               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-1333

                                Filed: 2 October 2018

Cabarrus County, Nos. 14CRS055547 & 14CRS055548

STATE OF NORTH CAROLINA

              v.

KEVIN DESHAUN DIXON, Defendant.


        Appeal by Defendant from Judgments entered 25 May 2017 by Judge Martin

B. McGee in Cabarrus County Superior Court. Heard in the Court of Appeals 16 May

2018.


        Attorney General Joshua H. Stein, by Special Deputy Attorney General Marc
        Bernstein, for the State.

        Marilyn G. Ozer for Defendant-Appellant.


        INMAN, Judge.


        Defendant Kevin Deshaun Dixon (“Defendant”) appeals from judgments

entered following a jury verdict finding him guilty of discharging a firearm into an

occupied vehicle in operation inflicting serious injury, felony murder, and possession

of marijuana with the intent to sell. Defendant argues that the trial court erred in:

(1) failing to enter written orders on several motions to suppress; (2) admitting into

evidence inadmissible and unduly prejudicial photographs; and (3) permitting the
                                    STATE V. DIXON

                                   Opinion of the Court



victim’s fiancé, an eye witness, to identify Defendant in court. After careful review,

we hold that Defendant has failed to demonstrate error.

                 I. FACTUAL AND PROCEDURAL HISTORY

      On 26 November 2014, Maria Monje (“Monje”) and her fiancé Andres Alberto

Martinez Trochez (“Martinez Trochez”) were driving through a neighborhood in

Concord, North Carolina, looking to buy marijuana. Monje was driving the car, and

Martinez Trochez was in the front passenger seat. As they were searching for a

dealer, the two spotted a group of five to eight men standing by a silver Ford Mustang

with a black racing stripe. One of the men waved and shouted at Monje and Martinez

Trochez, beckoning them to pull over.        They did, and the man approached the

passenger side of their vehicle.     The man asked to borrow Martinez Trochez’s

cellphone; Martinez Trochez asked if the man had any marijuana. At this point, the

man opened Martinez Trochez’s car door, pulled a small black gun out from under his

shirt, held it to Martinez Trochez’s chest, and demanded money.         While Monje

searched the backseat for cash, the man shot Martinez Trochez. Seeing her fiancé

had been shot, Monje immediately took control of the vehicle and drove away from

the men gathered by the Mustang. As she was fleeing, at least two more shots were

fired at her car by another man, shattering a rear passenger window.

      Monje drove to a nearby police station, where officers attempted to save

Martinez Trochez’s life. EMS arrived a short time later and pronounced Martinez



                                          -2-
                                   STATE V. DIXON

                                  Opinion of the Court



Trochez dead. Monje described for police the location of the shooting and the silver

Mustang the shooters were congregated around when she and Martinez Trochez had

pulled over.

      Law enforcement immediately broadcast the description of the Mustang and

began searching for the vehicle in the area of the shooting. Detective Patrick Merritt

(“Detective Merritt”) drove Monje to the scene of the crime while the search for the

Mustang was underway. While Monje and Detective Merritt were en route, another

officer located a silver Mustang with a black racing stripe on a road a few dozen yards

away from the crime scene. The officer ran the license plate and discovered the

Mustang was registered to Defendant.

      Meanwhile, at the crime scene with Detective Merritt, Monje identified

Charles Mann (“Mann”) as one of the men present at the shooting. The detective then

drove Monje to the location of the Mustang, where she positively identified the vehicle

as the one from the crime scene. Police also searched Monje’s vehicle, discovering

shell casings and bullets matching a .45 caliber gun.

      In the course of the investigation into Martinez Trochez’s homicide,

investigators asked Monje to review a photographic line-up of five men. Monje

identified two men, one of whom was Defendant, as the possible shooter. Monje’s

tentative identification, combined with Defendant’s ownership of the Mustang, led

police to focus on Defendant as their prime suspect.



                                         -3-
                                   STATE V. DIXON

                                  Opinion of the Court



        Six days after the shooting, on 2 December 2014, warrants for Defendant’s

arrest were issued. He was arrested the following day and indicted on 15 December

2014.

