An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-290
NORTH CAROLINA COURT OF APPEALS
Filed: 7 October 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County No. 12 CRS 233035-36, 13 CRS 599 JAMEL LAPOINTE ALLEN, Defendant.
Appeal by defendant from judgments entered 28 August 2013
by Judge Richard D. Boner in Mecklenburg County Superior Court.
Heard in the Court of Appeals 27 August 2014.
Attorney General Roy Cooper, by Special Deputy Attorney General Terence D. Friedman, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Anne M. Gomez, for defendant. -2- ELMORE, Judge.
On 28 August 2013, a jury found Jamel Lapointe Allen
(defendant) guilty of possession of a firearm by a felon and of
possession of drug paraphernalia. Defendant pleaded guilty to
attaining the status of a habitual felon. The trial court
sentenced defendant to 60 to 84 months imprisonment for the
possession of firearm by felon charge, concurrent to a sentence
of 60 days imprisonment for possession of drug paraphernalia.
Defendant raises five evidentiary issues on appeal. After
careful consideration, we hold that defendant received a trial
free from prejudicial error.
I. Background
The State first called Officer Daniel Bignall with the
Charlotte-Mecklenburg Police Department. Officer Bignall
testified that he was assigned to the Freedom Division Focus
Mission Team, “a violent crime suppression unit” that “patrol[s]
areas where we have problems with robbers, drugs, [and]
prostitution.” On 26 July 2012, Officer Bignall and eight to
eleven additional officers executed a search warrant at 3136
Timberbrook Drive, Apartment B in Charlotte. The officers
entered through a sliding glass door in the rear of the
apartment. Officer Bignall testified he entered “Bedroom Number -3- 1” (bedroom 1) and found defendant sitting on the bed.
Defendant and a female who was also present in the apartment
were moved to the living room and read their Miranda warnings.
Officer Bignall searched bedroom 1 and found defendant’s
criminal record and paperwork from the DMV with defendant’s name
on it in the closet. Officer Bignall noted that the closet
otherwise contained only men’s clothing. Officer Bignall
confiscated two digital scales, sandwich baggies, and a razor
blade from the top of the dresser and defendant’s cell phone,
which was sitting on the bed.
Officer Brandon Williamson with the Freedom Division Focus
Mission Team participated in the execution of the search warrant
at the Timberbrook apartment. Officer Williamson searched
bedroom 1 and located a North Carolina ID belonging to
defendant. The ID listed defendant’s address as 6039 Mary
Blaire Lane, Charlotte. Officer Williamson noted that the dry-
cleaning in the closet was tagged with the first four letters of
defendant’s last name and the invoice had defendant’s full name
on it.
When he lifted the mattress, Officer Williamson uncovered a
Smith & Wesson semi-automatic firearm with built-in laser sight.
A loaded magazine for the firearm was next to it. When asked, -4- “was there anything else in that room that indicated that
someone [besides defendant] was using that room[?]”, Officer
Williamson responded, “No, not that I observed.” Officer
Williamson testified that defendant admitted in an interview he
had touched and held the firearm but denied owning it.
Officer Alex Saine, also with the Freedom Division Focus
Mission Team, testified that defendant was found in bedroom 1
and the female was found in a second bedroom. Officer Saine
participated in the search of bedroom 1. He discovered a safe
in the closet that contained defendant’s birth certificate and
other documents in defendant’s name.
Officer Saine testified that in an interview, defendant
initially referred to the cell phone found on the bed in bedroom
1 as “his.” However, when confronted with evidence that the
phone’s home screen displayed a picture of the firearm, “all of
the sudden he didn’t know about the phone.” When asked about a
video of the firearm on the phone, defendant again denied that
the cell phone was his. Officer Saine testified that the cell
phone video showed a male holding the Smith & Wesson firearm—
“showing it off for the camera.” There was a male voice
narrating, and the video was shot in bedroom 1. -5- Rachael Scott, DNA analyst for the Charlotte-Mecklenburg
Police Department’s crime laboratory, testified that defendant’s
DNA profile was found on the grip of the firearm as well as on
the magazine. Based on the evidence, defendant was indicted on
charges of possession of a firearm by a felon, possession with
intent to sell or deliver a controlled substance, and possession
of drug paraphernalia. However, the controlled substance did
not test positive as a narcotic. The State therefore dismissed
the charge of possession with intent to sell or deliver a
controlled substance.
