An unpublished opinion of the North Carolina Court of Appeals does not constitute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



                                  NO. COA14-320
                         NORTH CAROLINA COURT OF APPEALS

                             Filed:     7 October 2014


STATE OF NORTH CAROLINA

      v.                                      Buncombe County
                                              Nos. 12 CRS 61206-07
                                                   12 CRS 61251
                                                   12 CRS 701
                                                   13 CRS 382
BRIAN MONTREAL PICKENS



      Appeal      by   defendant   from   judgments     entered     26    September

2013 by Judge          Alan Z. Thornburg      in Buncombe County              Superior

Court.1    Heard in the Court of Appeals 25 August 2014.


      Attorney General Roy Cooper, by Special                   Deputy        Attorney
      General Ann W. Matthews, for the State.

      Don Willey, for defendant-appellant.


      CALABRIA, Judge.


      Brian Montreal Pickens (“defendant”) appeals from judgments

entered upon jury verdicts finding him guilty of misdemeanor

breaking     or    entering;    felonious     larceny;     assault       on    a   law

enforcement officer; resisting, delaying or obstructing a public

1
  An amended judgment correcting clerical errors was signed by
Judge J. Thomas Davis on 17 February 2014.
                                        -2-
officer; failure to appear on a felony charge; and attaining the

status of habitual felon.           We find no error.

       At approximately 7:00 a.m. on 28 September 2012, defendant,

Gregory       Clinkscales        (“Clinkscales”)           and        Melissa     Balken

(“Balken”)     entered      an     unoccupied      home     in    Asheville,        North

Carolina for the purpose of removing metal items that could be

sold to a scrap metal dealer.               Defendant and Clinkscales were

loading an item from the house into Clinkscales’ vehicle when

Officers      Rosa     Perez-Schupp         (“Officer           Perez-Schupp”)       and

Brenniman (collectively “the officers”) of the Asheville Police

Department     (“APD”)      separately      arrived        at    the    home.       When

confronted by the officers, defendant, Clinkscales, and Balken

falsely stated that the home belonged to Clinkscales’ aunt and

that   they    had   her    permission      to     enter    the       residence.      In

addition,     defendant     provided    a   false        name    to    Officer    Perez-

Schupp when she asked him to identify himself.                           The officers

were able to determine that the home belonged to Barbara Hunter

(“Mrs.     Hunter”),       whose     grandson,          Ervin     Hunter        (“Officer

Hunter”), was an APD officer.

       Officer Hunter, who was off-duty, received a call from an

APD    communicator      alerting     him     to    a     possible       breaking    and

entering at his grandmother’s house.                     When he arrived at the
                                      -3-
scene, he saw the three intruders in handcuffs.                    Officer Hunter

recognized     defendant    and     knew    that       defendant    had     several

outstanding arrest warrants issued against him.                    Officer Hunter

disputed that the individuals had permission to enter the home

and directed the other officers to arrest them.                          As Officer

Perez-Schupp attempted to secure handcuffs on defendant’s right

hand,    defendant   tugged     away,      swung   his     fist     at    her,   and

attempted to flee on foot.          Officer Hunter chased defendant and

subdued him.

     Defendant was subsequently charged with felony breaking or

entering, felony larceny, assault on a law enforcement officer,

resisting,     delaying    or     obstructing      a     public    officer,      and

attaining the status of habitual felon.                 Beginning 23 September

2013, defendant was tried by a jury in Buncombe County Superior

Court.    Defendant failed to appear at the trial on 24 September

2013, and as a result, a warrant was issued for his arrest.                      The

trial continued in defendant’s absence.                 During trial, Officer

Hunter testified without objection that he knew that defendant

had several outstanding warrants for failure to appear and that

he knew that defendant had a reputation of “being violent and

running.”
                                               -4-
       On 25 September 2013, the jury returned verdicts finding

defendant    guilty        of     felonious      larceny,        the     lesser       included

offense of misdemeanor breaking or entering,                           assault on a law

enforcement       officer,        RDO,    and        attaining     the     status      of   an

habitual felon.           Defendant was located, arrested, and brought

before the court for sentencing on 26 September 2013.                                Defendant

pled    guilty    to   the      charges    of        felony    failure    to    appear      and

attaining the status of an habitual felon.                             For the offenses

based upon jury verdicts, the trial court sentenced defendant to

a minimum of 97 months to a maximum of 129 months in the North

Carolina Division of Adult Correction (“DAC”).                            For the felony

failure to appear, the trial court sentenced defendant as an

habitual felon to a minimum of 38 months to a maximum of 58

months in the DAC, which was to be served concurrently with his

other sentences.          Defendant appeals.

       Defendant’s sole issue on appeal is that the trial court

committed    plain        error    by    admitting       the     testimony      of     Officer

Hunter regarding his knowledge of the outstanding warrants on

defendant     and      defendant’s        history        of     violence       and     flight.

Defendant    contends        that       this    testimony       was    not     relevant     or

admissible under N.C. Gen. Stat. § 8C-1, Rule 404(b), and even

if     relevant     and    admissible,          it     should     have     been      excluded
                                          -5-
pursuant     to   N.C.   Gen.    Stat.     §    8C-1,    Rule   403    because       its

probative value was substantially outweighed by its potential

for unfair prejudice and confusion of the issues.                    We disagree.

             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)

(internal quotations and citations omitted).

       In   the   instant   case,    there      was     significant       evidence    of

defendant’s guilt.          Defendant did not deny removing materials

from Mrs. Hunter’s home, and the testimony of Balken and Officer

Hunter established that defendant did not have permission to

remove these materials.          Additionally, the testimony of Officers

Hunter      and   Perez-Schupp      clearly      established        that    defendant

provided a false name to law enforcement and that he assaulted

Officer Perez-Schupp in an attempt to evade arrest.                       In light of

this   evidence,     defendant      has    failed       to   meet   his    burden     of

establishing that the trial court’s alleged error had a probable
                                 -6-
impact upon the jury’s verdict.        Accordingly, this argument is

overruled.

    Defendant   received   a   fair    trial,   free   from   prejudicial

error.

    No error.

    Judges GEER and McCULLOUGH concur.

    Report per Rule 30(e).
