An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-84
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 5 September 2014


STATE OF NORTH CAROLINA


      v.                                      Johnston County
                                              Nos. 11 CRS 51511;
                                              12 CRS 002080
CHARLES EDWARD DUBLIN, JR.



      Appeal by defendant from judgments entered 27 June 2013 by

Judge Gale M. Adams in Johnston County Superior Court.                     Heard in

the Court of Appeals 14 August 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Ryan C. Zellar, for the State.

      John R. Mills, for defendant-appellant.


      HUNTER, JR., Robert N., Judge.


      Charles Edward Dublin, Jr. (“Defendant”) appeals from his

convictions for one count of possessing with intent to sell or

deliver marijuana, one count of selling marijuana, and one count

of conspiring to sell marijuana.                 Defendant contends that the

trial   court    erred    by   refusing     to    instruct   the    jury    on   the

lesser-included offense of possession of marijuana, declining to
                                         -2-
instruct    the    jury    that    the   State   must    prove    that       Defendant

received    remuneration      for    transferring       less    than    5     grams   of

marijuana to be guilty of possession with intent to sell or

deliver marijuana, and preventing defense counsel from asserting

a similar argument about the need for remuneration in closing

argument.        Defendant    further       contends    that    the     trial    court

committed    plain    error    by    allowing    testimony       regarding       a    co-

conspirator’s guilty plea to the offenses with which Defendant

was also charged.          Defendant asserts that the cumulative effect

of these errors was to prejudice his trial and asks this Court

to reverse his convictions and remand for a new trial.                           After

careful review, we find no prejudicial error.

                      I. Facts & Procedural History

    On 16 July 2012, Defendant was indicted in Johnston County

Superior    Court    for     one    count   of   possessing      with        intent   to

manufacture, sell, or deliver marijuana, one count of selling

marijuana, and one count of conspiring to sell marijuana                               in

violation of N.C. Gen. Stat. § 90-95(a)(1) and § 90-98 (2013).

From 25 June through 27 June 2013, Defendant was tried on these

charges     in    Johnston    County     Superior      Court.          The    evidence

presented at trial tended to show the following:

    On 1 February 2011, Defendant was in an apartment in Selma,
                                     -3-
North Carolina, when Mr. Antwon Sanders and Ms. Elaine Earp came

downstairs and approached him.            Mr. Sanders told Defendant that

Ms. Earp wanted to purchase some marijuana.              Defendant asked how

much   marijuana    she   wanted    and   was   told    that    she   wanted   to

purchase $10 worth of the drug.           Defendant then went to a nearby

table with a digital scale on top, weighed a small amount of

marijuana on the scale, placed the drug in a bag, and handed the

bag to Ms. Earp.       According to trial testimony by Ms. Earp, Mr.

Sanders – who had previously been given $10 for the drugs by Ms.

Earp while upstairs – then handed the $10 to Defendant.

       Unbeknownst to either Defendant or Mr. Sanders, Ms. Earp

was working as a confidential informant for the Selma Police

Department at the time of this transaction.              On the afternoon of

1   February   2011,   Ms.   Earp   was    working     with    Detective   Scott

Richardson (“Detective Richardson”)             on an operation       targeting

Mr. Sanders.       Her mission was to purchase 0.1 grams of crack

cocaine and a $10 bag of marijuana from Mr. Sanders, to whom she

had been sent to purchase drugs on previous occasions.

       On the afternoon at issue, Ms. Earp and her husband went to

the apartment where she had previously met Mr. Sanders with $30

for the purchase of drugs and a “button cam” video surveillance

device concealed in her pocketbook.             She met Mr. Sanders in the
                                        -4-
apartment and accompanied him upstairs while her husband waited

in   the   car    outside.     While    upstairs,         Ms.   Earp   informed   Mr.

Sanders that she wanted to purchase crack cocaine.                      When he told

her that she would have to wait to purchase the crack cocaine,

she asked for marijuana instead.              Mr. Sanders informed her that

marijuana was available and brought her downstairs to Defendant

from whom she purchased the marijuana as described.

      After receiving the marijuana from Defendant, Ms. Earp left

the residence and drove with her husband to meet members of the

Selma Police Department, including Detective Richardson.                          She

gave them the marijuana she purchased from Defendant and Mr.

