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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 20 February 2007
STATE OF NORTH CAROLINA
v. Buncombe County
Nos. 04 CRS 57081
JAMES ERIC SWINTON, 05 CRS 3556-58
Appeal by defendant from judgments entered 7 June 2005 by
Judge James U. Downs in Buncombe County Superior Court. Heard in
the Court of Appeals 13 February 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General W. Richard Moore, for the State.
Brian Michael Aus for defendant-appellant.
Defendant James Eric Swinton appeals from a judgment entered
upon his conviction of conspiracy to sell cocaine, aiding and
abetting in the sale of cocaine, and possession with intent to sell
or deliver cocaine. We find no error.
The State's evidence at trial tended to show that City of
Asheville Police Officer Jeffrey Elmo Rollins, a member of the Drug
Suppression Unit, was on duty conducting surveillance for drug
activity at the Deaver View public housing complex on 9 June 2004.
He testified that he regularly met with Deaver View's managers
concerning any problems they had within the complex relating to
drug dealing. On 9 June 2004, Officer Rollins conducted surveillance from
within a vacant apartment at the Deaver View complex while three
other officers were in or near the complex to provide assistance.
While conducting surveillance, Officer Rollins observed three
males in the area near his surveillance location, two of whom
approached at least six vehicles and received money in exchange for
small, tan-colored rocks. Officer Rollins immediately recognized
one of the individuals involved in these transactions as Defendant
because he had contact with Defendant on 2 June 2004. Further, he
had previously been shown a picture of Defendant and been informed
that Defendant was not permitted on the premises.
Officer Rollins also observed a male, later identified as
(See footnote 1)
give some tan-colored rocks to Defendant.
Defendant then exchanged these rocks for money from a suspect in a
vehicle that was stopped in front of Officer Rollins's surveillance
location. Officer Rollins radioed to the other officers to stop
this vehicle and was later informed by the officers that they had
recovered five tan-colored rocks from this vehicle. Officer
Rollins continued to observe Defendant exchange tan-colored rocks
for money for another twenty or thirty minutes after that time. He
eventually exited the apartment, ran toward Harvin, and instructed
him to get on the ground. Harvin ran away, and Officer Rollins
observed him throwing down a paper towel which contained what
Officer Rollins believed to be crack cocaine. Officer Rollinsapprehended and arrested Harvin. During Officer Rollins's pursuit
of Harvin, Defendant ran into an apartment.
Yvonne Johnson, a senior police officer with the Asheville
Police Department, testified that she and two other police officers
were in the vicinity of the Deaver View complex on 9 June 2004 to
provide assistance to Officer Rollins. When Officer Rollins
radioed to the officers that he believed he had observed an
exchange involving a primer gray vehicle with a red hood occupied
by a male, Officer Johnson pulled behind the vehicle as it was
leaving the complex and conducted a motor vehicle stop. The other
two police officers also pulled up behind Officer Johnson's vehicle
for assistance. Officer Johnson searched the vehicle, with the
driver's consent, and seized five items that appeared to be crack
cocaine and a crack pipe.
Asheville Police Officer Michael Lamb testified he was also in
the vicinity of Deaver View on 9 June 2004 to assist Officer
Rollins. Officer Lamb assisted Officer Johnson with the vehicle
stop of the gray vehicle that resulted in the seizure of five items
that appeared to be crack cocaine. Afterwards, he and another
officer returned to the Deaver View complex to further assist
Officer Rollins with the arrest of Harvin.
Special Agent Jay Pentacuda, a forensic drug chemist assigned
to the State Bureau of Investigation (SBI) crime laboratory in
Raleigh, testified that he analyzed the suspected controlled
substance recovered from the paper towel that Harvin discarded when
he saw Officer Rollins and determined it was 2.4 grams of cocainebase. He also analyzed the five rocks recovered by the officers
from the vehicle that was stopped at Officer Rollins' request and
determined the off-white solid rock material to be 0.40 grams of
At his trial, the jury found Defendant guilty of conspiracy to
sell cocaine, aiding and abetting in the sale of cocaine, and
possession with intent to sell or deliver cocaine. On the same
date, Defendant admitted his status as an habitual felon.
