An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-240
                         NORTH CAROLINA COURT OF APPEALS

                                 Filed: 7 October 2014


STATE OF NORTH CAROLINA

      v.                                         Mecklenburg County
                                                 Nos. 12 CRS 252339-341
JIMMY ANTONIO SEVILLA-BRIONES



      Appeal by Defendant from judgments entered 24 July 2013 by

Judge    Jeffrey    P.    Hunt     in   Mecklenburg     County    Superior    Court.

Heard in the Court of Appeals 27 August 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Matthew L. Liles, for the State.

      Law Office of Margaret C. Lumsden PLLC, by Margaret C.
      Lumsden, for Defendant.


      STEPHENS, Judge.


                    Evidence and Procedural Background

      In the autumn of 2012, a confidential informant (“the CI”)

paid by the Drug Enforcement Agency (“DEA”) reported to officers

of   the   Charlotte-Mecklenburg             Police   Department    (“CMPD”)      that

Defendant       Jimmy    Antonio    Sevilla-Briones      was     claiming    to   have

access     to    large    amounts       of   methamphetamine.        Beginning     in
                                                -2-
November       2012,         the     CI      initiated           three         purchases        of

methamphetamine from Defendant at the behest of CMPD Officer

Eric Duft and DEA Agent James Billings.                              On 15 November 2012,

the CI purchased 2.5 grams of methamphetamine from Defendant,

and,    on    29    November         2012,      the       CI    bought     two     ounces       of

methamphetamine         from       Defendant          (collectively,           “the    November

sales”).        The      CI    then       set    up       a    buy    of   1     kilogram       of

methamphetamine         to    take    place      on       3   December     2012.       The   CI,

wearing an audio transmitter that intermittently broadcast the

transaction        to   law    enforcement            officers,      met   Defendant       at    a

grocery store.           They agreed to meet later that afternoon to

complete the sale.                 Defendant arrived for completion of the

transaction in a Toyota driven by Alberto Salizar.                                    Following

the sale to the CI, CMPD officers arrested Defendant and Salizar

at   the     scene.       Based      on    the        3   December      2012     transaction,

Defendant was subsequently charged with trafficking 200 grams or

more but less than 400 grams of methamphetamine by possession

and transportation, and conspiracy to traffic 200 grams or more

but less than 400 grams of methamphetamine.

       The jury convicted Defendant of all three charges, and the

trial court sentenced him to two consecutive terms of 90-120

months in prison.             Defendant was also fined $300,000, and costs
                                     -3-
and attorney’s fees were assessed against him.                   Defendant gave

notice of appeal in open court.

                                 Discussion

      On appeal, Defendant argues that the trial court erred in

(1)   denying   his   motion    to   identify     the   CI,    (2)    permitting

witnesses to testify about out-of-court statements made by the

CI, (3) permitting law enforcement officers to vouch for the

credibility of the CI, (4) admitting evidence of the uncharged

November   drug   sales   between     Defendant     and    the    CI,    and    (5)

admitting video and audiotapes in evidence.               We dismiss in part,

find no error in part, and find no prejudicial error part.

I. Motion to identify the CI

      Defendant   first   argues     that   the    trial      court     erred   in

denying his motion to disclose the identity of the CI, alleging

violations of his constitutional due process rights and rights

under State law.      Defendant has failed to preserve these issues

for our review.

      It is well established that “[c]onstitutional issues not

raised and passed upon at trial will not be considered for the

first time on appeal.”         State v. Mack, 214 N.C. App. 169, 171,

718 S.E.2d 637, 638 (2011) (citations and internal quotation

marks omitted).       As for any alleged violations of Defendant’s
                                                -4-
rights under State law, our State’s appellate courts “will not

consider      arguments        based       upon      matters     not   presented       to    or

adjudicated by the trial court.”                      State v. Haselden, 357 N.C. 1,

10, 577 S.E.2d 594, 600 (citations omitted), cert. denied, 540

U.S. 988, 157 L. Ed. 2d 382 (2003); see also Mack, 214 N.C. App.

at     171,   718    S.E.2d          at   638     (noting      that,     “[a]s    to     [the]

defendant’s argument that the trial court violated his rights

under     State     law,       [the]       defendant        properly      preserved         his

appellate rights as to his motion to disclose the identity of

the    State’s      CI    by    raising         it    before     the   trial     court      and

obtaining      a    ruling       on       his   motion.          See   N.C.R.     App.       P.