Sanders,     which      the   State     Bureau       of     Investigation       Crime

Laboratory       eventually   determined      was    1.7    grams      of   marijuana.

She also gave the officers the video recording she made of the

transaction and provided a statement.                She was paid $75 for her

participation in the operation.

      The surveillance video produced by the camera hidden in Ms.

Earp’s     pocketbook    recorded      her    time   spent      with    Mr.   Sanders

upstairs, including when she gave him $10 for the purchase of

marijuana.       The camera did not, however, record Defendant giving

Ms. Earp the marijuana or receiving the $10 from Mr. Sanders.

The only evidence produced at trial of Defendant’s transfer of
                                        -5-
the marijuana to Ms. Earp and his receipt of the $10 was Ms.

Earp’s   testimony.      Defendant         did       not   offer    any     evidence       at

trial.

    During      the     trial,       the      prosecution           asked       Detective

Richardson    whether     Mr.     Sanders,           who    was     present         in   the

courtroom, was charged in the same case as the one confronting

Defendant.      Detective      Richardson        responded         that   he    had      been

charged and stated that he believed Mr. Sanders pleaded guilty

to the charges.       Defense counsel did not object to this exchange

during trial.

    After    hearing     all    of     the    foregoing       evidence,         the      jury

convicted    Defendant    of     all    counts.            Defendant        subsequently

entered a plea of guilty to the status of a habitual felon.                               The

trial court sentenced Defendant to between 66 and 89 months of

active   imprisonment     and     issued         a    criminal       bill      of    costs.

Defendant gave timely notice of appeal.

                               II. Jurisdiction

    Defendant’s appeal from the superior court’s final judgment

lies of right to this Court pursuant to N.C. Gen. Stat. § 7A-

27(b) and § 15A-1444(a) (2013).

                                 III. Analysis

    Defendant’s appeal presents five questions for this Court’s
                                      -6-
review: (1) whether the trial court was required to instruct the

jury on the lesser-included offense of possession of marijuana

when the State presented positive evidence on all the elements

of the charged offense and there was no contradictory evidence

presented by either party; (2) whether the trial court erred by

preventing defense counsel from asserting to the jury during

closing argument that N.C. Gen. Stat. § 90-95(b)(2) creates a

“pot exception” to N.C. Gen. Stat. § 90-95(a)(1) for transfers

of less than 5 grams of marijuana; (3) whether the trial court

was required to instruct the jury that, under N.C. Gen. Stat. §

90-95(b)(2), a person may not be found guilty of violating N.C.

Gen. Stat. § 90-95(a)(1) for delivering less than 5 grams of

marijuana   without   remuneration;         (4)    whether    the    trial   court

committed   plain   error    by    allowing       testimony   regarding      a   co-

conspirator’s   guilty      plea   during     Defendant’s      trial;   and      (5)

whether the cumulative effect of the trial court’s purported

errors prejudiced Defendant’s trial.

    We note at the outset that Defendant was not charged with

nor tried for “delivery” of marijuana under N.C. Gen. Stat. §

90-95(a)(1).        Therefore,      to   the       extent     that   Defendant’s

arguments at trial and on appeal depend upon the application of

the special evidentiary requirement of N.C. Gen. Stat. § 90-
                                       -7-
95(b)(2), they are mistaken.               By its plain terms, N.C. Gen.

Stat. § 90-95(b)(2) applies only to the “delivery” of marijuana,

not to its possession or sale.                  See N.C. Gen. Stat.      § 90-

95(b)(2) (“The transfer of less than 5 grams of marijuana . . .

for no remuneration shall not constitute a delivery in violation

of G.S. 90-95(a)(1).” (emphasis added)); see also State v. Land,

___ N.C. App. ___, ___, 733 S.E.2d 588, 590—92 (2012), aff'd per

curiam,   366   N.C.    550,    742    S.E.2d     803   (2013)   (involving   a

defendant convicted for one count of possession and one count of

delivery of less than 5 grams of marijuana, but found not guilty

for selling marijuana).

