An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-813
                         NORTH CAROLINA COURT OF APPEALS

                              Filed:      4 March 2014


STATE OF NORTH CAROLINA


      v.                                      Catawba County
                                              No. 12 CRS 3753
TAJI SHAREEF HAQQ



      Appeal by defendant from judgments entered 1 April 2013 by

Judge   Timothy     S.    Kincaid    in    Catawba   County    Superior     Court.

Heard in the Court of Appeals 11 December 2013.


      Attorney General Roy Cooper, by Assistant Attorney General
      Donna B. Wojcik, for the State.

      Russell J. Hollers III, for defendant-appellant.


      CALABRIA, Judge.


      Taji    Shareef      Haqq   (“defendant”)      appeals     from   judgments

entered upon jury verdicts finding him guilty of trafficking in

cocaine by sale and trafficking in cocaine by possession.                         We

find no prejudicial error.

      On     27     July     2011,        Investigator      Jonathan       Dunigan

(“Investigator Dunigan”) of the Lincoln County Sheriff’s Office
                                             -2-
(“LCSO”)       arranged       a      drug    transaction          with     defendant      via

telephone.            Subsequently,          Investigator           Dunigan       and     LCSO

Investigator         Mauricio        Sing    (“Investigator           Sing”)      met     with

Investigator Chad Killian of the Catawba County Sheriff’s Office

and received $1,500 to purchase cocaine from defendant.                                   They

then drove in an undercover vehicle to defendant’s residence in

Catawba County to conduct the transaction.

       When    the    officers        arrived      at   the       residence,      defendant

approached their vehicle and informed Investigator Dunigan, with

whom he had previously conducted drug transactions, that he was

waiting       for    the     drugs     to    arrive.          A    few     minutes      later,

Investigator        Sing     handed     defendant       the       $1,500    and   defendant

retrieved approximately 35.7 grams of cocaine and gave it to

Investigator         Dunigan.          The    officers        then       left   defendant’s

residence.

       On 19 March 2012, defendant was indicted for trafficking in

cocaine     by      sale,    trafficking       in    cocaine         by    transportation,

trafficking in cocaine by possession and possession with intent

to sell or deliver (“PWISD”) cocaine based upon the 27 July 2011

transaction.         Beginning 25 March 2013, defendant was tried by a

jury   in     Catawba       County    Superior      Court.         After    the   jury    was

impaneled, the trial court instructed the jurors to rely upon
                                     -3-
their own memories of the evidence because they would be unable

to view video or transcripts of any witness testimony during the

trial.

    At the close of all the evidence, the State voluntarily

dismissed the PWISD cocaine charge.          On 1 April 2013, the jury

returned   verdicts   finding   defendant     guilty    of   trafficking    in

cocaine by sale and trafficking in cocaine by possession.                  The

jury found defendant not guilty of trafficking in cocaine by

transportation.       The   trial   court   sentenced   defendant   to     two

consecutive sentences of a minimum of 35 months to a maximum of

42 months in the North Carolina Division of Adult Correction.

Defendant appeals.

    Defendant’s sole argument on appeal is that the trial court

erred by informing the jury prior to trial that it would be

unable to view transcripts of the trial during deliberations. We

agree, but find that the error was not prejudicial.

    N.C. Gen. Stat. § 15A-1233(a) states:

           If the jury after retiring for deliberation
           requests a review of certain testimony or
           other evidence, the jurors must be conducted
           to   the   courtroom.  The   judge  in   his
           discretion, after notice to the prosecutor
           and defendant, may direct that requested
           parts of the testimony be read to the jury
           and may permit the jury to reexamine in open
           court the requested materials admitted into
           evidence. In his discretion the judge may
                                              -4-
               also have the jury review other evidence
               relating to the same factual issue so as not
               to give undue prominence to the evidence
               requested.

