Return to nccourts.org
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 4 September 2007
STATE OF NORTH CAROLINA
Nos. 05 CRS 5419
TIMOTHY DOUGLAS DAVENPORT 05 CRS 54035
05 CRS 54036
Appeal by Defendant from judgment entered 23 April 2006 by
Judge Nathaniel J. Poovey in Cleveland County Superior Court.
Heard in the Court of Appeals 21 May 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Barry H. Bloch, for the State.
William D. Auman for Defendant.
On 21 April 2006, a jury found Timothy Douglas Davenport
(Defendant) guilty of selling or delivering cocaine, possession
with intent to sell or deliver cocaine, and being an habitual
felon. The Honorable Nathaniel J. Poovey entered judgment on 23
April 2006 and sentenced Defendant to a minimum term of 120 months
and a maximum term of 153 months in prison. Defendant appealed in
open court upon entry of the judgment.
At trial, the State's evidence tended to show that on 19
January 2005, Officer Chris Howington and other Shelby Police
Department (S.P.D.) narcotics detectives were conducting
controlled narcotics buys with the aid of a confidential andreliable informant, Winnifred Pettis (Pettis). Before each
controlled buy, the officers searched Pettis's car and body, gave
him money for the buy, and then wired him with an audio and video
camera. The audio was real time, allowing the officers to hear
what was being said as the buy occurred. The video was viewed
later. The officers directed Pettis where to go to make the
On 19 January 2005, Defendant was not the intended target of
the undercover purchase. However, the targeted seller was not
home, and Pettis was not able to make the purchase as directed by
the S.P.D. officers. As Pettis was about to leave the intended
target's home, Defendant flagg[ed] [Pettis] down and entered
Pettis's car. Defendant and Pettis knew each other from the local
community college. Pettis informed Defendant that he wanted to
purchase $20.00 worth of crack cocaine. Pettis and Defendant
returned to Defendant's house. At the house, Defendant went into
a back room to retrieve the cocaine, and upon exiting the back
room, the men completed the drug sale.
While Defendant's attorney was cross-examining Officer
Howington, the following exchange occurred:
Defendant's counsel: . . . How many days
prior to that had
you been involved in
Officer Howington: We do controlled
buys. We just go
out and make
buys . . . . We had
made previous buys
from Mr. Davenport _ Defendant's counsel: Objection. Move to
strike and move for
The Court: Objection overruled.
Motion to strike
denied. Motion for
a mistrial denied.
Officer Howington's testimony continued, and when his testimony
concluded, Defendant's attorney renewed his objection and motion
for mistrial based on the reference to previous buys made from
(See footnote 1)
In opposition to the motion for mistrial, the State
argued, out of the presence of the jury, that mistrial was not
appropriate because nothing was mentioned about Defendant's prior
convictions or criminal record, and Officer Howington thought he
was making a genuine response to [the] question. After reviewing
the transcript, the trial court ruled that Officer Howington's
reply was not responsive to the question. The court then sustained
Defendant's objection. However, Defendant's attorney refused a
limiting instruction offered by Judge Poovey directing the jury to
disregard the comment. Judge Poovey again denied Defendant's
motion for a mistrial, concluding the error was not so prejudicial
that it would require a mistrial at this time. Upon the court's denial of the motion for mistrial, under Rule
404(b) of the North Carolina Rules of Evidence, the State offered
further testimony from Officer Howington and other witnesses about
another controlled buy made from Defendant on 13 January 2005.
(See footnote 2)
Unlike the buy on 19 January, where Defendant sought out Pettis on
the street, on 13 January Pettis suggested to the S.P.D. officers
that he should go to Defendant's home to attempt to make a drug
purchase. Pettis knocked at Defendant's door and told Defendant
that he wanted to buy $40.00 worth of crack cocaine. Defendant
went into his bedroom, shut the door, and soon came out with the
cocaine. Upon his return, the men completed the narcotics sale.
To guard against prejudice to Defendant, the trial judge instructed
the jury that evidence of the previous drug buy was admitted solely
for the purpose of showing that Defendant had the intent and common
plan to commit the crime with which he was charged. The judge
specifically instructed that the evidence was not offered to show
that Defendant had a general propensity to commit the crime.
Officer Scott Champion, who was the officer responsible for
wiring Pettis with the audio and video equipment during the 19
January 2005 buy, also testified. He stated that while it was
possible for Pettis to manipulate the equipment, Pettis did not do
so. Pettis testified about the events on 19 January 2005 and
denied manipulating the audio and video equipment. On
cross_examination, Pettis admitted using drugs until he receivedtreatment in 2004. He denied using drugs while working as an
informant. He also admitted previous convictions for misdemeanor
breaking and entering and possession of stolen goods.
