              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-518

                               Filed: 15 January 2019

Wake County, No. 13 CRS 211979

STATE OF NORTH CAROLINA

             v.

TRAVION SMITH


      Appeal by defendant from judgment entered 22 February 2016 by Judge Paul

C. Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 29

November 2018.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Derrick
      C. Mertz, for the State.

      Lisa Miles for defendant-appellant.


      TYSON, Judge.


      Travion Smith (“Defendant”) appeals from judgment entered following a jury’s

verdict finding him guilty of first-degree murder. We find no error.

                                   I. Background

      On the evening of 13 May 2013, the day following Mother’s Day, Defendant,

Ronald Anthony (“Anthony”), and Sarah Redden (“Redden”) were together in the

vicinity of North Hills shopping center in Raleigh. The trio had been walking around

several neighborhoods in the area, breaking into unlocked cars and stealing GPS
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devices, headphones, cell phones, and other valuables. Eventually they arrived at

the Allister Apartments complex.        The Allister Apartments consisted of several

unoccupied buildings that were under construction and one occupied building.

      Melissa Huggins-Jones (“Huggins-Jones”) and her eight-year-old daughter

lived in one of the second-floor apartments of the occupied building. Huggins-Jones

had recently moved to Raleigh from Tennessee to start a new job as a branch manager

at a bank and to be closer to her mother, who lived in Wilmington. The front entrance

of Huggins-Jones’ apartment was located at the top of a set of stairs and down a

breezeway. The back of the apartment had a balcony with a sliding glass door. The

apartment located directly below Huggins-Jones’ was being used as a temporary

leasing office by the owner.

      Huggins-Jones’ air conditioning had not been working properly on 13 May and

the previous weekend.          Huggins-Jones had called the apartment building’s

maintenance worker several times to have the AC unit repaired. The night of 13

May, Huggins-Jones kept “the windows in the bedrooms” and the “sliding [glass] door

to the balcony” “wide open” to try and keep the apartment cool. Huggins-Jones’

daughter also had a large box fan operating in her bedroom.

      After breaking into several cars, Defendant, Anthony, and Redden went to one

of the unoccupied buildings of the Allister Apartments to look through their back

packs at the items they had stolen. While Redden was charging her cell phone,



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Defendant and Anthony told her “they were going to go check something, and told

[her] to wait there.” Redden testified that she could not see where Defendant and

Anthony went.

      After waiting about ten minutes, Redden walked outside the unoccupied

building to look around for Defendant and Anthony. Redden did not see Defendant

and Anthony, so she went back inside the unoccupied apartment to continue charging

her cell phone.   After waiting five more minutes, Redden stepped outside the

apartment and observed Defendant and Anthony walking from the direction of the

occupied apartment building.

      Defendant and Anthony again told Redden to stay at the unoccupied building,

and they walked back in the direction of the occupied building. After waiting another

ten minutes, Redden walked over to the occupied apartment. While Redden was

outside the occupied apartment, a police car drove by and she hid in the breezeway

of the building under the stairwell. Redden waited a minute until after the police car

had left the area. She left the stairwell and heard a noise “like a shuffle” that made

her look up.

      Redden observed Defendant standing on the second-floor balcony of Huggins-

Jones’ apartment. Defendant was using his shirt to wipe off the balcony railing.

Redden told Defendant they needed to leave and asked him where Anthony was. In

response, Defendant indicated to the sliding glass door behind him.



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      A few minutes later, Redden saw lights from a car and she hid under the

stairwell again. Redden observed a police car drive up and stop in the driveway of

the apartment building for a “minute or so” and then leave. About five minutes later,

Redden left the stairwell and walked to the other side of the apartment building. As

she arrived at the other side of the building, Anthony ran up to her. Anthony told

her “to just go” and that he was going to find Defendant.

      Redden ran to a fence that was bordering the apartment complex and shortly

thereafter observed Anthony and Defendant running towards her. Anthony was

carrying water bottles and Defendant carrying two laptop computers. The three

jumped the fence and ran along Six Forks Road to a parking lot at North Hills

shopping center.

      In the parking lot, Redden observed Anthony and Defendant wash their hands

off with water from one of the water bottles. Anthony then called and asked an

acquaintance to pick them up. Anthony referred to this acquaintance as “Reese.”

Reese arrived and picked up Defendant, Anthony, and Redden, and drove them to a

nightclub called “Flashbacks.” Redden testified that during the car ride, Anthony

showed Reese an iPhone in a “woman’s colored case” and a bloody knife. Redden

stated that Defendant was not surprised by Anthony displaying the bloody knife.

