{
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  "name": "STATE OF NORTH CAROLINA v. ADRIAN GAYTON",
  "name_abbreviation": "State v. Gayton",
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    "judges": [
      "Judges ELMORE and GEER concur."
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      "STATE OF NORTH CAROLINA v. ADRIAN GAYTON"
    ],
    "opinions": [
      {
        "text": "HUNTER, Judge.\nAdrian Gayton (\u201cdefendant\u201d) appeals from a jury verdict of guilty on charges of trafficking cocaine by possession and carrying a concealed weapon. After careful review, we find no prejudicial error.\nIn May 2005, Detectives T.J. Cote, Claiborne Clark, and Spencer Chamberlain, along with other members of the Durham County Sheriffs office, conducted an undercover narcotics operation in Durham. In early May 2005, Detective Cote set up and carried out two small cocaine purchases with a suspected drug dealer named Martin Estrada (\u201cEstrada\u201d). The officers then set up a larger transaction for 17 May 2005.\nOn that date, Detective Cote had arranged to meet Estrada in a parking lot to conduct the transaction while the other detectives maintained surveillance. When Estrada arrived, defendant was in his passenger seat. Estrada exited the vehicle and got into the front seat of Detective Cote\u2019s car, where the transaction took place. Defendant remained in Estrada\u2019s car during this time, watching the transaction.\nOnce the transaction was complete, the surveillance team approached. Two detectives extracted defendant from the car, at which point one detective saw a handgun on the passenger seat where defendant had been sitting. Both defendant and Estrada were arrested.\nDefendant was convicted of one count each of trafficking in cocaine and carrying a concealed weapon and sentenced to 175 to 219 months imprisonment. Defendant appeals.\nI.\nThree of defendant\u2019s arguments concern evidence that defendant claims was admitted erroneously by the trial court because such evidence was irrelevant and its probative value was substantially outweighed by the danger of unfair prejudice.\nThese arguments are based on the rule of evidence stating that \u201c[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice[.]\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (2005).\nWhether to exclude evidence pursuant to Rule 403 is a matter left to the sound discretion of the trial court. A ruling by the trial court will be reversed for an abuse of discretion only upon a showing that the ruling was so arbitrary that it could not have been the result of a reasoned decision.\nState v. Jones, 347 N.C. 193, 213, 491 S.E.2d 641, 653 (1997) (internal citation omitted). We thus review the trial court\u2019s decision as to the admission of this evidence for abuse of discretion.\nA.\nDefendant first argues that certain testimony from Detectives Cote and Clark giving general information regarding gangs was irrelevant and unduly prejudicial. While the admission of this evidence was indeed error, we do not find that it was prejudicial, and as such we overrule this assignment of error.\nSpecifically, defendant objected to the following pieces of testimony: Detective Cote\u2019s testimony that Estrada, who actually sold him the cocaine, had a \u201c13\u201d inscribed on his neck, which he stated indicated Estrada\u2019s affiliation with one of two gangs in the area; Detective Cote\u2019s testimony that a person who pretends to be a gang member may be subjected to violence by actual members, who might cut the tattoo off that person; Detective Clark\u2019s testimony that members of the gang in question associate only with members of their own gang, and never with outsiders; and Detective Cote\u2019s testimony that gangs, including the one to which Estrada likely belonged, are notoriously violent and commonly associated with guns, violence, and drugs, as well as Detective Clark\u2019s reiteration of the reputation for violence the gangs have.\nFurther, in discussing how his beliefs and expectations as to the drug buy were affected by his realization that defendant and Estrada were gang members, Detective Cote testified: \u201cWhen you\u2019re dealing with $20,000 [gang members will] take your life in a heartbeat.\u201d\nIn overruling defendant\u2019s objections to this testimony, the trial judge stated that it was relevant because it helped explain how the officers went about planning the operation \u2014 that is, it showed that the officers\u2019 knowledge that they were dealing with gang members affected the way they set up the buy. Further, the court noted,, this testimony was elicited from police officers testifying based upon their own experiences working in the narcotics field or undercover.\nEven if it were true that the officers felt forced to revamp the entire operation after finding out defendant and Estrada were possible gang members and decided to take specific precautions because they feared the two men might become violent, this information has nothing to do with defendant trafficking cocaine by possession and carrying a concealed weapon. It does not tend \u201cto make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 401 (2005). Indeed, the only probative value the information had in this case was to portray defendant as a gang member. Therefore, we must conclude that the admission of this evidence was error.