{ "id": 8377312, "name": "STATE OF NORTH CAROLINA v. CHARLES T. MEWBORN", "name_abbreviation": "State v. Mewborn", "decision_date": "2006-07-05", "docket_number": "No. COA05-1127", "first_page": "281", "last_page": "294", "citations": [ { "type": "official", "cite": "178 N.C. App. 281" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "356 N.C. 418", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511532 ], "year": 2002, "opinion_index": -1, "case_paths": [ "/nc/356/0418-01" ] }, { "cite": "616 S.E.2d 515", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633574 ], "year": 2005, "pin_cites": [ { "page": "530", "parenthetical": "quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0515-01" ] }, { "cite": "620 S.E.2d 863", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634253 ], "year": 2005, "pin_cites": [ { "page": "868", "parenthetical": "holding, under Wilkerson, that the trial court erred in admitting the bare fact of a \"non-testifying defendant's\" prior conviction under Rule 404(b)" } ], "opinion_index": 0, "case_paths": [ "/se2d/620/0863-01" ] }, { "cite": "626 S.E.2d 835", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635219, 12635220 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/626/0835-01", "/se2d/626/0835-02" ] }, { "cite": "618 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633881 ], "year": 2005, "pin_cites": [ { "page": "757" } ], "opinion_index": 0, "case_paths": [ "/se2d/618/0754-01" ] }, { "cite": "387 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1990, "pin_cites": [ { "page": "451" }, { "page": "451" }, { "page": "451" } ], "opinion_index": 0 }, { "cite": "326 N.C. 37", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305037 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0037-01" ] }, { "cite": "239 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1977, "pin_cites": [ { "page": "465" }, { "page": "465" } ], "opinion_index": 0 }, { "cite": "293 N.C. 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567044 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "712" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0702-01" ] }, { "cite": "164 S.E.2d 371", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "375" } ], "opinion_index": 0 }, { "cite": "274 N.C. 519", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560990 ], "year": 1968, "pin_cites": [ { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/nc/274/0519-01" ] }, { "cite": "588 S.E.2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "897" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 265", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8956792 ], "year": 2003, "pin_cites": [ { "page": "271" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0265-01" ] }, { "cite": "507 S.E.2d 906", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 495", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11201779 ], "year": 1998, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0495-01" ] }, { "cite": "553 S.E.2d 79", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "82" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 394", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11358022 ], "year": 2001, "pin_cites": [ { "page": "399" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0394-01" ] }, { "cite": "74 L. Ed. 2d 622", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "pin_cites": [ { "parenthetical": "finding no error where, although the trial court did not instruct on immunity or quasi-immunity, the defendant cross-examined the accomplices and argued their interest to the jury" } ], "opinion_index": 0 }, { "cite": "459 U.S. 1056", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6487664, 6487779 ], "year": 1982, "pin_cites": [ { "parenthetical": "finding no error where, although the trial court did not instruct on immunity or quasi-immunity, the defendant cross-examined the accomplices and argued their interest to the jury" } ], "opinion_index": 0, "case_paths": [ "/us/459/1056-01", "/us/459/1056-02" ] }, { "cite": "292 S.E.2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "256-58", "parenthetical": "finding no error where, although the trial court did not instruct on immunity or quasi-immunity, the defendant cross-examined the accomplices and argued their interest to the jury" } ], "opinion_index": 0 }, { "cite": "305 N.C. 656", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573030 ], "year": 1982, "pin_cites": [ { "page": "676-80", "parenthetical": "finding no error where, although the trial court did not instruct on immunity or quasi-immunity, the defendant cross-examined the accomplices and argued their interest to the jury" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0656-01" ] }, { "cite": "359 N.C. 709", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3802205 ], "year": 2005, "pin_cites": [ { "page": "730", "parenthetical": "quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0709-01" ] }, { "cite": "90 S.E.2d 690", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "691" } ], "opinion_index": 0 }, { "cite": "243 N.C. 429", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625515 ], "year": 1956, "pin_cites": [ { "page": "431" } ], "opinion_index": 0, "case_paths": [ "/nc/243/0429-01" ] }, { "cite": "365 S.E.2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "605-06", "parenthetical": "quoting State v. Hooker, 243 N.C. 429, 431, 90 S.E.2d 690, 691 (1956)" } ], "opinion_index": 0 }, { "cite": "321 N.C. 633", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569966 ], "year": 1988, "pin_cites": [ { "page": "644", "parenthetical": "quoting