Redden observed Defendant “looked [to have] specs (sic) of blood on his shirt.”




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        Upon arriving at the nightclub, Anthony and Reese went inside while Redden

and Defendant waited outside.        Redden asked Defendant, “What is going on?”

Defendant told her “to let it go, don’t ask questions, just forget about it.”

        After leaving the nightclub, Defendant, Anthony, and Redden checked into a

Super 8 Motel at approximately 3:25 a.m. At the motel, Redden observed Defendant

remove the two laptop computers from his back pack. Defendant kept a silver one

and gave the other orange-colored one to Anthony. Redden testified that Defendant

asked Anthony, “What the hell just happened?” Defendant then said, “Man, I got a

son.” Redden described Defendant as “nervous about not seeing his son.”

        Redden also testified that Defendant and Anthony had a conversation about

“being happy that the little girl did not wake up.” Huggins-Jones’ daughter testified

she kept a large, loud box fan in her bedroom to help her sleep and that she had it on

that night. Huggins-Jones’ daughter recalled “hear[ing] a screaming noise” that

night, but went back to sleep because “[i]t didn’t sound like it was in our apartment.”

        Redden never observed what Defendant and Anthony did with the knife,

iPhone, or clothes they had worn earlier in the evening.

        At approximately 7:00 a.m., Huggins-Jones’ daughter discovered her mother’s

body.    She went outside the apartment building and sought help from two

construction employees working in the vicinity of the apartment complex. The two

construction workers accompanied Huggins-Jones’ daughter into the apartment unit



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and called 911. One of the construction workers observed Huggins-Jones dead upon

the bed in her bedroom. He described her appearance in the bedroom: “I could tell

she had blood all over her face and blood was everywhere, and I put three fingers on

her wrist and there was no pulse, and she was cold as a block of ice[.]”

      Shortly thereafter, emergency personnel arrived at the scene and confirmed

Huggins-Jones had died from unnatural causes. Dr. Lauren Scott of the North

Carolina Office of the Chief Medical Examiner performed the autopsy of Huggins-

Jones and verified she had suffered at least eighteen separate blows to her face, neck,

and upper chest area consistent with both blunt and sharp force trauma, in addition

to multiple bruises.

      Huggins-Jones injuries included, in part: a fractured skull, a broken jaw, a

broken nose, a severed carotid artery, four dislodged teeth, “a chop wound” into her

left shoulder, and puncture wounds in the left and right sides of her chest and

shoulders.   There were multiple bruises on her arms consistent with defensive

wounds, in addition to several bruises on her face, back, and legs. Dr. Scott testified

it took Huggins-Jones “anywhere from several minutes to an hour to die.”

      First responders and police investigators testified to the state of disarray in

Huggins-Jones’ apartment. Various items had been overturned on her dresser, her

nightstand door had been torn off, window blinds had been pulled off the wall, a purse




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had been emptied on the kitchen table, a drawer from a jewelry armoire had been

pulled out and blood found on one of the jewelry boxes.

      Investigators discovered Huggins-Jones’ blood on her bedroom doorknob, her

daughter’s bedroom doorknob, Huggins-Jones’ purse, her wallet, two checkbooks, and

a book cover in the hallway. A droplet of Huggins-Jones’ blood was found on the

apartment balcony, and a swabbing of the balcony railing tested positive for her blood.

      Police investigators also discovered that the leasing office in the apartment

unit immediately below Huggins-Jones’ unit had been robbed. Various items were in

disarray in the office and two Lenovo laptop computers, one silver and the other

orange, were missing along with a Canon digital camera, charger, and camera bag.

      Approximately a week later, on 20 May 2013, police found an orange Lenovo

laptop bearing the same serial number as the one stolen from the leasing office

beneath Huggins-Jones’ apartment listed for sale on the Craigslist website. Detective

Zeke Morse of the Raleigh Police Department posed as an interested buyer and

contacted the seller of the laptop, Mike McCollum (“McCollum”), who lived in Wake

Forest. Detective Morse offered to pay the listed price for the laptop and arranged to

meet McCollum the afternoon of 20 May at a Wal-Mart store parking lot located in

Wake Forest. McCollum became suspicious of the high offer price for the laptop.

McCollum removed the listing for the orange laptop from Craigslist, did not appear

at the agreed upon location, and did not return further calls from Detective Morse.



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      Police began surveillance of McCollum’s residence that same day and later

obtained a warrant to search the residence on 21 May. During the execution of the

search warrant, police discovered the stolen silver Lenovo laptop and arrested

McCollum.

