State v. Schwendeman

• Court: Court of Appeals of North Carolina
• Decided: August 19, 2014
• Docket: 14-159
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-159 NORTH CAROLINA COURT OF APPEALS

Filed: 19 August 2014

STATE OF NORTH CAROLINA

v. Onslow County No. 10CRS057151 ERIK SCHWENDEMAN, Defendant.

Appeal by defendant from judgments entered on or about 5

July 2013 by Judge William D. Parsons in Onslow County Superior

Court. Heard in the Court of Appeals 11 August 2014.

Attorney General Roy A. Cooper III, by Special Deputy Attorney General Hilda Burnett-Baker, for the State.

Russell J. Hollers, III, for defendant-appellant.

STROUD, Judge.

Defendant Erik Schwendeman appeals from the judgments

entered after a jury found him guilty of four counts of

trafficking in cocaine and he pled guilty to having attained

habitual felon status. Defendant contends the trial court

committed plain error by admitting testimony that vouched for

the credibility of a testifying informant. We find no error. -2- On 2 September 2009, a confidential narcotics informant

contacted the Onslow County Sheriff’s Department and told

Detective Jeffrey Sanders that he was able to arrange the

purchase of 1.25 ounces of cocaine from defendant for $1,500.

The informant began cooperating with the Sheriff after his own

arrest for crack cocaine possession. Major Jon Lewis testified

that in vetting informants, officers attempted to corroborate

other information they provided about narcotics activity to

verify their reliability. This informant was deemed reliable

because he was able to provide officers accurate information

about other narcotics activity.

Officers outfitted the informant with video surveillance

equipment and followed him to a mobile home park for the

controlled buy. The informant arranged to meet defendant at the

mobile home park, entered a trailer with defendant, and bought

cocaine from another man, known to the informant as “Joe,” while

defendant was present. Defendant left the buy with the

informant. The officers could not observe the informant while

he was in the trailer, but they met with him a short time

afterward and collected a bag containing the substance he

purchased. The substance was tested and confirmed to be -3- cocaine. The video recording of the buy was played for the jury

and confirmed defendant was present for the transaction.

The trial court instructed the jury on acting in concert as

to each trafficking count, and the jury found defendant guilty

of separate counts of trafficking in cocaine by possession, by

sale, by delivery, and by transportation. Defendant pled guilty

to having attained habitual felon status, and the trial court

sentenced him to four concurrent terms of 135 to 171 months

imprisonment. Defendant appeals.

In his sole argument on appeal, defendant contends the

trial court committed plain error by permitting Major Lewis to

testify about the informant’s reliability, which he contends

constituted vouching for his credibility in violation of N.C.

Gen. Stat. § 8C-1, Rule 608 (2013). We disagree.

In cases where a defendant does not object to the admission

of evidence, the appellate court must review for plain error.

State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997);

see also N.C.R. App. P. 10(a)(4). “For error to constitute

plain error, a defendant must demonstrate that a fundamental

error occurred at trial. To show that an error was fundamental,

a defendant must establish prejudice—that, after examination of

the entire record, the error had a probable impact on the jury’s -4- finding that the defendant was guilty.” State v. Lawrence, 365

N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citations and

quotation marks omitted). “Moreover, because plain error is to

be applied cautiously and only in the exceptional case, the

error will often be one that seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings[.]” Id.

(citation and quotation marks omitted).

Here, defendant cannot satisfy the plain error standard.

The evidence established that the informant arranged the buy

through defendant and that defendant was present for the buy.

Video evidence corroborated the informant’s claim that defendant

was present and the video was played for the jury. The jury was

instructed on acting in concert as to each trafficking count.

In light of all of that evidence, defendant cannot establish

that the testimony he contends vouched for the informant’s

credibility had a probable impact on the outcome of the case.

Accordingly, we do not find that the trial court committed plain

error in admitting the testimony.

Moreover, “it is well established that the admission of

evidence without objection waives prior or subsequent objection

to the admission of evidence of a similar character.” State v.

Augustine, 359 N.C. 709, 720, 616 S.E.2d 515, 525 (2005) -5- (citations and quotation marks omitted), cert. denied, 548 U.S.

925, 165 L.Ed. 2d 988 (2006). Further, we note that a defendant

waives any objection to the admission of evidence if he elicits

that same evidence on cross-examination without objection.

State v. West, 202 N.C. App. 479, 484, 689 S.E.2d 216, 220

(2010) (citation omitted).

Here, defendant cross-examined Major Lewis extensively

about the process of verifying the informant’s reliability and

elicited even more of the same testimony to which he now objects

on appeal after failing to object to the admission of that

testimony during Major Lewis’s direct examination. Accordingly,

defendant waived any objection to Major Lewis’s testimony about

the informant’s reliability through the introduction of the same

evidence on cross-examination.

NO ERROR.

Judges BRYANT and HUNTER, JR., Robert N. concur.

Report per Rule 30(e).