                                   NO. COA13-661
                        NORTH CAROLINA COURT OF APPEALS

                              Filed:     1 July 2014
STATE OF NORTH CAROLINA

                                              Alamance County
      v.
                                              Nos. 11 CRS 55481, 54816, 54822

THORNE OLIVER WATLINGTON


      Appeal by defendant from judgments entered 5 October 2012

by Judge Henry W. Hight, Jr., in Alamance County Superior Court.

Heard in the Court of Appeals 9 December 2013.


      Attorney General Roy Cooper, by Special Deputy                 Attorney
      General Grady L. Balentine, Jr., for the State.

      Appellate Defender Staples Hughes, by Assistant Appellate
      Defenders John F. Carella and Benjamin Dowling-Sendor, for
      Defendant.


      ERVIN, Judge.


      Defendant Thorne Oliver Watlington appeals from judgments

sentencing him to a term of eight to ten months imprisonment

based upon his conviction for felonious breaking or entering, to

a consecutive term of eight to ten months imprisonment based

upon his conviction for felonious larceny, to a consecutive term

of   fourteen   to     seventeen     months   imprisonment   based   upon   his

conviction for possession of a firearm by a felon, and to a

consecutive     term    of   sixty    days    imprisonment   based   upon   his
                                        -2-
conviction for assault by pointing a gun.                  On appeal, Defendant

contends that the trial court erred by refusing to admit the

contents of certain text messages and by failing to deliver his

requested instruction concerning the manner in which the jury

should    evaluate     the     validity       of     eyewitness    identification

evidence.       After careful consideration of Defendant’s challenges

to the trial court’s judgments in light of the record and the

applicable law, we conclude that the trial court’s judgments

should remain undisturbed.

                             I. Factual Background

                             A. Substantive Facts

                              1. State’s Evidence

                        a. Background Information

       Defendant’s cousin, Loven McLaughlin, has known Defendant

his entire life.       In the summer of 2011, Defendant came to live

with    Loven    McLaughlin    and     Loven       McLauchlin’s    mother    in   the

Forestdale Apartments because Defendant was not getting along

with    his   own   parents.      In    the    latter     part    of    July,    Loven

McLaughlin’s mother told Defendant that he would have to leave.

After    Defendant’s    departure,        Loven       McLaughlin       noticed    that

Defendant was sleeping in the woods near the Mellow Mushroom.
                                      -3-
                             b. Firearm Theft

       In July 2011, Cody May, who had gone to high school with

Defendant, lived in the Forestdale Apartments.                       After seeing

Defendant   in   the   apartment     complex,     Mr.    May    reestablished         a

connection with him.

       On 25 July 2011, Mr. May stayed home from work.                      At noon,

he left to go to a medical appointment with his girlfriend to

learn the gender of their baby.             As a result of the fact that

Defendant was present when Mr. May departed, the two of them

left   simultaneously.       Defendant      had   only    been       to    Mr.    May’s

apartment on a few occasions before the date in question.

       About forty-five minutes after leaving his apartment, Mr.

May realized that he had forgotten something and returned home.

Upon arriving at his apartment, Mr. May discovered that the back

door had been kicked in and that an Xbox video game system;

three rifles, including a Norinco SKS with a laser sight and

that held 7.62 millimeter rounds; and a laptop had been stolen.

                       c. Mellow Mushroom Incident

       Kenneth Pryor was working at the Mellow Mushroom on the

evening of 27 July 2011.        After going outside for a cigarette

break, Mr. Pryor noticed a man exiting his truck.                         Upon making

this   observation,    Mr.   Pryor    yelled      at    and    ran    towards       the

intruder, causing him to head in the opposite direction.                         As Mr.
                                       -4-
Pryor caught up with the intruder, the intruder turned around,

pulled what appeared to be an SKS rifle out of a bag, pointed it

at Mr. Pryor, and told him to lie down on the ground.                     Instead

of complying with this command, Mr. Pryor ran in the opposite

direction.

     A few days later, Mr. Pryor identified Defendant as his

assailant after viewing a photographic lineup, claiming to be

90% certain that his identification was accurate.                      At trial,

however,   Mr.   Pryor   only       expressed   a    50%   certainty    that   his

identification of Defendant as the assailant was correct.                       In

support    of    Mr.     Pryor’s       identification        testimony,      Loven

McLaughlin testified that he had gone to the Mellow Mushroom on

the date of the incident involving Mr. Pryor so that Defendant

could use his cell phone and that, upon arriving at the Mellow

Mushroom, he had observed Defendant being chased, displaying a

firearm with a laser sight, and chasing the individual who had

been pursuing him.

                              d. Arby’s Incident

     On    the   night   of    29    July    2011,    Anja   Frick     and   Jessi

Richardson were working at the Arby’s Restaurant on Huffman Mill

Road.     After helping Ms. Frick close the store at around 1:40

a.m., Ms. Richardson got into her car.                     At that point, she

noticed an African-American male standing beside her car and
                                 -5-
gesturing as if he wanted her to roll down her window or exit

the car.   After Ms. Richardson did neither, the man went away.

    As Ms. Frick locked the door to the store, she saw a light

emanating from a laser shining on the wall beside her.           Although

Ms. Frick initially believed that the light had been caused by a

co-worker or either her father or her brother, who had come to

pick her up, an individual approached her as she neared the

vehicle in which she was to ride.        After telling this person to

go away, Ms. Frick realized that another individual was holding

a long gun with a laser sight to her father’s head on the other

side of the car.

    After Ms. Frick’s father stated that he did not have any

money, the individual who had approached Ms. Frick said, “just

shoot him.”    At that point, Ms. Frick’s father realized that

another person was present and saw that this person was pointing

a rifle directly at his head.      Eventually, the armed assailant

took wallets from both Ms. Frick’s father and brother and took a

cell phone from her brother before running towards the woods

with the individual who had approached her.             As the men ran

away, one of them said, “give me the gun.”       Ms. Frick then went

to a nearby Walmart with her father and brother and called the

police.    Andre   McLaughlin,   Loven   McLaughlin’s    first    cousin,
                                           -6-
testified     that      he    and    Defendant        had    committed    the   Arby’s

robbery.