\nHowever, defendant has the burden to show not only that it was error to admit this evidence, but also that the error was prejudicial: A defendant must show that, but for the error, a different result would likely have been reached. State v. Freeman, 313 N.C. 539, 548, 330 S.E.2d 465, 473 (1985). Where there exists \u201coverwhelming evidence of defendant\u2019s guilt[,]\u201d defendant cannot make such a showing; this Court has so held in cases where the trial court improperly admitted evidence relating to defendants membership in a gang. See, e.g., Freeman, 313 N.C. at 548, 330 S.E.2d at 473 (holding that evidence of the defendant\u2019s gang membership was properly admitted to explain his presence at the murder scene, but evidence that the gang was a \u201c \u2018motorcycle gang\u2019 \u201d was erroneously admitted because it was \u201cirrelevant to the issue of defendant\u2019s guilt\u201d; however, because of the \u201coverwhelming evidence of defendant\u2019s guilt[,]\u201d this error could not have influenced the outcome of the trial), State v. Hightower, 168 N.C. App. 661, 667, 609 S.E.2d 235, 239 (2005) (holding that testimony as to the defendant\u2019s gang membership provided evidence of his motive and reason for involvement in the crime, but not reaching whether it was admitted erroneously because of the overwhelming evidence of the defendant\u2019s guilt).\nThe same holds true in the case at hand: At trial, overwhelming undisputed evidence was presented as to defendant\u2019s guilt. The crime of trafficking by possession consists simply of the sale, manufacture, delivery, transportation, or possession of twenty-eight grams or more of certain illicit substances, acts which the legislature determined indicate an intent to distribute on a large scale. See N.C. Gen. Stat. \u00a7 90-95(h)(3) (2005); see also State v. McCoy, 105 N.C. App. 686, 689, 414 S.E.2d 392, 394 (1992). \u201cPossession can be actual or constructive. When the defendant does not have actual possession, but has the power and intent to control the use or disposition of the substance, he is said to have constructive possession.\u201d State v. Baldwin, 161 N.C. App. 382, 391, 588 S.E.2d 497, 504-05 (2003) (internal citation omitted). Further, when the State has shown \u201cthat a defendant was present while a trafficking offense occurred and that he acted in concert with others to commit the offense pursuant to a common plan or purpose,\u201d we have held that the State need not specifically prove constructive possession. State v. Diaz, 317 N.C. 545, 552, 346 S.E.2d 488, 493 (1986).\nHere, defendant does not dispute any of the officers\u2019 testimony as to his presence at or conduct during the drug buy. Ignoring all evidence related to gangs and gang activity, the unchallenged evidence presented by the State at trial showed that defendant arrived with Estrada in the car to the sale, was in the seat next to Estrada during the sale, observed the sale of the drugs, and apparently acted as security of sorts for Estrada. Thus, even had all the evidence as to gangs been excluded, the State presented enough evidence \u2014 unchallenged to this Court \u2014 that the statute was violated.\nDefendant argues to this Court that the jury\u2019s request for clarification with respect to the aiding and abetting instruction they had been given is evidence that without the gang-related evidence a reasonable possibility exists that the result might have been different. However, defendant\u2019s argument on this point is to simply state the fact about the jury\u2019s request and follow it with this bare assertion about the change in outcome. This argument is unconvincing.\nWe see no proof that, without this error, a different result would likely have been reached. As such, we overrule this assignment of error.\nB.\nDetective Chamberlain also testified that, among the bullets recovered from the guns of defendant and Estrada, the police found hollow point bullets. He stated that \u201ca hollow point bullet, once it hits its impact, actually expands and does a whole lot more damage.\u201d Again, this evidence does not tend \u201cto make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 401. Therefore, we must conclude that the admission of this evidence was also error.\nAgain, however, defendant cannot carry the burden of showing that this error was prejudicial. As to the charge of carrying a concealed weapon, the elements of the offense are: \u201c(1) The accused must be off his own premises; (2) he must carry a deadly weapon; [and] (3) the weapon must be concealed about his person.\u201d State v. Williamson, 238 N.C. 652, 654, 78 S.E.2d 763, 765 (1953); N.C. Gen. Stat. \u00a7 14-269(al) (2005). Defendant does not dispute that the take-down occurred in a public parking lot; nor does he argue that a loaded weapon is not a deadly weapon. As to the final element, the statutory language requires that the weapon be \u201c \u2018within his convenient control and easy reach, so that he could promptly use it, if prompted to do so by any violent motive.\u2019 \u201d State v. Gainey, 273 N.C. 620, 623, 160 S.E.2d 685, 687 (1968) (quoting State v. McManus, 89 N.C. 555 (1883)). According to Detective Clark\u2019s unchallenged testimony, when he approached the passenger side of the car where defendant sat, defendant had his right arm extended down between his legs, with his hand stuck under his left leg. After pulling defendant from the passenger seat, the detective discovered a loaded handgun on the passenger seat \u201cin the area where [defendant\u2019s] leg and hand would have been[.]\u201d Thus, the State provided evidence' at trial which defendant does not challenge to this Court to prove each element of the offense. In addition, this Court has specifically held that even where evidence as to hollow-point bullets was improperly admitted, \u201cthe error was harmless beyond'a reasonable doubt in light of the overwhelming evidence of defendant\u2019s guilt.