An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-474
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 7 January 2014


STATE OF NORTH CAROLINA

      v.                                      Buncombe County
                                              Nos. 12 CRS 112
                                                   11 CRS 63583
                                                   11 CRS 63582
DERRICK EDDINGS, JR.



      Appeal by Defendant from judgments entered 8 June 2012 by

Judge Laura J. Bridges and order entered 5 December 2012 by

Judge Gary M. Gavenus in Buncombe County Superior Court.                      Heard

in the Court of Appeals 8 October 2013.


      Attorney General Roy Cooper, by Assistant Attorney General
      John F. Oates, Jr., for the State.

      Anna S. Lucas, for Defendant.


      DILLON, Judge.


      Derrick Eddings, Jr., (“Defendant”) appeals from judgments

entered     based     on    jury    verdicts      convicting      Defendant       of

possession of cocaine with intent to sell or deliver, possession

of drug paraphernalia, and trafficking in cocaine.                      Defendant

also appeals from the trial court’s order denying his post-trial
                                           -2-
motion for appropriate relief.                  We conclude Defendant had a fair

trial, free from error, and we affirm the trial court’s denial

of Defendant’s motion for appropriate relief.

      The evidence of record tends to show the following:                             On 11

November       2011,   officers       of   the        Asheville       Police    Department

conducted surveillance in a neighborhood in the city after an

informant gave the police department a tip about drug activity

at one house in the neighborhood.                      While they were conducting

surveillance, Defendant came out of the house, got into his car,

and drove away.          Officer Brandon Morgan followed Defendant and

noticed    a    person    in   the    passenger            seat.   The    passenger       was

holding a black duffel bag and was not wearing his seatbelt.

Because    Officer       Morgan      was   not        in    uniform     and    was   in   an

undercover vehicle, he radioed Sergeant Geoffrey Rollins to stop

the vehicle because the passenger was not wearing his seatbelt.

Sergeant Rollins got behind Defendant’s vehicle and initiated

the traffic stop.

      Sergeant     Rollins      spoke      to    the       passenger,    who    identified

himself as Keeve Crooks (“Crooks”), and who was holding a black

duffel bag and appeared very nervous.                        Defendant consented to a

search of the vehicle, and officers discovered crack cocaine in

the   black     duffel    bag     Crooks        was    holding.          Crooks      claimed
                                        -3-
ownership of the crack cocaine discovered in the duffel bag.

Defendant was not charged and was allowed to leave.

    Officer Morgan and Sergeant Rollins left the scene of the

traffic    stop   and     traveled   back     to    the    house   they   had    been

surveilling.      Defendant’s family members were at the house when

officers    arrived.         The     owner    of     the     house,    Defendant’s

grandmother, consented to the police searching the bedroom that

Defendant and      his    uncle shared.            Officer Morgan found crack

cocaine in three individual packages zipped inside a pillow,

which was located between a futon and a computer stand.

    Defendant       was     indicted    on     charges       of    trafficking    in

cocaine, possession with intent to sell or deliver cocaine, and

possession of drug paraphernalia.              Defendant’s case came on for

trial during the 5 June 2012 criminal session of Buncombe County

Superior Court.

    At trial, Ms. Collin Andrews, a forensic chemist with the

State Bureau of Investigation, gave expert testimony as to the

identity of the substance discovered in the bedroom, testifying

that the weight of the substance was forty-seven grams and that

the substance was cocaine base.

    In     the    trial    court’s     initial      charge    to    the   jury,    it

instructed the jury on the definition of reasonable doubt as
                                              -4-
follows:        “A reasonable doubt is a doubt based on reason and

common sense arising out of some or all of the evidence that has

been presented, or lack or insufficiency of the evidence as the

case may be. Proof beyond a reasonable doubt is proof that fully

satisfies or entirely convinces you of the defendant’s guilt.”

