                                NO. COA14-140

                  NORTH CAROLINA COURT OF APPEALS

                          Filed: 5 August 2014


STATE OF NORTH CAROLINA

    v.                                   Guilford County
                                         No. 08CRS075476
KEITH LAUCHON JACKSON, JR.,
     Defendant.


    Appeal by defendant from Judgment entered 17 June 2013 by

Judge John O. Craig, III, in Superior Court, Guilford County.

Heard in the Court of Appeals 4 June 2014.


    Attorney General Roy A. Cooper III, by Special                   Deputy
    Attorney General Richard L. Harrison, for the State.

    Kathryn L. VandenBerg, for defendant-appellant.


    STROUD, Judge.


    Keith   Jackson   (“defendant”)      appeals    from   the     judgment

entered after a Guilford County jury found him guilty of first

degree murder. We find no error.

                           I.     Background

    Defendant   was   indicted     for   murder    and   robbery   with   a

dangerous weapon on 14 April 2008. The indictments alleged that

defendant robbed a Lucky Mart store in High Point on 31 October
                                        -2-
2007    and,    in    doing    so,   shot     and    killed      Joshua    Sweitzer.

Defendant pled not guilty and proceeded to jury trial.

       During   the    lunch    break   on    the    first    day   of    testimony,

defendant escaped from custody of the sheriffs. As he was being

led out of the holding cell, defendant managed to slip out of

his leg shackles. Once he was free from his leg shackles, he ran

from the bailiffs, fled down a corridor, vaulted about 15 feet

over the railing onto the third floor, ran down the stairwell,

and    exited   the    courthouse.      He    was   apprehended      in    a   nearby

parking lot.

       Once he was returned to custody, the trial court addressed

counsel. The jury was in the jury room when defendant escaped

and none of them could have seen the incident, nor would they

have been aware that the courthouse was briefly on “lockdown”

due to the incident. So, the trial court decided to tell the

jury only that there had been a security incident that would

prohibit    them      from    continuing     for    the   day.    The     judge   also

decided to give the jurors a security escort to their cars. When

he dismissed the jury for the day, he re-emphasized that they

were not to read any media coverage of the trial. He further

told them that the security escort was “nothing to be concerned
                                         -3-
about” and that it was just an effort “to exercise as much

caution as need be.”

       When court reconvened the next morning, defendant moved for

a mistrial.        He was concerned that the jurors “may have been

tainted by the deluge of press coverage and the fact that the

facility       itself   was    under   lockdown.”      He   further       argued   that

having    the     jurors      escorted   to    their    cars      could    have    been

construed as an expression of judicial opinion. He asked the

trial court to individually inquire of each juror.

       The trial court explained that it had asked the bailiff to

ask the jurors whether any of them had seen any reports about

the events of the previous day. None of them indicated that they

had.     The    trial   court     decided      that    it   was    unnecessary       to

individually inquire of the jurors. Instead, once the jury was

back in the courtroom, the trial court asked them, as a whole,

whether they had followed the court’s instructions to avoid any

coverage of the trial. None of them indicated that they had

violated the court’s instructions.

       The trial court explained its decision to inquire of the

jury as a whole:

               They were probably never fully aware that
               the courthouse was in lockdown mode because
               they were sequestered in the jury room, and
               no one told them anything about what was
                                    -4-
            going on. But as I had said yesterday, I did
            it out of an overabundance of caution. And I
            think in matters such as this, safety
            concerns always outweigh and are paramount
            to anything else, and I do not believe that
            the jury would necessarily connect it to
            anything involving this defendant, and I do
            not   believe   it   necessary  to   conduct
            individual questioning of the jurors about
            this.

     Before the trial recommenced, the trial court decided to

order   physical   restraints     and   additional   security    personnel,

including one bailiff standing within arm’s reach of defendant.

Defendant   objected   to   the   added   restraints.   The     trial   court

conducted the required hearing under N.C. Gen. Stat. § 15A-1031.

