              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-1159

                                Filed: 21 May 2019

Johnston County, Nos. 16 CRS 58074, 58077

STATE OF NORTH CAROLINA

             v.

JULIEN ANTONIO ALLEN, Defendant.


      Appeal by defendant from judgments entered 29 March 2018 by Judge Thomas

H. Lock in Johnston County Superior Court.         Heard in the Court of Appeals

25 April 2019.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General L.
      Michael Dodd, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellant Defender Kathryn
      L. VandenBerg, for defendant.


      ARROWOOD, Judge.


      Julien Antonio Allen (“defendant”) appeals from judgments entered upon his

convictions for first degree murder, robbery with a dangerous weapon, assault with a

deadly weapon with intent to kill inflicting serious injury, and conspiracy to commit

robbery with a dangerous weapon. For the following reasons, we find no error.

                                 I.    Background

      On 10 January 2017, a Johnston County Grand Jury indicted defendant for

first degree murder of Mr. Esmail Alshami (“Mr. Alshami”), robbery with a dangerous
                                  STATE V. ALLEN

                                 Opinion of the Court



weapon from the person and presence of Mr. Alshami, assault with a deadly weapon

with intent to kill inflicting serious injury of Mr. Ricky Lynch (“Mr. Lynch”), and

conspiracy to commit the murder. The Grand Jury later entered a superseding

indictment, replacing the aim of the conspiracy charge with conspiracy to commit

robbery. The matter came on for trial on 19 March 2018 in Johnston County Superior

Court, the Honorable Thomas H. Lock presiding. The State’s evidence tends to show

as follows.

      Defendant and his friend Omari Smith (“Smith”) robbed a Knightdale

restaurant on 20 October 2016, with the help of an additional accomplice. They used

gray bandanas, guns, and a clown mask to carry out the robbery. A week later, on

27 October 2016, defendant and Smith agreed to rob a Shop-N-Go variety store.

Their friend Darius McCalston (“McCalston”) also agreed to participate in the

robbery.

      The group met at Smith’s grandmother’s house, and got into defendant’s

girlfriend, Grecia Montes (“Montes”)’s, mother’s car. Defendant drove, Montes sat in

the front passenger seat, and Smith and McCalston sat in the backseat. They arrived

at the Shop-N-Go around 10:00 p.m., parking the car on the other side of the street,

across from the store.

      Defendant and Montes remained in the car while Smith and McCalston left to

stand outside the store, armed with guns supplied by defendant. Their faces were



                                        -2-
                                   STATE V. ALLEN

                                  Opinion of the Court



covered with gray bandanas. Defendant kept watch, and communicated with Smith

and McCalston by phone. At defendant’s direction, Smith and McCalston began the

robbery.

      A store clerk, Mr. Alshami, stood behind the counter. Smith and McCalston

demanded that Mr. Alshami fill a bag with money. Smith went behind the counter,

holding out the bag for Mr. Alshami to fill, and grabbing cigars. McCalston told Mr.

Alshami: “Make one more move, I’ll shoot the shit out of you.” McCalston then shot

Mr. Alshami. He later told Smith that he shot Mr. Alshami because Mr. Alshami hit

an alarm.

      The other store clerk, Mr. Lynch, said, “Hey, what’s going on in there?” [Smith

and McCalston fled. Smith ran out the backdoor, shooting behind him at Mr. Lynch

as he made his way to Montes’ mother’s car. One of the shots hit Mr. Lynch in the

abdomen. Once Smith and McCalston reached Montes’ mother’s car, defendant drove

them to Montes’ mother’s house, where Smith and McCalston divided the money they

stole during the course of the robbery.

      Mr. Alshami died as a result of gunshot wounds to his neck and back. Mr.

Lynch recovered after spending three weeks in the hospital.

