                                  NO. COA14-490
                      NORTH CAROLINA COURT OF APPEALS
                             Filed:   16 December 2014

STATE OF NORTH CAROLINA

                                            New Hanover County
      v.
                                            Nos. 10 CRS 61706, 62183

BO ANDERSON TAYLOR


      Appeal   by   defendant     from    judgments    entered    16   September

2011 by Judge Charles H. Henry in New Hanover County Superior

Court.     Heard in the Court of Appeals 8 October 2014.


      Attorney General Roy Cooper, by Associate Attorney General
      Melody Hairston, for the State.

      Appellate Defender Staples Hughes, by Assistant Appellate
      Defender Nicholas C. Woomer-Deters, for Defendant.


      ERVIN, Judge.


      Defendant Bo Anderson Taylor appeals from judgments entered

based upon his convictions for misdemeanor larceny, felonious

breaking or entering a trailer, and five counts of obtaining

property by false pretenses.          On appeal, Defendant contends that

the trial court erred by allowing the admission of evidence

affirming the truthfulness of the alleged victim and by allowing

the   State    to   elicit    extensive    testimony    that     Defendant   had

exercised his right to remain silent as part of its case in
                                         -2-
chief.     After careful consideration of Defendant’s challenges to

the   trial    court’s    judgments      in    light   of     the   record    and    the

applicable law, we conclude that Defendant is entitled to a new

trial.

                            I. Factual Background

                               A. Substantive Facts

                               1. State’s Evidence

      In    October      2010,    Defendant      and    his     girlfriend,          Gail

Lacroix, were living with Defendant’s sister, Crystal Medina.

In view of the fact that Ms. Lacroix was Defendant and Ms.

Medina’s      step-mother, no one in the family was happy about the

relationship between Defendant and Ms. Lacroix.

      Because    she     did     not   have     any    room    in    her     house     to

accommodate Defendant and Ms. Lacroix, Ms. Medina allowed them

to stay in a shop located in her backyard.                      At the time that

Defendant and Ms. Lacroix moved in, the Medinas were planning to

separate and Ms. Medina’s husband was in jail.

      The Medinas had formerly owned and operated a residential

and commercial concrete business and had purchased several tools

for use in the business, including two lasers that had been

purchased for $1,495 each.             The tools in question were stored in

locked trailers located in Ms. Medina’s backyard.                     Defendant had

access to the keys to these trailers.                   As part of the divorce
                                           -3-
settlement, Ms. Medina planned to let her husband keep the tools

while she would keep the house.                  In view of the fact that she

“didn’t     trust      [her     husband’s]           family,”         Ms.   Medina       had

photographed all of the tools and recorded their serial numbers.

      On    2    October   2010,     Defendant         pawned    a    hammer   drill     at

Picasso Pawn for $50.             On 4 October 2010, Defendant pawned two

generators at Pawn USA for $300.                    Defendant returned to Picasso

Pawn on 13 October 2010 and pawned an air compressor for $35.

On 6 November 2010, Defendant pawned two lasers at National Pawn

for   $200.       On   each    of   these      occasions,        Defendant     signed     a

statement indicating that he owned the items that were being

pawned.

      In November 2010, Ms. Medina found a pawnshop ticket on the

floor of her truck            indicating that Defendant had pawned the

lasers.     Upon making this discovery, Ms. Medina called Defendant

to ask about the ticket.                 However, Defendant hung up on her.

Although    Ms.    Medina     subsequently          confronted        Defendant     at   her

home, he denied knowing anything about the ticket.                                At that

point,     Ms.   Medina    left     to   go    to    an   appointment.         Upon      her

return, Defendant and Ms. Lacroix had packed up their belongings

and left.        After Defendant and Ms. Lacroix departed, Ms. Medina

discovered       another      pawnshop        ticket      in    the    shop    in    which

Defendant and Ms. Lacroix had been staying.
                                           -4-
      Ms. Medina did not immediately call the police because she

did not want Defendant to get in trouble.                        Instead, Ms. Medina

just wanted to recover the tools.                    After having failed to get

Defendant, who knew that he did not have permission to pawn the

tools, to return the items in question, Ms. Medina contacted the

New Hanover County Sheriff’s office and reported that Defendant

had stolen two lasers, three generators, an air compressor, and

a hammer drill from the trailers in her backyard.