Defendant was sentenced to two consecutive sentences of 133 to 169
months imprisonment. Defendant appeals, arguing the trial court
committed plain error by allowing testimony from law enforcement
officers (I) about drug activity at the Deaver View complex, and
(II) that they had prior contact with Defendant, in violation of
Rule 404(b) of the North Carolina Rules of Evidence.
Preliminarily, we note that the plain error rule . . . holds
that errors or defects affecting substantial rights may be
addressed even though they were not brought to the attention of the
trial court and thus were not properly preserved under N.C. R.
App. P. 10(b)(2). State v. Cummings, 346 N.C. 291, 313, 488 S.E.2d
550, 563 (1997), cert. denied, 522 U.S. 1092, 139 L. Ed. 2d 873
(1998). Our appellate courts review such unpreserved issues when
specifically assigned as plain error pursuant to N.C. R. App. P.
10(c)(4), and when the issue involves either errors in the trial
judge's instructions to the jury or rulings on the admissibility of
evidence. Cummings, 346 N.C. at 313-14, 488 S.E.2d at 563. In
order to rise to the level of plain error, the error . . . must beso fundamental that (i) absent the error, the jury probably would
have reached a different verdict; or (ii) the error would
constitute a miscarriage of justice if not corrected. State v.
Holden, 346 N.C. 404, 435, 488 S.E.2d 514, 531 (1997), cert.
denied, 522 U.S. 1126, 140 L. Ed. 2d 132 (1998).
Defendant first argues the trial court committed plain error
by allowing testimony from Officers Rollins, Johnson, and Lamb
characterizing the Deaver View complex as having a large number of
drug transactions and complaints about drug activity. Defendant
challenges the following testimony elicited from Officer Rollins by
Q. Have you ever observed people conducting
drug transactions out in the open in Deaver
View or Pisgah View?
Q. How often?
A. Every day.
Q. June the 9th-Well, do you work alone? Were
you in a patrol car on June the 9th the [sic]
Can you describe for the jurors how you
started your day and what you had planned to
do that day?
A. The apartment managers had discussed with
us problems concerning drug dealing on the
lower end of the Deaver View Projects near the
25, 26, 27, 28 and 29 Building.
Officer Rollins further testified:
This is Deaver View Road right here [on
State's Exhibit 1]. This is the complex of
Deaver View Apartments. We generally refer to
this side as the top side, and this the bottomside. This is where we had recently received
complaints of drug activity.
Defendant also challenges the following testimony of Officer
Q. Did you ever receive complaints from the
citizens in Deaver View regarding drug
Q. How often?
A. Daily, from the time that I was sworn into
the Asheville Police Department.
On direct examination, Officer Lamb testified he was part of
the Asheville Community Enforcement Team, and their primary areas
of responsibility were Pisgah View and Deaver View Apartments.
Defendant challenges the following testimony of Officer Lamb
elicited by the prosecution:
Q. Why Pisgah View and Deaver View Apartments?
A. That seemed to be where most of the
citizens' complaints were generated from as
far as the heaviest open area drug activity.
When asked to describe what he was doing on 9 June 2004, Officer
Lamb testified as follows:
On June the 9th, 2004, I was working with
Officer Rollins, Officer Green, and Officer
Johnson. That afternoon we had conducted a
plan to address citizens' complaints of drug
activity in Deaver View Apartments. The plan
was that we were--All four of us were to do
regular foot patrol as we usually did in
Deaver View Apartments. It's not to alarm
anybody in the community. And so we set
up---Normally, two vehicles came in, two
officers in each vehicle.
We parked on the top side of Deaver View. . .
. We walked down to the 28 Building, thelower half of Deaver View Apartments, and let
ourselves be known so that drug dealers that
were standing out in the open would go inside.
Finally, Defendant challenges the following testimony of
Q. You and your fellow officers receive
complaints from the citizens in Deaver View
regarding drug activity?
A. Yes, daily.
Defendant did not object to the above testimony at trial and
thus asks this Court to review its admission for plain error.
Defendant contends the officers' testimony constituted inadmissible
hearsay evidence about the reputation of the Deaver View complex.
