An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-1076
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 15 April 2014


STATE OF NORTH CAROLINA


      v.                                        Rowan County
                                                No. 11 CRS 51850-51
DONALD GENE BARNETTE, JR.



      Appeal by defendant from judgments entered 24 April 2013 by

Judge W. Erwin Spainhour in Rowan County Superior Court.                           Heard

in the Court of Appeals 19 March 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Rajeev K. Premakumar, for the State.

      Attorney Michael J. Reece, for defendant.


      ELMORE, Judge.


      After    being    found    guilty    by    a   jury    on    24    April     2013,

judgment      was    entered     against        Donald      Gene    Barnette,        Jr.

(defendant) for the offenses of assault with a deadly weapon

inflicting serious injury (AWDWISI) and intimidating a witness.

Defendant was sentenced to consecutive terms of 38-55 months and

11-14      months   active     imprisonment.         Defendant          appealed     his
                                              -2-
convictions at sentencing on the basis that 1.) the trial court

erroneously admitted secondary evidence of voice mail contents

and 2.) he received ineffective assistance of counsel.                                 After

careful consideration, we find no error.

                                              I. Facts

      Defendant was scheduled to appear in Rowan County District

Court    on    24   March      2011    for     a     communicating       threats      charge

brought against him by Bobby Austin (the victim).                               A few days

prior,    between      11    March     2011    and       18    March   2011,    the   victim

received two voice mails on his cell phone from defendant.                               The

victim identified defendant as the person who left the voice

mail messages because he recognized defendant’s voice and phone

number.       The victim and defendant had known each other for over

a year because defendant lived at the victim’s house for three

months     while    defendant         dated        the    victim’s      daughter.        The

victim’s       wife,        Robin     Austin        (Mrs.       Austin),       also    heard

defendant’s voice mails, in which defendant said “I’m going to

come get you;          I ain’t got nothing to lose.                    I’m going to kill

you” and “[t]ell [victim’s daughter] I ain’t got nothing to do

with her . . . family[.]”                   On 20 March 2011, defendant called

the     victim’s    daughter          and     told       her    that    “there    will   be

repercussions”         if    the    victim     did       not   drop    the   communicating
                                      -3-
threats charge.      A day later, the victim was attacked outside

his residence at 135 Cedar Ridge Lane in China Grove by two

people in ski masks.       When the two people knocked the victim to

the ground, the victim pulled off one of the person’s masks and

saw that the formerly masked person was defendant.                     Defendant

then told the victim, “I’m going to kill you now[.]”                   Defendant

and the other masked person hit the victim numerous times, cut

his arm, and then ran away into the woods.

    Thereafter, defendant was arrested and the State indicted

him for AWDWISI and intimidating a witness.                Before trial, the

State informed the trial court of its intent to introduce the

contents of the voice mails without having the actual voice mail

messages.       After   the   trial    court      impaneled     the    jury,     it

conducted a hearing outside the jury’s presence to determine

whether the victim and Mrs. Austin could testify at trial as to

the contents of the voice mails.            At the hearing, the victim and

Mrs. Austin testified that they bought a new phone, and despite

their    best   efforts,   they   could     not   find   the   old    phone    that

stored the voice mails.           At no point did defendant claim that

the victim or Mrs. Austin destroyed or lost the phone in bad

faith.    Over defendant’s objection during the hearing, the trial

court determined that both the victim and Mrs. Austin would be
                              -4-
allowed to testify as to the contents of the voice mails.     At

trial, the victim and Mrs. Austin testified about what they

heard on the voice mail messages without any renewed objection

by defendant.

                            II. Analysis

a.) Voice mails

    Defendant argues that the trial court committed plain error

by allowing the State to present witness testimony as to the

contents of the voice mails in lieu of the actual voice mails.

We disagree.

    “In criminal cases, an issue that was not preserved by

objection noted at trial and that is not deemed preserved by

rule or law without any such action nevertheless may be made the

basis of an issue presented on appeal when the judicial action

questioned is specifically and distinctly contended to amount to

plain error.” N.C.R. App. P. 10(a)(4); see also State v. Goss,

361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007), cert. denied, 555

U.S. 835, 172 L. Ed. 2d 58 (2008).   Plain error arises when the

error is “‘so basic, so prejudicial, so lacking in its elements

that justice cannot have been done[.]’” State v. Odom, 307 N.C.

655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v.

McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459
                                  -5-
U.S. 1018, 74 L. Ed. 2d. 513 (1982)).        “Under the plain error

rule, defendant must convince this Court not only that there was

error, but that absent the error, the jury probably would have

reached a different result.”       State v. Jordan, 333 N.C. 431,

440, 426 S.E.2d 692, 697 (1993).

