An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA14-277
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 7 October 2014


STATE OF NORTH CAROLINA

      v.                                      Guilford County
                                              No. 13 CRS 71032
JAVIER FLORES GAYTAN



      Appeal    by   Defendant     from   judgments     entered     23   September

2013 by Judge R. Stuart Albright in Superior Court, Guilford

County.    Heard in the Court of Appeals 26 August 2014.


      Attorney General Roy Cooper, by Special                   Deputy    Attorney
      General Staci Meyer, for the State.

      Marilyn G. Ozer for Defendant.


      McGEE, Chief Judge.


                                     I.    Facts

      In an effort to receive more favorable sentencing on three

felony drug charges, Fidel Salazar Rangel (“Rangel”) agreed to

cooperate with Greensboro police as part of a plea deal.                    Rangel

provided information and assistance ‒ in cases unrelated to the

present case ‒ that led to multiple arrests and seizures of

illegal narcotics.        As part of his plea agreement, and relevant
                                           -2-
to    this      appeal,       Rangel       contacted        Jose     Gonzalez-Franco

(“Gonzalez-Franco”) to arrange the purchase of one kilogram of

cocaine.      Gonzalez-Franco agreed to meet Rangel in the parking

lot of a Hooters restaurant (“the restaurant”) on High Point

Road, outside Greensboro.              Detectives from the Greensboro Police

Department prepared to monitor the transaction.

      Rangel was outfitted with a hidden audio recording device.

Detective      Carlos     Monge       (“Detective    Monge”)       was    assigned    to

monitor the recording in real time because he spoke both Spanish

and English, and the police thought the transaction would likely

involve      Spanish.        Other     detectives    took     positions      near    the

restaurant.      Rangel, who was waiting in the restaurant parking

lot, observed Gonzalez-Franco arrive in a pickup truck (“the

truck”) with two other men, and Rangel relayed this information

to    the    detectives.          Gonzalez-Franco          left     the    truck     and

approached Rangel.         After a short period of time, the two other

men left the truck and joined Rangel and Gonzalez-Franco.                          These

two    men     were     later     identified        as    Javier     Flores     Gaytan

(“Defendant”) and his brother Agustin Gaytan.                      All four men then

entered the restaurant, where they remained for approximately

fifteen minutes.

      When     the    four      men     exited   the      restaurant,       Defendant,

Gonzalez-Franco,        and     Agustin    Gaytan        returned    to   the   truck.
                                            -3-
Agustin Gaytan entered the truck, and Defendant removed a brown

bag (“the bag”) from the truck.                   Defendant and Gonzalez-Franco

then walked to Rangel’s vehicle, where Defendant entered the

back seat and Gonzalez-Franco entered the front passenger side

seat.       Rangel was sitting in the driver’s seat.                   Defendant, who

had the bag with him in the back seat, removed the cocaine from

the bag for Rangel to see.             Detective Monge, who was monitoring

the     conversation        in    Rangel’s        vehicle,     alerted        the     other

detectives      that    the      cocaine    was    in   Rangel’s       vehicle.           The

detectives then arrested Defendant, along with the other men

involved.       Approximately one kilogram of cocaine was recovered

from the back seat of Rangel’s vehicle where Defendant had been

sitting.

       Defendant was indicted for one count each of trafficking in

cocaine by possession, trafficking in cocaine by transportation,

and conspiracy to traffic in cocaine.                      Gonzalez-Franco pleaded

guilty to trafficking in cocaine by possession, trafficking in

cocaine by transportation, and conspiracy to traffic in cocaine.

Gonzalez-Franco was sentenced to consolidated active sentences

of    175    months    to   222    months    for    each     charge.         As    part    of

Rangel’s      plea     agreement,      he     testified       for      the        State   at

Defendant’s trial.            The jury found Defendant not guilty of the

conspiracy      charge,     but    guilty     of    trafficking        in    cocaine       by
                                       -4-
possession and trafficking in cocaine by transportation.                   The

trial   court     sentenced    Defendant      to   two   consecutive    active

sentences of 175 months to 222 months.             Defendant appeals.

                                II.    The Issues

    Defendant argues the trial court erred in allowing: (1) the

State to improperly argue that Rangel was going to receive an

active sentence when he only received probation, (2) Detective

Monge to translate the audio recording that was made during the

drug transaction, (3) the State to ask questions implicating

attorney-client privilege, and (4) a State’s witness to refer to

Defendant   and    the   others   as   “bad    guys.”     Defendant    further

argues the trial court erred by (5) sentencing Defendant in an

inappropriately harsh manner.           We hold that Defendant fails to

prove that any prejudicial error occurred at trial.