      One of defendant’s housemates, Malik Rogers (“Rogers”) later found gray and

blue bandanas, a gun, and a clown mask in defendant’s closet. He used the bandanas

and clown mask to carry out a robbery on 1 November 2016. Although defendant did



                                          -3-
                                    STATE V. ALLEN

                                   Opinion of the Court



not participate in this robbery, the evidence tended to connect the masks from the

other robberies to defendant.      Smith and defendant again robbed a store on

9 December 2016, with another accomplice, Nathan Davis (“Davis).

      On 29 March 2018, the jury found defendant guilty of all charges. The trial

court sentenced defendant to life imprisonment without parole for first degree

murder, 83 to 112 months for assault with a deadly weapon with intent to kill

inflicting serious injury, and 29 to 47 months for conspiracy, all to be served

consecutively. The trial court arrested judgment on the robbery charge.

      Defendant appeals.

                                   II.    Discussion

      Defendant argues the trial court erred by admitting into evidence:          (1) a

recorded statement given by Montes, and (2) gang-related evidence. We address each

argument in turn.

                         A.     Montes’ Recorded Statement

      Montes did not attend defendant’s trial. Nevertheless, after finding Montes

was “unavailable” for purposes of N.C. Gen. Stat. § 8C-1, Rule 804(a)(5) (2017) and

the Confrontation Clause of the United States Constitution, and holding that

defendant forfeited his constitutional right to confront her, the trial court admitted a

recorded statement Montes made to law enforcement prior to trial. Defendant argues

the trial court erred by admitting this statement because:        (1) Montes was not



                                          -4-
                                     STATE V. ALLEN

                                     Opinion of the Court



“unavailable” for purposes of N.C. Gen. Stat. § 8C-1, Rule 804(a)(5) and the

Confrontation Clause, and (2) defendant did not forfeit his constitutional right to

confront Montes. We disagree.

                                i.        Unavailability

      Rule 804(a) of the North Carolina Rules of Evidence lists the scenarios that

permit a trial court to determine a declarant is “unavailable” to testify as a witness

at trial. Here, the trial court determined Montes was unavailable pursuant to Rule

804(a)(5), which permits statements to be introduced at trial in lieu of live testimony

if: (1) the declarant is unavailable as a witness, and (2) the statement qualifies as a

circumstance listed in Rule 804(b). N.C. Gen. Stat. § 8C-1, Rule 804(b). The trial

court determined Montes’ recorded statement fell within the scope of both Rule

804(b)(3) and (5):

             (3) Statement Against Interest. - A statement which was at
                 the time of its making so far contrary to the declarant’s
                 pecuniary or proprietary interest, or so far tended to
                 subject him to civil or criminal liability, or to render
                 invalid a claim by him against another, that a
                 reasonable man in his position would not have made the
                 statement unless he believed it to be true. A statement
                 tending to expose the declarant to criminal liability is
                 not admissible in a criminal case unless corroborating
                 circumstances clearly indicate the trustworthiness of
                 the statement.

             ....

             (5) Other Exceptions. - A statement not specifically covered
                 by any of the foregoing exceptions but having


                                            -5-
                                    STATE V. ALLEN

                                   Opinion of the Court



                 equivalent       circumstantial       guarantees       of
                 trustworthiness, if the court determines that (A) the
                 statement is offered as evidence of a material fact; (B)
                 the statement is more probative on the point for which
                 it is offered than any other evidence which the
                 proponent can procure through reasonable efforts; and
                 (C) the general purposes of these rules and the interests
                 of justice will best be served by admission of the
                 statement into evidence. . . .

N.C. Gen. Stat. § 8C-1, Rule 804(b).

      In contrast, our courts have held that finding witnesses unavailable for the

purposes of the Confrontation Clause requires a finding that “the prosecutorial

authorities have made a good-faith effort to obtain [the declarant’s] presence at trial.”

State v. Clonts, __ N.C. App. __, __, 802 S.E.2d 531, 544 (2017) (quoting Barber v.

Page, 390 U.S. 719, 724-25, 20 L. Ed. 2d 255, 260 (1968)), aff’d, __ N.C. __, 813 S.E.2d

796 (2018).