10(b)(1).”) (emphasis added).

       Even where a criminal defendant does seek disclosure of a

CI’s     identity        in    the    trial       court,    he    must    still    make       a

sufficient showing of the need for disclosure before the trial

court is even required to consider the merits of the request:

              In Roviaro v. United States, 353 U.S. 53, 77
              S. Ct. 623, 1 L. Ed. 2d 639 (1957), the
              United States Supreme Court held it was not
              error not to order the Government to reveal
              the name of an informant when it was alleged
              that the informant actually took part in the
              drug transaction for which the defendant was
              being tried.   The Supreme Court recognized
              the State has the right to withhold the
              identity of persons who furnish information
              to law enforcement officers, but said this
              privilege is limited by the fundamental
                                         -5-
               requirements of fairness. Roviaro held that
               no fixed rule with respect to disclosure is
               justifiable.     Whether a proper balance
               renders nondisclosure erroneous must depend
               on the particular circumstances of each
               case, taking into consideration the crime
               charged, the possible defenses, the possible
               significance of the informer’s testimony,
               and other relevant factors.

               The privilege of nondisclosure, however,
               ordinarily applies where the informant is
               neither a participant in the offense, nor
               helps arrange its commission, but is a mere
               tipster who only supplies a lead to law
               enforcement officers.   Moreover, before the
               courts should even begin the balancing of
               competing interests which Roviaro envisions,
               a defendant who requests that the identity
               of a confidential informant be revealed must
               make   a   sufficient   showing   that   the
               particular circumstances of his case mandate
               such disclosure.

Id. at 171-72, 718 S.E.2d at 638 (certain citations, internal

quotation       marks,    brackets,      and   ellipsis     omitted;       emphasis

added).

    For example, in one of the leading cases cited by this

Court     in    Mack,    our   Supreme     Court      declined   to    address    a

defendant’s      arguments     on   appeal     when    he   failed    to   make   a

sufficient showing at trial:

               At the time the trial court sustained the
               district attorney’s objections to defense
               counsel’s questions concerning the identity
               and   remuneration   of   the   confidential
               informant, [the] defendant had not apprised
               the court of the particular need he had for
                                    -6-
             the information.     At that point in the
             trial, the trial judge could only speculate
             as to the need [the] defendant had for the
             information.  In his brief, [the] defendant
             argues that the informant’s identity should
             have been revealed so that he could have a
             chance to make a full and complete defense
             before the jury.   Yet, [the] defendant made
             no showing before the court at the time of
             the questions concerning the informant as to
             his particular need for knowing the identity
             of the source.       The conflicts in the
             evidence to which [the] defendant now points
             were not apparent at that stage in the
             proceeding nor did [the] defendant forecast
             their appearance.     On the basis of this
             conduct, we hold that [the] defendant has
             failed to establish that the identity of the
             informer was relevant and helpful to his
             defense or essential to a fair determination
             of the case.

State v. Watson, 303 N.C. 533, 537, 279 S.E.2d 580, 583 (1981)

(citation omitted).