Defendant testified on his own behalf at trial. Defendant
alleged that at no time did he reside at the Timberbrook
apartment. He stated that he went to the Timberbrook apartment
on 26 July 2012 to pick up Charmane Reddy, a friend who needed a
ride to work. After dropping Ms. Reddy off, defendant testified
that he returned to the Timberbrook address to get something to
eat and “20 minutes later the police came.” Defendant testified
that he had personal items in bedroom, “for storage basically.”
Defendant stated that many of the personal items in bedroom 1
belonged to his deceased father, including the dry-cleaning.
Defendant denied storing the digital scale and firearm in
bedroom 1. -6- II. Analysis
A. Motion for Mistrial
Defendant contends the trial court erred in failing to
grant his motion for a mistrial after Officer Saine testified
that defendant was arrested for possession of cocaine.
Defendant argues that the admission of Officer Saine’s testimony
violated the North Carolina Rules of Evidence and resulted in
substantial and irreparable prejudice to him. We disagree.
Under N.C. Gen. Stat. § 15A–1061 (2013), a mistrial is
warranted when “there occurs during the trial . . . conduct
inside or outside the courtroom, resulting in substantial and
irreparable prejudice to the defendant’s case.” The trial
court’s denial of a motion for mistrial is reviewed only for
manifest abuse of discretion. State v. King, 343 N.C. 29, 45,
468 S.E.2d 232, 242 (1996).
The general rule is that in a prosecution for a particular crime, the State cannot offer evidence tending to show that the accused has committed another distinct, independent, or separate offense. . . . In appraising the effect of incompetent evidence once admitted and afterwards withdrawn, the Court will look to the nature of the evidence and its probable influence upon the minds of the jury in reaching a verdict. In some instances because of the serious character and gravity of the incompetent evidence and the obvious difficulty in erasing it from the mind, the -7- Court has held to the opinion that a subsequent withdrawal did not cure the error. But in other cases the trial courts have freely exercised the privilege, which is not only a matter of custom but almost a matter of necessity in the supervision of a lengthy trial. Ordinarily where the evidence is withdrawn no error is committed. This is also the rule when unresponsive answers of a witness include incompetent prejudicial statements and the court on motion or ex mero motu instructs the jury they are not to consider such testimony. Whether the prejudicial effect of such incompetent statements should be deemed cured by such instructions depends upon the nature of the evidence and the circumstances of the particular case.
State v. Aycoth, 270 N.C. 270, 272–73, 154 S.E.2d 59, 60–61
(1967) (citations and quotations omitted).
Because the substance seized from the Timberbrook apartment
did not test positive as an illegal narcotic, the State
dismissed the charge of possession with intent to sell or
deliver a controlled substance prior to trial and agreed not to
reference the charge at trial. The evidence at issue here was
elicited when the State specifically asked Officer Saine on what
charges was defendant arrested. Officer Saine responded: “For
possession of a firearm by a felon, [and] possession of
cocaine.” Defendant immediately objected to this testimony, but
the trial court overruled the objection. During a bench -8- conference the trial court reconsidered--denying defendant’s
motion for mistrial but agreeing to strike the contested
testimony from the record. As such, the trial court issued the
following curative instruction:
Ladies and gentlemen, the testimony just prior to the break by the officer, the defendant was charged with a particular offense, is stricken. The fact that someone has been charged with something is no evidence of guilt, and you’re to disregard the officer’s answer about what the defendant was charged with. That answer is not to influence your decision in its weighing or is to play any part in your deliberations.
