              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                       No. COA18-885

                                 Filed: 21 May 2019

New Hanover County, Nos. 17 CRS 54155-56

STATE OF NORTH CAROLINA

             v.

KOLTON JAMES THOMPSON, Defendant.


      Appeal by defendant from judgments entered 5 April 2018 by Judge Richard

Kent Harrell in New Hanover County Superior Court. Heard in the Court of Appeals

27 March 2019.


      Attorney General Joshua H. Stein, by Assistant Attorney General John P.
      Barkley, for the State.

      James F. Hedgpeth, Jr., for defendant-appellant.


      ARROWOOD, Judge.


      Kolton James Thompson (“defendant”) appeals from judgments entered on his

convictions for assault with a deadly weapon with intent to kill inflicting serious

injury and possession of a firearm by a felon. For the reasons stated herein, we find

no error in part, and dismiss in part.

                                  I.       Background

      A New Hanover County Grand Jury indicted defendant for assault with a

deadly weapon with intent to kill inflicting serious injury and possession of a firearm
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                                   Opinion of the Court



by a felon on 31 July 2017. The matter came on for trial on 4 April 2018 in New

Hanover County Superior Court, the Honorable Richard Kent Harrell presiding. The

State’s evidence tended to show as follows.

      On 7 May 2017, the Wilmington Police Department responded to a report that

a shooting had taken place at a nightclub called the Sportsman’s Club. One of the

responding officers, Officer Wade Rummings, testified that “[a] lot of people” were

“hanging around the parking lot, walking out of the club[,]” but “[e]veryone said they

didn’t see or hear anything.”     However, when he canvassed the scene, Officer

Rummings “located a spent shell casing on the sidewalk leading north to the back

parking lot.” He also found a shell about five to ten feet from the shell casing.

Eventually, the officers were able to determine the victim, Angeleos Williams, had

been transported to the hospital to be treated for “a gunshot wound to his leg or

thigh.”

      The officers obtained a copy of the nightclub’s security video that recorded the

shooting. The video depicts “[a] subject[ ] walking . . . down the northwest side of the

building towards the front of the . . . business. And then, again, shortly thereafter

with the victim, walking alongside of the victim, and then the shooting occurred.”

Based on the video, Detective Lonnie Waddell (“Detective Waddell”) identified the

shooter as defendant. Detective Jeremy David Barsaleau (“Detective Barsaleau”) and

one other detective used this information to create a photo lineup that included



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                                  Opinion of the Court



defendant. The lineup was shown to the victim, who did not confirm the shooter’s

identity. However, Detective Barsaleau testified the victim’s demeanor “appeared [as

though] he wanted not to really identify the suspect, that -- that he knew who he was,

but has had personal dealings with a brother of his in the past that had been killed

because he had snitched and didn’t want to become part of that as well.”

      Based upon the videotape evidence, defendant was arrested on 9 June 2017.

After his arrest, he underwent a custodial interrogation with Detective Barsaleau, a

recording of which was entered into evidence at trial.        During the interview,

defendant acknowledged being present at the club the night of the shooting, but

denied shooting the victim. When Detective Barsaleau showed defendant still photos

of the surveillance video, he “dropped his head and basically said he was done.”

      The jury found defendant guilty of both charges. The trial court imposed an

active sentence of 110 to 114 months for the offense of assault with a deadly weapon

with intent to kill inflicting serious injury, and 19 to 32 months for the offense of

possession of a firearm by a felon, to run consecutively.

      Defendant appeals.

                                  II.    Discussion

      On appeal, defendant contends the trial court committed plain error by

allowing the State: (1) to present inadmissible character evidence; and (2) to elicit




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improper testimony and make improper comments during closing argument related

to defendant’s exercise of his right to remain silent.

                              A.      Character Evidence

      Defendant argues the trial court plainly erred by allowing the State to present

character evidence of criminal conduct that was inadmissible under Rule 404(b) of

the North Carolina Rules of Evidence, including evidence defendant had a history of

gang membership, narcotics activity, and witness intimidation. We review for plain

error because defendant did not object on this basis at trial.

                    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) (2019).

      “For error to constitute plain error, a defendant must demonstrate that a

fundamental error occurred at trial.” State v. Lawrence, 365 N.C. 506, 518, 723

S.E.2d 326, 334 (2012) (citation omitted). For our Court to find “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.” Id. (citations and internal quotation marks omitted); see also State v.

Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (explaining plain error arises




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when an error is “so basic, so prejudicial, so lacking in its elements that justice cannot

have been done[.]” (citation and quotation marks omitted)).

