{ "id": 4156332, "name": "STATE OF NORTH CAROLINA v. JBARRE JEQUIZ HOPE", "name_abbreviation": "State v. Jbarre Jequiz Hope", "decision_date": "2008-03-18", "docket_number": "No. COA07-702", "first_page": "309", "last_page": "320", "citations": [ { "type": "official", "cite": "189 N.C. App. 309" } ], "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": "646 S.E.2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638872, 12638873, 12638871 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/646/0768-02", "/se2d/646/0768-03", "/se2d/646/0768-01" ] }, { "cite": "638 S.E.2d 516", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637384 ], "weight": 5, "year": 2007, "pin_cites": [ { "page": "526" }, { "page": "525" }, { "page": "526" } ], "opinion_index": 0, "case_paths": [ "/se2d/638/0516-01" ] }, { "cite": "648 S.E.2d 275", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639066 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "278", "parenthetical": "citations, quotations, and alterations omitted" }, { "page": "279", "parenthetical": "\"Thus, even had all the evidence as to gangs been excluded, the State presented enough evidence - unchallenged to this Court - that the [crime was committed].\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/648/0275-01" ] }, { "cite": "652 S.E.2d 216", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639660 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/652/0216-01" ] }, { "cite": "634 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636660 ], "year": 2006, "pin_cites": [ { "page": "614", "parenthetical": "citation and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/634/0594-01" ] }, { "cite": "402 S.E.2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "393" } ], "opinion_index": 0 }, { "cite": "328 N.C. 477", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2539039 ], "year": 1991, "pin_cites": [ { "page": "490" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0477-01" ] }, { "cite": "361 N.C. 367", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3738022, 3740167, 3745816, 3741226, 3742387, 3736020, 3736344, 3744345 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0367-05", "/nc/361/0367-06", "/nc/361/0367-01", "/nc/361/0367-03", "/nc/361/0367-02", "/nc/361/0367-08", "/nc/361/0367-07", "/nc/361/0367-04" ] }, { "cite": "181 N.C. App. 196", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8373323 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0196-01" ] }, { "cite": "388 S.E.2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "434" } ], "opinion_index": 0 }, { "cite": "326 N.C. 155", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305404 ], "year": 1990, "pin_cites": [ { "page": "165" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0155-01" ] }, { "cite": "231 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "842" }, { "page": "842" } ], "opinion_index": 0 }, { "cite": "291 N.C. 480", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558733 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "494" }, { "page": "494" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0480-01" ] }, { "cite": "562 S.E.2d 541", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "546", "parenthetical": "quoting State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977)" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 390", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9128278 ], "year": 2002, "pin_cites": [ { "page": "397", "parenthetical": "quoting State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0390-01" ] }, { "cite": "175 S.E. 836", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1934, "pin_cites": [ { "page": "838" } ], "opinion_index": 0 }, { "cite": "207 N.C. 6", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621595 ], "year": 1934, "pin_cites": [ { "page": "10" } ], "opinion_index": 0, "case_paths": [ "/nc/207/0006-01" ] }, { "cite": "473 S.E.2d 3", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "5", "parenthetical": "quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)" } ], "opinion_index": 0 }, { "cite": "344 N.C. 190", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867543 ], "year": 1996, "pin_cites": [ { "page": "194", "parenthetical": "quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0190-01" ] }, { "cite": "185 N.C. App. 122", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8208709 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "125-26", "parenthetical": "citations, quotations, and alterations omitted" }, { "page": "126" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0122-01" ] }, { "cite": "361 N.C. 587", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3745043 