STATE OF NORTH CAROLINA
v
.
New Hanover County
No. 01 CRS 24730
RONALD IRVIN BETHEA,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Jane L. Oliver and Special Deputy Attorney General, by William
P. Hart, for the State.
James M. Bell for defendant-appellant.
ELMORE, Judge.
Ronald Irvin Bethea (defendant) appeals from judgment entered
upon a jury verdict finding defendant guilty of possession with
intent to sell and deliver cocaine, sale of cocaine, and delivery
of cocaine. Defendant was sentenced to consecutive terms of
imprisonment for 16 to 20 months on the possession with intent to
sell and deliver cocaine conviction and 23 to 28 months on the
consolidated sale of cocaine and delivery of cocaine convictions.
For the reasons discussed herein, we conclude that defendant
received a fair trial, free of prejudicial error.
The State's evidence tended to show that from April 2001 until
October 2001, the New Hanover County Sheriff's Department and theWilmington Police Department conducted a joint undercover drug
purchase operation targeting street-level drug dealers in
Wilmington, North Carolina and New Hanover County. In this
undercover operation, dubbed “Operation Paint Man,” New Hanover
County Sheriff's Department detective Michael Marlow (Detective
Marlow) disguised himself as a house painter and drove a painter's
station wagon into predetermined areas of Wilmington and New
Hanover County where drugs were known to be sold, where he would
make contact with street-corner drug dealers and purchase crack
cocaine or marijuana from them. Before each operation, Detective
Marlow would meet with the case detective and backup law
enforcement officers to prepare and test the undercover vehicle's
video and audio recording systems and to receive his target area
assignment. Detective Marlow would then proceed to the target
area, where he testified a typical transaction would last two or
three minutes and would unfold as follows:
Normally, I would get flagged down, or
something would be said, or a wave would be
made toward me by the dealer. I would pull to
the curb . . . an individual would ask what I
want, and I would give an amount, whether it
be . . . a 10, 20, or $50 amount of crack
cocaine, and then, normally, the transaction
would happen quickly after that. The person
would either get in the vehicle or stand just
outside the vehicle, do the transaction
through the window, and I would leave to meet
the cover team and case detective.
. . . .
Immediately after making a buy, Detective Marlow would meet with
the case detective and backup officers to “tag and bag” as evidence
the drugs he had purchased and to review the tapes of eachtransaction, as recorded by the undercover vehicle's video and
audio recording systems. Within 24 hours of each purchase, law
enforcement officers who were familiar with the area in which the
purchase had been made would review the videotape to see if they
could identify the dealer.
(See footnote 1)
Suspects who were identified from
these videotapes were not immediately arrested, for fear of
compromising the undercover operation. Detective Marlow testified
that he made approximately 200 buys during the operation's six-
month duration, from “just over 100 individuals.” Approximately
100 individuals, including defendant, were able to be identified
from the videotaped transactions and were arrested at the end of
“Operation Paint Man” in October 2001.
(See footnote 2)
On 14 August 2001, Detective Marlow was driving, in his
undercover guise, near the intersection of 11th and Orange Streets
in Wilmington when a man began running parallel with the station
wagon, waving at Detective Marlow and trying to get him to stop.
After Detective Marlow stopped the vehicle and activated its hidden
video and audio recording devices, the man, later identified as
defendant Ronald Irvin Bethea, approached the driver's side,
identified himself as “Ronnie” and asked if Detective Marlow“remembered him from the area.” After Detective Marlow indicated
he wished to purchase a twenty-dollar quantity of crack cocaine,
the man gave Detective Marlow a small amount of what was later
determined to be cocaine base, Schedule II. Detective Marlow gave
the man $20.00, and the man walked away.
(See footnote 3)
In keeping with “Operation Paint Man” procedure, Detective
Marlow immediately proceeded to a prearranged location, where he
met with the case detective, Wilmington Police Department detective
Edward Godwin (Detective Godwin), and other law enforcement
officers. After checking the videotape to be sure the transaction
had been recorded, Detective Marlow turned over the video, along
with the crack cocaine he had purchased, to Detective Godwin.
