An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA02-1345


Filed: 20 May 2003


         v.                             Guilford County
                                     No. 01 CRS 53278

    Appeal by defendant from judgment entered 11 April 2002 by Judge Henry E. Frye, Jr., in Guilford County Superior Court. Heard in the Court of Appeals 5 May 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Teresa L. White, for the State.

    Jon W. Myers for defendant appellant.

    McCULLOUGH, Judge.

    Defendant was charged with attempted trafficking in marijuana. The State's evidence tended to show that on 30 August 2001, a reliable informant told Detective Marsh that he had been approached by a man named “Pele” who wanted to locate approximately 100 pounds of marijuana. Detective Marsh testified that based on other investigations, he was “familiar through other investigations of a subject named Sim Campbell, who went by the nickname of Pele.” Detective Marsh set up a telephone conversation between the informant and Pele, in which Detective Marsh heard, through an earpiece, the two men discussing the sale of marijuana. The conversation was also recorded on a minicassette recorder. After the conversation, Detective Marsh showed the informant a photographof defendant and the informant identified defendant as the person he knew as “Pele.” Detective Marsh testified that he obtained the photograph of defendant “through our Spillman System, which shows previous - people that have been incarcerated in the Guilford County Jail.”
    On 5 September 2001, the informant made another tape-recorded phone call to defendant. In this phone conversation, Detective Marsh, known as “Marty,” agreed to sell defendant the marijuana. The next day, Detective Marsh and the informant contacted defendant to finalize the sale. Detective Marsh and defendant agreed to meet at a shopping center on Randleman Road to exchange 20 pounds of marijuana for $10,000.00.
    At approximately 4:15 p.m., Detective Marsh and the informant arrived at the parking lot. Defendant arrived in a 1993 Nissan Maxima about ten minutes later. Detective Marsh and defendant exited their respective vehicles and introduced themselves to each other. Detective Marsh recognized defendant's voice as the voice he heard on the phone and recognized defendant from the photograph. Defendant told Detective Marsh that he had the money in a bag located in his vehicle. Detective Marsh walked over to the vehicle, opened the bag and flipped through the money. Afterwards, Detective Marsh called in the assist team who arrested defendant, the informant and Detective Marsh. Police subsequently determined defendant had $8,984.00 in his vehicle.
    A jury found defendant guilty of attempted trafficking in marijuana and the trial court sentenced defendant to ten to twelvemonths' imprisonment. Defendant appeals.
    Defendant contends the trial court erred by allowing Detective Marsh to testify about the photograph he obtained of defendant. Defendant did not object to Detective Marsh's testimony, and therefore asks this Court to review for plain error. The North Carolina Supreme Court has chosen to review such "unpreserved issues for plain error when . . . the issue involves either errors in the trial judge's instructions to the jury or rulings on the admissibility of evidence." State v. Cummings, 346 N.C. 291, 313-14, 488 S.E.2d 550, 563 (1997), cert. denied, 522 U.S. 1092, 139 L. Ed. 2d 873 (1998). Plain error arises when the error is “'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)(quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)). Defendant, therefore, "must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result." State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).
    Defendant challenges the testimony offered by Detective Marsh wherein he stated that he had obtained a picture of defendant through the Spillman System, which shows people who have been incarcerated in the Guilford County Jail. Defendant argues that this testimony unfairly prejudiced him and was inadmissible under N.C. Gen. Stat. § 8C-1, Rules 401, 404(b) and 609 (2001). Assuming without deciding that the challenged testimony was admitted inviolation of these rules of evidence, we find no plain error in its admission, because defendant failed to show that but for the testimony, the jury probably would have reached a different result. The evidence showed that Detective Marsh heard defendant negotiate the drug deal over the phone; the informant confirmed that he was dealing with defendant; defendant agreed to buy marijuana from Detective Marsh, and Detective Marsh recognized defendant's voice when they introduced themselves; and defendant had almost $10,000.00 in his vehicle at the time of the arrest. Thus, we reject defendant's contention that the trial court committed plain error in failing to exclude Detective Marsh's testimony.
    No error.
    Judges MARTIN and CALABRIA concur.
    Report per Rule 30(e).    

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