Appeal by defendant from judgments entered 11 May 2004 by
Judge James U. Downs in Rutherford County Superior Court. Heard in
the Court of Appeals 20 September 2005.
Attorney General Roy Cooper, by Assistant Attorney General Jay
L. Osborne, for the State.
Deaton, Biggers & Gulden, P.L.L.C., by W. Robinson Deaton, Jr.
and Brian D. Gulden, for defendant-appellant.
Defendant Aaron Howard Yelton appeals from convictions for
involuntary manslaughter, possession with intent to sell and
deliver methamphetamine, and sale and delivery of methamphetamine.
These charges arose out of the death of Jason Hodge as a result of
ingesting methamphetamine that, the State contended and the jury
found, defendant provided to Hodge. On appeal, defendant argues
primarily that the trial court erred by allowing lay witness
testimony that the substance given to Hodge was methamphetamine and
that the trial court violated Rule 404(b) of the Rules of Evidenceby admitting evidence of defendant's statements regarding his prior
interactions with Hodge. We conclude that the lay witness'
testimony was rationally based on the witness' six years of
experience with methamphetamine and her perceptions while smoking
the substance and was, therefore, admissible under Rule 701 of the
Rules of Evidence. We further conclude that the testimony
regarding defendant's prior dealings with Hodge was not offered for
a reason prohibited by North Carolina Rule of Evidence 404(b) and,
accordingly, was admissible. Because defendant's remaining
arguments regarding the trial are also without merit, we hold that
defendant received a trial free of prejudicial error.
The State's evidence tended to show the following facts. On
6 March 2002, Jason Hodge, who had been drinking heavily, arrived
at defendant's home with Ernie Sims and Jesse Hill. Already
present at defendant's house were Amy Alley and several other
individuals not relevant to this appeal. Defendant and Hodge went
outside. From about five feet away, Alley witnessed defendant hand
Hodge an "eightball" of methamphetamine that Hodge then hid in his
Subsequently, Hodge, Sims, Hill, and Alley all left in Hill's
vehicle and drove to Sims' trailer. After arriving, Hodge thought
he had lost his methamphetamine and became angry. Alley reminded
Hodge that he had put it in his sock. Hodge removed the
methamphetamine from his sock, and Hodge, Alley, and the others
smoked it. Hodge then became increasingly erratic: he yelled, toreoff his clothes, struck himself in the head with computer
components, and began physically fighting with Sims.
Hodge was eventually forcibly thrown out of the trailer. He
pounded on the exterior door; when Sims opened the door, Hodge hit
Sims and dragged him into the yard. The others attempted to break
up the fight, but no one was able to control Hodge. Hodge was hit
repeatedly with a log, a stick, and fists in an effort to subdue
him. Even though Hodge continued to fight and resist, two of the
men were eventually able to bind Hodge's wrists and ankles with
duct tape. Hodge was then left face-down outside, where he
subsequently died. At trial, the forensic pathologist who
performed the autopsy on Hodge testified that ingestion of
methamphetamine was a proximate cause of his death.
Defendant was indicted for (1) second degree murder, (2)
possession with intent to sell and deliver methamphetamine, and (3)
sale and/or delivery of methamphetamine. He was convicted of
involuntary manslaughter and of both drug charges. The trial court
imposed a sentence of 19 to 23 months for the involuntary
manslaughter conviction and a consecutive sentence of 15 to 18
months for the drug convictions. Defendant timely appealed to this
 Defendant first assigns error to the trial court's
admission of Alley's testimony regarding the nature of the
substance exchanged between defendant and Hodge. Defendantcontends that Alley's identification of the substance as
methamphetamine constituted impermissible lay opinion testimony.
Rule 701 of the North Carolina Rules of Evidence permits lay
opinion testimony so long as it is rationally based on the
perception of the witness and helpful to a clear understanding of
the witness' testimony or the determination of a fact in issue.
