An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-9
                         NORTH CAROLINA COURT OF APPEALS

                                   Filed: 1 July 2014


STATE OF NORTH CAROLINA

       v.                                          Cleveland County
                                                   Nos. 11 CRS 51589–90
RONALD CRAIG SHOATS



       Appeal by Defendant from Judgments entered 23 July 2013 by

Judge William R. Bell in Cleveland County Superior Court. Heard

in the Court of Appeals 23 June 2014.


       Attorney General Roy Cooper, by Assistant Attorney General
       Donna B. Wojcik, for the State.

       Sarah Holladay for Defendant.


       STEPHENS, Judge.


                        Procedural History and Evidence

       Defendant        Ronald     Craig    Shoats     appeals    from    judgments

entered      based      upon     jury   verdicts       finding   him     guilty    of

possession of cocaine with the intent to sell or deliver, the

sale   or    delivery      of    cocaine,    possession    of    hydrocodone      with

intent      to   sell    or      deliver,    and    the   sale   or    delivery    of

hydrocodone.         The        trial      court     consolidated        Defendant’s
                                      -2-
convictions into two judgments and sentenced him to consecutive

terms of 20 to 24 and 25 to 30 months imprisonment. Defendant

gave notice of appeal in open court.

       At trial, the State’s evidence tended to show that, on 5

January     2011,    officers    of   the    Cleveland         County     Sheriff’s

Department conducted a controlled buy of hydrocodone pills from

Defendant     with    the   assistance       of   Gary        Richard    Smart,    a

confidential    informant       and   cooperating     witness.          During    the

controlled buy, Smart asked Defendant if Defendant could provide

him with powder cocaine. Defendant stated he could provide Smart

with the cocaine, and, on 21 January 2011, officers and Smart

set up a controlled buy of powder cocaine from Defendant. At

trial, Smart testified that he had purchased hydrocodone pills

from   Defendant     approximately     ten    times      in    the   four    months

preceding the date of the first controlled buy.

                                  Discussion

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

erred when it admitted testimony that Defendant had previously

sold hydrocodone pills to Smart. Defendant contends that the

admission of this testimony violated rules 403 and 404(b) of the

North Carolina Rules of Evidence. We find no error.
                                           -3-
    Because Defendant failed to object to Smart’s testimony at

trial, we review this issue only for plain error. N.C.R. App. P.

10(a)(4); Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362

N.C. 191, 196, 657 S.E.2d 361, 364 (2008). To establish 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        internal    quotation      marks         omitted;           certain

alterations in original). Even assuming it was error for the

trial   court     to        admit   Smart’s   testimony        about        the    previous

purchases,   we        conclude     that   any    such    error       did    not        have   a

probable impact on the jury’s verdict.

    According          to    the    State’s   evidence,        the    5     January       2011

purchase    of    hydrocodone          occurred   in     the    parking           lot    of    a

McDonald’s restaurant. Smart drove to the McDonald’s in a red

pickup truck accompanied by an undercover officer who sat in the

truck’s    passenger         seat   and    observed      the   entire       transaction.
                                          -4-
Smart    parked   next    to    Defendant,      who     was   waiting   in   a   white

Lexus. Defendant walked over to the driver’s side of Smart’s

truck and gave Smart a pill bottle containing forty hydrocodone

pills    in    exchange   for     $200.   A     second    officer    witnessed    the

transaction from inside the McDonald’s restaurant.

      The purchase of cocaine on 21 January 2011 occurred at a

truck stop. Smart drove to the truck stop and again parked next

to Defendant’s white Lexus. Smart got out of his truck, walked

to Defendant’s door, and gave Defendant $175 in exchange for 3.2

grams of cocaine. An officer witnessed this transaction from a

nearby fuel pump.

      Smart testified that Defendant was the person who sold him

hydrocodone on 5 January 2011 and cocaine on 21 January 2011. In

addition, an audio recording of the 5 January 2011 transaction

was     made   and   a    video    recording       of     the   21   January     2011

transaction was made. Both recordings were played to the jury.

Further, both transactions were witnessed by officers as they

occurred, and the officers identified Defendant as the seller of

the narcotics.

