An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-917
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 15 April 2014


STATE OF NORTH CAROLINA

      v.                                      Wayne County
                                              No. 10 CRS 55383
MARY BEASLEY FERRELL,
          Defendant.


      Appeal by defendant from judgment entered 17 January 2013

by Judge John E. Nobles in Wayne County Superior Court.                       Heard

in the Court of Appeals 11 December 2013.


      Attorney General Roy Cooper, by Assistant Attorney General
      Brent D. Kiziah, for the State.

      Appellate Defender Staples Hughes, by Assistant Appellate
      Defender David W. Andrews, for defendant-appellant.


      GEER, Judge.


      Defendant Mary Beasley Ferrell appeals from her convictions

of felony possession of cocaine and resisting a public officer.

On appeal, defendant argues that the trial court committed plain

error in admitting the arresting officer's testimony that he

could have charged defendant with additional crimes based on her

conduct in this case but, in order to show defendant mercy, he
                                          -2-
did   not     do   so.      We    hold    that,   assuming   the   evidence      was

improperly admitted, defendant has failed to show that any error

constituted plain error.               With respect to sentencing, however,

we agree with defendant that the trial court erred by failing to

permit defendant to make a personal statement to the court prior

to sentencing.           We, therefore, vacate defendant's sentence and

remand for a new sentencing hearing.

                                          Facts

      The State's evidence tended to show the following facts.

At about 3:00 or 4:00 p.m. on 19 October 2010, Sergeant Matt

Miller   of    the   Wayne       County   Sheriff's   Office   was    driving     an

unmarked Ford Explorer in a high-crime area in Goldsboro, North

Carolina, when he saw defendant, an older white female, sitting

alone in a pickup truck stopped at a stop sign.                Sergeant Miller

was the supervisor of the street level narcotics unit of the

Wayne County Sheriff's Office and, at the time of trial, had

been employed by the             Wayne County Sheriff's Office            for nine

years, with eight years' specialization in narcotics.                     Sergeant

Miller pulled his Explorer around so that it was parallel with

defendant's truck and watched defendant for several seconds as

defendant     appeared      to    be   manipulating   something      in   her   lap.

Defendant did not notice Sergeant Miller.
                                          -3-
     Defendant's windows were down and, after several seconds,

Sergeant Miller asked defendant, out of his open window, whether

defendant was all right and whether she needed anything.                              At

that time, Sergeant Miller was wearing a black polo shirt with a

Sheriff's     badge   on   the    front    left   hand      side,    as   well   as    a

standard law enforcement gun belt displaying his badge.                           Upon

noticing Sergeant Miller, defendant looked as if she "had seen a

ghost"   --    she    seemed     surprised      and   her    "[e]yes      were   big."

Defendant stuttered and "stumbled over her response," ultimately

stating she was all right.              While responding to the sergeant,

defendant repeatedly glanced towards her lap.                     Defendant looked

"depleted, as far as nourishment," and "her face was drawed up,

skinny."       Sergeant        Miller     noted   that      her     appearance    was

consistent with that of a drug user.

     Sergeant Miller exited his Explorer, approached defendant's

window, and saw defendant's fists clenched in her lap like she

was "trying to keep [Sergeant Miller] from getting whatever she

had."    He further saw some white crumbs on defendant's black

pants that he believed were consistent with small amounts of

crack cocaine that may have been broken off from a larger crack

rock such as when a person breaks a larger rock into smaller

rocks in order to smoke a smaller amount.                    Sergeant Miller had

previously viewed crack cocaine "[a]lmost on a daily basis."
                                        -4-
      Sergeant Miller then grabbed defendant's left wrist through

the open window and said, "Give it to me."                  Defendant, however,

raised her right hand, threw a misshapen, off-white, rock-like

object into her mouth, and began to chew and eat the object very

quickly   "as    if   she     was    trying    to    destroy      some    evidence."

Sergeant Miller believed defendant was eating a crack rock worth

about $100.00.        The rock was the width of a thumbnail and as

thick as the end of a finger.                At that point, Sergeant Miller

twisted defendant's left arm behind her back and ordered her to

spit out the object multiple times, but defendant kept chewing

and struggled to pull away from the sergeant.                     Sergeant Miller

drew his "TASER," placed it under defendant's armpit, and told

her to spit the object out or else he would tase her.