      In contrast, in another case cited in Mack, the defendant

did   make    an   argument   at   trial   about   the   need   to   obtain

additional information about a confidential informant:

             [The law enforcement officer] identified the
             informer as Earl Gray, but denied any
             knowledge   of   his   present    whereabouts.
             Following      cross[-]examination,      [the]
             defendant moved for the trial court to
             compel the state to produce Gray’s current
             address, telephone number, or contact him in
             order “to see if he’s [sic] any exculpatory
             evidence that we might use.”         Defendant
             justified   this   request   based   on   [the
             officer’s] testimony that Gray was a witness
             to the occurrences inside the restaurant and
                                        -7-
               remained in [the] defendant’s presence while
               [the officer] and [one of the defendant’s
               acquaintances] consummated the alleged drug
               sale outside.

State v. Newkirk, 73 N.C. App. 83, 86-87, 325 S.E.2d 518, 521

(reaching the merits of the defendant’s argument and holding

that   the     trial   court’s   denial   of   the   defendant’s    motion   to

compel the State to locate a confidential informant was proper),

disc. review denied, 313 N.C. 608, 332 S.E.2d 81 (1985).

       Here,    just   before    jury   selection    began,   the   following

exchange took place:

               [DEFENSE COUNSEL]: Your Honor, there is one
               issue that just popped in my mind in terms
               of questioning the jurors about who they
               know.      There   is  the   issue   of the
               confidential informant. I think it would be
               unfortunate if someone does know the CI.
               Maybe there should be an inquiry of if
               anybody knows this person, who is the
               confidential informant in this case.

               THE COURT:   I don’t know quite what you are
               asking.

               [DEFENSE COUNSEL]:  I would be more than
               happy to make the inquiry if someone knows
               this person.

               THE COURT:    This person is apparently not
               going to testify.

               [THE STATE]: No, Your Honor, he is not. I
               can tell the [c]ourt I don’t actually know
               his full name. I don’t know his name.
                                        -8-
              THE COURT:   I am not going to let you ask
              that question. I don’t think it’s proper to
              ask that. If you want to get on the record
              your objection to that, that is fine.

              [DEFENSE COUNSEL]:        I think for the record
              we will object.

              THE COURT:     Yes.   Note your exception.

Defendant     raised    no   constitutional      issue,    and,      just    as   in

Watson, Defendant utterly “failed to establish that the identity

of    the   informer   was   relevant    and    helpful   to   his    defense     or

essential to a fair determination of the case.”                      303 N.C. at

537,    279   S.E.2d   at    583.    Unlike     the   defendant      in     Newkirk,

Defendant did not request disclosure of the CI’s identity in

order to prepare his defense.            Rather, he only sought the CI’s

identity in order to question prospective jurors about whether

any of them knew the CI, presumably so that, if a prospective

juror admitted knowing the CI, Defendant could seek to excuse

that juror for cause or use a peremptory challenge to excuse him

or her.       However, the trial court denied Defendant’s request

because the State did not intend to, and, indeed, did not, call

the CI as a witness and his identity was obviously not disclosed

to the jury.      Accordingly, there was simply no need to question

the    prospective     jurors   about   their    familiarity      with      the   CI.

Since the CI’s identity was never disclosed to the jurors, they
                                            -9-
cannot have been influenced by any familiarity with him.                           Simply

put, the factual circumstance underlying Defendant’s only stated

reason for wanting to know the CI’s identity never arose.

       We   also   reject      Defendant’s        argument      in   his   reply   brief

that, “[a]fter the State’s evidence was presented, trial counsel

noted that the CI was a critical witness because he was the only

person with knowledge of the entire transaction, because police

witnesses knew only some of the facts.”                         The transcript page

cited by Defendant in support of this contention is part of

Defendant’s argument that evidence of the November sales should

not be admitted under Rules of Evidence 403 and 404(b).                              See

N.C.   Gen.    Stat.     §    8C-1,      Rules    403,   404(b)      (2013).   Defense

counsel stated,

              this [evidence] would confuse the jury about
              making a decision about whether or not this
              actually happened.     We have got a big
              question here.     We don’t have the only
              person with actual personal knowledge of
              everything of what was said and what was
              heard, including the video. Bits and pieces
              of law enforcement standing off, listening
              or observing and seeing and saying, trust
              me. We know what we are doing.