       Rule 404(b) of the North Carolina Rules of Evidence provides, in relevant part,

                [e]vidence of other crimes, wrongs, or acts is not admissible
                to prove the character of a person in order to show that he
                acted in conformity therewith. It may, however, be
                admissible for other purposes, such as proof of motive,
                opportunity, intent, preparation, plan, knowledge,
                identity, or absence of mistake, entrapment, or accident.

N.C. Gen. Stat. § 8C-1, Rule 404(b) (2017). Significantly, “the Rule 404(b) list of other

purposes is nonexclusive,” as “Rule 404(b) is a rule of inclusion of relevant evidence

with but one exception, that is, the evidence must be excluded if its only probative

value is to show that [the] defendant has the propensity or disposition to commit an

offense of the nature of the crime charged.” State v. Weldon, __ N.C. App. __, __, 811

S.E.2d 683, 689-90 (2018) (citations and internal quotation marks omitted) (emphasis

in original).

                                      i.     Narcotics

       Defendant first argues the trial court erred when it failed to exclude Detective

Waddell’s testimony that he knew defendant and “had . . . direct observations of [ ]

defendant as an interest in part of [his] job” “around the end of 2013, 2014 time

period” when he “was working vice/narcotics, and it was a narcotic-related case”

pursuant to Rule 404(b).




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                                  Opinion of the Court



      Defendant supports his argument with State v. Weldon. In Weldon, an officer

testified that he had seen the defendant when he “was dealing with a complaint about

[a] house on Blatent Court. It was a drug complaint that I got from the citizens.

While investigating that I saw the defendant come out of the house and get into the

vehicle.” Weldon, __ N.C. App. at __, 811 S.E.2d at 689 (alteration in original).

Although the Court determined the “challenged portions of [the officer’s] testimony

were relevant in that they established [his] familiarity with defendant’s

appearance[,]” it also determined that the inclusion of the detail that the officer was

investigating “a drug complaint” did not add to the reliability of the officer’s

identification of defendant, and was thus inadmissible under Rule 404(b). Id. at __,

811 S.E.2d at 690. Nonetheless, Weldon determined this error did not constitute

plain error because:

             [n]otwithstanding the character implications of the
             admission of testimony that defendant was seen exiting a
             house that was being investigated in response to “a drug
             complaint,” the State presented the testimony of three
             witnesses familiar with defendant who identified him as
             the individual shooting a weapon in the surveillance video.
             This testimony was strong enough to have supported the
             jury’s verdict on its own.

Id.

      Similarly, here, the challenged testimony was relevant to establish Detective

Waddell’s familiarity with defendant’s appearance, providing the basis for his

identification of defendant as the shooter in the surveillance video. However, the


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                                     Opinion of the Court



testimony also contains the detail that Detective Waddell encountered defendant

related to a narcotics case, which has negative character implications, but does not

add to the reliability of the detective’s identification of defendant.     Therefore,

although the testimony admitted tending to show Detective Waddell was familiar

with defendant’s appearance was admissible under Rule 404(b) as relevant for a

purpose other than to establish defendant’s character, the detail that Detective

Waddell encountered defendant related to a narcotics case constituted error.

      Even so, this error does not constitute plain error.     The State presented

surveillance video of an individual shooting the victim, and a witness familiar with

defendant, Detective Waddell, identified him as the individual in the video. As in

Weldon, this evidence is sufficient to support the jury’s verdict on its own. Thus,

defendant cannot establish plain error because he cannot show the error at issue had

a probable impact on the jury’s finding that the defendant was guilty.

                              ii.      Gang Membership

      Next, defendant argues the trial court plainly erred by admitting improper

character evidence of criminal conduct under Rule 404(b) of defendant’s purported

gang membership.       This argument challenges the following excerpt of Detective

Waddell’s testimony:

             [DETECTIVE WADDELL]: Immediately after I saw [the
             surveillance video], I -- I said, “That’s Kolton Thompson.”

             [THE STATE]: So it was immediate?


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             [DETECTIVE WADDELL]: Yes, sir.

             [THE STATE]: And -- and why was it so immediate for
             you?

             [DETECTIVE WADDELL]: Because the multiple times
             I’ve dealt with [defendant], of me knowing him, and it is
             my job to know him by who’s related to any type of gang
             activity in the city.

             [DEFENDANT]: Objection.

             THE COURT: Sustained.

As evidenced by the transcript, defendant objected to the statement regarding gang

activity at trial, and the trial court sustained the objection. Therefore, the trial court

corrected any error, and we need not address this allegation of error on appeal.

                              iii.     Witness Intimidation

      Defendant also challenges the following testimony of Detective Barsaleau,

which defendant argues constitutes inadmissible character evidence based on his

intimidation of the victim.

