                                 NO. COA13-1081

                        NORTH CAROLINA COURT OF APPEALS

                             Filed:     3 June 2014

STATE OF NORTH CAROLINA

    v.                                       Wake County
                                             Nos. 12 CRS 215921, 215922
ANTONIO NEAL GRAY



    Appeal by defendant from judgments entered 5 April 2013 by

Judge G. Wayne Abernathy in Wake County Superior Court.                       Heard

in the Court of Appeals 19 February 2014.


    Attorney General Roy Cooper, by Assistant Attorney General
    Richard G. Sowerby, for the State.

    McCotter Ashton, P.A.,            by    Rudolph      A.   Ashton,      III,   for
    defendant-appellant.


    McCULLOUGH, Judge.


    Antonio      Neal     Gray   (“defendant”)         appeals   from      judgments

entered   upon    his     convictions      for   attempted       robbery    with    a

dangerous weapon, conspiracy to commit robbery with a dangerous

weapon, and first degree burglary.               For the following reasons,

we find no error.

                                 I. Background

    On    16     July    2012,   defendant       was    arrested    pursuant       to

warrants finding probable cause to believe defendant committed
                                      -2-
the following offenses on 11 July 2012:          two counts of attempted

robbery with a dangerous weapon, one count of conspiracy to

commit robbery with a dangerous weapon, and one count of first

degree burglary.      On 11 September 2012 a Wake County Grand Jury

indicted defendant on the charges in case numbers 12 CRS 215921

and 215922.    Defendant pled not guilty and his cases came on for

trial in Wake County Superior Court before the Honorable G.

Wayne Abernathy on 3 April 2013.

       At trial the State’s evidence tended to show the following:

Isai    Ntirenganya   was   a   car   dealer   and   a   club   promoter   in

Raleigh.    Through his role as a promoter, Mr. Ntirenganya met

Alneisa McKoy, who expressed interest in doing some promotion

work.    On the evening of 11 July 2012, Mr. Ntirenganya met up

with Ms. McKoy and her friend, Allison Smith, at a sweepstakes

parlor and took them to his friend’s home in a trailer park off

New Bern Avenue to talk about promotion work.            Mr. Ntirenganya’s

friend, Kory Clark, was the only one home at the time.

       Mr. Ntirenganya and Mr. Clark both testified that they and

the two women were just hanging out, talking about promotion

opportunities, drinking, and smoking marijuana.            Mr. Ntirenganya

and Mr. Clark recalled that during this time, Ms. McKoy and Ms.

Smith were on their phones texting, were giggling and whispering
                                        -3-
to each other, and were back and forth to the bathroom numerous

times.    Mr. Clark found their behavior suspicious.

    At some point, Mr. Clark left the trailer to buy beer and

cigarettes from a nearby convenience store.                   The women wanted to

go with Mr. Clark and leave Mr. Ntirenganya by himself, but Mr.

Clark    left   without      them.     When     Mr.     Clark    returned      several

minutes later, he locked the door behind him.

    Shortly thereafter, Mr. Ntirenganya and Ms. McKoy went to a

back room in the trailer to talk.               At that time, two men burst

through the door that Mr. Clark had locked upon his return from

the convenience store.          Mr. Ntirenganya testified that someone

jumped    on    his   back    and    they     tumbled    to     the   floor.      Mr.

Ntirenganya recalled someone instructing him to “[g]et on the

ground[]” and a female screaming “[s]omebody got a gun.”                          The

man that jumped on Mr. Ntirenganya’s back was smaller than Mr.

Ntirenganya and Mr. Ntirenganya was able to wrestle away from

him and flee the trailer.

    Mr. Clark testified that he heard the commotion and fled

the trailer through another door.                Mr. Clark did not see the

intruders.

    Both Mr. Ntirenganya and Mr. Clark indicated that nothing

appeared to be missing from the trailer following the attempted
                                      -4-
robbery.     Mr. Ntirenganya’s wallet and keys, which were on top

of cabinets near the door, appeared undisturbed.