Thus, while defense counsel did allude to the CI’s importance,

he did not request disclosure of the CI’s identity or make any

constitutional or State law based argument about the need for

Defendant     or   the       jury   to    know    the    CI’s   identity.      On    the
                                      -10-
contrary, his sole reference to the CI was made to support his

argument that the Rule 404(b) evidence regarding the November

sales should be excluded.

    Further, unlike the defendant in Mack, Defendant did not

present his appellate arguments regarding the identity of the CI

to the trial court.          We are wholly unpersuaded by Defendant’s

argument     before   this   Court    that    seeking   to    ask   prospective

jurors if they knew the CI — an “issue that popped in [trial

counsel’s] head” as jury selection began — constituted a motion

for the State to identify the CI based on an articulated need

for such information to prepare Defendant’s case.                     Thus, we

decline to consider Defendant’s arguments on appeal concerning

this issue.     See Haselden, 357 N.C. at 10, 577 S.E.2d at 600.

    Defendant did not argue plain error in his brief to this

Court, but in his reply brief, Defendant contends that, if “[the

State is correct that] the proper standard of review on this

issue   is    plain   error[,]    .   .   .   .   Defendant   would   still   be

entitled to a new trial, because the failure to identify the CI

deprived Defendant of a fair trial and had a probable impact on

the jury’s verdict[.]”           However, “plain error review in North

Carolina is normally limited to instructional and evidentiary

error.”      State v. Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326,
                                           -11-
333   (2012)     (citation          omitted).          This    Court        has    held    that,

because the denial of a motion to disclose the identity of a

confidential          informant       “does      not    involve           instructional         or

evidentiary error, it will not be reviewed for plain error on

appeal.”       State v. Reid, __ N.C. App. __, __, 735 S.E.2d 389,

395   (2012).           Accordingly,       we    dismiss           Defendant’s       arguments

regarding the identity of the CI.

II. Testimony about the CI’s out-of-court statements

      Defendant         next    argues     that        the     trial       court    erred       in

permitting witnesses to testify about out-of-court statements

made by the CI.          We must dismiss this argument because Defendant

has again failed to preserve the issue for appellate review.

      “‘Hearsay’ is a statement, other than the one made by the

declarant       while    testifying        at    trial        or     hearing       offered      in

evidence to prove the truth of the matter asserted.”                                N.C. Gen.

Stat. § 8C-1, Rule 801(c).                 A “[d]efendant cannot assign error

to hearsay testimony which he elicited[,]” State v. Mitchell,

342     N.C.    797,     806,       467   S.E.2d       416,     421       (1996)     (citation

omitted),      and     where    a    defendant        fails     to    object       to   hearsay

testimony, he is only entitled to plain error review on appeal.

State    v.    Dyson,     165   N.C.      App.    648,       651,     599    S.E.2d       73,    76

(2004),       disc.    review       denied,     359     N.C.       412,     612    S.E.2d       325
                                  -12-
(2005).     However, where a defendant fails to specifically argue

plain error, he waives any consideration of the alleged error.

State v. Waring, 364 N.C. 443, 508, 701 S.E.2d 615, 656 (2010),

cert. denied, __ U.S. __, 181 L. Ed. 2d 53 (2011).

    Here,      Defendant    identifies     five   statements    which     he

contends were inadmissible hearsay.         However, Defendant elicited

three of the statements during his cross-examination of Officer

Duft and failed to object to any of the five statements at

trial.      Defendant further fails to argue plain error in the

admission    of   the   statements.      Accordingly,   we   dismiss    this

argument.

III. Testimony vouching for the CI’s credibility

    Defendant next argues that the trial court committed plain

error in permitting law enforcement officers to vouch for the

credibility of the CI.      We disagree.

