State v. Shoats

An unpublished opinion of the North Carolina Court of Appeals does not constitute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

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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.

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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.

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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

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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.

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[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

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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

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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).