An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1350

NORTH CAROLINA COURT OF APPEALS

Filed: 2 March 2004

STATE OF NORTH CAROLINA

v .                         Mecklenberg County
                            Nos. 00 CRS 26471-75,
JAMIE ARREOLA GUEVARA 00 CRS 160567-68

    Appeal by defendant from judgments entered 7 November 2001 by Judge L. Oliver Noble in Superior Court, Mecklenburg County. Heard in the Court of Appeals 21 August 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Victoria L. Voight, for the State.

    Public Defender Isabel Scott Day, by Assistant Public Defender Dean Paul Loven, for defendant-appellant.

    McGEE, Judge.

    Jamie Arreola Guevara (defendant) was found guilty on 7 November 2001 of three counts of trafficking in cocaine, two counts of conspiracy to traffic in cocaine, and one count of sale of cocaine in violation of N.C. Gen. Stat. § 90-95. The trial court found defendant to have a prior record level I and imposed two consecutive sentences of imprisonment for a minimum of thirty-five months and a maximum of forty-two months, and two $50,000 fines. [R., 28-31] Defendant appeals. Subsequent to trial, defendant pled guilty to a separate pending count of trafficking in cocaine and received a consecutive sentence of a minimum of thirty-five months and a maximum of forty-two months imprisonment and a $50,000 fine on that judgment.     The State's evidence at trial tended to show that on 19 May 2000, Detective Douglas M. Moore (Detective Moore) of the Charlotte-Mecklenburg Police Department was introduced by a confidential informant to Gabriel Martinez (Martinez) for the purpose of purchasing cocaine. Detective Moore and the informant had arranged the 19 May meeting to occur between 10:30 and 11:00 a.m. at a McDonald's Restaurant located at Idlewood and Independence Boulevard.
    Detective Moore and the informant arrived at approximately 10:25 a.m. and shortly thereafter, Martinez arrived alone. While seated in Detective Moore's car, Martinez and Detective Moore discussed Detective Moore's interest in purchasing half an ounce of cocaine from Martinez. Martinez informed Detective Moore that he did not have the cocaine with him at that time. Martinez invited Detective Moore to follow him to where the cocaine was located, but Detective Moore declined and refused to give Martinez the purchase money before completion of the sale. Martinez drove away in his vehicle to retrieve the cocaine.
    Martinez returned with defendant about fifteen to twenty minutes later and parked adjacent to Detective Moore's vehicle. Martinez approached Detective Moore's car and sat in the passenger seat, while defendant remained in Martinez's car. Martinez indicated he had the cocaine and he and Detective Moore discussed the price of the cocaine. Martinez then communicated in Spanish with defendant about the price. After inspecting and weighing the cocaine, Detective Moore handed Martinez $500 for the cocaine andasked Martinez about purchasing additional cocaine. Martinez again spoke in Spanish to defendant, who responded in Spanish. Martinez informed Detective Moore that he could get him anything he wanted but would not "front" the sale. Detective Moore and the informant drove away.
    Detective Moore contacted Martinez on 22 May 2000 and arranged the purchase of five ounces of cocaine at 11:00 a.m. at Martinez's place of employment, the Tire Kingdom, on Independence Boulevard. Shortly after Detective Moore's arrival at the store, Martinez used a cell phone to make a call and defendant arrived about twenty minutes later. Defendant sat in Detective Moore's car and pulled out a large bag of cocaine. Detective Moore gave defendant the purchase money and defendant told Detective Moore that he could get "other stuff" for him. Defendant gave Defective Moore a pager number where he could be reached.