    When

            an [evidentiary] issue is not preserved in a
            criminal case, we apply plain error review.
            We find plain error only in exceptional
            cases where, 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.     Thus, the
            appellate court must study the whole record
            to determine if the error had such an impact
            on   the   guilt   determination,   therefore
            constituting plain error.    Accordingly, we
                                        -13-
            must   determine  whether   the  jury  would
            probably have reached a different verdict if
            this testimony had not been admitted.

State v. Hammett, 361 N.C. 92, 98, 637 S.E.2d 518, 522 (2006)

(citations      and    internal   quotation     marks      omitted;      emphasis      in

original).

    “A    lay     witness    is   entitled     to    testify      ‘in    the   form    of

opinions or inferences . . . [which are] (a) rationally based on

[his] perception . . . and (b) helpful to a clear understanding

of his testimony or the determination of a fact in issue.’”

State v. Dew, __ N.C. App. __, __, 738 S.E.2d 215, 219 (quoting

N.C. Gen. Stat. § 8C-1, Rule 701), disc. review denied, __ N.C.

__, 743 S.E.2d 187 (2013).           Under Rule 701, one witness may not

“vouch for the veracity of another witness.”                   State v. Robinson,

355 N.C. 320, 334, 561 S.E.2d 245, 255, cert. denied, 537 U.S.

1006, 154 L. Ed. 2d 404 (2002).                 However, a law enforcement

officer    may    offer     testimony    that       will   assist       the    jury   in

understanding his investigative process.                   State v. Wallace, 179

N.C. App. 710, 715, 635 S.E.2d 455, 460 (2006), disc. review

denied    and    appeal     dismissed,    361   N.C.       436,    649    S.E.2d      896

(2007).

    On direct examination, Agent Billings testified as follows:

            Q         For the purposes of this, I will just
            ask       you about the prior dealings you had
                              -14-
         with [D]efendant and the substance of the
         deal you witnessed on 12 — start with
         November 15. What were you doing that day?

         A    On November 15, 2012, I participated in
         something we call a buy walk, where we used
         a confidential source to purchase a small
         amount     of     meth[]amphetamines    from
         [Defendant].

         Q    This CI, had you ever used that person
         before?

         A    Yes.

         Q    About how many times?

         A    I have known this particular individual
         about five-and-a-half years in my time here
         in Charlotte.    It’s difficult to say, but
         numerous   times    on  numerous   different
         case[s].

         Q    The information that you have received
         from him, were you able ever to corroborate
         as true?

         A    Yes.    He has been proven to be very
         truthful.

         Q    You said on November 15, he set up the
         deal?

         A    Yes, at our direction.

Officer Duft also testified about his past work with the CI:

         Q    Detective Duft, how did you initially
         come into contact with the CI?

         A    The CI called the DEA office back in
         2007. He just said he was new to the area.
         He was familiar with drug trafficking and
                              -15-
         drug traffickers, and he was interested in
         providing information.

         Q    Have you worked with him consistently
         since 2007?

         A    I have worked with him since 2007.

         Q    Approximately how many times have you
         used him since then?

         A    I would say in the range of 20
         different times on cases. I would say 10 to
         20 cases. We are in contact with him almost
         weekly.

         Q    Has he been a reliable informant for
         you?

         A    Yes, he has.

The testimony of both officers was largely in the context of

explaining the course of the investigative process which led to

Defendant’s arrest.   Even assuming arguendo that any portion of

the above-quoted testimony was impermissible vouching, we cannot

conclude that the passing references to the CI as “reliable” and

“truthful” likely altered the outcome of Defendant’s trial.   In

Dew, we concluded that a defendant had failed to establish plain

error where a mother testified that she believed her daughters

when they told her the defendant had sexually abused them.    __

N.C. App. at __, 738 S.E.2d at 219 (“Simply put, in view of

. . . the fact that most jurors are likely to assume that a

mother will believe accusations of sexual abuse made by her own
                                    -16-
children, we cannot conclude that the challenged portion of [the

mother]’s testimony had any significant impact on the jury’s

decision to convict [the d]efendant.”).             Similarly, here, it is

likely most jurors would assume that law enforcement officers

believe   in     the     truthfulness       and    reliability         of   their

confidential informants, since officers would plainly not pursue

investigations    with    informants       they    did   not    trust.         This

argument is overruled.

