State v. Morris

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-3

Filed 07 March 2023

Duplin County, Nos. 19CRS51734-35

STATE OF NORTH CAROLINA

v.

ADRON MORRIS, JR., Defendant.

Appeal by defendant from judgments entered on or about 28 May 2021 by

Judge Henry L. Stevens in Superior Court, Duplin County. Heard in the Court of

Appeals 9 August 2022.

Attorney General Joshua H. Stein, by Assistant Attorney General Sage A. Boyd,

for the State.

Shelly Bibb DeAdder, for defendant-appellant.

STROUD, Chief Judge.

Defendant Adron Morris, Jr. appeals from an order denying his motion to

suppress eyewitness identification evidence and from two judgments for one count

per judgment of (1) sale and (2) delivery of cocaine.1 As to the motion to suppress,

because there was not a substantial likelihood of irreparable misidentification, the

1 As explained below, the trial court incorrectly entered judgement for two counts of sale and two

counts of delivery of cocaine. Instead, the trial court should have entered judgment for two total counts

of sale or delivery of cocaine. Because the trial court’s error in the judgment related back to both the

indictment and the jury’s verdicts, we mention separate charges for (1) sale of cocaine and (2) delivery

of cocaine throughout the “Background” section. The discussion of why the trial court erred in treating

sale and delivery as separate charges occurs in the “Sentencing Issue” section.

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Opinion of the Court

identification did not violate due process. Because the Eyewitness Identification

Reform Act (“EIRA”) did not apply, the identification did not violate it either. As a

result, we affirm the trial court’s denial of Defendant’s motion to suppress. As to

Defendant’s trial, because the EIRA did not apply, the trial court did not err in

denying Defendant’s motion in limine based on the EIRA. Because there was

overwhelming evidence of Defendant’s guilt, the trial court did not plainly err by

allowing the jurors to treat illustrative evidence as substantive evidence. Finally,

because the trial court erred by giving weight to both the sale and the delivery of

cocaine charges when sentencing Defendant, we remand for Defendant to be

resentenced on a single count of sale or delivery for each involved transaction.

I. Background

Because the main factual disputes in this appeal concern Defendant’s motion

to suppress, we start by discussing what the State’s evidence tended to show at the

suppression hearing. That evidence tended to show, on 12 and 13 December 2017,

Detective Cody Boyette of the Duplin County Sheriff’s Office had two informants,

Kenyatta Polk and “Ms. Eve,”2 conduct undercover drug buys at a trailer park in

Wallace, North Carolina. On both days, the informants bought crack cocaine from

someone Eve knew as “Head[.]” Polk later identified Defendant as Head at the

suppression hearing.

2 At various points in the transcript, Ms. Eve is also referred to as Evelyn. We refer to her as Eve

throughout for consistency.

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Each day the informants went to the vacant trailer around mid-day. The

weather and visibility were good, and Polk had a clear, unobstructed view of Head

from “[a]bout three to five feet” away during their interactions, which lasted

“[p]robably a minute” or two. As the “lead” or “primary” informant, Polk recorded the

interactions, with both audio and video means, using equipment supplied by

Detective Boyette.

After the interactions, the informants returned to Detective Boyette with the

drugs they had purchased from Head. At that time, law enforcement officers

“debriefed” Polk, and she provided a written account of the interactions, identifying

the person she had purchased drugs from as Head. As part of this debrief, Polk

described Head as a “black male with a scruffy beard, 5’7 or 5’8, with a brush cut[,]”

and weighing 150 pounds. Detective Boyette also watched the recording of the

transactions shortly after recording them and created a case file for the transactions

with the suspect initially listed only as Head.

About two weeks after the undercover drug buys, Detective Boyette connected

the name Head to Defendant by using information from confidential informants and

police databases, as well as other “police work.” As part of this process, Detective

Boyette looked up identifying information for Defendant and noted Defendant was

listed as five feet, seven inches tall and 150 pounds, as Polk had described. Once

Detective Boyette had Defendant’s name, he looked up a DMV photo of Defendant

and compared it to the footage of Head from the recordings of the drug buys, as well

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Opinion of the Court

as still photos taken from the footage, to confirm Defendant was Head. Detective

Boyette did not ask Polk to identify Defendant as Head at that time.

After a delay to allow the informants to continue working without revealing

their identities, the Duplin County Sheriff’s Office arrested Defendant on or about 19

September 2019. Then, on or about 17 December 2019, Defendant was indicted on

two counts each—one for each of the days of the controlled buys—of the following

three charges: possession with intent to manufacture, sell, and/or deliver a Schedule

II controlled substance, i.e. the cocaine (“possession”); sale of a Schedule II controlled

substance (“sale”); and delivery of a Schedule II controlled substance (“delivery”).

Then, on 9 October 2020, the State held a trial preparation meeting with one

of the informants, Polk,3 and Detective Boyette. While reviewing the case file at this

meeting, Polk saw a DMV picture of Defendant with Defendant’s name written on it.

After Polk picked up the photo, the prosecutor and Detective Boyette asked her, “Is

this the person you purchased from?” Polk responded, “Yes.” The prosecutor and

Detective Boyette did not show Polk any other pictures at the trial preparation

meeting.

Partially as a result of this meeting, on 23 October 2020, Defendant’s attorney

filed a motion to suppress “eyewitness testimony and prevent[] certain witnesses from

3The other informant, Eve, did not testify at either the suppression hearing or Defendant’s trial. Our

record does not contain any information about her beyond her involvement in the initial undercover

drug buys as discussed above.

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rendering in-court identifications” based on the federal and state Constitutions and

EIRA. Specifically, Defendant contended law enforcement never had either of the

two informants who conducted the drug buys identify Defendant as Head, the person

from whom they had bought the cocaine. Defendant argued allowing an identification

for the first time in court “would amount to an impermissible ‘show up,’ in clear

violation of Defendant’s due process and statutory rights.” As a result, Defendant

asked the trial court to suppress “any eyewitness identifications, including potential

in-court identifications[.]”

On 29 October 2020, the trial court held a hearing on Defendant’s motion to

suppress. At the hearing both Polk and Detective Boyette testified about the

undercover drug buys and Polk’s subsequent trial preparation meeting as discussed

above. Polk also identified Defendant as Head, the person from whom she bought

drugs, with “[a] hundred percent” certainty. The State further admitted into

evidence: the recordings of both undercover drug buys; still photographs of Head

taken from those recordings; Polk’s written debriefs; and the information from police

databases Detective Boyette used to identify Defendant as Head. The State finally

played the relevant portions of the recordings during Polk’s testimony. After hearing

arguments from counsel, the trial court orally denied Defendant’s motion to suppress.