    On the following morning, Ms. Frick’s father and brother

returned to the scene of the robbery in the hope of finding

their wallets, which contained family photographs.                         As the two

men looked for their wallets, they found an identification card

that contained a photograph of Defendant near the edge of the

parking lot.         Ms. Frick’s father stated, “that’s the guy that

robbed us,” as soon as he looked at it.                     Ms. Frick’s father had

a 70% level of confidence in the accuracy of his identification

of the person depicted on the identification card as one of the

perpetrators       of   the    robbery.          He    then    called    the    police,

informed them that he had found the card, and left it in their

possession.       At trial, Ms. Frick’s father identified Defendant

as being the individual who had robbed him and his son.

                         e. Apprehension of Suspects

    During        the   course      of   the   investigation      into    the   Arby’s

robbery,    Ms.    Frick’s     brother     provided         Detective    Gary   Matthew

Fitch of the Burlington Police Department with his cell phone

number.     After Detective Fitch called Ms. Fitch’s brother’s cell

phone in order to determine its location, investigating officers

went to the Forestdale Apartments and began randomly knocking on
                                         -7-
doors   for    the   purpose    of     seeking    information      concerning    the

Arby’s robbery.

       At    approximately     12:30    p.m.,     the   investigating    officers

went    to    Apartment   H-F.         After     knocking    and    receiving     no

response, the investigating officers noticed two cell phones in

the rear of a nearby Honda automobile, one of which resembled

the cell phone that had been taken from Ms. Frick’s brother.                      In

addition, the investigating officers noticed that there was a

rifle shell in the front seat.            Upon calling the number assigned

to Ms. Frick’s brother’s cell phone, the investigating officers

heard a cell phone vibration emanating from the interior of the

Honda automobile.

       At    approximately     3:00    p.m.,     Rashawn   Alston    emerged    from

Apartment H-F and entered the Honda automobile.                     Investigating

officers detained Mr. Alston before he was able to leave.                      About

an hour later, Loven and Andre McLaughlin came out of the same

apartment and were taken into custody.                  Upon learning that yet

another      individual   remained       in    the   apartment,     investigating

officers entered the apartment and detained Defendant.                   During a

subsequent search of the apartment, officers found a wallet that

resembled the one that had been taken from Ms. Frick’s father.

At a nearby abandoned building, investigating officers found a

vehicle that contained a rifle with an attached laser sight and
                                               -8-
7.29 by 39 millimeter rounds that had been loaded into an SKS

magazine.          In addition, Defendant’s fingerprints were found on

an ammunition box seized from the vehicle.

                                 2. Defendant’s Evidence

       Defendant and Loven McLaughlin, with whom he had grown up,

are second cousins.                  Defendant knew Andre McLaughlin from high

school.      After graduating high school, Defendant enlisted in the

Army.     While serving in the military, Defendant was arrested for

being   in     a    stolen       vehicle,      entered    a   negotiated    plea   to   a

felony, and received a twelve-month sentence.

       After       his   release       from    incarceration,     Defendant    went     to

stay    with       Loven    McLaughlin.              Defendant   denied     that   Loven

McLaughlin’s mother had requested that he leave and claimed, on

the    contrary,         that    Loven       McLaughlin   was    in   the   process     of

leaving as the result of numerous noise complaints.                         Upon being

re-called, however, Loven McLaughlin testified that his mother

had told Defendant that he needed to leave because she had heard

that he was getting into trouble around town.

       After       coming       to    live    with    Loven   McLaughlin,     Defendant

visited Mr. May, whom he had known in high school, on three

occasions.         On the first visit, during which he was accompanied

by Loven McLaughlin, Mr. May showed a pistol to the two men.                            In

the course of the second visit, during which Loven McLaughlin
                                        -9-
was not present, Mr. May showed Defendant a number of guns and

asked for Defendant’s help in locating a purchaser for these

weapons.     Mr. May did not ever show Defendant an SKS rifle.

Subsequently,    Defendant       mentioned       Mr.    May’s    request    to   Loven

McLaughlin and Mr. Alston, whom he had met at Loven McLaughlin’s

apartment.     The third and final visit to Mr. May’s apartment

occurred on the day of the theft.                  During his visits to Mr.

May’s apartment, Defendant had noticed ammunition crates in the

living room and touched one of them given his curiosity about

what was inside.

    Defendant denied having returned to Mr. May’s apartment on

the day of the theft, breaking into Mr. May’s apartment, or

stealing    firearms     and    ammunition       from    Mr.     May.      Similarly,

Defendant denied having asked Loven McLaughlin to come to the

Mellow Mushroom or having pointed a firearm at Mr. Pryor.

    Although he initially told investigating officers that he

and his friends had been at home at the time of the Arby’s

robbery,     Defendant      testified       at    trial       that,     after    Loven

McLaughlin    and   Andre      McLaughlin     arrived     at     the    apartment,   a

woman named Sonia, whose last name he did not recall, picked him

up and took him to a hotel, where they stayed all night.                          The

following    morning,       Defendant   returned         to     Loven   McLaughlin’s

apartment,    where    he    fell   asleep.        Upon       awakening,   Defendant
                                       -10-
noticed    that   the    house   was    empty,         called   Loven   McLaughlin’s

phone to find out where he was, and went to a Kmart for the

purpose of meeting Loven McLaughlin and Andre McLaughlin.

    Subsequently, Mr. Alston picked the group up and took them

back to Loven McLaughlin’s apartment.                     After arriving at the

apartment, however, Loven McLaughlin observed that investigating

officers were in the area.             Although an officer knocked on the

door, no one answered.             At that point, Defendant decided to

sleep for a few hours.

    Once Defendant woke up, the members of the group                              began

leaving the apartment.           However, Defendant decided to use the

restroom before exiting.           As he left the restroom, investigating

officers entered the apartment and took him into custody.                           He

was then taken to the police department for questioning.

    Defendant       speculated       that     he       might    have    dropped    his

identification      card    near    the     Arby’s        at    which   the   robbery

occurred    since   he     regularly    used       a    walking   route   near    that

location.    In a letter that Defendant wrote to Mr. May after his

incarceration, Defendant denied having stolen anything from Mr.