      Before    Sergeant    Miller     was    able    to   tase    defendant,   she

accelerated her truck and drove forward while the sergeant was

"[i]nches" from the side of the truck.                Despite Sergeant Miller

telling   defendant     she    was    going    to    run   him    over,    defendant

continued accelerating and her truck "bumped" Sergeant Miller

such that he had to "maneuver [himself] so [he] didn't get run

over."    Sergeant Miller then yelled at defendant to stop, and

she   stopped   momentarily.          The     sergeant     then    shot   defendant

underneath the arm with his TASER probes, and she accelerated
                                     -5-
again and drove away as Sergeant Miller "watched the wires that

[were] connected to [his] TASER just snap in half."

       Sergeant Miller pursued defendant in his Explorer for "a

couple" of blocks, never losing sight of her, and defendant

stopped only after driving down a dead end street.                     Sergeant

Miller   approached    defendant's    truck    with     his   gun   drawn    and

pulled open the door.           Defendant, acting as if she had never

seen   Sergeant   Miller   before,    said,    "[W]hat    the   fuck    do   you

want?"     Sergeant Miller ordered defendant to get out of the

truck, but she refused.

       Sergeant Miller holstered his gun, pulled defendant out of

the truck, and attempted to handcuff defendant, handling her

gently because she was an "older lady."           Defendant spun around,

"slapped" the handcuffs out of Sergeant Miller's hand, "started

GD'g about something," called the sergeant a "mother fucker,"

and "balled up her fists          . . .      like she    wanted to fight."

Sergeant   Miller     grabbed    defendant    again   and     placed   her   in

handcuffs.

       Sergeant Miller then returned to defendant's truck and saw

"white crumbs all over the seat" that he believed were the same

type of crack cocaine crumbs that he had previously seen in

defendant's lap.      A field test of some of the crumbs showed them

to be cocaine.      Subsequent laboratory testing of other crumbs
                                              -6-
from the truck seat also showed the crumbs to be a "residue

amount"    of     "a     Schedule        II     controlled         substance,         cocaine

hydrochloride."

      Sergeant Miller spoke with defendant while she was in his

Explorer, and defendant "began to cry and say that she had some

things    going    on    in     her     life."        Sergeant         Miller    asked    why

defendant ran, and she replied it was because "she was in a

predominantly       black       area,    and        [the    sergeant]        scared      her."

Sergeant Miller responded that he was a law enforcement officer

and was "not black."             Although defendant told Sergeant Miller,

in   response     to    his   questioning,          that    she       had   eaten   a    pill,

defendant could not say what type of pill it was.                              According to

the sergeant, the object defendant ate did not look "at all"

like a pill.      Sergeant Miller showed defendant a pill bottle for

nausea he had found in her truck and asked if she had taken a

pill for nausea, and defendant said she had.                                Defendant told

Sergeant    Miller       that     her    daughter          was    a    crack     user,    and

defendant was looking for her daughter that day.                            Defendant also

asked    Sergeant      Miller     to    "have       some    kind      of    mercy   on   her"

because, in addition to her daughter using crack, "her husband

drank."

      On 1 August 2011, defendant was indicted for possession of

cocaine and resisting a public officer.                      Defendant testified in
                                             -7-
her own defense at trial, and her testimony tended to show the

following facts.           Defendant was 66 years old at the time of

trial.       On    the    date   of    the     charged    offenses,     defendant    was

stopped at a stop sign with "a BC" on her left leg and a pill

bottle between her legs.

      When        approached     by      Sergeant        Miller,       whom     defendant

understood to be a "police officer," she told him, "I can't get

this damn pill bottle open."                 Sergeant Miller then laughed, took

out   his     TASER,       and   tased         defendant.        He     never     grabbed

defendant's        left   hand   prior       to    tasing   her.       Defendant,     now

scared,     drove     directly        across      the   street   and    then    stopped.

Sergeant Miller then dragged defendant from the truck, "[t]hrew"

her to the ground, called her a "crackhead whore" and a "piece

of shit," and "ground on [her] heinie" with his boots before

handcuffing        her.     Defendant        introduced     photographic         exhibits

which she stated showed serious bruises to her knees from when

Sergeant Miller "beat" her and a "bad bruise" on her "back part"

from when the sergeant "just ground, ground, ground."                            However,

when EMS responded to the scene to check on defendant, defendant

did not request any medical treatment.

