An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling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. COA14-1037
                         NORTH CAROLINA COURT OF APPEALS

                                 Filed: 3 March 2015


STATE OF NORTH CAROLINA

      v.                                         Forsyth County
                                                 No. 12 CRS 61644
MARY LAKYN WILMOTH



      Appeal by defendant from judgment entered 20 December 2013 by

Judge Ronald E. Spivey in Forsyth County Superior Court.                     Heard in

the Court of Appeals 4 February 2015.


      Attorney General Roy Cooper, by Assistant Attorney General
      Christina S. Hayes, for the State.

      Richard Croutharmel for defendant.


      INMAN, Judge.


      Defendant Mary Wilmoth appeals the judgment entered after a

jury found her guilty of resisting arrest and disorderly conduct.

On   appeal,    defendant      contends     that     she    received     ineffective

assistance of counsel due to her counsel’s conflict of interest.

      After     careful       review,       because        defendant      knowingly,

intelligently, and voluntarily waived her right to conflict-free

counsel, we find no error.
                                  -2-



                  Factual and Procedural Background

     On 12 April 2013, defendant and Jennifer Paz (“Paz”) were

arrested and charged with resisting arrest and disorderly conduct.

Defendant signed a waiver of counsel and was found guilty in

District Court on 12 April 2013.        Defendant appealed for a trial

de novo in Superior Court.     At arraignment, defendant was granted

court-appointed counsel, and her case was assigned to Assistant

Public Defender James McMinn (“McMinn”).            Paz’s case was also

assigned to McMinn.   On 12 July 2013, the State filed a motion for

joinder.   On 25 July 2013, based on its decision to offer a plea

bargain only to defendant, the State also filed a motion to

disqualify McMinn.

     On 29 July 2013, the State’s motions came on for hearing

before Judge Gary Gavenus in Forsyth County Superior Court. With

respect to its motion to disqualify McMinn, the State contended

that the North Carolina Rules of Professional Conduct prohibited

McMinn   from   representing   both   Paz    and   defendant   due   to   an

unwaiveable conflict of interest.           McMinn argued that “[t]here

[was] nothing about this case that one of these defendants could

testify in a way that incriminates the other” and that neither

codefendant intended to plead guilty.          Thus, he did not believe
                               -3-
that there was any conflict of interest.     Judge Gavenus asked

defendant and Paz the following questions:

         THE COURT: Ms. Paz and Ms. Wilmoth, do you
         understand that you are entitled to have the
         independent judgment of an attorney who is
         free of all possible conflicts of interest in
         representing you in your cases?

         . . .

         THE COURT: Do you understand that because your
         attorney is jointly representing you that your
         attorney may be prevented from opening
         possible plea agreements or plea negotiations
         on your behalf and from a possible agreement
         for one or the other of you to testify for the
         prosecution in exchange for either a lesser
         charge or a recommendation of leniency or even
         a dismissal? . . .

         . . .

         THE COURT: Do you understand that you and the
         co-defendant could possibly occupy opposing
         positions in a trial? . . .

         . . .

         THE COURT: Do you understand that your
         attorney’s joint representation may cause, in
         the event that there’s a jury trial, the jury
         to link you two together in this matter?

         . . .

         THE COURT: Now, do each of you understand that
         if one or the other of you chooses to testify
         in your defense, that actually counsel would
         be unable to cross-examine?

         . . .
                     -4-
THE COURT: [] You have the right to have an
attorney cross-examine witnesses against you.
That is one of the fundamental rights to a
jury trial. . . .

. . .

25 THE COURT: Do you understand that because
of this potential conflict that your attorney
-- your joint attorney may fail or refrain
from cross-examining a State’s witness,
whether it be one or the other of you or any
other State’s witness, about matters helpful
to you but harmful to the other and that your
attorney may fail to object to the admission
of   evidence   that   might   otherwise   be
inadmissible to one of you but helpful to the
other and that your attorney may fail or
refrain from objecting to evidence harmful to
you but helpful to the other of you? . . .

. . .

THE COURT: Do you understand that your
attorney may be prohibited from attempting to
shift the blame from one of you to the other
of you because he represents both of you? . .
.

. . .

THE COURT: And do you understand that if you
are convicted, the same attorney represented
you at a sentencing hearing—well, strike that.
Do you understand that if one of you pleads
guilty and thereafter reveals to the State
information damaging to the other of you, that
that could result in a conflict with your
counsel? Do you understand that?

