Appeal by defendant from judgment entered 20 March 2006 by
Judge Abraham P. Jones in Durham County Superior Court. Heard in
the Court of Appeals 9 May 2007.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Judith Tillman, for the State.
Duncan B. McCormick for defendant-appellant.
Adrian Gayton (defendant) appeals from a jury verdict of
guilty on charges of trafficking cocaine by possession and carrying
a concealed weapon. After careful review, we find no prejudicial
error. In May 2005, Detectives T.J. Cote, Claiborne Clark, and
Spencer Chamberlain, along with other members of the Durham County
Sheriff's office, conducted an undercover narcotics operation in
Durham. In early May 2005, Detective Cote set up and carried out
two small cocaine purchases with a suspected drug dealer named
Martin Estrada (Estrada). The officers then set up a larger
transaction for 17 May 2005.
On that date, Detective Cote had arranged to meet Estrada in
a parking lot to conduct the transaction while the other detectives
maintained surveillance. When Estrada arrived, defendant was in
his passenger seat. Estrada exited the vehicle and got into the
front seat of Detective Cote's car, where the transaction took
place. Defendant remained in Estrada's car during this time,
watching the transaction.
Once the transaction was complete, the surveillance team
approached. Two detectives extracted defendant from the car, at
which point one detective saw a handgun on the passenger seat where
defendant had been sitting. Both defendant and Estrada were
Defendant was convicted of one count each of trafficking in
cocaine and carrying a concealed weapon and sentenced to 175 to 219
months imprisonment. Defendant appeals.
Three of defendant's arguments
(See footnote 1)
concern evidence that
defendant claims was admitted erroneously by the trial court
because such evidence was irrelevant and its probative value was
substantially outweighed by the danger of unfair prejudice.
These arguments are based on the rule of evidence stating that
[a]lthough relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice[.] N.C. Gen. Stat. . 8C-1, Rule 403 (2005).
Whether to exclude evidence pursuant to Rule
403 is a matter left to the sound discretion
of the trial court. A ruling by the trial
court will be reversed for an abuse of
discretion only upon a showing that the ruling
was so arbitrary that it could not have been
the result of a reasoned decision.
State v. Jones
, 347 N.C. 193, 213, 491 S.E.2d 641, 653 (1997)
(internal citation omitted). We thus review the trial court's
decision as to the admission of this evidence for abuse of
 Defendant first argues that certain testimony from
Detectives Cote and Clark giving general information regarding
gangs was irrelevant and unduly prejudicial. While the admission
of this evidence was indeed error, we do not find that it was
prejudicial, and as such we overrule this assignment of error. Specifically, defendant objected to the following pieces of
testimony: Detective Cote's testimony that Estrada, who actually
sold him the cocaine, had a 13 inscribed on his neck, which he
stated indicated Estrada's affiliation with one of two gangs in the
area; Detective Cote's testimony that a person who pretends to be
a gang member may be subjected to violence by actual members, who
might cut the tattoo off that person; Detective Clark's testimony
that members of the gang in question associate only with members of
their own gang, and never with outsiders; and Detective Cote's
testimony that gangs, including the one to which Estrada likely
belonged, are notoriously violent and commonly associated with
guns, violence, and drugs, as well as Detective Clark's reiteration
of the reputation for violence the gangs have.
Further, in discussing how his beliefs and expectations as to
the drug buy were affected by his realization that defendant and
Estrada were gang members, Detective Cote testified: When you're
dealing with $20,000 [gang members will] take your life in a
In overruling defendant's objections to this testimony, the
trial judge stated that it was relevant because it helped explain
how the officers went about planning the operation -- that is, it
showed that the officers' knowledge that they were dealing with
gang members affected the way they set up the buy. Further, the
court noted, this testimony was elicited from police officers
testifying based upon their own experiences working in the
narcotics field or undercover. Even if it were true that the officers felt forced to revamp
the entire operation after finding out defendant and Estrada were
possible gang members and decided to take specific precautions
because they feared the two men might become violent, this
information has nothing to do with defendant trafficking cocaine by
possession and carrying a concealed weapon. It does not tend to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence. N.C. Gen. Stat. . 8C-1, Rule 401
(2005). Indeed, the only probative value the information had in
this case was to portray defendant as a gang member. Therefore, we
must conclude that the admission of this evidence was error.