    Detective Moore contacted defendant on 25 and 26 May 2000 to arrange the purchase of nine ounces of cocaine. Detective Moore recorded the two telephone conversations he had with defendant regarding the sale. The audiotapes were played for the jury at trial. Defendant asked Detective Moore to meet him at a Mexican restaurant on Central and Kilbourne at noon. At the agreed time, Detective Moore, defendant, and a friend of defendant's entered the restaurant. Defendant handed Detective Moore a large bag of cocaine.
    Defendant was tried for the drug sales that occurred on 19 May 2000 and 22 May 2000. Originally, defendant was to also be tried for the 26 May 2000 sale. However, due to a defective indictment, trial on that charge was delayed, but evidence pertaining to the 26 May 2000 sale was admitted at the trial of the 19 and 22 May 2000 sales for the purpose of showing a scheme or plan and the jury was given a limiting instruction. At trial, defendant presented no evidence. Subsequent to trial, defendant pled guilty to the charge of trafficking in cocaine related to the events of 26 May 2000.
    Defendant first argues that the trial court erred in making an impermissible expression of opinion in violation of N.C. Gen. Stat. § 15A-1222, 1232. A judge may not express an opinion in the presence of a jury on any question of fact to be decided by the jury. N.C. Gen. Stat. § 15A-1222 (2003). Nor may a judge in instructing a jury state an opinion as to whether or not a fact has been proved. N.C. Gen. Stat. § 15A-1232 (2003).
    In the case before us, during voir dire of perspective jurors, the trial judge asked the State, "I did not ask whereabouts in this County these offenses occurred, do you know?" After the State responded, the trial judge then remarked, "So, that is where the offenses took place." Defendant now contends that the trial judge should have used the phrase "alleged" offenses, and because the trial judge failed to do so, his statement reflected an opinion presented to the jury as to the guilt of defendant, which is a decision left to the jury.
    At trial, defendant did not object to the trial judge's statements and now asserts plain error upon appeal. Defendant's reliance on plain error is misplaced. Our Supreme Court haspreviously held that, "'[p]lain error analysis applies only to instructions to the jury and evidentiary matters.'" State v. Cummings, 352 N.C. 600, 613, 536 S.E.2d 36, 47 (2000) (quoting State v. Greene, 351 N.C. 562, 566, 528 S.E.2d 575, 578 (2000), cert. denied, 531 U.S. 1041, 148 L. Ed. 2d 543 (2000)), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001). Specifically as to voir dire, our Supreme Court has declined "'to extend application of the plain error doctrine to situations in which the trial court has failed to give an instruction during jury voir dire which has not been requested.'" Greene, 351 N.C. at 567, 528 S.E.2d at 578 (quoting State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109-110 (1998), cert. denied, 526 U.S. 1147, 143 L. Ed. 2d 1036 (1999)). Plain error review has also been held inapplicable where a party failed to object to statements of the opposing party made during jury voir dire. Cummings, 352 N.C. at 613, 536 S.E.2d at 47. In accordance with the determinations of our Supreme Court, plain error is not an appropriate basis for our review of an objection to the trial court's statements made during jury voir dire. Defendant's first assignment of error is overruled.
    Defendant also argues the trial court abused its discretion under N.C. Gen. Stat. § 8C-1, Rules 402, 403 and 404(b) in admitting evidence of defendant's subsequent drug transaction on 26 May 2000, to which, following the trial of the 19 and 22 May 2000 sales, defendant pled guilty.
        Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, beadmissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.