At the close of the evidence, Defendant's attorney made a
motion to dismiss based on the sufficiency of the evidence. The
trial judge denied this motion. The jury found Defendant guilty of
possession with intent to sell or deliver cocaine, and selling or
delivering cocaine. The jury then heard testimony from Assistant
Clerk of Court Brenda Day, who recounted Defendant's prior felony
convictions from 26 September 1995, 3 December 1999, and 26 June
2000. Defendant thereupon moved to dismiss the habitual felon
charge, and Judge Poovey denied the motion. Defendant was then
found guilty of being an habitual felon. From the judgment entered
upon these convictions, Defendant appeals. For the reasons stated
herein, we hold that Defendant received a fair trial, free of
APPELLATE RULE VIOLATIONS
As a threshold matter, we must address the State's argument
that Defendant's appeal should be dismissed for failure to comply
with Rules 28(b)(5) and 28(b)(6) of the North Carolina Rules of
Appellate Procedure. Specifically, the State asserts that
Defendant's brief fails to comply with the mandates of the Rules
because Defendant provided an incomplete and misleading statement
of the facts and because Defendant failed to provide the applicable
standard of review for two of the three questions presented. Rule 28(b)(5) requires that an appellant's brief contain a
full and complete . . . summary of all material facts underlying
the matter in controversy which are necessary to understand all
questions presented for review, supported by references to pages in
the transcript of proceedings, the record on appeal, or exhibits,
as the case may be. N.C. R. App. P. 28(b)(5). The State contends
that Defendant's brief does not comply with Rule 28(b)(5) because
the statement of the facts fails to indicate that certain testimony
at issue on appeal was elicited on cross-examination and because
Defendant neglected to address the curative instruction offered by
the trial court. We disagree. Although Defendant's brief does not
provide an exhaustive statement of the facts, and although we are
troubled by Defendant's inaccurate representation concerning
Officer Howington's testimony and omission of the offered curative
instruction, we hold that Defendant's brief contains minimally
sufficient information from which this Court can understand all
questions presented for review[.] Therefore, Defendant's brief
complies with Rule 28(b)(5), and Defendant's appeal is not subject
to dismissal on this basis.
The State next argues that two of Defendant's arguments should
be dismissed because Defendant failed to address the standard of
review, in violation of Rule 28(b)(6) of the North Carolina Rules
of Appellate Procedure. While we agree with the State that
Defendant's brief does not comply with Rule 28(b)(6), we conclude
that this violation does not warrant dismissal.
Rule 28(b)(6) states in pertinent part that [t]he argument shall contain a concise
statement of the applicable standard(s) of
review for each question presented, which
shall appear either at the beginning of the
discussion of each question presented or under
a separate heading placed before the beginning
of the discussion of all the questions
N.C. R. App. P. 28(b)(6). In State v. Hart, 361 N.C. 309, 311, 644
S.E.2d 201, 202 (2007) (quotation marks and citations omitted), our
Supreme Court recognized that [i]t is well settled that the Rules
of Appellate Procedure are mandatory and not directory. However,
the Court concluded that not every violation of the
rules . . . require[s] dismissal of the appeal or the issue,
although some other sanction may be appropriate, pursuant to Rule
25(b) or Rule 34 of the Rules of Appellate Procedure. Id. Rule
34(b)(3) allows a Court of the appellate division to impose any
other sanction deemed just and proper when there has been a
violation of the appellate rules. N.C. R. App. P. 34(b)(3).
In his first argument, Defendant contends that the standard of
review when this Court examines a trial court's decision to deny a
motion for a mistrial is an abuse of discretion. However,
Defendant fails to define abuse of discretion. Even more
concerning is Defendant's treatment of his next argument through
which he attacks the propriety of the trial court's decision to
admit in evidence, under Rules 403 and 404(b) of the North Carolina
Evidence Code, testimony regarding Defendant's prior drug sale.
While Defendant cites case law that has interpreted each Rule and
provides analogous cases that purportedly support his position, he
never states the standard under which this Court reviews a decisionby the trial court to admit evidence under Rule 403 or Rule 404(b).
Therefore, Defendant's brief violates Rule 28(b)(6) of the North
Carolina Rules of Appellate Procedure and Defendant's counsel is
subject to sanctions. See McKinley Bldg. Corp. v. Alvis, ___ N.C.
