An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-391


Filed: 17 January 2006


v .                             Wake County
                                Nos. 03 CRS 76832-34

    Appeal by defendant from judgments entered 11 August 2004 by Judge Ripley E. Rand in Wake County Superior Court. Heard in the Court of Appeals 16 November 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Donna B. Wojcik, for the State.

    Brian Michael Aus for defendant-appellant.

    CALABRIA, Judge.

    Donovan Shelton Dunston (“defendant”) appeals from judgments entered upon jury verdicts finding him guilty of conspiracy to sell cocaine, conspiracy to deliver cocaine, trafficking in cocaine by transportation, and trafficking in cocaine by possession. We vacate the conspiracy charge in 03 CRS 076832 and remand for resentencing.
    On 3 January 2003, the City of Raleigh Police Department (“Raleigh P.D.”) started surveillance of Shannon Harris (“Harris”) based on information received from informants and from an investigation involving an individual named Corey Plummer (“Plummer.”) Plummer agreed to participate in a sting operation conducted by Raleigh P.D. on that evening, and Raleigh P.D.arranged for Plummer to purchase two ounces of cocaine from Harris. Raleigh P.D. then taped the phone conversation between Plummer and Harris. Harris testified that he did not have the quantity of cocaine that Plummer requested, so he called defendant to inquire whether he had access to the requested amount. Defendant confirmed that he had two ounces of cocaine, and Harris picked up defendant from his house. While Harris and defendant were in Harris's vehicle, defendant handed Harris the cocaine, and Harris placed the cocaine in his pocket. When they arrived at Plummer's residence, Plummer was not home, and his nephew answered the door. Harris left the cocaine with Plummer's nephew. Raleigh P.D. conducted surveillance of this transaction and subsequently obtained the cocaine.
    Plummer then called Harris and told him that he would meet him at Vincent's Pizza in order to pay for the cocaine. Harris became suspicious and told defendant that he would not go to obtain the money from Plummer. Defendant took Harris's truck and went to obtain the money. Raleigh P.D. observed defendant arrive and obtain the money from Plummer. Police officers followed defendant to Harris's location.
    On 27 March 2003, Harris was arrested on federal drug conspiracy charges. Harris pled guilty, cooperated with law enforcement, and received a reduced sentence. Harris told Detective Cohr of the Raleigh P.D. (“Cohr”) that defendant had accompanied him on 3 January 2003. During a subsequent investigation, Sergeant Kennon of the Raleigh P.D. (“Kennon”)recognized a photograph of defendant as the man he observed at Vincent's Pizza. Harris corroborated Kennon's identification of defendant.
    Defendant was indicted on conspiracy to sell cocaine, conspiracy to deliver cocaine, trafficking in cocaine by transportation, and trafficking in cocaine by possession. A jury found defendant guilty of all charges. The trial court consolidated the trafficking offenses for judgment and sentenced defendant to a minimum of 35 months and a maximum of 42 months in the North Carolina Department of Correction. The trial court also consolidated the conspiracy charges and sentenced defendant to a minimum of 16 months and a maximum of 20 months in the North Carolina Department of Correction to run at the expiration of the trafficking sentence. Defendant appeals.
I.    Testimony as to the Credibility of Harris
    Defendant initially argues that the trial court “committed plain error by permitting Sergeant Kennon and Detective Cohr to vouch for the credibility of Shannon Harris.” Our courts have “applied the plain error analysis only to instructions to the jury and evidentiary matters.” State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109 (1998). “[T]he term 'plain error' does not simply mean obvious or apparent error[.]” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). “[T]o reach the level of 'plain error' contemplated in Odom, the error . . . must be 'so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than itotherwise would have reached.'” State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993) (citations omitted). We have also noted that “the test for 'plain error' places a much heavier burden upon the defendant than that imposed by [N.C. Gen. Stat. § 15A-1443] upon defendants who have preserved their rights by timely objection. This is so in part at least because the defendant could have prevented any error by making a timely objection.” State v. Bellamy, __ N.C. App. __, __, 617 S.E.2d 81, 91 (2005).
    At trial, Kennon testified as follows:
        MS. SHANDLES: And when he was first arrested, did he cooperate with you at all? KENNON: Yes, ma'am. MS. SHANDLES: Was that immediate or was it several months after that when he actually made statements? KENNON: His statements were recorded later. His cooperation, immediately, were actually more proactive where he identified his source for cocaine. And we were able to arrest that source the night that we arrested [Harris]. MS. SHANDLES: And did he give other information other than what he told you about what happened on the 3rd of January? KENNON: Yes, ma'am. MS. SHANDLES: When you looked into the information that he supplied you with, did you find at any point that he had not been truthful with you? KENNON: No, ma'am.
        . . .
        MS. SHANDLES: Did Shannon Harris speak to you or were you present when he was spoken to about what happened on the 3rd of January, 2003? KENNON: Yes, ma'am. MS. SHANDLES: And what did you hear Mr. Shannon Harris say about that? KENNON: After I made the identification [of defendant] from the photograph, I was curious if he would tell the truth about that. So when we arrested him, I asked him, said who was with you that day that [Plummer] bought the two ounces from you? He said [defendant]. And I said yeah, that's what I thought. And that was the extent of it.