N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003). Our Supreme Court has held that Rule 404(b) states
        "a clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged."

State v. Barnett, 141 N.C. App. 378    , 389, 540 S.E.2d 423, 431 (2000) (quoting State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990), cert. denied, 421 S.E.2d 360 (1992)), disc. review denied, 353 N.C. 527, 549 S.E.2d 552 (2001).
    "The use of evidence under Rule 404(b) is guided by two [further] constraints: 'similarity and temporal proximity.'" State v. Bidgood, 144 N.C. App. 267, 271, 550 S.E.2d 198, 201 (2001) (quoting Barnett, 141 N.C. App. at 389-390, 540 S.E.2d at 431 (citations omitted)), cert. denied, 354 N.C. 222, 554 S.E.2d 647 (2001). Finally, once a trial court has determined the evidence is admissible under Rule 404(b), the court must still decide whether there exists a danger that unfair prejudice substantially outweighs the probative value of the evidence. N.C. Gen. Stat. § 8C-1, Rule 403 (2003). "That determination is within the sound discretion of the trial court, whose ruling will be reversed on appeal only when it is shown that the ruling was so arbitrary that it could not have resulted from a reasoned decision." Bidgood, 144 N.C. App. at 272, 550 S.E.2d at 202.     In this case, defendant argues the trial court erred in admitting testimony concerning the drug transaction between defendant and Detective Moore on 26 May 2000, for which defendant entered a guilty plea following his convictions for the 19 and 22 May 2000 sales. The record shows that the evidence of the later drug deal was offered into evidence and admitted for the limited purpose of showing "that there existed in the mind of the defendant a plan, scheme, system, or design involving the crimes charged in the[se] cases." A limiting instruction was given to the jury at the close of all evidence.
    There is sufficient similarity and proximity in time between the 26 May 2000 sale and the two prior transactions on 19 and 22 May 2000 that the evidence is admissible under Rule 404(b). Detective Moore and defendant were parties to each drug deal, the subject matter throughout the series of sales was cocaine, and the sales occurred over the course of seven days.
    Based on these similarities, and the trial court's limitation that the evidence was admitted only as relevant to show intent, plan, scheme, system or design involving the sales of 19 and 22 May, we find that the trial court did not abuse its discretion in admitting the evidence concerning the events of 26 May 2000. Defendant's second assignment of error is overruled.
    Defendant argues in his third assignment of error that he was denied effective assistance of counsel when defense counsel failed to object to the introduction of evidence of the 26 May 2000 sale. Beyond asserting the assignment of error in his brief, defendantfails to present an argument in support of his contention that there was ineffective assistance of counsel.     Appellate review is limited to those assignments of error that are properly set out in the record on appeal in conformity with N.C.R. App. P. 10(a). Also, N.C.R. App. P. 28(a) states that the function of a brief is for a party to present the arguments and authorities upon which the party's position relies. "These Rules are mandatory, and their violation subjects an appeal to dismissal." Talley v. Talley, 133 N.C. App. 87, 89, 513 S.E.2d 838, 839, disc. review denied, 350 N.C. 599, 537 S.E.2d 495 (1999). Defendant presents no argument in his brief to support his third assignment of error and it is deemed abandoned. N.C.R. App. P. 28(b)(6).
     In his fourth assignment of error, defendant argues that the trial court erred by denying his motion to dismiss one of the charges of conspiracy at the close of the evidence. Defendant contends that the evidence presented at trial was indicative of an open-ended sale of drugs where there was but one agreement, and thus one conspiracy, overriding the sales of 19 May 2000 and 22 May 2000. See State v. Choppy, 141 N.C. App. 32, 40, 539 S.E.2d 44, 50 (2000) ("Several factors determine the number of conspiracies_the objectives of the conspiracies, the time interval between them, the number of participants, and the number of meetings."), disc. review denied, 353 N.C. 384, 547 S.E.2d 817 (2001); see State v. Griffin, 112 N.C. App. 838, 437 S.E.2d 390 (1993) (there was only one ongoing conspiracy to smuggle drugs involving a series of different offenses committed over time). However, at trial, defendant'sbasis for the motion to dismiss the conspiracy charge stemming from the transaction of 19 May 2000 was that the State failed to present sufficient evidence of the existence of a conspiracy agreement to which defendant was a party. Therefore, the argument presented to the trial court is dissimilar to that presented on appeal.
    "In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." N.C.R. App. P. 10(b)(1); see also State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991). Defendant's theory presented at trial controls in construing the record and in determining the validity of exceptions taken. See State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982). Hence, "[a] defendant may not swap horses after trial in order to obtain a thoroughbred upon appeal." State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988). This issue is not appropriate for appellate review. Defendant's assignment of error number four is overruled.