N.C. Gen. Stat. § 15A-1233(a) (2013). “Our Supreme Court has

held that it is error for the trial court to refuse to exercise

its discretion pursuant to this statute ‘upon the ground that

the    trial    court      has      no   power      to    grant      the    motion     in   its

discretion.’” State v. Johnson, 164 N.C. App. 1, 18-19, 595

S.E.2d 176, 186 (2004) (quoting State v. Barrow, 350 N.C. 640,

646,    517    S.E.2d      374,      378     (1999)).           As   our     Supreme     Court

explained      in    State     v.    Ashe,    the    trial      court       always    has   the

discretion to allow the jury to review testimony by utilizing

the    following         procedure:         “The     usual       method       of     reviewing

testimony before a transcript has been prepared is to let the

court reporter read to the jury his or her notes under the

supervision         of   the   trial       court    and    in     the      presence    of   all

parties.”      314 N.C. 28, 35 n.6, 331 S.E.2d 652, 657 n.6 (1985).

       In Johnson, the trial court instructed the jury prior to

trial that “[t]here is no transcript to bring back there. She

might get one typed in a month. ... So, we don't have anything

that can bring it back there to you.” 164 N.C. App. at 19, 595

S.E.2d at 187 (emphasis omitted).                         This Court held that the
                                         -5-
trial court erred by informing the jury prior to trial that it

was not possible to provide a transcript:

              While the statute refers solely to requests
              made by the jury for review of certain
              testimony or evidence, we nonetheless find
              that the purpose and intent of the statute
              are violated in this case since the trial
              court's   pretrial   comments  could   have
              foreclosed the jury from making a request
              for such testimony or evidence. Thus, we
              find error even without a request by the
              jury.

Id. at 20, 595 S.E.2d at 187.

      In the instant case, the trial court instructed the jury

prior to trial that “[w]e don’t do videotapes of witnesses after

the trial is over.           We don’t do transcripts of the witnesses

after the trial’s over simply because it takes about four, five,

six weeks to get a transcript.                 So you’re going to be required,

in all probability, to rely on your memory.”                   This statement by

the   trial    court     cannot    be   materially      distinguished     from    the

statement held to be erroneous in Johnson.                      Accordingly, the

trial   court    violated       N.C.    Gen.    Stat.   §   15A-1233(a)    when   it

informed the jury prior to trial that it would be unable to

review transcripts of witness testimony.

      Nevertheless, defendant is only entitled to relief if the

trial court’s erroneous instruction was prejudicial.                      Defendant

bears   the     burden     of     proving      that   “there   is   a   reasonable
                                            -6-
possibility that, had the error in question not been committed,

a different result would have been reached at the trial . . . .”

N.C. Gen. Stat. § 15A-1443(a) (2013).

      “It   is     only      prejudicial        error     to     deny      the      jury    an

opportunity to ask to review certain testimony or evidence where

the   defendant        can   show    that   (1)    such     testimony          or    evidence

involved issues of some confusion and contradiction, and (2) it

is likely that a jury would want to review such testimony.”

Johnson,    164    N.C.      App.    at   20,     595   S.E.2d       at   187       (internal

quotations and citation omitted). In the instant case, defendant

was convicted of trafficking in cocaine by sale and trafficking

in    cocaine     by    possession        based    upon     his      transaction           with

Investigator      Dunigan      and    Investigator        Sing    on      27    July    2011.

Defendant does not point to any contradictions or confusion in

the   evidence     regarding        the   substance       of   these      two       offenses.

Instead,    he    points      out    that    (1)    audio      and     video        recording

devices worn by the officers failed to operate during the 27

July 2011 transaction; and (2) that there was no evidence that

law enforcement recovered the exact $1,500 provided to defendant

in exchange for the cocaine.                    These ancillary issues do not

create any confusion regarding whether defendant was guilty of

trafficking.
                                  -7-
     Both Investigator Dunigan and Investigator Sing testified

that they met with defendant on 27 July 2011.           At this meeting,

they provided him with $1,500 in exchange for approximately 35.7

grams of cocaine. Moreover, the investigators’ testimony was not

contradicted by any other witness or evidence at trial. In light

of   this   unchallenged    testimony,     defendant     has   failed   to

demonstrate a reasonable possibility that, had the trial court

not erred, a different result would have been reached at the

trial.   This argument is overruled.

     Defendant   received   a   fair    trial,   free   from   prejudicial

error.

     No prejudicial error.

     Judges BRYANT and GEER concur.

     Report per Rule 30(e).
