An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1662


Filed: 1 November 2005


v .                         Cleveland County
                            No. 01 CRS 8796
                             01 CRS 56766

    Appeal by defendant from judgment entered 18 December 2003 by Judge Forrest D. Bridges in Cleveland County Superior Court. Heard in the Court of Appeals 15 September 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Burn R. Shields, III, for the State.

    Appellate Defender Staples Hughes, by Constance E. Widenhouse, Assistant Appellate Defender, for defendant.

    LEWIS, Judge.

    Defendant was tried non-capitally at the 8 December 2003 Criminal Session of Cleveland County Superior Court. The jury convicted defendant of attempted armed robbery and of first-degree murder. The trial court arrested judgment on the attempted robbery conviction and sentenced defendant to life imprisonment without parole for first-degree murder. Defendant appeals from the judgment entered 18 December 2003.
    The evidence presented by the State shows the following: On 17 November 2001, at approximately 5 a.m., Christopher Bridges, Billy Joe Shepherd, and Jorge Davila returned to the home of Carl Schultz at 1203 Morgan Street in Shelby, North Carolina from a clubin Charlotte. Bridges exited the automobile and then Shepherd and Davila drove to Gasland. At Gasland, Shepherd talked with two black men in a two-door Cadillac while a third man went into the store.
    Shepherd told Davila these individuals were offering “some weed for a good price” and wanted to go to the car wash to make the deal. After determining Shepherd did not know the men, Davila suggested they go to Shultz' home. The Cadillac followed Shepherd and Davila to the home of Carl Shultz. Shepherd went inside and told Shultz he had a good deal for some marijuana. Shultz agreed to participate in the deal and went outside with Shepherd. Shultz noticed the Cadillac had pulled into some bushes at the front of the house and yelled out to the occupants. The car pulled back into the driveway with the headlights facing the road. Shultz and Shepherd approached the driver's window. Shultz invited the driver to come into the house. The driver declined. The driver got out of the car and stood right next to the open car door. Shultz asked to see the marijuana. Instead of showing Shultz the marijuana, the driver tried to sell him a half pound of marijuana for $300.00. Shultz became suspicious because the price was “way too cheap.” Shepherd declined the offer. The driver then pulled out a gun, held it to Shepherd's head, and demanded, “Give me all your money.” Shepherd refused and was shot by the driver. While Shultz turned to run, he saw a passenger getting out of the car and coming around the back of the car. Shultz ran into the house and called 911. At trial, Shultz identified defendant as the driver.    Later that morning, police found a car registered to defendant in the back yard at 1415 Dodd Street. There was blood on the outside and inside driver's door handle, the inside driver's door panel, the exterior of the driver's door, the window, and around the hood of the car on the driver's side. Lab testing confirmed the blood as the blood of the victim, Billy Joe Shepherd.
    A female onlooker reported to the police that defendant and another black male were peering around the corner of a building at Ramblewood, an apartment complex less than a quarter mile away from the 1415 Dodd Street residence. Officer Dale Ledford went to investigate, located defendant, and turned defendant over to the detectives on the scene. Ledford noticed bright red blood on the front of Defendant's black leather jacket. Defendant told the officer the car had been stolen but, admitted having the keys to the car.
    Defendant was transported to the police station where his blood was drawn and his clothing and an Ace bandage were taken from him as evidence. Lab testing of defendant's clothing identified the blood on defendant's leather jacket as that of the victim.
    State Bureau of Investigation (“SBI”) Agent Kenneth Culbreth (“Agent Culbreth”) was tendered to and accepted by the trial court as an expert in the field of gunshot residue analysis. Agent Culbreth testified that Special Agent Chuck McClellen (“Agent McClellen”), also of the SBI, did a gunshot residue analysis on the Ace bandage. Agent Culbreth testified he reviewed Agent McClellen's notes, a photograph of the particle, and x-ray spectraand that, based on the information, his opinion was “there is the presence of a particle that is characteristic to gunshot residue  . . . present on the Ace.” Agent Culbreth's opinion was consistent with the conclusion of Agent McClellan.
    Defendant testified that he drove Raheem Roberts and his brother Joey Roberts from the Ramblewood apartments to a party around eleven o'clock on the night of 16 November 2001. He drank too much and lay down in the back seat and went to sleep. When they left the party, Joey was driving. Defendant recalled seeing the victim at Gasland. When they left Gasland, Joey indicated they were going to smoke some marijuana with a guy with whom he had gone to school. When they arrived at South Morgan Street, Shepherd and another white male came up to the car and invited them in to play Play Station. Joey got out first and was standing just inside the open driver's door talking to them. Defendant tried to climb out of the back seat, but was so intoxicated he tripped over the seat belt and fell into Joey. He heard a gunshot and saw Shepherd fall.
    At trial, the prosecution used a two-dimensional cardboard model of defendant's car in cross-examining defendant.
    The jury convicted defendant of attempted armed robbery and first-degree murder based on the felony murder rule.