May, claimed to have been in Raleigh at the time of the theft,

and opined that Mr. Alston had committed the theft given that

evidence of the theft had been found in his car.                        In addition,

Defendant told Mr. May that he had reached the conclusion that
                                            -11-
Mr. Alston was the culprit because Mr. Alston had mentioned an

Xbox 360 to him and because Defendant had told Mr. Alston about

Mr.   May’s      guns.        Finally,     Defendant     requested      that        Mr.    May

contact Loven McLaughlin on his behalf and provided Mr. May with

Loven McLaughlin’s number, which he listed as (336) 263-9913.

                                B. Procedural History

      On 31 July 2011, warrants for arrest were issued charging

Defendant with two counts of robbery with a dangerous weapon,

two     counts    of        attempted     robbery     with    a     dangerous       weapon,

possession       of     a    stolen     motor    vehicle,     possession       of    stolen

property,       breaking       or     entering    a   motor   vehicle,     assault           by

pointing a gun, financial transaction card theft, and possession

of a firearm by a felon.                On 29 August 2011, the Alamance County

grand jury returned bills of indictment charging Defendant with

two counts of robbery with a dangerous weapon; two counts of

attempted       robbery       with    a   dangerous     weapon;      possession         of   a

stolen motor vehicle; possession of stolen property; breaking or

entering      into      a    motor    vehicle;     assault     by    pointing       a     gun;

financial transaction card theft; and possession of a firearm by

a felon.         On 1 September 2011, a warrant for arrest charging

Defendant        with       felonious      breaking     or     entering,        felonious

larceny, and possession of stolen goods was issued.                        On 5 March

2012,     the    Alamance       County     grand      jury    returned     a    bill         of
                                            -12-
indictment           charging      Defendant      with      felonious       breaking     or

entering, felonious larceny, and possession of stolen goods.                             On

25 September 2012, the State voluntarily dismissed the financial

transaction card theft charge.

         The charges against Defendant came on for trial at the 25

September 2012 criminal session of the Alamance County Superior

Court before the trial court and a jury.                          At the conclusion of

the trial, the jury found Defendant guilty of felonious breaking

or   entering,            felonious     larceny,        one   count        of   felonious

possession           of   stolen    property,    breaking     or     entering    a   motor

vehicle, assault by pointing a gun, and possession of a firearm

by   a       convicted     felon;    not   guilty      of   one    count   of   attempted

robbery with a firearm, possession of a stolen motor vehicle,

and a second count of possession of stolen property; and failed

to   reach       a    unanimous     verdict     with    respect     to   two    counts   of

robbery with a dangerous weapon and a second count of attempted

robbery with a dangerous weapon.1                      After arresting judgment in

         1
      The effect of the jury’s verdict in practical terms was to
convict Defendant of breaking into Mr. May’s apartment and
stealing his laptop computer, Xbox, and firearms; breaking into
Mr. Pryor’s motor vehicle, assaulting Mr. Pryor by pointing a
gun, and possessing a firearm at the time of the assault upon
Mr. Pryor; to acquit Defendant of attempting to rob Ms.
Richardson with a dangerous weapon, possessing Ms. Frick’s
brother’s wallet, and possessing a stolen motor vehicle; and to
fail to reach agreement with respect to the issue of whether
Defendant robbed Ms. Frick’s father and brother and attempted to
rob Ms. Frick.
                                     -13-
connection with Defendant’s conviction for possession of stolen

property, the trial court entered judgments sentencing Defendant

to four consecutive active terms totaling thirty-two to thirty-

nine months imprisonment, and one suspended term of six to eight

months imprisonment, with Defendant being placed on supervised

probation for a period of thirty-six months subject to certain

terms and conditions.         Defendant noted an appeal to this Court

from the trial court’s judgments.

                              II. Legal Analysis

                  A. Motion to Strike the State’s Brief

    As an initial matter, we must address Defendant’s motion to

strike the State’s brief, which was filed in an untimely manner

without any justification or excuse and after several extensions

of the time within which it was authorized to do so had been

obtained.     Although the complete failure on the part of counsel

for the State to comply with our rules concerning the timing

within which the State’s brief should have been filed is quite

troubling   and    although    we   strongly     admonish   counsel     for   the

State to refrain from engaging in such conduct in the future, we

conclude that Defendant’s dismissal motion should be denied for

a number of reasons.

    As   an    initial   matter,     we   note    that   the   filing    of    an

appellee’s brief, as compared to the filing of an appellant’s
                                        -14-
brief, is not a prerequisite for the perfection of an appeal.

According to the relevant provisions of the North Carolina Rules

of   Appellate    Procedure,    while     “the    appeal   may   be    dismissed”

“[i]f an appellant fails to file and serve a brief within the

time allowed,” an appellee’s failure to file his or her brief in

a timely manner simply means that he or she may not “be heard in

oral argument except by permission of the court.”                     N.C.R. App.

P. 13(c).     For that reason, decisions such as Thompson v. First

Citizens Bank & Trust Co., 151 N.C. App. 704, 706, 567 S.E.2d

184, 186-87 (2002), and Dalenko v. Wake Cnty. Dep’t of Human

Servs., 157 N.C. App. 49, 53-54, 578 S.E.2d 599, 602, cert.

denied, 357 N.C. 457, 585 S.E.2d 383 (2003) cert. denied sub nom

Bennett v. Wake Cnty. Dep’t of Human Servs., 540 U.S. 1178, 124

S. Ct. 1411, 158 L. Ed. 2d 79                  (2004), in which this Court

dismissed appeals based upon the appellant’s failure to file a

brief, shed little light on the proper resolution of this issue.

As a result, since nothing in the relevant provisions of the

North   Carolina     Rules     of   Appellate      Procedure     mandates      the

striking of the State’s brief, we must evaluate the merits of

Defendant’s      motion   to   strike    based    upon   an   analysis    of   the

decisions governing the manner in which violations of the North

Carolina Rules of Appellate Procedure should be sanctioned.
                                        -15-
    Although the Rules of Appellate Procedure “are mandatory

and [the] failure to follow these rules will subject an appeal

to dismissal,” Steingress v. Steingress, 350 N.C. 64, 65, 511

S.E.2d    298,   299   (1999),     “a    party’s   failure      to    comply    with

nonjurisdictional rule requirements normally should not lead to

dismissal of the appeal.”               Dogwood Dev. & Mgmt. Co., LLC v.