The trial court subsequently entered a written order denying Defendant’s

motion to suppress that aligned with its oral order. First, the trial court found both

Polk and Detective Boyette “to be credible.” The trial court then found on both 12

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and 13 December 2017 Polk bought “a controlled substance” from Head and “[d]uring

the transaction it was light out, there was nothing obstructing the person known as

Head’s face, [and] Ms. Polk had an unobstructed view of Head’s face for

approximately 1 minute from a distance of 3 to 5 feet.” On both days, Polk recorded

the interactions, and “[a]n unobstructed view of Head’s person, including his face,

were clearly depicted in the recordings.” The trial court also found “[i]mmediately

after” the 12 December transaction, Polk described Head “as being a young black

male standing approximately 5’7” and weighing approximately 150 pounds.” After

recounting how Polk had identified Defendant as the person from whom she bought

drugs with one hundred percent certainty, the trial court made another finding about

the circumstances surrounding the identification that largely summarized the prior

findings. In its final two findings, the trial court determined “[t]here was not a

substantial likelihood of misidentification by the witness[,]” and “[t]here was a

reasonable possibility of observation sufficient to permit subsequent identification.”

Based on those findings of fact, the trial court concluded “[t]he identification

procedure was not so impermissibly suggestive as to create a substantial likelihood

of misidentification[,]” again noting Polk “unequivocally identified . . . Defendant as

the person from whom she bought controlled substances.” The trial court also noted

it took into account the EIRA. As a result, the trial court denied Defendant’s motion

to suppress.

Following the suppression hearing, Defendant’s attorney filed two motions in

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limine on 15 November 2020. In the first motion in limine, Defendant sought to

exclude any testimony by Detective Boyette identifying Defendant as Head on the

grounds it was impermissible lay opinion testimony because Detective Boyette only

made an identification by comparing the still photos from the recordings of the

transactions to pictures of Defendant in “law enforcement databases” rather than by

having any personal interaction with Defendant or Head. In the second motion,

Defendant asked for the court to deem admissible “evidence of the State’s failure to

comply with the” EIRA.

The case came for trial starting on 24 May 2021. Before the start of trial and

outside the presence of the jury, the parties discussed the motions in limine. The

parties told the court they had reached a “tentative agreement” on the motion in

limine about Detective Boyette’s identification of Defendant as Head. The trial court

heard arguments on the other motion in limine about the EIRA. During these

arguments, the State asserted, in part, the EIRA did not apply to Polk’s identification.

The trial court agreed with the State that the EIRA did not apply, so it did not allow

Defendant’s attorney to “bring[] up” that law enforcement was “required to do certain

things under the” EIRA. But the trial court clarified questions about the

identification, the timeframe, “and all that kind of stuff are obviously permissible.”

At trial, the State’s only witnesses were Polk and Detective Boyette. Polk

testified about the controlled drug purchases of crack cocaine consistent with her

testimony at the suppression hearing. As part of Polk’s testimony, the jurors watched

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her recordings of the transactions on both days, and the State introduced still photos

of Head taken from the recordings. After the trial court overruled the renewed

objection of Defendant’s counsel, Polk identified Defendant as the person from whom

she purchased drugs both days with “[a] hundred percent” certainty. Detective

Boyette also testified consistently with his testimony at the suppression hearing. In

addition to testimony on the topics he discussed at the suppression hearing, Detective

Boyette explained to the jury how the undercover drug buys took place in an area

“[a]pproximately a football field or less” from an address associated with Defendant.

Defendant did not present evidence at trial, so the case went to the jury.

During jury deliberations, the jurors sent a note to the court saying, “DMV photo, still

shots, all photos.” Neither party objected to the jurors receiving these items, but, at

the State’s request, the jurors reviewed them in the courtroom.

Following the deliberations, the jury found Defendant guilty of two counts

each, one for each day, of: possession; sale; and delivery. The trial court arrested

judgment on both the possession charges. On or about 28 May 2021, the trial court

entered judgment on both the sell and deliver charges; it sentenced Defendant to 15

to 27 months for the 12 December counts and 15 to 27 months for the 13 December

counts. Defendant gave oral notice of appeal in open court.

II. Analysis

Defendant contends the trial court erred in four ways. First, he argues “the

trial court erred by denying [his] motion to suppress” the informant Polk’s

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“eyewitness identification because the identification procedure . . . violated his due

process rights.” (Capitalization altered.) Second, Defendant asserts “the

identification procedure did not comply with the” EIRA, so the trial court erred in

denying his motion to suppress on that ground as well and “erred by denying [his]

motion in limine to introduce evidence that the State failed to comply with the EIRA.”

(Capitalization altered.) Third, Defendant contends the trial court plainly erred “by

allowing the jury to examine” his DMV photo during deliberations and to “treat it as

substantive evidence” because it was introduced for illustrative purposes only.

(Capitalization altered.) Finally, Defendant argues “the trial court erred by entering

judgment for both selling and delivering cocaine.” (Capitalization altered.) We

address each of the issues in turn.

A. Eyewitness Identification and Due Process

Defendant first argues the trial court erred in denying his motion to suppress

because Polk’s identification “violated his due process rights.” The due process

inquiry in the context of eyewitness identification “asks ‘whether the identification

procedure was so suggestive as to create a substantial likelihood of irreparable

misidentification.’” State v. Rouse, 284 N.C. App. 473, 480, 876 S.E.2d 107, 114 (2022)

(quoting State v. Malone, 373 N.C. 134, 146, 833 S.E.2d 779, 787 (2019)), disc. rev.

denied, ___ N.C. ___, 881 S.E.2d 308 (2022). That inquiry has two steps:

first assessing “whether the identification procedures were

impermissibly suggestive.” [Malone, 373 N.C. at 146, 833

S.E.2d at 787] (citations and quotations omitted). “If this

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question is answered negatively, our inquiry is at an end.”

State v. Headen, 295 N.C. 437, 439, 245 S.E.2d 706, 708

(1978). If the answer is affirmative, courts then determine

“whether the procedures create a substantial likelihood of

irreparable misidentification.” Malone, 373 N.C. at 146,

833 S.E.2d at 787 (citations and quotations omitted). At

this second step, “[t]he central question is whether under

the totality of the circumstances the identification was

reliable even if the confrontation procedure was

suggestive.” [State v.] Reaves-Smith, 271 N.C. App. [337,]

345, 844 S.E.2d [19,] 25 [(2020)] (citing State v. Oliver, 302

N.C. 28, 45-46, 274 S.E.2d 183, 195 (1981))[.]

Id. at 480, 876 S.E.2d at 114-15 (bracket for “[t]he” in original) (brackets with citation

information added). To aid in the second step’s totality of the circumstances analysis,

courts use five factors:

[(1)] the opportunity of the witness to view the accused at

the time of the crime, [(2)] the witness’ degree of attention

at the time, [(3)] the accuracy of his prior description of the

accused, [(4)] the witness’ level of certainty in identifying

the accused at the time of the confrontation, and [(5)] the

time between the crime and the confrontation.

Id. at 481-82, 876 S.E.2d at 115 (brackets in original) (quoting Malone, 373 N.C. at

147, 833 S.E.2d at 787).