      Thus, in sum,

              [t]he trial court was required to make sufficient findings of
              fact, based upon competent evidence, in support of any
              ruling that the State had satisfied its burden of
              demonstrating that it had been unable to procure [the
              declarant’s] attendance . . . by process or other reasonable
              means for the purposes of N.C. Gen. Stat. § 8C-1, Rule
              804(a)(5), and that it had made a good-faith effort to obtain
              [her] presence at trial for Confrontation Clause purposes.

Id. at __, 802 S.E.2d at 545 (citation and internal quotation marks omitted).

      To review a trial court’s determination that a witness is unavailable, our Court

considers “whether the trial court’s findings of fact related to the witness’


                                          -6-
                                    STATE V. ALLEN

                                   Opinion of the Court



unavailability were supported by the evidence and, in turn, supported its conclusions

of law.” Id. at __, 802 S.E.2d at 545 (citations omitted). “The degree of detail required

in the finding of unavailability will depend on the circumstances of the particular

case.” Id. at __, 802 S.E.2d at 545 (quoting State v. Triplett, 316 N.C. 1, 8, 340 S.E.2d

736, 740-41 (1986)).

      In the present case, Montes was arrested in connection with the crimes charged

against defendant. Following her arrest, she cooperated with law enforcement and

gave a statement about the robbery that tended to incriminate defendant. Montes

agreed to appear in court and testify against defendant, but failed to appear. Her

whereabouts were unknown to her family, bondsman, and the State. The State

moved the trial court to allow her recorded statement into evidence on grounds that

she was unavailable, and also that defendant forfeited his constitutional right to

confrontation with regard to Montes due to his own wrongdoing.

      The trial court heard the motion at an evidentiary hearing on 28 March 2018.

The trial court found, in relevant part:

             8.   After Montes failed to appear, the State obtained
                  recordings of the defendant’s telephone calls from jail
                  to his mother and grandmother. . . .

             9.   On 15 March 2018, the defendant made a recorded
                  call to his mother. . . . [His mother] then connected
                  Montes to the call so that it became a three-way call.
                  During this call, the defendant made the following
                  statements to Montes: “You know what the f*** you’re
                  supposed to be doing. You know what I’m talking


                                           -7-
                      STATE V. ALLEN

                     Opinion of the Court



     about. You got time to do everything else, n*****.”
     Montes responded to the defendant and said, “Now I
     have to testify against you, how do you think that
     makes me feel? You didn’t take the plea.”

10. Later that same day, the defendant placed a recorded
    call to his grandmother . . . [she] then connected
    Montes to this call. During this call, the defendant
    said to Montes: “You’re thinking about your mother
    f****** self, n*****, lying, thinking of yourself. You’re
    trying to save your own ass. You ain’t doing a mother
    f****** thing, you are a selfish mother f*****. You’re
    trying to blame it on me. What the f***** wrong with
    you?” Montes responded and asked, “What am I
    supposed to do?” The defendant replied: “Let me
    break it down, I’m not trying to save my neck to f***
    someone else’s life up. You’re f****** stupid. You
    don’t listen. You ain’t doing a thing you’re supposed
    to because you’re out getting your nails done. The only
    thing on my shit is your lying ass because you are a
    selfish mother f*****. You’re the mother f******
    reason I’m in here right now while you’re out getting
    your nails done. Who the f*** else know [sic]? At the
    end of the day, you might be home, but I’ve to deal
    with this shit you’ve put me in.”

11. On 22 March 2018, the day before a cooperating co-
    defendant, Omari Smith, was scheduled to testify, the
    defendant placed a recorded call to an unknown
    recipient. . . . The defendant told the recipient to
    attend court the next day because Omari would be in
    court at 9:30 “lying his ass off,” and the defendant told
    the recipient to “put it on Facebook.”

12. On the morning of 23 March 2018, the court observed
    two young male individuals appear in the courtroom.
    These two males had not previously attended any part
    of the trial. After approximately one hour, the court
    ordered the bailiff to eject one of these males from the
    courtroom because of his disruptive behavior. Both


                            -8-
                       STATE V. ALLEN

                      Opinion of the Court



       males left the courtroom and never returned.

