Opinion
No. COA11–1505.
2012-05-15
STATE of North Carolina v. Jason Scott DUNN.
Attorney General Roy Cooper, by Assistant Attorney General Brent D. Kiziah, for the State. Haral E. Carlin for defendant appellant.
Appeal by defendant from judgment entered 28 August 2009 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 3 April 2012. Attorney General Roy Cooper, by Assistant Attorney General Brent D. Kiziah, for the State. Haral E. Carlin for defendant appellant.
McCULLOUGH, Judge.
On 26 August 2009, a jury found Jason Scott Dunn (“defendant”) guilty of conspiracy to traffic in cocaine, trafficking in cocaine by possession of 200 grams or more, trafficking in cocaine by transporting 200 grams or more, and trafficking in cocaine by selling or delivering 200 grams or more. The trial court consolidated the offenses and entered judgment sentencing defendant to a term of 70 to 84 months' imprisonment. On appeal, defendant contends the trial court erred in (1) denying his motion to dismiss the charge of trafficking in cocaine by sale or delivery for a fatal variance, (2) admitting hearsay testimony and electronic evidence without proper authentication, and (3) instructing the jury on flight. Defendant also contends the trial court committed plain error in (4) failing to instruct the jury on expert testimony, (5) failing to instruct the jury on the defense of entrapment, and (6) admitting testimonial evidence not relevant to the crimes charged. After careful review, we hold defendant received a fair trial free from prejudicial error.
I. Background
In March of 2008, Detective Alexander Williams (“Detective Williams”) of the Greensboro Police Department was participating in an undercover drug investigation involving an individual named Daniel Whittemore (“Whittemore”). Whittemore had been involved with drug dealing as a “middle man” for approximately four years. Detective Williams was introduced to Whittemore as the cousin of another individual named Chris Varner (“Varner”), with whom Whittemore had conducted prior drug transactions. Varner was arrested on 27 September 2007 and was cooperating with police. Varner had identified Whittemore as an individual “that he could go through to get ... more cocaine.”
On 20 March 2008, Detective Williams informed Whittemore by telephone that he was looking to purchase nine ounces of cocaine, a trafficking amount. Detective Williams recorded the phone conversations with Whittemore. Whittemore informed Detective Williams that he would “contact his source” to schedule the transaction for the following day. Whittemore named a price of $6,500 for the nine ounces. At trial, Whittemore testified that he only knew two people that “had those kind of amounts,” an individual named Trevor Eno (“Eno”) and defendant. Whittemore testified he contacted defendant for this particular transaction because he knew he could get the cocaine at a cheaper price from defendant and make something off the exchange as the middle man.
That night, Whittemore contacted defendant about the transaction. Whittemore had programmed defendant's telephone number into his cell phone under defendant's last name, “Dunn.” At no time did defendant indicate to Whittemore that he would have difficulty producing the nine ounces of cocaine. Whittemore told defendant that the other individual involved in the transaction “was a guy [he] knew that [he] had met through somebody, and he was good, and [he] said that, you know, ‘Everything is good on this end. Be ready .’ “ Defendant named a price of $5,000 for the nine ounces of cocaine to Whittemore. Whittemore then called Detective Williams and confirmed the transaction would take place the following day. Detective Williams informed the lead detective in the investigation, Detective Richard Alston (“Detective Alston”), of the proposed transaction.
At 10:05 a.m. on 21 March 2008, Detective Williams contacted Whittemore by telephone to “reconfirm” that the transaction would take place that day. The two discussed “where [they] were going to conduct business,” and Whittemore told Detective Williams he would contact his source to make sure he was able to do the transaction as well. Whittemore and defendant then exchanged a series of text messages concerning the meeting time and location. Whittemore then called Detective Williams back, confirmed the transaction would take place, and gave Detective Williams a time frame between 11:30 a.m. to 12:00 noon.
Prior to the transaction, Detective Williams was equipped with a “body wire” to allow other members of his police unit to hear what was going on. Detective Williams continued to record all telephone conversations he had with Whittemore, and his unmarked vehicle was equipped with audio-video equipment to record anything occurring inside of his vehicle. Detective Williams was then provided the money to purchase the cocaine from the police department safe. The $6,500 amount was divided into two stacks, one containing $3,200 marked with a rubber band numbered “2,” and another containing the remaining $3,300 marked with a rubber band numbered “3.” Detective Williams hid the money in a “hollowed out” car battery and placed the battery in the back of his vehicle.