        While Defendant was incarcerated pending trial, a sheriff’s deputy at the

Cabarrus County detention center found a “kite,” or a letter passed between inmates,

bearing Defendant’s initials on the floor outside the cluster of cells housing him. The

kite discussed in detail Defendant’s case, mentioned Mann as the State’s best

evidence against Defendant, and asserted that Mann needed to keep quiet, as he was

Defendant’s alibi. Defendant later asked the sheriff’s deputy what happened to the

kite, as “he had written some shit on it that he shouldn’t have.”

        Police were also provided with a second letter found by a cleaning crew that

had worked in the home where Defendant’s Mustang was registered (the “Cleaning

Crew Letter”). That letter, addressed to Defendant’s brother, discussed in detail the

evidence the State had collected showing Defendant’s guilt, and mentioned that

Mann’s testimony would be detrimental to his defense. The letter also stated that

Defendant would be convicted if Monje and Mann testified. The letter provided

names and contact information of people who could be paid to prevent those two

witnesses from testifying.

        Other evidence collected by investigators included a cell phone taken from

Defendant. The phone contained two photographs of firearms (the “Gun Photos”),



                                         -4-
                                        STATE V. DIXON

                                       Opinion of the Court



including one attached to a message sent from Defendant’s phone saying “I stay wit

dem irons,” referring to the guns. A third photograph recovered from the phone

showed Defendant and another man leaning against the hood of a silver Mustang

with a black racing stripe on the street where Martinez Trochez was shot (the

“Mustang Photo”). Both men in the photo are displaying the hand sign for the number

“4” with their left hands, while the man on the right is displaying a closed right hand

with his middle finger extended.

       Defendant filed several pre-trial motions to suppress the above evidence,

including: (1) Monje’s identification of Defendant in the photo line-up (the “Line-Up

Motion”); (2) Monje’s in-court identification of Defendant (the “ID Motion”); (3) the

kite (the “Kite Motion”); (4) Monje’s identification and descriptions of the silver

Mustang (the “Mustang Motions”); and (5) the photographs, text messages, and

location data retrieved from Defendant’s cell phone (the “Cell Phone Motion”).1 With

one exception, the trial court rendered oral orders denying these motions; however,

the trial court entered no written orders. The judge at various points described his

oral findings and conclusions as “sketches” of those he instructed the prosecutor to

include in a proposed written order, and he suggested that the parties offer additional

proposed findings of fact for him to consider. But nothing in the record suggests that



       1 The Cell Phone Motion argued only that the cell phone was unlawfully seized from
Defendant. It did not argue that the phone or files found thereon were irrelevant, prejudicial, or
otherwise inadmissible under our Rules of Evidence.

                                              -5-
                                   STATE V. DIXON

                                  Opinion of the Court



the findings and conclusions the judge recited from the bench were not, in fact, the

trial court’s actual findings and conclusions from the evidence and applicable law.

      During trial, when the State sought to introduce the Gun and Mustang Photos,

Defendant objected, asserting that the photos were inadmissible under Rules 402,

403, and 404 of our Rules of Evidence. Defendant’s counsel argued that the Gun

Photos were inadmissible because they did not match Monje’s description of the

murder weapon and were otherwise inadmissible character evidence prohibited by

Rule 404(a) of the North Carolina Rules of Evidence. Defendant’s counsel argued

that the Mustang Photo was inadmissible because the hand gestures by the men in

the photograph could be construed as gang signs by the jury and therefore constituted

inadmissible character evidence prohibited by Rule 404(b). The trial court overruled

Defendant’s objections but instructed the State not to ask any witness the meaning

of the hand gestures in the Mustang Photo; the trial judge announced his ruling from

the bench but entered no written order.

      On 25 May 2017, after two days of deliberation, the jury returned guilty

verdicts on the charges of first-degree felony murder, discharging a firearm into an

occupied vehicle while in operation inflicting serious injury, and possession with the

intent to sell marijuana. The jury found Defendant not guilty of attempted robbery

with a firearm.