During   deliberations,          the    jury        sent   the   trial    court       a    note

asking what happened if the jury could not reach a verdict.                                One

juror also asked the trial court to explain reasonable doubt, to

which the trial court responded, “It’s a doubt based on reason

and common sense arising out of some or all of the evidence or

the lack or insufficiency of the evidence, whichever the case

may be, and you are to use your common sense and your reason to

come to a decision. It’s not absolute.”                      When asked by a juror,

“No hundred percent?” the trial court responded, “No hundred

percent.    I    think    they    went        over     reasonable       doubt    in       their

arguments, and I can send back the definition of reasonable

doubt if you want that.”               The jury foreperson said yes, and the

trial    court     continued,          stating,        “If   you’re      thinking         that

reasonable      doubt    is    that     you    absolutely        know    that    something

happened,    that    is    not    reasonable          doubt.     It’s    not    a   certain

thing, but you should have enough evidence to say that or that

you   can   infer       from   that      this       happened     or     that    happened.”
                                         -5-
Counsel   for     Defendant       excepted     to   the     trial    court’s      verbal

instruction,      stating       the   following:      “I     will    except       to   the

Court’s instruction, verbal instruction of the definition that

Your Honor just gave, because you did not include that it’s a

doubt that fully satisfies or entirely convinces you[.]”                           After

further discussion apart from the jury and with counsel for

Defendant and the State, the trial court decided to reinstruct

the   jury   on    the    definition      of    reasonable     doubt,       using      the

pattern   jury     instruction.         The    jury   was    called       back    to   the

courtroom, and the trial court reinstructed the jury as follows:

             There was some concerns that I didn’t read
             the whole definition of reasonable doubt to
             you, so I’m going to read it to you as it
             states in the jury instruction.    Reasonable
             doubt is a doubt based on reason and common
             sense arising out of some or all of the
             evidence that has been presented or lack or
             insufficiency of the evidence as the case
             may be. Proof beyond a reasonable doubt is
             proof that fully satisfies or entirely
             convinces you of the defendant’s guilt.

Thereafter,       the    jury    resumed       deliberation.        The    jury    found

Defendant guilty of all charges, and the trial court entered

judgments consistent with the jury’s verdicts, consolidating the

possession of cocaine with intent to sell or deliver conviction

and the possession of drug paraphernalia conviction, for which

Defendant was sentenced to six to eight months incarceration,
                                          -6-
and entering a separate judgment for the trafficking in cocaine

conviction, for which Defendant was sentenced to 35 to 45 months

incarceration, to be served consecutively.

      Several days after Defendant was convicted in this case,

the State learned that Ms. Andrews, the chemical analyst who

testified at trial, had failed a test proctored to her under the

Forensic Sciences Act.              On 11 June 2012, the State notified

Defendant.     On     26    June    2012,    Defendant   filed   a   motion   for

appropriate relief, requesting that the judgments be set aside

and the charges dismissed, based on the State’s inability to

present a qualified expert to establish an essential element of

the charges, or, in the alternative, to award a new trial.                    The

trial court, pursuant to a motion by the State, ordered that the

substances be reanalyzed.            At the hearing on Defendant’s motion

for   appropriate     relief,       SBI     Special    Agent   Michael   Piwowar

testified that he reanalyzed the substance on 2 July 2012, and

that the substance was crack cocaine weighing 42.9 grams.                     Mr.

Piwowar acknowledged that Ms. Andrews had testified that the

substance weighed 47 grams, but that the difference could have

been attributable to evaporation of water from the substance.

The   trial   court        denied    Defendant’s      motion   for   appropriate

relief.
                                      -7-
      Defendant appeals from the judgments and the order denying

his motion for appropriate relief.

                 I: Jury Instruction on Reasonable Doubt

      In Defendant’s first argument on appeal, he contends the

trial    court    committed   error   by    instructing   the   jury   on   the

definition of reasonable doubt.            Defendant specifically contends

the     trial    court   defined   reasonable     doubt    incorrectly      and

incompletely, in a manner that resulted in the State’s burden of

proof being lowered.          We believe the trial court’s instruction

does not constitute reversible error.

