

B. Defendant’s right to counsel

“[D]uring a custodial interrogation, if the accused invokes

his right to counsel, the interrogation must cease and cannot be

resumed without an attorney being present . . . .” State v.

Golphin, 352 N.C. 364, 406, 533 S.E.2d 168, 199 (2000) (citations

and internal quotation marks omitted), cert. denied, 532 U.S. 931,

149 L. Ed. 2d 305 (2001). To determine whether a defendant’s

invoked right to counsel has been waived, courts “must ask: (1)

whether the [post-invocation interrogation] was police-initiated[]
 -11-
and (2) whether [the defendant] knowingly and intelligently waived

the right.” State v. Tucker, 331 N.C. 12, 33, 414 S.E.2d 548, 560

(1992) (citation omitted).

Here, Defendant explicitly invoked his right to counsel after

being read his Miranda rights and before being driven to Goldsboro

by Schroeder. At trial, Defendant specifically argued that

Schroeder’s comments to Defendant during the drive were “an effort

to subvert Miranda[.]” Accordingly, in ruling on Defendant’s

motion to suppress, the trial court was required, at a minimum, to

resolve the factual issues of (1) whether Defendant reinitiated

the conversation, thereby waiving his invoked right to counsel,

and (2) whether that waiver was voluntary and knowing. See id.

As for which party reinitiated a post-invocation

communication, our Supreme Court has noted that

not every statement obtained by police from a
person in custody is considered the product of
interrogation. Interrogation is defined as
either express questioning by law enforcement
officers, or conduct on the part of law
enforcement officers which constitutes the
functional equivalent of express questioning.
The latter is satisfied by any words or
actions on the part of the police (other than
those normally attendant to arrest and
custody) that the police should know are
reasonably likely to elicit an incriminating
response from the suspect. However, because
the police surely cannot be held accountable
for the unforeseeable results of their words
or actions, the definition of interrogation
 -12-
can extend only to words or actions on the
part of police officers that they should have
known were reasonably likely to elicit an
incriminating response. Factors that are
relevant to the determination of whether
police should have known their conduct was
likely to elicit an incriminating response
include: (1) the intent of the police; (2)
whether the practice is designed to elicit an
incriminating response from the accused; and
(3) any knowledge the police may have had
concerning the unusual susceptibility of a
defendant to a particular form of persuasion.

State v. Fisher, 158 N.C. App. 133, 142-43, 580 S.E.2d 405, 413

(2003), affirmed, 358 N.C. 215, 593 S.E.2d 583 (2004).

Here, the trial court found that “Schroeder did not ask any

direct questions of the Defendant and did not question him

concerning the circumstances involving the alleged robberies or

alleged shootings. Any statements made during [the drive] were

initiated by [] Defendant.” While these findings are supported by

the evidence and properly address whether Schroeder engaged in

interrogation of Defendant by “express questioning[,]” the trial

court made no “determination of whether [Schroeder] should have

known [his] conduct was likely to elicit an incriminating response”

by considering “(1) the intent of the police; (2) whether the

practice [wa]s designed to elicit an incriminating response from

the accused; and (3) any knowledge the police may have had

concerning the unusual susceptibility of [D]efendant to a
 -13-
particular form of persuasion.” Id. (emphasis added). This

failure is particularly concerning in light of evidence before the

trial court that Schroeder, the city police chief, (1) chose to

transport Defendant himself, (2) intentionally used a camera-

equipped car in case Defendant made a statement, (3) had a prior

relationship with Defendant from a youth sports team Schroeder

coached, and (4) knew Defendant was only seventeen years old.

These facts surely raised questions regarding the three Fisher

issues.

As noted supra, in reviewing the denial of a motion to

suppress, it is not our role to make factual findings, but rather,

only to consider whether the trial court has engaged in the

appropriate legal analysis, made findings of fact which are

supported by competent evidence, and made conclusions of law

supported by those findings. The trial court failed to make the

necessary findings of fact under the first prong of the required

analysis regarding Defendant’s Miranda claim. Accordingly, the

denial of Defendant’s motion to suppress was error.

Further, even if the trial court had made the necessary

findings of fact to support its conclusion that Defendant

reinitiated the communication with Schroeder, the court also

failed to resolve the second prong of the analysis set forth in
 -14-
Tucker: whether Defendant knowingly and intelligently waived his

invoked right to counsel. “Whether a waiver is knowingly and

intelligently made depends on the specific facts of each case,

including the defendant’s background, experience, and conduct.

Age, although not determinative, can be one of the factors

considered as part of the totality of the circumstances.” State

v. Quick, __ N.C. App. __, __, 739 S.E.2d 608, 612 (2013)

(citations omitted).

After watching the clips and hearing arguments from counsel,

the trial court found them relevant under Rules of Evidence 401

and 403. The Court then stated, “I have to look at the more

specific issue as to whether or not it’s a voluntary statement.”

