                                       NO. COA13-429

                        NORTH CAROLINA COURT OF APPEALS

                                  Filed: 1 April 2014


STATE OF NORTH CAROLINA

      v.                                        Chatham County
                                                No. 10 CRS 51652
KENNETH EUGENE ALSTON,
          Defendant.


      Appeal by defendant from judgment entered 17 December 2012

by Judge Allen Baddour in Chatham County Superior Court.                           Heard

in the Court of Appeals 24 October 2013.


      Attorney General Roy Cooper, by Special Deputy                            Attorney
      General David P. Brenskelle, for the State.

      The Law Office of Bruce T. Cunningham, Jr., by Bruce T.
      Cunningham, Jr., for defendant-appellant.


      GEER, Judge.


      Defendant Kenneth Eugene Alston appeals from his conviction

of   robbery     with    a    dangerous     weapon.        On    appeal,    defendant

primarily contends that he received ineffective assistance of

counsel ("IAC") when his trial counsel failed to object to the

joinder    for   trial       of   defendant's       charges     of   robbery     with   a

dangerous      weapon    and      possession    of     a   firearm     by   a    felon.

Defendant argues that the statute prohibiting possession of a

firearm     by   a   felon        is   a   "civil    regulatory       measure"      and,
                                         -2-
therefore, a violation of that statute may not be joined for

trial with a criminal offense.

       While our Supreme Court has held that the ban on felons

possessing firearms does not impose additional punishment for

prior      convictions     because     the    General    Assembly       adopted   the

prohibition as a civil regulatory measure, that holding does not

in   any    way   mean    that   a    violation    of    that    civil    regulatory

measure cannot be a crime.             As both the Supreme Court and this

Court      have   previously     recognized,      when    a    felon    possesses   a

firearm, he commits a crime.                 Consequently, we hold defendant

did not receive IAC when his trial counsel failed to object to

the joinder of the charges brought against defendant.

                                         Facts

       The State's evidence tended to show the following facts.

At some point between 22 July 2010 and 25 July 2010, Chad Taylor

called an acquaintance, Calvin Moore, and told Moore that he

wanted to sell some marijuana.                Moore told defendant about the

offer,     but    did    not   tell   defendant    that       Taylor,    defendant's

distant cousin, was the seller.              In the evening of 25 July 2010,

Taylor and Moore agreed by phone that Taylor would sell Moore

three pounds of marijuana.

       Late in the night on 25 July or early in the morning on 26

July     2010,    defendant      drove    Moore    and        three    young   women,
                                          -3-
including Tiffany Jarrell, to the house where the drug deal was

to take place.          Defendant, Moore, and the women all agreed in

advance that they would rob the sellers rather than purchase the

marijuana.    As defendant neared the house, he realized that the

house    belonged       to    one    of   his    family     members.       Defendant

nonetheless decided to go forward with the robbery.                        Defendant

parked at the house, and defendant and Moore got out and talked

to Taylor and Taylor's friend, Jesus Sifuentes.

       Sifuentes left the house in his car and then returned in 10

or 15 minutes with the marijuana.                   Sifuentes handed Moore the

marijuana, and defendant and Moore then pulled out handguns and

aimed them at Taylor and Sifuentes.                 Jarrell and the other women

then searched Taylor's and Sifuentes' pockets and took wallets,

cell    phones,    and       about   $1,500.00      in    cash,   as   well   as    the

marijuana.        The    robbers      then   left    in    defendant's     car     with

defendant driving.

       After the robbers left, Taylor got a shotgun and Sifuentes

and Taylor chased the robbers in Sifuentes' car.                       Sifuentes and

Taylor caught up with the robbers on the highway, and Sifuentes

drove his car into the back of defendant's car, causing both

cars to wreck.      After the crash, the robbers believed Taylor and

Sifuentes had fled, and defendant decided to stay with his car

and to tell the police that he was involved in a hit and run.
                                            -4-
Defendant convinced Jarrell to stay with the car as well.                               Moore

and the other two women called a friend and got a ride home.

Moore took the marijuana and the two guns used in the robbery

with him.

     Defendant and Jarrell went to the hospital, and a nurse at

the hospital discovered the cash proceeds from the robbery in

Jarrell's   underwear.             Jarrell          lied    about     where    she    got    the

money.    Jarrell then went to the police station, where she also

lied to the police about what had occurred.