                                          -6-
                                   STATE V. DIXON

                                  Opinion of the Court



      The trial court arrested judgment on the discharging a firearm charge and

sentenced Defendant to life imprisonment without parole for first-degree felony

murder. The trial court also sentenced Defendant to a minimum six months and

maximum seventeen months imprisonment for possession of marijuana with the

intent to sell, which was suspended for 24 months of supervised probation. Defendant

gave notice of appeal in open court.

                                   II. ANALYSIS

      Defendant presents three arguments on appeal: (1) the trial court committed

reversible error in failing to enter written orders on the various motions to suppress;

(2) the trial court erred in admitting the Mustang and Gun Photos; and (3) the trial

court impermissibly permitted Monje to provide an in-court identification of

Defendant. We address each argument in turn below, and hold that the trial court

did not commit error.

a. Suppression Motions

      At the outset of this analysis, we note that Defendant’s Kite, Cleaning Crew

Letter, and Mustang Motions were not submitted to the trial court with supporting

affidavits as required by N.C. Gen. Stat. § 15A-977(a). Defendant’s failure to file

affidavits with these motions is “a waiver on appeal of the right to contest the

admission of evidence on either statutory or constitutional grounds.”         State v.

McQueen, 324 N.C. 118, 128, 377 S.E.2d 38, 44 (1989). We therefore decline to review



                                         -7-
                                    STATE V. DIXON

                                   Opinion of the Court



the trial court’s orders on those motions and dismiss this portion of Defendant’s

appeal.   See State v. Holloway, 311 N.C. 573, 577, 319 S.E.2d 261, 264 (1984)

(dismissing an argument on appeal for this reason). Furthermore, it does not appear

from the record that the trial court ruled on the Mustang Motions, nor does it appear

that Defendant objected to the evidence encompassed by those motions when

introduced at trial. Defendant also does not argue plain error. As a result, Defendant

has failed to preserve review of the Mustang Motions on appeal. State v. Oglesby, 361

N.C. 550, 554-55, 648 S.E.2d 819, 821 (2007).

      When reviewing the failure of a trial court to enter a written order on a motion

to suppress, we look first to whether there exists a material conflict in the evidence

requiring a finding of fact. State v. Bartlett, 368 N.C. 309, 312, 776 S.E.2d 672, 674

(2015). “When there is no conflict in the evidence, the trial court’s findings can be

inferred from its decision[,]” and findings of fact are not required. Id. at 312, 776

S.E.2d at 674 (citation omitted). “[O]ur cases require findings of fact only when there

is a material conflict in the evidence and allow the trial court to make these findings

either orally or in writing.” Id. at 312, 776 S.E.2d at 674.

      Regardless of whether findings of fact are required, “it is still the trial court’s

responsibility to make the conclusions of law . . . [and] failure to make any conclusions

of law in the record [is] error.” State v. McFarland, 234 N.C. App. 274, 284, 758

S.E.2d 457, 465 (2014). Such conclusions “require[] ‘the exercise of judgment’ in



                                          -8-
                                         STATE V. DIXON

                                        Opinion of the Court



making a determination, ‘or application of legal principles’ to the facts found.” Id. at

284, 758 S.E.2d at 465 (quoting Sheffer v. Rardin, 208 N.C. App. 620, 624, 704 S.E.2d

32, 35 (2010)).

       Defendant argues that oral findings and conclusions made by the trial court

from the bench are insufficient because the trial judge expressly ordered the State to

prepare written orders on the motions and the State failed to do so. We disagree. If

a written order is not required and an oral order may be sufficient in certain

circumstances, Bartlett, 368 N.C. at 312, 776 S.E.2d at 674, the failure to go above

and beyond that which is required by law does not render an otherwise lawful order

erroneous.     In other words, a minimally sufficient order is still exactly that—

sufficient—even if more was ordered or requested by the trial court. Given this

standard, the trial court committed reversible error only if: (1) there are conflicts in

the evidence that the trial court failed to resolve either orally or in writing, through

an explicit factual finding, id. at 312, 776 S.E.2d at 674; or (2) the trial court failed to

make the necessary conclusions of law on the record. McFarland, 234 N.C. App. at

284, 758 S.E.2d at 465.

