State v. Allen

An unpublished opinion of the North Carolina Court of Appeals does not constitute

controlling legal authority. Citation is disfavored, but may be permitted in accordance

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA14-290

NORTH CAROLINA COURT OF APPEALS

Filed: 7 October 2014

STATE OF NORTH CAROLINA

v. Mecklenburg County
No. 12 CRS 233035-36, 13 CRS
599
JAMEL LAPOINTE ALLEN,
Defendant.

Appeal by defendant from judgments entered 28 August 2013

by Judge Richard D. Boner in Mecklenburg County Superior Court.

Heard in the Court of Appeals 27 August 2014.

Attorney General Roy Cooper, by Special Deputy Attorney
General Terence D. Friedman, for the State.

Appellate Defender Staples S. Hughes, by Assistant
Appellate Defender Anne M. Gomez, for defendant.
 -2-
ELMORE, Judge.

On 28 August 2013, a jury found Jamel Lapointe Allen

(defendant) guilty of possession of a firearm by a felon and of

possession of drug paraphernalia. Defendant pleaded guilty to

attaining the status of a habitual felon. The trial court

sentenced defendant to 60 to 84 months imprisonment for the

possession of firearm by felon charge, concurrent to a sentence

of 60 days imprisonment for possession of drug paraphernalia.

Defendant raises five evidentiary issues on appeal. After

careful consideration, we hold that defendant received a trial

free from prejudicial error.

I. Background

The State first called Officer Daniel Bignall with the

Charlotte-Mecklenburg Police Department. Officer Bignall

testified that he was assigned to the Freedom Division Focus

Mission Team, “a violent crime suppression unit” that “patrol[s]

areas where we have problems with robbers, drugs, [and]

prostitution.” On 26 July 2012, Officer Bignall and eight to

eleven additional officers executed a search warrant at 3136

Timberbrook Drive, Apartment B in Charlotte. The officers

entered through a sliding glass door in the rear of the

apartment. Officer Bignall testified he entered “Bedroom Number
 -3-
1” (bedroom 1) and found defendant sitting on the bed.

Defendant and a female who was also present in the apartment

were moved to the living room and read their Miranda warnings.

Officer Bignall searched bedroom 1 and found defendant’s

criminal record and paperwork from the DMV with defendant’s name

on it in the closet. Officer Bignall noted that the closet

otherwise contained only men’s clothing. Officer Bignall

confiscated two digital scales, sandwich baggies, and a razor

blade from the top of the dresser and defendant’s cell phone,

which was sitting on the bed.

Officer Brandon Williamson with the Freedom Division Focus

Mission Team participated in the execution of the search warrant

at the Timberbrook apartment. Officer Williamson searched

bedroom 1 and located a North Carolina ID belonging to

defendant. The ID listed defendant’s address as 6039 Mary

Blaire Lane, Charlotte. Officer Williamson noted that the dry-

cleaning in the closet was tagged with the first four letters of

defendant’s last name and the invoice had defendant’s full name

on it.

When he lifted the mattress, Officer Williamson uncovered a

Smith & Wesson semi-automatic firearm with built-in laser sight.

A loaded magazine for the firearm was next to it. When asked,
 -4-
“was there anything else in that room that indicated that

someone [besides defendant] was using that room[?]”, Officer

Williamson responded, “No, not that I observed.” Officer

Williamson testified that defendant admitted in an interview he

had touched and held the firearm but denied owning it.

Officer Alex Saine, also with the Freedom Division Focus

Mission Team, testified that defendant was found in bedroom 1

and the female was found in a second bedroom. Officer Saine

participated in the search of bedroom 1. He discovered a safe

in the closet that contained defendant’s birth certificate and

other documents in defendant’s name.

