An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1190
                         NORTH CAROLINA COURT OF APPEALS

                                Filed: 3 June 2014


STATE OF NORTH CAROLINA


      v.                                      Wake County
                                              No. 11CRS216911
MIGUEL ANTONI MEZA-RODRIGUEZ
     Defendant.


      Appeal by Defendant from judgment entered 20 March 2013 by

Judge   Michael     J.   O’Foghludha     in   Wake    County    Superior    Court.

Heard in the Court of Appeals 5 March 2014.


      Attorney General Roy A. Cooper, III, by Special                       Deputy
      Attorney General Kimberly D. Potter, for the State.

      Appellate  Defender          Staples      S.   Hughes,   by       Assistant
      Appellate  Defender           Andrew      DeSimone,    for       Defendant-
      appellant.


      DILLON, Judge.


      Miguel Antoni Meza-Rodriguez (“Defendant”) appeals from a

conviction for first-degree murder.              For the following reasons,

we find no reversible error.

                                 I. Background
                                               -2-
      On 9 August 2011, Defendant was indicted on one count of

first-degree murder.             Defendant was tried on this charge at the

18 March 2013 Criminal Session of Wake County Superior Court.

The   State’s       evidence          tended    to     show     that     Pedro     Fernandez

discovered that his mother was having an affair with Santiago

Hernandez-Arredondo.             Mr. Fernandez asked Chris Reina, Alfredo

Acosta,   and       Defendant         to   help       him    beat   up      Mr.    Hernandez-

Arredondo and promised to pay Defendant $500 for his assistance.

After hearing from Mr. Fernandez about his plans, Defendant and

the   others    agreed      to    “help        [Mr.    Fernandez]      go    and    beat    him

down.”

      Mr. Fernandez initially contacted Mr. Hernandez-Arredondo

by phone under the pretense that he needed a quote from him for

a construction job.              Mr. Fernandez did not tell him his real

name but used the alias “Jorge” or “George.”                           On the morning of

17 July 2011, Mr. Fernandez drove Mr. Acosta, Mr. Reina, and

Defendant      to    meet        up     with     Mr.        Hernandez-Arredondo        at    a

lumberyard.         Mr. Fernandez brought a table leg and a baseball

bat to use in the beating.                 Mr. Reina testified that it was his

understanding that Defendant would hold a gun on Mr. Hernandez-

Arredondo, while the others beat and robbed him.
                                       -3-
    When they arrived at the lumberyard, Mr. Fernandez became

concerned because of the number of cars in the area, so he asked

Mr. Hernandez-Arredondo to follow him to the house that needed

the work.    Not having planned for this, Mr. Fernandez drove to

the first house he saw with a “for sale” sign in the yard and

pulled into the driveway, followed by Mr. Hernandez-Arredondo.

    Mr. Fernandez and Mr. Hernandez-Arredondo got out of their

respective vehicles and began talking, as they walked towards

the house.     The others stayed in the car.                 After about five

minutes, Defendant told Mr. Reina and Mr. Acosta that he was

going to get out of the car and point the gun at Mr. Hernandez-

Arredondo.    Defendant exited out of the car, tucked the gun in

the waistline of his pants, and walked up to Mr. Fernandez and

Mr. Hernandez-Arredondo as they talked.

    During    their     conversation,        Mr.   Hernandez-Arredondo        asked

Mr. Fernandez for his real name but he responded that his real

name was “George.”         Mr. Hernandez-Arredondo then asked if Mr.

Fernandez’s name was “George” or “Pedro.”                Defendant then called

Mr. Hernandez-Arredondo by an offensive name and shot him in the

face.

    Mr.     Fernandez    and      Defendant    returned     to   the   car,    but

Defendant    went   back     to     retrieve       Mr.   Hernandez-Arredondo’s
                                         -4-
wallet, as he lay on the ground.               Mr. Fernandez then drove away

from   the    scene,     while    Defendant    counted     the    money    from   Mr.

Hernandez-Arredondo’s wallet, giving Mr. Reina $50 of the $400

he   got.      Mr.     Fernandez    then   drove    the    four    of    them   to   a

restaurant, where they were joined by Mr. Fernandez’s father and

uncle.       Mr. Fernandez paid Defendant the $500.                    Defendant was

subsequently interviewed by police during the investigation and

told them that he slept late on Sunday, 17 July 2011, and stayed

at home until 2 p.m. that day.                 Defendant did not testify or

offer any evidence at trial.

       On 20 March 2013, a jury found Defendant guilty of first-

degree murder based on the felony murder rule.                    The trial court

sentenced      Defendant     to     life    imprisonment         without     parole.

Defendant gave notice of appeal in open court.