App. ___, 645 S.E.2d 219 (2007) (holding that a party was subject
to sanctions due in part to the party's failure to state or define
the appropriate standard of review in violation of Rule 28(b)(6)).
However, although the State requests dismissal, we choose to impose
another sanction because, as the Court in McKinley Bldg. Corp.
stated, to dismiss the appeal would be a step backward rather than
the step forward that Hart asks us to take in applying the full
range of sanctions available under the Appellate Rules rather than
summarily dismissing many appeals. Id. at ___, 645 S.E.2d at 222.
Therefore, in accordance with Rule 34(b)(3), we reprimand
Defendant's counsel and caution him to be more diligent in stating
the standard of review when preparing a brief for this Court.
ADMISSION OF RULE 404(b) EVIDENCE
Defendant argues the trial court erred by allowing the State
to offer evidence under Rule 404(b) of a previous narcotics sale
made by Defendant. Defendant contends the prejudicial effect of
such evidence outweighed any probative value it had.
Rule 404(b) of the North Carolina Evidence Code provides that
[e]vidence 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) (2005). Evidence under Rule
404(b) is admissible if it is 'relevant to any fact or issue other
than the character of the accused.' State v. Coffey, 326 N.C.
268, 278, 389 S.E.2d 48, 54 (1990) (quoting State v. Weaver, 318
N.C. 400, 403, 348 S.E.2d 791, 793 (1986)). Moreover, contrary to
Defendant's assertion to this Court, Rule 404(b) is a rule of
inclusion, with the sole exception that evidence should be
excluded when its singular value is to show that the accused has
the propensity to commit the crime charged. Coffey, 326 N.C. at
278, 348 S.E.2d at 54. Our Courts have held that [w]hen the
[prior] incidents are offered for a proper purpose, the ultimate
test of admissibility is 'whether the incidents are sufficiently
similar and not so remote in time as to be more probative than
prejudicial under the balancing test of N.C.G.S. § 8C-1, Rule
403.' State v. Pruitt, 94 N.C. App. 261, 266, 380 S.E.2d 383, 385
(quoting State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119
(1988)), disc. review denied, 325 N.C. 435, 384 S.E.2d 545 (1989).
Rule 403 of the North Carolina Evidence Code provides, inter
alia, that evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice to a
party. N.C. Gen. Stat. § 8C-1, Rule 403 (2005). A trial court's
decision to admit evidence under Rule 404(b) and Rule 403 is
reviewed for an abuse of discretion. State v. Summers, 177 N.C.
App. 691, 629 S.E.2d 902, appeal dismissed and disc. review denied,
360 N.C. 653, 637 S.E.2d 192 (2006). An abuse of discretion occurs
where the court's ruling is manifestly unsupported by reason or isso arbitrary that it could not have been the result of a reasoned
decision. State v. Campbell, 359 N.C. 644, 673, 617 S.E.2d 1, 19
(2005) (quotation marks and citation omitted), cert. denied, ___
U.S. ___, 164 L. Ed. 2d 523 (2006).
Here, the evidence of Defendant's prior narcotics sale was
admissible to show intent and common scheme or plan under Rule
404(b). The two incidents occurred less than a week apart and both
were similar in nature. During the prior narcotics sale, as well
as the sale for which Defendant was criminally charged, Defendant
sold a small amount of crack cocaine, the transaction took place at
Defendant's home, and prior to the sale, he retrieved the narcotics
from a room in the back of his house while he left the purchaser to
wait outside the room.
Defendant relies on State v. Al-Bayyinah, 356 N.C. 150, 567
S.E.2d 120 (2002), to support his position that the evidence of the
prior drug sale was not admissible under Rule 404(b). In
Al-Bayyinah, our Supreme Court determined that evidence of prior
crimes was not admissible under Rule 404(b) because the details of
the crimes were dissimilar. In that case, during prior robberies,
the assailant committed the crimes using a gun, wore dark,
nondescript clothing that obscured his face; . . . demanded money;
and fled upon receiving it, while during the commission of the
crime with which the defendant was currently charged, the robber
took nothing of substantial value[;] surprised the victim from
behind; hit the victim in the back of the head; and stabbed the
victim. Id. at 155, 567 S.E.2d at 123. Here, on the other hand,Defendant committed the previous act and the crime with which he
was charged in this case in the same manner. Defendant left the
buyer, retrieved the narcotics from a room at the back of his
house, and upon exiting the room, concluded a sale for a small
amount of crack cocaine. Accordingly, Al-Bayyinah does not control
the outcome of this case.