Defendant contends that “the knowledge that [he] had been
arrested for possession of cocaine was so highly prejudicial it
could not be erased from the jurors’ minds with a curative
instruction.” We are not persuaded. Defendant cites State v.
Scott, 331 N.C. 39, 413 S.E.2d 787 (1992) to support his
contention. In Scott, the defendant was on trial for second-
degree rape. The State elicited testimony from an acquaintance
of the defendant who testified that the defendant had raped her
two years earlier under similar circumstances. Id. at 41, 413
S.E.2d at 788. The defendant had been tried and acquitted of
the alleged rape. Our Supreme Court held that that
evidence that defendant committed a prior -9- alleged offense for which he has been tried and acquitted may not be admitted in a subsequent trial for a different offense when its probative value depends, as it did here, upon the proposition that defendant in fact committed the prior crime. To admit such evidence violates, as a matter of law, Evidence Rule 403.
Id. at 42, 413 S.E.2d at 788. “When the intrinsic nature of
the evidence itself is such that its probative value is always
necessarily outweighed by the danger of unfair prejudice, the
evidence becomes inadmissible under the rule as a matter of
law.” Id. at 43, 413 S.E.2d at 789.
In Scott, the link between the inadmissible evidence and
the crime with which the defendant was charged was certain and
unmistakable. Here, Officer Saine’s mere statement that
defendant was arrested for possession of cocaine does not
corroborate the additional evidence the State presented at
trial. There is little if any connection between the
incompetent evidence and the crimes tried in the instant case.
We hold there is no reason to believe that defendant was
prejudiced by the admission of this evidence or that the jury
depended upon this evidence in any way to arrive at the guilty
verdict. The error was cured by prompt and adequate action by
the trial court, “since the presumption is that jurors will -10- understand and comply with the instructions of the court.”
State v. Britt, 288 N.C. 699, 713, 220 S.E.2d 283, 292 (1975).
Accordingly, the trial court did not abuse its discretion in
denying defendant’s motion for a mistrial.
B. Testimony of Job Duties
Defendant next argues that the trial court erred in
allowing the officers to testify that they were assigned to the
Freedom Division Focus Team, which is a street drug interdiction
unit and a violent crime suppression unit that investigates
street level drug crimes within the Freedom Division and
murders, rapes, and robberies. We disagree.
We note at the outset that defendant did not object to the
admission of the contested testimony at trial. As such, we
review this argument for plain error. “A reversal for plain
error is only appropriate in the most exceptional cases.” State
v. Duke, 360 N.C. 110, 138, 623 S.E.2d 11, 29 (2005). Plain
error should be applied only when the defendant proves that,
“after reviewing the entire record, it can be said the claimed
error is a fundamental error, something so basic, so
prejudicial, so lacking in its elements that justice cannot have
been done[.]” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375,
378 (1983) (citations and quotations omitted) (alteration in -11- original). An appellate court “must be convinced” by the
defendant that “absent the error the jury probably would have
reached a different verdict.” State v. Walker, 316 N.C. 33, 39,
340 S.E.2d 80, 83 (1986).
Evidence is relevant if it has “any tendency 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 (2013). Generally, all relevant evidence is admissible, N.C.
Gen. Stat. § 8C–1, Rule 402, but evidence that has “not been
connected to the crime charged and which [has] no logical
tendency to prove any fact in issue [is] irrelevant and
inadmissible.” State v. Wallace, 104 N.C. App. 498, 502, 410
S.E.2d 226, 228–29 (1991).