       Neither the trial transcript nor the court’s oral order on the Photo Line-Up

Motion noted any conflicts in the evidence, and Defendant points to none on appeal.2



       2 Defendant pointed to no conflicts concerning the Photo Line-Up Motion in his principal brief,
and identified evidentiary conflicts in his reply brief only in regard to the ID Motion.



                                                -9-
                                         STATE V. DIXON

                                        Opinion of the Court



On this record, the trial court was not required to make findings orally or in writing.3

Bartlett, 368 N.C. at 312, 776 S.E.2d at 674. Nonetheless, the trial court made

detailed findings of fact supporting its ruling. The trial court concluded as a matter

of law that the evidence challenged in the Photo Line-Up Motion was relevant and

more probative than prejudicial “after considering all the information before the

Court[,]” and that “[t]he line-up was not unduly suggestive as alleged in the motion.”

Because the trial court’s conclusions were supported by its factual findings and those

findings were supported by the evidence presented, we hold that Defendant has failed

to demonstrate reversible error. Cf., e.g., State v. Faulk, ___ N.C. App. ___, ___, 807

S.E.2d 623, 628-31 (holding reversible error occurred when the trial court denied a

motion to suppress without making a single conclusion of law, applying the law to

any facts, or disclosing the rationale for the court’s decision); McFarland, 234 N.C.

App. at 284, 758 S.E.2d at 464-65 (holding the trial court failed to make necessary

conclusions of law when it merely recited legal principles rather than drawing legal

conclusions by applying those principles to the facts).

        The trial court also recited its factual findings in detail when ruling on the ID

Motion. Despite these findings, Defendant contends that material conflicts in the

evidence were not resolved in the oral order. Specifically, Defendant asserts that



       3For example, the evidence is uncontroverted that Monje did not execute a witness confidence
statement as part of her photo line-up. Because there was no conflict here, no finding as to that fact
was required. Bartlett, 368 N.C. at 312, 776 S.E.2d at 674.

                                               - 10 -
                                          STATE V. DIXON

                                         Opinion of the Court



Monje’s inability to describe Defendant in detail in a written statement to police or to

identify Defendant conclusively in the photo line-up constituted material conflicts in

the evidence, insofar as they “materially conflict with Ms. Monje’s claim on direct-

examination that she had 100% confidence that she could identify [Defendant] on the

day of the shooting.” We disagree.

       “[A] material conflict in the evidence . . . [is] one that potentially affects the

outcome of the suppression motion.” Bartlett, 368 N.C. at 312, 776 S.E.2d at 674.

However, the only issues raised by Defendant’s evidence point to the reliability of

Monje’s in-court identification, which was not a question for the trial court:

               [A]n identification of the perpetrator of a crime is not
               inadmissible because the witness is not absolutely certain
               of the identification, so long as the witness had a
               reasonable possibility of observation sufficient to permit
               subsequent identification. Such uncertainty goes to the
               credibility and weight of the testimony, and it is well
               established that the credibility, probative force, and weight
               of the testimony are matters for the jury.

State v. Moses, 350 N.C. 741, 767, 517 S.E.2d 853, 869 (1999) (citations, quotation

marks, and original alterations omitted). Because the evidence presented, including

that pointed to by Defendant,4 did not raise a material conflict for the trial court to



       4  At oral argument, Defendant’s appellate counsel raised potential evidentiary conflicts
concerning where Monje said the shooting occurred, why Monje had stopped there, and what
interactions Defendant had with the victim at the stop. None of these conflicts was identified in
Defendant’s appellant brief, or in his reply brief. Assuming arguendo that Defendant’s argument as
to these conflicts are not waived, they do not “potentially affect[] the outcome of the suppression
motion,” and were therefore not material conflicts requiring resolution. Bartlett, 368 N.C. at 312, 776,



                                                - 11 -
                                           STATE V. DIXON

                                          Opinion of the Court



resolve in the suppression hearing, it was not required to make factual findings on

the record. Bartlett, 368 N.C. at 312, 776 S.E.2d at 674.