\u201d State v. Cummings, 346 N.C. 291, 323, 488 S.E.2d 550, 569 (1997).\nAs such, the admission of this evidence was not prejudicial error and does not warrant a new trial.\nII.\nDefendant next argues that the gang-related evidence should have been excluded because the State violated discovery rules as to this evidence. This argument is without merit.\nDefendant made a motion in limine to the trial court to exclude any gang-related evidence or testimony. Once the trial had begun, the only specific piece of evidence that defendant argued to the trial court that he had not properly received during discovery were photographs of his client\u2019s tattoos indicating possible gang membership. The trial judge ruled that all the evidence would be admitted, noting that defendant was, obviously, aware of his own tattoos, and thus his attorney could have found out about them at any time; and, further, that defendant\u2019s motion in limine to exclude any gang-related evidence showed clearly that he had some notice that such materials were going to be presented at trial.\nPer N.C. Gen. Stat. \u00a7 15A-903(a)(l) (2005), the State must \u201c[m]ake available to the defendant the complete files of all law enforcement and prosecutorial agencies,\u201d where \u201c \u2018file\u2019 \u201d includes \u201cany . . . matter or evidence obtained during the investigation of the offenses alleged to have been committed by the defendant.\u201d Id. When a party fails to comply with these guidelines, \u201c[p]rior to finding any sanctions appropriate, the court shall consider both the materiality of the subject matter and the totality of the circumstances surrounding an alleged failure to comply with this Article[.]\u201d N.C. Gen. Stat. \u00a7 15A-910(b) (2005).\nThis Court reviews such decisions by the trial court for abuse of discretion:\nIt is within the trial court\u2019s sound discretion whether to impose sanctions for a failure to comply with discovery requirements, including whether to admit or exclude evidence, and the trial court\u2019s decision will not be reversed by this Court absent an abuse of discretion. An abuse of discretion results from a ruling so arbitrary that it could not have been the result of a reasoned decision or from a showing of bad faith by the State in its noncompliance.\nState v. McClary, 157 N.C. App. 70, 75, 577 S.E.2d 690, 693, appeal dismissed and disc. review denied, 357 N.C. 466, 586 S.E.2d 466 (2003) (internal citation omitted).\nWe cannot say that the trial court abused its discretion in admitting this evidence. The court was not required to exclude the evidence even had it found that the State violated discovery requirements. As mentioned above, the court must consider the totality of the circumstances, and given the overwhelming evidence of defendant\u2019s guilt, the court was within its rights to hold that these few photographs need not be-excluded. As such, we overrule this assignment of error.\nIII. Conclusion\nAlthough the disputed evidence was irrelevant and thus improperly admitted, defendant cannot show that without the evidence a different result would likely have been reached. As such, we find no prejudicial error.\nNo error.\nJudges ELMORE and GEER concur.\n. Defendant has five arguments in his brief. However, one of the five is the same argument as his first argument below (as to the admission of gang-related testimony) but argued against a plain error standard, in case we found his objections during trial insufficient. Since his objections were sufficient, we have not separately addressed his plain error argument.",
        "type": "majority",
        "author": "HUNTER, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy A. Cooper, III, by Assistant Attorney General Judith Tillman, for the State.",
      "Duncan B. McCormick for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ADRIAN GAYTON\nNo. COA06-1225\n(Filed 7 August 2007)\n1. Evidence\u2014 testimony about gangs \u2014 unrelated to charges\u2014 not prejudicial\nThe admission of testimony about gangs was erroneous but not prejudicial in a prosecution for cocaine trafficking and carrying a concealed weapon. The information had nothing to do with the charges, but there was overwhelming undisputed evidence of defendant\u2019s guilt.\n2. Evidence\u2014 hollow point bullets \u2014 not probative of issues\u2014 not prejudicial\nThe admission of testimony about hollow point bullets found in defendant\u2019s gun was erroneous but not prejudicial in a prosecution for cocaine trafficking and carrying a concealed weapon. The State provided evidence of each element of the offense that was not challenged.\n3. Evidence\u2014 photographs of gang tattoos \u2014 not revealed in discovery\nThe trial court did not abuse its discretion by declining to exclude as a discovery sanction photographs of tattoos indicating defendant\u2019s possible gang membership, for the stated reason that defendant was aware of his own tattoos. Given the overwhelming evidence of defendant\u2019s guilt, the court was within its rights to hold that the photographs need not be excluded.\nAppeal by defendant from judgment entered 20 March 2006 by Judge Abraham P. Jones in Durham County Superior Court. Heard in the Court of Appeals 9 May 2007.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Judith Tillman, for the State.\nDuncan B. McCormick for defendant-appellant."
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