Defendant also relies on State v. Jones, 322 N.C. 585, 369
S.E.2d 822 (1988). In Jones, our Supreme Court held the trial
court erred in admitting evidence under Rule 404(b) when the
evidence established that although the acts committed were similar,
there was a seven-year gap between the previous acts and the crimes
with which the defendant was charged. In this case, however, the
prior incident occurred just six days prior to the act which led to
Defendant's criminal charges. Accordingly, Jones does not control.
Since both of these cases are distinguishable, Defendant's reliance
on them is misplaced. We conclude that the trial court properly
determined the evidence regarding the narcotics sale that Defendant
made to Pettis on 13 January 2005 was admissible under Rule 404(b).
Additionally, we conclude that the trial court did not abuse
its discretion in determining that the evidence was admissible
under Rule 403 because it was more probative than prejudicial. At
trial, before determining the ultimate admissibility of the
evidence, Judge Poovey heard testimony on voir dire and considered
arguments from the State and from Defendant's counsel.
Furthermore, Judge Poovey gave a limiting instruction to the jury
in order to minimize the likelihood that the jury would rely on theevidence of the other sale for any improper purpose. Specifically,
the trial court instructed the jury that
[t]he evidence that you're about to hear [is]
regarding another incident that allegedly
occurred on January 13, 2005, some [six] days
before the alleged crime that the defendant
stands trial for on January 19th 2005. You
must not consider this evidence . . . for the
purpose of proving the character of the
defendant, or for the purpose of proving that
the defendant acted in conformity with what
this evidence seems to show . . . . This
evidence should be considered by you only for
the purpose of showing that the defendant had
the intent, . . . a common plan, scheme,
system or design involving the crime charged
in this case.
We hold that because Defendant's prior sale of narcotics was
conducted in a similar manner and occurred in close temporal
proximity to the sale for which he was charged in this case,
evidence of the prior sale was admissible under Rule 404(b).
Furthermore, because the trial judge carefully considered the
impact the evidence could have on Defendant's case and because he
gave the jury a proper limiting instruction to help reduce the
likelihood of an improper application, the trial court did not
abuse its discretion in determining that the evidence was
admissible under Rule 403. This assignment of error is overruled.
MOTION FOR MISTRIAL
Defendant also contends the trial court erred in failing to
grant his motion for a mistrial after Officer Howington was allowed
to testify regarding the previous narcotics sale. In support of
this assignment of error, Defendant reiterates his argument that
Officer Howington's testimony violated the North Carolina Rules ofEvidence and resulted in substantial and irreparable prejudice to
Defendant. Therefore, Defendant argues, the trial court should
have granted a mistrial. We disagree.
Section 15A-1061 of the Criminal Procedure Act requires that
[t]he judge must declare a mistrial upon the defendant's motion if
there occurs during the trial an error or legal defect in the
proceedings, or conduct inside or outside the courtroom, resulting
in substantial and irreparable prejudice to the defendant's case.
N.C. Gen. Stat. § 15A-1061 (2005). Our Supreme Court has
instructed that a mistrial should be granted only when the
improprieties make it impossible for the defendant to receive a
fair and impartial verdict. State v. Warren, 327 N.C. 364, 376,
395 S.E.2d 116, 123 (1990) (quotations marks and citations
It is well settled that the decision of
whether to grant a mistrial rests in the sound
discretion of the trial judge and will not be
disturbed on appeal absent a showing of an
abuse of discretion. . . . [A] trial court
may be reversed for an abuse of discretion
only upon a showing that its ruling was so
arbitrary that it could not have been the
result of a reasoned decision.
State v. Upchurch, 332 N.C. 439, 453-54, 421 S.E.2d 577, 585 (1992)
(quotation marks and citation omitted).
As discussed supra, the evidence at issue here was elicited
when Defendant's attorney was cross-examining Officer Howington,
and specifically asked the officer how long he had been involved
in the particular controlled buy operation that led to the 19
January 2005 purchase. In response, Officer Howington stated thatthe department had made previous controlled buys from Defendant.
Defendant's attorney immediately objected and moved for a mistrial.
The trial judge first denied both the objection and motion for a
mistrial. However, upon further consideration, the judge sustained
the objection, and again denied the motion for mistrial. Judge
Poovey then told Defendant's attorney that he
would be glad to tell the jury that the
objection that you made to the officer's
testimony that he had conducted previous buys
from this defendant is sustained and the
motion to strike that testimony is allowed;
they are not to consider that testimony
whatsoever in any manner during their jury
deliberations. Now, whether or not you ask
for that is up to you. I'll be glad to give
it to them if you so request.