        The trial court concluded that the evidence subject to the ID Motion was

relevant and passed the balancing test of Rule 403 “after considering all the

information before the Court at this time.” Because these conclusions were drawn

following a recitation of the facts and were based on the findings and evidence, the

trial court properly “rendered a legal decision, in the first instance,” as to the

relevance and admissibility of the evidence at issue. State v. Baskins, ___ N.C. App.

___, ___, 786 S.E.2d 94, 99 (2016) (internal citation and quotation marks omitted).

The trial court expressly reached its conclusions by considering the facts and applying

the relevant rules of evidence to those facts and therefore did not err in denying the

ID Motion. Cf. id. at ___, 786 S.E.2d at 99 (holding a “conclusion” was not in actuality

a conclusion of law where it consisted of a simple statement of law that detention of

a motorist for probable cause does not violate the Fourth Amendment followed by a

separate statement that the detention in the case was justified).

        For the same reason, we also affirm the trial court’s ruling on the Statement

Motions, which concerned pre-arrest and post-arrest interviews of Defendant by

police. Again, the record discloses no conflicting evidence requiring findings of fact,



S.E.2d at 674. Indeed, Defendant’s counsel made a conclusory argument concerning this evidence and
did not identify how resolution of these conflicts could have potentially affected the trial court’s order
on the ID Motion. Defendant’s counsel instead argued only that it affected Monje’s credibility, which
is a question for the jury. Moses, 350 N.C. at 767, 517 S.E.2d at 869.

                                                 - 12 -
                                   STATE V. DIXON

                                  Opinion of the Court



and Defendant points to none on appeal. The trial court still made oral findings of

fact, although it was not required to do so. Bartlett, 368 N.C. at 312, 776 S.E.2d at

674. Specifically, the trial court made detailed, numbered findings of fact concerning

the pre-arrest interview, namely that: (1) Defendant met with police; (2) police

informed him he was not under arrest and free to leave; (3) Defendant chose not to

leave, had his cell phone available to him, and was left alone in the interview room

on several occasions; and (4) Defendant’s statements in the interview were reduced

to writing but never signed by him. From these findings, the trial court concluded

that “[D]efendant voluntarily and intelligently and willingly participated in the

interview[,]” that he “was not under arrest[,]” and, “under the totality of the

circumstances, [police] were not required to read [D]efendant his Miranda rights

during this noncustodial interview.”

      The trial court also rendered oral findings of fact concerning the post-arrest

interview, namely that: (1) Defendant was represented by counsel at the time; (2)

Defendant requested the interview with police; and (3) Defendant’s Miranda rights

were explained to him and he signed a written waiver of those rights. From these

findings, the trial court concluded that “ [D]efendant voluntarily—knowingly,

voluntarily and willingly waived his Miranda rights and his rights to have counsel

present and provided a statement to the officers which was reduced to writing[,]” and

“[D]efendant’s statement should not be excluded as it was made knowingly,



                                         - 13 -
                                          STATE V. DIXON

                                         Opinion of the Court



voluntarily and willingly after waiving all his constitutional rights related thereto.”5

In denying Defendant’s Statement Motions, the trial court made detailed findings of

fact concerning the two interviews, made conclusions of law that applied the relevant

legal principles to those findings, and explained its rationale. The trial court did not

commit reversible error in failing to enter a written order on these motions.

        The record reflects that no conflicting evidence was presented in the hearing

regarding Defendant’s Cell Phone Motion, and Defendant points to none. So the trial

court was not required to make any findings of fact. Bartlett, 368 N.C. at 312, 776

S.E.2d at 674. But the trial court made findings anyway, and also made the necessary

conclusions of law to deny the motion. The trial court found, among other things,

that “[D]efendant handed his phone to [a detective]” and “provided the pass code to

the detective[;]” when the detective told Defendant he needed to search it for evidence,

“[D]efendant complained about the inconvenience of [police] having his phone and

that he needed it but never demanded that it be returned.” From these findings, the

trial court concluded that “[D]efendant voluntarily provided his phone to the police

or to law enforcement[,]” and denied the motion.                   The trial court provided the

necessary rationale for its ruling, including a conclusion from the factual findings

that Defendant voluntarily provided police with access to his cell phone.



