      An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-290

                           NORTH CAROLINA COURT OF APPEALS

                                 Filed: 7 October 2014




STATE OF NORTH CAROLINA



             v.                               Mecklenburg County
                                              No. 12 CRS 233035-36,            13   CRS
                                              599
JAMEL LAPOINTE ALLEN,
Defendant.




      Appeal by defendant from judgments entered 28 August 2013

by Judge Richard D. Boner in Mecklenburg County Superior Court.

Heard in the Court of Appeals 27 August 2014.



      Attorney General Roy Cooper, by Special Deputy                      Attorney
      General Terence D. Friedman, for the State.


      Appellate   Defender  Staples   S.   Hughes,  by                  Assistant
      Appellate Defender Anne M. Gomez, for defendant.
                                            -2-
    ELMORE, Judge.

    On     28     August     2013,    a    jury     found      Jamel       Lapointe        Allen

(defendant) guilty of possession of a firearm by a felon and of

possession of drug paraphernalia.                      Defendant pleaded guilty to

attaining    the    status       of   a   habitual       felon.           The    trial     court

sentenced defendant to 60 to 84 months imprisonment for the

possession of firearm by felon charge, concurrent to a sentence

of 60 days imprisonment for possession of drug paraphernalia.

Defendant    raises       five    evidentiary          issues       on    appeal.          After

careful consideration, we hold that defendant received a trial

free from prejudicial error.

                                      I.     Background

    The     State       first    called     Officer       Daniel         Bignall       with   the

Charlotte-Mecklenburg            Police      Department.                 Officer         Bignall

testified that he was assigned to the Freedom Division Focus

Mission Team, “a violent crime suppression unit” that “patrol[s]

areas     where    we     have    problems         with       robbers,          drugs,     [and]

prostitution.”          On 26 July 2012, Officer Bignall and eight to

eleven additional officers executed a search warrant at 3136

Timberbrook       Drive,     Apartment      B     in    Charlotte.              The    officers

entered    through       a   sliding       glass       door    in    the        rear     of   the

apartment.      Officer Bignall testified he entered “Bedroom Number
                                            -3-
1”   (bedroom      1)    and    found       defendant    sitting      on    the    bed.

Defendant and a female who was also present in the apartment

were moved to the living room and read their Miranda warnings.

      Officer Bignall searched bedroom 1 and found defendant’s

criminal record and paperwork from the DMV with defendant’s name

on it in the closet.              Officer Bignall noted that the closet

otherwise       contained      only       men’s    clothing.      Officer      Bignall

confiscated two digital scales, sandwich baggies, and a razor

blade from the top of the dresser and defendant’s cell phone,

which was sitting on the bed.

      Officer Brandon Williamson with the Freedom Division Focus

Mission Team participated in the execution of the search warrant

at   the   Timberbrook         apartment.          Officer     Williamson     searched

bedroom     1    and    located       a    North    Carolina     ID   belonging      to

defendant.        The   ID     listed      defendant’s    address     as    6039   Mary

Blaire Lane, Charlotte.           Officer Williamson noted that the dry-

cleaning in the closet was tagged with the first four letters of

defendant’s last name and the invoice had defendant’s full name

on it.

      When he lifted the mattress, Officer Williamson uncovered a

Smith & Wesson semi-automatic firearm with built-in laser sight.

A loaded magazine for the firearm was next to it.                          When asked,
                                          -4-
“was   there     anything    else    in    that    room     that     indicated    that

someone [besides defendant] was using that room[?]”,                         Officer

Williamson      responded,    “No,    not       that    I   observed.”       Officer

Williamson testified that defendant admitted in an interview he

had touched and held the firearm but denied owning it.

       Officer Alex Saine, also with the Freedom Division Focus

Mission Team, testified that defendant was found in bedroom 1

and the female was found in a second bedroom.                         Officer Saine

participated in the search of bedroom 1.                    He discovered a safe

in the closet that contained defendant’s birth certificate and

other documents in defendant’s name.

       Officer   Saine   testified        that    in   an   interview,     defendant

initially referred to the cell phone found on the bed in bedroom

1 as “his.”         However, when confronted with evidence that the

phone’s home screen displayed a picture of the firearm, “all of

the sudden he didn’t know about the phone.”                    When asked about a

video of the firearm on the phone, defendant again denied that

the cell phone was his.            Officer Saine testified that the cell

phone video showed a male holding the Smith & Wesson firearm—

“showing   it    off   for   the     camera.”          There   was    a   male   voice

narrating, and the video was shot in bedroom 1.
                                          -5-
      Rachael Scott, DNA analyst for the Charlotte-Mecklenburg

Police Department’s crime laboratory, testified that defendant’s

DNA profile was found on the grip of the firearm as well as on

the magazine.         Based on the evidence, defendant was indicted on

charges of possession of a firearm by a felon, possession with

intent to sell or deliver a controlled substance, and possession

of drug paraphernalia.               However, the controlled substance did

not test positive as a narcotic.                 The State therefore dismissed

the   charge     of    possession      with   intent    to     sell     or    deliver    a

controlled substance.