State v. Hooker, 243 N.C. 429, 431, 90 S.E.2d 690, 691 (1956)" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0633-01" ] }, { "cite": "317 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 307", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4684712, 4684624, 4683856, 4687030, 4683192 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0307-04", "/nc/311/0307-05", "/nc/311/0307-01", "/nc/311/0307-03", "/nc/311/0307-02" ] }, { "cite": "312 S.E.2d 541", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "544" } ], "opinion_index": 0 }, { "cite": "67 N.C. App. 97", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525703 ], "year": 1984, "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/nc-app/67/0097-01" ] }, { "cite": "285 S.E.2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "818" }, { "page": "818-19" } ], "opinion_index": 0 }, { "cite": "304 N.C. 643", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570316 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/304/0643-01" ] }, { "cite": "174 N.C. App. 105", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8350588 ], "year": 2005, "pin_cites": [ { "page": "110-11", "parenthetical": "holding, under Wilkerson, that the trial court erred in admitting the bare fact of a \"non-testifying defendant's\" prior conviction under Rule 404(b)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0105-01" ] }, { "cite": "559 S.E.2d 5", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "11" }, { "page": "11" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 310", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9365770 ], "year": 2002, "pin_cites": [ { "page": "320" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0310-01" ] }, { "cite": "571 S.E.2d 583", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "opinion_index": 0 }, { "cite": "618 S.E.2d 758", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "360 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3795971, 3790502, 3787528, 3788178, 3791317, 3791865, 3793181, 3786302 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/360/0179-08", "/nc/360/0179-01", "/nc/360/0179-04", "/nc/360/0179-06", "/nc/360/0179-07", "/nc/360/0179-05", "/nc/360/0179-03", "/nc/360/0179-02" ] }, { "cite": "173 N.C. App. 101", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352960 ], "year": 2005, "pin_cites": [ { "page": "104-05" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0101-01" ] }, { "cite": "573 S.E.2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "143" } ], "opinion_index": 0 }, { "cite": "356 N.C. 490", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511491 ], "year": 2002, "pin_cites": [ { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0490-01" ] }, { "cite": "148 L. Ed. 2d 797", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "531 U.S. 1130", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9725312, 9726080, 9725538, 9725636, 9725125, 9726440, 9726185, 9725963, 9725742, 9726553, 9726323, 9725849, 9725435, 9725213 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/531/1130-03", "/us/531/1130-10", "/us/531/1130-05", "/us/531/1130-06", "/us/531/1130-01", "/us/531/1130-13", "/us/531/1130-11", "/us/531/1130-09", "/us/531/1130-07", "/us/531/1130-14", "/us/531/1130-12", "/us/531/1130-08", "/us/531/1130-04", "/us/531/1130-02" ] }, { "cite": "531 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "448", "parenthetical": "quoting Lynch, 334 N.C. at 412, 432 S.E.2d at 354" } ], "opinion_index": 0 }, { "cite": "352 N.C. 158", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685078 ], "year": 2000, "pin_cites": [ { "page": "193", "parenthetical": "quoting Lynch, 334 N.C. at 412, 432 S.E.2d at 354" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0158-01" ] }, { "cite": "405 S.E.2d 158", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "165", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "329 N.C. 108", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556602 ], "year": 1991, "pin_cites": [ { "page": "119", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0108-01" ] }, { "cite": "432 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "352" }, { "page": "354" } ], "opinion_index": 0 }, { "cite": "334 N.C. 402", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532283 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "409" }, { "page": "412" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0402-01" ] }, { "cite": "544 S.E.2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "352 N.C. 153", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684944, 685053, 685084, 685045 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/352/0153-04", "/nc/352/0153-01", "/nc/352/0153-03", "/nc/352/0153-02" ] }, { "cite": "527 S.E.2d 700", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "704" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 221", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11092797 ], "year": 2000, "pin_cites": [ { "page": "226" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0221-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(h)(3)" }, { "page": "(h)(3)" }, { "page": "(h)(6)" } ], "opinion_index": 0 }, { "cite": "356 N.C. 418", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511532 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0418-01" ] } ], "analysis": { "cardinality": 1130, "char_count": 32528, "ocr_confidence": 0.762, "pagerank": { "raw": 2.2424862520119235e-07, "percentile": 0.7802941407008671 }, "sha256": "4d8c4a5fc4cb93ce95a74ce027f8b05d3319cd41d0e18b731c722bd57329d249", "simhash": "1:8f2b4c6a77335c50", "word_count": 5263 }, "last_updated": "2023-07-14T17:18:34.747306+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and STEPHENS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CHARLES T. MEWBORN" ], "opinions": [ { "text": "McGEE, Judge.