White Oak Transp. Co., 362 N.C. 191, 198, 657 S.E.2d 361, 365

(2008).     Instead, N.C.R. App. P. 25(b) and N.C.R. App. P. 34

provide this Court with substantial discretion in determining an

appropriate sanction in the event that a party commits a non-

jurisdictional      violation      of     the    North    Carolina      Rules    of

Appellate Procedure.

    Admittedly, a decision to strike a party’s brief is not as

significant as a decision to dismiss a party’s appeal.                    However,

striking    an   appellee’s     brief     is    among    the   most   significant

sanctions, if not the most significant, that can be imposed upon

an appellee.       For that reason, we are inclined to believe that

an appellee’s failure to file his or her brief in a timely

manner    should   not,   as   a   general      proposition,     result    in    the

striking of that party’s brief in the absence of a showing that

the appellee’s conduct has resulted in material prejudice to the

appellant.       Although the record clearly establishes that the

State has completely failed to provide any legitimate excuse for
                                         -16-
its failure to file its brief in a timely manner, the record

also    clearly     establishes    that    Defendant     has    not     demonstrated

that he suffered any particularized prejudice as a result of the

State’s lack of timely action.             As a result, we hereby conclude,

in the exercise of our discretion, that Defendant’s motion to

strike    the    State’s   brief    should      be,   and     hereby    is,    denied.

Counsel    for    the   State     is,    however,     strongly        admonished    to

refrain from engaging in such inexcusable conduct in the future

and     should    understand     that     any    repetition      of    the     conduct

disclosed by the present record will result in the imposition of

significant       sanctions       upon    both     the      State      and     himself

personally.

                        B. Substantive Legal Issues

                     1. Admissibility of Text Messages

       In his brief, Defendant contends that the trial court erred

by     sustaining    the   State’s       objections      to    the     admission    of

evidence     concerning    the      contents     of    certain        text    messages

obtained by investigating officers during an examination of Mr.

Alston’s cell phone.        More specifically, Defendant contends that

the cell phone messages were relevant and properly authenticated

and that the exclusion of the evidence in question prejudiced

his chances for a more favorable outcome at trial.                           We do not

find Defendant’s argument persuasive.
                                            -17-
                                  a. Relevant Facts

       The phone number listed on Loven McLaughlin’s arrest report

was    (336)    263-9913.            According       to   Loven      McLaughlin,     the

investigating officers did not confiscate his cell phone at the

time that he was taken into custody and never asked him to

verify    his     phone      number.         In     addition,     Loven      McLaughlin

testified      that    he    could    not    remember     the    cell   phone    number

assigned to his phone as of the date upon which he was arrested

given the large number of phones that he had utilized.

       Although       Detective      Jennifer        Bradley      Matherly      of   the

Burlington Police Department prepared Loven McLaughlin’s arrest

report, she acknowledged that the names, dates, phone numbers,

and other information that she recorded on that document could

have   emanated       from    a   range     of     sources,   such    as    information

provided by the suspect, information contained in the warrant

for arrest, or information on file with or available to the

Burlington      Police       Department.           For    that    reason,     Detective

Matherly indicated that, while she could have confirmed a phone

number shown on the arrest report with the suspect, she might

have obtained that information in another way as well and did

not know the source of any specific item of information shown on

Loven McLaughlin’s arrest report.                  Detective Matherly did state,

however, that she would not have used information obtained from
                                           -18-
one   suspect    in    filling      out    an     arrest     report    relating   to   a

different suspect.

      After     recovering        Mr.    Alston’s     cell    phone,    investigating

officers photographed each individual text message found in that

instrument.       During this process, investigating officers found

messages    sent      to   Mr.    Alston       from   individuals      identified      as

“LuvBoat”     and     “SnakeNDAGrass.”                Although    Andre    McLaughlin

testified     that     Mr.   Alston       referred      to    Loven    McLaughlin      as

“LuvBoat,” Loven McLaughlin denied that Mr. Alston called him by

that name and asserted, instead,                   that Mr. Alston called him

“Slogey.”     In addition, Loven McLaughlin testified that he was

not planning on moving, that he is not related to Mr. Alston,

and that he and Mr. Alston never referred to each other as

“cuz.”

      After     Defendant        began    to    cross-examine     Loven    McLaughlin

about the text messages taken from Mr. Alston’s phone, the State

lodged a successful objection.                    Subsequently, during his own

case in chief, Defendant sought to obtain the admission of the

text messages in question.                However, the trial court sustained

the State’s objection to the admission of these text messages.

In both instances, the State’s objections were predicated on

authentication and relevance grounds.
                                        -19-
    The text messages sought to be introduced showed a callback

number of (336)        263-9913.        Without reciting the contents of

these text messages in their entirety, certain messages that

“LuvBoat”     sent    to    Mr.    Alston’s      phone   contained     repeated

statements concerning “LuvBoat’s” need for money in order “to

find a place to stay,” inquiring if “ur cuzin” was going to

“sell it,” and asking if Mr. Alston had “got the money.”                 During

the same time that he was receiving these text messages from

“LuvBoat,” messages were sent from Mr. Alston’s phone to “Cuz”

stating “u gta choppa” and “r u strap[p]ed.”                 The undisputed

evidence reflects that “choppa” is a reference to an assault

rifle, while the fact that someone is “strapped” means that he

or she is in possession of a weapon.

                     b. Admissibility of Text Messages

    According        to    well-established      North   Carolina     law,   the

requirement that an item be properly authenticated before being

admitted into evidence is “satisfied by evidence sufficient to

support   a   finding      that   the   matter   in   question   is   what   its

proponent claims.”          N.C. Gen. Stat. § 8C-1, Rule 901(a).              “A

trial court’s determination as to whether a document has been

sufficiently authenticated is reviewed de novo on appeal as a

question of law.”          State v. Crawley, __ N.C. App. __, __, 719

S.E.2d 632, 637 (2011), disc. review denied, 365 N.C. 553, 722
                                          -20-
S.E.2d 607 (2012).           Similarly, evidence is relevant when it has

“any tendency to make the existence of any fact that is of

consequence to the action more probable or less probable than it

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

401.         “Although      ‘[a]    trial   court’s        rulings      on   relevancy

technically are not discretionary and therefore are not reviewed

under the abuse of discretion standard applicable to [N.C. Gen.