       In addition to Mr. Ntirenganya and Mr. Clark, Ms. Smith and

Ms. McKoy testified at trial.               Their testimony revealed that

they     planned   to   rob    Mr.   Ntirenganya   with   James   Diaz   and

defendant, who they identified as the intruders.             At the time,

Ms. Smith was in a relationship with Mr. Diaz and Ms. McKoy was

in a relationship with defendant.              Although defendant did not

initially want to take part in the robbery, he went along with

the plan.     Ms. Smith and Ms. McKoy each described the plan in

detail and testified that they were communicating with Mr. Diaz

and defendant through text messages to give directions to the

trailer, to inform them how many people were in the trailer, and

to let them know that the door to the trailer was unlocked.

These text message conversations were admitted into evidence at

trial.

       At the close of the State’s evidence, defendant moved to

dismiss the charges.          The trial court allowed defendant’s motion

as to count two in case number 12 CRS 215921, attempted robbery

with a dangerous weapon from the person of Mr. Clark, and denied

the motion as to the remaining charges.             Defendant did not put

on any evidence and the case was given to the jury.
                                           -5-
    On      5   April    2013,   the       jury    returned      verdicts      finding

defendant guilty of attempted robbery with a dangerous weapon,

conspiracy to commit robbery with a dangerous weapon, and first

degree    burglary.        The   trial       court      then    entered     judgments

sentencing defendant to a term of 23 to 40 months for conspiracy

to commit robbery with a dangerous weapon and a consecutive term

of 59 to 83 months imprisonment for attempted robbery with a

dangerous       weapon   and     first       degree      burglary,      which     were

consolidated for judgment.             Defendant gave notice of appeal in

open court.

                                 II. Discussion

    Defendant       raises     the    following       three    issues     on   appeal:

whether   the    trial   court       (1)   erred   in    denying    his    motion   to

continue; (2) plainly erred in allowing testimony of a detective

concerning       his     opinions,          decisions,         observations,        and

interpretation of text messages; and (3) erred in allowing the

State to introduce text messages from Mr. Diaz’s cell phone.                        We

address each issue in order.

                               Motion to Continue

    The trial court granted defense counsel a twenty-four hour

continuance on 2 April 2013.                Then, as the State prepared to

call defendant’s case for trial on 3 April 2013, defense counsel
                                           -6-
renewed his motion to continue asserting he needed additional

time    to    prepare      for   trial    following       the    late   receipt    of   a

statement by Ms. McKoy implicating Mr. Diaz as the possessor of

the gun during the attempted robbery.                       Specifically, defense

counsel argued he prepared for trial as if defendant possessed

the gun during the attempted robbery and he needed extra time to

prepare the defense following receipt of Ms. McKoy’s statement,

which defense counsel claimed changed the theory of the State’s

case against defendant to acting in concert.

       The trial court rejected defendant’s argument and denied

the    motion       to   continue.       The   trial   court     reasoned   that    Ms.

McKoy’s statement was duplicative, did not introduce any new

actors       or    witnesses,     and    did   not     significantly      change    the

State’s case against defendant.                The trial court explained that,

under the law, it did not matter who possessed the gun; if one

of    the    perpetrators        possessed     a   gun,    all    perpetrators     were

guilty to the same extent.               Additionally, the trial court noted

it had already granted defendant a twenty-four hour continuance.

       Now on appeal, defendant contends the trial court erred in

denying his motion to continue.                We disagree.

       As this Court has recognized,

                  “Ordinarily,     a   motion  to          continue is
                  addressed to     the discretion         of the trial
                               -7-
          court, and absent a gross abuse of that
          discretion, the trial court's ruling is not
          subject to review.”      State v. Taylor, 354
          N.C. 28, 33, 550 S.E.2d 141, 146 (2001)
          (citing State v. Searles, 304 N.C. 149, 153,
          282 S.E.2d 430, 433 (1981)). “‘Continuances
          are not favored and the party seeking a
          continuance   has   the    burden of   showing
          sufficient grounds for it.          The chief
          consideration is whether granting or denying
          a   continuance   will    further  substantial
          justice.’”   In re Humphrey, 156 N.C. App.
          533, 538, 577 S.E.2d 421, 425 (2003)
          (quoting Doby v. Lowder, 72 N.C. App. 22,
          24, 324 S.E.2d 26, 28 (1984)). “However, if
          ‘a motion to continue is based on a
          constitutional    right,    then  the   motion
          presents a question of law which is fully
          reviewable on appeal.’” State v. Jones, 342
          N.C. 523, 530–31, 467 S.E.2d 12, 17 (1996)
          (quoting State v. Covington, 317 N.C. 127,
          129, 343 S.E.2d 524, 526 (1986)).