The trial court found that

            in light of the seriousness of the charge,
            first-degree murder, with the penalty being
            life imprisonment without the possibility of
            parole; the fact that the defendant is of a
            temperament that he sometimes loses his
            temper, and I have personally seen this in
            previous hearings as well as his prior
            attorneys have noted this and reported it to
            the Court; the defendant’s relatively young
            age and his obvious nimbleness in being able
            to escape yesterday; the fact that he has
            made threats to harm others or cause a
            disturbance in the past, both to his prior
            attorneys and making statements to others;
            as well as the nature and physical security
            of the courtroom; and again, the need to
            protect   those   immediately   around   the
            defendant from any potential harm, the Court
            will find that it is necessary to restrain
            the defendant during the trial.
                                           -5-
      It concluded that

            the restraint [was] reasonably necessary to
            maintain order, to prevent another escape
            attempt, and to provide for the safety of
            other persons in the defendant’s immediate
            vicinity here in the courtroom. So I believe
            that in light of the events of yesterday, it
            is necessary for me to take this action.

      After asking the jurors whether they had seen any coverage

of   the   trial,   the    trial    court        instructed    the   jury   on   the

additional restraints. It stated,

            I am instructing you that the defendant has
            been placed in some physical restraints, and
            I do not -- I am ordering you not to
            consider this in any fashion, whether in
            terms of weighing the evidence or in
            determining   the   defendant’s   guilt   or
            innocence in this matter. You are to conduct
            yourselves just in a manner as if the
            defendant had not been placed in any
            restraints.

Defendant    did    not    object     to    these    instructions     or    request

additional cautionary instructions. The remainder of the trial

proceeded without incident.

      At trial, the State’s evidence showed the following:

      On   the   evening    of   31    October       2007,    Josh   Sweitzer    was

working the cash register in                a    Lucky Mart convenience store

owned by his uncle, Travis Luck. Mr. Luck left the store to get

Mr. Sweitzer some dinner. As he was leaving, he saw two men

standing outside of the store. He asked them what they were
                                     -6-
doing. They claimed to be waiting for a ride.              One of the men

was defendant.

    After Mr. Luck left, two men walked into the store wearing

bandanas over their faces and hoods covering their heads.                  One

of the men walked up to the cash register and demanded money

from Mr. Sweitzer. Mr. Sweitzer did not respond, so the man shot

him in the head. He then approached the only customer in the

store and demanded money from his wallet. The customer opened

his wallet to show the gunman that he only had $7. The two

perpetrators then walked out of the store without taking any

money.   Mr. Sweitzer died of a single gunshot wound to the right

side of his forehead.        When Mr. Luck returned to his store,

police   had   already   responded    to   the   scene   and   were   in   the

process of putting up crime scene tape.

    The next morning, Officer Kyle Shearer searched the area

around the Lucky Mart. He found a blue baseball hat hidden in a

bush, a camouflage bandana on the ground, and a .38 caliber

silver revolver within approximately 200 yards of the store.

The revolver still had five unspent rounds in it and one spent

shell casing.    No fingerprints were found on the revolver and no

DNA was found on the bandana. Police were, however, able to
                                        -7-
recover   DNA    from   the     baseball      hat.    They    later      matched    its

predominate profile to defendant.

    Ronnie Covington testified that on 31 October 2007, he and

defendant    were     hanging    out,    discussing         ways    to   get   money,

including robbery.        Defendant had a .38 caliber revolver with

him. Mr. Covington and defendant went to the Lucky Mart store.

Mr. Covington went in first to buy a cigar and to see who was in

the store and then stepped back out.                  They both then went into

the store, where Mr. Convington confronted the only customer and

defendant attempted to rob Mr. Sweitzer.                    While he was looking

at the customer, Mr. Covington heard a single gunshot. He and

defendant ran out of the store. Defendant hid his gun under an

old car before leaving the area.              Over the next several months,

defendant,      Mr.   Covington,     and      other        associates     of   theirs

committed a string of armed robberies in the area.