IV. Evidence of the November sales

    Defendant     next    argues    that     the    trial      court   erred     in

admitting evidence of the November sales in violation of Rules

of Evidence 403 and 404(b).        We disagree.

    As our Supreme Court has recently clarified,

          when analyzing rulings applying Rules 404(b)
          and 403, we conduct distinct inquiries with
          different standards of review. . . .      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) (italics added).      Rule 404(b) 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
                                   -17-
             of motive, opportunity, intent, preparation,
             plan, knowledge, identity, or absence of
             mistake, entrapment or accident.    We have
             characterized Rule 404(b) as a general rule
             of inclusion of relevant evidence of other
             crimes, wrongs or acts by a defendant,
             subject to but one exception requiring its
             exclusion if its only probative value is to
             show that the defendant has the propensity
             or disposition to commit an offense of the
             nature of the crime charged.

State   v.   Carpenter,   361   N.C.   382,   386,   646   S.E.2d   105,   109

(2007) (citations and internal quotation marks omitted; emphasis

in original).      This general rule of inclusion

             is   constrained   by   the   requirements   of
             similarity and temporal proximity.         This
             Court has stated that remoteness in time is
             less significant when the prior conduct is
             used to show intent, motive, knowledge, or
             lack   of   accident;    remoteness   in   time
             generally affects only the weight to be
             given such evidence, not its admissibility.
             Nevertheless, we note that the two offenses
             in the case at bar are separated by eight
             years.     Moreover, as to the similarity
             component, evidence of a prior bad act must
             constitute substantial evidence tending to
             support a reasonable finding by the jury
             that the defendant committed a similar act.
             Under Rule 404(b) a prior act or crime is
             similar if there are some unusual facts
             present in both crimes.       Finally, if the
             propounder of the evidence is able to
             establish that a prior bad act is both
             relevant and meets the requirements of Rule
             404(b), the trial court must balance the
             danger   of   undue   prejudice   against   the
             probative value of the evidence, pursuant to
             Rule 403.
                                         -18-
Id. at 388-89, 646 S.E.2d at 110 (citations, internal quotation

marks, and brackets omitted; emphasis in original).

    At     trial,      Defendant     objected        under     Rule    404(b)     to   the

admission        of    evidence       about       the        November         sales     of

methamphetamine        by    Defendant    to    the     CI.1      The     trial       court

overruled    Defendant’s       objection       and    admitted        evidence    of   the

November sales to show that Defendant had the knowledge and

intent to traffic methamphetamine.                    The court also issued a

limiting instruction, specifically directing the jury that the

evidence of the November sales “was received solely for the

purpose    of    showing     the    intent     and    knowledge        that    might    be

necessary as an element in the crimes that are charged in this

case.     Also, that [D]efendant may have had in his mind a plan,

scheme, system, or design involving the crimes that are charged

in this case.”

    On appeal, Defendant contends that the November sales were

not sufficiently similar and were too remote in time because the

sales     took    place      over   three      weeks,     different        amounts      of

methamphetamine were sold, Defendant drove a different car for

one of the November sales, the sales took place in different



1
  Defendant      was   not    charged    in     connection       with    the     November
sales.
                                   -19-
locations, and Defendant was accompanied by different people for