Officer Saine testified that in an interview, defendant

initially referred to the cell phone found on the bed in bedroom

1 as “his.” However, when confronted with evidence that the

phone’s home screen displayed a picture of the firearm, “all of

the sudden he didn’t know about the phone.” When asked about a

video of the firearm on the phone, defendant again denied that

the cell phone was his. Officer Saine testified that the cell

phone video showed a male holding the Smith & Wesson firearm—

“showing it off for the camera.” There was a male voice

narrating, and the video was shot in bedroom 1.
 -5-
Rachael Scott, DNA analyst for the Charlotte-Mecklenburg

Police Department’s crime laboratory, testified that defendant’s

DNA profile was found on the grip of the firearm as well as on

the magazine. Based on the evidence, defendant was indicted on

charges of possession of a firearm by a felon, possession with

intent to sell or deliver a controlled substance, and possession

of drug paraphernalia. However, the controlled substance did

not test positive as a narcotic. The State therefore dismissed

the charge of possession with intent to sell or deliver a

controlled substance.

Defendant testified on his own behalf at trial. Defendant

alleged that at no time did he reside at the Timberbrook

apartment. He stated that he went to the Timberbrook apartment

on 26 July 2012 to pick up Charmane Reddy, a friend who needed a

ride to work. After dropping Ms. Reddy off, defendant testified

that he returned to the Timberbrook address to get something to

eat and “20 minutes later the police came.” Defendant testified

that he had personal items in bedroom, “for storage basically.”

Defendant stated that many of the personal items in bedroom 1

belonged to his deceased father, including the dry-cleaning.

Defendant denied storing the digital scale and firearm in

bedroom 1.
 -6-
II. Analysis

A. Motion for Mistrial

Defendant contends the trial court erred in failing to

grant his motion for a mistrial after Officer Saine testified

that defendant was arrested for possession of cocaine.

Defendant argues that the admission of Officer Saine’s testimony

violated the North Carolina Rules of Evidence and resulted in

substantial and irreparable prejudice to him. We disagree.

Under N.C. Gen. Stat. § 15A–1061 (2013), a mistrial is

warranted when “there occurs during the trial . . . conduct

inside or outside the courtroom, resulting in substantial and

irreparable prejudice to the defendant’s case.” The trial

court’s denial of a motion for mistrial is reviewed only for

manifest abuse of discretion. State v. King, 343 N.C. 29, 45,

468 S.E.2d 232, 242 (1996).

The general rule is that in a prosecution
for a particular crime, the State cannot
offer evidence tending to show that the
accused has committed another distinct,
independent, or separate offense. . . . In
appraising the effect of incompetent
evidence once admitted and afterwards
withdrawn, the Court will look to the nature
of the evidence and its probable influence
upon the minds of the jury in reaching a
verdict. In some instances because of the
serious character and gravity of the
incompetent evidence and the obvious
difficulty in erasing it from the mind, the
 -7-
Court has held to the opinion that a
subsequent withdrawal did not cure the
error. But in other cases the trial courts
have freely exercised the privilege, which
is not only a matter of custom but almost a
matter of necessity in the supervision of a
lengthy trial. Ordinarily where the evidence
is withdrawn no error is committed. This is
also the rule when unresponsive answers of a
witness include incompetent prejudicial
statements and the court on motion or ex
mero motu instructs the jury they are not to
consider such testimony. Whether the
prejudicial effect of such incompetent
statements should be deemed cured by such
instructions depends upon the nature of the
evidence and the circumstances of the
particular case.

State v. Aycoth, 270 N.C. 270, 272–73, 154 S.E.2d 59, 60–61

(1967) (citations and quotations omitted).

Because the substance seized from the Timberbrook apartment

did not test positive as an illegal narcotic, the State

dismissed the charge of possession with intent to sell or

deliver a controlled substance prior to trial and agreed not to

reference the charge at trial. The evidence at issue here was

elicited when the State specifically asked Officer Saine on what

charges was defendant arrested. Officer Saine responded: “For

possession of a firearm by a felon, [and] possession of

cocaine.” Defendant immediately objected to this testimony, but

the trial court overruled the objection. During a bench
 -8-
conference the trial court reconsidered--denying defendant’s

motion for mistrial but agreeing to strike the contested

testimony from the record. As such, the trial court issued the

following curative instruction:

Ladies and gentlemen, the testimony just
prior to the break by the officer, the
defendant was charged with a particular
offense, is stricken. The fact that someone
has been charged with something is no
evidence of guilt, and you’re to disregard
the officer’s answer about what the
defendant was charged with. That answer is
not to influence your decision in its
weighing or is to play any part in your
deliberations.