Having reviewed that framework, we turn to Defendant’s specific arguments

on the due process issue. First, Defendant challenges certain findings of fact within

the trial court’s order denying his motion to suppress. Defendant then argues the

“the trial court’s Findings of Fact do not support the Conclusions of Law” that “the

‘identification procedure was not so impermissibly suggestive as to create a

substantial likelihood of irreparable misidentification’ and that ‘[t]here was a

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reasonable possibility of observation sufficient to permit subsequent identification[,]’”

which both support the trial court’s ultimate conclusion, the identification did not

violate Defendant’s due process rights. (First brackets in original.) After addressing

the standard of review, we assess Defendant’s challenges to the findings and then to

the trial court’s conclusion his due process rights were not violated.

1. Standard of Review

This Court recently summarized the standard of review for the denial of a

motion to suppress in an eyewitness identification case:

On appeal, “review of the denial of a motion to suppress is

limited to determining whether competent evidence

supports the trial court’s findings of fact and whether the

findings of fact support the conclusions of law.” State v.

Malone, 373 N.C. 134, 145, 833 S.E.2d 779, 786 (2019)

(quotations and citations omitted). “Unchallenged findings

are deemed supported by competent evidence and are

binding on appeal.” State v. Fields, 268 N.C. App. 561, 566-

67, 836 S.E.2d 886, 890 (2019) (citing State v. Biber, 365

N.C. 162, 167, 712 S.E.2d 874, 878 (2011)). Challenged

findings “are conclusive on appeal if supported by

competent evidence, even if the evidence is conflicting.”

Malone, 373 N.C. at 145, 833 S.E.2d at 786 (quotations and

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

of law are fully reviewable on appeal.” Id. (citation

omitted); see also Fields, 268 N.C. App. at 567, 836 S.E.2d

at 890 (“Conclusions of law are reviewed de novo.”).

Id. at 479, 876 S.E.2d at 114.

2. Challenged Findings of Fact

Applying that standard of review, Defendant first contends findings of fact 2,

3, 4, 7, 8, and 9 “are not supported by competent evidence.” (Capitalization altered.)

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Defendant groups his challenges to the findings, and we review his contentions in

those groups.

First, Defendant challenges findings 2, 3, and 7. Findings 2 and 3 concern the

informant Polk’s drug purchases:

2. On or about December 12, 2017, Ms. Polk bought a

controlled substance from someone she referred to as

“Head.” During the transaction it was light out, there was

nothing obstructing the person known as Head’s face, Ms.

Polk had an unobstructed view of Head’s face for

approximately 1 minute from a distance of 3 to 5 feet.

3. On or about December 13, 2017, Ms. Polk bought a

controlled substance from someone she referred to as

“Head.” During the transaction it was light out, there was

nothing obstructing the person known as Head’s face, Ms.

Polk had an unobstructed view of Head’s face for

approximately 1 minute from a distance of 3 to 5 feet.

Finding 7 summarizes previous findings and lists them in alignment with the five

factors relevant for the second step of the due process analysis:

7. Although it has been nearly 3 years since the crime

occurred, Polk had ample opportunity to view the

perpetrator of this crime in person at a distance of 3 to 5

feet with two separate daylight observations lasting

approximately 1 minute each. Polk is a professional

informant and exhibited a high degree of attention as

evidenced by her care in recording the perpetrator and his

face. Polk’s description of the perpetrator was extremely

accurate as evidenced by her estimation of his height and

weight matching his recorded height and weight. Polk also

demonstrated a high level of certainty, stating that she was

“100% certain” that Defendant was the man from whom

she bought controlled substances on December 12, 2017

and December 13, 2017.

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See id. at 481, 876 S.E.2d at 115 (listing factors).

As to each of these three findings, Defendant specifically challenges the

sentences on Polk’s “clear and unobstructed view of Head for approximately one

minute[.]” Defendant admits Polk “testified that one to two minutes passed from the

time she arrived to purchase the drugs to the time the drugs were in her hands” and

the testimony “is accurate according to the videos[.]” But Defendant contends “the

relevant timeframe is her direct interaction with Head[,]” which lasted only 35

seconds on 12 December and 26 seconds on 13 December, and that time period “is

half of what the trial court sets forth.”

As Defendant indicates, Polk testified the time between her arrival to

obtaining the drugs was “[o]ne to two minutes” for each of the two days. After

reviewing the videos which were shown during the suppression hearing, Defendant

is correct the interactions were closer to 30 to 40 seconds each day rather than a full

minute. But Polk also testified she interacted with Head for a minute on each day:

Q. So the entirety of your interaction with Head was

basically a minute on December 12, 2017 and another

minute on December 13, 2017, is that right?

A. Yes, sir.

Notably, that testimony came on cross-examination by Defendant’s own attorney.

Since Polk testified each interaction was “basically a minute,” the trial court had

competent evidence to support the Findings, even if the video presented conflicting

evidence. See id. at 479, 876 S.E.2d at 114 (“Challenged findings ‘are conclusive on

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appeal if supported by competent evidence, even if the evidence is conflicting.’”

(quoting Malone, 373 N.C. at 145, 833 S.E.2d at 786)). Therefore, we reject

Defendant’s challenge to findings 2, 3, and 7 on the ground that the timeframe of the

informant Polk’s interaction with Head was shorter than the trial court found.

Defendant also challenges finding 4 together with another part of finding 7.

Finding 4 states:

4. Ms. Polk captured both the December 12 and December

13 transactions on an audio/visual recording device. An

unobstructed view of Head’s person, including his face,

were clearly depicted in the recordings.

As to finding 4, Defendant argues “[t]he recordings in this case are not clear[,]” and

the trial court erroneously stated, “Head is distinctly visible throughout the

interactions.” Defendant also challenges finding 7’s statement Polk “exhibited a high

degree of attention as evidenced by her care in recording the perpetrator and his face.”

We reject Defendant’s challenges to finding 4 and that part of finding 7 because

the trial court had competent evidence to support those findings. As to finding 4,

Defendant misstates the finding. Finding 4 never says the recording is clear or Head

“is distinctly visible throughout the interactions.” The trial court only found there

was a clear, unobstructed view of “Head’s person, including his face,” in the

recordings during at least one point. Reviewing the videos shown at the suppression

hearing, they clearly depict the person identified as Head, including both his body

and his face. Similarly, finding 7 only stated Polk ensured the recordings captured

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“the perpetrator and his face[,]” and those same portions of the video show she did.

As a result, the trial court had competent evidence to support findings 4 and 7.

Finally, Defendant argues findings 8 and 9 are actually conclusions of law. We

agree. Findings 8 and 9 state:

8. There was not a substantial likelihood of

misidentification by the witness.

9. There was a reasonable possibility of observation

sufficient to permit subsequent identification.

Both findings relate to the second step of the due process analysis discussed above.