                                   II.   Argument

       On    appeal,    Defendant    argues     that      (1)    the    trial   court

committed reversible error by allowing Mr. Fernandez to testify

regarding his motive         to kill, (2) the trial court committed

plain error by admitting evidence regarding the victim’s good

character, and (3) the trial court committed plain error by

admitting evidence regarding his alleged alcohol and drug use
                                     -5-
before and after the killing.           We address each argument in turn

below.

             A. Testimony Regarding Defendant’s Motive

      Defendant contends that the trial court erred in allowing

Mr.    Fernandez    to     give     speculative      testimony     regarding

Defendant’s motive or intent to kill Mr. Hernandez-Arredondo.

Specifically, Defendant points to the following testimony from

Mr.   Fernandez,   which    he    contends   represents   Mr.    Fernandez’s

opinion   regarding      Defendant’s       motives   or   intentions    when

Defendant shot Mr. Hernandez-Arredondo:

           [Prosecutor]. And when you got back in the
           car, did you ask [Defendant] why he did it?

           [Mr. Fernandez]. No.

           Q. Do you have any idea why [Defendant] did
           that?

           [Defense Counsel]:         Objection.     Calls   for
           speculation.

           THE COURT:      Overruled.

           [Prosecutor].         Do you know why [Defendant]
           did that?

           A.   I think because the man recognized me.
           He say my name.       And I don’t know if
           [Defendant] got nervous and shot him by
           accident.   Because it was not part of the
           plan to shoot anyone.
                                       -6-
From   the   record,    it   appears     that   Defendant   objected   to    the

admission of this evidence and the trial court overruled his

objection.       Therefore, this argument is properly preserved for

our review.      See N.C. R. App. P. 10(a)(1).

       North Carolina Courts have generally held that a witness’s

opinion of another person’s intention on a particular occasion

has been generally inadmissible.             State v. Patterson, 288 N.C.

553, 566, 220 S.E.2d 600, 610 (1975), death sentence vacated,

428 U.S. 904, 49 L. Ed. 2d 1211 (1976); Ballard v. Ballard, 230

N.C. 629, 634, 55 S.E.2d 316, 320 (1949); State v. Vines, 93

N.C. 493, 496-97 (1885).         Additionally,

             [t]he burden is on the party who asserts
             that evidence was improperly admitted to
             show both error and that he was prejudiced
             by its admission. The admission of evidence
             which is technically inadmissible will be
             treated as harmless unless prejudice is
             shown such that a different result likely
             would have ensued had the evidence been
             excluded.

State v. Taylor, 154 N.C. App. 366, 372, 572 S.E.2d 237, 242

(2002) (citing State v. Gappins, 320 N.C. 64, 68, 357 S.E.2d

654, 657 (1987)); see also N.C. Gen. Stat. § 15A-1443(a) (2011).

       We note that Defendant was convicted of first-degree murder

based on the felony murder rule and the underlying felony of

robbery   with    a   firearm.     Our    Supreme   Court   has   stated    that
                                      -7-
“[f]elony murder, by its definition, does not require ‘intent to

kill’ as an element that must be satisfied for a conviction.”

State v. Cagle, 346 N.C. 497, 517, 488 S.E.2d 535, 548 (citation

omitted), cert. denied, 522 U.S. 1032, 139 L. Ed. 2d 614 (1997).1

Also,   intent    to    kill   is   not    an    element    of   robbery     with   a

firearm.    State v. Kearns, 27 N.C. App. 354, 356, 219 S.E.2d

228, 230 (1975), disc. review denied, 289 N.C. 300, 222 S.E.2d

700 (1976).

    Defendant, however, argues that – although intent to kill

or motive is not an element of the crime of felony murder – Mr.

Fernandez’s opinion testimony was evidence which tended to show

that Defendant was the person who pulled the trigger.                   See State

v. Van Landingham, 283 N.C. 589, 600, 197 S.E.2d 539, 546 (1973)

(stating   that        “[e]vidence    of        motive     is    relevant     as    a

circumstance to identify an accused as the perpetrator of an

offense[.]” (citation and quotation marks omitted)).                        However,

even assuming that Mr. Fernandez’s testimony had this effect, we

do not believe Defendant was prejudiced by its admission because

of the other evidence presented that put the gun in Defendant’s



1
     Our Supreme Court has recognized that motive is not an
element of felony murder but can be relevant as to sentencing in
a felony murder conviction.   See State v. Irwin, 304 N.C. 93,
107, 282 S.E.2d 439, 448 (1981). Defendant raises no issues as
to sentencing.
                                       -8-
hands.      For example, the key aspect of Mr. Fernandez’s testimony

which incriminates Defendant as being the shooter is not his

statement regarding Defendant’s intent or motive, but rather his

statement     that   he   actually    saw     Defendant      pull    the   trigger.