      McCollum cooperated with the police and explained to them how had he

obtained the silver laptop. Anthony had called and asked him to sell two Lenovo

laptops that Anthony “was trying to get rid of” but had told him “they weren’t stolen.”

Anthony text messaged McCollum pictures of the orange laptop, which McCollum

used to list the laptop on Craigslist. Anthony used his girlfriend’s, Amber Alberts’

(“Alberts”), cellphone to send the text messages to McCollum. On 20 May 2013,

McCollum posted the listing for the orange laptop, but he did not yet have possession

of either the orange or silver laptops.

      McCollum stated that on the morning of 21 May, he had received a phone call

from Defendant. Defendant informed McCollum that he was at the Wal-Mart store

in Wake Forest and had the silver laptop for McCollum to sell. McCollum sent his

fiancée and her friend to pick up Defendant and bring him to McCollum’s residence.

Defendant provided McCollum with the silver laptop in exchange for McCollum

giving him $50 up front. McCollum’s girlfriend drove Defendant back to the Wal-

Mart store in Wake Forest.




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      Undercover police officers conducting surveillance of McCollum’s residence

observed a person, who was later determined to be Defendant, leave the residence.

The officers followed McCollum’s fiancée’s car as she drove Defendant back to the

Wal-Mart store. McCollum’s fiancée dropped Defendant off at the Wal-Mart store.

One of the officers, Detective Gory Mendez of the Raleigh Police Department,

remained behind at the Wal-Mart store to determine Defendant’s identity. The other

undercover officers followed McCollum’s fiancée back to McCollum’s residence.

      Detective Mendez lost sight of Defendant for approximately thirty minutes,

but eventually found him sitting inside a car with Anthony, Alberts, and another

woman, in a parking lot near the Wal-Mart store. Detective Mendez observed the

four individuals get out of the car and walk over to the Wal-Mart store. Detective

Mendez made arrangements to have law enforcement officers with the Raleigh Police

Department come pick up Defendant and Anthony and take them to the police station

for questioning. During the time Detective Mendez was following Defendant, other

officers were executing the search warrant for McCollum’s residence.

      An officer requested Alberts to give him her phone for examination. The officer

discovered pictures of the orange laptop on Alberts’ phone and the text messages

Anthony had sent McCollum. Law enforcement officers obtained a search warrant

for Alberts’ residence. The officers discovered a large bag that Alberts identified as

Anthony’s bag. Inside the bag were GPS devices, phone chargers, cords, and other



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items that were consistent with items reported stolen from cars in the neighborhood

surrounding the Allister Apartments complex the night of 13 May 2013. When police

took Defendant in for questioning, they requested he hand over his shoes, a pair of

red and black Nike tennis shoes. A grand jury returned a true bill of indictment for

the first-degree murder of Huggins-Jones against Defendant on 3 June 2013.

      Defendant’s capital murder trial began on 4 January 2016.             Prior to

Defendant’s trial, Anthony pled guilty to first-degree murder and received a sentence

of life imprisonment without the possibility of parole. Defendant stipulated at trial

to being “involved with the other co-defendants in breaking into cars and was with

the co-defendants before and after the incident and was involved in selling stolen

items afterwards; i.e., the laptop.”

      Melvin Brown (“Brown”) was called as a witness by the State. At the time of

trial, Brown was serving a sentence for trafficking heroin. Brown met Defendant at

the Wake County Jail, while Defendant was awaiting trial.           Brown testified

Defendant told him the reason he was in jail was because of a laptop. Brown stated

that Defendant told him:

             [T]hey had broken into a house, [Defendant] and another
             guy, and that is how he got the laptop. He took the laptop,
             like $200, some jewelry.

             He told me while he was in a place robbing the place, that
             the lady confronted him. She started yelling at him and he
             told me he jumped on the lady. He was hitting her and she
             was screaming and stuff. And then he said that his co-


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             defendant had stabbed the lady with a knife, stabbed her
             in the temple and stabbed her in the chest.

      Defendant also told Brown that police did not have the knife, and that he was

confident police would not find blood on the shoes he was wearing the night of the

murder. Brown had provided the police and the prosecution with the information

Defendant had allegedly communicated to him in exchange for a twenty-month

reduction in his prison sentence and a waiver of the mandatory $100,000 fine for

trafficking heroin. Brown testified about threats he had received from Defendant in

response to his cooperation with the prosecution. Brown also recounted a jailhouse

attack against him in retaliation for speaking with the prosecution about Defendant.