\nCharles T. Mewborn (defendant) was convicted on 17 August 2004 of trafficking in cocaine by possession, transportation, and sale, in violation of N.C. Gen. Stat. \u00a7 90-95(h)(3). Defendant was sentenced to three consecutive prison terms of thirty-five to forty-two months. Defendant appeals.\nThe State\u2019s evidence at trial tended to show that in January 2003, Detective Carter Adkins (Detective Adkins) of the Pitt County Sheriff\u2019s Department arrested Willard Taylor (Taylor) for conspiracy to traffic in cocaine. Taylor told Detective Adkins he had purchased cocaine from defendant in the past, and that he could arrange to again buy cocaine from defendant. Detective Adkins instructed Taylor to arrange to buy two ounces of cocaine from defendant in the parking lot of a Food Lion on 11 February 2003.\nPrior to the scheduled cocaine purchase, Detective Eddie Eubanks (Detective Eubanks) of the Lenoir County Sheriff\u2019s Department drove by defendant\u2019s home to identify any vehicles defendant might drive. Detective Eubanks saw \u201can older model\u201d Ford pick-up truck parked in defendant\u2019s backyard. Detective Eubanks described the truck as being red and silver with \u201cclearance lights on the top.\u201d At approximately 6:10 p.m. on 11 February 2003, Detectives Adkins and Eubanks met Taylor at a shop near the Food Lion. They searched Taylor and his truck and placed a repeater device in the truck to monitor Taylor\u2019s conversation during the cocaine buy. Detectives Adkins and Eubanks sat with a third detective in a surveillance van in the Food Lion parking lot about seventy-five yards from Taylor\u2019s truck. The surveillance van was equipped with a radio, a tape recorder, and a camcorder. The detectives saw a pick-up truck enter the parking lot and park next to Taylor\u2019s truck so that the drivers\u2019 doors were facing each other. Detective Eubanks described the pick-up truck as being the same Ford truck he had seen at defendant\u2019s home. The detectives did not see who was driving the pick-up truck, and they did not have independent knowledge of the voice they heard talking to Taylor through the repeater. After the pick-up truck left the Food Lion, the detectives followed Taylor to a predetermined location, searched him, and recovered a substance that was later identified as 54.5 grams of cocaine. Upon returning to the police station, Detective Adkins ran the license plate of the pick-up truck and determined it belonged to a 1989 Ford pick-up truck registered to defendant\u2019s mother. The detectives did not attempt to arrest the driver of the pick-up truck.\nIn May 2004, approximately fifteen months after the arranged cocaine purchase, Taylor entered into a plea agreement with the State that resolved numerous narcotics charges pending against him. In exchange for Taylor\u2019s guilty plea to one count of trafficking in cocaine by possession, the State agreed to dismiss nine other charges. At the time of defendant\u2019s trial in August 2004, Taylor had not yet been sentenced for the trafficking conviction.\nAt trial, defendant denied selling Taylor cocaine on 11 February 2003, or on any other date. Defendant testified he did not drive his pick-up truck on the night of 11 February 2003. Gary Pastor (Pastor), a licensed private investigator, testified he had seen defendant\u2019s truck and had viewed the surveillance video. Pastor testified that, in his opinion, defendant\u2019s truck was not the truck in the surveillance video. Pastor pointed out three differences between the two trucks: (1) the width of a stripe painted on the trucks, (2) the rims of the wheels, and (3) the truck in the video had a tailgate, which defendant\u2019s .truck did not have. Danny Amette, a mechanic who had worked on defendant\u2019s truck, corroborated Pastor\u2019s testimony that defendant\u2019s truck had no tailgate.\nAt the jury instruction conference, defendant requested that the trial court instruct the jury as to Taylor\u2019s testimony pursuant to North Carolina Pattern Jury Instruction 104.21, which addresses testimony of witnesses with immunity or quasi-immunity. The trial court denied defendant\u2019s request and instructed the jury pursuant to Pattern Jury Instructions 104.20 and' 104.30, which address testimony of interested witnesses and informers. The jury returned verdicts of guilty on all three charges. The trial court sentenced defendant to three consecutive sentences. Defendant appeals.\nDefendant first argues the trial court erred by allowing the State to improperly cross-examine defendant about defendant\u2019s prior convictions and defendant\u2019s status as a drug dealer. Defendant concedes that the State\u2019s cross-examination began with permissible inquiry into defendant\u2019s prior felony convictions. However, defendant contends the State \u201ccrossed the line\u201d into impermissible questioning during the following portion of its cross-examination of defendant:\nQ [W]hat about December 8th of 1995, case 95-CRS-12911, possession of cocaine?\nA ... It wasn\u2019t a cocaine, it was a paraphernalia charge that I was on.\nQ But you were convicted of possession of cocaine.\nA That\u2019s what they put down. That was my first case[.]\nQ You received a probationary sentence, right?\nA Yes, sir.\nQ And then you didn\u2019t follow through with that and actually went to prison.