each sale.     However, the sales all involved the same drug sold

at the same price, Defendant used the same phone to set up the

sales, the sales were concluded in the same apartment parking

lot,   and   all   sales    were   between    Defendant    and   the   same

confidential   informant.      These   similarities   are    greater   than

those present in State v. Houston, 169 N.C. App. 367, 610 S.E.2d

777, disc. review denied and appeal dismissed, 359 N.C. 639, 617

S.E.2d 281 (2005), the case on which the trial court relied in

admitting the evidence of the November sales.             In Houston, the

defendant was charged with trafficking cocaine by possession,

and the State sought to introduce evidence of previous uncharged

drug sales by the defendant to an informant.              Id. at 372, 610

S.E.2d at 781.     We held the prior sales were admissible under

Rule 404(b) because the prior sales also involved the defendant

and the informant, primarily included the sale of cocaine at the

same price, mainly occurred in the same location, were for the

same amount of drugs, and the final prior sale had taken place

within the preceding four months.            Id. at 373, 610 S.E.2d at

782.   Here, although the amounts of methamphetamine increased

with each sale by Defendant, every sale involved the same drug

and occurred within a much shorter timeframe, to wit, three
                                         -20-
weeks.     Accordingly, as in Houston, we conclude that the prior

sales were sufficiently similar and not too remote in time to

show Defendant’s knowledge and intent to sell methamphetamine.

       Rule 403 provides that, “[a]lthough relevant, evidence may

be excluded if its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste

of   time,   or    needless       presentation     of    cumulative      evidence.”

N.C. Gen. Stat. § 8C-1, Rule 403.               “Necessarily, evidence which

is probative in the State’s case will have a prejudicial effect

on the defendant; the question, then, is one of degree.”                         State

v. Mercer, 317 N.C. 87, 93-94, 343 S.E.2d 885, 889 (1986).                       “The

exclusion of evidence under Rule 403 is a matter generally left

to   the   sound    discretion      of   the    trial    court,     which   is   left

undisturbed       unless    the     trial   court’s      ruling     is   manifestly

unsupported by reason or is so arbitrary it could not have been

the result of a reasoned decision.”               State v. Badgett, 361 N.C.

234,   244-45,     644     S.E.2d    206,   212-13      (citation    and    internal

quotation marks omitted), cert. denied, 552 U.S. 997, 169 L. Ed.

2d 351 (2007).        Further, our Supreme Court has repeatedly held

that the admission of prior bad acts is not unfairly prejudicial

under Rule 403 in cases where the trial court gave a specific
                                         -21-
limiting instruction regarding permissible uses of Rule 404(b)

evidence.       See, e.g., id.; see also State v. Hyatt, 355 N.C.

642, 662, 566 S.E.2d 61, 74-75 (2002), cert. denied, 537 U.S.

1133, 154 L. Ed. 2d 823 (2003); State v. Lemons, 348 N.C. 335,

353, 501 S.E.2d 309, 320 (1998), vacated and remanded on other

grounds, 527 U.S. 1018, 144 L. Ed. 2d 768 (1999).

       On     appeal,   Defendant       contends         that       admission       of       the

November sales was unfairly prejudicial because it led the jury

to believe a statement the CI made to the police “that Defendant

bragged        about     his        access       to         large         quantities          of

meth[amphetamine].”            We     believe      the      trial        court’s    specific

instruction to the jury that                 evidence of the November sales

could    be    considered      only    to    the      extent        it    shed     light      on

Defendant’s       “intent[,]        knowledge[,]            . . . .        plan,        scheme,

system, or design” in committing the crimes for which he was

charged effectively blunted any possibility of undue prejudice.

Juries are presumed to follow instructions by our trial courts.

State v. Tirado, 358 N.C. 551, 581, 599 S.E.2d 515, 535 (2004)

(citation      omitted),       cert.    denied        sub    nom.        Queen     v.    North

Carolina, 544 U.S. 909, 161 L. Ed. 2d 285 (2005).                                We conclude

that    the    trial    court’s       decision     to       admit        evidence       of   the

November sales was not “manifestly unsupported by reason or . .
                                         -22-
. so arbitrary it could not have been the result of a reasoned

decision.”         Badgett, 361 N.C. at 245, 644 S.E.2d at 212-13.