Around 11:00 a.m., Whittemore contacted Detective Williams and informed him that he would be meeting his source for the cocaine in the area of Battleground Avenue and Cone Boulevard in Greensboro, North Carolina. Approximately ten minutes before Detective Williams reached the area, Whittemore again contacted Detective Williams by telephone and informed him the meeting would take place in the parking lot of the McDonald's restaurant at the intersection of Battleground and Cone. Detective Williams arrived at approximately 1:12 p.m. and Whittemore had already arrived. Detective Williams parked his vehicle in the parking lot and contacted Whittemore by telephone. Whittemore then contacted defendant and informed him the money had arrived. Defendant then told Whittemore to come to a nearby Arby's restaurant, where defendant was located. Whittemore then informed Detective Williams that the location had changed to the restaurant parking lot of a nearby Arby's and proceeded to get inside Detective Williams' vehicle. Detective Williams then retrieved the battery from the back of his vehicle and showed the money to Whittemore, “just to make sure he knew that [the Detective] was good to do business that day.” Whittemore then agreed to ride with Detective Williams in his vehicle to the new location at the Arby's restaurant.
During the five-to-ten-minute drive, Whittemore explained to Detective Williams how the transaction would take place. Whittemore stated he would take the money inside the restaurant to the bathroom and conduct the transaction with his source, then he would bring the cocaine back out to Detective Williams in his vehicle. During the trip, Whittemore phoned defendant and told him they were almost there and “just to be ready to do business.” At that time, Detective Williams did not know who Whittemore was speaking with on the telephone. Following the phone call, Whittemore informed Detective Williams the location had again changed to the McDonald's restaurant across the street from the Arby's restaurant, and defendant would be located in the bathroom of the McDonald's restaurant.
Upon arriving at the McDonald's restaurant, Detective Williams parked near the back of the parking lot. Whittemore then saw defendant walking into the restaurant and stated, “There he is. I'll be right back[.]” After a lengthy negotiation regarding the exchange of the money, Detective Williams agreed to give Whittemore $3,200 prior to the exchange, and the remaining $3,300 would be delivered once Whittemore returned with the cocaine and Detective Williams confirmed that “it was good quality.” Accordingly, Detective Williams gave Whittemore the stack containing $3,200 marked with the number “2.” Whittemore borrowed Detective Williams' gray hooded sweatshirt in order to conceal the cocaine after receiving it from defendant. Whittemore then sent a text message to defendant informing defendant that Whittemore was on his way into the restaurant. Detective Williams remained in his vehicle while Whittemore went inside the restaurant.
Whittemore entered the bathroom at the restaurant and delivered half of the money to defendant inside a bathroom stall. Whittemore testified that when he gave defendant half the money, he and defendant had an understanding that Whittemore “would be right back with the rest [of the money] after [he] gave Detective Williams, Chris Varner's cousin, the merchandise.” Whittemore identified defendant at trial as the individual he met with in the bathroom stall for the transaction. After receiving half of the money in the bathroom stall, defendant delivered the cocaine to Whittemore. Whittemore asked defendant to count the money while he retrieved the remainder. Whittemore placed the cocaine in the right-hand pocket of Detective Williams' gray hooded sweatshirt. Whittemore remained in the McDonald's restaurant during this transaction for only two to three minutes.
Other officers in plain clothes driving unmarked vehicles were in the area assisting with the undercover operation. Detective Dwayne James (“Detective James”) monitored the conversations occurring between Whittemore and Detective Williams inside Detective Williams' vehicle and heard the transaction was to take place “in the restroom at the McDonald's.” Detective James then went inside the restaurant to “see if [he] could find an additional target, the source of supply, supplier of the cocaine.” Detective James approached the bathroom door, where he saw Whittemore exit the restroom and head to the parking lot. Detective James entered the restroom within “a matter of seconds” and encountered defendant inside the stall. Detective James identified defendant at trial as the individual he encountered inside the bathroom stall.
