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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA06-1092


Filed: 4 September 2007


v .                         Cleveland County
                            Nos. 05 CRS 5419
                                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.

    STEPHENS, Judge.

    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 narcotics purchases.
    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 this operation?
        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 a mistrial.
        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 Defendant.   (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 error.

    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 presented.    

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.
    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.
    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 omitted).
        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 trial court.
    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.
    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 v. Powell, 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 denied.” Id. 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. Hester, 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).

Footnote: 1
    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.

Footnote: 2
    The trial court conducted a voir dire hearing before ruling that the 404(b) evidence was admissible.

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