      The investigation into the allegations that Ms. Medina had

made against Defendant was conducted by Detective Angie Tindall

of   the   New     Hanover       County    Sheriff’s       Department.         Although

Detective    Tindall       left    messages       for   Defendant       with   numerous

family     members,    she       never     reached      him.       As   part     of   her

investigation, Detective Tindall checked into the validity of

Ms. Medina’s claims after being told by a family member that

Defendant    had    been     asked    to    pawn     the   items    for    Ms.    Medina

because Ms. Medina had stolen $500 from her employer.                          However,

Detective    Tindall       was    unable     to    find    any    support      for    this

accusation.      As a result of the fact that Ms. Medina was in a

position to provide the serial numbers for the items that had

been pawned, Detective Tindall was able to locate the missing

tools and obtain the return of most of the missing property to

Ms. Medina.        In spite of her recognition that this matter was
                                    -5-
replete with family drama, Detective Tindall proceeded with the

investigation because Ms. Medina “seemed to be telling [her] the

truth.”

                         2. Defendant’s Evidence

     Defendant    traveled    to   South      Carolina     in   order   to     turn

himself in on unrelated criminal charges on 1 October 2010.                     Ms.

Medina wired $200 to Defendant in order to enable him to post

bond.     However, Ms. Medina told Defendant that she needed him to

repay the money that she had loaned him for the purpose of

making bond promptly because she had taken $500 from the safe at

Friendly Check Cashing,       where she was employed, in order to

secure    Defendant’s    release   and   to    pay   for   a    party   that    she

planned to host.        More specifically, Ms. Medina told Defendant

that she needed to replace all of the money that she had taken

from the safe before an audit that was going to be conducted on

the following Monday.        As part of the repayment process, Ms.

Medina gave Defendant two broken generators and told him that he

could have them if he could get them running.

     On 2 October 2010, Defendant, with Ms. Medina’s permission,

pawned a drill that he had received from Ms. Medina, gave half

of the money that he received as a result of this transaction to

Ms. Medina, and used the other half to purchase gas which he

used to drive to Leland as part of an attempt to get the broken
                                         -6-
generators running.         Ms. Medina’s fiancé, Juan, helped Defendant

load the generators into a truck since they were too heavy for

Defendant to lift on his own.

      At   some     point,    Defendant        was    able   to   pawn     the    two

generators    for    $300    and   handed      the    proceeds    to     Ms.    Medina

outside Friendly Check Cashing.                After the transfer had been

completed,    Defendant      and   Ms.     Medina     entered     Friendly       Check

Cashing, where Ms. Medina put the cash in a rolled up newspaper,

slipped the newspaper to Defendant from behind the glass, and

told Defendant to give the cash to her manager, who was working

beside her.       Upon receiving these instructions, Defendant took

$250 from the newspaper and gave it to the manager, who took the

cash and then swiped her ATM card for the apparent purpose of

replacing the remaining $250 that Ms. Medina had taken from the

store’s safe.

       On 6 November 2011, Defendant pawned two lasers that he

had received from Ms. Medina at National Pawn for $200 and took

the proceeds directly to Picasso Pawn for the purpose of making

a payment relating to certain items of jewelry that Ms. Medina

had pawned there.        While at Picasso Pawn, Defendant pawned an

air   compressor     that    Ms.   Medina       had    thrown     away    for     $35.

Defendant left the pawn ticket for the lasers in Ms. Medina’s
                                               -7-
truck, along with the receipt for the payment that he had made

to assist in the process of redeeming her jewelry.

    Defendant denied having stolen anything from Ms. Medina,

asserted   that     Ms.     Medina    was        aware   that    he   was   pawning     the

tools, and testified that “she was basically hand in hand with

everything I did.”           Similarly, Ms. Lacroix testified that she

knew that Defendant was pawning certain items, that Defendant

and Ms. Medina had discussed the transactions in which Defendant

had engaged and the manner in which the resulting proceeds would

be used, and that she and Defendant had moved away from Ms.