In re D.Q.W., 167 N.C. App. 38, 40-41, 604 S.E.2d 675, 676-77

(2004).

          “To establish that the trial court's failure
          to   give    additional    time   to    prepare
          constituted    a   constitutional    violation,
          defendant must show ‘how his case would have
          been better prepared had the continuance
          been granted or that he was materially
          prejudiced by the denial of his motion.’
          ‘[A] motion for a continuance should be
          supported by an affidavit showing sufficient
          grounds   for    the  continuance.’       ‘“[A]
          postponement is proper if there is a belief
          that material evidence will come to light
          and such belief is reasonably grounded on
          known facts.”’”

Id. at 41, 604 S.E.2d at 677 (quoting State v. McCullers, 341

N.C. 19, 31–32, 460 S.E.2d 163, 170 (1995) (quoting State v.
                                 -8-
Covington, 317 N.C. 127, 130, 343 S.E.2d 524, 526 (1986); State

v. Kuplen, 316 N.C. 387, 403, 343 S.E.2d 793, 802 (1986); and

State v. Tolley, 290 N.C. 349, 357, 226 S.E.2d 353, 362 (1976)

(other citation omitted))).

     In support of his argument that the trial court erred,

defendant cites two cases, State v. Smith, 178 N.C. App. 134,

631 S.E.2d 34 (2006) and State v. Pickard, 107 N.C. App. 94, 418

S.E.2d 690 (1992), in which trial courts denied the respective

defendants’ motions for continuances.         This Court subsequently

affirmed the trial courts’ decisions in both of those cases.

Smith, 178 N.C. App. at 142-44, 631 S.E.2d at 39-41; Pickard,

107 N.C. App. at 100-01, 418 S.E.2d at 693-94.          Defendant then

argues a different result is warranted in this case because it

is   distinguishable   from   Smith    and   Pickard.    Specifically,

defendant repeats the argument made before the trial court that,

while Ms. McKoy’s statement is less inculpatory of defendant,

the statement was prejudicial to defendant because it changed

the theory of the case against him at the eleventh hour.

     Although the present case may be distinguished from Smith

and Pickard, we are not convinced that the trial court erred in

denying defendant’s motion to continue.       We agree with the trial

court that Ms. McKoy’s statement did not significantly change
                                             -9-
the case to defendant’s prejudice so as to require additional

time     to     prepare       for     trial      beyond        the     twenty-four       hour

continuance already granted by the trial court.                              Thus, we hold

the     trial       court    did     not    abuse    its       discretion      in     denying

defendant’s motion to continue.

       To     the    extent    defendant      argues       the    denial      violated    his

constitutional rights, defendant was not prejudiced.                              As argued

by the State, there is nothing in the record tending to show

that the State implied it was proceeding to trial solely on the

theory      that     defendant       possessed      the    gun.        In    fact,    defense

counsel should not have been surprised by Ms. McKoy’s statement.

During      defendant’s       bond    hearing       on    11   February       2013,    months

before      trial,      the        State    summarized         the     evidence       against

defendant.          In that summary, the State indicated that Mr. Diaz

possessed the gun during the attempted robbery.                             Defense counsel

was present at the hearing.

       Moreover, there was contradictory testimony elicited by the

State    at     trial       from    which    the     jury      could    have     determined

defendant possessed the gun during the attempted robbery.                                 Ms.

Smith testified that defendant possessed the gun while Ms. McKoy

testified that Mr. Diaz entered the trailer with the gun.