\nA No. You\u2019re wrong. I did follow through with it.\nQ Well, when was it that you went to Goldsboro Correctional Center?\nA When they came to my house in Winterville and searched my house for three hours, three hours tops my house, four hours for my car. Then the officer said, \u201cWell, can I go back in the house and check again? I forgot a place to check.\u201d That\u2019s when he comes out with 2.5 grams. But you must know the whole story. That\u2019s when they\u2014\nA Then that\u2019s when they put the charge on me that I broke the probation. But ever since then \u2014 I was going to my probation officer. ... I ain\u2019t never try to hide nothing from nobody.\nQ So you think all these people were picking on you.\nA I didn\u2019t say nothing about picking. You said picking, I didn\u2019t.\nQ Because they knew you were a drug dealer, didn\u2019t they?\nA That\u2019s what they said I was.\nQ Your record indicates that as well, doesn\u2019t it?\nA My record\u2014\nQ Possession of cocaine; possession with intent to sell and deliver cocaine; maintaining a vehicle, dwelling or place for controlled substances\u2014\nA It\u2019s the same thing. It\u2019s one case. Y\u2019all are making it sound like it\u2019s more than \u2014 several events. It wasn\u2019t several events, it was just one event.\nQ Two events, a year apart.\nA A year apart.\nQ So I\u2019m not putting them all in one, several events, it\u2019s two events.\nA It\u2019s two events.\nDefendant did not object at trial to the State\u2019s cross-examination. Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure states, in part, that \u201c[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion[.]\u201d N.C.R. App. P. 10(b)(1). Where a defendant does not object at trial, this Court\u2019s review of the issue is limited to plain error. N.C.R. App. P. 10(c)(4). \u201cTo prevail under a plain error analysis, a defendant must establish not only that the trial court committed error, but that absent the error, the jury probably would have reached a different, result.\u201d State v. Jones, 137 N.C. App. 221, 226, 527 S.E.2d 700, 704, disc. review denied, 352 N.C. 153, 544 S.E.2d 235 (2000).\nOn appeal, defendant argues the cross-examination was improper under N.C. Gen. Stat. \u00a7 8C-1, Rules 608, 609, and 404. Rule 608(b) provides that, for the purpose of attacking or supporting a witness\u2019s credibility, \u201cspecific instances\u201d of the conduct of a witness may be inquired into on cross-examination of the witness, so long as those specific instances concern the witness\u2019s character for truthfulness or untruthfulness. N.C. Gen. Stat. \u00a7 8C-1, Rule 608(b) (2005). Defendant argues that the State\u2019s questioning of defendant about his status as a drug dealer was neither a reference to a specific act, nor probative of defendant\u2019s truthfulness. Defendant contends, therefore, that the questioning was error under Rule 608. We agree with defendant\u2019s characterization of the State\u2019s questioning, but disagree with his contention of error. We find that, by defendant\u2019s own admission, Rule 608 is inapplicable to the contested questioning because the questioning was neither a reference to a specific act, nor probative of defendant\u2019s truthfulness. Accordingly, we find no error under Rule 608.\nUnder Rule 609, \u201c[f]or the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a felony . . . shall be admitted if elicited from the witness or established by public record during cross-examination or thereafter.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 609(a) (2005). \u201cThe permissible scope of inquiry into prior convictions for impeachment purposes is restricted, however, to the name of the crime, the time and place of the conviction, and the punishment imposed.\u201d State v. Lynch, 334 N.C. 402, 409, 432 S.E.2d 349, 352 (1993). Our Supreme Court has emphasized that, under Rule 609, \u201cit is important to remember that the only legitimate purpose for introducing evidence of past convictions is to impeach the witness\u2019s credibility.\u201d State v. Ross, 329 N.C. 108, 119, 405 S.E.2d 158, 165 (1991) (citation omitted).\nDefendant argues that although the State was permitted under Rule 609(a) to inquire about the fact of defendant\u2019s prior convictions, the State was not permitted to call defendant a drug dealer, suggest the police investigated defendant because he was a drug dealer, or argue that defendant\u2019s prior record showed defendant was a drug dealer. However, our Supreme Court has held that \u201cevidence which would otherwise be inadmissible [under Rule 609(a)] may be permissible on cross-examination \u2018to correct inaccuracies or misleading omissions in the defendant\u2019s testimony or to dispel favorable inferences arising therefrom.\u2019 \u201d State v. Braxton, 352 N.C. 158, 193, 531 S.E.2d 428, 448 (2000) (quoting Lynch, 334 N.C. at 412, 432 S.E.2d at 354), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001). We find this rule of law applicable to the present case. Here, defendant\u2019s testimony on cross-examination that his 1995 conviction for possession of cocaine should have been for possession of paraphernalia tended to mislead the jury as to defendant\u2019s prior record. Defendant\u2019s unsolicited testimony about the search of his home seemed to imply that he was framed by the officers who recovered evidence leading to his probation revocation and second conviction. Considering defendant\u2019s testimony about his prior record and the police search, we conclude the State did not exceed the scope of proper cross-examination under Rule 609(a) when, in response to defendant\u2019s testimony, the State suggested the reason police officers searched defendant\u2019s home was because they knew defendant had been convicted of selling drugs.