. . .

THE COURT: I cannot give you all of the
possible conflicts of interest that may arise
                                -5-
         throughout this joint representation and the
         joint trial of your case but you understand
         that there may be other conflicts of interest
         that arise in the trial? . . .

Defendant and Paz answered that they understood Judge Gavenus’s

questions.   Judge Gavenus went on to ask defendant:

         THE COURT: And Ms. Wilmoth, how old are you?

         [DEFENDANT]: 20.

         THE COURT:    What   grade   of   school   did   you
         complete?

         [DEFENDANT]: I’m still in college actually.

         THE COURT: All right. What year of college are
         you in?

         [DEFENDANT]: I’m in my second year of college.
         Forsyth Tech.

         THE COURT: All right. Now, with all of in this
         mind, do you have any questions about any of
         the things that I have said to you?

         [DEFENDANT]: No, Your Honor.

         . . .

         THE COURT: Ms. Wilmoth, do you of your own
         free will, fully understanding what you are
         doing, voluntarily waive your right to be
         represented by an attorney who is unhindered
         by a possible conflict of interest?

         [DEFENDANT]: Yes, Your Honor, I do.

         . . .

         THE COURT: Ms. Wilmoth, with all this in mind,
         are you now satisfied to have attorney Mr.
                                -6-
          McMinn represent you and also represent Ms.
          Paz –

          [DEFENDANT]: Yes, Your Honor.

          THE COURT: -- in this case?

          [DEFENDANT]: Yes.

Based on this inquiry, the trial court held:

          All right. Then let the record reflect that I
          have had this conversation with the defendants
          in open court with their attorney present,
          clearly advising them about numerous conflicts
          of interest that could arise both in the plea
          negotiations stage as well as the trial stage;
          that each of them have indicated that they
          freely, voluntarily and understandingly waive
          any conflict in this regard and they both
          consent to Mr. McMinn representing both of
          them in this matter.

     The matter came on for trial before Judge Ronald Spivey in

Forsyth County Superior Court on 18 and 19 December 2013.      Judge

Spivey stated that he had “some questions about the representation

issue” that he wanted to discuss prior to trial.           The State

indicated that it was prepared to offer defendant a deferred

prosecution plea arrangement based on her clean criminal record,

but it would not offer the same arrangement to Paz.        After the

State renewed its motion to disqualify McMinn, McMinn argued that

since defendant and Paz had already waived any conflict before

Judge Gavenus, he was prepared to proceed to trial representing

both defendant and Paz.   Based on the unpublished case of State v.
                                 -7-
Reese, 2007 WL 4233684 (No. COA06-1098), Judge Spivey indicated

that he was inclined to allow the motion to disqualify as to either

Paz or defendant because there was “at least . . . the potential

of a conflict.”    Judge Spivey went on to ask McMinn whether he had

“gained any confidential information” that would prevent him from

representing either of the clients going forward.      McMinn replied

that he had not.     Judge Spivey allowed McMinn an opportunity to

consult with Paz and defendant to determine “whether he should go

forward representing one of [them] or whether he gained information

that would make it impossible for him to represent one.”

     McMinn consulted with defendant and Paz and then expressed

his concern to Judge Spivey that, since neither one had had a

chance to speak to outside, independent counsel, he did not think

he could represent either of them going forward.     McMinn also told

Judge Spivey that Paz wanted to waive her right to counsel and

remand to District Court and that defendant wanted to take the

plea of deferred prosecution.     Judge Spivey stated that the case

was now in a “different posture” and that “one could go forward

[with representation] in theory.”      After reiterating the fact that

he had not received any confidential communications from defendant

or Paz, McMinn stated that he would continue to represent defendant

and that Paz would waive her right to counsel on remand.        Judge
                                  -8-
Spivey asked Paz, in open court and in the presence of both McMinn

and   defendant,   whether   McMinn     had   gained   any   confidential

information from her that could be used against her at a later

time. Paz replied “no,” and she waived her right to counsel before

agreeing to withdraw her appeal and accept the judgment entered

against her in District Court.

      After reading the deferred prosecution agreement, defendant

rejected the plea arrangement and indicated her desire to proceed

to trial.    Judge Spivey posed additional questions to defendant

regarding McMinn’s continued representation:

            [THE COURT:] Do you now wish to go forward
            with Mr. McMinn’s representing your interest
            in this case?

            THE DEFENDANT: Yes, Your Honor.