A. Defendant’s Lesser-Included Offense Argument

    Defendant’s first assignment of error concerns the trial

court’s decision not to instruct the jury on the lesser-included

offense of possession of marijuana.               “Failure to instruct upon

all substantive or material features of the crime charged is

error.”   State v. Bogle, 324 N.C. 190, 195, 376 S.E.2d 745, 748

(1989).     This      Court    makes   a   de    novo   review   of   arguments

challenging     the     trial     court’s       decisions    regarding     jury

instructions.      State v. Osorio, 196 N.C. App. 458, 466, 675

S.E.2d 144, 149 (2009).         The Court examines the evidence in the

light most favorable to the defendant to determine whether “the
                                       -8-
evidence    would   permit   the     jury    rationally     to    find   defendant

guilty of the lesser offense and to acquit him of the greater.”

Land, ___ N.C. App. at ___, 733 S.E.2d at 595 (quotation marks

and citation omitted).

     The    test    for   determining        whether    a   trial     court    must

instruct the jury on a lesser-included offense is whether “there

is the presence, or absence, of any evidence in the record which

might convince a rational trier of fact to convict the defendant

of a less grievous offense.”             State v. Millsaps, 356 N.C. 556,

562, 572 S.E.2d 767, 772 (2002) (internal quotation marks and

citations omitted).        However, “[w]here the State’s evidence is

positive as to each element of the offense charged and there is

no   contradictory        evidence       relating      to   any     element,     no

instruction on a lesser included offense is required.”                          Id.

(internal    quotation    marks    and    citation     omitted).         Therefore,

when the State successfully produces positive evidence on all

the elements of an offense, the trial court’s obligation is to

determine whether there is any contradictory evidence that could

rationally convince a juror that the defendant committed a less

grievous offense.

     The    contradictory    evidence        that   would   require      a   lesser-

included offense instruction can come from either party, the
                                       -9-
defense or the State.         Id.     The defendant need not testify nor

produce any evidence.         Id.     Whatever its source, however, the

evidence must “conflict” with or contradict other evidence in a

manner that could rationally persuade a juror that the charged

offense did not occur and a lesser-included offense would be

appropriate.

      Here, Defendant was charged with possessing marijuana with

the intent to sell or deliver it, among other charges.                See N.C.

Gen. Stat. § 90-95(a)(1).            To convict Defendant of this crime,

the   State    must   prove   that    (1)    Defendant   knowingly   possessed

marijuana, either actually or constructively, and (2) Defendant

intended to sell or deliver the marijuana.               See State v. Carr,

145 N.C. App. 335, 341, 549 S.E.2d 897, 901 (2001).                  The trial

court’s jury instructions read in part:

              If you find the evidence beyond a reasonable
              doubt that on or about the alleged date the
              defendant knowingly possessed marijuana, and
              intended to sell or deliver it, it would be
              your duty to return a verdict of guilty of
              possession of marijuana with the intent to
              sell or deliver. If you do not so find or if
              you have a reasonable doubt as to one or
              both of these things, you would return a
              verdict   of   not   guilty  of   possessing
              marijuana with the intent to sell or deliver
              it.

Defendant, however, requested a jury instruction on the lesser-

included      offense   of    possession       of   marijuana    because    he
                                         -10-
transferred only 1.7 grams of the drug.                       He directs us to N.C.

Gen.    Stat.    §     90-95(b)(2)    to       contend         that     “[b]ecause       the

marijuana    weighed      less    than       five       grams,    without       proof    of

[Defendant] receiving payment, [Defendant] could only be found

guilty of possession of marijuana.”

       This argument is mistaken.               As noted above, Defendant was

charged   with       possession   with       intent      to    sell    or     deliver    and

selling marijuana, not “delivery” of marijuana.                         N.C. Gen. Stat.

§ 90-95(b)(2) applies only to the charge of “delivery” of a

controlled      substance    under       §    90-95(a)(1),            and    then   merely

specifies    the      evidentiary    burden        on    the     prosecution        if   the

defendant delivered less than 5 grams of marijuana.                             See Land,

___ N.C. App. at ___, 733 S.E.2d at 592.

       To determine whether the trial court erred by refusing to

instruct the jury on the lesser-included offense of possession

of marijuana, therefore, we look only to whether the State’s

“positive” evidence on each element of the charged offense was

contradicted by other evidence.                  The State produced at trial

positive,    testimonial      evidence        by    Ms.       Earp,     a     confidential

informant for the police, that she went to buy drugs from Mr.