13. Omari Smith testified that the defendant called him
    prior to their arrests and threatened Smith’s brother.
    Smith further testified that he decided to testify
    against the defendant in part because of this threat.

....

15. On 15 March 2018, the defendant’s mother and
    grandmother . . . appeared at the residence of Montes’
    parents. Montes was not home. . . . [Defendant’s
    mother and grandmother] had been to the residence
    on prior occasions . . . but this time they stayed longer
    than usual, waiting until Montes arrived home.

16. After Montes arrived home from work, [defendant’s
    mother and grandmother] engaged in a hushed
    conversation with her. When [they] left, Montes’
    parents questioned her about the conversation.
    Montes said [they] had told her to “make the best
    choice that she had to make.” Montes’ mother told
    Montes that her decision had already been made and
    that she needed to go to court and testify.

17. Montes’ parents have not seen or talked with Montes
    since Sunday, 18 March 2018, and have reported her
    missing to the Johnston County Sheriff’s Office.

18. The net effect of the defendant’s words and conduct,
    in particular his words and conduct directed towards
    [Montes], was to pressure and intimidate her into not
    appearing in court and testifying in this case.

19. On 26 March 2018, the State gave the defendant
    written notice under [N.C. Gen. Stat. §] 8C-1, Rule
    804(b)(5) of its intent to introduce the recorded
    statement of Montes. The recorded statement had
    been provided to the defendant during discovery.



                             -9-
                                     STATE V. ALLEN

                                     Opinion of the Court



Based on these findings of fact, the trial court concluded Montes was “unavailable as

a witness for the State within the definition of [N.C. Gen. Stat. §] 8C-1, Rule

804(a)(5).” Additionally, the trial court concluded:

             3. The statement was at the time of its making so far
                contrary to Montes’ penal interest that she reasonably
                would not have made it unless she believed it to be true,
                and corroborating circumstances clearly indicate the
                trustworthiness of the statement.

             4. Montes’ recorded statement is admissible under [N.C.
                Gen. Stat. §] 8C-1, Rule 804(b)(3) and (5).

             5. The conduct of the defendant as described above
                constitutes a forfeiture of the defendant’s rights under
                the Sixth Amendment to the United States Constitution
                and under Article I, Section 23 of the Constitution of
                North Carolina to confront and cross-examine [Montes].

      Defendant argues the trial court did not properly find Montes unavailable

under the North Carolina Rules of Evidence and the Confrontation Clause because

the trial court failed to find the State made a good faith effort to obtain Montes’

attendance at trial. We disagree. The trial court made sufficient findings of fact to

demonstrate that the State utilized reasonable means and made a good faith effort to

procure Montes’ presence at trial.

      The North Carolina Rules of Evidence require that a finding of unavailability

be supported by evidence of process or other reasonable means, Clonts, __ N.C. App.

at __, 802 S.E.2d at 545, whereas, “a witness is not ‘unavailable’ for purposes of the

foregoing exception to the confrontation requirement unless the prosecutorial


                                            - 10 -
                                    STATE V. ALLEN

                                   Opinion of the Court



authorities have made a good-faith effort to obtain his presence at trial.” Barber, 390

U.S. at 724-25, 20 L. Ed. 2d at 260 (finding the State did not make a good faith effort

to obtain a witness’ presence at trial where the sole reason the witness was not

present was because the State did not attempt to seek his presence).

      Defendant refers us to Clonts, a case where our Court held the State did not

make a good faith effort to obtain a witness’ presence where the trial court made

insufficient findings of fact related to a witness’ unavailability where the trial court

“did not address the option of continuing trial until [the witness] returned from

[military] deployment, nor did it make any finding . . . the State made a good-faith

effort to obtain [the witness’] presence at trial[,] much less any findings

demonstrating what actions taken by the State could constitute good-faith efforts.”