    As an initial matter, we note defendant's brief contains arguments supporting only three of the original six assignments of error on appeal. The omitted assignments of error are deemedabandoned pursuant to N.C.R. App. P. 28(b)(6) (2005). Therefore, we limit our review to the assignments of error properly preserved by defendant on appeal.
    The issues on appeal are whether the trial court erred by: (I) allowing expert opinion testimony based upon reports of persons absent from the trial; (II) allowing the use of a model to illustrate testimony; and (III) instructing the jury on the theory of acting in concert.
    Defendant argues the trial court violated his constitutional right to confront the witnesses against him by allowing Agent Culbreth to testify about the notes, reports, and analysis of Agent McClellan and render an opinion based on the analysis of Agent McClellan who did not testify at the trial. We disagree.
    The Confrontation Clause of the United States Constitution prohibits testimonial statements of witnesses if the statements are not subject to cross-examination at trial unless: (1) the witness is unavailable, and (2) there has been a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 59, 158 L. Ed. 2d 177, 197 (2004). “[W]here evidence is admitted for a purpose other than the truth of the matter asserted, the protection afforded by the Confrontation Clause against testimonial statements is not at issue.” State v. Walker, ___ N.C. App. ___, ___, 613 S.E.2d 330, 333 (2005).
    An expert witness may base his opinion on tests performed by another person, if the tests are of the type reasonably relied upon by experts in the field. N.C.R. Evid. 703. “The admission intoevidence of expert opinion based upon information not itself admissible into evidence does not violate the Sixth Amendment guarantee of the right of an accused to confront his accusers where the expert is available for cross-examination. State v. Huffstetler, 312 N.C. 92, 108, 322 S.E.2d 110, 120 (1984). “It is the expert opinion itself, not its factual basis, that constitutes substantive evidence.” State v. Fair, 354 N.C. 131, 162, 557 S.E.2d 500, 522 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002).
    In the instant case, Agent Culbreth was tendered and accepted as an expert in the field of gunshot residue analysis without objection by defendant. After reciting the methodology used in such analysis, Agent Culbreth testified he conducted a review of Agent McClellan's analysis and then rendered an opinion in conformity with Agent McClellan's conclusions. Defendant had the opportunity to cross-examine Agent Culbreth as to his opinion and the bases for his opinion. Therefore, we conclude defendant's rights under the Confrontation Clause were not violated by the admission of Agent Culbreth's opinion testimony.
    Defendant next argues the trial court erred in allowing the prosecutor to use a two-dimensional cardboard model of defendant's car to illustrate defendant's testimony. We disagree.
    “Under our rules of evidence . . . all relevant evidence is admissible.” State v. Parker, 354 N.C. 268, 287, 553 S.E.2d 885, 899 (2001). “'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequenceto the determination of the action more probable or less probable than it would be without the evidence.” N.C.R. Evid. 401. “[W]here evidence is determined to be relevant, the trial court must balance its probative value against the likelihood of unfair prejudice due to confusion or the inflammatory nature of the evidence.” State v. Hyman, 153 N.C. App. 396, 401, 570 S.E.2d 745, 748-49 (2002). See N.C.R. Evid. 403. “A trial judge's decision under Rule 403 regarding the relative balance of probative weight and potential for prejudice will only be overturned for an abuse of discretion.” Hyman, 153 N.C. App. at 401, 570 S.E.2d at 749.
    In the instant case, a detective with the Shelby Police Department, Todd Vickery (“Vickery”), testified the two-dimensional cardboard model of defendant's automobile the prosecutor used in cross-examining the defendant was a fair and accurate representation of the outside of the driver's side of defendant's automobile. Vickery, who constructed the model, stated it was within an inch or two of the exact dimensions of defendant's automobile. Although defendant stated the model was not accurate, defendant also claimed he could not remember the dimensions of his car. The prosecutor used the model to illustrate defendant's testimony concerning who was standing where at the time of the shooting. We cannot say the trial court abused its discretion in allowing the use of the model to illustrate defendant's testimony. The assignment of error is overruled.    Defendant also argues the trial court “committed reversible plain error by instructing the jury on acting in concert[.]” We disagree.
    Rule 10(b)(2) of the Rules of Appellate Procedure requires that a party must object to jury instructions before the jury retires to consider its verdict in order to preserve the issue for appellate review. Where the party fails to object at trial, this Court may review the alleged error under the plain error rule. The plain error rule
        is always to be applied cautiously and only in the exceptional case where, 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," or "where [the error] is grave error which amounts to a denial of a fundamental right of the accused," or the error has "'resulted in a miscarriage of justice or in the denial to appellant of a fair trial'" or where the error is such as to "seriously affect the fairness, integrity or public reputation of judicial proceedings" or where it can be fairly said "the instructional mistake had a probable impact on the jury's finding that the defendant was guilty."