            THE COURT: Do you feel like you made this
            decision freely and voluntarily?

            THE DEFENDANT: Yes.

            THE COURT: And I’ll go back and ask then, even
            though he doesn’t represent both of you now,
            you understand that you’re entitled to have
            independent counsel talk to you as free of any
            possible conflict of interest?

            THE DEFENDANT: Yes.

            THE COURT: Do you feel like that Mr. McMinn
            has gained any information from you that’s
            confidential in nature that could be used
            against you in order to benefit the co-
            defendant?
                               -9-


          THE DEFENDANT: No.

          THE COURT: Do you feel like that he has gained
          anything during his representation that’s
          adversely affected your position in this case
          as of this moment?

          THE DEFENDANT: No.

          THE COURT: So at this stage, do you freely and
          voluntarily wish to go forward with him
          representing your interest in this case?

          THE DEFENDANT: Yes, Your Honor.

Following the colloquy, Judge Spivey concluded as follows:

          THE COURT: All right. Thank you, ma’am. The
          Court will find that Ms. Wilmouth is the sole
          remaining defendant in this case, has freely
          and voluntarily elected to proceed with her
          current counsel and feels that there has been
          no adverse impact or confidential information
          used against her. And, of course, the co-
          defendant has waived any such conflict should
          any exist.

The matter proceeded to trial with McMinn representing defendant.

     At trial, several witnesses testified that they called 911

after they saw defendant and Paz fighting in the center lane of

Stratford Road in Clemmons.     Detective Edness M. Gaylor, III

(“Detective Gaylor”) and Detective Mark March (“Detective March”)

with the Forsyth County Sheriff’s Office responded to the calls.

When they arrived, Detective Gaylor testified that defendant and

Paz were walking down the center turn lane. According to Detective
                                    -10-
Gaylor,   defendant   was    extremely     hostile   toward    them.       When

defendant began walking away, Detective March told her to stop and

reached out for her elbow.          Defendant told Detective Gaylor to

“get the f--- off” of her and continued to walk away.                Detective

March grabbed her backpack to detain her, and a struggle ensued.

     At trial, defendant testified in her own defense and denied

pushing Paz into the lanes of travel and fighting with Paz.

Instead, defendant claimed that she and Paz were jogging together

when Paz began to slow down.           In an effort to motivate her,

defendant began pushing her and yelling at her.               Defendant also

testified that she fully cooperated with the police until they put

their hands on her.     Furthermore, defendant alleged that, during

the encounter, Detective March called her a “stupid b----,” grabbed

her by the back of her hair, and shoved her to the ground.

     When defendant began to testify as to what Paz said to the

police, the trial court sustained the State’s hearsay objection,

and McMinn informed the court that he would not be calling Paz as

a witness.

     On 20 December 2013, the jury found defendant guilty of

resisting,   obstructing,      or    delaying   a    public    officer     and

disorderly   conduct.       Judge   Spivey   sentenced   her    to    30   days
                                   -11-
imprisonment but suspended her sentence and placed her on 18 months

of supervised probation.     Defendant appeals.

                                  Analysis

       Our Supreme Court has held:

           A defendant in a criminal case has a
           constitutional right to effective assistance
           of counsel. The right to effective assistance
           of    counsel    includes    the   right    to
           representation that is free from conflicts of
           interest. In order to establish a violation
           of this right, a defendant who raised no
           objection at trial must demonstrate that an
           actual conflict of interest adversely affected
           his lawyer’s performance. Permitting a single
           attorney to represent two or more codefendants
           in the same trial is not a per se violation of
           the right to effective assistance of counsel.

State v. Bruton, 344 N.C. 381, 391, 474 S.E.2d 336, 343 (1996)

(internal quotation marks and citations omitted).             Generally, a

defendant raising a claim of ineffective assistance of counsel

must show (1) that counsel’s performance was deficient and (2)

that the deficient performance prejudiced the defendant.          State v.

Choudhry, 365 N.C. 215, 219, 717 S.E.2d 348, 352 (2011) (citing

Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 692, 693

(1984)).     However,   here,     defendant   asserts   her    ineffective

assistance   claim   based   on   her   attorney’s   actual   conflict   of

interest arising out of his representation of both defendant and

Paz.    See generally State v. James, 111 N.C. App. 785, 789, 433
                                        -12-
S.E.2d     755,   757   (1993)      (distinguishing         between   ineffective

assistance of counsel claims under Strickland and questions of

conflict of interest); see also Cuyler v. Sullivan, 446 U.S. 335,

343, 64 L. Ed. 2d 333, 343 (1980) (synopsis of the distinction).