Meanwhile, Whittemore returned to Detective Williams' vehicle, got back inside the passenger side of the vehicle, and produced a clear plastic freezer bag from the right-hand pocket of Detective Williams' hooded sweatshirt. Detective Williams opened the bag to inspect the contents and detected a chemical odor consistent with that of cocaine. Detective Williams then told Whittemore he needed to retrieve a scale from the back of his vehicle in order to weigh the bag of cocaine “to make sure it was what [he] was paying for.” Upon exiting the vehicle, Detective Williams gave a predetermined signal to the other officers conducting surveillance to move in and make the arrest of Whittemore. The other officers then moved in and placed both Whittemore and Detective Williams in custody. While detained in the McDonald's parking lot, Whittemore told the officers the name of his source for the nine ounces of cocaine was “Jason Dunn.” Whittemore again identified defendant as the source of the drugs after both were transported to the police station.
Following the arrest, Detective Alston entered the restaurant with two other officers “to attempt to locate the person that [Whittemore] met in the bathroom.” Detective Alston went inside the bathroom and observed that someone was still in the stall where defendant had been. Detective Alston exited the bathroom and left the two detectives standing directly outside the bathroom door “to make sure that whoever was in the bathroom didn't leave[.]” Detective Alston returned to Detective Williams' vehicle and retrieved Whittemore's cell phone directly from Whittemore's person. Detective Alston then returned to the McDonald's bathroom with Whittemore's cell phone. While inside, Detective Alston pressed the “send” button to dial the last number called, and the name “Dunn” appeared on the phone's display screen. Detective Alston then heard the individual in the bathroom stall say, “hello, hello.” Detective Alston ended the call and stepped outside of the bathroom to wait for the individual to come out.
Shortly thereafter, defendant exited the bathroom. Defendant had his cell phone up to his ear, and Detective Alston observed that Whittemore's cell phone, in Detective Alston's hand, was vibrating, showing an incoming call from “Dunn.” Defendant exited the restaurant into the parking lot, followed by Detective Alston and another officer. Detective Alston pulled his chain containing his police badge in preparation of showing it to defendant. At that time, the parking lot of the restaurant was occupied with multiple police cars with their patrol lights activated and SWAT team members with weapons. Detective Alston observed defendant look to the left in the direction of the police activity. Detective Alston then called to defendant by saying, “Sir.” Defendant turned to look at Detective Alston, then Detective Alston stated, “Police. You're under arrest.” Detective Alston testified defendant gestured as if he was “going to run,” but Detective Alston “was able to grab [defendant's] shirt before he could get away, and [Detective Alston] and Detective Morton actually placed him on the ground and placed him under arrest.” Detective Alston searched defendant's person and located the $3,200 marked with the number “2” in defendant's back pocket. Detective Alston also seized two cell phones from defendant's person. Detective Alston testified that he inspected the phones retrieved from both Whittemore and defendant and determined the two had been calling and text messaging each other.
Special Agent Amanda Aharon (“Special Agent Aharon”) with the North Carolina State Bureau of Investigation, an expert in forensic chemistry, confirmed the freezer bag contained cocaine and weighed 244.58 grams.
On 18 August 2008, defendant was indicted for conspiracy to traffic in cocaine, trafficking in cocaine by possession of 200 grams or more, trafficking in cocaine by transporting 200 grams or more, and trafficking in cocaine by selling or delivering 200 grams or more. Defendant was tried by a jury on all offenses beginning 24 August 2009, and the jury returned guilty verdicts on all offenses. The trial court consolidated the offenses and entered judgment on 28 August 2009 sentencing defendant to a term of 70 to 84 months' imprisonment.
On 7 February 2011, defendant filed a Petition for Writ of Certiorari with this Court to review the 28 August 2009 judgment. We allowed defendant's petition on 23 February 2011.
II. Motion to Dismiss for Fatal Variance
Defendant first contends the trial court erred in denying his motion to dismiss the charge of trafficking in cocaine by sale or delivery. Defendant argues he was entitled to dismissal of this charge because of a fatal variance between the indictment and the evidence produced at trial.