      When an alleged error in a jury instruction is properly

preserved by      exception    at trial, our Court reviews the jury

instructions de novo.         State v. Foye, __ N.C. App. __, __, 725

S.E.2d 73, 79 (2012) (citation omitted).              “The charge of the

court must be read as a whole[.] . . .               It will be construed

contextually, and isolated portions will not be held prejudicial

when the charge as [a] whole is correct.           If the charge presents

the law fairly and clearly to the jury, the fact that some

expressions, standing alone, might be considered erroneous will

afford no grounds for reversal.”            State v. Hooks, 353 N.C. 629,

634, 548 S.E.2d 501, 505 (2001), cert. denied, 524 U.S. 1155,

151 L. Ed. 2d 1018 (2002).            “The charge will be held to be
                                        -8-
sufficient if it presents the law of the case in such manner as

to leave no reasonable cause to believe the jury was misled or

misinformed[.]”        State v. Blizzard, 169 N.C. App. 285, 296-97,

610   S.E.2d    245,    253    (2005)    (citation     and   quotation   marks

omitted).      “Under such a standard of review, it is not enough

for the appealing party to show that error occurred in the jury

instructions; rather, it must be demonstrated that such error

was likely, in light of the entire charge, to mislead the jury.”

Id. (citation and quotation marks omitted).                  “If . . . it is

sufficiently clear that no reasonable cause exists to believe

that the jury was misled or misinformed, any exception to it

will not be sustained even though the instruction could have

been more aptly worded.”         State v. Maniego, 163 N.C. App. 676,

685, 594 S.E.2d 242, 248 (2004) (citation omitted).

      While “no particular formation of words is necessary to

properly define reasonable doubt,” “the instructions, in their

totality, must not indicate that the State’s burden is lower

than ‘beyond a reasonable doubt.’”            State v. Taylor, 340 N.C.

52,   59,   455   S.E.2d      859,   862-63   (1995)     (citing   Victor   v.

Nebraska, 511 U.S. 1, 5, 127 L. Ed. 2d 583, 590 (1994)).
                                       -9-
       In its charge to the jury, the trial court initially gave

the definition of reasonable doubt contained in N.C.P.I. – Crim.

101.10 (2013), which states as follows:

           The defendant has entered a plea of “not
           guilty.”   The fact that the defendant has
           been [indicted] [charged] is no evidence of
           guilt. Under our system of justice, when a
           defendant pleads “not guilty,” the defendant
           is not required to prove the defendant’s
           innocence; the defendant is presumed to be
           innocent. The State must prove to you that
           the defendant is guilty beyond a reasonable
           doubt.

           A reasonable doubt is a doubt based on
           reason and common sense, arising out of some
           or all of the evidence that has been
           presented, or lack or insufficiency of the
           evidence, as the case may be. Proof beyond
           a reasonable doubt is proof that fully
           satisfies or entirely convinces you of the
           defendant’s guilt.


Id.     When   a   juror   asked     for   reasonable   doubt   to   be     again

defined,   the     trial   court’s    definition   “could   have     been    more

aptly worded.”       Maniego, 163 N.C. App. at 685, 594 S.E.2d at

248.     After a discussion with counsel for Defendant and the

State, the trial court reinstructed the jury on the definition

of reasonable doubt, again using N.C.P.I. – Crim. 101.10.                      We

find this case similar to State v. Foye, __ N.C. App. __, 725

S.E.2d 73 (2012), in which this Court stated, “we cannot see how

the additional language that ‘nothing can be proved 100 percent
                                               -10-
basically,’ when viewed together with the correct pattern jury

instruction, lowered the burden to less than reasonable doubt or

otherwise prejudiced defendant.”                      Id. at __, 725 S.E.2d at 80.

Construing the jury charge in this case contextually and as a

whole, we believe the charge presents the law fairly and clearly

to   the    jury,       and   although         some   expressions,         standing    alone,

might      be    considered        erroneous,         those       expressions      afford    no

grounds for reversal in this case, see Hooks, 353 N.C. at 634,

548 S.E.2d at 505, because we do not think there was reasonable

cause      to    believe      the       jury    was     misled      or   misinformed,       see

Blizzard, 169 N.C. App. at 296-97, 610 S.E.2d at 253.                                       This

argument is without merit.

                       II: Ineffective Assistance of Counsel

      In    Defendant’s            second      argument      on    appeal,    he     contends

Defendant was provided ineffective assistance of counsel when,

on   cross-examination,              defense      counsel         opened    the     door     for

allegedly        prejudicial        testimony         to   be     introduced,      which    the

parties         had    stipulated        was     inadmissible        and    would     not    be

admitted at trial.            We find Defendant’s argument without merit.