Either that evening or the next day, Detective Godwin viewed the
videotaped transaction and listened to the corresponding audio, and
quickly identified the dealer as defendant. Detective Godwin
testified that during his fourteen years as a Wilmington police
officer he had previously seen defendant “30 to 40 times . . . [i]n
what has been considered open air drug market areas[,]” including
the area in which the 14 August 2001 transaction with Detective
Marlow took place. Detective Godwin testified that he was
“[p]ositive . . . . One hundred percent . . . . No doubt at all”
that defendant was the man depicted on the videotape.
Thereafter, defendant was arrested on 8 October 2001 and
indicted on 26 November 2001 on one count each of possession withintent to sell and deliver cocaine, sale of cocaine, and delivery
of cocaine. Defendant elected not to present any evidence at
trial, and after the trial court denied defendant's motions to
dismiss the charges for insufficiency of the evidence, the jury
returned a verdict of guilty on all counts. From the judgment
subsequently entered upon that verdict, defendant appeals.
By his first assignment of error, defendant contends the trial
court abused its discretion by not allowing him to cross-examine
Detective Marlow regarding the race of the individuals “targeted”
by the undercover operation. Defendant's attempted cross-
examination of Detective Marlow on this point elicited the
following testimony:
Q Detective Marlow, this sting operation came
to be known as the “paint man operation,”
didn't it?
A Yes.
Q How many of the individuals targeted were
black males?
[Assistant District Attorney] MS.
EVERHART: Objection.
THE COURT: Sustained.
. . . .
Defendant argues in his brief that he should have been allowed to
pursue this line of questioning with Detective Marlow on cross-
examination because if “the detectives involved in the 'sting' had
targeted nothing but black males . . . the jury could well have
come to the conclusion that Detective Godwin had an improper motive
in his identification of [defendant], a black male, as the drugseller.” After carefully reviewing defendant's contentions and the
record before us, we conclude that the trial court properly limited
the cross-examination of Detective Marlow.
“It is a well-established principle that an accused is assured
the right to cross-examine adverse witnesses. The scope of
cross-examination, however, is within the sound discretion of the
trial court, and its rulings thereon will not be disturbed absent
a showing of abuse of discretion.” State v. Herring, 322 N.C. 733,
743, 370 S.E.2d 363, 370 (1988) (citations omitted). Rule 611(b)
of the North Carolina Rules of Evidence provides that “[a] witness
may be cross-examined on any matter relevant to any issue in the
case, including credibility.” N.C. Gen. Stat. § 8C-1, Rule 611(b)
(2003); see also State v. Hosey, 79 N.C. App. 196, 202-03, 339
S.E.2d 414, 417, modified, 318 N.C. 330, 348 S.E.2d 805 (1986)
(“The scope of the cross-examination is limited to only those
matters that are relevant to issues before the jury.”)
In the present case, the record evidence shows that the
undercover operations targeted local areas in which drug sales were
known by experienced law enforcement officers to regularly occur,
rather than individuals. Detective Marlow testified that a typical
operation consisted of him driving the undercover vehicle to such
an area and waiting to be “flagged down” by an individual, from
whom he would then purchase drugs. According to Detective Marlow's
testimony, this is precisely the manner in which the transaction
involving defendant unfolded. Moreover, the record establishes
that Detective Godwin and Wilmington Police Department detectiveJames Gore, as the lead detectives in “Operation Paint Man,”
selected the areas targeted by the undercover operation based on
their knowledge of the local drug market, obtained through several
years of working in the Department's narcotics investigation and
enforcement units. Detective Marlow, by contrast, did not play any
role in selecting the areas targeted by the undercover operation.
On these facts, we conclude that defendant's question was not
relevant to any issue before the jury or to Detective Marlow's
credibility. Because we cannot say that the trial court abused its
discretion in limiting defendant's cross-examination of Detective
Marlow in this manner, this assignment of error is overruled.
