An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1332
                          NORTH CAROLINA COURT OF APPEALS
                                  Filed:      19 August 2014

STATE OF NORTH CAROLINA

                                                    Mecklenburg County
      v.
                                                    Nos. 12 CRS 39332, 219403-04

MARLON DEVON HARRIS


      Appeal by defendant from judgment entered 3 July 2013 by

Judge   W.   Robert       Bell     in   Mecklenburg      County    Superior      Court.

Heard in the Court of Appeals 4 August 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Ebony J. Pittman, for the State.

      Kevin P. Bradley for defendant-appellant.


      ERVIN, Judge.


      Defendant         Marlon     Devon      Harris   appeals    from    a    judgment

sentencing        him    to   a    term       of   imprisonment   based       upon   his

convictions for possession of cocaine with the intent to sell or

deliver, the sale of cocaine, and having attained the status of

an habitual felon.               On appeal, Defendant contends that he is

entitled     to    relief     from      the    trial   court’s    judgment      on   the

grounds that his trial counsel’s failure to object to testimony
                                                -2-
to the effect that, shortly before the transaction upon which

the    offenses      that          Defendant      was        convicted      of     committing

occurred, investigating officers had seen him engaged in what

appeared    to     be    a     hand-to-hand           drug    transaction         with    other

individuals       and        failure       to    request        the     delivery         of   an

instruction limiting the purposes for which the evidence could

be    considered    deprived         him    of    his    constitutionally           protected

right to the effective assistance of counsel.                                After careful

consideration       of    Defendant’s           challenge       to    the   trial     court’s

judgment    in   light        of    the    record      and    the     applicable     law,     we

conclude     that        the       trial    court’s          judgment       should       remain

undisturbed.

                                I. Factual Background

                                   A. Substantive Facts

       On 3 May 2012, Detectives Charlie Davis and Sidney Lackey

of    the   Charlotte-Mecklenburg                Police       Department         observed     an

African-American male with long dreadlocks who was wearing a red

shirt, gray shorts, and red shoes engage in what appeared to be

hand-to-hand drug transactions with multiple individuals along

Tuckaseegee Road in Charlotte.                   After making these observations,

Detective Davis and Officer Lackey decided that Officer Lackey,

acting in an undercover capacity, should make contact with this

individual, whom the officers identified as Defendant, in an
                                      -3-
attempt to purchase drugs from him.          As Detective Davis watched

from a distance, Officer Lackey approached Defendant; asked if

he had “a dub,” with a “dub” being a street term for twenty

dollars’ worth of cocaine; and received an affirmative answer.

As a result, Officer Lackey followed Defendant into a breezeway,

where Defendant handed him a substance subsequently identified

as .3 grams of crack cocaine and Officer Lackey handed Defendant

twenty dollars.        After confirming the suspect’s identity with

Detective     Davis,    Officer   Jonathan   Frisk   of   the   Charlotte-

Mecklenburg    Police    Department    placed   Defendant   under   arrest

while he was walking in the Tuckaseegee Road area.

                          B. Procedural History

    On 3 May 2012, Magistrate’s Orders charging Defendant with

possession of cocaine with the intent to sell and deliver, the

sale of cocaine, and the delivery of cocaine were issued.           On 14

May 2012, the Mecklenburg County grand jury returned bills of

indictment charging Defendant with possession of cocaine with

the intent to sell or deliver, the sale of cocaine, and the

delivery of cocaine.       On 27 August 2012, the Mecklenburg County

grand jury returned a bill of indictment charging Defendant with

having attained the status of an habitual felon.

    The charges against Defendant came on for trial before the

trial court and a jury at the 1 July 2013 criminal session of
                                           -4-
the Mecklenburg County Superior Court.                     On 3 July 2013, the jury

returned verdicts convicting Defendant of possession of cocaine

with the intent to sell or deliver, the sale of cocaine, and the

delivery of cocaine.           On the same date, Defendant entered a plea

of guilty to having attained habitual felon status.                                   At the

conclusion of the ensuing sentencing hearing, the trial court

arrested    judgment      in    the   case       in    which       Defendant       had    been

convicted of the delivery of cocaine, consolidated Defendant’s

remaining    convictions        for   judgment,            and    entered      a     judgment

sentencing       Defendant      to    a     term       of        120    to     156    months

imprisonment.       Defendant noted an appeal to this Court from the

trial court’s judgment.

                      II. Substantive Legal Analysis

    In     his    sole    challenge        to    the       trial       court’s     judgment,

Defendant contends that he was deprived of his right to the

effective assistance of counsel.                  More specifically, Defendant

contends      that        he     received          constitutionally                deficient

representation from his trial counsel given the failure of his

trial counsel to object to the testimony of Detective Davis and

Officer Lackey concerning the other drug transactions that they

observed prior to the purchase that Officer Lackey made from

Defendant     and    to    request        the    trial       court       to    deliver     an

appropriate       limiting      instruction           in     the       event       that   the
                                      -5-
challenged    evidence    was,   in   fact,     admissible    for   some    non-

propensity-related purpose.        We do not find Defendant’s argument

persuasive.

    “When a defendant attacks his conviction on the basis that

counsel was ineffective, he must show that his counsel’s conduct

fell below an objective standard of reasonableness.”                  State v.

Braswell,    312   N.C.   553,   561-62,     324   S.E.2d    241,   248   (1985)

(citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.

Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)).                To successfully

assert an     ineffective assistance of counsel claim, a “defendant

must prove that counsel’s performance was so deficient as to

deprive him of his right to be represented and that absent the

deficient performance by defense counsel, there would have been

a different result at trial.”               State v. Strickland, 346 N.C.

443, 455, 488 S.E.2d 194, 201 (1997) (citing Braswell, 312 N.C.

at 562-63, 324 S.E.2d at 248, which describes the applicable

prejudice test as whether there is a “reasonable probability”

that the outcome would have been different but for the allegedly

deficient representation), cert. denied, 522 U.S. 1078, 118 S.

Ct. 858, 139 L. Ed. 2d 757 (1998).            A reviewing court addressing

an ineffective assistance of counsel claim “need not determine

whether counsel’s performance was deficient before examining the

prejudice suffered by the defendant as a result of the alleged
                                             -6-
deficiencies,” so that, “[i]f it is easier to dispose of an

ineffectiveness        claim    on     the    ground    of     lack    of    sufficient

prejudice, which we expect will often be the case, that course

should be followed.”           Strickland, 466 U.S. at 697, 104 S. Ct. at

2069, 80 L. Ed. 2d at 699.

       An   ineffective      assistance        of    counsel    claim       asserted   on

direct appeal may “be decided on the merits when the cold record

reveals that no further investigation is required, i.e., claims

that    may   be   developed         and      argued    without       such    ancillary

procedures as the appointment of investigators or an evidentiary

hearing.”     State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524

(2001), cert. denied, 535 U.S. 1114, 122 S. Ct. 2332, 153 L. Ed.

2d 162 (2002).     As a result of our inability to see how further

evidentiary development would have any bearing on the proper

resolution of the ineffective assistance of counsel claim that

Defendant has advanced in this case, we will proceed to address

Defendant’s ineffectiveness claim on the merits.

       According to Defendant, the testimony of Detective Davis

and Officer Lackey concerning the drug transactions in which

Defendant appeared to have engaged prior to the point at which

he sold cocaine to Officer Lackey was inadmissible pursuant to

N.C.   Gen.    Stat.     §     8C-1,    Rule       404(b),   which     provides    that

“[e]vidence of other crimes, wrongs, or acts is not admissible
                                             -7-
to prove the character of a person in order to show that he

acted in conformity therewith,” but “may, however, be admissible

for   other     purposes,    such       as    proof    of    motive,    opportunity,

intent, preparation, plan, knowledge, identity, or absence of

mistake, entrapment, or accident.”                    As the Supreme Court has

clearly held, N.C. Gen. Stat. § 8C-1, “Rule 404(b) states a

clear 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.

Coffey, 326 N.C. 268, 279, 389 S.E.2d 48, 54 (1990) (emphasis

omitted).       According    to    well-established          North     Carolina      law,

evidence concerning the drug transactions that Detective Davis

and   Officer    Lackey     observed         before   Officer     Lackey      purchased

cocaine from Defendant would have been admissible for a number

of purposes, including intent and identity.                   See, e.g., State v.

Montford,     137   N.C.    App.    495,       501-02,      529   S.E.2d      247,   252

(upholding the admission of evidence of other drug sales by the

defendant     for   a    number     of       purposes,      including    intent      and

identity), cert. denied, 353 N.C. 275, 546 S.E.2d 386 (2000).

As a result, given that the evidence that underlies Defendant’s

ineffective assistance of counsel claim was, in fact, admissible
                                        -8-
for certain purposes, we are unable to conclude that the mere

failure of Defendant’s trial counsel to object to the admission

of     the    evidence         at   issue     here   constituted       deficient

representation.

       Assuming, without deciding, that Defendant’s trial counsel

should have requested the trial court to instruct the jury that

the evidence in question could only be considered for limited

purposes, such as intent and identity, we are unable to see how

the absence of such a limiting instruction prejudiced Defendant

in   light    of   the   record     developed   at   trial.   As    the    record

clearly      reflects,    both      Detective   Davis   and   Officer      Lackey

identified Defendant as the individual whom they saw engaging in

what   appeared     to    be    hand-to-hand     drug   transactions      in   the

Tuckaseegee Road area immediately prior to the time at which

Officer Lackey purchased cocaine from Defendant.                   In addition,

Officer Lackey clearly identified Defendant as the individual

from whom he purchased cocaine.               Finally, Officer Frisk placed

Defendant under arrest in the same area in which the events

described in the testimony of Detective Davis and Officer Lackey

had occurred.       Although the record does establish, as Defendant

contends, that one or the other of the investigating officers

lost sight of Defendant at various times and that neither drugs

nor any significant amount of money were found on Defendant’s
                                       -9-
person at the time of his arrest, we are simply not persuaded

that there is a “reasonable probability” that the jury would

have acquitted Defendant if they had been instructed that the

evidence      of   Defendant’s     earlier        drug   sales     could   only    be

considered for the purpose of showing Defendant’s identity and

intent.       As   a   result,   we   do    not    believe    that   Defendant     is

entitled to relief from the trial court’s judgment based upon

his   trial    counsel’s     failure       to   request      the   delivery   of    a

limiting instruction relating to the evidence of the drug sales

that Defendant appeared to have made prior to selling cocaine to

Officer Lackey.

                                 III. Conclusion

      Thus, for the reasons set forth above, we conclude that

neither aspect of Defendant’s challenge to the trial court’s

judgment has merit.          As a result, the trial court’s judgment

should, and hereby does, remain undisturbed.

      NO ERROR.

      Judges Robert C. HUNTER and STEPHENS concur.

      Report per Rule 30(e).