“It is the settled rule that the evidence in a criminal case must correspond with the allegations of the indictment which are essential and material to charge the offense.” State v. McDowell, 1 N.C.App. 361, 365, 161 S.E.2d 769, 771 (1968).
“ ‘A variance occurs where the allegations in an indictment, although they may be sufficiently specific on their face, do not conform to the evidence actually established at trial.’ “ State v. Skinner, 162 N.C.App. 434, 445, 590 S.E.2d 876, 885 (2004) (quoting State v. Norman, 149 N.C.App. 588, 594, 562 S.E.2d 453, 457 (2002)). If the evidence produced by the State fails to conform to the specific allegations contained in the indictment, it is insufficient to convict the defendant of the crime charged. State v. Wall, 96 N.C.App. 45, 49, 384 S.E.2d 581, 583 (1989). “Therefore, a challenge to a fatal variance between the indictment and proof may be raised by a motion to dismiss for insufficient evidence.” Id. at 49–50, 384 S.E.2d at 583.
“In this State, an indictment for the sale and/or delivery of a controlled substance must accurately name the person to whom the defendant allegedly sold or delivered the controlled substance, if that person is known.” State v. Redd, 144 N.C.App. 248, 256, 549 S.E.2d 875, 881 (2001). “[W]here the bill of indictment alleges a sale to one person and the proof tends to show only a sale to a different person, the variance is fatal.” State v. Ingram, 20 N.C.App. 464, 466, 201 S.E.2d 532, 534 (1974). Nonetheless, “[t]he State can overcome a motion to dismiss based on a variance claim by producing substantial evidence that defendant knew the [controlled substance] was being sold to a third party, and that the person named in the indictment was the third party.” State v. Cotton, 102 N.C.App. 93, 97, 401 S.E.2d 376, 379,appeal dismissed, disc. review denied, 329 N.C. 501, 407 S.E.2d 543 (1991). In addition, “[t]his guilty knowledge may be shown by circumstantial evidence.” Id. Thus, in order to survive defendant's motion to dismiss the charge of trafficking in cocaine by sale or delivery to Detective Williams, at a minimum, the evidence would have to show two things: (1) that defendant had knowledge Whittemore was buying or taking delivery of the cocaine for another person, and (2) that the person named in the indictment was that other person. Wall, 96 N.C.App. at 50, 384 S.E.2d at 583.
In reviewing the denial of a motion to dismiss we examine the evidence in the light most favorable to the State to determine if there is substantial evidence of every essential element of the crime. Evidence is “substantial” if a reasonable person would consider it sufficient to support the conclusion that the essential element exists.
Id.
In the present case, defendant's indictment for trafficking in cocaine by sale or delivery states defendant “did traffick by selling or delivering to A.W. Williams 200 grams or more but less than 400 grams of cocaine[.]” (Emphasis added.) Defendant argues the State's proof at trial unequivocally established that defendant sold the cocaine directly to Whittemore, not Detective Williams, as named in the indictment. Therefore, defendant contends the indictment is fatal.
However, in the present case, the State presented evidence tending to show that Whittemore informed defendant that he was with a third party identified as Varner's cousin. Whittemore and defendant had an agreement that Whittemore would facilitate the transaction by delivering half of the money, and upon delivery of the cocaine to Detective Williams, Whittemore would bring the remaining balance to defendant. Moreover, Whittemore testified he had been involved in drug dealing for approximately four years and had always participated in the transactions, some involving defendant, as the “middle man,” never receiving any drugs for himself in any transaction. This is substantial evidence that defendant knew Whittemore was acting on behalf of a third party in making the purchase and that the cocaine was actually being sold to the individual identified by Whittemore as Varner's cousin. See State v. Pulliam, 78 N.C.App. 129, 133, 336 S.E.2d 649, 652 (1985) (holding that evidence that the purchaser told the defendant he was buying the drugs for a friend and that he had to take the drugs outside to get the money from that friend is sufficient to show the defendant's knowledge that the purchaser was acting on behalf of a third person, an undercover officer named in the indictment). Further, the evidence is uncontroverted that Detective Williams was, in fact, the third party purchasing the cocaine, as specified in the indictment. Thus, defendant's arguments on this issue are without merit.