                                    Opinion Testimony
                                          -10-
       At trial, the State called Detective Snowden of the Raleigh

Police     Department     to    testify.           The    State       then     questioned

Detective Snowden about text messages between the perpetrators

on   the   night    of    the   attempted        robbery.         Detective       Snowden

testified about three separate text message conversations:                               a

conversation       between     Ms.   McKoy     and   defendant,        a     conversation

between Mr. Diaz and Ms. Smith, and a conversation between Mr.

Diaz and Ms. McKoy.

       When questioned about the text messages between Ms. McKoy

and defendant, Detective Snowden stated “it was clear . . . that

[Ms. McKoy] had assisted [defendant] with the plan and execution

of the attempted robbery.                And it looked like directions were

given to [defendant’s] cell phone and allowing access to the

residence.”        Detective Snowden also testified that the address

provided      to   defendant        by   Ms.     McKoy    in    the     text     messages

corresponded to the trailer where the attempted robbery took

place and it appeared defendant was asking Ms. McKoy if the door

to the trailer was open.             When questioned about his observations

of the text messages between Mr. Diaz and Ms. Smith, Detective

Snowden responded that they appeared to illustrate “the actual

time   line    [sic]     of   the    attempted       robbery,     along       with,   [he]

guess[ed], the escape of Ms. Smith.”                     Detective Snowden stated
                                       -11-
“[i]t was clear that [Ms. Smith] had helped her boyfriend, Mr.

Diaz,   plan    and    execute   the    attempted       robbery.”      Detective

Snowden   further      indicated      that    defendant’s     and   Ms.    McKoy’s

nicknames    appeared    in    the    text    message      conversation.      When

questioned     about   his    observations      of   the    third   text   message

conversation between Ms. McKoy and Mr. Diaz, Detective Snowden

stated, “it appeared that directions were being given, the doors

were being asked to be unlocked, and then it seemed like they

were trying to find Ms. Smith.”

    Detective      Snowden     then    described     his    overall   impression

from the text messages as follows:

            Just looking at the text messages, again,
            like I said, it kind of gave a good timeline
            of what had occurred, that a robbery was
            being planned with Mr. Diaz and [defendant]
            involved, and that the girls were part of
            that robbery, and they were supposed to open
            a door.    They were telling them how much
            money was there, how many people -- or how
            many victims might be there.

            Just -- all together, it just -- it kind of
            put everything in place as far as a robbery
            was going to be done, but, as described by
            the victims, it was botched, and nothing was
            gotten.  And it seemed like, once Ms. Smith
            got lost, it also showed you they were
            trying to find her, you know, and direct her
            how to get to a certain spot to be picked
            up.

    Defendant did not object to Detective Snowden’s testimony

at trial.       Yet, now on appeal, defendant contends the trial
                                  -12-
court plainly erred in allowing Detective Snowden to testify

regarding his opinions and observations of the text messages.

We disagree.

      “In criminal cases, an issue that was not preserved by

objection noted at trial and that is not deemed preserved by

rule or law without any such action nevertheless may be made the

basis of an issue presented on appeal when the judicial action

questioned is specifically and distinctly contended to amount to

plain error.”    N.C. R. App. P. 10(a)(4) (2014).

             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 affect[s] 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 and quotation marks omitted).

      Regardless of whether or not the admission of Detective

Snowden’s testimony concerning his opinion and observations from

the   text    messages   was   error,    given   the   overwhelming   and

uncontroverted evidence of defendant’s guilt in the record, the
                                       -13-
alleged error does not amount to plain error requiring a new

trial.

                                Text Messages

    As referenced, at trial, the State introduced photographs

of text messages between Mr. Diaz and Ms. Smith and between Mr.

Diaz and Ms. McKoy that were found on Mr. Diaz’s cell phone

following his arrest.     Defendant did not initially object to the

admission of the photographs of the text messages and they were

admitted into evidence as the State’s exhibits ten and twelve.

At the request of the State, Detective Snowden read the text

messages   photographed    in    exhibit       ten   aloud    in   open    court.

Defendant did not object.          However, immediately after exhibit

twelve   was   admitted   and    the    State    requested     that   Detective

Snowden read the photographed text messages between Mr. Diaz and

Ms. McKoy in open court, defense counsel asked to be heard and

objected to the admission of exhibit twelve based on lack of

authentication.      After      hearing       arguments,     the   trial    court

overruled defendant’s objection.