      “To       prevail       on    a    claim     of      ineffective      assistance       of

counsel,         a    defendant         must    first      show     that    his     counsel’s

performance           was   deficient       and   then      that     counsel’s      deficient
                                            -11-
performance prejudiced his defense.”                     State v. Allen, 360 N.C.

297, 316, 626 S.E.2d 271, 286, cert. denied, 549 U.S. 867, 166

L. Ed. 2d 116 (2006) (citations and quotation marks omitted).

“Deficient         performance      may     be     established      by    showing        that

counsel’s         representation     fell       below    an   objective        standard    of

reasonableness.”             Id.    “Generally, to establish prejudice, a

defendant must show that there is a reasonable probability that,

but       for    counsel’s    unprofessional        errors,       the    result    of     the

proceeding would have been different.”                    Id.

          “Decisions concerning which defenses to pursue are matters

of trial strategy and are not generally second-guessed by this

Court.”          State v. Prevatte, 356 N.C. 178, 236, 570 S.E.2d 440,

472 (2002), cert. denied, 538 U.S. 986, 155 L. Ed. 2d 681 (2003)

(citations omitted).

          In this case prior to trial, Defendant filed a motion to

suppress and motion in limine requesting that the trial court

prohibit the State from introducing evidence pertaining to the

information         contained       in    the     anonymous       tip    that      led    to

Defendant’s arrest, which was stipulated to by the State.

          On    direct    examination,     Officer       Morgan    testified      that     he

went to perform surveillance on a particular neighborhood based

on    a    tip    about    drug    activity.        No   testimony       was    introduced
                                     -12-
concerning    the   contents    of   the    tip.      On   cross-examination,

however,     counsel   for     Defendant     asked    Officer    Morgan     more

specific     questions       about   the     anonymous        tip,     including

information regarding the make and model of Defendant’s car.

Defense counsel asked, “[a]nd turns out also that that tip gave

you information that perhaps [Defendant] hides his drugs in his

vehicle; isn’t that correct?”         Officer Morgan responded, “That’s

correct.”      Counsel   then    attempted     to    elicit    testimony    from

Officer Morgan to confirm that there were no drugs “hidden”

inside Defendant’s vehicle when he was stopped.                      On redirect

examination, the State asked Officer Morgan questions regarding

the information contained in the tip, including the statement

that “there [were] narcotics being sold out of the house at

night.”     Officer Morgan also said the tip was possibly from a

family member, and “[t]here was a total of three, possible four

calls from the same individual actually wanting to know why we

hadn’t done something about it yet.”                The State put on record

that   Defendant    “opened    the   door”    for    the   State’s     questions

regarding the contents of the anonymous tip.

       Defendant relies on State v. Baker, 109 N.C. App. 643, 428

S.E.2d 180, disc. review denied, 334 N.C. 435, 433 S.E.2d 180

(1993), in support of the proposition that “opening the door” to
                                        -13-
the     evidence     in   this     case        fell     below     the     standard     of

reasonableness.       In Baker, counsel for the defendant made errors

pertaining to the “handling of the defendant’s prior convictions

and the resulting jury instruction.”                   Id. at 645, 428 S.E.2d at

478.     Specifically, counsel represented to the jury, in his

opening statement and during the trial, that the defendant had

no    criminal     record.      The   prosecution         responded      by   filing    a

motion    to     introduce   the      defendant’s        criminal       record,   which

showed     that     the   defendant,           in     fact,     had     several   prior

convictions, including felonious breaking and entering, larceny,

possession of amphetamine drugs, and operating a motor vehicle

with a suspended license.             The convictions were twenty-five to

twenty-nine years old, and the trial court stated, “I believe it

would not have been admissible save and except for what you told

this jury.”        Id. at 647, 428 S.E.2d at 479.                     During the trial

court’s charge to the jury in Baker, the trial court instructed

that “[y]ou may consider any prior criminal convictions and/or

prior acts tending to show a lack of truthfulness as well as

showing truthfulness, but I specifically instruct you that any

prior    convictions      may    only     be    considered       on     the   issue    of

credibility or believability. Other than that, they may not be

considered by you for any other purpose in the case itself.”
                                           -14-
Id. at 648, 428 S.E.2d at 479.                This was at odds with the trial

court’s statement at the time the prior records were introduced:

“[I]t’s    received     for    the       limited    purpose     of    dispelling       what

could be a false impression that counsel said was inadvertently

created.”       Id. (emphasis in original).                  Counsel did not object

to the trial court’s instruction, and “allowed the jury to be

instructed that they could only consider the defendant’s prior

convictions as they may or may not impugn on the defendant’s

credibility.”        Id. at 648, 428 S.E.2d at 479.                  This Court held,

on the foregoing facts, that “defense counsel’s conduct was in

error and deprived the defendant of a fair trial.”                           Id. at 649,

428 S.E.2d at 480.

    We believe this case is distinguishable from Baker.                            Here,

the theory of the State’s case against Defendant depended on

Defendant’s      constructive            possession     of    drugs     in    a   shared

bedroom.        In   order    to    provoke       doubt,     counsel    for    Defendant

needed     to   show   that        the    police      officers       were    focused    on

Defendant to the exclusion of other suspects.                        It is conceivable

that counsel for Defendant sought to achieve this by revealing

factual inconsistencies contained in the tips, even though the

evidence would have been otherwise inadmissible.                        “In reviewing

an ineffective assistance claim, we resist the urge to second-
                                     -15-
guess trial counsel’s actions.”             State v. Augustine, 359 N.C.

709, 733, 616 S.E.2d 515, 532 (2005), cert. denied, 548 U.S.

925, 165 L. Ed. 2d 988 (2006).            “Because counsel is given wide

latitude in matters of strategy, . . . defendant must overcome

the presumption that, under the circumstances, the challenged

action   might     be   considered    sound     trial   strategy[.]”       Id.

(citations   and    quotation     marks   omitted).     This,    we   believe,

Defendant has failed to do.          We do not believe, on the facts of

this case, that counsel was objectively unreasonable.

                   III: Motion for Appropriate Relief

    In Defendant’s final argument, he contends that the trial

court    improperly     denied    Defendant’s     motion   for   appropriate

relief, and that Defendant is entitled to a new trial.                      We

disagree.

    Our standard of review for a motion for appropriate relief

is well established.       “When a trial court’s findings on a motion

for appropriate relief are reviewed, these findings are binding

if they are supported by competent evidence and may be disturbed

only upon a showing of manifest abuse of discretion.”                 State v.

Lutz, 177 N.C. App. 140, 142, 628 S.E.2d 34, 35 (2006) (citation

omitted).     “However, the trial court’s conclusions are fully

reviewable on appeal.”      Id.
                                          -16-
      In   March     2011,        our    Legislature     enacted      the   Forensic

Sciences Act, requiring all forensic science professionals in

the   State     Crime       Lab     to    obtain      individual      certification

consistent       with        the         International       Organization        for

Standardization.        2011 N.C. Sess. Law 19 § 4; 2011 N.C. Sess.

Law 307 § 8.         On 14 June 2012, after the trial in this case,

counsel for Defendant was notified by the District Attorney that

Ms. Andrews failed her certification test.                    Defendant filed a

motion for appropriate relief arguing he should be awarded a new

trial because Ms. Andrews should not have been qualified as an

expert.

      In its order denying Defendant’s motion, the trial court

found, inter alia, as follows:                 During the trial, Ms. Andrews

was   offered   by    the    State       as   an   expert   witness    in   forensic

chemistry, without objection by Defendant; she testified that

the total weight of the controlled substance submitted to her

was 47 grams; and that the substance contained therein was crack

cocaine.      After the trial, the Office of the District Attorney

in Buncombe County learned Ms. Andrews had failed an exam given

to her in an effort to comply with the Forensic Sciences Act.

The Office immediately informed counsel for the Defendant of

this information on 13 June 2012.                  The substance was retested by
                                    -17-
Mr. Piwowar, who determined that the controlled substance was

crack cocaine with a total weight of 42.9 grams, well in excess

of the 28 grams necessary to convict Defendant.