       This Court has noted that “when the claim of ineffective

assistance is based upon an actual, as opposed to a potential,

conflict    of    interest    arising    out     of    an   attorney’s   multiple

representation, a defendant may not be required to demonstrate

prejudice under Strickland to obtain relief.”                 Choudhry, 365 N.C.

at 219, 717 S.E.2d at 352.         “The exact standard to be applied when

evaluating what relief, if any, should be granted in response to

a conflict of interest claim hinges, to a considerable extent,

upon the exact procedural context in which the conflict of interest

claim has been presented for a reviewing court’s consideration.”

State v. Gray, __ N.C. App. __, __, 736 S.E.2d 837, 841, disc.

review denied, __ N.C. __, 747 S.E.2d 534 (2013).               When a defendant

does not object to joint representation where an actual conflict

exists, reversal is not automatic but a defendant must show that

“an actual conflict of interest adversely affected his lawyer’s

performance.”      Choudhry, 365 N.C. at 220, 717 S.E.2d at 352.

       A criminal defendant’s “Sixth Amendment right to conflict-

free   representation        can   be   waived    by    a   defendant,   if   done
                               -13-
knowingly, intelligently and voluntarily.”    James, 111 N.C. App.

at 791-92, 433 S.E.2d at 759.         In order for a waiver to be

effective, the trial court must ensure that “the defendant is fully

advised of the facts underlying the potential conflict and is given

the opportunity to express his or her views.”    State v. Ballard,

180 N.C. App. 637, 643, 638 S.E.2d 474, 479 (2006).   In determining

whether a defendant has knowingly, intelligently, and voluntarily

waived his right to conflict-free counsel, the Fourth Circuit has

held that:

          [t]he court must personally address each
          defendant and inform him of the potential
          hazards   of   representation   by  a   single
          attorney, as well as his right to separate
          representation. In turn, the defendants are
          free to ask the court questions about the
          nature and consequences of the representation:

          Most significantly, the court should seek to
          elicit   a   narrative  response   from   each
          defendant that he has been advised of his
          right to effective representation, that he
          understands the details of his attorney’s
          possible conflict of interest and the possible
          perils of such a conflict, that he has
          discussed the matter with his attorney or if
          he wishes with outside counsel, and that he
          voluntarily    waives  his   Sixth   Amendment
          protections.

United States v. Swartz, 975 F.2d 1042, 1049 (4th Cir. 1992)

(quoting Fed. R. Crim. P. 44(c)).
                                  -14-
      Defendant’s claim that she received ineffective assistance of

counsel due to McMinn’s conflict arises from two separate periods

of McMinn’s representation.     First, defendant claims that McMinn’s

pretrial representation of both defendant and Paz constituted

ineffective assistance of counsel because McMinn was unable to

adequately advise defendant whether to take the plea offer of

deferred prosecution.1     Second, defendant alleges that McMinn’s

continued representation of defendant after Paz waived her right

to   counsel   and   withdrew   her   appeal   to   Superior   Court   was

constitutionally ineffective because McMinn refused to call Paz as

a witness to testify on defendant’s behalf.         However, both Judge

Gavenus and Judge Spivey, reviewing the procedural context of the

matter with defendant, conducted an inquiry in which defendant

waived her right to conflict-free representation.        Thus, the issue

is whether defendant’s waivers were knowing, intelligent, and

voluntary.     James, 111 N.C. App. at 791-92, 433 S.E.2d at 759.

      With regard to defendant’s 29 July 2013 pretrial waiver, we

are satisfied that Judge Gavenus fully explained the potential




1
 Although defendant claims on appeal that the State’s pretrial plea
offer to defendant included an agreement that she testify against
Paz, we are unable to substantiate this from the record.         In
contrast, the State attorney’s representations to the trial court
indicated that the offer of deferred prosecution was based solely
on defendant’s clean criminal record.
                                   -15-
consequences that could arise as a result of McMinn’s joint