    Matthew      Savoy,   another       one   of     the    men    involved    in   the

string of armed robberies, also testified at trial. He testified

that defendant said to him: “Man, you missed it. We hit this

robbery and we murdered this dude. Man, we went into the store,

pointed a gun at him and told him to give me the money. He

wouldn’t move.        He ain’t say nothing. So I like, man, give me
                                      -8-
the money.     He was just looking at me, so I shot him in the

face.”

    Mr. Savoy also testified that after he and defendant were

arrested, they were placed in adjoining pods at the jail. They

passed notes back and forth.          Defendant passed one note to Mr.

Savoy written in “Crip code,” a disguised method of writing used

by members of the Crip gang and their associates.                       Mr. Savoy

explained    that   defendant    is   a     Crip,   but    denied       being   one

himself.    Nevertheless,   he    testified     that      he    could    read   and

understand    “Crip   code.”     He   translated     the       note   written    by

defendant as follows:

            Matt, what’s cracking, Big Homey. I hope
            everything 360 with you. Man, look, I just
            got a visit from my people, and shit, and
            where it is, Ronnie talking and his cousin
            Neco snitching on his behalf. That’s how
            Marcel got caught. We was at Neco’s house
            counting loot when we had hit the lick in
            Lexington. My grandma said they came and
            searched my crib off a statement somebody
            wrote. So where do your loyalty lie, Big
            Homey? You really want a position of power?
            You want -- you want your mark of purity,
            Homey? Crip the fool a straight 187, and I’m
            thinking about admitting my part in all 12
            licks so I can pull my 15 to 20 years and
            build our army, the East 99 Mafia Crips, and
            get the black book of knowledge. You dig,
            Big Homey? But shit, I got some canteen
            coming, so if you want -- if you need
            something, I’m in M-19. Be safe, Homey.
                                              -9-
     The note was signed, “Young Blue,” which is defendant’s

nickname. Mr. Savoy explained that “Crip the fool a straight

187” means to kill someone and that, in context, he understood

that defendant was asking him to kill Ronnie Covington.1

     After     defendant           was   arrested,          he     gave    a   number    of

statements to police. He admitting taking part in a string of

armed robberies but denied involvement in the Lucky Mart murder.

He named a couple people he thought might have been involved

with the murder.           Defendant later admitted that he made up the

story   implicating          others      in    the     Lucky       Mart    shooting,     but

continued to deny that he was involved.

     After     the        State    rested,      defendant          elected     to    present

evidence     and        testify    on    his    own     behalf.       Defendant       denied

participating in the Lucky Mart robbery and denied that he had

ever been to the Lucky Mart. He admitted that the blue baseball

hat was his, though he acknowledged that he had previously told

the police otherwise. Defendant said that he “was lying like

hell”   when       he     denied    that      the     hat    was    his.        On   cross-

examination,       the     State    asked      him,    over      objection,     about    his

1
  Colloquial use of the term “187” to refer to murder seems to be
based upon § 187 of the California Penal Code, which defines the
crime of murder. See People v. Jones, 70 P.3d 359, 376-77 (Cal.
2003) (discussing a Crips affiliate called “the 211 187 Hard Way
Gangster Crips”); Cal. Penal Code § 187 (2014) (defining the
crime of murder).
                                           -10-
escape in detail. The prosecutor also asked him, over objection,

if he had been a Crip in 2008. Defendant admitted that he had

been, though he denied being able to read or write “Crip code.”

       The jury found defendant guilty of both attempted armed

robbery     and    first     degree    murder.      The   trial      court    arrested

judgment on the robbery conviction. On 17 June 2013, the trial

court entered judgment on the murder conviction and sentenced

defendant to life imprisonment without parole.                       Defendant gave

notice of appeal in open court.