Finding 8’s language on the lack of “a substantial likelihood of misidentification”

mirrors the language for the second part of the analysis. See id. at 480, 876 S.E.2d

at 114 (phrasing the second step as “a substantial likelihood of irreparable

misidentification” (citations and quotation marks omitted)). And finding 9’s focus on

a previous “observation sufficient to permit subsequent identification” resembles the

first factor of the five factors used when conducting the second step inquiry because

the first factor focuses on “the opportunity of the witness to view the accused at the

time of the crime.” Id. at 481, 876 S.E.2d at 115. Because these findings are actually

conclusions of law, we will treat them as conclusions. See State v. Hopper, 205 N.C.

App. 175, 179, 695 S.E.2d 801, 805 (2010) (“A trial court’s mislabeling a

determination . . . is inconsequential as the appellate court may simply re-classify the

determination and apply the appropriate standard of review.” (citations and

quotation marks omitted)). As a result, we will review the findings with Defendant’s

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argument the trial court erred in concluding the identification did not violate his due

process rights, to which we now turn.

3. Conclusions of Law on Due Process

Defendant argues the trial court erred in concluding “the identification

procedure was not so impermissibly suggestive as to create a substantial likelihood

of irreparable misidentification” and that there “was a reasonable possibility of

observation sufficient to permit subsequent identification” and therefore erred in

determining no due process violation occurred. Specifically, Defendant, aligning with

the two prongs of the due process test, see Rouse, 284 N.C. App. at 480, 876 S.E.2d at

114-15, argues “the identification procedure in this case was impermissibly

suggestive” and “there was a substantial likelihood of misidentification.”

(Capitalization altered.) We review the trial court’s conclusion that the identification

procedure did not violate due process de novo. See id. at 479, 876 S.E.2d at 114.

The first issue is “whether the identification procedures were impermissibly

suggestive.” Id. at 480, 876 S.E.2d at 114. The trial court did not make any findings

on the pre-trial identification procedure in question in this case, but Polk testified

about the procedure during the suppression hearing. Specifically, during trial

preparation with the prosecutor and Detective Boyette, Polk reviewed “the file” and

saw a DMV picture of Defendant with Defendant’s name on it. After Polk picked up

the photo, “they asked [her] the - ‘Is this the person you purchased from[,]’” and she

said yes. That photo was the only picture Polk saw or was asked about; she had not

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been asked to identify any photos prior to the trial preparation meeting and was only

asked about that one photo at the meeting.

“Our courts have widely condemned the practice of showing suspects singly to

persons for the purpose of identification.” State v. Yancey, 291 N.C. 656, 661, 231

S.E.2d 637, 640 (1977) (citing, inter alia, Stovall v. Denno, 388 U.S. 293, 302, 18

L.Ed.2d 1199, 1206 (1967), abrogated on other grounds by U.S. v. Johnson, 457 U.S.

537, 73 L.Ed.2d 202 (1982)). Furthermore, the Supreme Court of the United States

“has held that single-suspect identification procedures ‘clearly convey the suggestion

to the witness that the one presented is believed guilty by the police.’” Malone, 373

N.C. at 148, 833 S.E.2d at 788 (brackets omitted) (quoting U.S. v. Wade, 388 U.S. 218,

234, 18 L.Ed.2d 1149, 1161 (1967)). For example, in State v. Jones, this Court held

“[t]he showing of only one picture some seven months after the incident occurred,

after the witness had been notified that he would be receiving a photograph of the

defendant and with the defendant’s name written on the back, was impermissibly

suggestive.” State v. Jones, 98 N.C. App. 342, 347, 391 S.E.2d 52, 56 (1990).

Further, in Malone, our Supreme Court found a similar trial preparation

identification scenario to be impermissibly suggestive. See Malone, 373 N.C. at 148,

833 S.E.2d at 788. There, the prosecutor showed two witnesses a video of one

defendant’s interview and recent photographs of both defendants. See id. The

Malone Court determined the prosecutor “did more than simply convey a suggestion”

and “effectively told” the witnesses “they were viewing pictures of the men police

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believed were responsible” by showing them the photos “in a meeting two weeks

before trial.” Id. The Malone Court also rejected the arguments that the trial

preparation setting or the fact that one of the witnesses asked to see the video of the

defendant’s interview changed the first step of the due process analysis. See id. at

148-49, 833 S.E.2d at 788-79. The Malone Court held the situation led “inescapably

to the legal conclusion that the procedures employed . . . were impermissibly

suggestive.” Id. at 149, 833 S.E.2d at 789.

Here, the identification situation resembles both Jones and Malone, so it was

also impermissibly suggestive. Similar to Jones, Polk saw only one photo years after

the incident, and the photo had Defendant’s name written on it. See Jones, 98 N.C.

App. at 347, 391 S.E.2d at 56. And similar to Malone, the district attorney “effectively

told” Polk she was looking at a picture of the person police believed bought the drugs

because Defendant’s name was on the picture and the picture was included in the

police file during a meeting to prepare for Defendant’s trial. See Malone, 373 N.C. at

148-49, 833 S.E.2d at 788-79. Moreover, it does not make a difference that here Polk

picked up the photo out of the file before the prosecutor and Detective Boyette asked

if that was the person from whom she purchased the drugs. The Malone Court

rejected a similar argument when in that case the witness asked to watch one of the

videos of a defendant. See id. As a result, we determine Polk seeing the photo of

Defendant in the file during the trial preparation meeting was impermissibly

suggestive, thereby satisfying the first step of the due process inquiry.

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The State argues Polk’s “out-of-court identification was not impermissibly

suggestive” because she: had previously interacted with the person she had bought

drugs from “during daylight with clear visibility[;]” was able to record those

interactions; and described him afterwards. But those arguments all relate to the

factors used to assess the substantial likelihood of irreparable misidentification

rather than to the impermissibly suggestive nature of the identification. See Rouse,

284 N.C. App. at 481, 876 S.E.2d at 115. For example, the State’s argument Polk had

previously interacted with the person she bought drugs from “during daylight with

clear visibility” relates to the first factor “the opportunity of the witness to view the

accused at the time of the crime[.]” Id. Therefore, the State’s arguments do not

change our determination that the identification was impermissibly suggestive; they

are only relevant to the second step.

Turning to that second step, we must determine “whether the procedures

create[d] a substantial likelihood of irreparable misidentification.” See id. at 480, 876

S.E.2d at 114. In order to assess that question, we use five factors:

[(1)] the opportunity of the witness to view the accused at

the time of the crime, [(2)] the witness’ degree of attention

at the time, [(3)] the accuracy of his prior description of the

accused, [(4)] the witness’ level of certainty in identifying

the accused at the time of the confrontation, and [(5)] the

time between the crime and the confrontation.

Id. at 481, 876 S.E.2d at 115 (brackets in original). “Reviewing courts do not need to

find all five factors weigh against a substantial likelihood of irreparable

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misidentification to admit the evidence over due process concerns.” Id. at 482, 876

S.E.2d at 115. The factors must ultimately be weighed against “the corrupting effect

of the suggestive procedure itself.” State v. Pigott, 320 N.C. 96, 100, 357 S.E.2d 631,

634 (1987) (citing Manson v. Brathwaite, 432 U.S. 98, 114, 53 L.Ed.2d 140, 154

(1977)). We address each factor in turn.