      Defendant further testified that the truck she was driving

that day belonged to her ex-husband and that her two daughters,

who both abused crack, would sometimes take the truck at night
                                            -8-
without    permission.          On    the    day     of    the   charged        offenses,

defendant   was     looking     for    one    of     her   daughters          because   she

wanted to help her daughter.                Defendant did not use any illegal

drugs, and she was not aware that there were any illegal drugs

in the truck that day.            According to defendant, she had already

taken a Cymbalta pill when Sergeant Miller approached her, she

never had anything in her hand during the encounter, and she

never chewed anything in the sergeant's presence.                              When asked

why she told Sergeant Miller that she had taken a nausea pill,

defendant stated she kept her Cymbalta and her nausea pills in

the same pill bottle.           Defendant claimed she did not curse at

Sergeant Miller, and she followed all of his commands.

    Defendant       admitted         she    had    previously         pled     guilty     to

larceny from a Belk store.             However, defendant claimed that the

facts   underlying       that   conviction         involved      her        "exchanging    a

bracelet    out"    and    that      the    trial     judge      in    that     case     had

subsequently ordered Belk "to give me back all my stuff because

it was a mistake," and defendant "did not steal from them."

    The jury found defendant guilty of felony possession of

cocaine    and    resisting      a    public       officer.           The    trial     court

consolidated       the    convictions         into     a    single          judgment    and

sentenced defendant to a presumptive-range term of five to six

months imprisonment, but then suspended the sentence and placed
                                        -9-
defendant    on   18   months   of   supervised       probation.      Defendant

timely appealed to this Court.

                                 Discussion

    Defendant      first   argues    that       the   trial   court   erred   in

admitting Sergeant Miller's testimony that he showed mercy on

defendant by not charging her with additional crimes based on

her conduct in this case.        Defendant contends that the testimony

was irrelevant under Rule 401 and that its probative value was

substantially outweighed by the danger of unfair prejudice and

confusion of the issues under Rule 403 of the Rules of Evidence.

    During direct examination, Sergeant Miller testified that

while he was speaking with defendant after her arrest, defendant

asked Sergeant Miller if he "could have some kind of mercy on

her" because defendant's husband drank and her daughter used

crack.      The   prosecutor    asked    whether      Sergeant   Miller   showed

mercy to defendant, and the sergeant testified: "I did.                   I did.

Against my own judgment I did."               When asked how he showed mercy

to defendant, Sergeant Miller testified: "I didn't charge her

with a couple other charges that I could have charged her with.

And I explained that to her."

    Defendant concedes that she did not object to the admission

of this testimony at trial, but nonetheless asks this Court to
                                  -10-
review admission of the testimony for plain error.          Our Supreme

Court has explained that

            [f]or 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 citations and quotation marks omitted).

      Assuming, without deciding, that the trial court improperly

admitted Sergeant Miller's testimony, defendant must still show

that admission of the evidence had a probable impact on the

jury's verdict.    Defendant has not challenged on appeal Sergeant

Miller's testimony that, after arresting defendant, he contacted

a wrecker service to tow defendant's truck because "[he] thought

[he] was going to charge" or "there was a possibility [he] was

going to charge for the fleeing" and, pursuant to policy, he was

supposed to tow the suspect's vehicle when a fleeing charge is

issued.    Thus, Sergeant Miller provided unchallenged testimony

to   one   uncharged   offense   for   which   he   considered   charging

defendant -- fleeing to elude arrest.
                                            -11-
       Further,      defendant's         version     of    the     events      required    the

jury    to    believe      that     the    interaction          started     when     Sergeant

Miller, a sergeant with nine years' experience at the time of

trial,    approached        defendant's          truck,    she     stated      she    couldn't

"get   this     damn    pill      bottle        open,"    and     then   Sergeant       Miller

laughed       and     immediately,          without        any     provocation,          tased

defendant      on    the    spot.         Defendant's       version       of    events    also

required the jury to believe that after tasing defendant, a 66

year old woman at the time of trial, for no reason, Sergeant

Miller proceeded to drag defendant from her truck, throw her to

the ground, beat her, grind into her backside repeatedly with

his boots, and curse her while doing so.