Sanders because he was a known drug dealer.                                 Ms. Earp also

testified that Defendant was the person to whom she was brought
                                           -11-
by   Mr.   Sanders   when        she    stated    that   she    wanted    to        purchase

marijuana.         Her        testimony    showed    that      Defendant        possessed

marijuana by physically securing it, measuring it, and weighing

it on a nearby digital scale before placing it in a bag and

handing    it   to   Ms.       Earp.      Her    testimony     showed    further          that

Defendant intended to sell the marijuana because he had bags to

contain the marijuana and a digital scale to weigh the requested

amount.     Furthermore, his entire activity of weighing, bagging,

and transferring the marijuana was in response to being told by

Mr. Sanders that Ms. Earp wanted to purchase $10 worth of the

drug.

       The State also produced positive, testimonial evidence at

trial that Defendant received remuneration for transferring the

marijuana to Ms. Earp.             Ms. Earp testified that “either prior or

right after I was given the pot” Mr. Sanders handed the $10 she

had given him for the drugs to Defendant.                      Ms. Earp reiterated

this    testimony        on     cross-examination,       stating        that        she    saw

Defendant receive the $10 “with [her own] eyes.”

       Defendant     offered       no     contradictory        evidence        at     trial.

Defendant proceeded solely by attempting to impeach Ms. Earp’s

testimony in the eyes of the jury.                   Defense counsel repeatedly

emphasized that the transfer of the $10 to Defendant was not
                                        -12-
captured on video, but Ms. Earp also repeatedly stated that she

saw Defendant hand over marijuana and receive $10 with her own

eyes.

       Because    the    State   introduced     positive       evidence    on    each

element of the charged offense, and Defendant did not offer any

conflicting evidence (and no such evidence was included in the

State’s case in chief), the trial court                    rightly     declined    to

instruct the jury on the lesser-included offense of possession

of marijuana.       Defendant’s argument on appeal confuses the fact

that    Ms.    Earp’s    video   recording     did   not    capture    Defendant’s

receipt of $10 in exchange for the marijuana with the presence

or     absence    of     evidence      conflicting      with    her    eye-witness

testimony.       See Millsaps, 356 N.C. at 562, 572 S.E.2d at 772.

The absence of video recorded evidence of the transaction is not

contradictory      evidence       to    Ms.    Earp’s      testimony      that    she

witnessed Defendant receive $10 in remuneration.                      It is merely

the absence of          corroborating evidence.            The mere absence of

corroborating      evidence      does    not   create      a   conflict     in    the

evidence that justifies a lesser-included offense instruction.

       Given     that     the    prosecution     introduced       uncontradicted

evidence of remuneration, the trial court rightly concluded that

the evidence did not support an instruction on a lesser-included
                                          -13-
offense.      As to Defendant’s first argument, therefore, we find

that    the    trial    court      properly       denied    Defendant’s        requested

instruction.

B. Defendant’s Excluded Argument Claim

       Defendant next contends that the trial court erred when it

prevented defense counsel from arguing in her closing statement

that North Carolina has a “pot exception” for the transfer of

less than 5 grams of marijuana.                    This Court reviews a trial

court’s      rulings    on   a    party’s    objections        to    improper    closing

arguments for an abuse of discretion.                     See State v. Jones, 355

N.C. 117, 131, 558 S.E.2d 97, 106 (2002).

       As our Supreme Court has noted, counsel for both sides are

entitled      to   argue     the    law     and   facts     in      evidence     and    all

reasonable inferences to be drawn therefrom.                           State v. Allen,

353 N.C. 504, 508, 546 S.E.2d 372, 375 (2001).                           However, that

Court has also “repeatedly stressed that counsel may not ‘travel

outside the record’ by arguing facts or matters not included in

the    evidence    of    record.”         Id.     at    509,     546    S.E.2d    at     375

(citations omitted).             Counsel has a right to argue to the jury

“the whole case,” including issues of law and fact, but this

argument is subject to limits. State v. Britt, 288 N.C. 699,

712,   220    S.E.2d    283,      291   (1975).        Specifically,      “[t]he       trial
                                            -14-
court   has     a    duty,        upon   objection,        to     censor      remarks       not

warranted      by    either       the    evidence     or        the    law,       or    remarks

calculated to mislead or prejudice the jury.” Id.