             [THE STATE]: What did you do after speaking with
             Detective Waddell and looking at that [surveillance] video?

             [DETECTIVE BARSALEAU]:            I put a photo lineup
             together and went out to the hospital with another
             detective, who wasn’t familiar with the case, showed the
             victim -- the other victim -- or, excuse me -- the other
             detective showed the victim the photo lineup out at the
             hospital.

             [THE STATE]: And after doing that, did you have any


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                                  Opinion of the Court



             success in further identifying --

             [DETECTIVE BARSALEAU]: No --

             [THE STATE]: -- who the shooter was?

             [DETECTIVE BARSALEAU]: -- I was not.

             [THE STATE]: Do -- how would you describe Mr. Williams’
             demeanor as you were interacting with him?

             [DETECTIVE BARSALEAU]: He appeared he wanted not
             to really identify the suspect, that -- that he knew who he
             was, but has had personal dealings with a brother of his in
             the past that had been killed because he had snitched and
             didn’t want to become part of that as well.

             [THE STATE]: On May 23rd, did you again meet with the
             victim and kind of run into the same behavior that you had
             done -- done before?

             [DETECTIVE BARSALEAU]: Yes, sir.

      Assuming arguendo this testimony suggested defendant intimidated the

victim, the testimony was not admitted in violation of Rule 404(b) because it was

relevant as an explanation for why the victim did not identify the shooter, and for

why the victim did not testify at trial. Therefore, it was admissible for a purpose

other than its negative character implications. As a result, we hold the trial court

did not plainly err by admitting this testimony into evidence.

                            B.     Right to Remain Silent




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                                    Opinion of the Court



       Defendant argues the trial court plainly erred by allowing the prosecutor: (1)

to elicit improper testimony, and (2) to make improper comments during closing

argument related to defendant’s exercise of his right to remain silent.

                        i.     Detective Barsaleau’s Testimony

       We first address defendant’s allegation that the trial court plainly erred by

allowing the prosecutor to elicit improper testimony from Detective Barsaleau

concerning defendant’s constitutional right to remain silent.

       Defendant did not object to the admission of this testimony; therefore, he did

not preserve a constitutional question which would have entitled him to have the

error examined under the constitutional harmless beyond a reasonable doubt

framework. However, a defendant who argues that testimony to which he did not

object violated his constitutional rights is entitled to have the admission of this

testimony reviewed for plain error. State v. Moore, 366 N.C. 100, 105-106, 726 S.E.2d

168, 173 (2012) (citing N.C.R. App. P. 10(a)(4) (“In criminal cases, an issue that was

not preserved by objection . . . 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.”)) (citations omitted).

       To establish the trial court plainly erred, 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



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error had a probable impact on the jury’s finding that the defendant was guilty.”

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

internal quotation marks omitted). “In order to ensure plain error is reserved for the

exceptional case, . . . plain error requires a defendant to show that the prejudicial

error was one that seriously affect[s] the fairness, integrity, or public reputation of

judicial proceedings.” State v. Grice, 367 N.C. 753, 764, 767 S.E.2d 312, 321 (2015)

(citation and internal quotation marks omitted).

       We afford the right to silence, enshrined in the Fifth Amendment of the

Constitution of the United States, a “liberal construction in favor of the right it was

intended to secure.” Moore, 366 N.C. at 105, 726 S.E.2d at 172-73 (citations and

internal quotation marks omitted). Thus, “[e]xcept in certain limited circumstances,

any comment upon the exercise of [the right to remain silent], nothing else appearing,

[is] impermissible. An improper adverse inference of guilt from a defendant’s exercise

of his right to remain silent cannot be made, regardless of who comments on it.” Id.

at 105, 726 S.E.2d at 172 (citations and internal quotation marks omitted)

(alterations in original).

       Detective Barsaleau testified as follows concerning his interview with

defendant:

              [THE STATE]: Can you describe after you read him his
              rights what you said and how he answered?

              [DETECTIVE BARSALEAU]: More or less he said that,


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             yes, he was at the Sportsman’s Club that night for a
             birthday party of a friend, but denied to the shooting. I told
             him that we had the whole thing on video from the
             Sportsman’s Club. He asked to see the video. I told him I -
             - I couldn’t show him the video, but to hang tight where I
             came back with some still shots from the video. I showed
             him the still shot from the video, and he just dropped his
             head and basically said he was done.

             ....

             [THE STATE]: So these were the [still photos] where you
             said after you showed them to the defendant, he ultimately
             put his head down and said that he was done talking?

             [DETECTIVE BARSALEAU]: Yes, sir.

             [THE STATE]:        Your Honor, permission to publish
             defendant’s interview to the jury.

             ....