                       II.    Improper Judicial Comment

       Defendant     first     argues      that     the   trial      court   made    an

improper judicial comment on his dangerousness in violation of

his due process rights and the prohibition of such comment in

N.C. Gen. Stat. §§ 15A-1222 and 15A-1232. Defendant reasons that

the    trial      court’s     decision      to    order      additional      security,

including physical restraints and an escort for the jury, was

akin   to   a     statement    by    the    trial    judge    that    defendant     was

“highly     dangerous,        and    therefore      probably      guilty[.]”         We

conclude that the trial court did not abuse its discretion or

violate defendant’s constitutional rights by ordering additional

security measures after he attempted to escape.

             While, as a             general      rule, a criminal
             defendant is           entitled      to be free from
                                       -11-
            physical restraint at his trial, unless
            there are extraordinary circumstances which
            require otherwise, there is no per se
            prohibition against the use of restraint
            when it is necessary to maintain order or
            prevent escape. What is forbidden—by      the
            due process and fair trial guarantees of the
            Fourteenth Amendment to the United States
            Constitution and Art. I, Sec. 19 of the
            North   Carolina   Constitution—is   physical
            restraint   that    improperly   deprives   a
            defendant of a fair trial. Such a decision
            must necessarily be vested in the sound
            discretion of the trial court.

State v. Simpson, 153 N.C. App. 807, 809, 571 S.E.2d 274, 276

(2002)    (citations     and    quotation        marks    omitted);       see    Deck    v.

Missouri,    544   U.S.    622,    632,     161    L.Ed.    2d     953,    964    (2005)

(noting that “due process does not permit the use of visible

restraints   if    the    trial    court    has     not    taken    account       of    the

circumstances      of     the   particular         case.”     (emphasis         added)).

Additionally,      “it    is    within      the     judge’s      discretion,           when

necessary, to      order armed guards stationed in and about the

courtroom    and    courthouse       to     preserve        order     and       for     the

protection    of   the     defendant       and    other     participants         in     the

trial.” State v. Tolley, 290 N.C. 349, 363, 226 S.E.2d 353, 365

(1976).

    “We review the trial court’s decision of whether to place

defendant    in    physical       restraints       [and     to   order      additional

security measures] for abuse of discretion.” State v. Posey, ___
                                          -12-
N.C.   App.    ___,     ___,   757      S.E.2d    369,   372   (2014)   (citations,

quotation     marks,     and     brackets    omitted).     Nevertheless,     “[t]he

trial court’s discretion is not unbridled and must be exercised

in a manner that is ‘not exercised arbitrarily or wilfully, but

with   regard      to     what     is     right    and    equitable     under   the

circumstances and the law, and directed by reason and conscience

of the judge to a just result.’” State v. Atkins, 349 N.C. 62,

92, 505 S.E.2d 97, 116 (1998) (quoting Langnes v. Green, 282

U.S. 531, 541, 75 L.Ed. 520, 526 (1931)), cert. denied, 526 U.S.

1147, 143 L.Ed. 2d 1036 (1999).

              In deciding whether restraints [and other
              security measures] are appropriate, a trial
              court may consider, among other things, the
              following circumstances:

              the   seriousness   of   the   present   charge
              against     the     defendant;      defendant’s
              temperament and character; his age and
              physical attributes; his past record; past
              escapes or attempted escapes, and evidence
              of a present plan to escape; threats to harm
              others   or   cause    a  disturbance;    self-
              destructive tendencies; the risk of mob
              violence or of attempted revenge by others;
              the possibility of rescue by other offenders
              still at large; the size and mood of the
              audience; the nature and physical security
              of the courtroom; and the adequacy and
              availability of alternative remedies.

Posey, ___ N.C. App. at ___, 757 S.E.2d at 372 (citation and

quotation marks omitted).
                                 -13-
             [T]he question for decision boils down to
             this: On the basis of the record before us,
             can we say, as a matter of law and with
             definite and firm conviction, that the court
             below committed a clear error of judgment in
             the conclusion it reached upon a weighing of
             the relevant factors?

Tolley, 290 N.C. at 369-70, 226 S.E.2d at 369 (citation and

quotation marks omitted).

    Here, defendant does not argue that the trial court failed

to follow the procedure governing the use of restraints at trial

under N.C. Gen. Stat. § 15A-1031 (2011). Cf. Simpson, 153 N.C.