      Here,    Defendant          asserts   error   in     the        following         exchange

during the defense counsel’s closing argument:

              [DEFENSE COUNSEL]:    . . .     Transfer of
              marijuana in exchange for money. The State
              hasn’t proven Mr. Dublin got any money,
              ladies and gentlemen. In North Carolina,
              furthermore, has [sic] an exception, a pot
              exception as some like to call it. The
              transfer of less than 5 grams of marijuana –
              -

              [STATE’S ATTORNEY]: Objection.
              THE COURT: Basis?
              [STATE’S ATTORNEY]: If I could approach?
              THE COURT: Yes.
              (Side-bar conference.)
              THE COURT: Motion to strike is allowed. The
              jury will not consider the last comment of
              counsel.


In   this   exchange,        defense     counsel    attempted           to    introduce      an

argument based on N.C. Gen. Stat. § 90-95(b)(2)’s evidentiary

requirement         for    proving       “delivery”      of       under       5    grams     of

marijuana, misleadingly labeling it a “pot exception.”

      The trial judge properly granted the prosecution’s motion

to   strike    this       claim    for   two   reasons.          First       and       foremost,

Defendant was not charged with “delivery” of marijuana.                                       As

noted above, N.C. Gen. Stat. § 90-95(b)(2) applies only to the
                                        -15-
issue of delivery.         Defendant was charged with possession with

intent to sell or deliver and selling marijuana.                  For the trial

judge to permit argument based on N.C. Gen. Stat. § 90-95(b)(2)

would   be   to   permit   defense      counsel    to   mislead   the   jury   by

discussing a legal provision not applicable to the case before

them.   Defense counsel was free to argue – as she in fact did –

that the State did not sufficiently prove Defendant was engaged

in the sale of marijuana (which involves remuneration).                    This

argument, however, would not involve introducing claims about §

90-95(b)(2)’s evidentiary requirement.

    Second,       the   trial   judge    could    reasonably   determine   that

allowing defense counsel to argue for the existence of a “pot

exception” for the transfer of less than 5 grams of marijuana

would mislead the jury.         This statement courted the possibility

of misleading the jury into believing that Defendant could not

be guilty of possessing marijuana with the intent to sell or

deliver under N.C. Gen. Stat. § 90-95(a)(1) without proof of

remuneration.

    For the foregoing reasons, we find no error in the trial

court’s decision to grant the prosecution’s motion to strike.

C. Defendant’s Remuneration Jury Instruction Argument

    Defendant’s third claim is that the trial court erred by
                                   -16-
not instructing the jury that the transfer of less than 5 grams

of marijuana for no remuneration does not constitute delivery.

This Court makes a de novo review of arguments challenging the

trial court’s decisions regarding jury instructions, Osorio, 196

N.C. App. at 466, 675 S.E.2d at 149, and reviews those decisions

in the light most favorable to the defense. Land, ___ N.C. App.

at ___, 733 S.E.2d at 595.

    The rule for jury instructions is that the trial court must

instruct the jury on all substantive or material features of the

crime charged.      Bogle, 324 N.C. at 195, 376 S.E.2d at 748.

Here, Defendant was charged with possession with intent to sell

or deliver, selling marijuana, and conspiracy to sell marijuana

under N.C. Gen. Stat. § 90-95(a)(1).          The trial court provided

instructions   on   all   of    these   charges.     The   instruction   on

selling marijuana read in relevant part:

         If you find from the evidence beyond a
         reasonable doubt that on or about the
         alleged date, the defendant knowingly sold
         marijuana to Elaine Earp, it would be your
         duty to return a verdict of guilty. If you
         do not so find or if you have a reasonable
         doubt, it would be your duty to return a
         verdict of not guilty.

Defense counsel did not object to the instruction on any of the

charged offenses.

    Defense    counsel    did    however   request   an    instruction   on
                                       -17-
“delivery” as it is defined under N.C. Gen. Stat. § 90-95(b)(2).

Defendant, however, was not charged with delivery of marijuana

under N.C. Gen. Stat. § 90-95(b)(2).                      The trial judge stated

explicitly and without objection during the discussion of jury

instructions that Defendant was not being charged with delivery

and   that    language    to   that   effect    would       be   left   out   of   the

instructions.      Without such a charge, an instruction introducing

the   terms   of   N.C.    Gen.    Stat.   §   90-95(b)(2)       would   have      been

inappropriate because they did not apply to the charges before

the jury.

      For the foregoing reasons, the trial court’s decision not

to instruct the jury on N.C. Gen. Stat. § 90-95(b)(2) was not

erroneous.