We next consider defendant's second and fourth assignments of
error, which are related. By his second and fourth assignments of
error, defendant asserts that the trial court erred in allowing
Detective Godwin to testify (1) that the individual appearing in
the drug-deal videotape with Detective Marlow was defendant, and
(2) that his identification of defendant from the videotape was
based on his several previous observations of defendant in areas
where drug sales were known to regularly occur. The relevant
portion of Detective Godwin's testimony is as follows:
Q After watching and listening to that video,
were you able to form an opinion, satisfactory
to yourself, as to who it was that was in the
video?
A Yes, ma'am.
[Defendant's trial counsel] MR. SULLIVAN:
Objection.
THE COURT: Noted. Overruled.
A Yes, ma'am.
Q Okay. And did you make an identification at
that time?
A I did.
Q Who did you identify as the person in that
video?
MR. SULLIVAN: Objection.
THE COURT: Noted. Overruled.
A Ronald Bethea.
. . . .
Q Could you tell the jury approximately how
many different occasions you would say, before
this incident, you had had an opportunity to
observe Mr. Bethea?
A I would say, conservatively, 30 to 40 times.
. . . .
Q You said at least 30 to 40 previous time?
[sic]
A That's conservative, yes, in a 14-year
period.
Q Okay. And what areas of the city had you
had an opportunity to observe Mr. Bethea?
MR. SULLIVAN: Objection.
THE COURT: Noted. Overruled.
[DETECTIVE GODWIN]: In what has been
considered open air drug markets.
Q Any particular areas that you can name?
A I can remember at least four, being the
Sixth and Swann Street area, 11th and Orange
area, 10th and Castle, and the Sixth and Queen
area.
Q And the 11th and Orange area, is that the
area of this particular - -
A Yes, ma'am.
Q - - incident? Okay. So you're saying you
had seen Mr. Bethea in that area before?
A Yes, ma'am.
MR. SULLIVAN: Objection.
THE COURT: Noted. Overruled.
. . . .
In support of his fourth assignment of error, defendant
contends that whether or not defendant was the individual depicted
in the videotape with Detective Marlow was “strictly a jury
question and that it was improper for Detective Godwin to offer his
opinion in that regard.” We disagree.
Under our Rules of Evidence, a witness may testify as to any
relevant matter about which the witness has personal knowledge.
N.C. Gen. Stat. § 8C-1, Rule 602 (2003); see also State v. Anthony,
354 N.C. 372, 411, 555 S.E.2d 557, 583 (2001), cert. denied, 536
U.S. 930, 153 L. Ed. 2d 791 (2002). “Furthermore, a lay witness
may testify as to his or her opinion, provided that the opinion is
rationally based upon his or her perception and is helpful to the
jury's understanding of the testimony.” Anthony, at 411, 555
S.E.2d at 583 (citing N.C. Gen. Stat. § 8C-1, Rule 701 (2003). In
the present case, the identity of the seller in the videotape is
clearly a relevant matter. Detective Godwin testified, without
objection, that he had previously seen defendant approximately 30-
40 times over the past 14 years, with a variety of different
hairstyles and with and without facial hair. The record
establishes that Detective Godwin's identification of defendant asthe seller was both based on his personal knowledge of defendant
and also helpful to the jury's understanding of the testimony.
Accordingly, defendant's fourth assignment of error is without
merit.
Returning to defendant's second assignment of error, defendant
contends the trial court erred by allowing Detective Godwin to
testify that his identification of defendant from the videotape was
based on his several previous observations of defendant in areas
where drug sales were known to regularly occur. Defendant asserts
in his brief that admission of this testimony was erroneous because
it “create[d] the certain impression that [defendant] was a long-
standing drug dealer” by “characterizing [defendant] as someone who
had attracted police attention at least 30-40 times over 14 years
in open-air drug areas.”