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0587-01" ] }, { "cite": "179 N.C. App. 437", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8237271 ], "year": 2006, "pin_cites": [ { "page": "463", "parenthetical": "citation and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/179/0437-01" ] }, { "cite": "226 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "290 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561442 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0313-01" ] }, { "cite": "461 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "646", "parenthetical": "citations and quotations omitted" } ], "opinion_index": 0 }, { "cite": "341 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793165 ], "year": 1995, "pin_cites": [ { "page": "539", "parenthetical": "citations and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0513-01" ] }, { "cite": "512 S.E.2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "421", "parenthetical": "citations omitted" }, { "page": "421", "parenthetical": "holding that a photograph introduced during the examination of the victim's daughter to illustrate her testimony about her parents' appearance and health prior to their deaths was admissible" } ], "opinion_index": 0 }, { "cite": "350 N.C. 247", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 131954 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "258", "parenthetical": "citations omitted" }, { "page": "258" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0247-01" ] }, { "cite": "604 S.E.2d 886", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2004, "pin_cites": [ { "page": "903", "parenthetical": "citing N.C. Gen. Stat. \u00a7 15A-1443(a)" }, { "parenthetical": "citations and quotations omitted" } ], "opinion_index": 0 }, { "cite": "359 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3803286 ], "year": 2004, "pin_cites": [ { "page": "158", "parenthetical": "citing N.C. Gen. Stat. \u00a7 15A-1443(a)" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0131-01" ] }, { "cite": "391 S.E.2d 171", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "174", "parenthetical": "citation and quotations omitted" } ], "opinion_index": 0 }, { "cite": "326 N.C. 542", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305171 ], "year": 1990, "pin_cites": [ { "page": "548", "parenthetical": "citation and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0542-01" ] }, { "cite": "493 S.E.2d 264", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "274", "parenthetical": "citation and quotations omitted" }, { "parenthetical": "citations, quotations, and alterations omitted" } ], "opinion_index": 0 }, { "cite": "347 N.C. 275", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551151 ], "year": 1997, "pin_cites": [ { "page": "294", "parenthetical": "citation and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0275-01" ] } ], "analysis": { "cardinality": 1007, "char_count": 27574, "ocr_confidence": 0.761, "pagerank": { "raw": 9.969143056270669e-08, "percentile": 0.5377774920468337 }, "sha256": "fb75634b15e2d114f00d7415946cf82858899d89b7e714eeaf4907c53dcb3763", "simhash": "1:076860b1756fc950", "word_count": 4475 }, "last_updated": "2023-07-14T16:47:52.494477+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "No prejudicial error.", "Judges WYNN and BRYANT concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JBARRE JEQUIZ HOPE" ], "opinions": [ { "text": "ELMORE, Judge.\nOn 18 May 2006, J\u2019Barr\u2019e Jequiz Hope (defendant) was convicted by a jury of first degree murder and sentenced to life imprisonment without parole. Defendant now appeals.\nKyle James Parrish was shot and killed at his home on 12 December 2004. Parrish shared the home with his girlfriend and a roommate, Chris Pennick. At the time of his murder, Parrish was selling drugs and addicted to heroin.\nPennick testified that Parrish left the house to buy cigarettes on 12 December 2004. Shortly thereafter, Pennick heard a knock at the door. The man at the door, later identified as defendant, asked to use Pennick\u2019s phone, explaining that his car had broken down. As Pennick turned around to retrieve his cell phone, defendant struck him with a pistol and he fell to the ground. Pennick was then restrained with a vacuum cleaner cord and defendant threatened to kill him if he moved. Defendant asked Pennick where Parrish and the money were located. Pennick testified that another man wearing an orange mask and carrying a gun entered the house.