Defendant contends that “the knowledge that [he] had been

arrested for possession of cocaine was so highly prejudicial it

could not be erased from the jurors’ minds with a curative

instruction.” We are not persuaded. Defendant cites State v.

Scott, 331 N.C. 39, 413 S.E.2d 787 (1992) to support his

contention. In Scott, the defendant was on trial for second-

degree rape. The State elicited testimony from an acquaintance

of the defendant who testified that the defendant had raped her

two years earlier under similar circumstances. Id. at 41, 413

S.E.2d at 788. The defendant had been tried and acquitted of

the alleged rape. Our Supreme Court held that that

evidence that defendant committed a prior
 -9-
alleged offense for which he has been tried
and acquitted may not be admitted in a
subsequent trial for a different offense
when its probative value depends, as it did
here, upon the proposition that defendant in
fact committed the prior crime. To admit
such evidence violates, as a matter of law,
Evidence Rule 403.

Id. at 42, 413 S.E.2d at 788. “When the intrinsic nature of

the evidence itself is such that its probative value is always

necessarily outweighed by the danger of unfair prejudice, the

evidence becomes inadmissible under the rule as a matter of

law.” Id. at 43, 413 S.E.2d at 789.

In Scott, the link between the inadmissible evidence and

the crime with which the defendant was charged was certain and

unmistakable. Here, Officer Saine’s mere statement that

defendant was arrested for possession of cocaine does not

corroborate the additional evidence the State presented at

trial. There is little if any connection between the

incompetent evidence and the crimes tried in the instant case.

We hold there is no reason to believe that defendant was

prejudiced by the admission of this evidence or that the jury

depended upon this evidence in any way to arrive at the guilty

verdict. The error was cured by prompt and adequate action by

the trial court, “since the presumption is that jurors will
 -10-
understand and comply with the instructions of the court.”

State v. Britt, 288 N.C. 699, 713, 220 S.E.2d 283, 292 (1975).

Accordingly, the trial court did not abuse its discretion in

denying defendant’s motion for a mistrial.

B. Testimony of Job Duties

Defendant next argues that the trial court erred in

allowing the officers to testify that they were assigned to the

Freedom Division Focus Team, which is a street drug interdiction

unit and a violent crime suppression unit that investigates

street level drug crimes within the Freedom Division and

murders, rapes, and robberies. We disagree.

We note at the outset that defendant did not object to the

admission of the contested testimony at trial. As such, we

review this argument for plain error. “A reversal for plain

error is only appropriate in the most exceptional cases.” State

v. Duke, 360 N.C. 110, 138, 623 S.E.2d 11, 29 (2005). Plain

error should be applied only when the defendant proves that,

“after reviewing the entire record, it can be said the claimed

error is a fundamental error, something so basic, so

prejudicial, so lacking in its elements that justice cannot have

been done[.]” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375,

378 (1983) (citations and quotations omitted) (alteration in
 -11-
original). An appellate court “must be convinced” by the

defendant that “absent the error the jury probably would have

reached a different verdict.” State v. Walker, 316 N.C. 33, 39,

340 S.E.2d 80, 83 (1986).

Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the

determination of the action more probable or less probable than

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

401 (2013). Generally, all relevant evidence is admissible, N.C.

Gen. Stat. § 8C–1, Rule 402, but evidence that has “not been

connected to the crime charged and which [has] no logical

tendency to prove any fact in issue [is] irrelevant and

inadmissible.” State v. Wallace, 104 N.C. App. 498, 502, 410

S.E.2d 226, 228–29 (1991).