\nDefendant also argues the State\u2019s cross-examination questions violated Rule 404. Rule 404(a) provides that \u201c[e]vidence of a person\u2019s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion[.]\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 404(a) (2005). Rule 404(b) continues:\n(b) Other crimes, wrongs, or acts. \u2014 Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 404(b) (2005). Our Supreme Court has held that \u201csuch evidence must be excluded if its only probative value is to show that [the] defendant has the propensity or disposition to commit an offense of the nature of the crime charged.\u201d State v. Berry, 356 N.C. 490, 505, 573 S.E.2d 132, 143 (2002).\nIn State v. McBride, our Court held that testimony that a defendant\u2019s associates had reputations for drug use and drug dealing was inadmissible under Rule 404(a) because the only purpose of the testimony was to show that the associates acted in conformity with their reputations while with the defendant. State v. McBride, 173 N.C. App. 101, 104-05, 618 S.E.2d 754, 757, disc. review denied, 360 N.C. 179, 626 S.E.2d 835 (2005). However, our Court went on to hold that the erroneous admission of the testimony was harmless error. Our Court noted there was other admissible evidence that an associate, characterized as a drug user, had, in fact, used drugs, and there was \u201cample evidence\u201d to convict the defendant without evidence of the associate\u2019s reputation for drug sales. Id. at 105, 618 S.E.2d 758. In the present case, defendant testified on direct examination that in February 2003 he was on probation for \u201cselling drugs.\u201d Further, Detectives Adkins and Eubanks testified, without objection, that defendant was on probation \u201c[f]or controlled substances\u201d and for \u201cselling cocaine.\u201d In light of this uncontested evidence of defendant\u2019s prior drug convictions, defendant has not shown that, assuming arguendo the cross-examination was improper under Rule 404(a), defendant was unduly prejudiced by the State\u2019s characterization of him as a drug dealer.\nCiting State v. Wilkerson, 356 N.C. 418, 571 S.E.2d 583 (2002), defendant argues the State\u2019s cross-examination violated Rule 404(b). In Wilkerson, our Supreme Court adopted Judge Wynn\u2019s dissenting opinion per curiam in reversing this Court\u2019s decision. Id. However, Wilkerson is distinguishable from the present case. The 404(b) evidence at issue in Wilkerson was testimony of a witness, not testimony by the defendant. The defendant in Wilkerson did not testify at trial, and the State elicited the fact of the defendant\u2019s prior convictions through testimony of a deputy clerk of the Rockingham County Superior Court. State v. Wilkerson, 148 N.C. App. 310, 320, 559 S.E.2d 5, 11 (2002). Because the defendant did not testify, the State could not use Rule 609 to elicit evidence of his prior convictions, and, Judge Wynn maintained, \u201cthe trial court committed prejudicial error in allowing [the clerk\u2019s] testimony of [the] defendant\u2019s prior convictions under Rule 404(b).\u201d Id. at 319, 559 S.E.2d at 11. In the present case, defendant testified on his own behalf and, as we held above, the State\u2019s cross-examination of defendant was permissible under Rule 609. Cf. State v. McCoy, 174 N.C. App. 105, 110-11, 620 S.E.2d 863, 868 (2005) (holding, under Wilkerson, that the trial court erred in admitting the bare fact of a \u201cnon-testifying defendant\u2019s\u201d prior conviction under Rule 404(b)). This assignment of error is overruled.\nDefendant next argues that, pursuant to Rule 608(b), the trial court should not have allowed the State to cross-examine defense witness Pastor about an alleged incident of sexual misconduct. On cross-examination, the State questioned Pastor as follows:\nQ In fact, your employment with the Greenville Police Department didn\u2019t end cordially, did it?\nA Not necessarily.\nQ In fact, you were under a sexual assault investigation, is that correct?\nA No, sir. There was no sexual assault investigation.\nQ All right. You were under investigation for some type of sexual advances, is that correct?\nA That is correct.\nOur Supreme Court in State v. Shane, 304 N.C. 643, 285 S.E.2d 813 (1982), held that the State\u2019s cross-examination of a defendant about his resignation from a police department because of allegations of \u201csexual improprieties\u201d was error because the State\u2019s questions failed to identify a particular act of misconduct, as required by Rule 608(b). Shane at 651, 285 S.E.2d at 818. In the present case, as in Shane, the State impermissibly framed its questions in terms of allegations of prior misconduct, rather than asking about a specific act of misconduct. See id. at 651-52, 285 S.E.2d at 818-19. However, since defendant did not object to the cross-examination of Pastor at trial, our standard of review is plain error. See N.C.R. App. P. 10(b)(1),(c)(4). Even assuming arguendo that the cross-examination of Pastor should not have been permitted, defendant has failed to show that the jury probably would have reached a different result had the contested cross-examination not been admitted. Pastor was neither an eyewitness nor an expert. Pastor testified that, in his lay opinion, the truck in the surveillance video was not defendant\u2019s truck. This testimony was based on a comparison between photographs Pastor had recently taken of defendant\u2019s truck and the image of the truck appearing in the surveillance video. The jury could have made this comparison without Pastor\u2019s testimony. Given the insignificance of Pastor\u2019s testimony, any harm to Pastor\u2019s credibility caused by the cross-examination was also insignificant and did not have a probable impact on the jury\u2019s decision. We overrule this assignment of error.