Here, Officer Bingal testified that he worked on the
“Freedom Division Focus Mission Team,” which is “a unit with
uniformed patrol and uniformed [sic] police car, and the
lieutenants tell us where to go where crime spikes have
occurred. . . . We’re a violent crime suppression unit,
basically. We patrol areas where we have problems with
robberies, drugs, prostitution. We do a lot of search
warrants.” Officer Brandon Williamson testified he was -12- “assigned to the Freedom Division in their Focus Mission Team,”
where he investigated “[m]urders, rapes, robberies, drugs,
prostitution, and weapon offenses. Basically street crimes in
the division.” Lastly, Officer Saine testified he was assigned
to the “Freedom Division, Focus Mission Team,” which “is
basically a street crimes unit, or also known as a Street Drug
Interdiction Unit. We investigate street level drug crimes with
the Freedom Division.”
On appeal, the crux of defendant’s issue is that the
foregoing testimony constituted inadmissible character evidence
tending to show that defendant was a “hardened criminal.”
Defendant contends that the officers’ testimony lacked relevance
and “had nothing to do with [defendant’s] guilt or innocence.”
Further, defendant contends that he was irreparably prejudiced
by its admission. In support of his argument, defendant relies
on State v. Hinton, a case in which this Court held that it was
error to allow Sergeant Bray to make ninety-one references to
gangs or gang-related activity when the gang-related testimony
“had no tendency to make any fact of consequence more likely
than not.” State v. Hinton, ___ N.C. App. ___, ___, 738 S.E.2d
241, 246 (2013). -13- Defendant’s reliance on Hinton is misplaced. Our holding
in Hinton was premised on the well-established rule that
evidence of “membership in [a gang] organization may only be
admitted if relevant to the defendant’s guilt.” Id. Because
the gang-related evidence was “never connected to the crime
charged” in the Hinton case, we held that it was irrelevant and
inadmissible. Id. at 246-47. In the instant case, the
testifying officers were merely explaining their role with the
Charlotte-Mecklenburg Police Department on the Freedom Division
Focus Mission Team, which included investigating murders, rapes,
robberies, drugs, prostitution, and weapon offenses. At no
point during trial was it suggested that defendant was the
perpetrator of crimes beyond which he had been charged. There
was no reason for the jury to conclude defendant was a murderer
or rapist or an otherwise “hardened criminal.” The trial court
did not err.
C. Best Evidence Rule
Defendant next contends that the trial court violated the
best evidence rule when it permitted Officer Saine to testify to
the contents of the video found on defendant’s cell phone when
the video itself was allegedly available. We agree that the
trial court may have violated the best evidence rule (assuming -14- the cell phone video was available to be shown in court).
However, such error did not constitute prejudicial error.
According to our Rules of Evidence, “[t]o prove the content
of a writing, recording, or photograph, the original writing,
recording, or photograph is required, except as otherwise
provided in these rules or by statute.” N.C. Gen. Stat. § 8C-1,
Rule 1002 (2013). “The best evidence rule requires that
secondary evidence offered to prove the contents of a recording
be excluded whenever the original recording is available.”
State v. York, 347 N.C. 79, 91, 489 S.E.2d 380, 387 (1997).
At trial, Officer Saine testified on direct examination
that he watched a video on defendant’s cell phone after
defendant was arrested:
Q. Did you ever have an opportunity to watch that video?
A. Yes.
Q. Was it from the same phone that we were talking about?
Q. And what did you actually see on the video?
A. There’s a male holding this pistol and just showing it off for the camera. There is a male voice in the background more or less narrating what’s going on. The background of the video obviously was taken -15- in the defendant's bedroom.
Q. Was it showing the same setup as where the defendant was found?
Q. And the gun that was shown on the video, did it look the same as the gun that was collected from the bedroom?
Q. And what about it was so similar?
A. The size of it, as well as the red dot sight that’s a feature of that pistol.
MR. OSHO: Your Honor, at this time I believe all this is hearsay, and because it was heard.
THE COURT: I’m sorry?
MR. OSHO: Your Honor, I believe the video is here. That would be the best evidence for the jury[.] [The officer’s opinion as to the contents of the video] would be hearsay, your Honor.