     Defendant        was    indicted       for      accessory        after    the    fact   to

robbery   with    a    dangerous         weapon       on    10   October      2011    and    for

possession of a firearm by a felon on 21 May 2012.                                   Defendant

was also indicted for robbery with a dangerous weapon.1                              The jury

found defendant guilty of robbery with a dangerous weapon and,

accordingly,     did        not    render    a       verdict     with    respect       to    the

accessory   after       the       fact   charge.            However,     the    jury    found

defendant not guilty of possession of a firearm by a felon.                                   In

an   amended     judgment,         the    court           sentenced     defendant      to    an

aggravated-range        term       of     152        to    192   months       imprisonment.

Defendant timely appealed to this Court.

                                                I

     1
      The record on appeal does not contain defendant's
indictment for robbery with a dangerous weapon.      However, the
transcript indicates defendant was indicted for that offense.
                                      -5-
    Defendant first contends that the trial court erroneously

joined for trial defendant's charges of robbery with a dangerous

weapon and possession of a firearm by a felon.                  Defendant argues

that the latter charge was for violation of a "civil regulatory

measure" that could not be properly tried alongside a criminal

offense.

    Defendant did not make his joinder argument to the trial

court, but he argues on appeal that the trial court committed

plain error in the joinder.            However, our Supreme Court has

expressly held that plain error review does not apply to the

issue whether joinder of charges was                appropriate.          State v.

Golphin,   352   N.C.   364,   460,   533       S.E.2d   168,    230-31    (2000).

Consequently, due to defendant's failure to preserve this issue

for review, it is not properly before this Court.

    Defendant alternatively argues that he received IAC due to

his counsel's failure to object to the joinder of the charges of

robbery with a dangerous weapon and possession of a firearm by a

felon.     Defendant    must   satisfy      a   two-part   test    in     order   to

prevail on his IAC claim:

                "First, the defendant must show that
           counsel's performance was deficient.    This
           requires showing that counsel made errors so
           serious that counsel was not functioning as
           the 'counsel' guaranteed the defendant by
           the Sixth Amendment.   Second, the defendant
           must show that the deficient performance
           prejudiced the defense.       This requires
                                               -6-
              showing   that  counsel's  errors   were so
              serious as to deprive the defendant of a
              fair   trial,  a   trial  whose   result is
              reliable."

State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985)

(emphasis omitted) (quoting Strickland v. Washington, 466 U.S.

668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984)).

       Defendant         argues        that     his        counsel's       performance         was

deficient because, in State v. Whitaker, 364 N.C. 404, 411, 700

S.E.2d 215, 220 (2010), our Supreme Court held that the statute

prohibiting        possession      of     a    firearm         by   a   felon    is    a    "civil

regulatory         measure"       rather       than        a    criminal     offense,         and,

according      to    defendant,         it    is     inherently         improper      to    try   a

criminal      offense      together           with     a       civil    regulatory         matter.

Defendant asserts that his trial counsel should have been aware

of   Whitaker,       a    "well-known"          case       decided      roughly       two   years

before defendant's trial, since "Second Amendment litigation has

been the topic of much discussion in the last several years and

Whitaker was relevant to that discussion."

       In    Whitaker,     our     Supreme         Court       rejected    the     defendant's

argument that an amendment broadening the scope of the statute

making it unlawful for felons to possess firearms, N.C. Gen.

Stat. § 14-415.1 (2013), was an unconstitutional ex post facto

law.        364 N.C. at 411, 700 S.E.2d at 220.                            The Court first

noted,      with    respect       to    ex    post     facto        principles,        that    the
                                          -7-
defendant had not been retroactively punished for an act that

was innocent when committed since the "defendant's conviction

[was] for an offense that he committed after his actions were

deemed    criminal,       namely    the   possession    of   any    firearm      by   a

felon."     Id. at 408, 700 S.E.2d at 218 (emphasis added).                       The

Court explained that "[t]he question then becomes whether the

2004 amendment to N.C.G.S. § 14–415.1 is an ex post facto law,

not because it imposes punishment for future acts, but because

it prohibits the possession of firearms by a convicted felon,

which     defendant       asserts    operates     as    a    form    of   enhanced

punishment for his prior felonies."              Id. (emphasis added).

    In other words, the issue before the                     Supreme Court was

whether    denying    a    defendant      the   right   to   have   firearms      was

additional punishment for a prior conviction.                 As to that issue,

the Court concluded that the General Assembly had a "nonpunitive

intent" in enacting the amended statute "to protect the public."