             THE COURT: You can publish that to the jury.

The interview of the defendant that was published to the jury showed that, after

Detective Barsaleau read defendant his Miranda rights and showed him the

photographs, defendant twice stated, “I don’t want to talk” while being interrogated.

      Assuming arguendo the prosecutor elicited improper evidence concerning

defendant’s invocation of his right to silence, the testimony did not constitute plain

error. To assess plain error in this context, our Court considers the following factors,

none of which are determinative:

             (1) whether the prosecutor directly elicited the improper
             testimony or explicitly made an improper comment; (2)


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                                  Opinion of the Court



             whether the record contained substantial evidence of the
             defendant’s guilt; (3) whether the defendant’s credibility
             was successfully attacked in other ways in addition to the
             impermissible comment upon his or her decision to exercise
             his or her constitutional right to remain silent; and (4) the
             extent to which the prosecutor emphasized or capitalized
             on the improper testimony by, for example, engaging in
             extensive cross-examination concerning the defendant’s
             post-arrest silence or attacking the defendant’s credibility
             in closing argument based on his decision to refrain from
             making a statement to investigating officers.

State v. Richardson, 226 N.C. App. 292, 302, 741 S.E.2d 434, 442 (2013) (footnote

omitted).

      Here, the prosecutor directly elicited the testimony. Further, the prosecutor

impermissibly used this evidence in closing argument to attack defendant’s

credibility based on his decision to invoke his constitutional right to silence.

Defendant’s credibility was not otherwise successfully attacked. These factors weigh

in favor of a plain error determination; however, we must also consider the

substantial evidence of defendant’s guilt in the record. See id.

      In the instant case, the evidence tends to show defendant acknowledged being

at the club the night of the shooting. Law enforcement obtained a copy of security

video footage from the club that showed the shooting take place.         As Detective

Barsaleau testified, the video showed: “[a] subject[ ] walking . . . down the northwest

side of the building towards the front of the . . . business. And then, again, shortly

thereafter with the victim, walking alongside of the victim, and then the shooting



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                                     Opinion of the Court



occurred.” Detective Waddell was able to immediately identify the subject in the

video as defendant. Both the video and still shots from the video were admitted into

evidence.   The strength of this evidence weighs strongly against a plain error

determination.

      In weighing the Richardson factors it is the duty of this Court to weigh all the

factors. No one of the four Richardson considerations is determinative. In addition,

the fact that three factors support the defendant and only one factor supports the

State is also not determinative. Where, as in the situation we have here, there is

such strong uncontroverted evidence against defendant, the strength of the evidence

may still support a determination of no plain error even though all the other factors

weigh in defendant’s favor. After an examination of the entire record, we hold that,

given the video surveillance evidence described herein, the error alleged did not

constitute plain error.

                              ii.       Closing Argument

      We now turn to defendant’s argument that the trial court plainly erred by

allowing the prosecutor to make improper comments during closing argument related

to defendant’s exercise of his right to remain silent. Specifically, the prosecutor

referenced defendant’s decision to remain silent after seeing the stills of the

surveillance video, and asked the jury,

             The defendant puts his head down after that, didn’t he? He
             put his head down on the table because he knew he was


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                                  Opinion of the Court



             done. He even said, “I’m done talking.”

             At that point, the game was over for him. What does he do
             after that? Now, he has a perfect right not to say anything,
             not to be interviewed, not to testify, and every defendant
             enjoys that right in our court system.

             But if you were in an interview room and a detective was
             accusing you of committing this shooting and you didn’t do
             it, how would you react? Would you put your head down
             and go to sleep?

However, we are unable to review this issue on appeal.

      Our Supreme Court has held that constitutional arguments regarding closing

arguments which are not objected to at trial are waived. State v. Phillips, 365 N.C.

103, 135, 711 S.E.2d 122, 145 (2011). Although the Supreme Court declined to review

the constitutional argument in Phillips because of defendant’s failure to object, the

Court did review for violations of N.C. Gen. Stat. § 15A-1230 (2017) in this context.

Id. Here, unlike the defendant in Phillips, defendant did not make an argument

under N.C. Gen. Stat. § 15A-1230 on appeal. Accordingly, we cannot review on this

basis. Thus, defendant failed to preserve this argument for appellate review. We

decline to review this argument for the first time on appeal.

                                  III.   Conclusion

      For the forgoing reasons, we find no error in part, and dismiss defendant’s

argument that the trial court plainly erred by allowing the prosecutor to make




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                               Opinion of the Court



improper comments on his exercise of his right to remain silent during closing

argument.

     NO ERROR IN PART; DISMISSED IN PART.

     Judges BRYANT and DILLON concur.




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