Here, Officer Bingal testified that he worked on the

“Freedom Division Focus Mission Team,” which is “a unit with

uniformed patrol and uniformed [sic] police car, and the

lieutenants tell us where to go where crime spikes have

occurred. . . . We’re a violent crime suppression unit,

basically. We patrol areas where we have problems with

robberies, drugs, prostitution. We do a lot of search

warrants.” Officer Brandon Williamson testified he was
 -12-
“assigned to the Freedom Division in their Focus Mission Team,”

where he investigated “[m]urders, rapes, robberies, drugs,

prostitution, and weapon offenses. Basically street crimes in

the division.” Lastly, Officer Saine testified he was assigned

to the “Freedom Division, Focus Mission Team,” which “is

basically a street crimes unit, or also known as a Street Drug

Interdiction Unit. We investigate street level drug crimes with

the Freedom Division.”

On appeal, the crux of defendant’s issue is that the

foregoing testimony constituted inadmissible character evidence

tending to show that defendant was a “hardened criminal.”

Defendant contends that the officers’ testimony lacked relevance

and “had nothing to do with [defendant’s] guilt or innocence.”

Further, defendant contends that he was irreparably prejudiced

by its admission. In support of his argument, defendant relies

on State v. Hinton, a case in which this Court held that it was

error to allow Sergeant Bray to make ninety-one references to

gangs or gang-related activity when the gang-related testimony

“had no tendency to make any fact of consequence more likely

than not.” State v. Hinton, ___ N.C. App. ___, ___, 738 S.E.2d

241, 246 (2013).
 -13-
Defendant’s reliance on Hinton is misplaced. Our holding

in Hinton was premised on the well-established rule that

evidence of “membership in [a gang] organization may only be

admitted if relevant to the defendant’s guilt.” Id. Because

the gang-related evidence was “never connected to the crime

charged” in the Hinton case, we held that it was irrelevant and

inadmissible. Id. at 246-47. In the instant case, the

testifying officers were merely explaining their role with the

Charlotte-Mecklenburg Police Department on the Freedom Division

Focus Mission Team, which included investigating murders, rapes,

robberies, drugs, prostitution, and weapon offenses. At no

point during trial was it suggested that defendant was the

perpetrator of crimes beyond which he had been charged. There

was no reason for the jury to conclude defendant was a murderer

or rapist or an otherwise “hardened criminal.” The trial court

did not err.

C. Best Evidence Rule

Defendant next contends that the trial court violated the

best evidence rule when it permitted Officer Saine to testify to

the contents of the video found on defendant’s cell phone when

the video itself was allegedly available. We agree that the

trial court may have violated the best evidence rule (assuming
 -14-
the cell phone video was available to be shown in court).

However, such error did not constitute prejudicial error.

According to our Rules of Evidence, “[t]o prove the content

of a writing, recording, or photograph, the original writing,

recording, or photograph is required, except as otherwise

provided in these rules or by statute.” N.C. Gen. Stat. § 8C-1,

Rule 1002 (2013). “The best evidence rule requires that

secondary evidence offered to prove the contents of a recording

be excluded whenever the original recording is available.”

State v. York, 347 N.C. 79, 91, 489 S.E.2d 380, 387 (1997).

At trial, Officer Saine testified on direct examination

that he watched a video on defendant’s cell phone after

defendant was arrested:

Q. Did you ever have an opportunity to watch
that video?

A. Yes.

Q. Was it from the same phone that we were
talking about?

A. Yes.

Q. And what did you actually see on the
video?

A. There’s a male holding this pistol and
just showing it off for the camera. There
is a male voice in the background more or
less narrating what’s going on. The
background of the video obviously was taken
 -15-
in the defendant's bedroom.

Q. Was it showing the same setup as where
the defendant was found?

A. Yes.

Q. And the gun that was shown on the video,
did it look the same as the gun that was
collected from the bedroom?

A. Yes.

Q. And what about it was so similar?

A. The size of it, as well as the red dot
sight that’s a feature of that pistol.

MR. OSHO: Your Honor, at this time I believe
all this is hearsay, and because it was
heard.

THE COURT: I’m sorry?

MR. OSHO: Your Honor, I believe the video is
here. That would be the best evidence for
the jury[.] [The officer’s opinion as to the
contents of the video] would be hearsay,
your Honor.