     Pursuant to North Carolina Rule of Evidence 1002, “[t]o

prove the content of a writing, recording, or photograph, the

original writing, recording, or photograph is required, except

as otherwise provided in these rules or by statute.”        N.C. Gen.

Stat. § 8C-1, Rule 1002 (2013).     The relevant exception found in

Rule 1004 provides:       “The original is not required, and other

evidence of the contents of a writing, recording, or photograph

is   admissible   if:    (1)   Originals   Lost   or   Destroyed.--All

originals are lost or have been destroyed, unless the proponent

lost or destroyed them in bad faith[.]”      N.C. Gen. Stat. § 8C-1,

Rule 1004 (2013)     (emphasis in original).       According to this

rule, the defendant must show that the evidence was destroyed in

bad faith.   State v. Jarrell, 133 N.C. App. 264, 269, 515 S.E.2d

247, 251 (1999).        However, the party seeking to offer parol

evidence must show that the evidence could not be located after

a diligent search.      City of Gastonia v. Parrish, 271 N.C. 527,

529, 157 S.E.2d 154, 156 (1967).
                                       -6-
    Here, the victim testified during the admissibility hearing

that the phone storing the voice mails was                   “lost.     I don't know

what happened to it.”          When asked by the trial court about

whether he intended to save the phone, the victim stated, “it

got lost or something, couldn't find it. . . . I was going to

save it.     I think my wife tell [sic] me to keep that voice mail

in case we go to court, but like I said, I lost it.                            I don’t

know what happened to it.”        Mrs. Austin also testified about the

location of the phone, and she said that “[w]e was [sic] paying

by the -- every month and that phone got old and I wanted a

newer phone. . . . I really don’t remember where it’s at.                            I

really don’t remember. . . .           I looked everywhere for it. . . .

It’s been gone for so long, honey, I looked for it and I can’t

find it.     I’ve looked for it.”            The victim’s and Mrs. Austin’s

testimony    indicate   that    the     phone     was        lost     despite    their

reasonable    efforts   to   locate     it.       Their       combined     testimony

coupled with no assertion by defendant that the voice mails were

destroyed or lost in bad faith were sufficient grounds for the

trial   court   to   allow     other    evidence        of     the     voice    mails’

contents.     Thus, the trial court did not err in allowing the

victim and Mrs. Austin to later testify about the contents of

the voice mails during the State’s case-in-chief.
                                       -7-
b.) Ineffective Assistance of Counsel


    Next,       defendant     argues    that     he   received       ineffective

assistance of counsel at trial because his counsel failed to

renew his objection during the State’s case-in-chief as to the

entry of secondary evidence of the voice mail contents during

the victim’s and Mrs. Austin’s testimony.             We disagree.

              To prevail on a claim of ineffective
              assistance of counsel, a defendant must
              first show that his counsel’s performance
              was   deficient   and   then   that  counsel’s
              deficient    performance     prejudiced    his
              defense.   Deficient    performance   may   be
              established   by    showing    that  counsel’s
              representation   fell    below    an objective
              standard of reasonableness. Generally, to
              establish prejudice, a defendant must show
              that there is a reasonable probability that,
              but for counsel’s unprofessional errors, the
              result of the proceeding would have been
              different. A reasonable probability is a
              probability     sufficient      to   undermine
              confidence in the outcome.

State    v.    Allen,   360   N.C.     297,    316,   626   S.E.2d    271,   286

(citations and quotation marks omitted), cert. denied, 549 U.S.

867, 166 L. Ed. 2d 116 (2006).                 Under the deficiency prong

above, the defendant must first establish that his trial counsel

erred.    State v. Lee, 348 N.C. 474, 492, 501 S.E.2d 334, 345

(1998)    However, counsel does not err if he “fail[s] to object
                                    -8-
to admissible evidence[.]”        State v. Mewborn, 200 N.C. App. 731,

739, 684 S.E.2d 535, 540 (2009).

      In the case sub judice, we have already ruled that the

testimony by the victim and Mrs. Austin concerning the contents

of the voice mails was properly admitted by the trial court.

Thus, trial counsel’s failure to object to the evidence during

the   State’s     case-in-chief    was    not   error,   and   defendant’s

ineffective assistance of counsel claim necessarily fails.             See

id. (holding that defendant’s claim for ineffective assistance

of counsel “must fail” because his claim was solely based on

trial counsel’s “failure to object to admissible evidence”).

                            III. Conclusion

      In sum, the trial court did not commit error, much less

plain error, by allowing the State to present witness testimony

as to the contents of the voice mails in lieu of the actual

voice mails.      Moreover, defendant did not receive ineffective

assistance of counsel at trial.

      No error.

      Judges McCULLOUGH and DAVIS concur.

      Report per Rule 30(e).