       This     Court       has        recognized        that      juries       often     give

"significant         weight"       to     the     testimony       of     law    enforcement

officers with extensive experience.                      See State v. Belk, 201 N.C.

App.    412,    418,       689    S.E.2d    439,     443    (2009)       ("[B]ecause       the

witness was a police officer with eighteen years of experience,

the    jury    likely      gave     significant          weight    to    [the    officer's]

testimony.").              By    contrast,        defendant        admitted      previously

pleading guilty to larceny, thereby impeaching her credibility

as a witness.           Defendant, however, also denied that she ever

actually       committed         the    acts      underlying       her      prior     larceny

conviction,         further      impeaching        her     credibility.              Defendant
                                         -12-
additionally       claimed     that     she       was       badly   injured        by    the

sergeant's unprovoked attack on her, and yet she admitted she

did not seek medical treatment when EMS arrived at the scene of

her arrest.

       In light of (1) the unchallenged testimony that Sergeant

Miller    considered       charging,     but      ultimately        did     not     charge,

defendant with fleeing to elude arrest, (2) the improbability of

defendant's version of events, (3) the significant weight the

jury likely accorded to Sergeant Miller's testimony -- other

than     the    challenged     testimony          --    given       his    nine     years'

experience as a law enforcement officer, and (4) the evidence

impeaching      defendant's        credibility         as    a   witness,     we    cannot

conclude that the jury would probably have found defendant not

guilty had the challenged testimony been excluded.                                Defendant

has, therefore, failed to show plain error.

       Defendant next contends the trial court erred by denying

defendant her right to personally address the court prior to

sentencing under          N.C. Gen. Stat. § 15A-1334(b)                   (2013).         The

State,    however,        contends    that      defendant        cannot     raise        this

argument on direct appeal.               In support of its argument, the

State    cites     N.C.     Gen.     Stat.    §    15A-1444(a1)           (2013),       which

provides:

               A defendant who has been found guilty, or
               entered a plea of guilty or no contest to a
                                       -13-
           felony, is entitled to appeal as a matter of
           right the issue of whether his or her
           sentence is supported by evidence introduced
           at the trial and sentencing hearing only if
           the minimum sentence of imprisonment does
           not fall within the presumptive range for
           the defendant's prior record or conviction
           level and class of offense.   Otherwise, the
           defendant is not entitled to appeal this
           issue as a matter of right but may petition
           the appellate division for review of this
           issue by writ of certiorari.

(Emphasis added.)

    The   State's    reliance     on    N.C.     Gen.    Stat.     §   15A-1444(a1)

fails to recognize that, here, defendant's argument is that the

trial court failed to allow defendant an opportunity to present

additional evidence during the sentencing hearing, by way of

making a personal statement, and not that the evidence actually

presented at trial and the sentencing hearing was insufficient

to support defendant's sentence.              Although the State cites State

v. Ziglar, 209 N.C. App. 461, 465, 705 S.E.2d 417, 420 (2011),

in support of its argument, the defendant there argued that the

trial   court   erroneously     allowed       the   State   to     proceed      on   an

aggravating     factor   over   the    defendant's       objection       that   "'the

aggravator was basically the same thing that [the defendant] was

convicted of.'"      Ziglar is distinguishable because, unlike the

present   case,    the   Ziglar   defendant's           argument       pertained     to

whether the trial court properly found an aggravating factor

based on the evidence presented.
                                            -14-
       We hold that despite the trial court's imposition of a

presumptive-range sentence, N.C. Gen. Stat. § 15A-1444(a1) does

not foreclose consideration of defendant's argument on direct

appeal     since           the     argument      does        not     concern       "whether

[defendant's] sentence is supported by evidence introduced at

the trial and sentencing hearing."                      See State v. Hagans, 188

N.C.     App.       799,    801     n.2,   656     S.E.2d     704,    706    n.2     (2008)

(explaining that            N.C. Gen. Stat. § 15A-1444(a1) did not bar

direct appeal of issue whether sentencing judge was biased since

issue    did    not        pertain    to   whether      defendant's         sentence   was

supported       by     evidence       introduced        at    trial    and     sentencing

hearing).       We, therefore, review defendant's argument.