App. at 808, 571 S.E.2d at 275 (considering whether failure to

follow   §    15A-1031   prejudiced     defendant   and   violated   his

constitutional rights). Outside the presence of the jury, the

trial court made the following findings of fact:

             [I]n light of the seriousness of the charge,
             first-degree murder, with the penalty being
             life imprisonment without the possibility of
             parole; the fact that the defendant is of a
             temperament that he sometimes loses his
             temper, and I have personally seen this in
             previous hearings as well as his prior
             attorneys have noted this and reported it to
             the Court; the defendant’s relatively young
             age and his obvious nimbleness in being able
             to escape yesterday; the fact that he has
             made threats to harm others or cause a
             disturbance in the past, both to his prior
             attorneys and making statements to others;
             as well as the nature and physical security
             of the courtroom; and again, the need to
             protect   those   immediately   around   the
             defendant from any potential harm, the Court
                                          -14-
              will find that it is necessary to restrain
              the defendant during the trial.[2]

After bringing the jury back into the courtroom, the trial court

specifically instructed the jury not to consider the use of

restraints “in any fashion, whether in terms of weighing the

evidence or in determining the defendant’s guilt or innocence in

this matter.”

      Given the facts of this case, we cannot say that the trial

court   committed       a   “clear    error      of    judgment”     or     arbitrarily

decided to place defendant in restraints and order additional

security personnel to stand by defendant. Defendant escaped in

the midst of this trial. Defendant managed to slip out of his

leg shackles while being removed from a holding cell, jump over

a   railing    out   to     the   third   floor       and    then   over    an   outdoor

breezeway      before       being    apprehended.           Defendant      had   trouble

managing his anger; he had previously threatened to harm others.

He was facing the most serious charge possible in this state—

first degree murder. His potential punishment upon conviction is

the   second    most      serious    available        in    North   Carolina—life     in

prison without the possibility of parole. We do not think the

fact that defendant broke his ankle during his escape attempt



2
   Defendant does not challenge                   any       of   these     findings   as
unsupported by the evidence.
                                          -15-
and was in a wheelchair for the rest of the trial makes the

court’s decision to order additional security measures an abuse

of   discretion.      The    trial       court    must    consider       not   only      the

potential danger to others in the courtroom from the defendant

personally, but also the potential threat that associates of the

defendant could pose to the court proceedings and those involved

in it.3

       We have no difficulty concluding that use of restraints and

additional security measures—even though visible to the jury—

were fully justified by defendant’s behavior at trial and before

trial.    Cf.    Tolley,     290     N.C.    at       370-71,    226    S.E.2d      at    369

(holding that the trial court did not abuse its discretion in

ordering   restraints        where    the    defendant          had   attempted     escape

during a preliminary hearing one month before trial); Holbrook

v.   Flynn,     475   U.S.   560,     571,       89    L.Ed.    2d     525,   536   (1986)

(approving the use of four visible, uniformed troopers in the

first row of the courtroom as security where a defendant “had

been   denied     bail   after      an    individualized          determination          that

[his] presence at trial could not otherwise be ensured”).4



3
  Concern about threats by associates of the defendant was surely
justified in this case, as defendant had, while in jail,
attempted to solicit an associate to kill one of the witnesses
against him, as discussed in more detail below.
4
  Indeed, the United States Supreme Court has approved use of
                                             -16-
    At oral argument, defendant argued that the trial court’s

instruction was insufficient because it failed to inform the

jury that they were not to consider the fact that they had been

escorted to their cars or the additional security personnel in

the courtroom. An instruction specifically addressing the use of

escorts for the jury would probably just have led the jurors to

believe    that     the        need    for    use     of    an    escort      arose    from

defendant’s       trial    and    not    from       some   unrelated    incident       that

might have occurred elsewhere in the courthouse. Otherwise, they

had no way to know that the security issue of the previous day

was related to defendant’s trial until evidence of defendant’s

escape    was     introduced.         Indeed,   defendant        did    not    request   a

cautionary        instruction         specifically          regarding      the    escort.