      Before the trial court charged the jury, Defendant requested a special

instruction in writing regarding Brown’s motivation for testifying. The trial court

denied Defendant’s requested special instruction.

      Defendant did not present any evidence during the guilt-innocence

determination phase of the trial. The trial court submitted to the jury the charges of:

(1) first-degree murder under the theory of premeditation and deliberation and the

alternative theory of felony murder; and (2) second-degree murder. The trial court

also instructed the jury on the criminal liability theory of acting in concert with

regards to each of Defendant’s charges.

      The jury found Defendant guilty of first-degree murder on the basis of

premeditation and deliberation, as well as under the felony murder rule with


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burglary as the underlying felony.         During the sentencing phase, the jury

recommended a sentence of life imprisonment without the possibility of parole. The

trial court entered judgment on 22 February 2016 and sentenced Defendant in

accordance with the jury’s recommendation. Defendant appeals.

                                   II. Jurisdiction

      Jurisdiction lies in this Court as of right from a final judgment in a superior

court. N.C. Gen. Stat. § 7A-27(b)(1) (2017).

                                      III. Issues

      Defendant argues the trial court erred: (1) by not giving his requested special

jury instruction regarding potential bias of the State’s witness Brown; and, (2) by

allowing Brown to testify about his belief that Defendant was involved in an attack

upon Brown while they were in jail, over Defendant’s objection.

                                 IV. Jury Instruction

                                A. Standard of Review

      Defendant and the State disagree over which standard of review this Court

should apply to the issue of the trial court’s refusal of Defendant’s requested

instruction. Defendant asserts the standard of review is de novo and the State asserts

this Court should review for an abuse of discretion. This Court has recognized “the

proper standard of review depends upon the nature of a defendant’s request for a jury

instruction.” State v. Edwards, 239 N.C. App. 391, 392, 768 S.E.2d 619, 620 (2015).



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      Defendant cites State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149

(2009), to argue the proper standard of review is de novo. At issue in Osorio was

whether sufficient evidence existed to support a jury instruction on acting in concert.

Id. “Whether evidence is sufficient to warrant an instruction . . . is a question of

law[.]” State v. Cruz, 203 N.C. App. 230, 242, 691 S.E.2d 47, 54 (2010). This Court

reviews questions of law de novo. Edwards, 239 N.C. App. at 393, 768 S.E.2d at 621

(citations omitted).

      Where the issue is not a question of law reviewed de novo, the appropriate

standard of review is for an abuse of discretion. State v. Lewis, 346 N.C. 141, 145, 484

S.E.2d 379, 381 (1997) (“[w]hether the trial court instructs using the exact language

requested by counsel is a matter within its discretion and will not be overturned

absent a showing of abuse of discretion.”) (quoting State v. Herring, 322 N.C. 733,

742, 370 S.E.2d 363, 369 (1988)); State v. Shepherd, 156 N.C. App. 603, 607, 577

S.E.2d 341, 344 (2003) (“the choice of instructions given to a jury ‘is a matter within

the trial court’s discretion and will not be overturned absent a showing of abuse of

discretion.’”) (quoting State v. Nicholson, 355 N.C. 1, 66, 558 S.E.2d 109, 152, cert.

denied, 537 U.S. 845, 154 L. Ed. 2d 71 (2002)).

      The issue before us involves the trial judge’s choice of language in the

instructions given to the jury. We review the trial court’s ruling for an abuse of

discretion. See Lewis, 346 N.C. at 145, 484 S.E.2d at 381.



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       “A trial court must give a requested instruction that is a correct statement of

the law and is supported by the evidence.” State v. Conner, 345 N.C. 319, 328, 480

S.E.2d 626, 629 (citation omitted), cert. denied, 522 U.S. 876, 139 L. Ed. 2d 134 (1997).

However, the trial court “need not give the requested instruction verbatim.” Id.

Instead, “an instruction that gives the substance of the requested instructions is

sufficient.” Id.   To show that the refusal to give an instruction was error, the

defendant “must show that the requested instructions were not given in substance

and that substantial evidence supported the omitted instructions.” State v. Beck, 233

N.C. App. 168, 171, 756 S.E.2d 80, 82 (2014) (citation omitted).