As to the first factor, the trial court found “[d]uring the transaction it was light

out, there was nothing obstructing the person known as Head’s face,” and Polk “had

an obstructed view of Head’s face for approximately 1 minute from a distance of 3 to

5 feet” both days she bought drugs from Head. Many of the facts for this factor

resemble the situation in Malone where the first factor counted against a due process

violation when one of the witnesses saw a shooter for 75 to 90 seconds from four feet

away. See Malone, 373 N.C. at 148-50, 833 S.E.2d at 788-79 (stating in terms of

supporting an independent origin after saying that independent origin inquiry is

“merely the second part of the due process inquiry”). Here, the time frame of

approximately two minutes total and distance of 3 to 5 feet is nearly identical. The

trial court’s additional findings—the transaction occurred when it “was light out” and

nothing was obstructing Head’s face—serve only to further strengthen Polk’s

opportunity to view the accused. Thus, this factor counts against a due process

violation.

On the second factor, “the witness’s degree of attention[,]” Rouse, 284 N.C. App.

at 481, 876 S.E.2d at 115, the trial court relevantly found Polk is a “professional” who

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took “care in recording the perpetrator and his face” given the recordings “clearly

depicted” an “unobstructed view of Head’s person, including his face[.]” In State v.

Smith, this Court noted a police officer who participated in an undercover drug

purchase testified she had “trained to maintain a high degree of attention when

observing suspects,” in part through an “informant training and control,” and because

she knew she would be required to later identify the suspect. State v. Smith, 134 N.C.

App. 123, 124, 128, 516 S.E.2d 902, 904, 906 (1999). Here, Polk’s “professional” status

and the care in the recording likewise indicate she knew she would need to pay

attention to later be able to identify the person from whom she brought the drugs.

Therefore, this factor also counts against finding a due process violation.

Turning to the third factor, we look at the accuracy of Polk’s prior description

of the accused. See Rouse, 284 N.C. App. at 481, 876 S.E.2d at 115. The trial court

found, following the first transaction on 12 December 2017, Polk described Head as

being a “young black male standing approximately 5’7” and weighing approximately

150 pounds.” The trial court also found this description “match[ed]” Defendant’s

“recorded height and weight.”

That match is important, but in the past our courts have found a more detailed

description still supported a due process violation. For example, in State v. Headen,

our Supreme Court found a due process violation in part because the witness “could

only give a general description” including the accused’s race, height, age range, build,

and hair. State v. Headen, 295 N.C. 437, 442-43, 245 S.E.2d 706, 710 (1978). This

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“general description” described the perpetrator as a white man who was 5’ 9” tall,

“slender or medium build[,]” and who had “dark colored” hair. Id. Here, Polk

described Head’s race, height, age range, and approximated his weight, but the trial

court’s binding finding, see Rouse, 284 N.C. App. at 479, 876 S.E.2d at 114 (indicating

findings supported by competent evidence are binding on appeal), does not indicate

Polk described his hair. Polk’s description also had a similar level of generality to the

one in Headen in both race and height. See Headen, 295 N.C. at 442-43, 245 S.E.2d

at 710. While Polk gave an approximate weight in comparison to just the witness’s

description of build in Headen, see id., the lack of description of Head’s hair helps

offset this greater level of detail. In total, Polk’s description here was the same or

less informative than the description in Headen that supported finding a due process

violation. See id. This factor slightly favors finding a due process violation.

For the fourth factor, we examine the witness’s “level of certainty” in the

identification “at the time of the confrontation[.]” Rouse, 284 N.C. App. at 481, 876

S.E.2d at 115. The time of the confrontation means the time of the “impermissibly

suggestive events[.]” See Malone, 373 N.C. at 151, 833 S.E.2d at 790 (indicating time

of confrontation was 29 February 2016 and then when discussing another factor

saying that was the date of “the impermissibly suggestive events”). The trial court

here only made a finding Polk identified Defendant as the person from whom she

purchased drugs with one hundred percent certainty during her testimony. The trial

court did not make any finding on Polk’s certainty at the time of the confrontation—

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i.e. when she was shown the photo of Defendant during the pre-trial meeting—

although Polk testified that when she was asked whether that photo depicted the

person from whom she purchased drugs, she said “Yes.” Since Polk’s testimony about

her identification at the time of the confrontation did not demonstrate hesitancy, this

factor slightly counts against a due process violation.

Finally, for the fifth factor, we consider “the time between the crime and the

confrontation.” Rouse, 284 N.C. App. at 481, 876 S.E.2d at 115. The trial court noted

in its findings that it had been “nearly 3 years since the crime occurred[.]” This gap

in time between the crime and confrontation resembles Malone where our Supreme

Court found the factor favored finding a due process violation when the confrontation

occurred three and a half years after the crime for one of the witnesses. See Malone,

373 N.C. at 151, 833 S.E.2d at 790. Thus, this factor also favors finding a due process

violation.

Weighing all those factors as part of the totality of the circumstances against

the corrupting influence of the identification procedure itself, the procedure did not

“create a substantial likelihood of irreparable misidentification.” Rouse, 284 N.C.

App. at 480, 876 S.E.2d at 114 (citation and quotation marks omitted). Polk had an

excellent chance to observe Head during the transactions, and she gave an accurate,

albeit limited, description of Head that matched Defendant. Her professional

background and the corresponding degree of attention she paid also mitigates the

impact of the gap in time between the confrontation and identification because Polk

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knew she could be asked to identify the person from whom she bought drugs later

and would therefore need to remember him. See Smith, 134 N.C. App. at 128, 516

S.E.2d at 906 (finding no due process violation in part because the police officer

witness was a professional who “was aware that part of her responsibility . . . would

require that she later identify [the] defendant”). While this fact does not fit cleanly

within any one of the five factors, the length in time between the confrontation and

identification is also mitigated by the fact Polk reviewed the videos she recorded of

the drug purchases shortly before making the identification. Thus, the confrontation

was fresher in Polk’s mind than the three year gap would otherwise indicate. Finally,

Polk did not express hesitancy in her identification. Because there was not a

substantial likelihood of irreparable misidentification, the identification did not

violate due process. After our de novo review, we hold the trial court did not err in

reaching that conclusion.

B. EIRA Issues

Beyond his due process argument in relation to Polk’s eyewitness

identification, Defendant contends the identification also violated the EIRA.