\nWhen Parrish returned two men pulled him into the house and asked him for his money. Pennick heard the two men hitting Parrish and demanding money. Eventually, Pennick heard screaming, gunshots, and the sound of a window breaking. Pennick heard the two men leave, and then broke free from the vacuum cleaner cord to search for Parrish. Pennick found Parrish in the middle of the road where he cradled him in his arms until he was pronounced dead by the paramedics. Expert testimony established that Parrish suffered fatal gunshot wounds to the chest and lower back, together with multiple blunt force injuries and various sharp force injuries.\nPursuant to a plea agreement, Chad Aikens testified that he and Parrish used to buy heroin from Jamal Stokes. Aikens indicated that Stokes had seen Parrish with a bag of money at Aikens\u2019 house one night. Stokes later indicated his intent to break in Parrish\u2019s home and take the money. Aikens did not participate in the actual commission of the robbery, but he expected to get some money from the robbery proceeds for his assistance.\nChevella McNeil testified that she purchased a cell phone for defendant. Cell phone records and expert testimony indicated numerous calls on the day of the shooting between Stokes\u2019 phone and Aikens\u2019 phone and between Stokes\u2019 phone and defendant\u2019s phone. Records placed Stokes\u2019 phone at the scene of the crime and then at a Raleigh hotel. Eyewitness testimony established that a taxi driver picked up Stokes and defendant from a Raleigh hotel shortly after the time of the shooting and drove them to Durham. Records showed calls from Aikens\u2019 phone to the taxi company that picked up Stokes and defendant. Records also placed defendant\u2019s phone at the Raleigh hotel shortly after the shooting, in Durham that afternoon, and in the Greenville area shortly after midnight the next day. Authorities located defendant about a month later in a residential trailer in Grifton, near Greenville. Defendant was in the bedroom and his cell phone was within reach when he was arrested. Police obtained photographs from the cell phone.\nDefendant first argues that the trial court erred by admitting testimony by Parrish\u2019s mother relating to Parrish\u2019s history of involvement with drugs and a photograph of the victim. We disagree and overrule these assignments of error.\nAt trial, Lisa Parrish, Kyle Parrish\u2019s mother, testified that she had noticed changes in her son during the period between high school graduation and college. Ms. Parrish testified, \u201cHe\u2019d been an honor roll student his first year of college. His sophomore year in February of 2003,1 got a call from his counselor at school. . . .\u201d She testified that Parrish admitted that he had started using drugs. She said, \u201cHe had gone from a[n] honor roll student to failing everything in a matter of about six weeks. Lost his scholarships and dropped out of Barton College.\u201d Ms. Parrish testified that she thought that he was getting better after taking him to counseling at Holly Hill Hospital in July of 2004. \u201cHis roommate, Chris Pennick[,] spent the whole night there with me when he was in with the counselors, and we left the next morning when the sun was coming up, and I thought he was getting some help after that.\u201d The State then admitted into evidence a photograph of Parrish that was taken \u201cbefore he got himself involved in all this mess[.]\u201d\nDefendant objected at trial to Ms. Parrish\u2019s testimony on grounds that \u201c[w]e\u2019ve heard some information about drug use and all that, and this man is deceased and we don\u2019t have to go through it again.\u201d Defendant objected to the admission of the photograph on relevancy and Rule 403 grounds. The trial judge overruled both objections. Defendant argued in his brief that the \u201cinformation was irrelevant and only served to elicit sympathy for the victim with the jury and enrage it against Mr. Hope.\u201d\nEvidence is relevant if it has \u201cany tendency to 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). Generally, all relevant evidence is admissible. N.C. Gen. Stat. \u00a7 8C-1, Rule 402 (2005). Our Supreme Court has \u201csaid that in a criminal case every circumstance calculated to throw any light upon the supposed crime is admissible and permissible.\u201d State v. Hill, 347 N.C. 275, 294, 493 S.E.2d 264, 274 (1997) (citation and quotations omitted). Our Supreme Court\nhas also said that it is not required that the evidence bear directly on the question in issue, and it is competent and relevant if it is one of the circumstances surrounding the parties, and necessary to be known to properly understand their conduct or motives, or to weigh the reasonableness of their contentions.