THE COURT: Well, sustained.
From the record it is unclear whether the cell phone video
was in fact available at trial. Defendant merely stated he
“believed” the video was present at trial, and there was no
additional discussion as to whether it should be admitted.
Assuming, without deciding, that the admission of Officer -16- Saine’s testimony concerning the contents of the video was
erroneous and violated the best evidence rule, we are
unconvinced that this error “probably resulted in the jury
reaching a different verdict than it otherwise would have
reached.” State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188,
193 (1993) (citation and quotation omitted).
The State presented sufficient evidence of defendant’s
constructive possession of the firearm irrespective of Officer
Saine’s testimony pertaining to the contents of the cell phone
video. “Possession of a firearm may [] be actual or
constructive.” State v. Boyd, 154 N.C. App. 302, 307, 572
S.E.2d 192, 196 (2002). “Constructive possession of an item
exists when a person does not have the item in physical custody,
but . . . nonetheless has the power and intent to control its
disposition.” State v. Young, 190 N.C. App. 458, 460, 660
S.E.2d 574, 576 (2008). Specifically, the State presented the
testimonial evidence of three law enforcement officers that
defendant was discovered in bedroom 1. Bedroom 1 also contained
numerous personal items belonging to defendant, including his
ID, birth certificate, criminal record, food-stamp card, and
clothing. The Smith & Wesson firearm was found under the
mattress and scales were found on the dresser in bedroom 1. The -17- firearm tested positive for defendant’s DNA. There was evidence
presented that defendant referred to the confiscated cell phone
as “his,” until law enforcement officers pointed out that the
home screen displayed a photograph of the firearm. There was
evidence that defendant admitted to having touched and played
with the firearm, but denied owning it.
Based on the totality of the circumstances, the State’s
evidence showing defendant’s ownership or control of the
contraband establishes sufficient incriminating circumstances to
support a conclusion that defendant constructively possessed the
contraband. Id. at 461, 660 S.E.2d at 577. Even if Officer
Saine’s testimony regarding the cell phone video had been struck
from the record or if the video itself had been shown, the jury
probably would not have reached a different verdict. Walker,
supra.
D. Officer Saine’s Testimony
In defendant’s final two arguments, he contends that the
trial court committed reversible error in admitting portions of
Officer Saine’s testimony. In particular, defendant avers that
he was irreparably prejudiced by the admission of Officer
Saine’s testimony pertaining to (1) a description of the items
found in the safe as “dominion items which suggest who the safe -18- belongs to,” (2) his references to bedroom 1 as “the defendant’s
bedroom,” (3) and his testimony that defendant’s birth
certificate was found in the safe. The core of defendant’s
argument is that, without the admission of this evidence, the
State would have been unable to prove constructive possession of
the contraband. We disagree.
Given the State’s evidence of constructive possession
detailed in the preceding discussion, and our conclusion that
the State presented sufficient evidence to support the jury’s
determination that defendant constructively possessed the
contraband, we overrule defendant’s final two arguments. There
was sufficient evidence for the jury to find that defendant
constructively possessed the contraband irrespective of Officer
Saine’s testimony.
E. Conclusion
In sum, the trial court did not err in (1) denying
defendant’s motion for mistrial; (2) allowing the officers to
testify to their duties with the Freedom Division Focus Team;
and (3) allowing Officer Saine to describe the contents of the
safe as “dominion items,” call bedroom 1 “defendant’s bedroom,”
and testify that defendant’s birth certificate was found in the
safe. The State presented sufficient competent evidence that -19- defendant constructively possessed the contraband. Assuming
arguendo that the cell phone video was available at trial, the
trial court violated the best evidence rule by allowing Officer
Saine to testify to the contents of the video. However, this
error did not constitute prejudicial error. Accordingly, we
hold that defendant received a trial free from prejudicial
error.
No prejudicial error.
Judges CALABRIA and STEPHENS concur.
Report per Rule 30(e).