Id. at 409, 700 S.E.2d at 218.              Ultimately, the Court concluded

that "the General Assembly's purpose in enacting" the ban on

felons possessing firearms "was to establish a civil regulatory

measure,    and   because      the    amended    statute's    effect      does    not

render it punitive in nature, the amended N.C.G.S. § 14–415.1 is

not an unconstitutional ex post facto law."                    Id. at 411, 700

S.E.2d at 220.
                                        -8-
       Although Whitaker holds that the statute depriving felons

of the right to possess firearms is a civil regulatory measure

not    intended    to   further      punish    people   previously     convicted,

nothing in Whitaker suggests that a violation of that statutory

prohibition is not a crime.              Defendant has cited no authority

that a legislature may not make it a crime to violate a statute

that was enacted for a "civil regulatory" purpose.

       Indeed,    the   Whitaker       Court    referred    to   the     defendant

felon's act of possessing a firearm as an "offense" that was

deemed "criminal" by the relevant statutory amendment.                     Id. at

408,    700    S.E.2d   at    218.     Further,      contrary    to    defendant's

argument, N.C. Gen. Stat. § 14-415.1(a) provides that "[e]very

person    violating     the       provisions    of   this   section     shall   be

punished as a Class G felon."                  (Emphasis added.)         See also

Johnston v. State, ___ N.C. App. ___, ___, 735 S.E.2d 859, 876

(2012) (explaining that in N.C. Gen. Stat. § 14-415.1, "[o]ur

legislature mandated that any felon found in possession of a

firearm   is     subject     to   criminal     liability"   (emphasis     added)),

aff'd per curiam, ___ N.C. ___, 749 S.E.2d 278 (2013); State v.

Johnson, 169 N.C. App. 301, 306, 610 S.E.2d 739, 743 (2005)

(holding, in rejecting ex post facto argument, that "the crime

for which defendant is being punished is his violation of N.C.

Gen. Stat. 14–415.1" (emphasis added)).
                                           -9-
         In sum, given the statutory language designating possession

of   a    firearm    by    a    felon    as     a      crime,     our    Supreme      Court's

reference to a violation of N.C. Gen. Stat. § 14-415.1 as a

"criminal"       "offense"      in     Whitaker,          and    this    Court's      similar

language in Johnson and Johnston, we conclude that possession of

a firearm by a felon is a criminal offense that was properly

joined for trial with another criminal offense, robbery with a

dangerous      weapon.         Since    there       was    no    error    in    the   joinder

decision, defense counsel's failure to object to the joinder did

not constitute deficient performance, and defendant has failed

to show he received IAC.

                                              II

         Defendant also contends that he received IAC when his trial

counsel failed to prevent the jury from hearing the prejudicial

information      that     defendant      had       a     prior   felony    conviction      by

using the procedure set out in N.C. Gen. Stat. § 15A-928 (2013).

According to defendant, under                  N.C. Gen. Stat. § 15A-928, he

could     have   stipulated       to     the       prior     conviction        and    thereby

precluded      the   State      from    introducing         evidence      regarding      that

conviction.       We disagree.

         Defendant's      argument      fails       to    recognize      that    N.C.    Gen.

Stat.      §   15A-928(a)       limits     the         statute's        applicability     as

follows: "When the fact that the defendant has been previously
                                        -10-
convicted of an offense raises an offense of lower grade to one

of higher grade and thereby becomes an element of the latter, an

indictment or information for the higher offense may not allege

the previous conviction."          When those circumstances apply, then

N.C.    Gen.     Stat.   §    15A-928(c)(1)     provides    that     "[i]f   the

defendant admits the previous conviction, that element of the

offense charged in the indictment or information is established,

no evidence in support thereof may be adduced by the State, and

the judge must submit the case to the jury without reference

thereto and as if the fact of such previous conviction were not

an element of the offense.          The court may not submit to the jury

any    lesser    included     offense   which   is   distinguished    from   the

offense charged solely by the fact that a previous conviction is

not an element thereof."

       This Court has previously held that N.C. Gen. Stat. § 15A-

928 does not apply to the offense of possession of a firearm by

a felon.       State v. Jeffers, 48 N.C. App. 663, 665-66, 269 S.E.2d

731, 733-34 (1980).          The Court in Jeffers reasoned:

            Since    the   trial   judge   allowed   the
            stipulation as to the previous conviction to
            be introduced and since he made reference to
            the stipulation in his charge to the jury,
            defendant claims that G.S. 15A-928(c)(1) was
            violated, and that defendant was deprived of
            his right to a fair trial as a result. G.S.
            15A-928, however, is not applicable in this
            case.   The statute applies solely to cases
            in which the fact that the accused had a
                              -11-
          prior conviction raises an offense of "lower
          grade" to one of "higher grade." G.S. 15A-
          928(a).   Thus, the prior conviction serves
          to increase the punishment available for the
          offense above what it would ordinarily be.
          See State v. Moore, [27 N.C. App. 245, 218
          S.E.2d 496 (1975).]   The offense charged in
          the instant case, however, does not have
          this characteristic.   A previous conviction
          for one of a group of enumerated felonies is
          an essential element of the offense of
          possession of a firearm by a felon, and thus
          in the absence of a prior conviction, there
          is no offense at all. G.S. 14-415.1; State
          v. Cobb, 284 N.C. 573, 201 S.E.2d 878
          (1974).   Also, the statute contains nothing
          as   to   certain  convictions   being  more
          intolerable than others, G.S. 14-415.1(a)
          and (b), and thus no "lower grade"--"higher
          grade" dichotomy can be ascertained.

Id.

      Jeffers controls in this case.    We, therefore, conclude

that defendant has failed to show IAC for failure to raise N.C.

Gen. Stat. § 15A–928 at trial because that statute did not apply

to his trial for possession of a firearm by a felon.     See also

State v. Jackson, 306 N.C. 642, 652, 295 S.E.2d 383, 389 (1982)

(holding that N.C. Gen. Stat. § 15A–928 did not apply to offense

at issue because "[t]he statute applies solely to cases in which

the fact that the accused 'has been previously convicted of an

offense raises an offense of lower grade to one of higher grade

and thereby becomes an element of the latter'" (quoting N.C.

Gen. Stat. § 15A–928(a))).

                              III
                                        -12-
      Defendant next argues that the trial court violated his

Sixth   Amendment     right    to     cross-examination         when     it   did    not

permit him to cross-examine two of the State's witnesses, Moore

and   Jarrell,     about    criminal    charges      pending     against      them   in

counties in different prosecutorial districts than the district

in which defendant was tried.           We disagree.

      During voir dire, Jarrell stated that she had a pending

charge in Randolph County for assault with a deadly weapon with

intent to kill.       Jarrell testified on cross-examination that she

did not believe that by cooperating with the State in this case

she could "gain anything in any other proceedings" in other

counties.         Since    Jarrell    stated       she   did    not    believe      that

testifying in this case would help her with matters in other

counties, the trial court did not permit defendant to further

cross-examine Jarrell about pending charges in other counties.

      Moore testified on voir dire that he had "a few" felony

breaking    and    entering    charges      and    one   felony       larceny    charge

pending in Guilford County, three felony breaking and entering

charges and one felony larceny charge pending in Moore County,

and a probation violation report pending in Randolph County.

Moore   also   testified      on     voir   dire    that   he    did    not     believe

testifying for the State in this case would benefit him with

respect to the matters in other counties.                  Given this voir dire
                                          -13-
testimony, the court ruled that defendant could only ask Moore

on cross-examination whether he believed he would receive any

benefit in other counties for his cooperation in this case.                            The

court further ruled, however, that defendant could cross-examine

Moore   about       unrelated    pending       charges      in    Chatham    County    and

about the pending probation violation report in Randolph County

since that probation matter was included as part of Moore's

original plea agreement with the State.

       The     Sixth       Amendment    right     to       confrontation      generally

protects the right of a criminal defendant to cross-examine a

State's witness about the existence of pending charges in the

same prosecutorial district as the trial in order to show bias

in    favor    of    the    State,     since    the     jury     may   understand     that

pending charges may be used by the State as a "weapon to control

the witness."          State v. Prevatte, 346 N.C. 162, 164, 484 S.E.2d

377, 378 (1997).            However, "'trial judges retain wide latitude

insofar       as    the    Confrontation       Clause      is    concerned   to   impose

reasonable limits on such cross-examination based on concerns

about, among other things, harassment, prejudice, confusion of

the    issues,       the    witness'    safety,       or    interrogation      that    is

repetitive or only marginally relevant.'"                        State v. McNeil, 350

N.C. 657, 677, 518 S.E.2d 486, 499 (1999) (quoting Delaware v.
                                      -14-
Van Arsdall, 475 U.S. 673, 679, 89 L. Ed. 2d 674, 683, 106 S.

Ct. 1431, 1435 (1986)).

       Given this wide latitude afforded trial courts, we review a

trial court's limitation of cross-examination for an abuse of

discretion.      Id.    "'A trial court abuses its discretion if its

determination      is   manifestly    unsupported     by     reason   and    is    so

arbitrary that it could not have been the result of a reasoned

decision.'"     State v. Garcell, 363 N.C. 10, 27, 678 S.E.2d 618,

630 (2009) (quoting State v. Cummings, 361 N.C. 438, 447, 648

S.E.2d 788, 794 (2007)).