                              III. Closing Remarks

    In Defendant’s first argument, he contends that the trial

court erred by failing to intervene ex mero motu to address an

improper argument made by the State in its closing remarks.                We

disagree.

    Defendant did not          object to the portion of the State’s

argument he now contends was improper.

            When defendant fails to object to an
            argument, this Court must determine if the
            argument was “so grossly improper that the
            trial court erred in failing to intervene ex
                                       -5-
             mero motu.”

                     In other words, the reviewing
                     court must determine whether the
                     argument in question strayed far
                     enough from the parameters of
                     propriety that the trial court, in
                     order to protect the rights of the
                     parties and the sanctity of the
                     proceedings,      should      have
                     intervened on its own accord and:
                     (1)    precluded   other   similar
                     remarks    from    the   offending
                     attorney; and/or (2) instructed
                     the jury to disregard the improper
                     comments already made.

State   v.   Walters,    357   N.C.   68,    101-02,   588   S.E.2d     344,   364

(2003) (citations omitted).

    The      State    made   the   following   statements    in   its    closing

argument, the highlighted portions of which Defendant includes

in his brief:

                  Our legislature enacted the trafficking
             statutes   and   the   mandatory    sentences,
             coupled with harsh fines, to deter drug
             trafficking networks.
                  “Yet, at the same time, our legislature
             recognized that the system of mandatory
             sentences . . . is not alone sufficient to
             ‘deter the corrupting influence of drug
             dealers and traffickers.’ The nature of the
             crime – ‘the mischief to be remedied’ –
             dictates the methods used[.] To effectively
             combat trafficking, police authorities need
             information on, and access to, the myriad of
             drug-dealing   activities   in   the   various
             networks. Built into the [drug] trafficking
             statutes is a bargaining tool, 90-95(h)(5),
             a provision exchanging potential leniency
             for assistance from those who have easy
             access to drug networks.”
                                    -6-
                 The prospect of leniency is clearly
            calculated to provide a strong incentive to
            drug   violators    to   cooperate   with    law
            enforcement officers and become informers.
                 The raw truth is this.      Fidel Rangel,
            like [Defendant], is a drug dealer, and
            should be treated accordingly.          If law
            enforcement officers could on their own
            arrange for the delivery of these drugs
            without the likes of a cooperating Fidel
            Rangel, they would.     If these matters could
            be tried without the likes of a charged and
            admitted drug dealer taking the witness
            stand, they would. But the reality is, this
            is a secret, this is a clandestine criminal
            enterprise.      All this talk of county
            surveillance and trying to conduct this
            business in such a way that they might be
            concealed    from    those   that    would    be
            interested in their activities is such,
            ladies and gentlemen, we need – we need –
            the likes of those with easy access to
            identify   and,   ultimately    through    their
            cooperation, sometimes testify against those
            individuals.    Mr. Rangel is one of those
            individuals with easy access.
                 He will be punished. He will receive a
            sentence appropriate, given his level of
            involvement, in his own case on balance with
            the cooperation that he involved himself in
            subsequent to that.
                 But he is an admitted drug dealer. And
            he will be dealt with accordingly. (Emphasis
            added).

Defendant   argues   that   the   underlined   portion   of   the   closing

argument above “[s]uggest[ed] to the jury that Rangel would face

substantial prison time as a drug dealer” and was therefore

“grossly improper[.]”

    Defendant first complains of multiple statements made by

the State “throughout the trial” that suggested Rangel “would
                                     -7-
still be sentenced to significant time in prison.”                 However,

Defendant did not object to any of these statements at trial,

and does not now argue that any of these statements amount to

plain error.       Defendant has therefore failed to preserve any

argument    that   these    statements    constituted    error.   State   v.

Haselden, 357 N.C. 1, 17, 577 S.E.2d 594, 604-05 (2003) (for

issues dealing with evidence or jury instruction, failure to

object at trial and failure to assign plain error on appeal

constitutes abandonment of issue for appellate review).

    When read in context, we do not find the State’s comment

that, as an admitted drug dealer, Rangel would be “dealt with”

to have been grossly improper.             This statement was, in fact,

true.     Defendant argues that the statement was grossly improper

because the State did not advise the jury that Rangel might

receive    probation       instead   of    an   active   prison   sentence.

However, Defendant had a full opportunity to bring forth this

issue at trial, but failed to do so.             Defendant cross-examined

Rangel, in part, as follows:

            Q All of your cooperation since your arrest
            has been to benefit you at sentencing; isn't
            that right?