      Defendant testified on his own behalf at trial.                         Defendant

alleged    that       at   no   time   did    he   reside    at    the       Timberbrook

apartment. He stated that he went to the Timberbrook apartment

on 26 July 2012 to pick up Charmane Reddy, a friend who needed a

ride to work.         After dropping Ms. Reddy off, defendant testified

that he returned to the Timberbrook address to get something to

eat and “20 minutes later the police came.”                    Defendant testified

that he had personal items in bedroom, “for storage basically.”

Defendant stated that many of the personal items in bedroom 1

belonged    to    his      deceased    father,     including      the    dry-cleaning.

Defendant      denied      storing     the    digital   scale      and       firearm    in

bedroom 1.
                                       -6-
                                     II.    Analysis

  A. Motion for Mistrial

       Defendant    contends   the    trial    court     erred   in   failing   to

grant his motion for a mistrial after Officer Saine testified

that    defendant     was   arrested         for   possession      of    cocaine.

Defendant argues that the admission of Officer Saine’s testimony

violated the North Carolina Rules of Evidence and resulted in

substantial and irreparable prejudice to him.               We disagree.

       Under N.C. Gen. Stat. § 15A–1061 (2013), a mistrial is

warranted when “there occurs during the trial . . . conduct

inside or outside the courtroom, resulting in substantial and

irreparable   prejudice     to   the       defendant’s    case.”        The   trial

court’s denial of a motion for mistrial is reviewed only for

manifest abuse of discretion.              State v. King, 343 N.C. 29, 45,

468 S.E.2d 232, 242 (1996).

           The general rule is that in a prosecution
           for a particular crime, the State cannot
           offer evidence tending to show that the
           accused has committed another distinct,
           independent, or separate offense. . . . In
           appraising   the    effect     of   incompetent
           evidence   once   admitted     and    afterwards
           withdrawn, the Court will look to the nature
           of the evidence and its probable influence
           upon the minds of the jury in reaching a
           verdict. In some instances because of the
           serious   character   and    gravity    of   the
           incompetent   evidence     and    the    obvious
           difficulty in erasing it from the mind, the
                                             -7-
              Court has held to the opinion that a
              subsequent withdrawal did not cure the
              error. But in other cases the trial courts
              have freely exercised the privilege, which
              is not only a matter of custom but almost a
              matter of necessity in the supervision of a
              lengthy trial. Ordinarily where the evidence
              is withdrawn no error is committed. This is
              also the rule when unresponsive answers of a
              witness   include     incompetent   prejudicial
              statements and the court on motion or ex
              mero motu instructs the jury they are not to
              consider    such    testimony.    Whether   the
              prejudicial    effect    of  such   incompetent
              statements should be deemed cured by such
              instructions depends upon the nature of the
              evidence   and   the    circumstances   of  the
              particular case.


State v. Aycoth, 270 N.C. 270, 272–73, 154 S.E.2d 59, 60–61

(1967) (citations and quotations omitted).

      Because the substance seized from the Timberbrook apartment

did   not     test   positive      as        an    illegal     narcotic,    the     State

dismissed     the    charge   of    possession          with    intent     to   sell   or

deliver a controlled substance prior to trial and agreed not to

reference the charge at trial.                    The evidence at issue here was

elicited when the State specifically asked Officer Saine on what

charges was defendant arrested.                    Officer Saine responded:          “For

possession      of   a   firearm        by    a     felon,     [and]    possession     of

cocaine.” Defendant immediately objected to this testimony, but

the   trial     court    overruled       the       objection.          During   a   bench
                                          -8-
conference      the     trial     court   reconsidered--denying             defendant’s

motion    for     mistrial      but    agreeing   to     strike       the       contested

testimony from the record.             As such, the trial court issued the

following curative instruction:

               Ladies and gentlemen, the testimony just
               prior to the break by the officer, the
               defendant was charged with a particular
               offense, is stricken. The fact that someone
               has been charged with something is no
               evidence of guilt, and you’re to disregard
               the   officer’s   answer  about  what   the
               defendant was charged with.  That answer is
               not to influence your decision in its
               weighing or is to play any part in your
               deliberations.