       After the jury rendered its verdict, the trial court asked

defendant to stand and the following exchange occurred:

                         THE COURT: [Defendant], one of the
               worst jobs a police officer can have, and
               I'm not trying to fuss with you, but one of
               the worst jobs they can have is getting put
               in a situation that this Court feels like
               you put this police officer in.

                                 THE DEFENDANT: May I say something
               --

                                 THE COURT: I'm not asking --

                                 THE DEFENDANT: -- about it?

                         THE COURT: No, I'm not asking you
               for any comment.
                                  -15-
                I can't put you in jail.    This is a
           Class I felony, and it just calls for
           community punishment.  But I just want you
           to understand that that's a bad thing.
           That's the way this Court sees it.   You're
           lucky that it falls into a Class I, the
           possession of cocaine.

                     THE DEFENDANT: Well, what              about
           him beating me and all that though?

                     THE COURT: Well, I'm not asking
           you for any comment; I'm just trying to
           explain to you my position.

                       THE DEFENDANT: Oh.

                ([Defense     counsel]      speaks     to     the
           Defendant.)

                     THE COURT: The jury has convicted
           you.    As I've always thought, under the
           facts that they heard, they did just exactly
           right, so I'm going to impose a sentence.

The   trial    court   then   sentenced   defendant      without    further

comment.

      "Allocution, or a defendant's right to make a statement in

his own behalf before the pronouncement of a sentence, was a

right granted a defendant at common law."            State v. Miller, 137

N.C. App. 450, 460, 528 S.E.2d 626, 632 (2000).             That right has

been codified in N.C. Gen. Stat. § 15A-1334(b), which provides:

"The defendant at the hearing may make a statement in his own

behalf."      This Court has previously explained that "'N.C. Gen.

Stat. § 15A–1334(b) expressly gives a non-capital defendant the

right to make a statement in his own behalf at his sentencing
                                             -16-
hearing'     if    the    defendant      requests       to     do    so     prior      to    the

pronouncement of sentence."                  Miller, 137 N.C. App. at 461, 528

S.E.2d at 632 (quoting State v. Rankins, 133 N.C. App. 607, 613,

515 S.E.2d 748, 752 (1999)).

      In    Miller,      at    sentencing,      after       defense       counsel      made    a

sentencing argument on the defendant's behalf, the trial court

asked whether defense counsel and the prosecutor had anything

further to offer for sentencing and each stated he did not.                                  Id.

at   460,   528    S.E.2d        at   632.      The    court      then     instructed        the

defendant to stand and, prior to the court imposing defendant's

sentence,     defense         counsel    asked,       "'Your        Honor,       may   he     be

heard?'"     Id.     The court responded, "'No, sir.                     No, sir[,]'" and

proceeded to sentence the defendant.                   Id.     On appeal, this Court

held that because the defendant requested to make a personal

statement to the court prior to sentencing and was refused the

opportunity,       the    defendant      was    entitled       to    a     new    sentencing

hearing.     Id. at 461, 528 S.E.2d at 632.

      Similarly,         here,    defendant         asked   for     an     opportunity        to

personally address the court prior to sentencing, but the court

denied her request, stating: "No, I'm not asking you for any

comment."         Although defendant subsequently interposed a short

statement    --     "Well,       what   about    him    beating       me    and     all     that
                                        -17-
though?" -- the court's response to that statement was, again,

"Well, I'm not asking you for any comment . . . ."

      Since the court twice made clear it was not permitting

defendant an opportunity to make a statement, defendant's brief,

forced comment does not satisfy the court's obligation to allow

defendant     an    opportunity    to   make    a    personal    statement,         upon

request, prior to sentencing.                Consequently, as in Miller, we

must vacate defendant's sentence and remand for resentencing.

See also State v. McRae, 70 N.C. App. 779, 781, 320 S.E.2d 914,

915-16 (1984) ("Where the trial judge may have been uninformed

as   to    relevant    facts   because    of    his    failure      to    afford    the

defendant a proper sentencing hearing, which is a critical stage

of   a     criminal    proceeding,      we     are    restrained         from    saying

defendant      has     not     been     prejudiced."         (internal          citation

omitted)).


      No    error     in   part;   vacated      in    part    and    remanded        for

      resentencing.

      Judges BRYANT and CALABRIA concur.

      Report per Rule 30(e).