THE COURT: Well, sustained.

From the record it is unclear whether the cell phone video

was in fact available at trial. Defendant merely stated he

“believed” the video was present at trial, and there was no

additional discussion as to whether it should be admitted.

Assuming, without deciding, that the admission of Officer
 -16-
Saine’s testimony concerning the contents of the video was

erroneous and violated the best evidence rule, we are

unconvinced that this error “probably resulted in the jury

reaching a different verdict than it otherwise would have

reached.” State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188,

193 (1993) (citation and quotation omitted).

The State presented sufficient evidence of defendant’s

constructive possession of the firearm irrespective of Officer

Saine’s testimony pertaining to the contents of the cell phone

video. “Possession of a firearm may [] be actual or

constructive.” State v. Boyd, 154 N.C. App. 302, 307, 572

S.E.2d 192, 196 (2002). “Constructive possession of an item

exists when a person does not have the item in physical custody,

but . . . nonetheless has the power and intent to control its

disposition.” State v. Young, 190 N.C. App. 458, 460, 660

S.E.2d 574, 576 (2008). Specifically, the State presented the

testimonial evidence of three law enforcement officers that

defendant was discovered in bedroom 1. Bedroom 1 also contained

numerous personal items belonging to defendant, including his

ID, birth certificate, criminal record, food-stamp card, and

clothing. The Smith & Wesson firearm was found under the

mattress and scales were found on the dresser in bedroom 1. The
 -17-
firearm tested positive for defendant’s DNA. There was evidence

presented that defendant referred to the confiscated cell phone

as “his,” until law enforcement officers pointed out that the

home screen displayed a photograph of the firearm. There was

evidence that defendant admitted to having touched and played

with the firearm, but denied owning it.

Based on the totality of the circumstances, the State’s

evidence showing defendant’s ownership or control of the

contraband establishes sufficient incriminating circumstances to

support a conclusion that defendant constructively possessed the

contraband. Id. at 461, 660 S.E.2d at 577. Even if Officer

Saine’s testimony regarding the cell phone video had been struck

from the record or if the video itself had been shown, the jury

probably would not have reached a different verdict. Walker,

supra.

D. Officer Saine’s Testimony

In defendant’s final two arguments, he contends that the

trial court committed reversible error in admitting portions of

Officer Saine’s testimony. In particular, defendant avers that

he was irreparably prejudiced by the admission of Officer

Saine’s testimony pertaining to (1) a description of the items

found in the safe as “dominion items which suggest who the safe
 -18-
belongs to,” (2) his references to bedroom 1 as “the defendant’s

bedroom,” (3) and his testimony that defendant’s birth

certificate was found in the safe. The core of defendant’s

argument is that, without the admission of this evidence, the

State would have been unable to prove constructive possession of

the contraband. We disagree.

Given the State’s evidence of constructive possession

detailed in the preceding discussion, and our conclusion that

the State presented sufficient evidence to support the jury’s

determination that defendant constructively possessed the

contraband, we overrule defendant’s final two arguments. There

was sufficient evidence for the jury to find that defendant

constructively possessed the contraband irrespective of Officer

Saine’s testimony.

E. Conclusion

In sum, the trial court did not err in (1) denying

defendant’s motion for mistrial; (2) allowing the officers to

testify to their duties with the Freedom Division Focus Team;

and (3) allowing Officer Saine to describe the contents of the

safe as “dominion items,” call bedroom 1 “defendant’s bedroom,”

and testify that defendant’s birth certificate was found in the

safe. The State presented sufficient competent evidence that
 -19-
defendant constructively possessed the contraband. Assuming

arguendo that the cell phone video was available at trial, the

trial court violated the best evidence rule by allowing Officer

Saine to testify to the contents of the video. However, this

error did not constitute prejudicial error. Accordingly, we

hold that defendant received a trial free from prejudicial

error.

No prejudicial error.

Judges CALABRIA and STEPHENS concur.

Report per Rule 30(e).