Specifically, Defendant argues the “procedure used in this case was either an

improper photographic lineup[,]” an “improper show-up[,]” or “some variation that is

not permitted by statute.” Defendant argues the asserted EIRA violation caused two

separate errors in the trial court. First, he contends the eyewitness identification

“should have been suppressed” because of the EIRA violation. Second, he argues the

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trial court erred by denying his “motion in limine to introduce evidence that the State

failed to comply with the EIRA.” (Capitalization altered.) The State responds Polk’s

“observation of the DMV photo in the case file was not part of a procedure outlined in

the EIRA[,]” so the trial court “appropriate[ly]” decided “the EIRA was not applicable

under these circumstances[.]”

As an initial matter, we must decide whether the EIRA applies to Polk’s

identification in this case. Only if the EIRA applies do we need to reach Defendant’s

arguments about a violation of the EIRA and the trial court’s alleged errors in relation

to any such violation.

1. Standard of Review

The applicability of the EIRA presents an issue of statutory interpretation.

“We review questions of statutory interpretation de novo.” State v. Macon, 236 N.C.

App. 182, 185, 762 S.E.2d 378, 380 (2014).

2. Applicability of the EIRA

“As our Supreme Court has emphasized, when construing a statute, ‘our

primary task is to ensure that the purpose of the legislature, the legislative intent, is

accomplished.’” State v. Rawls, 207 N.C. App. 415, 419, 700 S.E.2d 112, 115 (2010)

(quoting Electric Supply Co. of Durham, Inc. v. Swain Elec. Co., Inc., 328 N.C. 651,

656, 403 S.E.2d 291, 294 (1991)). The first method of statutory construction is to

“ascertain[]” the legislative intent “from the plain words of the statute.” Id. (quoting

Electric Supply Co., 328 N.C. at 656, 403 S.E.2d at 294). Further, when a statute

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“contains a definition of a word used therein, that definition controls[.]” Id. (quoting,

inter alia, In re Clayton-Marcus Co., 286 N.C. 215, 219, 210 S.E.2d 199, 203 (1974)).

When looking at the language of the statute, “words and phrases . . . may not be

interpreted out of context, but individual expressions must be construed as a part of

the composite whole[.]” Id. at 419, 700 S.E.2d at 115-16 (brackets omitted) (quoting,

inter alia, In re Hardy, 294 N.C. 90, 95-96, 240 S.E.2d 367, 371-72 (1978)). Finally,

as relevant here, “the legislature is ‘presumed to have acted with full knowledge of

prior and existing law and its construction by the courts.’” See id. at 421, 700 S.E.2d

at 117 (brackets omitted) (quoting State v. Anthony, 351 N.C. 611, 618, 528 S.E.2d

321, 324 (2000)).

Turning to the statute at issue here, the main provisions of the EIRA are

codified in N.C. Gen. Stat. § 15A-284.52. See N.C. Gen. Stat. § 15A-284.52 (2017).

The EIRA includes required procedures for both lineups (sub-sections (b) and (c)) and

show-ups (sub-section (c1)). Id. Both the required procedures sub-sections and the

definition sub-section identify two types of lineups, a “[l]ive lineup” and a “[p]hoto

lineup.” See id. (a)(6)-(7) (defining the two types of lineups); see, e.g., id. (b)(4) (setting

requirements for “[i]n a photo lineup”) and (b)(8) (setting requirements for “[i]n a live

lineup”). By contrast, the same relevant sub-sections for show-ups do not explicitly

differentiate between live and photo show-ups. The definition of “[s]how-up” only

discusses the use of a live person: “A procedure in which an eyewitness is presented

with a single live suspect for the purpose of determining whether the eyewitness is

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able to identify the perpetrator of a crime.” Id. (a)(8). And one of the requirements

for a show-up dictates the procedure “shall only be performed using a live suspect and

shall not be conducted with a photograph.” Id. (c1)(2).

Both of these sub-sections on show-ups indicate a show-up can only permissibly

include a live person. See id. (a)(8), (c1)(2). Thus, if the identification in this case

were a show-up under the EIRA, Defendant has shown an EIRA violation, and we

would have to discuss the potential remedies for which he argues. But, we hold the

identification procedure in his case was not a show-up covered under the EIRA.

The first issue we must address is how to classify the identification here

because that classification determines which portions of the EIRA we must interpret.

Defendant argues the procedure was either “an improper photographic lineup[,]” an

“improper show-up[,]” or “some variation that is not permitted by statute.” As

discussed above, the identification here involved Polk seeing a single photograph of

Defendant and being asked if he was the person from whom she bought the drugs. In

the past, this Court has described “[t]he use of a single photograph . . . to make an

identification” as what “might be called a photographic showup[.]” Macon, 236 N.C.

App. at 189-90, 762 S.E.2d at 383. In that case, this Court held the EIRA did not

cover single-photograph identifications “because they are not lineups” and the version

of the EIRA in effect at the time did not ban show-ups. Id. The relevant version of

the EIRA here creates requirements for at least some types of show-ups, see N.C. Gen.

Stat. § 15A-284.52(c1) (2017), following an amendment by the General Assembly. See

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2015 North Carolina Laws S.L. 2015-212, §§ 1, 3 (11 Aug. 2015) (adding show-up

provisions to § 15A-284.52(c1) in amendment effective 1 Dec. 2015). As a result, the

portion of Macon’s reasoning that a photographic show-up is not covered by the EIRA

because the EIRA does not ban show-ups has been abrogated by the statutory change.

But we still follow Macon’s rejection of the idea a single-photo identification can be

classified as a lineup. See Macon, 236 N.C. App. at 189, 762 S.E.2d at 383. Therefore,

we reject Defendant’s argument the identification here could be classified as a lineup.

Having concluded the identification here was not a lineup, the only remaining

identification type in the EIRA that could cover the identification is a show-up. Thus,

we need to determine if the identification procedure here was a show-up within the

meaning of the EIRA.

The first method of statutory interpretation, the plain meaning of the statute,

does not fully answer the question here. See Rawls, 207 N.C. App. at 419, 700 S.E.2d

at 115 (indicating the first approach in statutory interpretation is to focus on the

plain meaning of the “words of the statute” (citation and quotation marks omitted)).

Using the definition of “show-up,” which we are bound by, see id. (explaining statutory

definition “controls” (citation and quotation marks omitted)), an identification using

a single photograph, as happened here, would never be covered by the EIRA because

the statute only defines a “show-up” as “[a] procedure in which an eyewitness is

presented with a single live suspect[.]” N.C. Gen. Stat. § 15A-284.52(a)(8) (emphasis

added). But reading that definition literally to decide the EIRA does not cover so-

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called photographic show-ups does not make sense in the context of the statute, which

we are required to take into account when interpreting a statute. See Rawls, 207

N.C. App. at 419, 700 S.E.2d at 115-16. Specifically, sub-section (c1)’s requirements

for show-ups include a ban on photographic show-ups by specifically stating a show-

up “shall not be conducted with a photograph.” N.C. Gen. Stat. § 15A-284.52(c1)(2).

Thus, the General Assembly contemplated a photographic show-up and rejected it as

a permissible procedure.