    Defendant contends that “the knowledge that [he] had been

arrested for possession of cocaine was so highly prejudicial it

could    not    be    erased    from   the   jurors’    minds       with    a   curative

instruction.”          We are not persuaded.           Defendant cites State v.

Scott,    331    N.C.     39,   413    S.E.2d   787    (1992)       to     support   his

contention.          In Scott, the defendant was on trial for second-

degree rape.         The State elicited testimony from an acquaintance

of the defendant who testified that the defendant had raped her

two years earlier under similar circumstances.                       Id. at 41, 413

S.E.2d at 788.          The defendant had been tried and acquitted of

the alleged rape.         Our Supreme Court held that that

               evidence    that    defendant    committed       a    prior
                                         -9-
            alleged offense for which he has been tried
            and acquitted may not be admitted in a
            subsequent trial for a different offense
            when its probative value depends, as it did
            here, upon the proposition that defendant in
            fact committed the prior crime. To admit
            such evidence violates, as a matter of law,
            Evidence Rule 403.


Id. at 42, 413 S.E.2d at 788.                  “When the intrinsic nature of

the evidence itself is such that its probative value is always

necessarily outweighed by the danger of unfair prejudice, the

evidence becomes inadmissible under the rule as a matter of

law.” Id. at 43, 413 S.E.2d at 789.

      In Scott, the link between the inadmissible evidence and

the crime with which the defendant was charged was certain and

unmistakable.        Here,      Officer        Saine’s     mere      statement    that

defendant    was    arrested     for     possession      of    cocaine     does    not

corroborate    the    additional       evidence      the      State    presented    at

trial.      There     is    little       if    any   connection        between     the

incompetent evidence and the crimes tried in the instant case.

We   hold   there    is    no   reason    to     believe      that    defendant    was

prejudiced by the admission of this evidence or that the jury

depended upon this evidence in any way to arrive at the guilty

verdict.    The error was cured by prompt and adequate action by

the trial court, “since the presumption is that jurors will
                                           -10-
understand        and    comply    with    the    instructions      of     the   court.”

State v. Britt, 288 N.C. 699, 713, 220 S.E.2d 283, 292 (1975).

Accordingly, the trial court did not abuse its discretion in

denying defendant’s motion for a mistrial.

  B. Testimony of Job Duties

       Defendant        next    argues     that    the    trial     court     erred    in

allowing the officers to testify that they were assigned to the

Freedom Division Focus Team, which is a street drug interdiction

unit    and   a       violent   crime     suppression     unit    that     investigates

street    level         drug    crimes    within    the    Freedom        Division    and

murders, rapes, and robberies.                We disagree.

       We note at the outset that defendant did not object to the

admission of the contested testimony at trial.                            As such, we

review this argument for plain error.                     “A reversal for plain

error is only appropriate in the most exceptional cases.”                            State

v. Duke, 360 N.C. 110, 138, 623 S.E.2d 11, 29 (2005).                                Plain

error should be applied only when the defendant proves that,

“after reviewing the entire record, it can be said the claimed

error    is       a     fundamental       error,    something        so     basic,     so

prejudicial, so lacking in its elements that justice cannot have

been done[.]”           State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375,

378    (1983)     (citations      and     quotations     omitted)    (alteration        in
                                                    -11-
original).         An    appellate             court          “must           be    convinced”         by     the

defendant that “absent the error the jury probably would have

reached a different verdict.”                       State v. Walker, 316 N.C. 33, 39,

340 S.E.2d 80, 83 (1986).

    Evidence is relevant if it has “any tendency to make the

existence     of        any        fact       that            is     of        consequence            to     the

determination of the action more probable or less probable than

it would be without the evidence.”                                 N.C. Gen. Stat. § 8C–1, Rule

401 (2013). Generally, all relevant evidence is admissible, N.C.

Gen. Stat. § 8C–1, Rule 402, but evidence that has “not been

connected    to     the       crime          charged          and        which       [has]       no    logical

tendency     to     prove          any       fact        in        issue       [is]       irrelevant         and

inadmissible.”          State v. Wallace, 104 N.C. App. 498, 502, 410

S.E.2d 226, 228–29 (1991).