Medina’s   property        because        they    were   fighting     about    the      pawn

tickets and Defendant’s relationship with Ms. Lacroix.

    According        to      Defendant,           the    members      of     his   family

frequently       called    the     police        about   each    other’s     activities.

Although Ms. Medina denied that she was referring to Defendant,

Defendant pointed out that Ms. Medina had written a Facebook

message calling upon people to “Bring That White Trash Down” by

helping    her    get     “dirt”     on       Defendant,   who     was     known   by   the

nickname of “White Trash.”

                             B. Procedural History

    On     7     November    2010,        a    warrant     for    arrest     was   issued

charging Defendant with obtaining property by false pretenses.

On 18 November 2010, a warrant for arrest was issued charging
                                              -8-
Defendant with felonious larceny and two additional counts of

obtaining property by false pretenses.                      On 21 February 2011, the

New       Hanover     County      grand    jury     returned     bills   of     indictment

charging Defendant with felonious larceny, felonious breaking or

entering into a trailer, and five counts of obtaining property

by false pretenses.               The charges against Defendant came on for

trial before the trial court and a jury at the 12 September 2011

criminal session of New Hanover County Superior Court.                               On 15

September       2011,       the   jury     returned      verdicts     finding    Defendant

guilty of misdemeanor larceny, felonious breaking or entering a

trailer,        and       five    counts     of     obtaining     property      by   false

pretenses.          At the conclusion of the ensuing sentencing hearing,

the trial court entered judgments sentencing Defendant to a term

of    8    to   10       months   imprisonment       based     upon   his   consolidated

convictions for misdemeanor larceny and felonious breaking or

entering a trailer and to two consecutive terms of 11 to 14

months imprisonment based upon his consolidated convictions for

obtaining property by false pretenses.                           On 15 October 2013,

Defendant filed a petition seeking the issuance of a writ of

certiorari          by    this    Court.          This   Court   granted      Defendant’s

certiorari petition on 31 October 2013.

                            II. Substantive Legal Analysis
                                      -9-
       In his initial challenge to the trial court’s judgments,

Defendant contends that the trial court committed plain error by

permitting Detective Tindall to testify that she moved forward

with her investigation into the allegations that Ms. Medina had

made against Defendant because she believed that Ms. Medina was

telling her the truth.            More specifically, Defendant contends

that    the    challenged      testimony    constituted     an    impermissible

vouching for Ms. Medina’s credibility in a case in which the

only contested issue was the relative credibility of Ms. Medina

and Defendant.      Defendant’s argument has merit.

                              A. Standard of Review

       As he candidly concedes in his brief, Defendant did not

object to the admission of the challenged portion of Detective

Tindall’s testimony at trial.              For that reason, our evaluation

of     the    validity   of    Defendant’s     contention    is    limited   to

determining whether the admission of the challenged portion of

Detective Tindall’s testimony constituted plain error.                 A plain

error is an error that is “so fundamental that it undermines the

fairness of the trial, or [has] a probable impact on the guilty

verdict.”       State v. Floyd, 148 N.C. App. 290, 295, 558 S.E.2d

237, 240 (2002).         In order to obtain relief on plain error

grounds, “[D]efendant must convince this Court not only that

there was error, but that absent the error, the jury probably
                                            -10-
would have reached a different result.”                       State v. Jordan, 333

N.C. 431, 440, 426 S.E.2d 692, 697 (1993).

                          B. Relevant Legal Principles

       “It is fundamental to a fair trial that the credibility of

the witnesses be determined by the jury.”                     State v. Hannon, 118

N.C. App. 448, 451, 455 S.E.2d 494, 496 (1995) (citing State v.

Holloway, 82 N.C. App. 586, 587, 347 S.E.2d 72, 73-74 (1986)).

“The jury is the lie detector in the courtroom and is the only

proper entity to perform the ultimate function of every trial—

determination of the truth.”                 State v. Kim, 318 N.C. 614, 621,

350    S.E.2d      347,   351     (1986).      For     that   reason,   it    is   well

established that “a witness may not vouch for the credibility of

a victim,” State v. Giddens, 199 N.C. App. 115, 121, 681 S.E.2d

504, 508 (2009), aff’d, 363 N.C. 826, 689 S.E.2d 858-59 (2010),

with    this    rule      being    applicable        regardless    of   whether     the

improper vouching for the credibility of another witness occurs

during the testimony of an expert, State v. Dixon, 150 N.C. App.