    Defendant now contends the trial court erred in allowing

the photographs of the text messages between Mr. Diaz and the

two women to be admitted into evidence.
                                          -14-
       At the outset, we note defendant’s objection was untimely

as to the admission of exhibit ten.                     Therefore, defendant has

not    preserved   the     issue    for       appeal.     See   N.C.    R.     App.    P.

10(a)(1) (2014) (“In order to preserve an issue for appellate

review, a party must have presented to the trial court a timely

request, objection, or motion, stating the specific grounds for

the ruling the party desired the court to make if the specific

grounds were not apparent from the context.”).                         Nevertheless,

the following analysis for exhibit twelve applies equally to

exhibit ten.

       In   support   of    his    argument       that    there   was    inadequate

authentication, defendant cites State v. Taylor, 178 N.C. App.

395, 632 S.E.2d 218 (2006).                   In Taylor, the State sought to

admit printouts or transcripts of text messages sent to and from

the victim’s cell phone.            Id. at 412, 632 S.E.2d at 230.                     In

order    to   authenticate        the    text    messages,      the    State    called

employees of the cell phone company to testify concerning how

the company kept records of its customers’ text messages and how

they are retrieved.         Id. at 413, 632 S.E.2d at 230.               This court

held    the   combination     of        the    employee’s    testimony       and      the

circumstantial evidence within the text messages was sufficient

to authenticate the evidence.             Id.
                                          -15-
       Defendant now argues the same type of testimony was needed

in    this    case    to     authenticate     the   photographs       of     the   text

messages admitted as exhibit twelve.                We disagree.

       The North Carolina Rules of Evidence provide that “[t]he

requirement of authentication or identification as a condition

precedent to admissibility 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) (2013).

The    rule    further       provides   a    nonexclusive      list    of     ways    to

authenticate evidence, including “testimony of a witness with

knowledge ‘that a matter is what it is claimed to be.’”                        Taylor,

178 N.C. App. at 413, 632 S.E.2d at 230 (quoting N.C. Gen. Stat.

§ 8C-1, Rule 901(b)(1)).

       In    this    case,    Detective     Snowden    testified      that    he     took

pictures      of     text    messages   on    Mr.     Diaz’s   cell    phone       while

searching the phone incident to Mr. Diaz’s arrest.                           Detective

Snowden then identified the photographs in exhibit twelve as

screen shots of Mr. Diaz’s cell phone and testified that they

were in substantially the same condition as when he obtained

them.       Ms. McKoy, with whom Mr. Diaz was communicating in the

text messages, also testified to the authenticity of exhibit

twelve.       Specifically, Ms. McKoy testified that she, Mr. Diaz,
                                     -16-
Ms. Smith, and defendant had planned to rob Mr. Ntirenganya.

The plan was that she and Ms. Smith would meet up with Mr.

Ntirenganya and communicate with Mr. Diaz and defendant through

text messages to let them know what was going on.                      Ms. McKoy

testified that she sent text messages to Mr. Diaz and defendant

telling them where the trailer was located, how many people were

in the trailer, and that the door was open.                       Ms. McKoy then

identified     exhibit   twelve    as   the    text     message     conversation

between her and Mr. Diaz.            Ms. McKoy further stated exhibit

twelve   was   an   accurate    representation        of    her    text   message

conversation with Mr. Diaz.

    We hold the testimony in this case by Detective Snowden,

who recovered the text messages from Mr. Diaz’s cell phone, and

Ms. McKoy, with whom Mr. Diaz was communicating in the text

messages     illustrated   in     exhibit     twelve,      was    sufficient   to

authenticate exhibit twelve.         Thus, the trial court did not err

in admitting the photographs into evidence.

                               III. Conclusion

    For the reasons discussed above, the trial court did not

error in denying defendant’s motion to continue or in allowing

the photographs of the text messages into evidence at trial.
                              -17-
Additionally, the trial court did not plainly error in allowing

the testimony of Detective Snowden.

    No Error.

    Judges HUNTER, Robert C., and GEER concur.