    Here,     Officer          Bingal          testified                 that       he    worked       on    the

“Freedom Division Focus Mission Team,” which is “a unit with

uniformed     patrol          and        uniformed            [sic]           police       car,       and    the

lieutenants       tell        us     where          to        go     where          crime       spikes       have

occurred. . . .          We’re           a      violent              crime           suppression            unit,

basically.         We    patrol           areas          where           we        have    problems         with

robberies,        drugs,       prostitution.                        We     do       a     lot    of      search

warrants.”          Officer          Brandon              Williamson                testified         he     was
                                         -12-
“assigned to the Freedom Division in their Focus Mission Team,”

where      he     investigated     “[m]urders,     rapes,    robberies,      drugs,

prostitution, and weapon offenses.                Basically street crimes in

the division.”         Lastly, Officer Saine testified he was assigned

to   the        “Freedom    Division,    Focus    Mission    Team,”      which   “is

basically a street crimes unit, or also known as a Street Drug

Interdiction Unit.           We investigate street level drug crimes with

the Freedom Division.”

     On     appeal,        the   crux   of   defendant’s    issue   is    that   the

foregoing testimony constituted inadmissible character evidence

tending     to     show     that   defendant     was   a   “hardened     criminal.”

Defendant contends that the officers’ testimony lacked relevance

and “had nothing to do with [defendant’s] guilt or innocence.”

Further, defendant contends that he was irreparably prejudiced

by its admission.            In support of his argument, defendant relies

on State v. Hinton, a case in which this Court held that it was

error to allow Sergeant Bray to make ninety-one references to

gangs or gang-related activity when the gang-related testimony

“had no tendency to make any fact of consequence more likely

than not.”         State v. Hinton, ___ N.C. App. ___, ___, 738 S.E.2d

241, 246 (2013).
                                          -13-
       Defendant’s reliance on Hinton is misplaced.                       Our holding

in    Hinton   was    premised       on       the   well-established       rule    that

evidence of “membership in [a gang] organization may only be

admitted if relevant to the defendant’s guilt.”                       Id.     Because

the    gang-related     evidence        was    “never    connected   to     the   crime

charged” in the Hinton            case, we held that it was irrelevant and

inadmissible.         Id.   at     246-47.          In   the    instant    case,       the

testifying officers were merely explaining their role with the

Charlotte-Mecklenburg Police Department on the Freedom Division

Focus Mission Team, which included investigating murders, rapes,

robberies,     drugs,   prostitution,           and   weapon    offenses.         At    no

point    during   trial     was    it     suggested      that   defendant    was       the

perpetrator of crimes beyond which he had been charged.                           There

was no reason for the jury to conclude defendant was a murderer

or rapist or an otherwise “hardened criminal.”                     The trial court

did not err.

     C. Best Evidence Rule

       Defendant next contends that the trial court violated the

best evidence rule when it permitted Officer Saine to testify to

the contents of the video found on defendant’s cell phone when

the video itself was allegedly available.                       We agree that the

trial court may have violated the best evidence rule (assuming
                                              -14-
the    cell    phone     video    was    available       to     be    shown       in   court).

However, such error did not constitute prejudicial error.

       According to our Rules of Evidence, “[t]o prove the content

of a writing, recording, or photograph, the original writing,

recording,       or    photograph        is     required,       except       as     otherwise

provided in these rules or by statute.”                     N.C. Gen. Stat. § 8C-1,

Rule    1002     (2013).         “The    best        evidence      rule      requires    that

secondary evidence offered to prove the contents of a recording

be    excluded    whenever        the    original       recording         is      available.”

State v. York, 347 N.C. 79, 91, 489 S.E.2d 380, 387 (1997).

       At    trial,    Officer     Saine       testified      on     direct       examination

that    he     watched     a     video    on     defendant’s          cell     phone     after

defendant was arrested:

               Q. Did you ever have an opportunity to watch
               that video?

               A. Yes.

               Q. Was it from the same phone that we were
               talking about?

               A. Yes.

               Q. And     what    did    you     actually       see    on    the
               video?

               A. There’s a male holding this pistol and
               just showing it off for the camera.   There
               is a male voice in the background more or
               less narrating what’s going on.         The
               background of the video obviously was taken
                                    -15-
            in the defendant's bedroom.


            Q. Was it showing the same setup as where
            the defendant was found?

            A. Yes.

            Q. And the gun that was shown on the video,
            did it look the same as the gun that was
            collected from the bedroom?

            A. Yes.

            Q. And what about it was so similar?

            A. The size of it, as well as the red dot
            sight that’s a feature of that pistol.

            MR. OSHO: Your Honor, at this time I believe
            all this is hearsay, and because it was
            heard.

            THE COURT: I’m sorry?