Accordingly, Defendant’s argument is overruled.

         B. Testimony Regarding the Victim’s Good Character

      Defendant next contends that the trial court’s admission of

the victim’s daughter’s testimony regarding the good character

of Mr. Hernandez-Arredondo was inadmissible, as Defendant had

not challenged the victim’s character.                Defendant concludes that

this error amounted to plain error and he is entitled to a new

trial, as this testimony tended to distract the jury, created

sympathy for the victim and excited prejudice against Defendant,

allowing the jury to decide the case not on what happened but

upon the characters of Defendant and the victim.

      The    trial   transcripts      shows    that    the   victim’s      daughter

Anabel   Hernandez      testified     that    the   victim    was     responsible,

hard-working, provided for his family, non-violent, concerned

about her education, concerned about his community, and ran his

own   construction      business.      The    record    shows       that   Defendant

failed   to    object     to   this   testimony       regarding      the   victim’s

character.     See N.C. R. App. P. 10(a)(1).             Therefore, review for
                                          -9-
plain error is appropriate.           See N.C. R. App. P. 10(a)(4).                     To

establish plain error, Defendant must show

             that a fundamental error occurred at trial.
             See [State v. Odom, 307 N.C. 655, 660, 300
             S.E.2d 375, 378 (1983)].    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 finding that
             the   defendant  was  guilty.”     See  id.
             (citations and quotation marks omitted) . .
             . . Moreover, because plain error is to be
             “applied   cautiously  and   only   in  the
             exceptional case,” Odom, 307 N.C. at 660,
             300 S.E.2d at 378, the error will often be
             one that “seriously affect[s] the fairness,
             integrity or public reputation of judicial
             proceedings,” Odom, 307 N.C. at 660, 300
             S.E.2d at 378[.]

State   v.     Lawrence,   ____    N.C.    ___,       ___,    723    S.E.2d     326,   334

(2012).      Therefore, “[i]n order to prevail under a plain error

analysis, Defendant must establish not only that the trial court

committed error, but that absent the error, the jury probably

would have reached a different result.”                        State v. Steen, 352

N.C.    227,    269,   536   S.E.2d       1,     25-26       (2000)    (citation       and

quotation marks omitted), cert. denied, 531 U.S. 1167, 148 L.

Ed. 2d 997 (2001).

       After examining all of the evidence presented, we note that

Ms.    Hernandez’s     testimony    was        only    a     small    portion    of    the

evidence from one of the eleven witnesses presented by the State
                                        -10-
against    Defendant.           Given      the     overwhelming            evidence    of

Defendant’s guilt presented by the State, including testimony

from    Defendant’s      friends     Mr.   Fernandez        and      Mr.    Reina     that

Defendant pointed the handgun at the victim, shot the victim in

the face, and returned to take the victim’s wallet,                           we cannot

say that any error in the admission of this testimony “had a

probable    impact      on    the    jury’s      finding      that    Defendant        was

guilty,” see Lawrence, ___ N.C. at ___, 723 S.E.2d at 334, and

its    exclusion    would     have   resulted      in   a     different      result     at

trial.     Accordingly, we find no plain error; and Defendant’s

argument is overruled.

 C. Testimony Regarding Defendant’s Alleged Alcohol and Drug Use

       Lastly, Defendant contends that the trial court committed

plain    error     in   admitting     irrelevant        and    prejudicial          “other

crimes” evidence that Defendant sought drugs before the killings

and drank alcohol and snorted cocaine afterwards.                          As Defendant

did not object at trial to the introduction of this testimony,

we review this argument under a plain error standard of review.

See N.C. R. App. P. 10(a)(4); Lawrence, ____ N.C. at ___, 723

S.E.2d at 334; Steen, 352 N.C. at 269, 536 S.E.2d at 25-26.

       Even assuming         arguendo that it was error for the trial

court to allow testimony regarding Defendant’s alcohol and drug
                                   -11-
use, we again conclude that it did not rise to the level of

plain error.       The highlighted testimony regarding Defendant’s

alcohol and drug use was only a small portion of the testimony

from two of the numerous witnesses the State put forth in this

case.     In contrast to Defendant’s argument that the evidence

against    him    was   not   “particularly    strong[,]”    a   thorough

examination of the whole record contains overwhelming evidence

of Defendant’s guilt; and we are not persuaded that the jury’s

verdict would have probably been different if the evidence of

Defendant’s      drug   and   alcohol   use   had   not   been   admitted.

Accordingly, Defendant failed to show plain error.

    For the foregoing reasons, we find no reversible error in

Defendant’s trial.

    NO ERROR.

    Judge BRYANT and Judge STEPHENS concur.

    Report per Rule 30(e).