\nId. (citations, quotations, and alterations omitted). Furthermore, \u201c[e]vidence, not part of the crime charged but pertaining to the chain of events explaining the context, motive and set-up of the crime, is properly admitted ... [if it] is necessary to. complete the story of the crime for the jury.\u201d State v. Agee, 326 N.C. 542, 548, 391 S.E.2d 171, 174 (1990) (citation and quotations omitted).\nThus, the relevancy of evidence is not limited, as defendant contends, to whether defendant was involved in Parrish\u2019s murder, nor is the inquiry limited simply to establishing any element of the crime. Here, Ms. Parrish\u2019s testimony related to her son\u2019s involvement with drugs. This involvement bolstered the prosecution\u2019s theory that Parrish\u2019s murder was drug-related. As such, Ms. Parrish\u2019s testimony was relevant to show motive, and was therefore admissible. Furthermore, Parrish\u2019s drug use was the threshold matter in the chain of events that ultimately led to his murder; drug use explained the relationship between Parrish and Aikens, which was necessary to put in context the ultimate connection between Parrish and defendant. Omission of testimony concerning the victim\u2019s drug use would have given the jury an incomplete understanding of the circumstances and connections among the players that led to his murder.\nMoreover, even were we to hold that the evidence was inadmissible, the testimony was not unduly prejudicial. Defendant urges that the evidence was unduly prejudicial in that the only purpose of the evidence was to \u201cwarp the judgment of the jury\u201d by exciting sympathy for the victim and prejudice against defendant. We disagree.\n\u201cTo establish prejudicial error, a defendant must show there was a reasonable possibility that a different result would have been reached had the evidence been excluded.\u201d State v. Morgan, 359 N.C. 131, 158, 604 S.E.2d 886, 903 (2004) (citing N.C. Gen. Stat. \u00a7 15A-1443(a)). \u201c[W]here at least one of the [other] purposes for which the prior act evidence was admitted was [proper,] there is no prejudicial error.\u201d Id. (citations and quotations omitted) (alterations in original). One such proper purpose is to show proof of motive. Id. Though defendant contends that the testimony was calculated to prejudice one of the parties and prevent a fair and impartial trial, the State offered Ms. Parrish\u2019s testimony to show proof of motive. Accordingly, the trial court did not err by admitting it.\nPhotographic evidence in particular is admissible in certain circumstances. Our Supreme Court has held that \u201cit is not error to admit the photograph of a victim when alive.\u201d State v. Goode, 350 N.C. 247, 258, 512 S.E.2d 414, 421 (1999) (citations omitted). Furthermore, \u201c[pjhotographs are usually competent to be used by a witness to explain or illustrate anything that it is competent for him to describe in words.\u201d State v. Goode, 341 N.C. 513, 539, 461 S.E.2d 631, 646 (1995) (citations and quotations omitted). Specifically, photographs used to illustrate a witness\u2019s testimony about a victim-relative\u2019s appearance and health prior to death have been held admissible. See Goode, 350 N.C. at 258, 512 S.E.2d at 421 (holding that a photograph introduced during the examination of the victim\u2019s daughter to illustrate her testimony about her parents\u2019 appearance and health prior to their deaths was admissible). Here, the purpose of the photograph was to illustrate Ms. Parrish\u2019s testimony about her son\u2019s appearance before he got involved with drugs.\nDefendant also argues that even should this Court find the evidence relevant, the trial court should nevertheless have excluded it because any probative value was substantially outweighed by the danger of unfair prejudice to defendant. See N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (2005). Defendant argues that the trial court should have been required to conduct a voir dire hearing as part of a Rule 403 balancing test. Contrary to defendant\u2019s urging, State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976), does not stand for such a proposition. See id. at 324, 226 at 638 (clarifying that when a defendant challenges the admissibility of identification testimony, \u201c[fjailure to conduct the voir dire [sic] ... does not necessarily render such evidence incompetent\u201d).\nDefendant contends that the trial judge abused his discretion by overruling defendant\u2019s objections in a summary manner and failing to conduct a voir dire hearing to determine admissibility. However, defendant cites no support for this argument and cannot show how the trial judge\u2019s ruling was \u201cmanifestly unsupported by reason or [was] so arbitrary that it could not have been the result of a reasoned decision.