Defendant's attorney declined the curative instruction from the
A review of the transcript reveals that before ruling on
defense counsel's renewed motion for a mistrial, outside the
presence of the jury, Judge Poovey heard argument from counsel and
asked if the State was planning to offer similar evidence under
Rule 404(b). In response, the prosecutor informed the trial court
that [w]e had [previously] discussed it and thought we would wait
to see how things were going. In light of [Officer Howington's]
statement, we may do so. Clearly, similar evidence, if offered
and admissible under Rule 404(b), would serve to limit any
prejudicial effect Officer Howington's statement may have had on
Defendant's case. The consideration Judge Poovey gave to the
State's intention to offer Rule 404(b) evidence and to the
arguments of counsel establishes that his decision was notarbitrary. Rather, Judge Poovey considered the evidence and its
potential impact on Defendant's trial, and made a reasoned decision
to deny the motion for mistrial. Furthermore, because similar
evidence of other controlled narcotics sales that Defendant made
was later properly admitted under Rule 404(b), Defendant's argument
that his case was substantially and irreparably prejudiced by
Officer Howington's statement is not persuasive. This assignment
of error is overruled.
MOTION TO DISMISS
By his final assignment of error, Defendant argues the trial
court erred by failing to dismiss the charges of possession with
intent to sell or deliver cocaine, and selling or delivering
cocaine, due to insufficiency of the evidence. Specifically,
Defendant asserts that because the video evidence does not depict
the narcotics changing hands and because Pettis, the only
testifying eyewitness, was not credible, the State failed to
present substantial evidence of the crime being committed by
Defendant. This argument lacks merit.
To survive a motion to dismiss, the State must present
substantial evidence of each essential element of the offense
charged and evidence that the accused was the perpetrator. State
, 299 N.C. 95, 261 S.E.2d 114 (1980). Substantial
evidence is evidence that is existing and real, not just seeming
or imaginary. Id.
at 99, 261 S.E.2d at 117 (citation omitted).
In ruling on a motion to dismiss, the court views the evidence in
the light most favorable to the State, and the State is entitled toevery reasonable intendment and every reasonable inference to be
drawn therefrom. State v. Thomas
, 296 N.C. 236, 244, 250 S.E.2d
204, 208 (1978) (citation omitted).
If there is substantial evidence . . . to support a finding
that the offense charged has been committed and that defendant
committed it, a case for the jury is made and nonsuit should be
. at 244, 250 S.E.2d at 208_09 (citation omitted). The
trial judge does not weigh the evidence, consider evidence
unfavorable to the State, or determine any witness' credibility.
State v. Robinson
, 355 N.C. 320, 336, 561 S.E.2d 245, 256
(quotation marks and citation omitted), cert. denied
, 537 U.S.
1006, 154 L. Ed. 2d 404 (2002). 'Credibility and weight are for
determination by the jury unassisted by the judge.' State v.
, 330 N.C. 547, 553, 411 S.E.2d 610, 613 (1992) (quoting
State v. Walker
, 266 N.C. 269, 273, 145 S.E.2d 833, 836 (1966)).
At the heart of Defendant's position is his argument that the
motion to dismiss should have been granted because, although
[o]fficers heard voices on the recording made by Pettis, . . . no
specific identification of [Defendant] occurred. No money was seen
changing hands, no controlled substances were shown, and no
evidence of any drug transaction was depicted. Therefore,
Defendant argues, [t]he state's case must rise and fall on the
testimony of . . . Pettis, a drug addict with a significant
criminal history. The trial judge, however, does not weigh and
determine the credibility of the witnesses; that is the jury's
task, as well-settled case law establishes. Further, because theState is entitled to every favorable inference from the evidence,
the evidence presented through the testimony of S.P.D. officers and
Pettis was sufficient to submit the case to the jury. Defendant's
argument that the State's evidence was not credible is for the
jury, not for a Court of the appellate division. This assignment
of error is overruled.
For the reasons stated, we conclude Defendant received a fair
trial, free of error.
Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).
In his brief to this Court, Defendant's attorney repeatedly
asserts that Officer Howington proffered this testimony while the
State was examining him. However, upon review of the transcript,
it is clear that Defendant's attorney was cross-examining Officer
Howington when the officer mentioned previous buys. Furthermore,
upon reconsideration, the trial court sustained Defendant's
objection to this testimony, a fact not acknowledged by Defendant's
attorney in his brief. We caution counsel to be careful when
preparing an appellate brief, so as not to mislead the Court or to
make inaccurate assertions.
The trial court conducted a voir dire
hearing before ruling
that the 404(b) evidence was admissible.
*** Converted from WordPerfect ***