III. Admission of Cell Phones and Testimony Regarding Time Stamps of Calls and Content of Text Messages
In the present case, the State introduced into evidence two cell phones found on defendant's person at the time of his arrest and one cell phone obtained from Whittemore at the time of his arrest. In addition, Detective Alston testified that he inspected these cell phones and determined that the phones had called each other and had exchanged text messages. Over defendant's hearsay objection, Detective Alston testified regarding the time stamps of the calls between the phones as depicted on the screens of the phones, as well as the content of certain text messages exchanged between the two phones. Defendant argues on appeal that the State failed to lay a proper foundation for the admission of this evidence and that the evidence constitutes inadmissible hearsay concerning the time stamps and text messages occurring between defendant and Whittemore.
“When preserved by an objection, a trial court's decision with regard to the admission of evidence alleged to be hearsay is reviewed de novo.”State v. Johnson, ––– N.C.App. ––––, ––––, 706 S.E.2d 790, 797 (2011) (citing State v. Wilson, 197 N.C.App. 154, 159, 676 S.E.2d 512, 515 (2009)). “The erroneous admission of hearsay testimony is not always so prejudicial as to require a new trial[.]” State v. Allen, 127 N.C.App. 182, 186, 488 S.E.2d 294, 297 (1997). “The burden is on the party who asserts that evidence was improperly admitted to show both error and that he was prejudiced by its admission. The admission of evidence which is technically inadmissible will be treated as harmless unless prejudice is shown[.]” State v. Gappins, 320 N.C. 64, 68, 357 S.E.2d 654, 657 (1987) (citations omitted). “ ‘A defendant is prejudiced ... 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.’ “ State v. Samuel, 203 N.C.App. 610, 618, 693 S.E.2d 662, 667–68 (2010) (quoting N.C. Gen.Stat. § 15A–1443(a) [2011] ).
Assuming arguendo that defendant has met his burden of showing this Court that the testimony and the cell phones indicating the specific times Whittemore and defendant had called each other and the text messages exchanged between the two were inadmissible hearsay, he cannot show he was prejudiced by its admission, as substantial other evidence of defendant's guilt was offered at trial. Whittemore identified defendant by name as his contact in the McDonald's parking lot at the time of his arrest. Whittemore also identified defendant at trial as his source for the nine ounces of cocaine sold to Detective Williams. Detective James personally encountered defendant inside the McDonald's bathroom stall within a matter of seconds of Whittemore's exiting the bathroom with the cocaine.
Further, Detective Alston personally retrieved Whittemore's phone from him at the time of his arrest, went inside the bathroom, redialed the last number called, and personally observed the individual inside the bathroom stall simultaneously answer a phone call. Detective Alston also personally observed defendant, upon exiting the McDonald's bathroom, appear to be making a call on his cell phone, at which time Whittemore's phone, in Detective Alston's hand, began vibrating with an incoming call. Detective Alston personally observed Whittemore's phone dial a number stored as “Dunn,” defendant's last name, upon redialing the last call, and Detective Alston likewise personally observed the contact “Dunn” appear on Whittemore's cell phone at the time Detective Alston observed defendant make a phone call upon exiting the McDonald's bathroom. In addition, the money given to Whittemore by Detective Williams marked with a rubber band numbered “2” was found on defendant's person at the time of his arrest. On this record, defendant cannot show a reasonable possibility that a different verdict would have been reached had the trial court excluded Detective Alston's testimony and the cell phones concerning the time stamps of the phone calls and the content of the text messages.
IV. Jury Instruction on Flight
Defendant contends the trial court erred in instructing the jury on his flight. “[Arguments] challenging the trial court's decisions regarding jury instructions are reviewed de novo by this Court.” State v. Osorio, 196 N.C.App. 458, 466, 675 S.E.2d 144, 149 (2009). “[A] trial judge should not give instructions to the jury which are not supported by the evidence produced at the trial.” State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186, 191 (1973). “[O]ur courts have long held that a trial court may not instruct a jury on defendant's flight unless ‘there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged.’ “ State v. Levan, 326 N.C. 155, 164–65, 388 S.E.2d 429, 433–34 (1990) (quoting State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977)). “Mere evidence that defendant left the scene of the crime is not enough to support an instruction on flight. There must also be some evidence that defendant took steps to avoid apprehension.” State v. Thompson, 328 N.C. 477, 490, 402 S.E.2d 386, 392 (1991).