N.C. Gen. Stat. § 8C-1, N.C.R. Evid. 701 (2003). We review the
trial court's decision to allow the testimony for abuse of
discretion. State v. Washington
, 141 N.C. App. 354, 362, 540
S.E.2d 388, 395 (2000), disc. review denied
, 353 N.C. 396, 547
S.E.2d 427 (2001). Accordingly, we may reverse only upon a showing
that the trial court's admission of Alley's testimony was so
arbitrary that it could not have been the result of a reasoned
Alley testified that when she "walked outside [she] seen
[defendant] hand [Hodge] an eightball, and [Hodge] put it in his
sock." She further testified that she later smoked the substance,
which she saw Hodge take directly from his sock, and that it was
Defendant argues that Alley lacked the requisite personal
knowledge to give her opinion regarding what was exchanged between
defendant and Hodge because Alley's understanding of what an
"eightball" is originated with other people. Defendant points to
the fact that on cross-examination Alley admitted that she did not
know how much an "eightball" typically costs or how many grams of
methamphetamine are actually in an "eightball" and that she onlyknew that the item handed to the victim was an "eightball" because
"that's what [Sims] and them told [her]." Alley's testimony as a
whole, however, indicates no lack of knowledge that the substance
was methamphetamine, but only that the particular amount was called
Alley's uncertainty as to the precise weight and cost of an
"eightball" is, however, irrelevant. The relevant issues at trial
were whether Alley had sufficient personal knowledge of
methamphetamine to identify it, whether her conclusion that
defendant gave Hodge methamphetamine was rationally based upon her
perceptions, and whether her opinion on the issue was helpful
either to the jury's understanding of her testimony or the
determination of a fact in issue.
First, the State established that Alley had extensive personal
knowledge of methamphetamine. At the time of trial, she had been
smoking methamphetamine for six years and was able to describe, in
great detail, the method by which one smokes methamphetamine.
Second, Alley's identification of the substance that she smoked _
and that had been received from defendant _ as methamphetamine was
based on that personal experience. See State v. Drewyore
, 95 N.C.
App. 283, 287, 382 S.E.2d 825, 827 (1989) (permitting lay testimony
of a customs agent who identified a smell coming from a truck as
marijuana based on his years of experience smelling marijuana).
With respect to the final element, defendant does not dispute that
Alley's testimony on this issue was helpful for a clear
understanding of her testimony or to the determination of a fact inissue. Accordingly, we hold that the trial court did not abuse its
discretion by admitting Alley's testimony identifying the substance
given by defendant to Hodge as methamphetamine.
 Defendant next assigns error to the trial court's denial
of his motion to suppress statements he made during an
interrogation by detectives Ron and Philip Bailey. Although
defendant admits that at some point during the interrogation, he
waived his right to remain silent under Miranda v. Arizona
U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), he asserts that
the disputed statements were elicited prior to that waiver and
should, therefore, have been suppressed.
Since defendant has not specifically assigned error to any of
the trial court's findings of fact on this issue, those findings
are binding on appeal and our review "is limited to whether the
trial court's findings of fact support its conclusions of law."
State v. Cheek
, 351 N.C. 48, 63, 520 S.E.2d 545, 554 (1999), cert.
, 530 U.S. 1245, 147 L. Ed. 2d 965, 120 S. Ct. 2694 (2000).
In any event, we note that even if defendant had properly assigned
error to the pertinent findings of fact, those findings would still
be binding on appeal as they are supported by the detectives'
testimony. State v. Barden
, 356 N.C. 316, 340, 572 S.E.2d 108, 125
(2002), cert. denied
, 538 U.S. 1040, 155 L. Ed. 2d 1074, 123 S. Ct.
The trial court found that "before any interview or discussion
with the defendant occurred the defendant was advised of hisMiranda
rights." The court thereafter concluded that "no statement
was given [by] 11:50 [a.m.]. Then the defendant waived his rights
at 11:54, after which questions were asked and statements were
given." These factual findings are binding on appeal and establish
a valid waiver under Miranda
prior to defendant's making the
disputed statements. The trial court, therefore, did not err in
denying defendant's motion to suppress.
 Defendant also assigns error to the trial court's
admission into evidence of five statements elicited from defendant
during the same police interrogation on the grounds that they were
inadmissible under Rule 404(b) of the Rules of Evidence. It is
well-established that Rule 404(b) is a "rule of inclusion
relevant evidence of other crimes, wrongs or acts by a defendant,
subject to but one exception
requiring [their] exclusion if [their]
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. Coffey
, 326 N.C. 268, 278-79, 389 S.E.2d
48, 54 (1990). Thus, "'evidence of other offenses is admissible so
long as it is relevant to any fact or issue other than the
character of the accused.'" Id
. at 278, 389 S.E.2d at 54 (emphases
omitted) (quoting State v. Weaver
, 318 N.C. 400, 403, 348 S.E.2d
791, 793 (1986)).
The statements challenged by defendant include the following:
(1) defendant's claim that he "never sold [Hodge] drugs"; (2)
defendant's asking the detectives if they would "sell [Hodge] drugswith two people [they] didn't know"; (3) defendant's statement that
he would have "turned [Hodge] onto some meth if the other two guys
were not there"; (4) defendant's claim he had "turned [Hodge] onto
some meth" two to three weeks prior to his death; and (5)
defendant's admission that he would "give [Hodge] drugs when
[Hodge] worked for [defendant]."