        5See, e.g., State v. Jordan, 216 N.C. App. 112, 120, 716 S.E.2d 242, 247 n 2 (2011) (noting that
whether waiver of Miranda rights was intelligently, voluntarily, and knowingly made is a conclusion
of law).

                                                - 14 -
                                          STATE V. DIXON

                                         Opinion of the Court



       The trial court also made findings that, at the time Defendant handed his

phone to the police, Monje had identified Defendant as a possible suspect, she had

identified his Mustang as being present at the crime scene, and Defendant had

already made statements to police that he was near the shooting when it occurred.

The trial court then made the conclusions of law from these factual findings that “law

enforcement had probable cause to seize it based on the allegations known to them at

the time concerning the shooting[,] . . . that it’s reasonable to believe that the phone

may contain evidence related to the alleged crime and that it would be proper to

preserve it for evidentiary purposes[,]” and “that there was probable cause sufficient

to search the phone . . . .” (emphasis added). Cf. Baskins, ___ N.C. App. at ___, 786

S.E.2d at 99. In sum, the trial court provided the required rationale for its ruling,

found sufficient facts, and applied the law to those findings in rendering conclusions

of law.6 As a result, Defendant’s argument as to this motion is overruled.

       The trial judge referred to his oral findings and conclusions as “sketch[es] of

what [he] would like to include” in any written orders and would have “be[en] happy

to consider any proposed findings” offered by the parties. However, nothing in the

transcript indicates that the judge had not made up his mind on the findings and




       6 Defendant notes that several of the trial court’s rulings requested the State to draft orders
containing the “customary conclusions of law” or “appropriate conclusions of law, including jurisdiction
matters.” However, as detailed supra, each such statement follows an oral order with conclusions of
law sufficient to dispense of each motion to suppress, and therefore any additional “customary
conclusions of law” would be unnecessary surplusage.

                                                - 15 -
                                    STATE V. DIXON

                                   Opinion of the Court



conclusions that were rendered aloud; rather, it appears the trial judge was merely

giving counsel an opportunity to submit proposed findings and conclusions consistent

with those recited orally, as the judge “preserve[d] the right to clarify” his findings

and conclusions once proposed written orders were submitted. “A trial court’s ruling

on an evidentiary point will be presumed to be correct unless the complaining party

can demonstrate that the particular ruling was in fact incorrect,” State v. Herring,

322 N.C. 733, 749, 370 S.E.2d 363, 373 (1988) (citation omitted), and “[t]here is a

presumption of regularity in the trial. . . . An appellate court is not required to, and

should not, assume error by the trial judge when none appears in the record before

the appellate court.” State v. Phifer, 290 N.C. 203, 212, 225 S.E.2d 786, 792 (1976)

(citation omitted).   In light of these presumptions and the explicit findings and

conclusions in the transcript before us, we will not construe the trial court’s

characterization of the same as “sketches” as an intention to enter written orders

contrary to the facts found and conclusions reached on the record; nor will we

construe its instructions to counsel to do likewise.

b. Admission of the Mustang and Gun Photos

      Defendant next argues that the trial court erred in admitting the Mustang and

Gun Photos over his objection pursuant to Rules 401, 402, 403 and 404(a)-(b). In

reviewing such a decision by a trial court,

             we conduct distinct inquiries with different standards of
             review. When the trial court has made findings of fact and


                                          - 16 -
                                   STATE V. DIXON

                                  Opinion of the Court



             conclusions of law to support its 404(b) ruling, . . . we look
             to whether the evidence supports the findings and whether
             the findings support the conclusions. We review de novo
             the legal conclusion that the evidence is, or is not, within
             the coverage of Rule 404(b). We then review the trial
             court’s Rule 403 determination for abuse of discretion.

State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159 (2012).          As for

determinations of relevancy, those “technically are not discretionary and therefore

are not reviewed under the abuse of discretion standard[.]” State v. Wallace, 104 N.C.

App. 498, 502, 410 S.E.2d 226, 228 (1991). They are, however, “given great deference

on appeal.” Id. at 502, 410 S.E.2d at 228 (citation omitted).

      Neither this Court nor our Supreme Court appears to have set forth a plain

statement of the standard of review applicable to rulings regarding Rule 404(a).