       In State v. Murrell, 362 N.C. 375, 403, 665 S.E.2d 61, 80

(2008), a case out of Forsyth County, the defendant filed a

motion    for   appropriate     relief   arguing      that    "the    prosecution

allowed State's witness . . . to perjure himself concerning his

prior    convictions,     current    charges,   and    discussions        with    the

Durham    County    District    Attorney's      office."           Regarding      the

defendant's argument that the witness falsely testified he had

no pending charges in Durham County, the Supreme Court held the

witness' testimony was in fact true since the record showed that

the witness' Durham County charges had been dismissed, although

they     were   subject    to   reinstatement,        at     the   time     of    the

challenged testimony.       Id. at 404, 665 S.E.2d at 80.
                                         -15-
    The Court further held that, even assuming arguendo that

the testimony was false and that the defendant was able to prove

the prosecution knew it was false, "[the witness'] testimony on

this peripheral issue concerning charges dismissed in another

district attorney's jurisdiction was simply not material."                             Id.

The Murrell Court reasoned that unlike Prevatte, 346 N.C. at

163–64, 484 S.E.2d at 378, "in which the State's witness faced

pending     charges      within    the    same    jurisdiction          in    which    he

testified, any charges pending against [the witness] were being

handled in a different jurisdiction, and defendant provides no

supporting       documentation      of    any    discussion       between      the    two

district attorneys' offices to demonstrate that [the witness']

testimony was biased in this respect."                    362 N.C. at 404, 665

S.E.2d at 80.

    Here, at the outset, we take judicial notice that Guilford,

Randolph,    and       Moore   Counties    are    each    located       in    different

prosecutorial districts than Chatham County, where this case was

tried.      As    in    Murrell,   defendant      has    failed    to    provide       any

evidence of discussions between the district attorney's office

in Chatham County and district attorneys' offices in the other

counties    where       Jarrell    and   Moore    had    pending     charges.           In

addition,     Jarrell      testified      on     cross-examination           and     Moore

testified on voir dire that each did not believe testifying in
                                     -16-
this case could help them in any way with proceedings in other

counties.     Under these circumstances, we follow the reasoning of

Murrell and conclude that, in this case, testimony regarding the

witnesses'    pending    charges     in   other   counties    was,    at   best,

marginally relevant to defendant's trial.

    Moreover, both Jarrell and Moore were thoroughly impeached

on a number of other bases separate from their pending charges

in other counties.       Jarrell acknowledged that she was testifying

pursuant to a plea agreement in which her pending charges for

robbery with a dangerous weapon and accessory after the fact to

robbery   with   a   dangerous     weapon   in    Chatham    County   would   be

dismissed and she would plead guilty to obstruction of justice.

Pursuant to the agreement, the State agreed to recommend that

Jarrell be placed on probation rather than serve active time.

At the time of her testimony, Jarrell was currently in prison

for misdemeanor assault with a deadly weapon and driving while

impaired.     Jarrell also testified to her prior convictions for

"possessing    or    manufacturing    a   fraudulent   ID,"    driving     after

consuming alcohol, and resisting a public officer.

    Jarrell further testified that she made false statements

about the events surrounding the robbery to an investigating

officer on the night of the robbery in order to avoid being

charged with a crime.       She admitted lying at the hospital about
                                              -17-
the source of the money in her underwear that was, in fact, the

cash proceeds from the robbery.                  Jarrell also testified that, on

the night of the robbery, she was drunk and she had taken Xanax

without a prescription and smoked marijuana.                              Jarrell, 20 years

old   at    the   time    of    trial,        additionally          stated          that    she    had

regularly smoked marijuana since she was 14 years old and, as a

result, sometimes her memory was "off."

      At    the   time     he     testified,          Moore    was        on    probation          for

convictions on "a number of felonies" in Randolph County and, if

he    violated      his     probation,           he     faced        69        to     84      months

imprisonment.          Moore      testified          that    he     had    previously             pled

guilty,      pursuant      to     a    plea     agreement,          to     robbery          with     a

dangerous weapon and possession of a firearm by a felon stemming

from the robbery in this case.                   He was awaiting his sentence on

those      charges,      which        could     have        been     up        to     201     months

imprisonment.            Moore        stated    that,        pursuant           to     that       same

agreement, he pled guilty to unrelated charges for obtaining

property     by   false     pretenses          and    for     two    counts          of     identity

theft, all felonies.                  Pursuant to that agreement, the State

would      recommend      Moore       be   sentenced          at    the        bottom       of     the

mitigated range, and his sentence on those felonies would run

concurrently      with     a     suspended       prison       sentence          from        Randolph

County for which Moore had been on probation.                              Also pursuant to
                                       -18-
that plea agreement, the State dismissed charges against Moore

for larceny, financial card fraud, possession of stolen goods,

driving    while   license     revoked,       resisting    a    public    officer,

obtaining    property    by    false    pretenses,        and   two    counts   of

breaking and entering.         Moore testified that his written plea

agreement with the State was his only agreement with the State.