representation of defendant and Paz.         Specifically, Judge Gavenus

explained the type of representation defendant was entitled to

receive under the Sixth Amendment and the effect any conflict may

have on plea negotiations, examination of witnesses—including Paz,

and sentencing issues.    Furthermore, Judge Gavenus inquired as to

defendant’s educational status and gave her a chance to express

her opinions and ask questions.           Because the trial court fully

advised defendant of the facts underlying the potential conflict

and gave her the opportunity to express her views, we believe that

defendant’s   29   July   waiver    was     knowing,   intelligent,   and

voluntary.2   See generally Ballard, 180 N.C. App. at 643, 638

S.E.2d at 479 (holding that when a trial court becomes aware of a

potential conflict of interest, “the trial judge should see that




2
  In support of her argument, defendant urges the Court to adopt
the rule set forth in this Court’s unpublished decision of State
v. Reese, 2007 WL 4233684 (No. COA06-1098), which has no
precedential value. See N.C. R. App. P. 30(e) (2013). In Reese,
*4, this Court held that, to constitute a knowing and intelligent
waiver, the defendant must have “had the opportunity to consult
with counsel unburdened by dual loyalty prior to giving their
consent” and individually consult with his attorney to discuss it.
However, in light of the case-specific procedural analysis
required by this Court in Gray, supra, and as evidenced by the
fact-intensive analysis in this case, we believe that determining
whether a waiver is effective cannot be based solely on bright-
line rules of law but, instead, must be based on the facts and
circumstances of each case.
                                     -16-
the    defendant   is   fully    advised    of    the    facts   underlying    the

potential conflict and is given the opportunity to express his or

her views”).   Accordingly, defendant waived any potential conflict

of interest at the 29 July hearing.

       As to defendant’s 19 December 2013 waiver consenting to

McMinn’s continued representation of her after he withdrew from

representing Paz and Paz waived her right to counsel, withdrew her

appeal, and agreed to accept the District Court’s judgment on

remand, we are also convinced that defendant’s waiver was knowing,

intelligent, and voluntary.         Prior to Judge Spivey’s voir dire of

defendant, both McMinn and Paz, in open court and in defendant’s

presence,    explicitly    denied     that       Paz    had   given   McMinn   any

confidential information during the course of the representation

that could be used against her.         When questioned by Judge Spivey,

defendant also stated that McMinn had not gained any confidential

information from her that could be used against her.                  Our Supreme

Court has repeatedly noted that defense counsel is in the “best

position” to recognize when dual representation constitutes a

conflict of interest.           Choudhry, 365 N.C. at 223, 717 S.E.2d at

354.    The Choudhry Court went on to say that

            while a trial court may not rely solely on
            representations of counsel to find that a
            defendant   understands the   nature of   a
            conflict, the court reasonably may consider
                                      -17-
            the statements of counsel when determining
            both whether an actual conflict exists and, if
            so, whether the defendant is knowingly,
            intelligently, and voluntarily waiving his or
            her rights to conflict-free representation.

Id.   Here, not only did McMinn deny that there was any conflict of

interest, but he also repeatedly stated that he had not received

any confidential communications from either Paz or defendant.

Consequently,   there     was    no   need   for   Judge   Spivey    to    advise

defendant   about   all    the    possible    limitations    of     that   prior

representation.

      In James, 111 N.C. App. at 790, 433 S.E.2d at 758, this Court

examined a potential conflict of interest that arose when the same

attorney represented the defendant and a prosecution witness in

unrelated matters.      The Court noted “several avenues of possible

conflict” including:

            Confidential communications from either or
            both of a revealing nature which might
            otherwise prove to be quite helpful in the
            preparation of a case might be suppressed.
            Extensive cross-examination, particularly of
            an impeaching nature, may be held in check.
            Duties   of   loyalty   and   care  might   be
            compromised if the attorney tries to perform
            a balancing act between two adverse interests.

Id. However, unlike in James, the undisputed record in the present

case shows that McMinn did not gain any confidential information

that could be used against Paz or against defendant, whether for
                                -18-
examination or impeachment purposes, or that would affect his

representation of defendant at trial.     Further, the procedural

posture after Paz withdrew her appeal and accepted the District

Court’s judgment assured that McMinn’s representation of defendant

could not possibly affect Paz’s case.     McMinn had no reason to

“perform a balancing act,” see id., because Paz and defendant had

already consented to any potential conflict of interest at the 29

July hearing and released McMinn from his duty of loyalty to them

individually. As explained in more detail infra, there is no basis

for defendant’s contention that McMinn’s trial preparation and

strategy was adversely influenced by his former representation of

Paz.