\u201d State v. Peterson, 179 N.C. App. 437, 463, 634 S.E.2d 594, 614 (2006) (citation and quotations omitted), aff\u2019d, 361 N.C. 587, 652 S.E.2d 216 (2007). For these reasons, we overrule these assignments of error.\nDefendant next argues that the trial court erred in allowing the admission of testimony relating to gang activity gained through cross-examination of defendant because it was irrelevant and unduly prejudicial. Specifically, the prosecution cross-examined defendant about tattoos and bum marks on defendant\u2019s body to determine if they indicated any connection to gang activity. Defendant objected multiple times to this series of questions and was overmled. Defendant denied any connection to gang activity and explained that the tattoos and burn marks on his body did not symbolize any connections to gangs. We agree with defendant that the testimony was irrelevant, but disagree that it was unduly prejudicial.\nWe note that the State raises no argument that the line of questioning was relevant. The line of questions was irrelevant because the State presented no evidence that gang activity was responsible for Parrish\u2019s death. Rather, the State\u2019s evidence tended to show that Parrish was killed as a result of a plan by defendant and two accomplices to steal his money.\nThe question then remains whether the improperly admitted evidence was unduly prejudicial. Even when a trial court admits evidence in error, a\ndefendant 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. Where there exists overwhelming evidence of defendant\u2019s guilt, defendant cannot make such a showing; this Court has so held in cases where the trial court improperly admitted evidence relating to defendant\u2019s membership in a gang.\nState v. Gayton, 185 N.C. App. 122, 125-26, 648 S.E.2d 275, 278 (2007) (citations, quotations, and alterations omitted).\nThe State presented overwhelming, undisputed evidence of defendant\u2019s guilt. See id., 185 N.C. App. at 126, 648 S.E.2d at 279 (\u201cThus, even had all the evidence as to gangs been excluded, the State presented enough evidence \u2014 unchallenged to this Court \u2014 that the [crime was committed].\u201d). This evidence included eyewitness testimony placing defendant at the scene of the murder armed with a handgun as well as additional testimony that defendant and the second intruder were picked up by a taxi driver and driven from Raleigh to Durham less than an hour after the murder. Testimony by a co-conspirator provided the link between the second intruder and the victim, and the second intruder\u2019s fingerprints were found inside the victim\u2019s bedroom. Additional circumstantial evidence derived from extensive cell phone records documented a series of calls between the second intruder and a phone identified as having been used by defendant as well as indicating defendant\u2019s whereabouts before and after the crime.\nOn this evidence, we cannot find a reasonable possibility that the jury would have reached a different result had the State had not presented evidence relating to gang affiliation. See N.C. Gen. Stat. \u00a7 15A-1443(a) (2005). Because the testimony on any matters relating to defendant\u2019s alleged gang affiliation, though irrelevant, was not unduly prejudicial, we overrule these assignments of error.\nDefendant next argues that the trial court erred in permitting the State\u2019s witness to give his opinion that pictures taken from a cell phone were of defendant. We overrule this assignment of error.\nAt trial, defendant objected to the witness\u2019s statement that the picture \u201cis\u201d defendant, rather than saying it \u201cappears to be\u201d defendant. Defendant argued at trial, \u201cMy only objection would be that it appears to be rather than saying that it is [defendant].\u201d The trial judge overruled the objection and allowed the issue to be addressed on cross-examination. In his brief, defendant argues that the State\u2019s witness\u2019s testimony as to the identity of the person in the photograph was improper opinion that should not have been admitted.\nIn objecting at trial to how the witness phrased his answer, defendant objected not to admissibility but to the weight of the testimony. That the trial judge allowed cross-examination on the matter indicates that it recognized that defendant\u2019s stated basis for the objection went to weight and not to admissibility. Because defendant objected only to the form of the witness\u2019s answer, we do not consider the question of whether the trial court erred in permitting the witness to give his opinion as to identification, as that question is not properly before this Court. As is often stated, \u201c[W]here a theory argued on appeal was not raised before the trial court, \u2018the law does not permit parties to swap horses between courts in order to get a better mount [on appeal].