46,    52,   563    S.E.2d      594,   598    (2002)    (stating    that     “[e]xpert

opinion testimony is not admissible to establish the credibility

of the victim as a witness”), aff’d 356 N.C. 428, 571 S.E.2d 584

(2002), or a lay witness.              State v. Freeland, 316 N.C. 13, 16-

17, 340 S.E.2d 35, 36-37 (1986) (holding that the trial court
                                        -11-
erred by allowing the alleged victim’s mother to testify that

her daughter tells the truth).

                           C. Plain Error Analysis

      In the course of Detective Tindall’s testimony on direct

examination,      the    State   and   Detective     Tindall   engaged    in    the

following colloquy:

           [Prosecutor]:   At any point did you ever
           question this case, this has a lot of family
           drama?

           [Det. Tindall]:        Yes

           [Prosecutor]:         What made you go forward?

           [Det. Tindall]:   [Ms. Medina] seemed to be
           telling me the truth, she gave me all the
           information possible that she had and we are
           required to investigate everything to the
           fullest.

By   testifying    that    Ms.   Medina   seemed     to   be   telling    her   the

truth, Detective Tindall vouched for Ms. Medina’s credibility,1 a

result that is clearly forbidden by basic principles of North

Carolina   evidence       law.    Giddens,     199   N.C.   App.   at    121,   681

S.E.2d at 508.          As a result of the fact that testimony of the

type given by Detective Tindall is clearly inadmissible, the
      1
      Although our dissenting colleague argues that Detective
Tindall’s testimony did not vouch for the credibility of a
witness, the record reflects that Ms. Medina testified at trial
and that Detective Tindall’s explanation for her decision to
continue the investigation stemmed from her belief that Ms.
Medina was telling the truth. Under that set of circumstances,
we have no hesitation in concluding that Detective Tindall
vouched for Ms. Medina’s credibility.
                                                -12-
only remaining question for our consideration is whether the

jury would have probably reached a different outcome had it not

been     allowed         to    hear     the     challenged      portion     of    Detective

Tindall’s testimony.

       The importance of Ms. Medina’s testimony to the State’s

case against Defendant should be apparent from even a cursory

examination of the record.                     Simply put, the State’s case hinged

almost entirely on Ms. Medina’s credibility.                           As a result of the

fact that Defendant freely admitted that he had pawned the tools

that Ms. Medina accused him of converting to his own use, the

extent       to    which       the     jury    convicted       or    acquitted    Defendant

necessarily depended on whether the jury believed Defendant’s

claim to have been authorized to pawn the tools in question by

Ms. Medina or whether the jury believed the State’s assertion

that Defendant            took the tools from the storage trailers and

pawned them without obtaining Ms. Medina’s permission.

       The only evidence presented at trial to the effect that

Defendant lacked permission to pawn the Medinas’ tools consisted

of   Ms.     Medina’s          testimony       to   that   effect,       which    Defendant

directly disputed when he took the witness stand.                              As a result

of     the        fact        that     law      enforcement         officers      have     the

responsibility            of     conducting         a   fair        investigation       before

initiating         criminal          charges    against    anyone,       the     jury    “most
                                          -13-
likely gave [Detective Tindall’s] opinion more weight than a lay

opinion.”      Giddens, 199 N.C. App. at 122, 681 S.E.2d at 508.                     As

a result, given the importance that the jury probably gave to

Detective Tindall’s assessment of the relative credibility of

the positions taken by Ms. Medina and Defendant and the fact

that the outcome in this case depended largely on Ms. Medina’s

credibility, we have no hesitation in holding that the admission

of   the     challenged     portion       of   Detective      Tindall’s      testimony

constituted plain error.             Hannon, 118 N.C. App. 448, 451, 455

S.E.2d 494, 496 (stating that “the admission of such an opinion

is plain error when the State’s case depends largely on the

prosecuting witness’s credibility”); see also Giddens, 199 N.C.