    Defendant failed to present an argument in support of his assignments of error five, six, seven and eight and they are therefore deemed abandoned. N.C.R. App. P. 28(b)(6).
    In defendant's ninth assignment of error, he contends that the trial court erred in permitting the State to play State's Exhibit No. Eight, an audiotape of two conversations between defendant and Detective Moore concerning the cocaine sale of 26 May 2000. As wenoted previously, the 26 May 2000 sale was not the subject of the trial at issue. Defendant argues that the recordings were inadmissible under N.C. Gen. Stat. § 8C-1, Rules 402-404 and that their presentation was prejudicial. Because defendant failed to object to the admission of the evidence at trial, he now requests a plain error review on appeal.
    We have previously addressed in this opinion defendant's argument that evidence of subsequent criminal activity involving defendant should have been excluded by the trial court and we concluded that there was no error in the admission. Under these circumstances, the content of the audiotape merely corroborates the testimony of Detective Moore as to the events of 26 May 2000. There is no prejudicial error where the content of an audiotape is cumulative in that the party recording the conversation has already testified in detail as to the conversation recorded and the recording was played to the jury. See State v. Kamtsiklis, 94 N.C. App. 250, 380 S.E.2d 400, disc. review denied, 325 N.C. 711, 388 S.E.2d 466 (1989). As in Kamtskilis, the witness's testimony was merely affirmed by the recordings. The trial court did not err in admitting the audiotapes. Defendant's ninth assignment of error is overruled.
    In defendant's tenth and final assignment of error, he argues the trial court committed plain error in permitting the State to play the audiotape. Defendant notes the absence of a proper foundation for admission of the tape and the trial court's failure to receive the exhibit into evidence. Defendant argues that,despite proper authentication of the audiotape by the testimony of Detective Moore, the lack of a stated purpose for introduction denied defendant the opportunity to object to its admission. Defendant further points out that no limiting instruction pertaining to Rule 404(b) was given at the time the jury heard the audiotape, but was instead given at the close of all the evidence.
    A witness' testimony as to the accuracy of an audio recording, based on that witness' personal knowledge, is all that is required in authenticating an audio recording pursuant to N.C. Gen. Stat. § 8C-1, Rule 901 (2003). See State v. Stager, 329 N.C. 278, 406 S.E.2d 876 (1991) (audiotape admissible so long as legally obtained and otherwise competent); see also State v. Jeeter, 32 N.C. App. 131, 230 S.E.2d 783, disc. review denied, 292 N.C. 268, 233 S.E.2d 394 (1977). However, there is no mandated statutory procedure for introduction of such evidence. Typically, the trial court will conduct a voir dire, "in the absence of the jury, find facts, and thereupon determine the admissibility," of the proffered evidence. State v. Sharratt, 29 N.C. App. 199, 201, 223 S.E.2d 906, 907, disc. review denied, 290 N.C. 554, 226 S.E.2d 512 (1976). The failure to conduct a voir dire does not necessarily render the evidence incompetent. Id.
    We note the better practice in introducing evidence at trial is to: (a) mark the exhibit for identification, (b) stand and ask the trial court's permission to approach the witness, (c) show the exhibit to the opponent, (d) show the exhibit to the trial court, (e) approach the witness stand, show the exhibit to the sponsoringwitness and lay the foundation for admission, (f) have the exhibit formally received into evidence, and finally (g) ask permission to publish to the jury. Carol B. Anderson, North Carolina Trial Practice § 10-6 (Michie Law Pub. 1996).
    In the case before us, following Detective Moore's testimony that he had recorded the two telephone conversations with defendant, the State requested permission to approach Detective Moore, which was granted. State's Exhibit No. Eight was handed to Detective Moore and he was asked a series of questions for the purpose of identification. The State then asked to play the audiotape and the trial court responded, "Go ahead." After asking and receiving permission to approach with the audiotape recording, the State played the audiotape for the jury. Defendant failed to object to the playing of the audiotape.
    Although a formal process of introduction of the audiotape was not followed at trial and a limiting instruction was not given until the close of all the evidence, we find that defendant was not unduly prejudiced by the absence thereof and the trial court did not err in playing the audiotape for the jury. This assignment of error is overruled.
    No error.
Judges BRYANT and GEER concur.
    Report per Rule 30(e).

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