    Based    on   the   findings,   the    trial   court   concluded   as   a

matter of law the following:

            1. The Defendant        received       a   fair   and
            impartial trial.

            2. The Defendant’s Constitutional              rights
            were not violated or denied.

            3. The “newly discovered evidence[,]” .           . .
            that Special Agent Andrews had failed             the
            examination, would not have resulted in           her
            not being qualified as an expert in               the
            field of Forensic Chemistry.

            4. That the analysis of the controlled
            substances by both Special Agent Andrews and
            Special Agent Piwowar were conducted in
            accordance with widely accepted reliable
            principles and methods and were and are
            admissible.

            5. That the “newly discovered evidence” was
            not withheld by the State but was made known
            to   the  Defendant   immediately  upon  the
            District Attorney[’s]    office being made
            aware of the evidence.

            6. That the “newly discovered evidence”
            merely tends to impeach or discredit the
            testimony of Special Agent Andrews and only
            goes to the weight and not the admissibility
            of her testimony.

            7. That the “newly discovered evidence” is
            not of such a nature that a different result
            will probably be reached at a new trial. To
                                        -18-
              the contrary, evidence at a new trial would
              again establish sufficient evidence for a
              jury to find beyond a reasonable doubt that
              the defendant possessed more than 28 grams
              but   less  than  200   grams  of  cocaine,
              possessed the cocaine with the intent to
              sell and deliver it and possessed drug
              paraphernalia.

The   trial    court   also    stated    that   the    admission    of   evidence

regarding     Ms.   Andrews’    exam    failure   would     probably     not   have

resulted in a different outcome given the other evidence at

trial, including Defendant’s own admission to an officer prior

to his arrest that he possessed about an ounce and a half of

cocaine, which is equal to 42.525 grams.

      On appeal, Defendant does not argue that the trial court’s

findings of fact are not supported by the evidence.                       Rather,

Defendant contends that under State v. Allen, __ N.C. __, __,

731 S.E.2d 510, 520 (2012), disc. review denied, 366 N.C. 415,

732 S.E.2d 582 (2012), the State was required to disclose the

information concerning Ms. Andrews’ failure of her certification

test.     In Allen, this Court explained Brady v. Maryland, 373

U.S. 83, 10 L. Ed. 2d 215 (1963), in which the United States

Supreme   Court     held   that   “suppression        by   the   prosecution     of

evidence favorable to an accused . . . violates due process

where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.”
                                                 -19-
373 U.S. at 87, 10 L. Ed. 2d at 218.                            “To establish a Brady

violation,        a       defendant       must    show   (1)    that       the    prosecution

suppressed evidence; (2) that the evidence was favorable to the

defense; and (3) that the evidence was material to an issue at

trial.”        State v. McNeil, 155 N.C. App. 540, 542, 574 S.E.2d

145, 147 (2002), disc. review denied, 356 N.C. 688, 578 S.E.2d

323 (2003) (citing Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d

215 (1963)).              “Evidence is considered ‘material’ if there is a

‘reasonable probability’ of a different result had the evidence

been disclosed.”             State v. Berry, 356 N.C. 490, 517, 573 S.E.2d

132, 149 (2002) (citation omitted).

       In     Defendant’s          brief    on    appeal,      he   contends       that   “the

defense     had       a    right    to     the    information       that    the    testifying

chemical analyst did not pass the certification exam”; however,

Defendant concedes that he “is not asserting that the District

Attorney’s Office possessed this information prior to trial[,]

[b]ut    it     is        clear    from     the    record   that      the    results      were

available in January of 2012 and the SBI did not disclose the

information to the District Attorney.”                         Defendant also contends

that the results of Ms. Andrews’ failed examination “would have

been    the    subject        of    cross-examination          questions         directed   to

impeach her qualifications[.]”
                             -20-
    We believe Defendant’s argument must fail.     At most, we

believe Defendant has shown that the newly discovered evidence

may have changed the verdict; however, we do not believe there

was a “‘reasonable probability’ of a different result had the

evidence been disclosed” at the time of the trial in this case.

Berry, 356 N.C. at 517, 573 S.E.2d at 149 (emphasis added).   We

affirm the trial court’s order denying Defendant’s motion for

appropriate relief.

    NO ERROR, in part; AFFIRMED, in part.

    Judge McGEE and Judge McCULLOUGH concur.

    Report per Rule 30(e).