       “[W]hen instructions, viewed in their entirety, present the law fairly and

accurately to the jury, the instructions will be upheld.” State v. Roache, 358 N.C. 243,

304, 595 S.E.2d 381, 420 (2004). “[I]t is not enough for the appealing party to show

that error occurred in the jury instructions; rather, it must be demonstrated that such

error was likely, in light of the entire charge, to mislead the jury.” State v. Cornell,

222 N.C. App. 184, 191, 729 S.E.2d 703, 708 (2012) (citations and brackets omitted).

       “In order for a new trial to be granted, the burden is on the defendant to not

only show error but to also show that the error was so prejudicial that without the

error it is likely that a different result would have been reached.” State v. Owen, 133

N.C. App. 543, 549, 516 S.E.2d 159, 164 (1999) (citation omitted).

                                 B. Special Instruction



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       Defendant requested the following special jury instruction regarding Brown’s

testimony:

               There is evidence which tends to show that a witness
               testified with the hope that their testimony would convince
               the prosecutor to recommend a charge reduction. If you
               find that the witness testified for this reason, in whole or
               in part, you should examine this testimony with great care
               and caution. If, after doing so, you believe the testimony,
               in whole or in part, you should treat what you believe the
               same as any other believable evidence.

The trial court denied the requested special instruction, and gave the jury the pattern

jury instructions on interested witnesses and informants, as follows:

               You may find that a witness is interested in the outcome of
               this case. You may take the witness’s interest into account
               in deciding whether to believe the witness. If you believe
               the testimony of the witness in whole or in part, you should
               treat what you believe the same as any other believable
               evidence. [N.C.P.I.-Crim. 104.20 (2011)]
               ...
               You may find that a State’s witness is interested in the
               outcome of this case because of the witness’s activity as an
               informer. If so, you should examine the testimony of the
               witness with care and caution. After doing so, if you believe
               the testimony in whole or in part, you should treat what
               you believe the same as any other believable evidence.
               (Emphasis supplied). [N.C.P.I.-Crim. 104.30 (2011)]
The trial court also gave the general pattern jury instruction concerning witness

credibility:

               You’re the sole judges of the believability of witnesses. You
               must decide for yourselves whether to believe the
               testimony of any witness. You may believe all, any part, or
               none of a witness’s testimony.

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              In deciding whether to believe a witness, you should use
              the same tests of truthfulness that you use in your
              everyday lives. Among other things, these tests may
              include the opportunity of the witness to see, hear, know,
              or remember the facts or occurrences about which the
              witness has testified; the manner and appearance of the
              witness; any interest, bias, prejudice, or partiality a witness
              may have; the apparent understanding and fairness of the
              witness; whether the testimony is reasonable; and whether
              the testimony is consistent with other believable evidence
              in this case.

N.C.P.I.-Crim. 101.15 (2011) (emphasis supplied).

       Defendant contends his requested instruction regarding Brown was supported

by the evidence because “Brown testified that, not only did he receive a benefit from

providing this information to the State, he hoped for further reduction in his sentence

after testifying.”

       Brown pled guilty to one count of trafficking in heroin on 20 August 2014. As

part of his plea arrangement, the State agreed that Brown provided substantial

assistance such that a departure was appropriate from the sentencing schedule for

trafficking offenses. Sentencing in Brown’s matter was continued until 17 March

2015, at which time Brown received a sentence which departed from the requirements

of N.C. Gen. Stat. § 90-95(h)(3). At the time of Defendant’s trial in January 2016,

Brown had fulfilled all of the conditions for entry of his plea and judgment in Brown’s

case had been entered in Wake County Superior Court. Brown’s plea to trafficking

in heroin was not contingent upon his truthful testimony against Defendant, and he


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had no arrangement with the State to testify against Defendant. Defendant concedes

that Brown received a reduced sentence for information he provided against

Defendant.

      Brown testified at trial that the prosecution had reduced his sentence for

trafficking heroin by twenty months in exchange for the information he provided

about Defendant. On direct examination, Brown further testified in the following

exchange with the prosecution:

             Q. . . . So when you pled in, you got a benefit for talking to
             law enforcement, with Detective Brady back here?

             [Brown]. Yes, Ma’am.

             [Prosecutor]. And as a result of coming in here today, you
             don’t automatically get any new benefit, is that right?

             [Brown]. No, Ma’am.

             [Prosecutor]. When we met with you this morning and with
             [your attorney], do you hope perhaps that you could get a
             benefit from this?

             [Brown]. Yes, Ma’am. I was under -- they told me that my
             lawyer could put a motion in.

             [Prosecutor]. At any point, have we agreed that you should
             get any additional time?

             [Brown]. No, Ma’am.

             [Prosecutor]. But your lawyer has said she might see if she
             can help you out?