            MR. OSHO: Your Honor, I believe the video is
            here. That would be the best evidence for
            the jury[.] [The officer’s opinion as to the
            contents of the video] would be hearsay,
            your Honor.

            THE COURT: Well, sustained.


    From the record it is unclear whether the cell phone video

was in fact available at trial.            Defendant merely stated he

“believed” the video was present at trial, and there was no

additional   discussion   as   to   whether   it    should     be    admitted.

Assuming,    without   deciding,    that   the     admission    of     Officer
                                               -16-
Saine’s     testimony       concerning          the     contents     of    the       video     was

erroneous         and     violated       the     best        evidence      rule,       we      are

unconvinced        that    this    error       “probably         resulted       in    the     jury

reaching      a    different       verdict       than       it   otherwise        would       have

reached.”         State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188,

193 (1993) (citation and quotation omitted).

      The     State       presented      sufficient          evidence      of     defendant’s

constructive possession of the firearm irrespective of Officer

Saine’s testimony pertaining to the contents of the cell phone

video.        “Possession          of     a    firearm        may    []     be       actual     or

constructive.”            State    v.    Boyd,     154      N.C.    App.    302,      307,     572

S.E.2d 192, 196 (2002).                  “Constructive possession of an item

exists when a person does not have the item in physical custody,

but . . . nonetheless has the power and intent to control its

disposition.”            State    v.    Young,        190   N.C.    App.    458,      460,     660

S.E.2d 574, 576 (2008).                 Specifically, the State presented the

testimonial        evidence       of    three     law       enforcement     officers          that

defendant was discovered in bedroom 1.                        Bedroom 1 also contained

numerous personal items belonging to defendant, including his

ID,   birth       certificate,         criminal       record,      food-stamp        card,     and

clothing.          The    Smith    &    Wesson        firearm      was    found      under     the

mattress and scales were found on the dresser in bedroom 1.                                    The
                                    -17-
firearm tested positive for defendant’s DNA.             There was evidence

presented that defendant referred to the confiscated cell phone

as “his,” until law enforcement officers pointed out that the

home screen displayed a photograph of the firearm.                  There was

evidence that defendant admitted to having touched and played

with the firearm, but denied owning it.

       Based on the totality of the circumstances, the State’s

evidence     showing   defendant’s     ownership    or    control    of   the

contraband establishes sufficient incriminating circumstances to

support a conclusion that defendant constructively possessed the

contraband.     Id. at 461, 660 S.E.2d at 577.             Even if Officer

Saine’s testimony regarding the cell phone video had been struck

from the record or if the video itself had been shown, the jury

probably would not have reached a different verdict.                  Walker,

supra.

     D. Officer Saine’s Testimony

       In defendant’s final two arguments, he contends that the

trial court committed reversible error in admitting portions of

Officer Saine’s testimony.       In particular, defendant avers that

he    was   irreparably   prejudiced    by   the   admission    of    Officer

Saine’s testimony pertaining to (1) a description of the items

found in the safe as “dominion items which suggest who the safe
                                      -18-
belongs to,” (2) his references to bedroom 1 as “the defendant’s

bedroom,”   (3)     and    his    testimony       that     defendant’s      birth

certificate was found in the safe.                 The core of defendant’s

argument is that, without the admission of this evidence, the

State would have been unable to prove constructive possession of

the contraband.     We disagree.

    Given   the     State’s      evidence    of    constructive       possession

detailed in the preceding discussion,               and our conclusion that

the State presented sufficient evidence to support the jury’s

determination     that     defendant      constructively        possessed     the

contraband, we overrule defendant’s final two arguments.                    There

was sufficient evidence for the jury to find that defendant

constructively possessed the contraband irrespective of Officer

Saine’s testimony.

                                 E.      Conclusion

    In   sum,     the    trial   court    did     not    err   in   (1)   denying

defendant’s motion for mistrial; (2) allowing the officers to

testify to their duties with the Freedom Division Focus Team;

and (3) allowing Officer Saine to describe the contents of the

safe as “dominion items,” call bedroom 1 “defendant’s bedroom,”

and testify that defendant’s birth certificate was found in the

safe.    The State presented sufficient competent evidence that
                                  -19-
defendant     constructively   possessed   the   contraband.     Assuming

arguendo that the cell phone video was available at trial, the

trial court violated the best evidence rule by allowing Officer

Saine to testify to the contents of the video.             However, this

error did not constitute prejudicial error.              Accordingly, we

hold   that   defendant   received   a   trial   free   from   prejudicial

error.

       No prejudicial error.

       Judges CALABRIA and STEPHENS concur.

       Report per Rule 30(e).