\nDefendant next argues the trial court erred when it did not instruct the jury regarding Taylor\u2019s testimony according to the pattern jury instruction for testimony of a witness with immunity or quasi-immunity. At the charge conference, defendant orally requested that the trial court instruct the jury pursuant to North Carolina Pattern Jury Instruction 104.21, Testimony of Witness with Immunity or Quasi-immunity. This instruction provides:\nThere is evidence which tends to show that a witness was testifying [under a grant of immunity] [under an agreement with the prosecutor for a charge reduction in exchange for the testimony] [under an agreement with the prosecutor for a recommendation for sentence concession in exchange for the testimony]. If you find that the witness testified in whole or in part for this reason you should examine this testimony with great care and caution in deciding whether or not to believe it[.]\nN.C.P.I.\u2014Crim. 104.21 (2005) (emphasis added). The trial court denied defendant\u2019s request to instruct the jury pursuant to this instruction. Instead, the trial court instructed the jury on testimony of interested witnesses and informers, as follows:\nYou may find that a witness is interested in the outcome of this trial. In deciding whether or not to believe such a witness, you may take that witness\u2019s interest into account.\nYou may also find from the evidence that a State\u2019s witness is interested in the outcome of this case because of his activities as an informer. If so, you should examine such testimony with care and caution in light of that interest.\n(emphasis added).\nA request for special instructions to a jury must be: \u201c(1) In writing, (2) Entitled in the cause, and (3) Signed by counsel submitting them.\u201d N.C. Gen. Stat. \u00a7 l-181(a) (2005). \u201cWhere a requested instruction is not submitted in writing and signed pursuant to [N.C.] G.S. [\u00a7] 1-181, it is within the discretion of the [trial] court to give or refuse such instruction.\u201d State v. Harris, 67 N.C. App. 97, 102, 312 S.E.2d 541, 544, disc. review denied, 311 N.C. 307, 317 S.E.2d 905 (1984). Defendant does not contest that his request for a special instruction was made orally; accordingly, our standard of review is abuse of discretion. If we find the trial court abused its discretion, defendant is entitled to a new trial only if there is a reasonable probability that, had the abuse of discretion not occurred, a different result would have been reached at trial. See N.C. Gen. Stat. \u00a7 15A-1443(a) (2005). For the following reasons, we find no error warranting a new trial.\nIt is well settled that \u201c \u2018if a request be made for a special instruction, which is correct in itself and supported by evidence, the court must give the instruction at least in substance.\u2019 \u201d State v. Lamb, 321 N.C. 633, 644, 365 S.E.2d 600, 605-06 (1988) (quoting State v. Hooker, 243 N.C. 429, 431, 90 S.E.2d 690, 691 (1956)). In the present case, although the requested instruction was correct in law, it was not supported by the evidence. Contrary to defendant\u2019s assertions on appeal, no evidence was presented at trial that Taylor testified under an agreement for a charge reduction or an agreement for a sentencing concession. Detective Adkins testified that three of Taylor\u2019s charges were dismissed pursuant to a plea agreement with the State, but that there was no agreement between Detective Adkins and Taylor that resulted in the dismissals. Detective Adkins testified he advised Taylor that \u201cit would look better if he . . . cooperated with the police, that way [Detective Adkins] could go to court and tell the judge that [Taylor] [had] done wrong but [also] had done things to try to help himself out[.]\u201d At the time of defendant\u2019s trial, Taylor had not yet been sentenced for his conviction, and there was no evidence of a sentencing concession. Taylor testified that no one made promises to him in exchange for his testimony. Given the lack of evidence that Taylor had been granted immunity or quasi-immunity for his testimony against defendant, defendant has not shown that the trial court abused its discretion in denying defendant\u2019s requested special jury instruction.\nMoreover, we are satisfied that the trial court\u2019s instruction that the jury should review Taylor\u2019s testimony \u201cwith care and caution,\u201d \u201csubstantively reflected the concept defendant wished to convey to the jury.