The evidence presented in this case supporting an instruction on flight consisted entirely of Detective Alston's testimony that defendant appeared or gestured as if he was attempting to run from the officers, so the officers pulled defendant's shirt and brought defendant down to the ground to arrest him. There is no definitive evidence in this case that defendant took any affirmative steps to avoid apprehension from custody. The testimony does not even reveal defendant took a single step in an attempt to flee from the officers. Thus, the trial court erred in giving the challenged jury instruction on flight.
“However, an error in jury instructions is prejudicial and requires a new trial only if ‘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.’ “ State v. Castaneda, 196 N.C.App. 109, 116, 674 S.E .2d 707, 712 (2009) (quoting N.C. Gen.Stat. § 15A–1443(a)). Here, the trial court's error was harmless, and defendant has made no showing of how the result of his trial would have been different had the trial court not instructed the jury on flight. The State presented plenary other evidence of defendant's guilt of all four offenses, as denoted supra. We fail to see how the jury's considering the slight evidence that defendant appeared as if he was attempting to run from the officers tilted the jury's decision in favor of a guilty verdict.
V. Plain Error
Defendant's next three arguments on appeal concern the trial court's instructions to the jury and admission of evidence regarding the street value of the drugs being purchased. Defendant failed to object to the jury instructions and evidence he is now challenging, but he contends the challenged instructions and admission of evidence amounted to plain error.
“A party may not make any portion of the jury charge or omission therefrom the basis of an issue presented on appeal unless the party objects thereto before the jury retires to consider its verdict[.]” N.C. R.App. P. 10(a)(2) (2012). Similarly, exceptions to the admission of evidence must generally be preserved by an objection by counsel at the time of its admission. N.C. Gen.Stat. § 8C–1, Rule 103 (2011); N.C. R.App. P. 10(a)(1).
In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.
N.C. R.App. P. 10(a)(4). “Plain error analysis is limited to review of ‘jury instructions and evidentiary matters[.]’ “ Johnson, ––– N.C.App. at ––––, 706 S.E.2d at 798 (alteration in original) (quoting State v. Wiley, 355 N.C. 592, 615, 565 S.E.2d 22, 39–40 (2002)).
Plain error is “a fundamental error so prejudicial that justice cannot have been done.” State v. Haselden, 357 N.C. 1, 13, 577 S.E.2d 594, 602 (2003). “Plain error occurs when an error had a probable impact on the jury's finding that the defendant was guilty.” Samuel, 203 N.C.App. at 618, 693 S.E.2d at 668 (internal quotation marks and citations omitted). “The defendant has the heavy burden of showing that the error constituted plain error[.]” State v. Garris, 191 N.C.App. 276, 288, 663 S.E.2d 340, 349 (2008). “ ‘The plain error rule applies only in truly exceptional cases. Before deciding that an error by the trial court amounts to plain error, the appellate court must be convinced that absent the error the jury probably would have reached a different verdict.’ “ State v. Treadway, ––– N.C.App. ––––, ––––, 702 S.E.2d 335, 340 (2010) (quoting State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986)), disc. review denied,365 N.C. 195, 710 S.E.2d 35 (2011). Therefore, “ ‘[i]n order to prevail under a plain error analysis, defendant must establish not only that the trial court committed error, but that absent the error, the jury probably would have reached a different result.’ “ State v. Smith, 201 N.C.App. 681, 686, 687 S.E.2d 525, 529 (2010) (quoting State v. Steen, 352 N.C. 227, 269, 536 S.E.2d 1, 25–26 (2000)).
A. Jury Instruction on Expert Opinion Evidence
Defendant contends that because Special Agent Aharon was accepted by the trial court as an expert in forensic chemistry and testified that the powder seized from the transaction at issue was cocaine weighing a certain amount, the trial court should have instructed the jury pursuant to North Carolina's Criminal Pattern Jury Instruction 104.94 regarding expert testimony.