(Emphasis added). On the second issue, the court made the

following oral findings of fact and conclusions of law:

On Clip Two, in watching and listening, []
Defendant initiated the conversation. He
wanted Chief Schroeder to take him to Main
Street in Mt. Olive. Before that comment was
made there had been no discussion at all going
on in the car. After a brief pause []
Defendant struck up the conversation again.
Then I heard on Clip Two Chief Schroeder on
the radio, and then things got quiet once
again, which led into Clip Three.

At approximately 1 minute and 25 seconds into
Clip Three [] Defendant asked Chief Schroeder
for a cigarette. At approximately 2 minutes
and 44 seconds into Clip Three, again
initiated by [] Defendant, [] Defendant made
 -15-
some comments about he might do 5 to 7. Chief
Schroeder responded to the effect I can’t tell
you that; it depends on if the case is pled
down. There were no threats, there were no
promises, and it did not appear there was any
deception. It does not appear any things were
said in an effort to obtain a confession from
[] Defendant.

Clip Four. [] Defendant continues to
voluntarily talk. There’s some comment made
around the 1 minute mark into the video about
staying or running. I don’t recall there
being any questions asked by Chief Schroeder.
And I find that those statements, in the
totality of the circumstances, were also
voluntarily made by [] Defendant, giving
deference to these issues I’ve addressed, and
that I find [] Defendant was not deceived, his
Miranda rights were honored, there were no
physical threats or shows of violence by Chief
Schroeder towards [] Defendant, no promises
were made to obtain any statement of []
Defendant, [] Defendant was familiar with the
criminal justice system by the comments that
he made, and it appears his mental condition
was clear. In fact, I think it was around
this time, between Clips Four and Five, that
there was some discussion made of [] Defendant
playing football, and Chief Schroeder may have
been — as I understand the conversation,
coaching football, a youth league or something
along those lines.

In Clip Five, around the 1 minute mark into
the clip [] Defendant asked Chief Schroeder,
do you think all the charges are going to
stick? Chief Schroeder’s response, I can’t
tell you that. There was a comment then made
that it would be up to the attorneys and what
type of evidence is presented. There was then
a discussion about Shania, Rania and Tremia
(all phonetic). That may be some children
that [] Defendant’s related to or at least has
 -16-
a close relationship with. It didn’t appear
to me at any time during these clips []
Defendant felt at all threatened. He smoked
a cigarette. He brought up things in
conversation. At no time do I find Chief
Schroeder brought up anything about the case.
If anything, he was responding to []
Defendant, and his responses were very general
in nature, without promises, without threats,
without an attempt to deceive. The entire six
clips last 30 minutes. Again, Clips [O]ne and
Two, 5 minutes each, take that 10 minutes out;
the remaining four clips last approximately 20
minutes. This was a very short period of time
during which Chief Schroeder did not ask any
direct questions of [] Defendant and did not
question him concerning the circumstances
involving the alleged robberies or alleged
shootings. Any statements made during that 20
minute period of time were initiated by []
Defendant.

In light of Wilkerson, Hardy, and the totality
of the circumstances, I find that []
Defendant’s statements were of a voluntary
nature, were not coerced, he was not deceived,
his Miranda rights were honored. The length
of the drive was no more than necessary from
Mt. Olive to Goldsboro, which if you were to
track it it’s around about a 15 mile drive,
but also involves some driving in town where
the speed limit may be 20, 25 or 35 miles per
hour, and I’m familiar with those roads, both
in Mt. Olive and in Goldsboro. There were no
physical threats or shows of violence, no
promises were made to obtain any statements,
[] Defendant had familiarity with the criminal
justice system, and his mental condition
appeared to be clear. And in light of all of
these, the motion to suppress the video is
denied. I find that it is relevant, that it
was voluntarily made by [] Defendant and is
proper for consideration by this jury in this
case.
 -17-

As the transcript reveals, the court misapprehended the

second prong of the Tucker analysis: whether Defendant knowingly

and intelligently waived his previously invoked right to counsel.

The court made no conclusions of law about the knowing and

intelligent nature of Defendant’s waiver of his right to counsel,

but instead concluded only that Defendant’s statements were

voluntary, citing State v. Wilkerson, 363 N.C. 382, 683 S.E.2d 174

(2009), cert. denied, __ U.S. __, 176 L. Ed. 2d 734 (2010), and

State v. Hardy, 339 N.C. 207, 451 S.E.2d 600 (1994).

“[T]he voluntariness of a consent or an admission on the one

hand, and a knowing and intelligent waiver on the other, are

discrete inquiries.” Edwards v. Arizona, 451 U.S. 477, 484, 68 L.