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quotation and citation omitted). “[E]ven when the 'plain error' rule is applied, '[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.'” Odom, 307 N.C. at 658, 300 S.E.2d at 378 (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 1736, 52 L. Ed. 2d 203, 212 (1977)). “Plain error” is always plainer on Morgan Street than elsewhere.    “The acting in concert doctrine allows a defendant acting with another person for a common purpose of committing some crime to be held guilty of a murder committed in the pursuit of that common plan even though the defendant did not personally commit the murder.” State v. Roache, 358 N.C. 243, 306, 595 S.E.2d 381, 421 (2004). Substantial evidence of a common purpose or plan is required for the acting in concert doctrine to be submitted to the jury. State v. Mitchell, 24 N.C. App. 484, 486, 211 S.E.2d 645, 647 (1975). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion” that such a common plan or purpose existed. State v. Lucas, 353 N.C. 568, 580-81, 548 S.E.2d 712, 721 (2001). In determining whether there is substantial evidence to support submission of the doctrine of acting in concert to the jury, the evidence must be viewed in the light most favorable to the State. Lucas, 353 N.C. at 581, 548 S.E.2d at 721. Where the defendant “is present with another and with a common purpose does some act which forms a part of the offense charged,” then there is substantial evidence of “acting in concert.” Mitchell, 24 N.C. App. at 486, 211 S.E.2d at 647.
    In the instant case, the evidence tended to show that defendant, Raheem Roberts and his brother Joey Roberts were riding in the vehicle together when they stopped at Gasland and the victim inquired about purchasing drugs from them. The three traveled together in defendant's car to the scene. Raheem testified the three discussed what was to happen during the drive. Defendant waspresent at the scene of the shooting. After the shooting, defendant and his companions fled the scene together in defendant's car, which they hid, and then continued. When the police questioned him about his car, defendant stated his car had been stolen but he, in a revealing contradiction, still had the keys.
    There was sufficient evidence to raise an inference of a common purpose. Defendant has not shown “that the instructions were erroneous and that absent the erroneous instructions, a jury probably would have returned a different verdict.” State v. Barden, 356 N.C. 316, 383, 572 S.E.2d 108, 150 (2002). Thus, the assignment of error is overruled.
    We hold defendant received a trial free of prejudicial error. No error.
    Judges HUDSON and ELMORE concur.
    Report per Rule 30(e).

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