N.C.P.I.—Crim. 104.94 (2005) provides:
In this case you have heard evidence from [a witness] who [has] testified as (an) expert witness. An expert witness is permitted to testify in the form of an opinion in a field where the witness purports to have specialized skill or knowledge.
As I have instructed you, you are the sole judges of the credibility of each witness and the weight to be given to the testimony of each witness. In making this determination as to the testimony of an expert witness, you should consider, in addition to other tests of credibility and weight, the witness's training, qualifications, and experience or lack thereof; the reasons, if any, given for the opinion; whether the opinion is supported by the facts that you find from the evidence; whether the opinion is reasonable; and whether it is consistent with other believable evidence in the case.
You should consider the opinion of an expert witness, but you are not bound by it. In other words, you are not required to accept an expert witness's opinion to the exclusion of the facts and circumstances disclosed by other testimony.
Id. (emphasis added). Defendant emphasizes the last portion of this instruction, arguing the jury was given no guidance by the trial court in evaluating the expert testimony, and therefore, defendant argues “great weight” was placed on the expert's testimony in order to convict defendant of the cocaine charges.
However, the trial court did give the following jury instruction:
You are the sole judges of the credibility, that is, the believability, of each witness. You must decide for yourselves whether to believe the testimony of any witness. You may believe all, part, or none of what a witness has said on the witness stand. In deciding whether to believe a witness, you should apply the same tests of truthfulness that you apply in your everyday affairs. These tests may include the opportunity of the witness to see, hear, know, or remember the facts or occurrences about which the witness testified; the manner and appearance of the witness; any interest, bias, or prejudice the witness may have; the apparent understanding and fairness of the witness; whether the testimony is reasonable and whether it is consistent with other believable evidence in the case.
“[G]enerally speaking, expert testimony should be subject to the tests that are ordinarily applied to the evidence of other witnesses, and to the court's instruction that the jury must find the facts upon their own sound judgment.” Hedgepeth v. Coleman, 183 N.C. 309, 315, 111 S.E. 517, 520 (1922). Thus, the trial court gave the jury the proper standard for evaluating witness testimony, including that presented by the expert in this case. Although the better practice is for the trial court to specifically instruct the jury on expert testimony when an expert has testified at trial, we see no error in the trial court's jury instructions in the present case, especially in light of defendant's failure to request such an instruction.
Moreover, defendant has failed to meet his burden of showing how the outcome of his trial would have been different had the jury been given this instruction. Defendant makes no argument as to how the instruction would have impacted the jury or guided the jury to disregard the expert testimony and come to a different conclusion on defendant's guilt. Further, whether the powder exchanged in the transaction between defendant, Whittemore, and Detective Williams was, in fact, cocaine was not a contested issue at trial. Therefore, even if the trial court's failure to instruct the jury on evaluating expert testimony was error, it certainly does not rise to the level of plain error in this case.
B. Jury Instruction on Entrapment
Defendant also contends the trial court should have instructed the jury on the defense of entrapment. Defendant argues the evidence shows defendant's prior dealings with Whittemore were for user amounts, and not trafficking amounts, and that it was the suggestion of Detective Williams to purchase the trafficking amount, thereby entrapping defendant into committing the greater offense of trafficking, rather than possession with intent to sale or distribute or simple possession.
“ ‘A defendant is entitled to a jury instruction on entrapment whenever the defense is supported by defendant's evidence, viewed in the light most favorable to the defendant.’ “ State v. Sanders, 95 N.C.App. 56, 60, 381 S.E.2d 827, 829 (1989) (emphasis added) (quoting State v. Jamerson, 64 N.C.App. 301, 303, 307 S.E.2d 436, 437 (1983)). “ A defendant must present evidence that he was induced by a government agent into committing a crime which was conceived by the government agent in order to receive an entrapment instruction[.]” Id. at 60,381 S.E.2d at 829–30 (emphasis added). Defendant presented no evidence in this case. Thus, defendant's argument that the trial court should have instructed the jury on the defense of entrapment is patently without merit.