\u201d State v. Augustine, 359 N.C. 709, 730, 616 S.E.2d 515, 530 (2005) (quotation omitted) (holding a jury instruction sufficient where the defendant orally requested a special instruction as to a witness\u2019s potential habitual felon status, but the trial court instead gave a pattern instruction on interested witnesses). In addition, defendant had the opportunity to cross-examine Taylor about any alleged agreement and to argue to the jury regarding the impact of any alleged agreement upon Taylor\u2019s credibility. See State v. Williams, 305 N.C. 656, 676-80, 292 S.E.2d 243, 256-58, cert. denied, 459 U.S. 1056, 74 L. Ed. 2d 622 (1982) (finding no error where, although the trial court did not instruct on immunity or quasi-immunity, the defendant cross-examined the accomplices and argued their interest to the jury), abrogated in part on other grounds by State v. Jones, 146 N.C. App. 394, 399, 553 S.E.2d 79, 82 (2001). Given that the jury had before it.evidence of Taylor\u2019s arrest, the charges pending against Taylor, his cooperation with police, his plea agreement, and his pending sentencing hearing, defendant has failed to show there was a reasonable probability that the jurors would have reached a different result if the trial court had instructed them to view Taylor\u2019s testimony \u201cwith great care and caution\u201d rather than \u201cwith care and caution.\u201d This assignment of error is overruled.\nDefendant\u2019s final argument is that he is entitled to a new sentencing hearing because the trial court based its sentence on defendant\u2019s exercise of his right to appeal a prior matter. Defendant\u2019s argument hinges on a comment made by the trial court at sentencing. Seven years prior to defendant\u2019s sentencing in the present case, defendant appeared before the same trial judge and received a probationary sentence for a drug conviction. As part of his probation, defendant was required to buy and wear shirts identifying him as a convicted drug dealer. That portion of defendant\u2019s sentence was vacated by this Court in 1998. See State v. Mewborn, 131 N.C. App. 495, 507 S.E.2d 906 (1998) (unpublished). In the present case, before sentencing defendant, the trial court stated: \u201cNow, you know, I\u2019m convinced \u2014 I\u2019m not sure those judges are, but I\u2019m convinced that had you [worn \u2018drug dealer\u2019 shirts] it would\u2019ve helped you stay out of business and it would\u2019ve saved you from spending more time in jail.\u201d Thereafter, the trial court sentenced defendant to three consecutive sentences of thirty-five to forty-two months for each of his three trafficking convictions.\nGenerally, consecutive sentences within the presumptive range are presumed regular and valid. State v. Gantt, 161 N.C. App. 265, 271, 588 S.E.2d 893, 897 (2003). It is also well settled that a defendant cannot be punished for exercising his statutory right to appeal. See State v. Stafford, 274 N.C. 519, 525, 164 S.E.2d 371, 375 (1968). In State v. Boone, 293 N.C. 702, 239 S.E.2d 459 (1977), our Supreme Court remanded for a new sentencing where it appeared from the record that the trial court stated in open court that it would give the defendant an active sentence because the defendant had pleaded not guilty. Id. at 712, 239 S.E.2d at 465. Our Supreme Court held that the trial court\u2019s statement \u201cindicated that the sentence imposed was in part induced by [the] defendant\u2019s exercise of his constitutional right to plead not guilty and demand a trial by jury.\u201d Id. In State v. Cannon, 326 N.C. 37, 387 S.E.2d 450 (1990), our Supreme Court awarded a new trial to a defendant where the Court found it could \u201creasonably be inferred from the language of the trial [court] that the sentence was imposed at least in part because defendant. . . insisted on a trial by jury.\u201d Id. at 39, 387 S.E.2d at 451. The facts of Cannon were that, upon learning that the defendants demanded a jury trial, the trial court told counsel \u201cin no uncertain terms\u201d he would give them the maximum sentence if convicted. Id. at 38, 387 S.E.2d at 451.\nIn the present case, the trial court had statutory authority to impose consecutive sentences of the length given. N.C. Gen. Stat. \u00a7 90-95(h)(3) (2005) provides that a person convicted of trafficking in cocaine by possession, transportation, or sale of between 28 and 200 grams of cocaine shall be punished as a Class G felon and sentenced to a term of thirty-five to forty-two months. N.C. Gen. Stat. \u00a7 90-95(h)(6) (2005) specifies that \u201c[sentences imposed pursuant to this subsection shall run consecutively with and shall commence at the expiration of any sentence being served by the person sentenced hereunder.\u201d Moreover, in contrast to Boone and Cannon, the facts of the present case reveal no intent on the part of the trial court to punish defendant for exercising his statutory right. See Cannon, 326 N.C. at 39, 387 S.E.2d at 451; Boone, 293 N.C. at 712, 239 S.E.2d at 465. The trial court\u2019s comment may indicate disagreement with this Court\u2019s appellate decision, but we do not find it evidence of retaliation against defendant for having exercised his right to appeal the prior sentence. This assignment of error is overruled.\nNo prejudicial error.\nJudges HUNTER and STEPHENS concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Attorney General Roy .Cooper, by Special Deputy Attorney General Gary R. Govert, for the State.", "Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Kelly D. Miller and Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CHARLES T. MEWBORN\nNo. COA05-1127\n(Filed 5 July 2006)\n1. Evidence\u2014 cross-examination \u2014 prior crimes or bad acts\u2014 prior convictions \u2014 status as drug dealer\nThe trial court did not err in a trafficking in cocaine by possession, transportation, and sale case by allowing the State to cross-examine defendant about his prior convictions and his status as a drug dealer, because: (1) by defendant\u2019s own admission, N.C.G.S. \u00a7 8C-1, Rule 608 is inapplicable to the contested questioning about defendant\u2019s status as a drug dealer since it was neither a reference to a specific act nor probative of