Stat. § 8C-1,] Rule 403, such rulings are given great deference

on appeal.’”           Dunn v. Custer, 162 N.C. App. 259, 266, 591 S.E.2d

11, 17 (2004) (quoting State v. Wallace, 104 N.C. App. 498, 502,

410 S.E.2d 226, 228 (1991), appeal dismissed, 331 N.C. 290, 416

S.E.2d 398, cert. denied, 506 U.S. 915, 113 S. Ct. 321, 121 L.

Ed.    2d    241   (1992)).        “A   defendant     is    prejudiced       by   errors

relating to rights arising other than under the Constitution of

the United States when there is a reasonable possibility that,

had the error in question not been committed, a different result

would have been reached at the trial out of which the appeal

arises.”      N.C. Gen. Stat. § 15A-1443(a).

       Assuming, without deciding, that the text messages at issue

in this case were properly authenticated and were relevant to

the matters at issue at trial, we are unable to determine that

there       was    a    reasonable      possibility        that   the    outcome     at

Defendant’s trial would have been different had these errors not
                                           -21-
been committed.            The ultimate effect of the jury’s verdicts was

to convict Defendant of breaking into Mr. May’s apartment and

stealing various electronic items and firearms and breaking into

Mr. Pryor’s motor vehicle and pointing an assault rifle at him.

In attempting to persuade us that the exclusion of these text

messages constituted prejudicial error, Defendant contends that

these messages undercut the credibility of Loven McLaughlin’s

testimony         by     refuting    his   contention        that   he,    rather    than

Defendant, was being forced to move and suggested that Loven

McLaughlin had been involved in the theft of the firearms from

Mr. May’s apartment and their subsequent use in the commission

of other offenses given his attempt to get Mr. Alston to sell

the firearms taken at that time.                    Although the record might

support the inferences that Defendant contends should be drawn

from these text messages, those inferences have little strength.

       As    an    initial     matter,     even   if    the     record     suffices    to

support an inference that the text messages from “LuvBoat” were

sent    by    Loven        McLaughlin,     the    record      contains      substantial

evidence that would support a contrary inference.                         Secondly, the

record contains no evidence concerning the identity of “Cuz,” to

whom   the        text    messages    concerning       the    firearms      were    sent.

Thirdly, the text messages from “LuvBoat” simply inquire whether

“ur cuzin [is] goin to sell it,” which is less than a clear cut
                                        -22-
reference to the sale of one or more firearms, much less those

taken from Mr. May’s apartment.                Fourthly, the inference that

the firearms referred to in the text messages to “Cuz” are the

same weapons that had been taken from Mr. May’s apartment is

less than compelling.          Finally, as the trial court noted, even

if the text messages in question establish that Loven McLaughlin

was involved in the entry into Mr. May’s apartment, that fact,

without more, does not exonerate Defendant of any involvement in

the commission of that crime given the undisputed evidence that

Defendant, Loven McLaughlin, Andre McLaughlin, and Mr. Alston

were spending a great deal of time together during the time in

which that crime was committed.            As a result, the inference that

Defendant wishes us to draw from the text messages in question

is, at best, an ambiguous and equivocal one.

       In   addition,    the   record    contains     substantial      additional

evidence of Defendant’s guilt.            For example, the record contains

the essentially undisputed testimony of Mr. May to the effect

that   Defendant   was    familiar      with    his   property   and    that   his

apartment had been broken into and his property taken within a

relatively short period of time after he and Defendant left the

premises.      In addition, Mr. Pryor identified Defendant as the

individual who broke into his motor vehicle and pointed a rifle

at him.     Although the strength of Mr. Pryor’s identification of
                                     -23-
Defendant waned between the time of the investigation and the

time of trial, that fact, standing alone, should not divert our

attention from the fact that the jury heard evidence that Mr.

Pryor was 90% certain that Defendant was the individual who had

broken into his vehicle and pointed an assault rifle at him

shortly after the commission of those crimes.                    In short, the

other     evidence     of    Defendant’s     guilt,      while    perhaps    not

overwhelming, was certainly strong.                As a result, given the

limited strength of the inferences that Defendant wishes us to

draw from the text messages at issue in this case coupled with

the     relative     strength   of   the    State’s      other    evidence    of

Defendant’s guilt, we are unable to say that Defendant has shown

that there is a reasonable possibility that the outcome at trial

would have been different had the evidence in question been

admitted at Defendant’s trial.             For that reason, we hold that

Defendant is not entitled to an award of appellate relief based

upon this challenge to the trial court’s judgments.

                             2. Jury Instructions

      Secondly, Defendant contends that the trial court erred by

refusing to instruct the jury in accordance with his requested

instruction relating to the manner in which it should consider

the   credibility     of    eyewitness   identification     evidence.        More

specifically,      Defendant    contends    that   the   trial    court   should
                                         -24-
have informed the jury about the results of recent research into

factors bearing upon the accuracy of such evidence during its

instructions to the jury.           Defendant is not entitled to relief

from    the    trial     court’s    judgments     on    the     basis     of    this

contention.

                            a. Standard of Review

       “It is the duty of the trial court to instruct the jury on

all substantial features of a case raised by the evidence.”

State v. Shaw, 322 N.C. 797, 803, 370 S.E.2d 546, 549 (1988).

For that reason, a “[f]ailure [by the trial court] to instruct

upon all substantive or material features of the crime charged

is error.”        State v. Bogle, 324 N.C. 190, 195, 376 S.E.2d 745,

748     (1989).        While     “[i]t    is    well   established        in    this

jurisdiction that the trial court is not required to give a

requested instruction in the exact language of the request,”

“when    the   request    is    correct    in   law    and    supported    by   the

evidence in the case, the court must give the instruction in

substance.”        State v. Green, 305 N.C. 463, 476-77, 290 S.E.2d

625, 633 (1982).          This Court reviews issues relating to the

substance of the trial court’s instructions using a                       de novo

standard of review.            State v. Osorio, 196 N.C. App. 458, 466,

675 S.E.2d 144, 149 (2009).

                   b. Applicable Background Information
                                         -25-
      In   2012,     the    New   Jersey    Supreme    Court     released        a    new

pattern    jury     instruction     addressing      eyewitness      identification

issues2 that was based upon its decision in State v. Henderson,

208 N.J. 208, 27 A.3d 872 (2011).               In Henderson, the defendant

contended “that the identification [of him as the culprit] was

not     reliable    because       the    officers    investigating         the       case

intervened     during       the     identification       process      and        unduly

influenced the eyewitness.”              208 N.J. at 217, 27 A.3d at 877.