However, a survey of appellate decisions applying the Rule shows that such review

generally follows a de novo standard. See, e.g., State v. Walston, 367 N.C. 721, 766

S.E.2d 312 (2014) (reviewing the exclusion of evidence under Rule 404(a)(1) under an

apparent de novo standard to determine whether the evidence in question fell within

the rule or an exception thereto); State v. Clapp, 235 N.C. App. 351, 362-63, 761

S.E.2d 710, 718 (2014) (applying a “loose de novo standard of review” to the exclusion

of witness testimony under Rule 404(a)(1)).

      Defendant’s argument for exclusion of the Mustang and Gun Photos based on

Rules 404(a) and (b) is premised on the assumption that possession of a firearm and

flashing gang signs “show[ ] bad character and bad acts.”          We fail to see how


                                         - 17 -
                                     STATE V. DIXON

                                    Opinion of the Court



possession of a firearm is indicative of bad acts or bad character—gun ownership is

enshrined in the Second Amendment to the United States Constitution, and we do

not believe the exercise of that right indicates a person’s poor character. Indeed,

Defendant’s own brief fails to identify any basis for such a conclusion. As for any

purported gang signs, we fail to see how the hand signals in the Mustang Photo

indicate gang affiliation in any way. As detailed supra, the photo shows two men

with four fingers of their left hands extended—a common hand gesture representing

the number “4,”—while one man has his right hand in a closed fist with his middle

finger extended—a common expression of vulgarity. Nothing in the record suggests

that either gesture indicates gang affiliation; besides, the trial judge instructed “the

District Attorney’s office not to ask any questions about signs or gang affiliation based

on this picture.” Reviewing the issue de novo, we hold that neither the Mustang nor

the Gun Photos fall within the ambit of Rule 404 and overrule Defendant’s argument

on this question.

      We likewise reject Defendant’s argument that the Mustang and Gun Photos

were inadmissible under Rules 401 and 402. Defendant compares this case to our

decision in State v. Godley, 140 N.C. App. 15, 535 S.E.2d 566 (2000), holding that trial

court erred by allowing the State to use a police officer’s firearm as a prop to illustrate

the defendant’s testimony. 140 N.C. App. at 25, 535 S.E.2d at 574. But in Godley, no

evidence indicated that the gun used by the defendant bore any relation to the prop



                                           - 18 -
                                          STATE V. DIXON

                                         Opinion of the Court



gun, other than testimony that the defendant’s firearm “[c]ould have been a little

bigger.” Id. at 25, 535 S.E.2d at 574 (alteration in original) (internal quotation marks

omitted). Here, there is an evidentiary connection between the photos in question,

the crime, and the accused—the Gun and Mustang Photos were obtained from

Defendant’s phone, show he had access to firearms and the Mustang, and depict him

at almost the precise location where the shooting took place. One of the gun photos

shows Defendant in possession of a firearm resembling that used in the shooting as

described by Monje.7 Because this evidence has a “tendency to make the existence of

any fact that is of consequence to the determination of the action more probable . . .

than it would be without the evidence,” N.C. Gen. Stat. § 8C-1, Rule 401 (2017), and

in appropriate deference to the determination made by the trial court, Wallace, 104

N.C. App. at 502, 410 S.E.2d at 228, we hold the trial court did not err in admitting

the Gun and Mustang Photos as relevant under Rules 401 and 402.

       The trial court also did not abuse its discretion in concluding the Gun and

Mustang Photos were not subject to exclusion pursuant to Rule 403. Defendant’s

briefs pay lip service to Rule 403, but he cites no authority for his argument.

Defendant’s brief assumes the conclusion that the Mustang and Gun Photos were



       7 Monje told Detective Merritt that she saw a “black and very small” gun at the shooting. Each
of the Gun Photos shows a black gun in a person’s lap. Defendant asserts that the black firearms in
the Gun Photos are entirely dissimilar to the description given by Monje; we disagree, as each photo
shows at least one gun that could reasonably be characterized as both black and very small. The
degree to which this reasonable characterization of the evidence is credible, probative, and ultimately
persuasive is, naturally, a question for the jury.