Ed. 2d 378, 385-86 (1981) (“[H]owever sound the conclusion of the

state courts as to the voluntariness of [the defendant’s] admission

may be, neither the trial court nor the [state appellate court]

undertook to focus on whether [the defendant] understood his right

to counsel and intelligently and knowingly relinquished it. It is

thus apparent that the decision below misunderstood the

requirement for finding a valid waiver of the right to counsel,

once invoked.”).

In Hardy, the issue before our Supreme Court was whether the

defendant’s statements were voluntary. The defendant had not been
 -18-
arrested and had never invoked his right to counsel. 339 N.C. at

216-17, 451 S.E.2d at 605-06. While that case discusses many of

the factors about which the trial court made findings, it does not

discuss knowing and intelligent waiver of the right to counsel.

See Hardy, 339 N.C. at 222, 451 S.E.2d at 608 (“If, looking to the

totality of the circumstances, the confession is the product of an

essentially free and unconstrained choice by its maker, then he

has willed to confess and it may be used against him; where,

however, his will has been overborne and his capacity for self-

determination critically impaired, the use of his confession

offends due process. Factors that are considered include whether

[the] defendant was in custody, whether he was deceived, whether

his Miranda rights were honored, whether he was held incommunicado,

the length of the interrogation, whether there were physical

threats or shows of violence, whether promises were made to obtain

the confession, the familiarity of the declarant with the criminal

justice system, and the mental condition of the declarant.”)

(citations, internal quotation marks, and brackets omitted).

Here, the trial court’s oral findings of fact discuss the

length of the drive to Goldsboro; the absence of coercion, threats

or promises by Schroeder; and other factors relevant in determining
 -19-
the voluntariness of a statement under Hardy.4 The court

explicitly made conclusions of law regarding voluntariness.

However, the trial court failed to make any conclusion as to the

central question of whether Defendant’s waiver of his invoked right

to counsel was knowing and intelligent. Like the trial court’s

failure to consider whether Schroeder’s conduct was likely to

elicit an incriminating response, this failure renders denial of

Defendant’s motion to suppress erroneous. However, as discussed

below, we conclude that this error was harmless beyond a reasonable

doubt. See State v. Brown, 306 N.C. 151, 164, 293 S.E.2d 569,

578, cert. denied, 459 U.S. 1080, 74 L. Ed. 2d 642 (1982) (“Error

committed at trial infringing upon a defendant’s constitutional

rights is presumed to be prejudicial and entitles him to a new

trial unless the error committed was harmless beyond a reasonable

doubt. Overwhelming evidence of guilt may render constitutional

error harmless.”).

4 Wilkerson discusses both waiver of Miranda rights (waiver “must
be (1) given voluntarily . . . , and (2) made with a full awareness
of both the nature of the right being abandoned and the
consequences of the decision to abandon it”), and the voluntariness
of statements by suspects (“To be admissible, a defendant’s
statement must be the product of an essentially free and
unconstrained choice by its maker.”). Wilkerson, 363 N.C. at 430-
31, 683 S.E.2d at 203-04 (citations and internal quotation marks
omitted). However, in that case, the defendant had never invoked
his right counsel and further, on appeal, contested only the
voluntariness of his statement. Id. at 430, 683 S.E.2d at 203.
 -20-
In the video clips shown to the jury, Defendant does not

confess to the crimes for which he which was tried. He and

Schroeder largely discuss unrelated matters, including snakes,

convertibles, and people they both know. The only comments

Defendant made which could be viewed as even possibly inculpatory

were: (1) wondering whether he “might do 5 to 7” years in prison

(presumably a reference to the possible consequences of his

arrest), (2) an admission that he had seen and narrowly avoided

police officers the night before, (3) an expression that he had

intended to stay “on the run” as long as possible, and (4) a

question about why police had described him as “armed and

dangerous.” In sum, the clips contained little relevant evidence,

but Defendant’s statements were not particularly prejudicial.

Thus, even had the video clips been suppressed, in light of the

clear and definite testimony from Powell and Foy identifying

Defendant as their assailant, we conclude beyond a reasonable doubt

that the outcome of Defendant’s trial would have been the same.

C. Relevance and prejudicial impact

Defendant also contends that the trial court erred in

concluding that the selected video clips were relevant and that

their probative value was not substantially outweighed by their

prejudicial impact. See N.C. Gen. Stat. § 8C-1, Rules 401, 403
 -21-
(2013). “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) (2013). As noted supra, while we agree that

the video clips contained relatively little relevant evidence, we

also find that they contained little if any prejudicial content.

Accordingly, even if the admission of the video clips was error

under Rules of Evidence 401 and/or 403, we conclude that there is

no “reasonable possibility that, had the error in question not

been committed, a different result would have been reached at the

trial[.]” Id. Accordingly, Defendant cannot establish prejudice

which would entitle him to relief.

NO PREJUDICIAL ERROR.

Judges GEER and ERVIN concur.