D. Defendant’s Improper Admission of Testimony Claim

      Defendant’s        fourth    assignment        of     error   concerns        the

admission     of   testimony      regarding    his    co-perpetrator’s        guilty

plea to charges arising out of the same transaction.                     This Court

reviews for plain error a trial court’s improper admission of

evidence that was not objected to and thus not preserved.                          N.C.

R. App. P. 10(a)(4).           “For error to constitute plain error, a

defendant must demonstrate that a fundamental error occurred at

trial.   To show that an error was fundamental, a defendant must
                                        -18-
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.”                  State v. Lawrence, 365 N.C.

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

marks omitted).

      The    clear    rule    in   North       Carolina    is    that    “neither      a

conviction, nor a guilty plea, nor a plea of nolo contendere by

one   defendant      is   competent     as     evidence    of     the    guilt    of   a

codefendant on the same charges.”                State v. Rothwell, 308 N.C.

782, 785, 303 S.E.2d 798, 800–01 (1983).                        Our Supreme Court

explained that the two-fold rationale of this rule is that (1)

“a defendant's guilt must be determined solely on the basis of

the   evidence       presented     against       him,”     and     (2)    “that    the

introduction of such a plea by a co-defendant, when he or she

has not testified at defendant's trial, would also deprive the

defendant     of    his   constitutional         right    of     confrontation      and

cross-examination.”          Id. at 785–86, 303 S.E.2d at 801 (citations

omitted).

      Here, the prosecution asked Detective Richardson whether

Mr. Sanders, who was present in the courtroom, was charged in

the   same   case    as   the    one    confronting       Defendant.       Detective

Richardson responded that he had been charged and stated that he
                                                 -19-
believed Mr. Sanders pleaded guilty to the charges.                                      Defense

counsel      did    not    object        to     this     exchange      during    trial,     thus

failing to preserve it for review.                          Nevertheless, by alleging

that the admission of this testimony was plain error, this issue

is   properly       before      this      Court     on    appeal.        N.C.     R.    App.    P.

10(a)(4).

       The      admission       of       Detective        Richardson’s         testimony       was

error.       Whether by design or inadvertently, the State’s inquiry

into     “the      status”      of       the     charges     against      Defendant’s          co-

perpetrator        had     no   other          purpose    than    to     imply    Defendant’s

“guilt by association” with his co-conspirator’s admission of

guilt.       The only issue is whether this error amounts to plain

error.

       The admission of Detective Richardson’s testimony regarding

Mr. Sanders’s guilty plea is not plain error because there is no

evidence      that    it    had      a    probable       impact     on   the     jury    finding

Defendant guilty of the charged offenses.                           There was substantial

evidence upon which the jury could have found Defendant guilty

even   in    the     absence      of      the    improper     testimony.           Ms.    Earp’s

testimony suggested that Mr. Sanders brought her to Defendant in

response to her request to buy marijuana, that Defendant asked

her how much marijuana she wanted, that he weighed, bagged, and
                                           -20-
handed the drugs to her, and that he was given $10 for his

effort.          Despite defense counsel’s vigorous effort to discredit

Ms.    Earp       on    cross-examination,        she     did   not    waiver       in   her

testimony and clearly identified Defendant as the person from

whom she purchased the drugs.

       Given the significant amount of evidence upon which the

jury could have rendered its verdict that was introduced between

the improper testimony and the jury’s deliberations, we hold

that       the    trial    court’s     admission     of    Detective      Richardson’s

testimony         was     not   plain    error.           Accordingly,         we   reject

Defendant’s fourth assignment of error.

E.     Defendant’s Cumulative Effects Argument

       Lastly, Defendant contends that the cumulative effects of

individual errors in his trial were sufficiently prejudicial to

deprive him of a fair trial. See State v. Canady, 355 N.C. 242,

246, 559 S.E.2d 762, 764 (2002) (reversing for cumulative error

where “none of the trial court’s errors, when considered in

isolation, were necessarily sufficiently prejudicial to require

a    new    trial”).      We    have    identified      only    a     single    error    in

Defendant’s trial and determined it not to be plain error. We

therefore reject Defendant’s final assignment of error.
                              -21-
                          IV. Conclusion

    For the reasons stated above, the decision of the trial

court is without error.

    NO ERROR.

    Judges STEELMAN and GEER concur.

    Report per Rule 30(e).