                                                - 19 -
                                    STATE V. DIXON

                                   Opinion of the Court



irrelevant; having held to the contrary, we reject this argument as well. While

Defendant’s briefing does posit that this evidence was grossly prejudicial, such a

contention appears to be made in the context of showing prejudicial error—not in the

context of a Rule 403 analysis. Thus, having held that the Mustang and Gun Photos

were relevant and admissible under Rules 401, 402, and 404, we hold the trial court

did not abuse its discretion in ruling the probative value of this evidence was not

outweighed by its potential for undue prejudice.

c. Admission of Monje’s In-Court Identification

      Defendant’s final argument asserts that the trial court erred in denying his ID

Motion, arguing that the trial court failed to make any conclusions of law and likewise

failed to make three findings concerning: (1) the absence of a completed witness

confidence statement at a photo line-up; (2) her inability to choose between a photo

of Defendant and another man in the photo line-up; and (3) whether she heard

Defendant’s name while riding with the police to identify the silver Mustang on the

day of the shooting. We reject Defendant’s argument.

      First, the trial court made conclusions of law, stating at the hearing that “[t]he

Court would find that the witness’s testimony is admissible. It appears to the Court

that it would be appropriate for the jury to determine the credibility of this witness

and that there’s a sufficient basis for the evidence to go before the jury. I would find

that the evidence is relevant. I would find, after considering all the information



                                          - 20 -
                                         STATE V. DIXON

                                        Opinion of the Court



before the Court at this time, that it would survive the balancing test.” As to the

findings Defendant contends should have been made, there was no conflict in the

evidence concerning a missing eyewitness confidence statement or Monje’s inability

to pick a single picture in the earlier photo line-up; thus, express factual findings on

these issues were not required. Bartlett, 368 N.C. at 312, 776 S.E.2d at 674. Lastly,

the trial court could not have made a finding that Monje heard Defendant’s name

while riding with police, as no evidence was introduced showing such a fact.8

Assuming arguendo that such evidence was in the record, it is relevant not to the

admissibility of Monje’s testimony but rather to its credibility—a point conceded by

Defendant’s counsel at oral argument.               Because the credibility of an in-court

identification is a question for the jury, Moses, 350 N.C. at 767, 517 S.E.2d at 869,

Defendant’s final argument is overruled.

                                      III. CONCLUSION

       Although the prosecutor in this case failed to comply with the requests of the

trial court to enter written orders on Defendant’s various motions to suppress, this



       8  There was some evidence introduced that police discovered Defendant’s name from his
Mustang’s registration once it was identified by Monje, but nothing in the record indicates that Monje
was in the vehicle with police, or in a position to overhear police discussing Defendant’s name, when
that information was shared between police. To the contrary, Monje testified that she did not know
Defendant’s name when she gave her statement to Detective Merritt—after Monje had identified the
Mustang and Defendant’s name had been discovered by authorities. She further testified that she
first heard Defendant’s name when he was arrested. Detective Merritt similarly testified that neither
he nor any other officer mentioned Defendant’s name to Monje, and that only a description of the
Mustang was broadcast by radio. The officer that ran the Mustang’s license plate testified that he
communicated the plate number over the radio and that other officers could pull up Defendant’s name
on their onboard computers, but he did not testify that Defendant’s name was ever broadcast aloud.

                                               - 21 -
                                   STATE V. DIXON

                                  Opinion of the Court



failure does not render the oral findings and conclusions made by the trial court on

the record erroneous. The trial court’s oral rulings on the motions are without error,

because they state sufficient findings of fact resolving any material conflicts in the

evidence and conclusions of law that apply the law to those factual findings. Because

the record permits us to conduct “meaningful appellate review of the trial judge’s

decision” under these circumstances, Bartlett, 368 N.C. at 312, 776 S.E.2d at 674,

Defendant’s argument to the contrary is rejected. We further hold that the trial court

did not err in admitting the Mustang and Gun Photos pursuant to Rules 401, 402,

403, and 404(a)-(b), nor did it err in admitting Monje’s in-court identification of

Defendant.

      NO ERROR.

      Judges DILLON and DAVIS concur.




                                         - 22 -