Accordingly, we overrule this argument.

V. Evidence from video and audiotapes

       Defendant     finally    argues    that    the    trial   court   erred   in

admitting video and audiotape evidence.                 We disagree.

       Defendant failed to object to admission of the recordings

he challenges on appeal, with the exception of one videotape.

As     for   the    other    videotapes     and    all     of    the   audiotapes,

Defendant’s failure to object at trial limits him to plain error

review regarding the unchallenged recordings.                    See N.C.R. App.

P. 10(a)(4).       However, Defendant has failed to argue plain error

in the admission of those recordings and thus has waived any

appellate review.           See Waring, 364 N.C. at 508, 701 S.E.2d at

656.     Accordingly, we consider Defendant’s argument on appeal

only as to the one videotape to which he objected at trial,

State’s exhibit 1.

             The prerequisite that the offeror lay a
             proper foundation for the videotape can be
             met by:     (1) testimony that the motion
             picture or videotape fairly and accurately
             illustrates the events filmed, (2) proper
             testimony   concerning  the   checking  and
             operation of the video camera and the chain
             of evidence concerning the videotape, (3)
             testimony that the [videotapes] introduced
             at trial were the same as those the witness
                                      -23-
              had inspected immediately after processing,
              or (4) testimony that the videotape had not
              been edited, and that the picture fairly and
              accurately recorded the actual appearance of
              the area photographed.

State v. Cannon, 92 N.C. App. 246, 254, 374 S.E.2d 604, 608-09

(1988)       (citations,   internal    quotation   marks,   and   ellipsis

omitted; emphasis added), reversed on other grounds, 326 N.C.

37, 387 S.E.2d 450 (1990).

    Exhibit 1 is a videotape of a meeting between the CI and

Defendant in the parking lot of Compare Foods, a grocery store.

At trial, the State sought to introduce the recording during

Officer Duft’s direct examination.           Defendant objected, stating

“Objection; lack of foundation, who played the video and whether

or not [Officer Duft] actually saw what was shown on the video

at the time.”       The court sustained the objection, and the State

then elicited the following testimony from Officer Duft:

         Q Detective Duft, were you present when this
         video was filmed?

         A    I was.

         Q Were you at the same vantage point when this
         individual was being filmed?

         A The video was shot in the parking lot of the
         Compare Foods. I was in the same parking lot.

         Q How close do you estimate that you were next
         to the person who was filming this video?
                                          -24-
        A The same distance, from me to this wall.
        Different angles, but seeing the same thing.

        Q     Have you reviewed this video yourself?

        A     I did.

        Q Is it a fair and accurate representation of
        the scene that you saw on December 3 at the
        Compare Foods?

        A     It is.

This testimony from Officer Duft indicates that “the videotape

fairly and accurately illustrated the events filmed” and thus

provided a proper foundation under Cannon.                       See id.      Defendant

contends that the State was also required to provide evidence

about   the     maintenance        and   functioning      of     the   video   camera.

However, the four methods listed in Cannon are joined with the

disjunctive “or” plainly indicating that any one of the methods

will suffice to establish a proper foundation for the admission

of videotape evidence.             See id.; see, e.g., State v. Ayscue, 169

N.C.    App.     548,     610   S.E.2d     389    (2005)        (concluding    that     a

videotape      was      properly     admitted     based     on     testimony     solely

regarding chain of custody, the second method listed in Cannon).

Here,    a     proper     foundation     was     laid     for    admission     of     the

videotape, and we see no error in the trial court’s admission of

it.    Accordingly, this argument is overruled.
                         -25-
DISMISSED in part; NO ERROR in part; NO PREJUDICIAL ERROR

in part.

Judges CALABRIA and ELMORE concur.

Report per Rule 30(e).