    Moore additionally testified that at the time of trial he

understood that if he withdrew his guilty pleas, the State could

reinstate all the dismissed charges and could also recommend to

the sentencing court that the sentences on the charges to which

he had pled guilty run consecutively.             Further, Moore recognized

that if he withdrew his plea, there was a possibility that he

would be sentenced in the aggravated rather than the mitigated

range.     Moore also testified that he understood he had voided

his plea agreement with the State by twice absconding from North

Carolina.     With respect to the latter issue, Moore had been

charged with two counts of felony failure to appear.                       Also at

the time of trial, Moore had two misdemeanor charges pending in

Chatham County for resisting a public officer and communicating

threats.

    In addition, Moore, who was 23 years old at the time of

trial,     testified    that   he   had       three   prior     convictions     of

possession    of   cocaine,    three    prior    convictions      of     possession
                                            -19-
with intent to sell and deliver cocaine, two prior convictions

of felony larceny, two prior convictions of unauthorized use of

a motor vehicle, two prior convictions of breaking and entering,

three     prior      convictions       of     misdemeanor      larceny,       and   prior

convictions of possession of a firearm by a felon, possession of

stolen goods, hit and run with property damage, and fleeing to

elude arrest.

       In sum, the trial court allowed defendant extensive cross-

examination of both Jarrell and Moore, revealing their bias to

testify     favorably      for     the      State     in   order      to   curry    favor

regarding their pending charges and sentences, respectively, for

the robbery in this case and, for Moore, numerous other pending

charges.        Defendant    was       also    permitted      to    cross-examine      the

witnesses       on    a   host    of     other      matters        relating   to    their

credibility.         Based on this thorough cross-examination and the

marginal     relevance,      if     any,       of   cross-examination          regarding

Jarrell and Moore's pending charges in other counties, we hold

that the trial court was not unreasonable in barring defendant

from     further      cross-examining         the     witnesses       regarding     their

pending charges in other counties.

                                              IV

       Defendant's final argument is that the prosecutor's remarks

during    the     sentencing      hearing      that    defendant       was    trying   to
                                         -20-
derail      the    prosecution     violated      defendant's    Sixth    Amendment

right to confrontation and his Fourteenth Amendment right to due

process.          The prosecutor's remarks referred, in part, to an

incident of alleged juror misconduct during trial.

      During trial and outside the presence of the jury, a trial

spectator, Michael Stanley, presented himself to the court and

stated that the previous evening he had been in the parking lot

outside the courthouse attempting to jump start his car and,

while doing so, spoke with a woman he recognized as a juror.                     In

the course of the conversation, the juror told Mr. Stanley that

she   and    a    friend   "felt    like   [defendant]    was    guilty."        Mr.

Stanley was never placed under oath.

      The jury then entered the courtroom, and the trial court

instructed the jurors to raise their hand if they had spoken to

Mr.   Stanley      about   the   case.     In     response,    juror    number   six

stated that Mr. Stanley's truck hood was up, and he asked her

"something about jumper cables."                She told him that she did not

have any, but there was a nearby fire department where he might

find help.          She reported to the court that she "didn't say

anything to him about the case."                Juror number six was not sworn

prior to making these statements.               No other juror indicated they

had spoken with Mr. Stanley.
                                              -21-
    During a subsequent break in the trial, the trial court

brought    up    the   issue      of    the    juror's      alleged      comment     to   Mr.

Stanley    and     stated    it    was     satisfied        by     juror    number      six's

response.       Defense counsel stated that if the juror denied any

misconduct,      he    had   nothing      else        to   offer.        The    court     then

determined that the matter was settled.

    Later the same day, after the jury had been given its final

charge and was deliberating, the trial court announced that it

had learned that a deputy had observed Mr. Stanley the previous

day and that it was "appropriate to put on the record what the

deputy     saw."       Deputy      Raymond           Barrios     was     then   sworn     and

testified that the previous evening, the deputy went outside to

the court parking lot at about 5:20 p.m. and saw Mr. Stanley on

his cell phone standing by the lot.                     As Deputy Barrios got near,

Mr. Stanley walked away, still on his phone, towards a court

"overflow" parking lot across the street.