However, defendant has the burden to show not only that it was
error to admit this evidence, but also that the error was
prejudicial: A defendant must show that, but for the error, a
different result would likely have been reached. State v. Freeman
313 N.C. 539, 548, 330 S.E.2d 465, 473 (1985). Where there exists
overwhelming evidence of defendant's guilt[,] defendant cannot
make such a showing; this Court has so held in cases where the
trial court improperly admitted evidence relating to defendant's
membership in a gang. See, e.g.
313 N.C. at 548, 330
S.E.2d at 473 (holding that evidence of the defendant's gang
membership was properly admitted to explain his presence at the
murder scene, but evidence that the gang was a 'motorcycle gang'
was erroneously admitted because it was irrelevant to the issue of
defendant's guilt; however, because of the overwhelming evidenceof defendant's guilt[,] this error could not have influenced the
outcome of the trial), State v. Hightower
, 168 N.C. App. 661, 667,
609 S.E.2d 235, 239 (2005) (holding that testimony as to the
defendant's gang membership provided evidence of his motive and
reason for involvement in the crime, but not reaching whether it
was admitted erroneously because of the overwhelming evidence of
the defendant's guilt).
The same holds true in the case at hand: At trial,
overwhelming undisputed evidence was presented as to defendant's
guilt. The crime of trafficking by possession consists simply of
the sale, manufacture, delivery, transportation, or possession of
twenty-eight grams or more of certain illicit substances, acts
which the legislature determined indicate an intent to distribute
on a large scale. See
N.C. Gen. Stat. § 90-95(h)(3) (2005); see
also State v. McCoy
, 105 N.C. App. 686, 689, 414 S.E.2d 392, 394
(1992). Possession can be actual or constructive. When the
defendant does not have actual possession, but has the power and
intent to control the use or disposition of the substance, he is
said to have constructive possession. State v. Baldwin
, 161 N.C.
App. 382, 391, 588 S.E.2d 497, 504-05 (2003) (internal citation
omitted). Further, when the State has shown that a defendant was
present while a trafficking offense occurred and that he acted in
concert with others to commit the offense pursuant to a common plan
or purpose, we have held that the State need not specifically
prove constructive possession. State v. Diaz
, 317 N.C. 545, 552,
346 S.E.2d 488, 493 (1986). Here, defendant does not dispute any of the officers'
testimony as to his presence at or conduct during the drug buy.
Ignoring all evidence related to gangs and gang activity, the
unchallenged evidence presented by the State at trial showed that
defendant arrived with Estrada in the car to the sale, was in the
seat next to Estrada during the sale, observed the sale of the
drugs, and apparently acted as security of sorts for Estrada.
Thus, even had all the evidence as to gangs been excluded, the
State presented enough evidence -- unchallenged to this Court --
that the statute was violated.
Defendant argues to this Court that the jury's request for
clarification with respect to the aiding and abetting instruction
they had been given is evidence that without the gang-related
evidence a reasonable possibility exists that the result might have
been different. However, defendant's argument on this point is to
simply state the fact about the jury's request and follow it with
this bare assertion about the change in outcome. This argument is
We see no proof that, without this error, a different result
would likely have been reached. As such, we overrule this
assignment of error.
 Detective Chamberlain also testified that, among the
bullets recovered from the guns of defendant and Estrada, the
police found hollow point bullets. He stated that a hollow point
bullet, once it hits its impact, actually expands and does a wholelot more damage. Again, this evidence does not tend to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence. N.C. Gen. Stat. . 8C-1, Rule 401.
Therefore, we must conclude that the admission of this evidence was
Again, however, defendant cannot carry the burden of showing
that this error was prejudicial. As to the charge of carrying a
concealed weapon, the elements of the offense are: (1) The
accused must be off his own premises; (2) he must carry a deadly
weapon; [and] (3) the weapon must be concealed about his person.