      Defendant challenges the above evidence by arguing that the

recordings and officers’ testimony were not sufficient to prove

his identity. Specifically, Defendant asserts that the 5 January
                                         -5-
2011 recording was deficient because it was “at times muffled,

crackling,     and   difficult      to     hear”   and    the    21    January     2011

recording was deficient because it was “so grainy that the jury

would   have    struggled      to     identify      the    man        shown   as    the

defendant.” Defendant also notes that “[n]o officers accompanied

. . . Smart to the [21 January] buy” and the officers who were

there   had    an    obscured       view     of    the    transaction.        We    are

unpersuaded.

    Regarding        the   5   January       transaction,       the     officer     who

participated in the transaction testified that the voices in the

recording were those of Smart and Defendant. The officer also

explained that their conversation dealt with “the weight of the

powder” and resulted in the sale of “forty hydrocodone pills

. . . [by Defendant to] Smart.” A second officer, who observed

the transaction, testified as follows:

          [Second Officer]: We arrived at McDonald’s
          . . . . We noticed a white Lexus pull up and
          a little bit after that, [a] black male got
          out of the Lexus. I want to think that . . .
          Smart was in [the] red truck. I think it was
          a red truck. It was a — I observed a red
          Chevrolet extended cab truck back into a
          parking space beside the white Lexus.

          [Prosecutor]:    Was    [the                   participating
          officer] in the red truck?

          [Second Officer]: He was.
                                        -6-
         [Prosecutor]: What did you observe between
         the individuals in these vehicles?

         [Second Officer]: I observed a black male
         with a brown had [sic], brown jacket,
         wearing glasses in the driver’s seat of the
         white Lexus. The driver’s door opened and
         the black male’s feet were on the asphalt.

         . . .

         [Prosecutor]: What did you do next?

         [Second Officer]: A short time later, you
         know, the cooperating witness and [the
         participating  officer],  I   believe  they
         backed in right beside the white Lexus. I
         think the exchange was made, and they left,
         both left.

         [Prosecutor]:           Who    was    the     exchange       made
         between?

         [Second    Officer]:                 Gary         Smart       and
         [Defendant].

Given the testimony of both officers, any difficulty the jury

experienced    in    hearing      and    understanding         the    recording     is

irrelevant    as    there   was    ample      other        evidence   to     establish

Defendant’s   identity      as    the   person       who    sold   the   hydrocodone

pills to Smart. Accordingly, Defendant’s argument as it pertains

to the 5 January transaction is overruled.

    Regarding the 21 January transaction, a third officer, who

observed the controlled purchase, testified that the video (1)

depicted “[t]he deal [between Defendant and Smart for the sale
                               -7-
of powder cocaine] taking place” and (2) included discussions

“about possibly making future deals for cocaine and also [other]

pills.” The second officer, who also observed the 21 January

transaction, testified as follows:

         [Prosecutor]: What did you do [on 21 January
         2011]?

         [Second Officer]: I drove to the parking lot
         of the truck stop and sat near a fuel pump
         where I could watch the buy take place.

         [Prosecutor]: What did you observe on that
         date?

         [Second Officer]: I seen [sic] a white Lexus
         parked toward the far pump, and [Smart]
         pulled up beside him to make the purchase.

         [Prosecutor]: Did you observe anything?

         [Second Officer]: [Smart] got out of his
         vehicle and met [Defendant] at the driver’s
         side door of his vehicle. I believe the door
         was open on . . . the Lexus.

         [Prosecutor]: What happened next?

         [Second Officer]: Once the deal was done,
         . . . Smart met us back at the location
         . . .   [and   returned]  the  drugs  and
         equipment.

Only the third officer described having an obscured view of the

transaction, testifying that he observed “Smart pull into the

parking lot, but as far as where he parked, we could not see.”

Even assuming this testimony supports Defendant’s assertion that
                                     -8-
the third officer’s ability to see was “obscured,” it has no

bearing on the testimony of the second officer, who explicitly

stated that he was parked in a place where he “could watch.”

Accordingly,    Defendant’s    argument    as    it    pertains     to    the   21

January transaction is overruled.

      We   conclude   that   the   evidence     of    Defendant’s       guilt   was

overwhelming and, consequently, that Smart’s testimony regarding

the   prior   purchases   of   hydrocodone      did    not   have   a    probable

impact on the jury’s verdict. Therefore, the trial court did not

commit plain error in admitting Smart’s testimony.

      NO ERROR.

      Judges HUNTER, ROBERT C., and ERVIN concur.

      Report per Rule 30(e).