defendant\u2019s truthfulness; (2) evidence which would otherwise be inadmissible may be permissible on cross-examination to correct inaccuracies or misleading omissions in defendant\u2019s testimony or to dispel favorable inferences arising from them, and defendant\u2019s testimony on cross-examination that his 1995 conviction for possession of cocaine should have been for possession of paraphernalia tended to mislead the jury as to defendant\u2019s prior record; (3) defendant\u2019s unsolicited testimony about the search of his home seemed to imply that he was framed by the officers who recovered evidence leading to his probation revocation and second conviction, and the State did not exceed the scope of cross-examination under N.C.G.S. \u00a7 8C-1, Rule 609(a) by suggesting the reason police officers searched defendant\u2019s home was based on the fact that they knew defendant had been convicted of selling drugs; (4) assuming arguendo the cross-examination was improper under N.C.G.S. \u00a7 8C-1, Rule 404(a), defendant failed to show he was unduly prejudiced by the State\u2019s characterization of him as a drug dealer in light of the uncontested evidence of defendant\u2019s prior drug convictions; and (5) although defendant contends State v. Wilkerson, 356 N.C. 418 (2002), establishes that the State\u2019s cross-examination violated Rule 404(b), the present case is distinguishable since defendant in this case testified on his own behalf.\n2. Evidence\u2014 cross-examination \u2014 prior crimes or bad acts of witness \u2014 sexual misconduct \u2014 plain error analysis\nThe trial court did not commit plain error in a trafficking in cocaine by possession, transportation, and sale case by allowing the State to cross-examine a defense witness about an alleged incident of sexual misconduct under N.C.G.S. \u00a7 8C-1, Rule 608(b), because: (1) defendant failed to show the jury probably would have reached a different result had the contested cross-examination not been admitted when the witness was neither an eyewitness nor an expert; (2) the witness testified that in his lay opinion the truck in the surveillance video was not defendant\u2019s truck based on a comparison between photographs and the image of the truck appearing in a surveillance video, and the jury could have made this comparison without the witness\u2019s testimony; and (3) given the insignificance of the witness\u2019s testimony, any harm to the witness\u2019s credibility caused by the cross-examination was also insignificant and did not have a probable impact on the jury\u2019s decision.\n3. Drugs\u2014 instruction \u2014 witness with immunity or quasi-immunity\nThe trial court did not abuse its discretion in a trafficking in cocaine by possession, transportation, and sale case by failing to instruct the jury regarding a police informant\u2019s testimony according to the pattern jury instruction for testimony of a witness with immunity or quasi-immunity, because: (1) although the requested instruction was correct in law, it was not supported by the evidence when no evidence was presented at trial that the informant testified under an agreement for a charge reduction or an agreement for a sentencing concession; (2) the trial court\u2019s instruction that the jury should review the informant\u2019s testimony with care and caution substantively reflected the concept defendant wished to convey to the jury; (3) defendant had the opportunity to cross-examine the informant about any alleged agreement and to argue to the jury regarding the impact of any alleged agreement upon the informant\u2019s credibility; and (4) given that the jury had before it evidence of the informant\u2019s arrest, the charges pending against him, his cooperation with police, his plea agreement, and his pending sentencing hearing, defendant failed to show there was a reasonable probability that the jurors would have reached a different result if the trial court had instructed them to view the informant\u2019s testimony with great care and caution rather than with care and caution.\n4. Sentencing\u2014 no right to new sentencing hearing \u2014 defendant\u2019s exercise of right to appeal a prior matter\nThe trial court in a trafficking in cocaine by possession, transportation, and sale case did not improperly base defendant\u2019s sentence on defendant\u2019s exercise of his right to appeal a prior matter when it commented that defendant should have been required to wear shirts identifying him as a convicted drug dealer as part of his probation for a prior drug conviction in front of the same judge seven years prior, because: (1) the trial court had statutory authority to impose consecutive sentences of the length given: (2) the facts of the present case reveal no intent on the part of the trial court to punish defendant for exercising his statutory right; and (3) the trial court\u2019s comment may indicate disagreement with the Court of Appeals\u2019 appellate decision to overturn the probationary condition, but it did not reveal evidence of retaliation against defendant for having exercised his right to appeal the prior sentence.\nAppeal by defendant from judgment entered 17 August 2004 by Judge W. Russell Duke, Jr. in Superior Court, Pitt County. Heard in the Court of Appeals 19 April 2006.\nAttorney General Roy .Cooper, by Special Deputy Attorney General Gary R. Govert, for the State.\nAppellate Defender Staples S. Hughes, by Assistant Appellate Defender Kelly D. Miller and Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant." }, "file_name": "0281-01", "first_page_order": 313, "last_page_order": 326 }