As a preliminary matter, we note the first two statements
could only have exculpated defendant since they suggest defendant
sell methamphetamine to Hodge on 6 March 2002. Defendant
does not suggest, nor can we divine, how these statements could
have been prejudicial. State v. Morgan
, 359 N.C. 131, 159, 604
S.E.2d 886, 903 (2004) (concluding that, even if the defendant
established certain evidence was improperly admitted, the Court
would not reverse because the defendant had not demonstrated
prejudice), cert. denied
, __ U.S. __, 163 L. Ed. 2d 79, 126 S. Ct.
47 (2005). Additionally, while the third statement is not
necessarily exculpatory, it does not refer to prior crimes, wrongs,
or acts and, therefore, falls outside of the scope of Rule 404(b).
State v. Thibodeaux
, 341 N.C. 53, 63, 459 S.E.2d 501, 508 (1995)
(holding that trial court did not err in admitting testimony that
defendant had indicated he might solve his financial difficulties
by robbing a bank when "[t]he testimony at issue did not relate to
any prior crime, wrong or act of the defendant").
Regarding the fourth and fifth statements, our Supreme Court
has held that "[e]vidence of other crimes committed by a defendant
may be admissible under Rule 404(b) if it establishes the chain ofcircumstances or context of the charged crime. Such evidence is
admissible if the evidence of other crimes serves to enhance the
natural development of the facts or is necessary to complete the
story of the charged crime for the jury." State v. White
, 340 N.C.
264, 284, 457 S.E.2d 841, 853 (internal citations omitted), cert.
, 516 U.S. 994, 133 L. Ed. 2d 436, 116 S. Ct. 530 (1995).
Our Supreme Court has explained further:
"Evidence, not part of the crime charged
but pertaining to the chain of events
explaining the context, motive and set-up of
the crime, is properly admitted if linked in
time and circumstances with the charged crime,
or [if it] forms an integral and natural part
of an account of the crime, or is necessary to
complete the story of the crime for the jury."
State v. Agee, 326 N.C. 542, 548, 391 S.E.2d 171, 174 (1990)
(quoting United States v. Williford, 764 F.2d 1493, 1499 (11th Cir.
In this case, defendant's statements that he had "turned
[Hodge] on to some meth" two to three weeks prior to his death and
that he would "give [Hodge] drugs when [Hodge] worked for
[defendant]" were, as Agee specified, an integral and natural part
of the development of the facts and were necessary to complete the
story of defendant's crimes for the jury. The statements were not
offered solely to evidence defendant's propensity to commit a
crime, but rather established the nature of the victim's
relationship with defendant, including the fact that defendant
traded Hodge drugs for work. This fact was necessary to meet the
State's burden of proof regarding the charge of sale of a
controlled substance. Because the statements helped describe the chain of
circumstances leading up to the exchange and provided the context
for the charged crime, the trial court did not err in admitting the
testimony. See id at 550, 391 S.E.2d at 175-76 ("Because the
evidence of defendant's marijuana possession served the purpose of
establishing the chain of circumstances leading up to his arrest
for possession of LSD, Rule 404(b) did not require its exclusion as
evidence probative only of defendant's propensity to possess
illegal drugs."); State v. Holadia, 149 N.C. App. 248, 255, 561
S.E.2d 514, 519-20 (holding that the trial court did not err under
Rule 404(b) in admitting testimony of the victim of an armed
robbery regarding defendant's statement referring to defendant's
prior drug activity with the victim), disc. review denied, 355 N.C.
497, 562 S.E.2d 432 (2002).
Defendant next assigns error to the trial court's denial of
his motion at the close of all the evidence to dismiss the State's
charges for insufficient evidence.
(See footnote 1)
In addressing a criminal
defendant's motion to dismiss for insufficiency of the evidence,
the trial court must determine whether there is substantial
evidence: (1) of each essential element of the offense charged; and
(2) of defendant's being the perpetrator of the offense. State v.
, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002). Substantialevidence is that amount of relevant evidence necessary to persuade
a rational juror to accept a conclusion. Id.
at 597, 573 S.E.2d at
869. The court must view the evidence in the light most favorable
to the State, giving the State the benefit of all reasonable
at 596, 573 S.E.2d at 869. Contradictions and
discrepancies do not warrant dismissal, but are for the jury to
A. The Controlled Substance Charges
 Defendant was charged with possession of a controlled
substance with intent to sell or deliver and with the sale and/or
delivery of a controlled substance, both in violation of N.C. Gen.