    Deputy Barrios further testified that as Mr. Stanley walked

across    the    street,     the       deputy    noticed       a   car     parked    at    the

farthest end of the parking lot "flashing [its] lights like a

signal."     The deputy then reentered the courthouse, and when he

later left the courthouse to walk to his car, he saw Mr. Stanley

"talking to the defendant in the parking lot further up the
                                   -22-
road"    for   about    five   minutes.         Defendant   declined   the

opportunity to question Deputy Barrios.

     Defendant    now      challenges     the   prosecutor's   sentencing

argument regarding the interaction between Mr. Stanley and the

juror.   The prosecutor argued the following at sentencing:

                 In  addition,  we   had  this   unusual
           situation where we had one of [defendant's]
           old -- apparently -- cell mates who was also
           convicted of armed robbery come and watch
           the trial this week and make a statement to
           the Court implying the jury had already
           reached a decision -- or at least a jury
           member had already reached a decision in the
           case.     We feel that that was, again,
           orchestrated by [defendant] based on the
           sworn testimony of deputy Barrios [sic] who
           said that he observed the defendant and this
           person, Mr. Stanley, interacting outside of
           the court signaling to -- the defendant
           signaling to Mr. Stanley after court.     And
           it appears to me that that was a blatant
           attempt to derail or obstruct justice in
           this case by creating an atmosphere where we
           might have to grant a mistrial if his
           statement was to be believed. Of course the
           Court addressed that, talked to the jury.
           It was clear that none of them had had any
           conversation of that type with Mr. Stanley.

                And that's just the continuing kind of
           thing that we have seen over the last couple
           of years.    [Defendant] never does anything
           overtly threatening, and we don't have any
           evidence that money has changed hands, but
           certainly we have evidence and information
           through what's been happening in court and
           out of court that he has persistently tried
           to work to derail this prosecution.

                 . . . .
                                     -23-
              . . . I have never experienced such a
         situation as -- as this where we have so
         many external factors attempting to derail
         justice in this case.    And I think all of
         those were driven by [defendant].

The State then asked the court to sentence defendant "to the top

of the aggravated range for a Class D felony," which amounted to

160 to 201 months imprisonment.

    Following      the   parties'    sentencing   arguments,    the    trial

court briefly found the existence of two aggravating factors

admitted by defendant, found the existence of one mitigating

factor, and determined that the aggravating factors outweighed

the mitigating factor.        The court then, without any discussion

of defendant's "derail[ing]" justice, sentenced defendant to an

aggravated-range term of 152 to 191 months imprisonment.2              After

sentencing, the trial court stated to defendant: "I do think

this is probably an event that could have been avoided at many

points along the way; and, [defendant], I think that you bear

some responsibility for that.         I'm not saying you are the only

one who does, but you do."

    Defendant now argues that his right to confrontation under

the Sixth Amendment was violated because he was not given the

opportunity   to   question    Mr.    Stanley   and   juror   number   six.
    2
      The trial court later entered an amended judgment to
correct a clerical error, and in the amended judgment the court
sentenced defendant to an aggravated-range term of 152 to 192
months imprisonment.
                                    -24-
Defendant did not, however, object to the process during which

Mr. Stanley and juror number six gave unsworn statements, did

not request that those individuals be sworn, and did not request

the opportunity to question them.            Consequently, defendant has

not preserved his confrontation argument for appeal.               See N.C.R.

App. P. 10(a)(1); State v. Gainey, 355 N.C. 73, 87, 558 S.E.2d

463,    473   (2002)   (holding     defendant      waived       constitutional

confrontation     argument   by   failing    to   object   on    confrontation

grounds   below   since,     generally,     "[c]onstitutional      issues   not

raised and passed upon at trial will not be considered for the

first time on appeal").

       Defendant further contends that the challenged arguments by

the prosecutor regarding defendant's attempts to derail justice

in this case by having Mr. Stanley tamper with juror number six

were "unsubstantiated"       and "speculative" and thereby violated

his right to due process under the Fourteenth Amendment.                     We

disagree.

       At trial, Jarrell testified that, prior to trial, defendant

told her not to say anything to investigators because defendant

had talked to the victims Sifuentes and Taylor and the victims,

being drug dealers, were unlikely to testify against defendant

and Jarrell.      Defendant also told Jarrell that he and Jarrell

should try to pay the victims to keep them from testifying.
                                           -25-
Finally, Jarrell testified that, prior to trial, defendant had

attempted to facilitate getting Jarrell's mother out of jail,

leading to the inference that defendant was trying to curry

favor with Jarrell to keep her from testifying against him.