Clonts, __ N.C. App. at __, 802 S.E.2d at 546 (citation and internal quotation marks

omitted). The Court then noted that, assuming arguendo the findings were sufficient,

the evidence was not sufficient to support a good faith effort to obtain the witness’

presence where the State knew the witness was deployed, and only served a last

minute subpoena, despite being provided with contact information with military

personnel who were identified as the point of contact for the matter months prior. Id.

at __, 802 S.E.2d at 546-47.

      In contrast, here, the trial court found that the State delivered a subpoena for

Montes to her lawyer, and Montes agreed to appear in court and testify against



                                          - 11 -
                                    STATE V. ALLEN

                                    Opinion of the Court



defendant. Unlike the findings in Clonts, these findings support a conclusion both

that the State utilized reasonable means and made a good faith effort to obtain the

witness’ presence at trial.

                              ii.    Confrontation Rights

      We now turn to defendant’s argument that he did not forfeit his confrontation

rights by wrongdoing. We disagree.

      Once a witness has been shown to be unavailable, our Court has held that, to

protect a defendant’s right to confrontation, “[w]e must determine: (1) whether the

evidence admitted was testimonial in nature; (2) whether the trial court properly

ruled the declarant was unavailable; and (3) whether defendant had an opportunity

to cross-examine the declarant.” Id. at __, 802 S.E.2d at 551-52 (citation and internal

quotation marks omitted). Our Court reviews for alleged violations of constitutional

rights de novo. State v. Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009)

(citation omitted). In the instant case, the recorded statement at issue was given by

an unavailable declarant and is testimonial in nature, but defendant did not have the

opportunity to cross-examine the declarant. However, the trial court found that,

nonetheless, defendant forfeited his confrontation rights as to Montes by wrongdoing.

      “Under the doctrine of forfeiture by wrongdoing, ‘one who obtains the absence

of a witness by wrongdoing forfeits the constitutional right to confrontation.’ ” State

v. Weathers, 219 N.C. App. 522, 524, 724 S.E.2d 114, 116 (2012) (quoting Davis v.



                                           - 12 -
                                   STATE V. ALLEN

                                  Opinion of the Court



Washington, 547 U.S. 813, 833, 165 L. Ed. 2d 224, 244 (2006)), cert. denied, 366 N.C.

596, 743 S.E.2d 203 (2013). Pursuant to this doctrine,

             when defendants seek to undermine the judicial process by
             procuring or coercing silence from witnesses and victims,
             the Sixth Amendment does not require courts to acquiesce.
             While defendants have no duty to assist the State in
             proving their guilt, they do have the duty to refrain from
             acting in ways that destroy the integrity of the criminal
             trial system.

Id. Although North Carolina courts have applied this doctrine, they have not yet

taken a position on the standard necessary to demonstrate forfeiture by wrongdoing.

Id. at 525, 724 S.E.2d at 116. Here, the trial court held the government to the

preponderance of the evidence standard. The preponderance of the evidence standard

is generally applied by federal courts applying Rule 804(b)(6) of the Federal Rules of

Evidence, and tends to also be applied by state courts assessing forfeiture by

wrongdoing. See Davis, 547 U.S. at 833, 165 L. Ed. 2d at 244. In accord with these

courts, we hold the trial court correctly determined that the State was required to

establish forfeiture by wrongdoing pursuant to the preponderance of the evidence

standard.

      Furthermore, we hold the State met this burden. The record shows defendant

made phone calls that the court could find evidenced his intent to intimidate Montes

into not testifying. He also threatened another testifying witness, Smith. In addition,

his mother and grandmother, who helped facilitate defendant’s threatening calls to



                                         - 13 -
                                    STATE V. ALLEN

                                   Opinion of the Court



Montes, showed up at Montes’ parents’ house prior to trial to engage in a conversation

with her about her testimony. Based on the trial court’s findings of fact related to

this evidence, the trial court properly found, by at least a preponderance of the

evidence, that the net effect of defendant’s conduct was to pressure and intimidate

Montes into not appearing in court and testifying in this case. Accordingly, the trial

court properly concluded defendant forfeited his confrontation rights by wrongdoing.