Further,     an    instruction          explicitly         mentioning      each   of    the

additional security measures would likely just have drawn the

jury’s    attention       to    those    measures.         “If   defendant     desired    a

different . . . instruction he should have requested it at that

time.” State v. Hopper, 292 N.C. 580, 589, 234 S.E.2d 580, 585

(1977); see Tolley, 290 N.C. at 371, 226 S.E.2d at 370 (holding



restraints far more prejudicial than those at issue here, in
appropriate circumstances. See Illinois v. Allen, 397 U.S. 337,
343-44, 25 L.Ed. 2d 353, 359 (1970) (opining that one
constitutionally   permissible  response  to  “an  obstreperous
defendant” would be to bind and gag him).
                                          -17-
that the trial court did not err in failing to instruct the jury

to disregard the defendant’s shackles where such an instruction

was not requested). Therefore, we hold that the trial court’s

instruction not to consider the restraints was sufficient.

                    III. Failure to Individually Inquire

       Defendant      next    argues    that      the   trial     court    erred    and

violated     his    due    process     rights     by    failing    to     individually

inquire of the jurors regarding whether they had been affected

by the increased security after defendant’s escape. We conclude

that    the        trial     court’s      procedure       was     constitutionally

sufficient.

       “[W]hen there is a substantial reason to fear that the jury

has become aware of improper and prejudicial matters, the trial

court must question the jury as to whether such exposure has

occurred     and,    if    so,   whether    the    exposure      was    prejudicial.”

State   v.    Campbell,      340   N.C.    612,    634,    460    S.E.2d     144,   156

(1995), cert. denied, 516 U.S. 1128, 133 L.Ed. 2d 871 (1996).

“It is within the discretion of the trial judge as to what

inquiry to make.” State v. Willis, 332 N.C. 151, 173, 420 S.E.2d

158, 168 (1992). The question for us to consider is whether the

trial court abused its discretion in directing its inquiry to

the jury as a whole rather than the individual jurors.
                                      -18-
       In State v. Barts, the defendant had moved for a mistrial

because he feared that the jurors may have read a prejudicial

article in the local newspaper. 316 N.C. 666, 681, 343 S.E.2d

828,   838   (1986).   The    trial   court   questioned   the   jury,   as   a

whole, about whether any juror had violated his instructions.

Id. at 681-82, 343 S.E.2d at 839. The defendant argued on appeal

that this method of inquiry was insufficient because the judge

did not specifically question each juror. Id. at 682, 343 S.E.2d

at 839. The Supreme Court held that the chosen method of inquiry

was sufficient because “[t]here has been no showing that this

mode   of    questioning     was   ineffective   in   ascertaining   whether

exposure to the article had occurred.” Id. at 683, 343 S.E.2d at

840.

       Here, the only information potentially “conveyed” to the

jury was that defendant had attempted to escape.5                The jurors

were in the jury room when defendant attempted to escape. When

the trial court dismissed them for the day, the judge explained

that there had been a security incident at the courthouse and

5
  Defendant also argues that the trial court should have inquired
about the impact the additional security measures had on the
jury. We have already determined that the additional, visible
security measures were warranted by defendant’s actions at trial
and that the trial court’s curative instruction was sufficient.
“The law presumes that jurors follow the court’s instructions.”
State v. Tirado, 358 N.C. 551, 581, 599 S.E.2d 515, 535 (2004),
cert. denied, 544 U.S. 909, 161 L.Ed. 2d 285 (2005).
                                         -19-
that they would be provided an escort to their cars. The trial

court specifically instructed the jury not to look at media

coverage of what happened at the court. Without exposure to such

media or having witnessed the escape, which none of the jurors

did, there is no reason to think that the jurors knew that

defendant had escaped and that it was this escape which caused

the trial court to order additional security measures.