For the reasons set out below, we agree with the State's arguments
that this general rule does not mandate that Defendant receive a
It is well established that in a criminal prosecution
evidence of the reputation of a place or neighborhood is ordinarily
inadmissible hearsay. State v. Weldon, 314 N.C. 401, 408, 333
S.E.2d 701, 705 (1985); see also State v. Williams, 164 N.C. App.
638, 644, 596 S.E.2d 313, 317 ([T]he trial court erroneously
allowed the admission of testimony regarding the reputation of the
Freeman and Martin Street area of Raleigh, North Carolina.), disc.
review denied, 358 N.C. 738, 600 S.E.2d 857 (2004).
Nevertheless, if a statement is offered for any purpose other
than that of proving the truth of the matter asserted, it is not
objectionable as hearsay. State v. English, 171 N.C. App. 277,
284, 614 S.E.2d 405, 410 (2005) (holding that an officer'stestimony regarding a neighborhood's reputation was not hearsay and
was admissible where it was prompted by a question by the
prosecution as to why the officer was in the neighborhood and was
offered to explain why the officer subsequently solicited drugs
from a pedestrian in that neighborhood) (citation omitted). Here,
the officers' testimony concerning the complaints they had received
about drug activity occurring at the Deaver View complex explained
why the officers were at the complex conducting drug surveillance
on 9 June 2004. Thus, the testimony was not hearsay and was
Second, even if the officers' testimony was in fact
inadmissible hearsay and was therefore allowed in error, Defendant
has failed to show the admission of this testimony amounted to
plain error. Indeed, the State presented substantial evidence that
Defendant possessed cocaine, conspired to sell cocaine, and aided
and abetted in the sale of cocaine, separate and apart from the
admitted testimony. Therefore, the testimony concerning the
complaints of drug activity received by the officers was not
critical to the State's evidence against Defendant, and Defendant
has failed to show the jury would probably have reached a different
result had the trial court barred these statements. Moreover, in
reviewing the record, we conclude any such error would not
constitute a miscarriage of justice. Accordingly, we hold the
trial court's admission of the testimony concerning the drug
activity at the Deaver View complex did not rise to the level of
Defendant also contends the trial court committed plain error
by allowing Officers Rollins and Lamb to testify that they had
prior contact with Defendant, in violation of Rule 404(b) of the
North Carolina Rules of Evidence, which provides in relevant part:
Evidence 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. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2006). Our Supreme Court has
held that Rule 404(b) is a rule of inclusion. State v. Lloyd
N.C. 76, 88, 552 S.E.2d 596, 608 (2001) (citing State v. Coffey
326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990)).
Defendant argues the following testimony of Officer Rollins
constituted impermissible character evidence by implying that
Defendant had committed prior bad acts:
Q. Did you recognize any of the individuals
that you saw conducting these [drug]
A. Yes, sir.
Q. How many did you recognize?
Q. All right. And whom did you recognize?
A. Mr. Swinton.
Q. When you first saw the Defendant, did you
immediately recognize him, or did you have to
think about it?
A. Immediately recognized him.
Q. Were you familiar with this Defendant?
A. Yes, sir.
Q. Had you had prior contact with him prior
to June the 9th, 2004?
A. Yes, sir, I had contact with him seven
days prior on June 2nd.
Defendant further argues the following testimony of Officer Lamb
constituted impermissible character evidence:
Q. Were you familiar with Mr. Swinton prior
to June the 9th, 2004?
A. Yes, I had one prior dealing with him by
the 2 Building of Deaver View Apartments a
couple of months earlier.
Defendant did not object and asks for a plain error review.
The State argues that no specific information was given by
Officer Rollins as to the nature of his prior contact with
Defendant. Further, the State asserts the testimony of these
officers was presented for the purpose of explaining the officers'
identification of Defendant. Indeed, Rule 404(b) allows evidence
of other acts as proof of identity or absence of mistake.
Accordingly, the State argues the trial court did not commit plain
error by allowing the officers' testimony. We agree with the State
and conclude Defendant's argument is without merit.
Judges ELMORE and GEER concur.
Report per Rule 30(e).
The trial transcript refers to this individual as Travis
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