An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-423
                       NORTH CAROLINA COURT OF APPEALS

                             Filed:        21 October 2014

STATE OF NORTH CAROLINA

      v.                                        Richmond County
                                                No. 10 CRS 52627
ALICE DEWANNA GRAHAM



      Appeal by defendant from judgment entered 6 November 2013

by Judge Mark Klass in Richmond County Superior Court.                      Heard in

the Court of Appeals 22 September 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      David L. Gore, III, for the State.

      Jon W. Myers for defendant-appellant.


      McCULLOUGH, Judge.


      Defendant      Alice      Dewanna     Graham    appeals   from   a    judgment

entered upon a jury verdict finding her guilty of trafficking in

cocaine by possession.           The trial court sentenced defendant to a

mandatory     term   of    70    to   84    months    imprisonment.         Defendant

appeals.

      At   trial,    the     State’s       evidence   tended    to   show    that   in

September 2010 law enforcement officers set up a controlled buy
                                            -2-
of cocaine targeting Anthony McLaurin.                    On 13 September 2010 an

informant telephoned         McLaurin to set up a drug deal wherein

McLaurin    would      supply      the    informant       with   several        ounces   of

cocaine.       The deal was ultimately set to be conducted at a strip

mall in Rockingham, North Carolina, on 15 September 2010, and

the informant was instructed to look for a gray Ford Explorer.

       Under    the    surveillance        of    law    enforcement     officers,        the

informant      drove    to   the    strip        mall   and   entered      a    gray   Ford

Explorer.       Defendant sat in the driver’s seat and was the only

person in the vehicle apart from the informant.                         The informant

briefly    exited      the   Ford    Explorer,          signaling    law       enforcement

officers to move in.            Officers took defendant into custody and

found a package containing nine ounces of cocaine on the front

passenger floorboard of the Ford Explorer.

       Defendant now argues the trial court erred by allowing into

evidence testimony from the informant that he knew defendant

from   previous       encounters         where    she    delivered    drugs       to   him.

Defendant asserts that the trial court should have excluded the

testimony because the court had already sustained an objection

to similar testimony.           We disagree.
                                            -3-
       During      the      State’s   questioning      of     its    informant,      the

prosecutor inquired as to the informant’s prior acquisitions of

cocaine:

              Q And who normally brings the drugs when you
                order it?

              A Well - like bring it?

              Q Yes, sir.

              A She brought it to me like –-

Immediately upon hearing the informant implicate defendant as

the person who had previously brought him the drugs, defendant’s

trial counsel objected and the trial court excused the jury from

the courtroom.           The court then conducted a voir dire of the

informant and heard arguments from counsel                       as to whether it

should   allow        the    informant’s     testimony       under   Rules    403    and

404(b)   of     the    North    Carolina     Rules    of    Evidence.        The    court

sustained defendant’s objection, whereupon it called the jury

back   into     the      courtroom    and    the     State    proceeded      with    its

questioning of the informant.

       Shortly        thereafter,      the        informant      again     implicated

defendant     as      the    person   who    brought       him   cocaine     in    prior

transactions:

              Q Let’s   talk   a   little   about   your
                relationship with Anthony McLaurin, who
                was the subject of the drug transaction.
                                           -4-
                How long have you known Anthony?

            A It was probably -- When I was in school.
              Probably since like 2007.

            Q Was it unusual for him to send somebody
              else to bring the drugs when you ordered
              it?

            A I used to get it from him. But during that
              time he would –-

            Q He’d send other people?

            A Yeah. He would send her - just her. That’s
              the only other person I seen besides him.

Defendant’s     trial    counsel      did        not    object   to    this    second

identification      of   defendant         as    the    person   who   would    bring

cocaine to the informant, and defendant now argues it was error

for the trial court to allow the                   second identification into

evidence.

    We      first   address     the    standard         of   review    under    which

defendant’s     argument    will      be    decided.          Generally,      “[w]here

evidence is admitted without objection, the benefit of a prior

objection to the same or similar evidence is lost, . . . [and a]

defendant is entitled to relief . . . only if he can demonstrate

plain error.”       State v. Berry, 143 N.C. App. 187, 193, 546

S.E.2d 145, 151 (quotations and citations omitted), disc. review

denied,   353    N.C.    729,   551    S.E.2d          439   (2001).       Defendant,

however, argues her objection to the first instance in which the
                                       -5-
informant identified her as a person who brought him cocaine was

sufficiently contemporaneous with the second instance that she

was   not     required   to    renew     the       objection   to   the   second

identification.     See State v. Hazelwood, 187 N.C. App. 94, 652

S.E.2d   63    (2007).        However,       the    first   identification    of

defendant by the informant was made before her objection and,

because she failed to make a motion to strike the testimony

after her objection was sustained, she waived her objection and

the testimony remained in evidence.                  See State v. Price, 301

N.C. 437, 451, 272 S.E.2d 103, 112-13 (1980); see also State v.

Gamez, ___ N.C. App. ___, ___, 745 S.E.2d 876, 877, (“Where

inadmissibility of testimony is not indicated by the question,

but appears only in the witness’ response, the proper form of

objection is a motion to strike the answer, or the objectionable

part of it, made as soon as the inadmissibility is evident.

When counsel objects after a witness has answered the question

and fails to make a motion to strike, the objection is waived.”

(citations and quotation marks omitted)), disc. review denied,

367 N.C. 256, 749 S.E.2d 848 (2013).               Accordingly, regardless of

whether or not defendant’s initial objection was sufficiently

contemporaneous to the second identification, defendant waived
                                         -6-
the objection and this Court will only review her argument under

the plain error standard of review.

            For error to constitute plain error, a
            defendant    must    demonstrate    that    a
            fundamental error occurred at trial.       To
            show that an error was fundamental, a
            defendant   must  establish   prejudice—that,
            after examination of the entire record, the
            error had a probable impact on the jury’s
            finding that the defendant was guilty.
            Moreover, because plain error is to be
            applied   cautiously   and    only   in   the
            exceptional case, the error will often be
            one that seriously affects the fairness,
            integrity or public reputation of judicial
            proceedings.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)

(citations,     quotation      marks,    and    brackets    omitted);    see    also

State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993)

(“Under the plain error rule, defendant must convince this Court

not only that there was error, but that absent the error, the

jury probably would have reached a different result.”).

      Here, even assuming admission of the second identification

was   error,    defendant      cannot    show   the   prejudice   necessary       to

establish plain error.           Defendant waived her objection to the

first identification by not moving to strike the informant’s

testimony,      and   thus    evidence    that     defendant    had     previously

brought   cocaine      to    defendant    was     already    before     the    jury.

Defendant      does   not    challenge   the    admissibility     of    the    first
                                    -7-
identification, and thus we cannot say the second identification

had a probable impact on the jury’s verdict.               Accordingly, we

hold   defendant   received   a   fair    trial,   free   from   prejudicial

error.

       No error.

       Judges CALABRIA and GEER concur.

       Report per Rule 30(e).