C. Admission of Testimony as to Street Value of Drugs
Finally, defendant contends that the monetary value of the drugs involved in the transaction is not an element of any of the offenses charged in the present case. Accordingly, defendant argues the testimony presented by Detective Williams regarding the street value of the drugs exchanged between defendant, Whittemore, and Detective Williams was not relevant and should have been excluded. Defendant contends the evidence was prejudicial because it painted him as a significant drug dealer.
“ ‘Relevant evidence’ means evidence having 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 (2011). “Evidence which is not relevant is not admissible.” N.C. Gen.Stat. § 8C–1, Rule 402 (2011). 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 Rule 403, such rulings are given great deference on appeal.” 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 (1992).
Defendant points to Detective Williams' testimony, during which Detective Williams testified “[t]he price [he] was given for this particular transaction [for nine ounces of cocaine] was $6,500.00.” Subsequently, Detective Williams testified he knew a portion of that price would go to Whittemore for serving as the “middle man,” but that $6,500 was the “purchase price” named for the transaction at issue. Although defendant argues none of the charges at issue in the present case contain a monetary element, one of the charges for which defendant was on trial was trafficking in cocaine by sale or delivery, a violation of N.C. Gen.Stat. § 90–95(h)(3). “In the context of the crimes enumerated in N.C. Gen.Stat. § 90–95, ‘[a] sale is a transfer of property for a specified price payable in money.’ “ State v. Ross, –––N.C.App. ––––, ––––, 700 S.E.2d 412, 424 (2010) (alteration in original) (second emphasis added) (quoting State v. Creason, 313 N.C. 122, 129, 326 S.E.2d 24, 28 (1985)), disc. review denied,365 N.C. 346, 717 S.E.2d 377 (2011). Thus, the evidence regarding the purchase price of the cocaine was relevant in establishing the fact that defendant both agreed to and was involved in the sale of the cocaine to Detective Williams and Whittemore.
Moreover, defendant again has failed to show any prejudice from the admission of the challenged testimony. Although defendant argues the testimony painted him as a significant drug dealer, defendant has made no argument as to how such alleged prejudicial testimony had such an impact on the jury's finding of guilt, in light of the ample other evidence of defendant's guilt presented by the State.
Furthermore, we note this case is readily distinguishable from State v. Samuel, 203 N.C.App. 610, 693 S.E.2d 662 (2010), relied on by defendant, in which this Court held that evidence regarding two guns found in the defendant's home was “wholly irrelevant and, thus, inadmissible” because “there was not a scintilla of evidence linking either of the guns to the crimes charged.” Id. at 621, 693 S.E.2d at 669. The guns held to be inadmissible in Samuel were expressly used by the State to link the defendant to the armed robbery charge for which he was on trial, and, “[g]iven the weakness in the State's evidence that [the d]efendant was the assailant and the substantial evidence tending to show that [the d]efendant was not the assailant,” this Court concluded “that the admission of the evidence of the guns, and the prosecutor's reliance upon the revolver to link [the d]efendant to the crimes charged” amounted to reversible plain error. Id. at 624, 693 S.E.2d at 671. Such is not the case here.
VI. Conclusion
We hold the trial court did not err in denying defendant's motion to dismiss the charge of trafficking in cocaine by sale or delivery for a fatal variance, as the State presented sufficient evidence that defendant knew Whittemore was buying the cocaine on behalf of another person and that the other person involved in the transaction was Detective Williams, as specified in the indictment. We also hold defendant has failed to show prejudice by the admission of the cell phones and testimony regarding the time stamps of the phone calls and the text messages exchanged between him and Whittemore, and therefore, any purported error in admitting such evidence was harmless.
The evidence produced by the State did not, however, support an instruction to the jury on defendant's flight, and the trial court erred in so instructing the jury. However, this error again was harmless, given the overwhelming evidence of defendant's guilt in this case.
Finally, we hold defendant has failed to show plain error in the trial court's failure to instruct the jury on expert opinion evidence and the defense of entrapment and in the trial court's admission of evidence pertaining to the street value of the drugs at issue. Accordingly, we hold defendant received a fair trial, free from prejudicial error.
No prejudicial error. Chief Judge MARTIN and Judge BRYANT concur.
Report per Rule 30(e).