       The      only    possible     exposure       to     improper,        external

information concerning defendant’s escape attempt would have to

come    from    media    coverage.   The    trial      judge    had   the   bailiff

question       them    about   whether    they   had     been    exposed    to    any

publicity concerning the trial. The judge then followed up with

his own inquiry, asking whether they had been exposed to any

publicity. None of the jurors indicated that they had.

       Under these facts, general inquiry of the jury regarding

their exposure to media coverage of the trial was sufficient to

ensure that they had not been exposed to improper, prejudicial

material. “Additionally, there is no evidence tending to show

the    jurors    were    incapable   of    impartiality         or   were   in   fact

partial in rendering their verdict.” State v. Taylor, 362 N.C.

514, 538, 669 S.E.2d 239, 260 (2008), cert. denied, 558 U.S.
                                     -20-
851, 175 L.Ed. 2d 84 (2009). Therefore, we hold that defendant

is not entitled to a new trial on this basis.

                     IV.   Evidence of Escape Attempt

      Defendant next argues that the trial court erred in not

excluding evidence of his escape attempt under Rule 403 and in

failing to explicitly apply the Rule 403 balancing test.

              [W]hether to exclude evidence under Rule 403
              is a matter within the sound discretion of
              the trial court. This Court will find an
              abuse of discretion only upon a showing that
              the trial court’s ruling was manifestly
              unsupported by reason and could not have
              been the result of a reasoned decision.

State    v.   McDougald,   336   N.C.   451,   457,   444   S.E.2d   211,   214

(1994) (citations, quotation marks, and brackets omitted).

      “Evidence of a criminal defendant’s flight following the

commission of a crime is evidence of his guilt or consciousness

of guilt.” State v. Jones, 347 N.C. 193, 205, 491 S.E.2d 641,

648 (1997). “[A]n escape from custody constitutes evidence of

flight.” McDougald, 336 N.C. at 456, 444 S.E.2d at 214 (citation

and quotation marks omitted).

      Although defendant persuasively argues that evidence of his

escape was highly prejudicial, we fail to see how this evidence

was     at    all   unfairly     prejudicial.    Evidence     is     generally

considered unfairly prejudicial when it has “an undue tendency
                                              -21-
to suggest decision on an improper basis, commonly, though not

necessarily, as an emotional one.”                       Id. at 457, 491 S.E.2d at

214     (quoting    N.C.        Gen.      Stat.      §   8C-1,    Rule     403        official

commentary). Here, the jury may have inferred from the fact that

defendant attempted to escape that defendant was guilty of the

charges against him. That inference is precisely the inference

that makes evidence of flight relevant and it is not an unfair

inference to draw. See id.

      Defendant does not argue that there is some other unfair

inference    that    the        jury      might      have   drawn       from    the    flight

evidence.    Where    there          is   no   unfair       prejudice,         there    is   no

balancing to be done. Therefore, even assuming arguendo that the

trial    court     failed       to     apply      the    Rule     403    balancing       test

explicitly, we conclude that the “evidence of the defendant’s

escape . . . ‘could only be viewed as having a due tendency to

suggest a decision on a proper basis.’” Id. (quoting State v.

Penley, 318 N.C. 30, 41, 347 S.E.2d 783, 789 (1986)). Therefore,

we hold that the trial court did not abuse its discretion in

admitting the evidence of defendant’s escape.

                           V.        Gang-Related Evidence

      Defendant     finally          argues    that      the    trial    court     erred     in

admitting the jail letter he wrote to Matt Savoy and in allowing
                                         -22-
the State to ask him on cross-examination whether he was in a

gang because that evidence should have been excluded under Rule

403. We disagree.

     We review the trial court’s decision to admit the evidence

over defendant’s Rule 403 objection for an abuse of discretion.