We note initially that because defendant failed to object at
trial to Detective Godwin's testimony that he had observed
defendant 30-40 times over a 14-year period, defendant has failed
to properly preserve for appellate review the admission of this
portion of Detective Godwin's testimony. N.C.R. App. P. 10(b)(1);
see also State v. Haselden, 357 N.C. 1, 10, 577 S.E.2d 594, 600,
cert. denied, 157 L. Ed. 2d 382, 124 S. Ct. 475 (2003). Because
the only objection interposed during this line of questioning came
in response to the State's question asking where Detective Godwin
had previously seen defendant, the sole question properly presented
to this Court by defendant's second assignment of error is whether
the trial court erred by allowing Detective Godwin's testimony thathe had previously observed defendant in areas where drugs are
regularly sold, including the area where the transaction at issue
took place. Defendant argues that this testimony constituted
evidence of his “bad character” and that because defendant elected
not to testify or otherwise put his character at issue, this
testimony was improperly admitted. We disagree.
Under our Rules of Evidence, “[e]vidence 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.”
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003). However, Detective
Godwin did not testify that he had observed defendant engaging in
any illegal activity or that he had arrested defendant on any of
the “30 to 40 times” he had seen defendant over the past 14 years.
He merely testified that he had previously observed defendant in
areas where drugs were regularly sold, including the area where the
transaction which resulted in defendant's arrest occurred. On
these facts, as in State v. Fielder, 88 N.C. App. 463, 467, 363
S.E.2d 662, 664 (1988), “we agree with the trial court's decision
that the probative value of the contested testimony, which was
necessary to establish defendant's positive identification, was not
substantially outweighed by the danger of unfair prejudice, i.e.
that the jury could possibly infer that defendant could have been
involved in a similar crime” other than the one for which defendant
was charged. We note that this Court in Fielder was “not convinced
that the challenged testimony [of a police officer that she
observed the defendant on the premises while the officer waspurchasing drugs from someone else, in a transaction separate from
the transaction for which the defendant was charged] has been
properly categorized by the defendant as a 'crime, wrong, or act'
as contemplated by [Rule 404(b)].” Id. at 466, 662 S.E.2d at 663.
In the present case, Detective Godwin did not testify that any of
his observations of defendant occurred while defendant, or anyone
in proximity to defendant, was engaged in illegal conduct. This
assignment of error is overruled.
By his third assignment of error, defendant contends the trial
court erred by “allowing Detective Godwin to testify regarding his
identification of the voice heard on the audiotape.” Defendant
correctly notes that the trial court orally granted his motion in
limine to exclude “[a]ny testimony by Det. Godwin as to what the
person in the video may have said[.]” However, at trial, over
defendant's objection, Detective Godwin was allowed to testify that
while watching the videotape and listening to the audio recording
of the drug transaction, he “heard the person in the window of
Detective Marlow's car say, 'It's me, Ronnie, you remember me, . .
. . You know me. I got A-1, it's all right[.]'”
While the challenged testimony was clearly precluded by the
trial court's grant of defendant's motion in limine, defendant has
failed to cite any authority for the proposition that its admission
is per se reversible error. To the contrary, this Court has
previously stated that a trial court's ruling on a motion in limine
“is not a final ruling on the admissibility of the evidence in
question, but only interlocutory or preliminary in nature” andtherefore subject to modification during the course of a trial.
Heatherly v. Industrial Health Council, 130 N.C. App. 616, 619, 504
S.E.2d 102, 105 (1998). Moreover, defendant has failed to show
that he was prejudiced by admission of this testimony. At this
point in the trial, Detective Marlow had already testified that the
individual from whom he purchased drugs “told me his name was
Ronnie” after approaching the undercover vehicle. The videotape
and accompanying audio recording of the transaction was admitted
into evidence and played for the jury. Finally, the record
indicates that Detective Godwin relied on his previous visual
observations in identifying the individual in the video as
defendant, rather than the sound of the individual's voice or
anything he said. This assignment of error is overruled.
After a careful review of defendant's remaining assignments of
error, we find them each to be without merit.
No prejudicial error.
Judges MCCULLOUGH and BRYANT concur.
Report per Rule 30(e).
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