App. at 122, 681 S.E.2d at 508 (holding that the trial court

committed plain error by allowing the admission of non-expert

testimony      that       the   Department        of     Social       Services      had

substantiated      a   claim    of    sexual     abuse     given     that    the   only

evidence      to   that    effect    in    the    record      was   the     children’s

testimony and their prior consistent statements).

       In attempting to persuade us to reach a different result,

the State relies upon our decision in State v. O’Hanlan, 153

N.C. App. 546, 570 S.E.2d 751 (2002), cert. denied, 358 N.C.

158,   593    S.E.2d      397-98    (2004),      in   which    a    law   enforcement

officer testified that he had refrained from conducting a more
                                           -14-
thorough investigation of the available physical evidence in a

sexual assault case because the victim of the sexual assault was

able to positively identify her assailant.                        In upholding the

defendant’s         conviction,     we    rejected   the    defendant’s        argument

that       the    officer   had    impermissibly     vouched      for   the    witness’

credibility, holding that, instead of expressing an opinion that

the victim had, in fact, been assaulted, the officer had merely

explained why he did not request more thorough testing of the

physical evidence during the course of his investigation and

stated that the officer’s testimony was “helpful to the fact-

finder in presenting a clear understanding of his investigative

process.”          O’Hanlan, 153 N.C. App. at 563, 570 S.E.2d at 762.

Although         the    State   asserts    that   the   challenged         portion    of

Detective Tindall’s testimony was admissible on the basis of the

same logic that we deemed persuasive in O’Hanlan, we do not

believe          that   O’Hanlan    is    controlling      here    given      that,   in

O’Hanlan,         the defendant      specifically challenged the officer’s

failure to conduct additional testing of the physical evidence

on cross-examination while Defendant never questioned Detective

Tindall’s decision to proceed to have charges taken out against

Defendant.2         In view of the fact that Defendant did not directly

       2
      Similarly, in an attempt to suggest that Detective
Tindall’s testimony was admissible, our dissenting colleague
relies upon our decision in State v. Westall, 116 N.C. App. 534,
                              -15-
challenge Detective Tindall’s decision to proceed against him,

there was no need for the State to explain why she did so.3   As a

result, O’Hanlan provides no basis for a decision in the State’s

favor.4

                         III. Conclusion

546-47, 449 S.E.2d 24, 31-32 (1994), in which we held that the
trial court did not err by admitting the testimony of an
investigating officer to the effect that he had not taken notes
during the interview of a particular witness because he believed
that the witness was lying given that the officer had been
questioned on cross-examination about his failure to take notes
during his interview of the witness.     We do not believe that
Westall is relevant to this case given that Detective Tindall
made the statement that is discussed in the text on direct
examination and had never been subject to cross-examination
concerning   the  reason  that   she  decided   to   pursue  the
investigation.
     3
      Admittedly, Defendant questioned Ms. Medina on cross-
examination in such a manner as to challenge her credibility.
Although the State argues that Defendant’s decision to question
Ms. Medina in this manner authorized the admission of the
challenged portion of Detective Tindall’s testimony pursuant to
N.C. Gen. Stat. § 8C-1, Rule 608(a) (providing that “[t]he
credibility of a witness may be attacked by evidence . . . in
the form of reputation or opinion as provided in [N.C. Gen.
Stat. § 8C-1,] Rule 405(a),” subject to the limitation that “(1)
such evidence may refer only to character for truthfulness or
untruthfulness” and that “(2) evidence of truthful character is
admissible only after the character of the witness has been
attacked by opinion or reputation evidence or otherwise”), we do
not find this argument persuasive given that Detective Tindall’s
testimony was not focused on Ms. Medina’s “character for
truthfulness or untruthfulness” and given that Ms. Medina’s
character, as compared to her credibility, had not been
attacked.
     4
      As a result of our determination that Defendant is entitled
to a new trial for the reason discussed in the text, we need not
address Defendant’s remaining challenge to the trial court’s
judgments.
                                    -16-
    Thus, for the reasons set forth above, we conclude that the

trial   court   committed   plain     error   by   permitting   Detective

Tindall to improperly vouch for Ms. Medina’s credibility.           As a

result, Defendant is entitled to a new trial.