             [Brown]. Yes, Ma’am.


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             [Prosecutor]. So it’s safe to say you hope that you can get a
             benefit?

             [Brown]. Yes, Ma’am.

             [Prosecutor]. But you are not guaranteed one as a result of
             coming in here today?

             [Brown]. No ma’am.

      Defendant asserts “[t]here is a reasonable likelihood that, had the jury been

properly directed to consider Brown’s hope for further benefit after testifying, it would

not have convicted [Defendant] of first-degree murder.” We disagree.

      The trial court’s charge to the jury, taken as a whole, was sufficient to address

the concerns motivating Defendant’s requested instruction. The entire jury charge,

including the instructions regarding interested witnesses, informants, and the jury’s

ability to take into consideration “any interest, bias, prejudice or partiality a witness

may have” was sufficient to apprise the jury that they may consider whether Brown

was interested, biased, or not credible. See State v. Singletary, 247 N.C. App. 368,

377, 786 S.E.2d 712, 719 (2016) (holding trial court’s denial of defendant’s requested

instruction was not error because “[t]he trial court’s jury charge was sufficient to

address Defendant’s concerns, as it left no doubt that it was the jury’s duty to

determine whether the witness was interested or biased”). The entire jury instruction

given by the trial court was supported by the evidence and in “substantial conformity”

with the instruction requested by Defendant. State v. McNeill, 346 N.C. 233, 239, 485


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S.E.2d 284, 288 (1997), cert. denied, 522 U.S. 1053, 139 L. Ed. 2d 647 (1998).

      Additionally, we note the State made no promises to Brown in exchange for his

truthful testimony in this case.     Defendant’s requested instruction, that Brown

“testified with the hope that [his] testimony would convince the prosecutor to

recommend a charge reduction,” was not supported by the law or the evidence as

there was no possibility Brown could receive any such “charge reduction.”

      Brown had no pending charges at the time he testified against Defendant, and

thus, there were no charges to reduce. When asked at oral argument before this

Court how the State could make concessions to Brown, who was serving an active

sentence with no pending charges, Defendant argued that a motion for appropriate

relief could be filed on Brown’s behalf. However, N.C. Gen. Stat. § 15A-1415(b) (2017),

provides “the only grounds” for which Brown could have asserted a motion for

appropriate relief. The exhaustive list set forth in that statute does not allow relief

from entry of judgment for a defendant who subsequently provides truthful

testimony. See id.

      Even presuming the trial court erred by denying Defendant’s requested

instruction, Defendant cannot demonstrate prejudice to award a new trial.

Defendant had ample opportunity to cross-examine Brown regarding his agreement

with the State, as well as to argue to the jury that Brown’s deal with the State, as




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well as Brown’s hope for another future sentence reduction, motivated Brown’s

testimony and impacted his credibility and truthfulness.

      In State v. Mewborn, this Court found no prejudice resulted from the trial

court’s refusal to give the pattern instruction on witnesses with immunity or quasi-

immunity where the “defendant had the opportunity to cross-examine [the witness]

about any alleged agreement and to argue to the jury regarding the impact of any

alleged agreement upon [the witness’] credibility” and “the jury had before it evidence

of [the witness’] arrest, the charges pending against [the witness], his cooperation

with police, his plea agreement, and his pending sentencing hearing.” State v.

Mewborn, 178 N.C. App. 281, 293, 631 S.E.2d 224, 232, disc. review denied, 360 N.C.

652, 637 S.E.2d 187 (2006).

      Here, the jury was presented evidence of Brown’s conviction and sentence for

trafficking heroin, his testimony that he contacted the prosecution about the

information he gained from Defendant because he “wanted to get substantial

assistance for talking to them about the murder,” and the details of the resulting

agreement to reduce Brown’s prison sentence.

      Defendant has failed to show that the trial court’s refusal to give the requested

instruction had a likely impact on the jury’s verdict or misled the jury. See id.




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      Defendant asserts the trial court’s omission of the requested instruction was

prejudicial because “[n]o physical evidence placed [Defendant] inside the apartment,

much less implicate[s] him as an assailant.”

      The evidence showed there were clothes dryer vents on each side of Huggins-

Jones’ apartment balcony. Investigators found partial shoe prints atop the dryer vent

on the right side of Huggins-Jones’ balcony. City County Bureau of Investigation

Agent Tracy Davis was admitted as an expert witness in the field of footwear

examination at trial. Agent Davis testified the partial shoe prints atop the dryer vent

had characteristics consistent with the black and red Nike tennis shoes Defendant

was wearing on the night of the murder.