    Detective Cohr testified:
        MS. SHANDLES: And when you spoke to him [Harris] on the evening of his arrest, what did he tell you about what had happened on January the 3rd of 2003 with this Defendant? COHR: We did not go into great detail concerning January 3rd. He briefly mentioned the name of [defendant] accompanying him that day, but we did not fully interview him concerning that date because he had information regarding a separate case that we were immediately working that evening. MS. SHANDLES: Is that something that was_ you had to work on right away or would have it gone away? COHR: Yes, that information was very recent and current and had to be followed up on immediately or it would not come to a conclusion later if we didn't work on it that evening. MS. SHANDLES: And based on the information Mr. Harris gave you on March 26 of 2003, did you, in fact, conduct an investigation and make an arrest that day or later that night? COHR: Yes, that evening he gave information concerning a Defendant by the name of Anthony Balbuena. He advised that he could order one kilogram or a thousand grams of cocaine from Anthony Balbuena. He, in fact, did so that evening. We conducted a controlled delivery and effectively arrested Anthony Balbuena that evening. I recovered a thousand grams of cocaine and $46,000 in money[.] . . . MS. SHANDLES: So what Shannon Harris told you that day that he was arrested, turned out, in fact, to be true? COHR: Credible and reliable information, yes. MS. SHANDLES: And did he during_-between the time he was arrested and the time you sat down and actually formally debriefed him, had a long interview, did he give other information to the police that also was found to be believable and credible and true? COHR: Yes, ma'am. MS. SHANDLES: On how many occasions did he give information to you where you, in fact, you were able to make arrests or to findpeople who were in possession of quantities of drugs? COHR: I think we did a total of three interviews with Shannon Harris, the last being September the 9th of 2003. The information Shannon gave was on approximately eight subjects that resulted in federal and state arrest warrants. Of the eight federal defendants that Harris gave information on, all eight have entered a plea of guilty in federal court.

    Regarding defendant's assignment of error that it was impermissible for the officers to vouch for the credibility of Harris, we consider whether the officers' testimony was permissible lay witness testimony. Under the North Carolina Rules of Evidence, “A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter[.]” N.C. R. Evid. 602 (2003). “If [a] witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.” N.C. R. Evid. 701 (2003). “In combination, these provisions seem to mean that personal knowledge must be shown to qualify a lay witness to testify to 'facts,' and if he goes beyond 'facts' to 'opinions or inferences,' the testimony must be rational and helpful as indicated.” 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence § 175 (5th ed. 1998). The majority of the officers' testimony related to corollary matters of whether Harris had provided information to officers in the past that turned out infact to be true and credible. Accordingly, all testimony that related to facts within the officers' personal knowledge were permissible under N.C. R. Evid. 602 (2005).
    Some portions of the testimony could, arguably, be characterized opinions or inferences as opposed to facts. Our courts have noted that it is generally improper for one witness to state opinions or inferences regarding the credibility of another witness. Bellamy, __ N.C. App. at __, 617 S.E.2d at 91. This is so because it is within the province of the jury to determine the credibility of witnesses, State v. Holloway, 82 N.C. App. 586, 587, 347 S.E.2d 72, 73-74 (1986), and one witness's testimony regarding the credibility of another witness, is not normally “helpful” within the meaning of N.C. R. Evid. 701. See State v. Robinson, 355 N.C. 320, 335, 561 S.E.2d 245, 255 (2002). However, even assuming arguendo that some testimony at issue was improper, it does not rise to the level of plain error in this case, particularly because the testimony related to corollary incidents as opposed to Harris's trial testimony. As such, we hold defendant's first assignment of error is without merit.
    Defendant next argues that “the trial court committed plain error by allowing Kennon to testify that he identified a photograph of Mr. Dunston after interviewing a non-testifying witness who had provided him with the names of known associates of Harris.” Kennon testified as follows:
        MS. SHANDLES: How did you identify who had picked up the money that day, that it was this Defendant? KENNON: During the investigation we arrestedan individual named Jimmy Gill. And after debriefing him, I immediately went through _ MR. GREGORY: Objection. THE COURT: Overruled. MS. SHANDLES: Go ahead. KENNON: I immediately started looking at the photographs_ MR. GREGORY: Objection. KENNON: _ of known associates. THE COURT: Overruled. KENNON: _ of Mr. Harris. MS. SHANDLES: Known associates of Mr. Harris? KENNON: Yes, ma'am. I pulled a picture of this individual [defendant] and immediately recognized him as being the one that took the money on January 3rd at Vincent's Pizza.

Defendant argues that admission of this testimony was plain error because “the evidence derived from Gill's debriefing was offered to establish the truth of the matter asserted, i.e., that Mr. Dunston was a known associate of the drug dealer Harris.” Defendant further argues that this testimony was in violation of his Sixth Amendment right to confrontation. The testimony at issue, however, includes no out-of-court statements that were offered for the truth of the matter asserted; rather, Kennon only stated that after speaking to Gill he looked at pictures of known associates of Harris. This testimony did not amount to hearsay or violate defendant's right of confrontation. Accordingly, we hold defendant's assignment of error is without merit.
    In his last argument, defendant argues that the trial court erred when it denied defendant's motion to dismiss the charge of conspiracy to deliver cocaine made at the close of all evidence. The State concedes, and we agree, that the charge of conspiracy to deliver cocaine, 03 CRS 076832, must be vacated in this case. Accordingly, we vacate the judgment in 03 CRS 076832 and remand for resentencing.
    Because defendant has failed to argue his remaining assignments of error on appeal, they are abandoned pursuant to N.C. R. App. P. 28(b)(6) (2005).
    No error in part; vacate the conspiracy to deliver cocaine conviction and remand for resentencing.
    Judges BRYANT and JACKSON concur.
    Report per Rule 30(e).

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