            A Yes, sir.

            Q And you're hoping, by your cooperation,
            that you get a sentence less than 175 to 222
            months per drug trafficking count; isn't
            that correct?
                                 -8-


         A Yes, sir.

         Q And you know that you're not in a position
         for   law   enforcement  to   talk    to the
         sentencing judge about your cooperation
         unless you produce seizures, correct?

         A Yes, sir.

         Q And you will do what you need to do to
         make sure that you can produce those
         seizures and those convictions; isn't that
         right?

         A Yes, sir.

         Q Even if it means dealing with these people
         and not telling law enforcement about it;
         isn't that correct?

         A No, sir. I don't        do   anything    without
         keeping them posted.

         Q When it's to your advantage, isn't that
         correct?

         A No, sir.   Nothing is to my advantage at
         this point.  I lost everything.  I lost my
         job. I lost everything.

    Defendant   thoroughly   attacked    Rangel’s    credibility   by

exposing Rangel’s motivation to provide testimony on behalf of

the State in exchange for the State’s advocating on Rangel’s

behalf for a reduced sentence.     It was the province of the jury

to decide which part, if any, of Rangel’s testimony to believe.

Defendant fails to show that the trial court should have stepped

in ex mero motu to address the challenged argument of the State,

or that Defendant was prejudiced, assuming arguendo the State’s
                                         -9-
argument was improper.             Walters, 357 N.C. at 101-02, 588 S.E.2d

at 364; State v. Jones, 355 N.C. 117, 134, 558 S.E.2d 97, 108

(2002).

       In addition, Defendant states in his brief: “If the jurors

had known that Rangel understood that the right testimony could

equate to a get out of jail free card, it would have greatly

lessened    his     credibility.”         However,      Defendant       provided     no

evidence that Rangel actually “understood” that he might receive

only probation and would not have to serve any active sentence.

If Rangel did not know probation was a possibility, and we find

no record evidence that he did know this when he testified, this

information    could       not   have   impacted     his   testimony,        nor    have

provided     any     additional         motivation     for      him     to     testify

untruthfully.       In short, if Rangel did not know that helping the

State might allow him to avoid an active sentence altogether,

this fact was irrelevant to his credibility as a witness.                             It

was Defendant’s duty to present evidence at trial that Rangel

knew    probation    was    a    possibility    in    order     to    establish     the

relevance    of     this    information      and     preserve    this       issue   for

appeal.     This argument is without merit.

                      IV.    State’s Witness as Translator

       In Defendant’s second argument, he contends that the trial

court     committed        plain     error     in    “allowing        one     of    the
                                        -10-
participating       officers   to   translate    and    then   relate    to   the

jurors what [that officer] thought was captured by the wire on

the confidential informant.”           We disagree.

    Defendant contends that Detective Monge, who was involved

in the operation leading to Defendant’s arrest on the current

charges, was allowed to improperly translate an audio recording

made from a recording device Rangel was carrying at the time of

the drug transaction.

    We do not address Defendant’s argument because Defendant

has failed to properly argue plain error.                In order to prevail

in a plain error argument, Defendant must show that “absent the

error,   the     jury   probably       would   have    returned    a   different

verdict.”      State v. Lawrence, 365 N.C. 506, 519, 723 S.E.2d 326,

335 (2012).      Defendant argues: “The jury may well have acquitted

[Defendant]      . . . if they had heard the wire translated by an

unbiased interpreter.”         Defendant fails to properly argue plain

error, much less meet his burden of proving that “absent the

error,   the     jury   probably       would   have    returned    a   different

verdict.”    Id.     This argument is without merit.

    Defendant also seeks to preserve his right to file a motion

for appropriate relief in the trial court to argue ineffective

assistance     of   counsel    based    upon   his    attorney’s   failure    “to

request the wire be translated by an AOC certified interpreter.”
                                        -11-
Nothing     in    this   opinion      should       be    interpreted   as   denying

Defendant        his   right    to     file    any        legitimate   motion   for

appropriate relief.

                         V.    Attorney-Client Privilege

    In Defendant’s third argument, he contends the trial court

“erred    by     allowing     the    State    to    ask    questions   implicating

attorney-client privilege.”            We disagree.

    During Defendant’s testimony, the State asked Defendant:

“And you’ve had an opportunity to listen to the audiotape of the

conversation that took place inside the car, have you not?”