      Redden observed Defendant standing on Huggins-Jones’ apartment balcony,

appearing to wipe off the railing. Redden testified she observed specks of blood on

Defendant’s shirt. A swabbing sample taken from Huggins-Jones’ balcony railing

tested positive for her blood. Redden recounted that Defendant and Anthony had a

conversation the night of the murder that they were “happy that the little girl

[Huggins-Jones’ daughter] did not wake up.”

      Contrary to Defendant’s assertion, there was substantial evidence, apart from

Brown’s testimony, from which the jury could have found Defendant was present

inside Huggins-Jones’ apartment with Anthony and participated in her murder which

caused her blood to be upon his shirt.



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                                   STATE V. SMITH

                                  Opinion of the Court



      We find no error in the trial court’s ruling to omit Defendant’s requested

instruction. Presuming, arguendo, the trial court erred, Defendant cannot show the

jury was misled by the omission of the requested instruction or that he was

prejudiced. Defendant’s argument is without merit and overruled.

                         V. Testimony On Jailhouse Attack

      Defendant also argues the trial court abused its discretion by permitting, over

his objection, Brown ‘s testimony about a jailhouse attack.

      Brown testified he was transferred to the Wake County Courthouse to testify

for the State at a pretrial hearing in November 2015. Brown said that when he

arrived at the courthouse, Defendant was present inside a holding cell. Brown stated

Defendant threatened him and made a motion with his hands “like he was going to

cut me. He was telling me I was dead.”

      After Brown testified at the pretrial hearing, he was taken back to the jail next

door to the courthouse. Brown was placed in a pod across from Defendant, but

separated by a glass window. Brown stated Defendant was staring at him through

the window and appeared to be “talking trash.” A few moments later “somebody came

to him and threatened him” for testifying against Defendant. Brown returned to his

cell. Shortly thereafter, the same person who had threatened him moments earlier

came into the cell and assaulted Brown. Brown testified the assailant asked him if

he was telling on “Tray.” Brown stated “Tray” was a nickname for Defendant.



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                                  Opinion of the Court



      Defendant argues the evidence of the jailhouse attack, but not the threats

made by Defendant, was both irrelevant and unduly prejudicial under Rules 401, 402,

and 403 of the North Carolina Rules of Evidence. N.C. Gen. Stat. § 8C-1, Rules 401,

402, 403 (2017).

      Rule 401 defines relevant evidence as “evidence having any tendency to make

the existence of any fact that is of consequence to the determination of the action

more or less probable than it would be without the evidence.” N.C. Gen. Stat. § 8C-1,

Rule 401. Irrelevant evidence is evidence “having no tendency to prove a fact at issue

in the case.” State v. Hart, 105 N.C. App. 542, 548, 414 S.E.2d 364, 368, disc. review

denied, 332 N.C. 348, 421 S.E.2d 157 (1992). Under Rule 402, relevant evidence is

generally admissible at trial while irrelevant evidence is inadmissible. N.C. Gen.

Stat. § 8C-1, Rule 402.

      “Although a trial court’s rulings on relevancy are not discretionary and we do

not review them for an abuse of discretion, we give them great deference on appeal.”

State v. Grant, 178 N.C. App. 565, 573, 632 S.E.2d 258, 265 (2006) (citation omitted),

disc. review denied, 361 N.C. 223, 642 S.E.2d 712 (2007).

      In challenging the relevancy of Brown’s testimony regarding the jailhouse

attack under Rules 401 and 402, Defendant asserts “The State presented no evidence

tending to show that [Defendant] knew about, suggested or encouraged the attack on

Brown; [Defendant] was in a different cell block from Brown at the time of the assault.



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                                    STATE V. SMITH

                                   Opinion of the Court



The testimony was therefore without proper foundation and irrelevant[.]”            We

disagree.

      Brown testified Defendant was staring at him through a glass window in the

jail immediately before the assailant approached Brown and threatened him. The

same assailant returned several minutes later, asked if he was telling on “Tray,” and

assaulted him. This testimony clearly suggests Defendant was, at minimum, aware

of the attack upon Brown or may have encouraged it.

      “Generally, evidence tending to show a defendant has attempted to induce a

witness to testify falsely in his or her favor is relevant and admissible against the

defendant.” State v. Mebane, 106 N.C. App. 516, 529, 418 S.E.2d 245, 253 (1992)

(citing State v. Minton, 234 N.C. 716, 725, 68 S.E.2d 844, 850 (1952)). This evidence

may consist of attempts to influence a witness by threats or intimidation. State v.