McDougald, 336 N.C. at 457, 444 S.E.2d at 214. First, although

there   was     some    dispute    about    its    authenticity,       the   State’s

evidence showed that defendant wrote a letter to Matt Savoy

wherein    defendant      asked    Mr.     Savoy   to    kill   Ronnie   Covington

because Mr. Covington was talking to police.                      The letter was

written in “Crip code.”            Mr. Savoy testified that Crip code is

“a language that Crip[s] came up with dealing with writing so it

would be coded, so if anybody wasn’t a Crip or affiliated to

them, they wouldn’t be able to understand it.”6

     The letter itself was relevant and not unfairly prejudicial

because    in    it    defendant   solicited       the   murder   of   one   of   the

State’s primary witnesses against him. Such evidence is highly

relevant    to    defendant’s      consciousness         of   guilt.   Our   Supreme

Court has held that “an attempt by a defendant to intimidate a

witness in an effort to prevent the witness from testifying or

6
  Defendant has not argued, either before the trial court or on
appeal, that Mr. Savoy was not qualified to interpret the
letter, nor has defendant challenged the accuracy of Mr. Savoy’s
interpretation of the letter.
                                         -23-
to   induce     the    witness     to   testify   falsely     in   his      favor   is

relevant to show the defendant’s awareness of his guilt.” See

State v. Mason, 337 N.C. 165, 171, 446 S.E.2d 58, 61 (1994)

(citation, quotation marks, and brackets                 omitted).       Soliciting

the murder of a witness is “an attempt . . . to prevent the

witness from testifying[.]” Id. (citation and quotation marks

omitted).7

      Moreover, evidence relating to defendant’s gang membership

was necessary to understand the context and relevance of the

letter.   The    State      properly    introduced     the    letter     itself     and

asked Mr. Savoy, who testified that he could read Crip code, to

translate it on the stand.8 To understand this evidence, it was

important     for     the   jury   to   know    what   Crip    code    is    and    why

defendant would be a person capable of writing in this manner.



7
  Defendant argues that the letter was less probative than it
might otherwise be because Mr. Convington was “talking to
police” about other offenses that defendant committed as well,
such as the string of robberies and defendant did not specify in
the letter which testimony he wanted to prevent. So, the
argument goes, defendant could have wanted Mr. Covington dead to
prevent his testimony in those cases instead of at this trial.
This argument is nearly so ludicrous that it does not bear
addressing. The State’s evidence showed that defendant asked
someone to murder a primary witness relevant to this trial. The
fact that the letter does not specify that defendant wanted him
dead for that reason alone does not make it irrelevant to
defendant’s guilt.
8
  Defendant had a full and fair opportunity to cross-examine Mr.
Savoy and to impeach him as a biased witness.
                                                -24-
Additionally,         the    trial       court       repeatedly     instructed     the    jury

that    they    were        only    to    consider        the      gang   evidence   as     an

explanation for the note.

       Defendant correctly notes that when the prosecutor asked

him on cross-examination whether he was a Crip, the trial court

overruled his objection without giving a limiting instruction.

While   it     is     true    that       the    trial    court      did   not    repeat    its

limiting       instruction,          no        such     instruction       was    requested.

Additionally,         the    question          was    asked   in    the   context    of    the

prosecutor’s cross-examination on the issue of the “Crip code”

note. Defendant had denied writing the note and denied even

understanding “Crip code.”                 The prosecutor did not encourage the

jury to draw an improper inference from this evidence.

       In sum, the letter itself was highly relevant and, unlike

the cases cited by defendant,9 here the evidence of defendant’s

gang membership was properly relevant to his guilt. Under the

facts   of     this    case,       such    evidence       “could     only   be    viewed    as

having a due tendency to suggest a decision on a proper basis.”

McDougald, 336 N.C. at 456, 444 S.E.2d at 214 (citation and

quotation marks omitted). Defendant has failed to show that the

trial court abused its discretion in deciding that any unfair

9
  E.g.,      State v.        Hinton, ___ N.C.             App. ___, 738          S.E.2d 241
(2013).
                                  -25-
prejudice   from   the   contested   evidence   did   not   substantially

outweigh its probative value.

                            VI.   Conclusion

    For the foregoing reasons, we conclude that defendant has

shown no error at his trial.

    NO ERROR.

    Judges STEPHENS and MCCULLOUGH concur.