    NEW TRIAL.

    Judges ELMORE concurs.

    Judge BRYANT dissents in separate opinion.
                                      NO. COA14-490
                         NORTH CAROLINA COURT OF APPEALS
                            Filed:       16 December 2014

STATE OF NORTH CAROLINA

                                                   New Hanover County
    v.
                                                   Nos. 10 CRS 61706, 62183

BO ANDERSON TAYLOR


    BRYANT, Judge, dissenting.



    The   majority        remands       for    a    new   trial   based   on     their

determination    that      the    trial       court   committed   plain   error     in

allowing Detective Tindall’s testimony that “[Ms. Medina] seemed

to be telling me the truth[.]”                  Because I do not believe the

admission of that testimony meets the threshold needed for plain

error, I respectfully dissent.

    As    acknowledged           in     the     majority    opinion,      “[i]t    is

fundamental     to   a     fair       trial    that   the   credibility     of     the

witnesses be determined by the jury.” Hannon, 118 N.C. App. at

451, 455 S.E.2d at 496 (citation omitted).                    And, I would hold

that in this case, the jury’s ability to make such a credibility

determination about Ms. Medina—a woman thirty-one years old and

mother of four—who testified before them, was unimpeded.
                                      -18-

       Detective   Tindall      testified    that   she   investigated      the

claims made by Ms. Medina, and the detective was aware of the

“family drama” surrounding defendant and Ms. Medina.

            A family member advised me that [defendant]
            was asked to pawn the items for [Ms.
            Medina], that [Ms. Medina] had stolen Five
            Hundred   Dollars  from   her   employer.  I
            investigated that and learned that there was
            no evidence of this occurring so, therefore,
            [Ms. Medina] was never charged and I had no
            evidence.

When    asked   what     made   her   move   forward,     Detective    Tindall

testified, “[Ms. Medina] seemed to be telling me the truth, she

gave me all the information possible that she had and we are

required to investigate everything to the fullest.”                   Detective

Tindall expressed a lay opinion in response to a proper question

regarding   why    she    moved   forward    with   her   investigation     and

charges.5   Furthermore, Detective Tindall provided the basis for

her opinion: “she gave me all the information possible that she

had . . . .”       See State v. Westall, 116 N.C. App. 534, 546—47,

449    S.E.2d   24,    31—32    (1994)   (holding    no   error   where     the

detective expressed his lay opinion that the defendant was not



5
   N.C. Gen. Stat. § 8C-1, Rule 701 (2013) (“If the witness is
not testifying as an expert, [her] testimony in the form of
opinions or inferences is limited to those opinions or
inferences which are (a) rationally based on the perception of
the witness and (b) helpful to a clear understanding of his
testimony or the determination of a fact in issue.”).
                                          -19-

being    truthful      during       an    interview      as     a        basis    for   the

detective’s failure to take any notes during the interview).

     For error to rise to the level that it requires a new

trial, when no objection was made at trial and the alleged error

is brought forth for the first time on appeal, such error must

be

              fundamental error, something so basic, so
              prejudicial, so lacking in its elements that
              justice cannot have been done, or where the
              error is grave error which amounts to a
              denial of a fundamental right of the
              accused, or the error has resulted in a
              miscarriage of justice or in the denial to
              appellant of a fair trial . . . .

Lawrence,     365    N.C.   at   516—17,         723   S.E.2d       at    333     (citation

omitted).      We apply the plain error rule cautiously and only in

exceptional        cases    where        the     defendant      can        show     extreme

prejudice.         Such is not the case on this record.                           Defendant

challenges the detective’s response to a question regarding the

investigation.       The response was not one in which the detective

was vouching for the credibility of a trial witness.                                Such a

response cannot be deemed a fundamental error resulting in the

denial   of    a    fair    trial    to        defendant.       Therefore,         because

defendant cannot meet his burden and show plain error, defendant

is not entitled to a new trial.                   Accordingly, I would overrule
                              -20-

defendant’s argument, acknowledge the verdict of the jury, and

affirm the judgment of the trial court.