                         B.     Evidence of Gang Affiliation

      Next, defendant argues the trial court erred by admitting irrelevant and

prejudicial evidence of gang affiliation, including: (1) Smith’s testimony that he and

defendant were in a gang together, (2) Smith’s testimony about his and defendant’s

ranking in the gang, (3) Davis’ testimony that Smith and defendant were members of

the Crip gang, and (4) Rogers’ testimony that Smith and defendant were members of

the Crip gang and that when he used defendant’s masks during a robbery, he and his

accomplices did so to “act like [they were] Crip.”

      “North Carolina courts have long held that membership in an organization

may only be admitted if relevant to the defendant’s guilt.” State v. Hinton, 226 N.C.

App. 108, 113, 738 S.E.2d 241, 246 (2013) (citations omitted). Relevant evidence is

defined as “evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than

it would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule 401 (2017). “Relevant



                                          - 14 -
                                   STATE V. ALLEN

                                  Opinion of the Court



evidence may also be excluded if ‘its probative value is substantially outweighed by

the danger of unfair prejudice.’ ” Hinton, 226 N.C. App. at 113, 738 S.E.2d at 246

(quoting N.C. Gen. Stat. § 8C-1, Rule 403 (2017)). The “admission of gang-related

testimony tends to be prejudicial[.]” Id.

                    Although the trial court’s rulings on relevancy
             technically are not discretionary and therefore are not
             reviewed under the abuse of discretion standard applicable
             to Rule 403, such rulings are given great deference on
             appeal. Because the trial court is better situated to
             evaluate whether a particular piece of evidence tends to
             make the existence of a fact of consequence more or less
             probable, the appropriate standard of review for a trial
             court’s ruling on relevancy pursuant to Rule 401 is not as
             deferential as the ‘abuse of discretion’ standard which
             applies to rulings made pursuant to Rule 403.

Dunn v. Custer, 162 N.C. App. 259, 266, 591 S.E.2d 11, 17 (2004) (citations and

internal quotation marks omitted).

      Pursuant to N.C. Gen. Stat. § 15A-1443 (2017), it is the defendant’s burden to

prove the testimony was erroneously admitted and he was prejudiced by the

erroneous admission. “The admission of evidence which is technically inadmissible

will be treated as harmless unless prejudice is shown such that a different result

likely would have ensued had the evidence been excluded.” State v. Moses, 350 N.C.

741, 762, 517 S.E.2d 853, 867 (1999) (quoting State v. Gappins, 320 N.C. 64, 68, 357

S.E.2d 654, 657 (1987)).




                                            - 15 -
                                   STATE V. ALLEN

                                  Opinion of the Court



      Here, assuming arguendo that the admission of this evidence was error,

defendant has not shown that a different result likely would have ensued had the

evidence been excluded because there was overwhelming evidence of defendant’s

guilt. Smith, a co-conspirator, and Rogers both testified that defendant participated

in the robbery of the Shop-N-Go. Rogers’ testimony also tended to tie the bandanas

used in the Shop-N-Go robbery to defendant. Similarly, Montes’ statement to law

enforcement averred that she was present and witnessed defendant participate in the

Shop-N-Go robbery. Additionally, the jury was shown surveillance video taken by

cameras at the Shop-N-Go on the night in question, which tended to be consistent

with Smith’s testimony, Montes’ statement, and the motive and planning shown by

the other robberies that Smith and Davis testified defendant committed.

      In view of all of this evidence, we hold that defendant failed to show that there

was a reasonable probability that defendant would have been acquitted if the gang

references made during Smith, Roger, and Davis’ testimony had not been admitted

into evidence.

                                  III.   Conclusion

      For the foregoing reasons, we find no error.

      NO ERROR.

      Judges INMAN and YOUNG concur.




                                         - 16 -