    Moore testified that prior to trial he felt threatened or

coerced      not     to      testify,       although           "not     directly      from

[defendant]."       Moore stated that prior to trial he was released

from prison and was on house arrest for 120 days.                           During this

time,   he   took    a     plea    deal    with    the     State      requiring    him   to

testify against defendant.                 Just before Moore was set to be

released from house arrest, however, he fled to Florida because

he was concerned for his safety after receiving information from

people in the community.              Moore was subsequently arrested and

brought back to North Carolina, where he was released on bond.

However, based on a phone call shortly after he was released,

Moore   again      fled,    this    time    to     South       Carolina.     From     this

evidence, the prosecutor was entitled to argue the inference

that defendant was indirectly threatening Moore to keep Moore

from testifying.

    Sifuentes         testified       that        he     saw     defendant    come       to

Sifuentes'        father's    place        of     business       and     interact     with

Sifuentes' father.          Later, defendant went to Sifuentes' father's

house     while     Sifuentes       was    there,        and    defendant     spoke      to
                                        -26-
Sifuentes'    father     outside   the    house       before   leaving.      Seeing

defendant at his father's house made Sifuentes nervous.

    The record additionally contains unsworn statements by Mr.

Stanley and juror number six about whether a juror improperly

discussed the case with Mr. Stanley and, apart from the truth or

falsity of either person's statement, the important, uncontested

fact is that the trial court was addressed by a spectator, Mr.

Stanley, about a juror improperly discussing the merits of the

case.     This fact, coupled with Deputy Barrios' sworn testimony

that he witnessed Mr. Stanley communicate with someone in a car

in the parking lot on the same day that Mr. Stanley reported

juror   misconduct      and,   later    the    same    evening,    saw    defendant

talking    with   Mr.   Stanley    in    the   parking     lot    for    about   five

minutes, raises the inference that defendant was involved in Mr.

Stanley's report of juror misconduct to the trial court.

    The record, therefore, supports the great majority of the

prosecutor's sentencing argument about defendant's attempts to

derail justice in this case.             We have found no record support,

however, for the prosecutor's assertion that Mr. Stanley was

defendant's old cell mate who had also been convicted of armed

robbery.

    Even assuming, without deciding, that defendant has shown

that the sole unsubstantiated statement by the prosecutor at
                                              -27-
sentencing         amounted       to     a      denial      of     due      process,         any

constitutional error is harmless beyond a reasonable doubt.                                  See

N.C. Gen. Stat. § 15A-1443(b) (2013).                       The vast majority of the

prosecutor's sentencing argument that defendant was attempting

to    derail    justice      in   this       case    is    supported     by    the    record.

Moreover, the prosecutor properly argued to the court the two

admitted aggravating factors, defendant's three prior robbery

with    a    dangerous      weapon       and    one       attempted      robbery      with    a

dangerous       weapon     convictions,          defendant's        four      prior    felony

drug-related convictions, and defendant's refusal to call off

the robbery even when he realized the scene of the robbery was

his relative's house.             The trial court's comments to defendant

after    sentencing        suggest       that       the   court    placed      emphasis      on

defendant's failure to call off the robbery despite having the

opportunity to do so.

       The trial court gave no indication that, when sentencing

defendant,         it    considered      the     isolated        unsupported       statement

about Mr. Stanley being defendant's former cell mate with a

prior conviction of armed robbery.                         Rather, the court simply

stated      that    it    found    the       existence      of    the    two    aggravating

factors admitted by defendant and that those factors outweighed

the    single      mitigating      factor.           The    only    other      circumstance
                                   -28-
specifically referred to by the court was defendant's failure to

call off the robbery when he had the opportunity to do so.

    Under     these   circumstances,   and    given       the   weight   of   the

State's proper sentencing arguments, we hold that any error in

the court's consideration of the single unsupported statement

was harmless beyond a reasonable doubt.                 See State v. Jackson,

91 N.C. App. 124, 126, 370 S.E.2d 687, 688 (1988) (holding that

any error in trial court's consideration of murder victim's two

sisters' impact statements describing sisters' thoughts about

sentencing, including that defendant acted in cold blood and

deserved   maximum    sentence   available,       was    harmless   since     "the

court   certainly     knew   before       then,     as      every   reasonably

knowledgeable person knows, that almost invariably relatives and

friends of murder victims are shocked and saddened by their

killing and are of the opinion that murderers should be severely

punished").     Consequently,     we   conclude         defendant   received    a

trial free from prejudicial error.


    No error.

    Judges STEPHENS and ERVIN concur.