Defendant’s attorney asked to approach the bench, and apparently

asked to discuss the issue outside the presence of the jury.                     On

voir dire, Defendant’s attorney stated: “Judge, concerning [the

State’s] question about listening to the audiotape of the 6th,

[Defendant] has not listened to that.                   Because he is in custody,

trying to get the CD with a computer to him, he has not listened

to it.”     Defendant objected to the State’s question and stated:

“The basis of the objection is that the answer potentially could

disclose attorney work product.”               Defendant’s attorney did not

request time for Defendant to listen to the recording.                          The

State then indicated it was prepared to “move on,” meaning not

to pursue questioning as to whether Defendant had listened to
                                    -12-
the recording. The trial court responded: “If you’re going to

move on, it will be moot anyway.”

    Defendant     contends    that    the    State     continued     to   “ask

questions from [Detective] Monge’s testimony concerning what he

heard on the [recording.]”        However, the State did not again ask

Defendant if he had listened to the tape.                 The State cross-

examined Defendant about what transpired in Rangel’s vehicle,

and what Defendant said while Defendant was in Rangel’s vehicle.

Defendant answered those questions.            Defendant now argues the

State should have been prevented from asking Defendant questions

based   upon   evidence    that    was     presented    at   trial    because

Defendant’s    answers    might    somehow    implicate      attorney-client

privilege.

    Initially, we note that Defendant objected at trial on the

basis that answers Defendant might have given “potentially could

disclose attorney work product.”           The work product doctrine and

attorney-client privilege are separate issues.                See Evans v.

United Servs. Auto. Ass'n, 142 N.C. App. 18, 31, 541 S.E.2d 782,

790 (2001).    Because Defendant failed to object at trial on the

basis of attorney-client privilege, he has failed to preserve

this issue for appellate review.            State v. Gibbs, 335 N.C. 1,

49, 436 S.E.2d 321, 349 (1993).
                                       -13-
      Assuming    arguendo     Defendant had preserved this argument,

Defendant did not indicate at trial what privileged information

might be compromised if Defendant had informed the jury that he

had not listened to the recording because his attorney had not

provided it to him, and Defendant does not now indicate what

privileged information might be implicated, or how it would have

prejudiced     him.     Defendant      fails        to   demonstrate     that     any

privileged communications were implicated in this matter.                       State

v.   Murvin,   304    N.C.   523,     531,    284    S.E.2d    289,     294   (1981)

(citations omitted) (“A privilege exists if (1) the relation of

attorney and client existed at the time the communication was

made, (2) the communication was made in confidence, (3) the

communication relates to a matter about which the attorney is

being professionally consulted, (4) the communication was made

in the course of giving or seeking legal advice for a proper

purpose although litigation need not be contemplated and (5) the

client   has   not    waived    the   privilege.”).           Having     failed    to

identify    any   particular     communication           alleged   to   have     been

privileged, Defendant automatically fails in four of the five

prongs of the test enumerated in Murvin.

      Finally, Defendant has made no argument in his brief in

support of his bald statement that he was prejudiced by any

error.     State v. Watkins, 195 N.C. App. 215, 222, 672 S.E.2d 43,
                                         -14-
48   (2009)      (citation       omitted)       (“The     person   asserting           the

privilege bears the burden of establishing each of the five

elements.”).      This argument is without merit.

                 VI.    Reference to Defendant as a “Bad Guy”

     In Defendant’s fourth argument, he contends that the trial

court    committed      plain    error   by     allowing    Detective     Monge        “to

repeatedly    refer     to    the   defendants     as     ‘the   bad    guys.’”        We

disagree.

     Detective Monge referred to the three men involved in the

transaction      with    Rangel     multiple      times    as    “the    bad   guys.”

Defendant never objected to this characterization.                         Defendant

again fails to make a proper plain error argument.                         Defendant

states:

            Standing    alone    these    references  to
            [D]efendant’s guilty [sic] may not have
            swayed the jury, but when viewed in the
            context of Monge’s entire testimony in which
            he was allowed to translate and paraphrase
            everything that went on during the meeting,
            his clear opinion that Gaytan was guilty
            raises a reasonable probability that without
            his characterization the jury would have
            returned a different verdict.

However,    we    do    not     “apply   the     plain     error   doctrine       on    a

cumulative basis when defendant is assigning error to unrelated

admissions of evidence to which he did not object, and the trial

court made no affirmative ruling on the admissibility of any of

them.”     State v. Holbrook, 137 N.C. App. 766, 769, 529 S.E.2d
                                  -15-
510,   512   (2000).    Because   Defendant     admits   that   Detective

Monge’s use of the term “bad guys” might not have amounted to

plain error absent Detective Monge’s unobjected to testimony in

which Defendant argued Detective Monge improperly served as a

translator, Defendant has not alleged or properly argued plain

error.    Further, we agree with Defendant that Detective Monge’s

use of the term “bad guys” standing alone, as it must in plain

error review, id., does not rise to the level of plain error.