During its consideration of Henderson, the New Jersey Supreme

Court     ordered    that    an   evidentiary       hearing    be   held    for       the

purpose of evaluating whether the “assumptions and other factors

reflected in the two-part” test set out in Manson v. Brathwaite,

432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), and the

five factors that must be considered in the course of applying

that test remained “valid and appropriate in light of recent

scientific and other evidence.”             Id. at 228, 27 A.3d at 884.                On

remand, the parties developed a record that included testimony

from “seven experts and [contained] more than 2,000 pages of

transcripts along with hundreds of scientific studies.”                          Id. at

217-18, 27 A.3d at 877.                 In reviewing the resulting special

master’s report, the New Jersey Supreme Court determined “that

      2
      Supreme Court Releases Eyewitness Identification Criteria
for       Criminal       Cases,       (19       July       2012),
http://www.judiciary.state.nj.us/pressrel/2012/pr120719a.htm.
                                         -26-
the scientific evidence considered at the remand hearing [was]

reliable”;      that,    “based     on   the    testimony       and     ample    record

developed at the hearing,” “a number of system and estimator

variables       can      affect      the        reliability        of        eyewitness

identifications”;        and that the “evidence offer[ed]                    convincing

proof that the current test for evaluating the trustworthiness

of eyewitness identifications should be revised.”                           Id. at 218,

283-85, 27 A.3d at 877, 916-17.

    After       making    these     preliminary        determinations,          the   New

Jersey    Supreme      Court   concluded       that,    “[t]o    evaluate       whether

there    is   evidence    of     suggestiveness        to   trigger     a    [pretrial]

hearing,      courts    should    consider      the    following      non-exhaustive

list of system variables,” including:

              1.   Blind Administration.   Was the lineup
              procedure    performed double-blind?     If
              double-blind testing was impractical, did
              the   police   use   a technique  like  the
              “envelope method” . . . to ensure that the
              administrator had no knowledge of where the
              suspect appeared in the photo array or
              lineup?

              2.   Pre-identification Instructions.    Did
              the administrator provide neutral, pre-
              identification instructions warning that the
              suspect may not be present in the lineup and
              that the witness should not feel compelled
              to make an identification?

              3.   Lineup Construction. Did the array or
              lineup contain only one suspect embedded
              among at least five innocent fillers?  Did
                                   -27-
           the suspect stand out from other members of
           the lineup?

           4.   Feedback.   Did the witness receive any
           information or feedback, about the suspect
           or the crime, before, during, or after the
           identification procedure?

           5.   Recording   Confidence.      Did   the
           administrator record the witness’ statement
           of   confidence    immediately  after   the
           identification, before the possibility of
           any confirmatory feedback?

           6.   Multiple Viewings.     Did the witness
           view the suspect more than once as part of
           multiple identification procedures?       Did
           police use the same fillers more than once?

           7.   Showups.    Did the police perform a
           showup more than two hours after an event?
           Did the police warn the witness that the
           suspect may not be the perpetrator and that
           the witness should not feel compelled to
           make an identification?

           8.   Private Actors.    Did law enforcement
           elicit from the eyewitness whether he or she
           had    spoken   with   anyone    about   the
           identification   and,   if  so,    what  was
           discussed?

           9.   Other Identifications Made.      Did the
           eyewitness initially make no choice or
           choose a different suspect or filler?

Id. at 289-91, 27 A.3d at 920-21.          In addition, the New Jersey

Supreme   Court   held   that,    in   order   to   determine   whether   an

identification    was    valid,   courts   should    consider   particular

“estimator” variables, including:

           1.   Stress.   Did the event involve a high
           level of stress?
                     -28-


2.   Weapon focus.     Was a visible weapon
used during a crime of short duration?

3.   Duration.     How much time           did   the
witness have to observe the event?

4.   Distance and Lighting.   How close were
the witness and perpetrator?   What were the
lighting conditions at the time?

5.   Witness   Characteristics.     Was  the
witness under the influence of alcohol or
drugs?   Was age a relevant factor under the
circumstances of the case?

6.   Characteristics of Perpetrator.   Was
the culprit wearing a disguise?    Did the
suspect have different facial features at
the time of the identification?

7.   Memory decay.    How much time elapsed
between the crime and the identification?

8.   Race-bias.    Does the case      involve      a
cross-racial identification?

Some   of  the   above  estimator   variables
overlap with the five reliability factors
outlined in Neil v. Biggers, supra, 409
U.S.at 199-200, 93 S. Ct. at 382, 34 L. Ed.
2d at 411, which we nonetheless repeat:

9.   Opportunity to view the criminal at the
time of the crime.

10.   Degree of attention.

11. Accuracy   of   prior    description    of   the
criminal.

12. Level of certainty demonstrated at the
confrontation.
                                         -29-
            Did the witness express high confidence at
            the   time  of   the  identification   before
            receiving any feedback or other information?

            13. The time between the crime and the
            confrontation. (Encompassed fully by “memory
            decay” above.)