Still, other aspects of a show-up make clear the identification here is not a

banned photographic show-up under the EIRA. First, looking at other show-up

requirements, the procedure can:

only be conducted when a suspect matching the description

of the perpetrator is located in close proximity in time and

place to the crime, or there is reasonable belief that the

perpetrator has changed his or her appearance in close

time to the crime, and only if there are circumstances that

require the immediate display of a suspect to an

eyewitness.

Id. (c1)(1). This requirement contemplates a show-up taking place only in close

proximity to the crime when trying to determine if a suspect is a perpetrator. See id.

That interpretation aligns the EIRA’s statutory requirements for a show-up with our

courts’ longstanding view on the positive aspects of show-ups:

A show-up “ ‘is a much less restrictive means of

determining, at the earliest stages of the investigation

process, whether a suspect is indeed the perpetrator of a

crime,’ allowing an innocent person to be ‘released with

little delay and with minimal involvement with the

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criminal justice system.’ ”

See Rouse, 284 N.C. App. at 479, 876 S.E.2d at 114 (quoting Rawls, 207 N.C. App. at

422, 700 S.E.2d at 117 (in turn quoting In re Stallings, 318 N.C. 565, 570, 350 S.E.2d

327, 329 (1986))). And we presume the General Assembly is fully aware of prior and

existing law like this description of show-ups. See Rawls, 207 N.C. App. at 421, 700

S.E.2d at 117.

In contrast to our longstanding description of show-ups, the procedure here

was not conducted in close proximity to the crime and, critically, it was not conducted

to try to determine if a suspect was the perpetrator. The identification here took

place during a meeting to prepare for Defendant’s “potential trial[.]” As a result, the

State, both the police and the prosecution, had already concluded Defendant was the

perpetrator. The identification acted to bolster their evidence in support of that

conclusion since they would need to convince a jury of the same. Since the

identification here did not seek the same purpose as a show-up, it was not a show-up

under the EIRA.

Thus, at the end of our statutory construction, we conclude the identification

does not fall under the EIRA or any of its categories, either the permissible or

impermissible ones. Since the EIRA does not apply to the identification at hand, the

trial court did not err in denying Defendant’s motion to suppress or his motion in

limine on the grounds of an EIRA violation.

Defendant’s arguments to the contrary do not change our conclusion. First,

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Defendant argues, based on this Court’s opinion in State v. Malone, 256 N.C. App.

275, 807 S.E.2d 639 (2017), “all eyewitness identification procedures should comply

with the requirements of the EIRA.” (Quoting Malone, 256 N.C. App. at 294, 807

S.E.2d at 652 (emphasis added by Defendant)). But as Defendant states, our

Supreme Court reversed in part this Court’s opinion, clarified this Court’s statement

all eyewitness identifications were subject to EIRA was dicta, and declined to address

the EIRA further. See Malone, 373 N.C. at 153, 833 S.E.2d at 791. Further, this

Court has also held since the amendment to the EIRA adding show-ups that not all

out-of-court identifications are lineups or show-ups subject to the EIRA. See State v.

Crumitie, 266 N.C. App. 373, 377, 831 S.E.2d 592, 595 (2019). For example, in

Crumitie, this Court held “the inadvertent out-of-court identification of [the]

defendant, based on a single DMV photograph accessed by an investigating officer”

after receiving the name from another witness “for the purposes of issuing a BOLO”

was “neither a lineup or show-up under the EIRA, and thus not subject to those

statutory procedures.” Id. at 377-78, 831 S.E.2d at 595. There, as here, the purpose

was not to confirm a suspect was the perpetrator, so the EIRA and its provisions on

show-ups did not apply. See id.

Defendant also asserts the failure to apply the EIRA here “would create a

dangerous precedent where law enforcement can wholesale violate the EIRA and

then claim that it does not apply because they were not attempting to follow one of

the three procedures” covered by the EIRA. But our holding is limited to this case

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and this situation where the State already had identified, charged, and were

preparing to try Defendant and where the identification only happened in the course

of preparation for that trial. We do not address a situation where the police present

a single photograph to a witness shortly after the crime and ask if that was the person

who committed the crime or any other scenario.

Beyond the limited nature of our holding, other means also exist to prevent the

dire consequences of which Defendant warns. First, due process protections exist on

top of the EIRA’s statutory protections. See Macon, 236 N.C. App. at 190, 762 S.E.2d

at 383 (“Even if the EIRA does not apply, the normal due process rules still do.”).

Second, the General Assembly can of course amend the EIRA to add additional

protections if its goals are not met within the current statute as interpreted. The

General Assembly has already undertaken that course of action with the EIRA when

it added show-ups to the statute after this Court ruled in Rawls the EIRA did not

apply to show-ups. See Rawls, 207 N.C. App. at 423, 700 S.E.2d at 118; 2015 North

Carolina Laws S.L. 2015-212 (11 Aug. 2015).

After our de novo review, the EIRA does not apply to the identification in this

case. As a result, the trial court correctly denied Defendant’s motion to suppress and

motion in limine to the extent they were based on the EIRA.

C. Plain Error by Treating Illustrative Evidence as Substantive Evidence

In his third contention on appeal, Defendant argues “the trial court committed

plain error by allowing the jury to examine the DMV photograph” of him “and treat

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it as substantive evidence” because it “was introduced for illustrative purposes

only[.]” (Capitalization altered.) Specifically, Defendant contends the jury compared

his DMV photograph to still shots of Head from the drug purchases without the trial

court giving a “qualifying instruction[.]” He also asserts this error caused prejudice

because “the lack of clarity in the videos and the still shots” made it “unlikely that

the jury was able to make an identification.”

1. Standard of Review

The plain error standard applies to “unpreserved instructional or evidentiary

error.” State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012).

In the definitive case on plain error, our Supreme Court

explained:

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 affects the fairness, integrity or public

reputation of judicial proceedings[.]

State v. Thomas, 281 N.C. App. 159, 181, 867 S.E.2d 377, 394 (2021) (brackets in

original) (quoting Lawrence, 365 N.C. at 518, 723 S.E.2d at 334), disc. rev. denied, ___

N.C. ___, 878 S.E.2d 808 (2022).

2. Analysis

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Even assuming the trial court erred, the error does not rise to the level of plain

error because Defendant has failed to establish a “probable impact on the jury’s

finding” Defendant “was guilty.” Id. The jury had “overwhelming” evidence of

Defendant’s guilt, particularly on the central issue in the case: whether Defendant

was Head, the person from whom Polk and the other informant bought drugs. See

Lawrence, 356 N.C. at 519, 723 S.E.2d at 335 (“In light of the overwhelming and

uncontroverted evidence, [the] defendant cannot show that, absent the error, the jury

probably would have returned a different verdict.”). First, Polk identified Defendant

as the person who sold her drugs with “[a] hundred percent” certainty. Polk also read

her description of Head from her 12 December debrief for the jury, describing him, in

part, as “5’7” and “150 pounds,” and Detective Boyette testified the height of

Defendant matched. Detective Boyette also testified he matched the name Head to

Defendant and explained that the drug buys took place in an area “[a]pproximately a

football field or less” from an address associated with Defendant. Finally, the jury

watched the recordings of the drug buys, and the State introduced still photos of Head

taken from the recordings.