This argument is without merit.

                    VII. Appropriateness of Sentence

       In Defendant’s final argument, he contends that “sentencing

Defendant to thirty to thirty-seven years in prison when the

same court sentenced his co-defendant to half that time was

clearly and palpably gross, harsh and abusive.”          We disagree.

       Defendant makes this argument based upon the fact that his

co-defendant,     Gonzalez-Franco,   received    concurrent     sentences

after pleading guilty, but the trial court sentenced Defendant

to consecutive sentences, effectively sentencing Defendant to

twice the active sentence of Gonzalez-Franco.              However, this

Court has held:

             Nor   did  the   court  err   by  sentencing
             defendant to a greater sentence than that
             received by [his co-defendant] pursuant to a
             plea bargain.   See, e.g., State v. Garris,
             265 N.C. 711, 712, 144 S.E.2d 901, 902
             (1965) (“There is no requirement of law that
                                -16-
          defendants charged with similar offenses be
          given the same punishment.”); State v.
          Sligh, 27 N.C. App. 668, 669, 219 S.E.2d
          801, 802 (1975) (court did not err by
          “imposing a sentence against defendant which
          was greatly in excess of the sentence given
          his   codefendant   . . . under [his]   plea
          bargaining arrangement”).

State v. Shelman, 159 N.C. App. 300, 312, 584 S.E.2d 88, 96-97

(2003).   This Court has held that sentences falling within the

statutory guidelines will only be       reviewed if it is readily

discernable that the sentence is clearly harsh or abusive:

          “[S]o long as the punishment rendered is
          within the maximum provided by law, an
          appellate court must assume that the trial
          judge    acted     fairly,     reasonably      and
          impartially   in    the   performance     of   his
          office.” Moreover when the sentence imposed
          is “. . . within statutory limits . . . [it]
          cannot be considered excessive, cruel or
          unreasonable.”        Thus,     “. . . sentences
          imposed,   which    are    within    the    limits
          provided by law, are beyond our review.”
          Notwithstanding the principle that such
          sentences    are    nonreviewable,      appellate
          courts have reviewed sentences when the
          particular sanction imposed is clearly and
          palpably gross, harsh and abusive.            Only
          when such an abuse of discretion is readily
          discernible will appellate courts intercede.
          The   defendant,     attacking     a    sentence,
          however, is confronted by the presumption
          that the trial judge acted “. . . fairly,
          reasonably,     and     impartially      in    the
          performance of the duties of his office.
          . . . Our entire judicial system is based
          upon the faith that a judge will keep his
          oath. ‘Unless the contrary is made to
          appear, it will be presumed that judicial
          acts and duties have been duly and regularly
          performed.’    . . . So long as errants make
                                           -17-
              it necessary for other men to judge them it
              is best to indulge the presumption that a
              judge will do what a judge ought to do.”

State v. Harris, 27 N.C. App. 385, 386-87, 219 S.E.2d 306, 307

(1975)     (citations        omitted).            Defendant      was         convicted    of

trafficking in 400 grams or more of cocaine by possession, and

trafficking in 400 grams or more of cocaine by transporting.

N.C. Gen. Stat. § 90-95 states:

              (3) Any person who sells, manufactures,
              delivers, transports, or possesses 28 grams
              or more of cocaine . . . shall be guilty of
              a felony, which felony shall be known as
              “trafficking in cocaine” and if the quantity
              of such substance or mixture involved:

              . . . .

              c. Is 400 grams or more, such person shall
              be punished as a Class D felon and shall be
              sentenced to a minimum term of 175 months
              and a maximum term of 222 months in the
              State's prison and shall be fined at least
              two    hundred   fifty   thousand   dollars
              ($250,000).

N.C.   Gen.    Stat.    §    90-95(h)(3)(c.)         (2013).           The    trial   court

sentenced      Defendant      to    consecutive         active    sentences        of    175

months   to    222    months,      which   is     the   statutory        range    for    the

offenses      for    which   Defendant      was     convicted.          We     hold   these

sentences      are    nonreviewable,        as     they    are    not        “clearly    and

palpably      gross,    harsh      [or]     abusive[,]”          and     no     “abuse    of

discretion is readily discernible[.]”                     Harris, 27 N.C. App. at
                             -18-
386, 219 S.E.2d at 307 (citations omitted).   This argument is

without merit.

    No error.

    Judges BRYANT and STROUD concur.

    Report per Rule 30(e).