State v. Williamson
, 238 N.C. 652, 654, 78 S.E.2d 763, 765 (1953);
N.C. Gen. Stat. § 14-269(a1) (2005). Defendant does not dispute
that the take-down occurred in a public parking lot; nor does he
argue that a loaded weapon is not a deadly weapon. As to the final
element, the statutory language requires that the weapon be
'within his convenient control and easy reach, so that he could
promptly use it, if prompted to do so by any violent motive.'
State v. Gainey
, 273 N.C. 620, 623, 160 S.E.2d 685, 687 (1968)
(quoting State v. McManus
, 89 N.C. 555 (1883)). According to
Detective Clark's unchallenged testimony, when he approached the
passenger side of the car where defendant sat, defendant had his
right arm extended down between his legs, with his hand stuck under
his left leg. After pulling defendant from the passenger seat, the
detective discovered a loaded handgun on the passenger seat in the
area where [defendant's] leg and hand would have been[.] Thus,the State provided evidence at trial which defendant does not
challenge to this Court to prove each element of the offense. In
addition, this Court has specifically held that even where evidence
as to hollow-point bullets was improperly admitted, the error was
harmless beyond a reasonable doubt in light of the overwhelming
evidence of defendant's guilt. State v. Cummings
, 346 N.C. 291,
323, 488 S.E.2d 550, 569 (1997).
As such, the admission of this evidence was not prejudicial
error and does not warrant a new trial.
 Defendant next argues that the gang-related evidence
should have been excluded because the State violated discovery
rules as to this evidence. This argument is without merit.
Defendant made a motion in limine
to the trial court to
exclude any gang-related evidence or testimony. Once the trial had
begun, the only specific piece of evidence that defendant argued to
the trial court that he had not properly received during discovery
were photographs of his client's tattoos indicating possible gang
membership. The trial judge ruled that all the evidence would be
admitted, noting that defendant was, obviously, aware of his own
tattoos, and thus his attorney could have found out about them at
any time; and, further, that defendant's motion in limine
exclude any gang-related evidence showed clearly that he had some
notice that such materials were going to be presented at trial.
Per N.C. Gen. Stat. . 15A-903(a)(1) (2005), the State must
[m]ake available to the defendant the complete files of all lawenforcement and prosecutorial agencies, where 'file' includes
any . . . matter or evidence obtained during the investigation of
the offenses alleged to have been committed by the defendant. Id
When a party fails to comply with these guidelines, [p]rior to
finding any sanctions appropriate, the court shall consider both
the materiality of the subject matter and the totality of the
circumstances surrounding an alleged failure to comply with this
Article[.] N.C. Gen. Stat. . 15A-910(b) (2005).
This Court reviews such decisions by the trial court for abuse
It is within the trial court's sound
discretion whether to impose sanctions for a
failure to comply with discovery requirements,
including whether to admit or exclude
evidence, and the trial court's decision will
not be reversed by this Court absent an abuse
of discretion. An abuse of discretion results
from a ruling so arbitrary that it could not
have been the result of a reasoned decision or
from a showing of bad faith by the State in
State v. McClary
, 157 N.C. App. 70, 75, 577 S.E.2d 690, 693, appeal
dismissed and disc. review denied
, 357 N.C. 466, 586 S.E.2d 466
(2003) (internal citation omitted).
We cannot say that the trial court abused its discretion in
admitting this evidence. The court was not required to exclude the
evidence even had it found that the State violated discovery
requirements. As mentioned above, the court must consider the
totality of the circumstances, and given the overwhelming evidence
of defendant's guilt, the court was within its rights to hold thatthese few photographs need not be excluded. As such, we overrule
this assignment of error.
Although the disputed evidence was irrelevant and thus
improperly admitted, defendant cannot show that without the
evidence a different result would likely have been reached. As
such, we find no prejudicial error.
Judges ELMORE and GEER concur.