Id. at 291-92, 27 A.3d at 921-22.                 After describing the manner

in which the trial courts should evaluate the admissibility of

eyewitness       identification        testimony,      the     New       Jersey      Supreme

Court    noted     that    “juries      will    continue       to    hear       about     all

relevant system and estimator variables at trial, through direct

and cross-examination and arguments by counsel”; directed that

“enhanced    instructions         be    given   to     guide    juries          about     the

various     factors       that    may    affect        the   reliability             of   an

identification      in    a   particular       case”    “[b]ased         on    the    record

developed on remand”; and created a process under which various

committees       would    draft    proposed      revisions          to    the     existing

pattern   instructions        relating     to    the    validity          of    eyewitness

identification evidence based upon the determinations set out in

the Henderson opinion for its consideration.                         Id. at 296, 298-

99, 27 A.3d at 924-26.3

 c. Defendant’s Requested Eyewitness Identification Instruction




     3
      The pattern instructions are available in full at
http://www.judiciary.state.nj.us/pressrel/2012/jury_instruction.
pdf.
                                               -30-
      The    eyewitness          identification          instruction           that    Defendant

requested the trial court to deliver in this case was eight

pages long and contained language that bore a strong resemblance

to   the    New       Jersey    instruction       developed         as     a   result       of    the

Henderson decision.              Among other things, Defendant requested the

trial court to instruct the jury that “there are risks of making

mistaken identifications” and that the jury should consider a

number      of    factors        in     evaluating        the       credibility         of       the

eyewitness        identification             testimony    presented            in    this    case,

including, among other things, the witness’ “opportunity to view

the person who committed the offense”; the witness’ “level of

stress,”     given        that    high        levels     of     stress         can    reduce       an

eyewitness’s          ability     to    recall;        “[t]he       amount      of    time       [the

witness had] to observe an event”; whether the “witness saw a

weapon during the incident,” since “the presence of a visible

weapon      may         reduce         the      reliability           of       a      subsequent

identification”; the distance between the witness and the person

being identified; the adequacy of the lighting conditions at the

time that the witness saw the perpetrator; the extent to which

the witness’ level of intoxication “affect[ed] the reliability

of the identification”;                 the possible use of a disguise;                           the

“accuracy        of    any     description       [that]       the    witness         gave    after

observing the incident and before identifying the perpetrator”;
                                        -31-
the degree to which the witness is confident about the accuracy

of his or her identification, subject to the caveat that an

“eyewitness’s confidence is generally an unreliable indicator of

accuracy”; the extent to which there have been “delays between

the commission of a crime and the time an[] identification is

made”; and, since “[r]esearch has shown that people may have

greater     difficulty      in    accurately    identifying      members    of     a

different race,” whether the witness and the alleged perpetrator

are of the same or different races.                In addition, Defendant’s

proposed instruction informed the jury that, in considering the

reliability    of     any   identification     procedure    described      in    the

record, the jury should consider whether any person stood “out

from other members of the lineup”; whether a minimum of “six

persons or photos” had been included in the lineup; whether the

witness viewed the suspect in multiple lineups, since “the risk

of mistaken identification is increased” “if a witness views an

innocent suspect in multiple identification procedures”; whether

the witness identified the suspect in a show-up, since “show ups

conducted     more    than       two   hours   after   an   event    present      a

heightened     risk    of    misidentification”;       whether      the    line-up

administrator knew the suspect’s identity; what was said to the

witness prior to viewing a lineup or photographic array; and

whether “police officers or witnesses to an event who are not
                                   -32-
law   enforcement   officials[]   signal    to   eyewitnesses   that   they

correctly identified the suspect.”

      d. Trial Court’s Eyewitness Identification Instruction

      The   trial    court   declined       to   give   the     eyewitness

identification      instruction    that     Defendant   requested      and,

instead, instructed the jury that:

                 You, ladies and gentlemen, are the sole
            judges    of   the   credibility    and  the
            believability of each and every witness,
            that is their worthiness of belief.      You
            must   decide  for   yourselves  whether  to
            believe the testimony of any witness, or you
            may believe all or any part or none of what
            a witness has said on the witness stand.

                 In determining whether to believe any
            witness, you should apply the same tests of
            truthfulness which you do apply in your own
            everyday affairs. As applied to this trial,
            these tests may include the opportunity of
            the witness to see, hear, know or remember
            the facts or occurrence about which the
            witness   testified;  the  manner   and  the
            appearance of the witness; any interest,
            bias or prejudice the witness may have; the
            apparent understanding and fairness of the
            witness; whether the witness’s testimony is
            reasonable and whether such testimony is
            consistent with other believable evidence in
            the case.

                 You are the sole judges of the weight
            to be given to any evidence.       By this I
            mean, if you decide that certain evidence is
            believable, you must then determine the
            importance of that evidence in light of all
            other believable evidence in the case.

                                  . . . .
                                        -33-
                I instruct you that the State has the
           burden of proving the identity of the
           defendant as the perpetrator of the crime
           charged beyond a reasonable doubt.       This
           means that you, the jury, must be satisfied
           beyond a reasonable doubt that the defendant
           was the perpetrator of the crime charged
           before you may return a verdict of guilty.

In addition, the trial court delivered the instruction relating

to the manner in which the jury should evaluate the validity of

photographic identification procedures as required by N.C. Gen.

Stat. § 15A-284.52(d)(3), with this instruction having included

a lengthy recitation of the criteria for a proper identification

procedure set out in N.C. Gen. Stat. § 15A-284.52(b).                  We do not

believe, given the record developed before the trial court in

this case and the content of the instructions actually delivered

by the trial court, that the trial court erred by declining to

deliver      Defendant’s        requested        eyewitness       identification

instruction.

                     e. Relevant Appellate Decisions

      The appellate courts in this jurisdiction have addressed

the   appropriateness          of     delivering     additional    instructions

concerning     the      credibility        of      eyewitness     identification

testimony on a number of occasions.                  In State v. Green, the

defendant requested       the trial       court to instruct the jury to

consider the mental state of the witness and the adequacy of the

witness’     eyesight     in        evaluating     the   credibility    of   the
                                          -34-
eyewitness identification testimony.                  305 N.C. at 475-76, 290

S.E.2d at 633.         In lieu of delivering the instruction requested

by    the    defendant,       the    trial   court    instructed       the    jury     in

accordance     with     the    pattern    jury    instructions     addressing         the

weight and credibility of the evidence and the necessity for the

jury to find beyond a reasonable doubt that the defendant was

the perpetrator of the crime charged before returning a verdict

of guilty.          Id. at 476, 290 S.E.2d at 633.               In reviewing the

defendant’s challenge on appeal to the trial court’s refusal to

deliver his requested instruction, the Supreme Court held that

the instructions delivered by the trial court, considered as a

whole, were “adequate[] [to] explain[] to the jury the various

factors     they     should    consider      in   evaluating     the   testimony       of

witnesses.”         Id. at 477, 290 S.E.2d at 633.