Thus, taking away the DMV photo as a point of comparison, the jury still had

many bases to determine Defendant and Head were the same person. The recording

and still photos are particularly pertinent. Even if the jury could not compare the

recording and still photos to the DMV photo, they could still compare those depictions

of Head to Defendant as he appeared before them in court. Because of this

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overwhelming evidence, Defendant “cannot show that, absent the error, the jury

probably would have returned a different verdict.” Id. Therefore, he cannot

demonstrate plain error even assuming an error. See Thomas, 281 N.C. App. at 181,

867 S.E.2d at 394 (requiring Defendant to show a “probable impact” on the jury’s

decision Defendant was guilty for an error to constitute plain error).

D. Sentencing Issue

Finally, Defendant argues “the trial court erred by entering judgment for both

selling and delivering cocaine.” (Capitalization altered.) He contends sentencing him

for “both sale and delivery of a controlled substance” is not allowable based on State

v. Moore, 327 N.C. 378, 395 S.E.2d 124 (1990). As a result, he “asks this Court to

vacate the judgment and remand for reentry of judgment and resentencing.”

1. Standard of Review

“We review alleged sentencing errors for whether the sentence is supported by

evidence introduced at the trial and sentencing hearing.” State v. Fleig, 232 N.C.

App. 647, 650, 754 S.E.2d 461, 463 (2014) (citations, quotation marks, and brackets

omitted).

2. Analysis

Defendant is correct. While a defendant can be tried for both the sale and

delivery of a controlled substance, he cannot be sentenced for “both the sale and the

delivery of a controlled substance arising from a single transfer.” See Moore, 327 N.C.

at 382-83, 395 S.E.2d at 127-28 (emphasis in original) (stating in terms of conviction

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before remanding for resentencing when the convictions for both were consolidated

into a single judgment). The Moore Court based that ruling on its determination

North Carolina General Statute § 90-95(a)(1) makes selling or delivering a controlled

substance a single criminal offense. See id. at 382, 395 S.E.2d at 127. Here, the trial

court violated this rule because it sentenced Defendant for both the sale and the

delivery of a controlled substance in two consolidated judgments, one for each day.

The trial court erred in entering convictions for both sale and delivery in the

consolidated judgments because each day there was only one transfer.

“When the trial court consolidates multiple convictions into a single judgment

but one of the convictions was entered in error, the proper remedy is to remand for

resentencing when the appellate courts ‘are unable to determine what weight, if any,

the trial court gave each of the separate convictions . . . in calculating the sentences

imposed upon the defendant.’” State v. Hardy, 242 N.C. App. 146, 160, 774 S.E.2d

410, 420 (2015) (ellipses in original) (quoting Moore, 327 N.C. at 383, 395 S.E.2d at

127-28). For example in Moore, our Supreme Court remanded because it could not

determine “what weight, if any, the trial court gave each of the separate convictions

for sale and for delivery in calculating the sentences imposed upon the defendant”

given they were consolidated for judgment. Moore, 327 N.C. at 383, 395 S.E.2d at

127-28.

The only exception to that general rule is where the defendant “has already

received the lowest possible sentence” because then it is clear the trial court did not

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improperly count the second conviction. See State v. Cromartie, 257 N.C. App. 790,

797, 810 S.E.2d 766, 772 (2018) (explaining the reason for “typically” remanding is

“the premise that multiple offense[s] probably influenced the defendant’s sentence”).

In Cromartie, for example, the defendant received “the lowest possible sentence that

he could have received in the mitigated range.” Id.

Here, the general rule requiring remand applies. The judgments themselves

indicate the trial court sentenced Defendant in the presumptive range, rather than

in the lowest possible part of the mitigated range as in Cromartie. See id. As a result,

we cannot determine “what weight, if any, the trial court gave each of the separate

convictions for sale and for delivery in calculating the sentences imposed upon”

Defendant, and “[t]his case must thus be remanded for resentencing.” Moore, 327

N.C. at 383, 395 S.E.2d at 127-28.

The State argues “any error by the trial court entering judgment for sale and

delivery of cocaine was harmless error as no prejudice arose from any such error.”

(Capitalization altered.) Specifically, the State contends “it is clear in the record that

the weight in sentencing was focused on the sale” because of statements the trial

court made at sentencing. The State also asserts “the existence of the consolidated

judgment will not prejudice Defendant in any future prior record level calculation.”

We reject the State’s harmless error argument. First, this is not a case where

Defendant was given the lowest possible sentence. Second, the State cites no binding

authority in support of this argument. The only case it cites is an unpublished case,

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Opinion of the Court

State v. Moore, No. COA19-301, 269 N.C. App. 386 (2020) (unpublished). In that case,

this Court found no prejudice based on separate convictions for sale or delivery

because the trial court “arrested judgment on the delivery convictions” and sentenced

based on sale alone. Id., slip op. at 7-8. Here, the trial court did not arrest judgment

on either the sale or delivery conviction but rather sentenced on both. Finally, and

most importantly, the trial court specifically said it was sentencing Defendant based

on both the sale and the delivery for each of the two cases. At one point, the trial

court explicitly said: “I’m going to sentence him on the sell of cocaine, which is a Class

G [felony], and the delivery of cocaine.”

Thus, the trial court apparently gave some weight to both the sale and the

delivery, which was an error that requires remand. See Moore, 327 N.C. at 383, 395

S.E.2d at 127-28. We therefore remand for Defendant to be resentenced based on a

conviction of a “single count for the ‘sale or delivery of a controlled substance’” for

each transaction. Id. at 383, 395 S.E.2d at 128.

III. Conclusion

We affirm and find no error except as to the sentencing issue for which we

remand. Specifically, we affirm the trial court’s denial of Defendant’s motion to

suppress because, given there was not a substantial likelihood of irreparable

misidentification, Polk’s identification of Defendant as Head did not violate due

process. Further, because the EIRA did not apply to that identification, the trial court

did not need to take the Act into account when ruling on the motion to suppress. The

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Opinion of the Court

EIRA’s lack of applicability also indicates the trial court did not err in denying

Defendant’s motion in limine. Because the trial court next did not plainly err in

allowing the jurors to treat the DMV photo, admitted for illustrative purposes, as

substantive evidence given the other overwhelming evidence of Defendant’s guilt, the

trial court did not err in relation to Defendant’s conviction. But the trial court erred

in sentencing Defendant on both the sale and delivery counts for each transaction

because sale or delivery is a single criminal offense. As a result of that error, we

remand for Defendant to be resentenced on a single count of sale or delivery for each

transaction.

AFFIRMED IN PART, NO ERROR IN PART, AND REMANDED FOR

RESENTENCING.

Judges ARROWOOD and COLLINS concur.

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