Stat. § 90-95 (2003). The first charge has the following elements:
(1) possession, (2) of a controlled substance, (3) with the intent
to sell or distribute the controlled substance. N.C. Gen. Stat. §
90-95(a)(1); State v. Carr
, 145 N.C. App. 335, 342, 549 S.E.2d 897,
901 (2001). The second charge, on the other hand, requires that
the State show the transfer of a controlled substance by sale,
delivery, or both. Carr
, 145 N.C. App. at 342, 549 S.E.2d at 901.
Methamphetamine is a "controlled substance" under the North
Carolina Controlled Substances Act. N.C. Gen. Stat. §§ 90-87(5),
On appeal, defendant argues first that the State did not
present substantial evidence that the substance defendant delivered
to Hodge was methamphetamine. Defendant's argument, however,
assumes that Alley's testimony is inadmissible. Since we have held
that Alley's identification of the substance as methamphetamine wasadmissible under Rule 701, that evidence is sufficient to meet the
State's burden of proof regarding this element.
Defendant next argues that the State failed to offer
substantial evidence of a sale. Defendant acknowledges that this
Court has defined a "sale" in the context of illegal drug
transactions as an exchange for money or any other form of
, 145 N.C. App. at 343, 549 S.E.2d at 902-03.
While the State presented no evidence that defendant sold Hodge
methamphetamine for money on 6 March 2002, the State presented
substantial evidence that defendant provided Hodge with
methamphetamine in exchange for other consideration on that date.
Detective Philip Bailey testified that defendant stated in his
interview (1) that Hodge worked for defendant in exchange for
methamphetamine and (2) that it would be "bad business" to provide
Hodge with methamphetamine had Hodge not done work for him. We
hold that based on this testimony, a rational juror could have
concluded that defendant gave Hodge methamphetamine on 6 March 2002
as payment for work Hodge had previously performed.
While some of the other statements defendant gave detectives
were exculpatory and defendant has challenged the credibility of
Alley's testimony, the trial court was required to view the
evidence in the light most favorable to the State when ruling on
defendant's motion to dismiss. Scott
, 356 N.C. at 596, 573 S.E.2d
at 869. We, therefore, reject defendant's argument that the trial
court erred by not granting his motion to dismiss the controlled
substances charges for insufficiency of the evidence. B. The Second Degree Murder Charge
 We next consider defendant's argument that the trial court
erred by not granting his motion to dismiss the charge of second
degree murder at the close of all the evidence. Defendant was
indicted for second degree murder, but convicted only of
involuntary manslaughter. Involuntary manslaughter is a lesser-
included offense of second degree murder. State v. Thomas
N.C. 583, 591, 386 S.E.2d 555, 559 (1989).
Defendant did not assign error regarding the sufficiency of
the evidence to support the verdict of involuntary manslaughter.
(See footnote 2)
Instead, defendant argues that the State failed to present
substantial evidence that defendant committed second degree murder.
We need not address this issue because defendant's conviction for
involuntary manslaughter renders harmless any error in not
dismissing the charge of second degree murder.
This Court has addressed this issue before. In State v.
, 35 N.C. App. 700, 701, 242 S.E.2d 512, 512 (1978), the
defendant was charged with the second degree murder of his
girlfriend after a heated argument ended with her being shot and
killed. The jury was instructed on both second degree murder and
voluntary manslaughter and convicted the defendant of voluntary
at 705, 242 S.E.2d at 515. On appeal, the
defendant assigned error to the trial court's second degree murder
This Court declined to reach the issue,concluding that a "verdict finding defendant guilty of the lesser
offense of voluntary manslaughter rendered harmless any errors in
the [trial] court's instructions on the greater offense, absent a
showing that the verdict was affected thereby." Id.
"[n]othing in th[e] record indicate[d] that the challenged
instructions on second degree murder in any way affected the
verdict rendered finding defendant guilty of voluntary
manslaughter," this Court overruled defendant's alleged error. Id.
, e.g., State v. Mangum
, 245 N.C. 323, 330-31, 96 S.E.2d
39, 45 (1957) ("The court's charge on second degree murder was
correct, but whether it was or not, is not material on this appeal,
because the defendant was convicted of the lesser offense of
manslaughter, and there is nothing to show that the verdict of
guilty of manslaughter was thereby affected."); State v. Lassiter
160 N.C. App. 443, 460, 586 S.E.2d 488, 500 (verdict of voluntary
manslaughter rendered harmless any errors in instructing the jury
on first degree murder), disc. review denied
, 357 N.C. 660, 590
S.E.2d 853 (2003). Because defendant has made no showing that the
submission to the jury of the second degree murder charge affected
the involuntary manslaughter verdict, we overrule this final
assignment of error.
Judges MARTIN and BRYANT concur.