       Even assuming arguendo that defendant’s 19 December 2013

waiver was ineffective, she has failed to show that “an actual

conflict    of   interest   adversely   affected   [her]   lawyer’s

performance,” Choudhry, 365    N.C. at 220, 717 S.E.2d at 352.

Defendant contends that McMinn’s failure to call Paz as a witness

evidences not only that an actual conflict existed but also that

this conflict adversely affected McMinn’s representation because

she was “prejudiced by her inability to show the jury that Paz’s

testimony would corroborate her own.” We disagree with defendant’s

contention that the only reasonable explanation for why McMinn
                                    -19-
failed to call Paz as a witness was based on information he

obtained as a result of his prior representation.              Again, McMinn,

Paz, and defendant all denied that McMinn was privy to confidential

communications.     Moreover, our review of the record leads us to

the conclusion that Paz’s testimony would not have been especially

helpful   to   defendant’s   case    nor   would   it   have    substantially

discredited the testimony of Detectives March and Gaylor.                 Given

that Paz had a criminal record and had been convicted based on the

same incident underlying the charges against defendant, it is also

reasonable to believe that McMinn knew that her credibility would

be an issue and, therefore, chose not to call her.             Thus, we cannot

say that McMinn’s refusal to call Paz as a witness for the defense

constituted an ineffective trial strategy or had an adverse effect

on defendant.

     In Choudhry, the issue of whether an attorney’s multiple

representation constituted a conflict of interest was based on the

attorney’s     representation   of    the    defendant     and     his    prior

representation of Michelle Wahome, a State’s witness and the

defendant’s former girlfriend (“Wahome”).          Id. at 219, 717 S.E.2d

at 352.   At the defendant’s trial, defense counsel refrained from

cross-examining Wahome about her past criminal charges.                  Id. at

226, 717 S.E.2d at 356.      On appeal, the defendant contended that
                                      -20-
the suppressed examination evidenced the adverse effect of the

prior representation on his counsel’s performance and, in the

alternative,     that    the   prior    representation      prejudiced   the

defendant.     Id.   However, our Supreme Court disagreed, noting that

          While cross-examination of Wahome about her
          2003 charges could have further undermined her
          credibility, it equally well could have opened
          the door for redirect examination by the State
          relating to any role defendant may have
          played. Thus, objectively sound strategic
          reasons unrelated to the former representation
          appear to have existed for defense counsel to
          avoid asking Wahome about her charges. . . .
          We see no indication of the adverse effect on
          defense counsel’s performance required to win
          an automatic reversal under the Sullivan line
          of cases. In addition, we fail to find any
          prejudice accrued to defendant as a result of
          defense counsel’s prior representation of
          Wahome.

Id.    Here,    we   believe   that    “sound   strategic   reasons,”    id.,

unrelated to McMinn’s former representation of Paz, existed to

support McMinn’s decision to not call Paz as a witness.            Thus, as

in Choudhry, even if we were to find that defendant’s trial waiver

of conflict-free counsel was ineffective, defendant still would be

unable to show that McMinn’s former representation of Paz had an

adverse effect on his performance at trial.

      In sum, based on the thorough voir dire with defendant in

which Judge Gavenus advised her about the potential consequences

of joint representation and gave her the chance to ask questions,
                                 -21-
defendant’s 29 July 2013 waiver was knowing, intelligent, and

voluntary.   Furthermore, Judge Spivey’s inquiry of McMinn, Paz,

and defendant on 19 December 2013, in totality, was sufficient to

ensure that defendant’s waiver of conflict-free representation was

knowing, intelligent, and voluntary. Because McMinn had not gained

any   confidential   communications     that    could   adversely   affect

defendant or Paz and because McMinn owed no duty of loyalty to

Paz, defendant is unable to establish that she was denied effective

assistance of counsel at trial due to a conflict of interest.

Finally,   even   assuming   arguendo    that    defendant’s   waiver   of

conflict regarding McMinn’s continued representation of her at

trial was ineffective, defendant is unable to meet the burden set

out in Choudhry, 365 N.C. at 219, 717 S.E.2d at 352, of showing

that an actual conflict of interest adversely affected McMinn’s

representation of her.

                              Conclusion

      Based on the foregoing reasons, we conclude that defendant

knowingly, intelligently, and voluntarily waived her right to

conflict-free counsel during the 29 July 2013 pretrial hearing and

during trial.



      NO ERROR.
                         -22-
Judges STEELMAN and DIETZ concur.

Report per Rule 30(e).