       Similarly, in State v. Dodd, 330 N.C. 747, 752, 412 S.E.2d

46,   49    (1992),     the    defendant      requested    the    trial       court    to

instruct the jury in such a manner as to “emphasize[] at length

the jury’s need to examine the testimony of the witnesses to

assess whether they had the opportunity to observe the alleged

crime,      their    ability    to    identify     the   perpetrator         given    the

length of time they had to observe, their mental and physical

conditions, and the lighting and other conditions that might

have affected their observation.”                  Although these instructions
                                            -35-
focused       on    a    somewhat    different      set     of    factors      than       were

addressed in the requested instruction at issue in Green, the

Supreme Court upheld the trial court’s decision to refrain from

delivering the instruction requested by the defendant and to

utilize the pattern jury instructions concerning the weight and

credibility of the evidence and the necessity for the jury to

find    beyond      a    reasonable      doubt     that    the    defendant         was    the

perpetrator        of    the     crime   charged    before       returning      a    guilty

verdict on the grounds that the instructions actually delivered

by    the   trial       court    adequately       informed       the    jury   about      the

factors that should be considered in evaluating the credibility

of eyewitness identification testimony.                     Id. at 753, 412 S.E.2d

at 49.

       An examination of the Supreme Court’s decisions in Green

and Dodd, coupled with our similar decision in State v. Summey,

109    N.C.    App.       518,    525-26,    428    S.E.2d       245,    249-50       (1993)

(holding that the trial court did not err by failing to instruct

the jury to consider certain additional factors in evaluating

the validity of eyewitness identification testimony),                               reveals

that this Court and the Supreme Court have clearly held that the

existing pattern jury instructions governing the manner in which

jurors      should       evaluate    the    weight        and    credibility        of    the

evidence      and       the   necessity     for    the    jury    to    find    that      the
                                      -36-
defendant    perpetrated     the   crime     charged   beyond     a   reasonable

doubt   sufficiently        address    the    issues    arising       from   the

presentation    of    eyewitness      identification        testimony.        In

recognition of these decisions, Defendant contends that, while

the weight, credibility, and identity instructions held to be

adequate in Green and Dodd are sufficient in cases, such as

those   involving    poor    lighting,     distance,   or   intoxication,     in

which the alleged deficiencies in an eyewitness identification

should be obvious, they do not suffice to provide jurors with

adequate    information     concerning     more   subtle    and   less   obvious

deficiencies in eyewitness identification evidence.                   In support

of this argument, Defendant relies upon the logic set out in

Henderson, in which the New Jersey Supreme Court stated, among

other things, that, while “[e]veryone knows, for instance, that

bad lighting conditions make it more difficult to perceive the

details of a person’s face,” other “findings are less obvious,”

with many people clearly believing that “witnesses to a highly

stressful, threatening event will ‘never forget a face’ because

of their intense focus at the time, the research suggests that

is not necessarily so.”        Henderson, 208 N.J. at 272, 27 A.3d at

910.    As a result, Defendant essentially argues that we should

treat Green, Dodd, and Summey as distinguishable based upon the
                                            -37-
nature of the factors addressed in the requested instructions

deemed unnecessary there.

    Assuming, without deciding, that the distinction upon which

Defendant       relies    is    a   valid    one,       a    point      that      we    need     not

address in this instance, we do not believe that the additional

instruction that Defendant requested in this case had adequate

evidentiary support.                In essence, the difference between the

instructions that the trial court delivered and the instruction

that Defendant requested is that the latter, unlike the former,

contained       numerous       factual      statements            about       the      impact     of

weapons, focus, stress, racial differences, and the degree of

certainty expressed by the witness in identifying the defendant

as the perpetrator.             For example, the effect of a decision to

deliver Defendant’s requested instruction would put the trial

courts in the position of making numerous factual statements

about     the    impact        of   various       factors         on        the     validity     of

eyewitness       identification        testimony,           such       as    assertions         that

“[t]he process of remembering consists of three stages”; that

“research has shown that there are risks of                                  making mistaken

identifications”;          that      “[r]esearch            has    revealed           that   human

memory is not like a video recording”; that “the presence of a

visible    weapon        may    reduce      the    reliability              of    a    subsequent

identification       if    the      crime    is    of       short      duration”;        that     an
                                    -38-
“eyewitness’s confidence is generally an unreliable indicator of

accuracy”; and that “[r]esearch has shown that people may have

greater    difficulty     in   accurately     identifying      members    of   a

different race.”         Although the record developed in Henderson

contained evidence relating to these issues, there is no such

evidence in the present record and Defendant has not argued,

much less established, that we are entitled to take judicial

notice of the information upon which the Henderson Court relied

in adopting the pattern instruction upon which Defendant relies.

West v. G. D. Reddick, Inc., 302 N.C. 201, 203, 274 S.E.2d 221,

223 (1981) (stating that, “generally a judge or a court may take

judicial notice of a fact which is either so notoriously true as

not to be the subject of reasonable dispute or is capable of

demonstration     by    readily   accessible      sources     of   indisputable

accuracy”).      As a result, a decision to reverse the trial court

for   failing     to    deliver   Defendant’s       requested       instruction

relating    to    the    credibility     of      eyewitness    identification

testimony would, in essence, put this Court in the position of

making     factual      determinations     and     exercising       rule-making

authority, neither of which we have the authority to do.                  Shera

v. N.C. State Univ. Veterinary Teaching Hosp., __ N.C. App. __,

__, 723 S.E.2d 352, 358 (2012) (holding that “[t]his Court is an

error-correcting court, not a law-making court”).                  As a result,
                                     -39-
we hold, in light of the previous decisions of the Supreme Court

and    this   Court,   by   which   we   are    bound;   the   absence     of   any

evidentiary support for the instruction that Defendant contends

that    the   trial    court   should    have    delivered;    and   the    well-

established limitations under which this Court operates, that

the trial court did not commit prejudicial error by failing to

give Defendant’s requested instruction concerning the manner in

which the jury should evaluate the credibility of the eyewitness

identification testimony presented for its consideration.

                               III. Conclusion

       Thus, for the reasons set forth above, we conclude that

neither of Defendant’s challenges to the trial court’s judgments

have merit.        As a result, the trial court’s judgments should,

and hereby do, remain undisturbed.

       NO ERROR.

       Chief Judge MARTIN and Judge MCCULLOUGH concur.