Smith, 19 N.C. App. 158, 159, 198 S.E.2d 52, 53 (1973).

      Evidence of threats against a witness may be relevant because it “may be

construed as an awareness of guilt on the part of the defendant.” State v. Larrimore,

340 N.C. 119, 151, 456 S.E.2d 789, 806 (1995) (citing State v. Hicks, 333 N.C. 467,

428 S.E.2d 167 (1993) and Minton, 234 N.C. at 716, 68 S.E.2d at 844).

      Brown testified he did not want to be at trial because he had concerns for his

safety.   Our Supreme Court has held a witness may testify about his fear of a

defendant and the reasons for his fear, as this is relevant to the issue of the witness’



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                                    STATE V. SMITH

                                   Opinion of the Court



credibility. State v. Lamb, 342 N.C. 151, 158, 463 S.E.2d 189, 193 (1995) (“Where, as

here, the witness has been the subject of past acts of violence and thereby has reason

to fear another individual, those past acts are relevant to the issue of the witness’

character for truthfulness or untruthfulness.” (quoting Larrimore, 340 N.C. at 152,

456 S.E.2d at 807)).

       The challenged testimony was clearly relevant under Rules 401 and 402

because it was probative to both issues of Defendant’s guilt and Brown’s credibility.

See id.; Larrimore, 340 N.C. at 152, 456 S.E.2d at 807; Hicks, 333 N.C. at 467, 428

S.E.2d at 167; Minton, 234 N.C. at 716, 68 S.E.2d at 844. Defendant has failed to

show the testimony at issue is irrelevant under Rule 401. N.C. Gen. Stat. § 8C-1, Rule

401.

       Defendant additionally argues the trial court abused its discretion by

admitting the challenged testimony under Rule 403 because its probative value was

substantially outweighed by the danger of unfair prejudice. 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 . . . .” N.C. Gen. Stat. § 8C-1,

Rule 403.

       A trial court’s ruling under Rule 403 is reviewed for an abuse of discretion.

State v. Triplett, 368 N.C. 172, 178, 775 S.E.2d 805, 809 (2015). This Court will find

an abuse of discretion only where a trial court’s ruling “is manifestly unsupported by



                                          - 25 -
                                    STATE V. SMITH

                                   Opinion of the Court



reason or is so arbitrary that it could not have been the result of a reasoned decision.”

Id. (citations omitted).

      Defendant asserts: “Without Melvin Brown’s irrelevant testimony that

[Defendant] may have had something to do with some sort of assault on Brown, there

is a reasonable likelihood the jury would have acquitted [Defendant] of first degree

murder.” “Certainly, the evidence was prejudicial to the defendant in the sense that

any evidence probative of the State’s case is always prejudicial to the defendant.”

State v. Stager, 329 N.C. 278, 310, 406 S.E.2d 876, 895 (1991) (citation omitted).

      Defendant only challenges the portion of Brown’s testimony regarding the

threats and attack in the jail cell by the unknown assailant. Defendant does not

challenge Brown’s testimony that Defendant was “going to cut [Brown] . . . [and that

Brown] was dead.” Defendant cannot show he was prejudiced by the challenged

testimony, much less that he was unfairly prejudiced in light of the similar

unchallenged evidence of his threats to intimidate Brown.

      The challenged testimony was relevant and its probative value significant to

both the issues of Defendant’s knowledge of his guilt and Brown’s credibility, and

was not substantially outweighed by any undue prejudice. Defendant has failed to

demonstrate how the challenged testimony was unfairly prejudicial or how its

prejudicial effect outweighs its probative value. Defendant has failed to show the

trial court abused its discretion by admitting the challenged testimony.



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                                   STATE V. SMITH

                                  Opinion of the Court



                                   VI. Conclusion

      The trial court did not err in providing the jury instruction as given and

omitting the instruction requested by Defendant.           Defendant has failed to

demonstrate how Brown’s challenged testimony was irrelevant, unfairly prejudicial,

or how its prejudicial effect outweighs its probative value under Rules 401, 402 or

403. N.C. Gen. Stat. § 8C-1, Rules 401, 402, 403.

      Defendant has not shown any abuse of discretion from the admission of

Brown’s testimony regarding the jailhouse attack. Defendant received a fair trial,

free from prejudicial errors he preserved and argued. We find no error in the jury’s

verdict or in the judgment entered thereon. It is so ordered.

      NO ERROR.

      Judges BERGER and ARROWOOD concur.




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