\u2019\u201d State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996) (quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)) (additional citations omitted); see also N.C.R. App. P. 10(b)(1) (2007). Because the basis for objection claimed at trial differs from the basis for objection claimed on appeal, defendant waives his claim.\nMoreover, even were we to hold that the objection to admissibility was properly before us, and even if we found error, such error was not unduly prejudicial. During deliberations, the jury requested and was permitted to examine both the cell phone and the printed copies of pictures stored on the phone. Thus, the jury had the opportunity to make its own determination as to the probative value of the cell phone pictures. Defendant argues that in the absence of the witness\u2019s opinion, there was a reasonable possibility that the jury would have concluded that the pictures were of his brother, who defendant argues is easily mistaken for him, and would have therefore concluded that his brother, and not defendant, was involved in the murder. This argument is unconvincing. Defendant has not and cannot show a reasonable possibility that a different result would have been reached at trial had the objections to the testimony been sustained. See N.C. Gen. Stat. \u00a7 15A-1443(a) (2005). We overrule this assignment of error.\nFinally, defendant argues that the trial court improperly gave the jury an instruction on flight because there was no evidence that defendant took steps to avoid apprehension. We disagree and overrule this assignment of error.\n\u201cA flight instruction is appropriate where \u2018there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime[.]\u2019 \u201d State v. Komegay, 149 N.C. App. 390, 397, 562 S.E.2d 541, 546 (2002) (quoting State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977)) (alteration in original). \u201cThe fact that there may be other reasonable explanations for defendant\u2019s conduct does not render the instruction improper.\u201d Irick, 291 N.C. at 494, 231 S.E.2d at 842. \u201c[T]he relevant inquiry [is] whether there is evidence that defendant left the scene of the [crime] and took steps to avoid apprehension.\u201d State v. Levan, 326 N.C. 155, 165, 388 S.E.2d 429, 434 (1990).\nIn State v. Shelly, 181 N.C. App. 196, 638 S.E.2d 516, disc. review denied, 361 N.C. 367, 646 S.E.2d 768 (2007), this Court held that a jury instruction on flight was proper when the defendant left the scene of the crime and stayed overnight at his cousin\u2019s girlfriend\u2019s house, \u201can action that was not part of Defendant\u2019s normal pattern of behavior and could be viewed as a step to avoid apprehension.\u201d Id. at 209, 638 S.E.2d at 526. In contrast, our Supreme Court, in State v. Thompson, 328 N.C. 477, 490, 402 S.E.2d 386, 393 (1991), held that there was insufficient evidence to support an instruction on flight. The defendant, a military serviceman, left the scene of the crime and went to the military base where he was stationed, essentially \u201creturning] to a place where, if necessary, law enforcement officers could find him.\u201d Shelly, 181 N.C. App. at 209, 638 S.E.2d at 525. He \u201cessentially . . . returned home.\u201d Id., 638 S.E.2d at 526.\nDefendant argues that he essentially went home when he went to stay with his family in Griffon over the Christmas holiday. He said that Griffon, where he was taken into custody, was where his extended family resided and was, in effect, home when he was not living at his girlfriend\u2019s house in Durham.\nDespite defendant\u2019s contention, there is sufficient evidence that he took steps to avoid apprehension. Though defendant claims that law enforcement knew he had family in the Griffon area and had no trouble locating him at his aunt\u2019s house, testimony by law enforcement indicated that, despite continuous search efforts, it took thirty-four days to locate defendant at a relative\u2019s home in Griffon. Additionally, trial testimony established that before heading to Grifton, defendant and his accomplice \u201csped off\u2019 immediately after the murder and that less than an hour later they arranged for a taxi to pick them up at a Raleigh hotel across town from the crime scene and take them to Durham. Phone calls made less than eight hours after the crime on a cell phone linked to defendant originated in Greenville (near Grifton), indicating that he had left Durham soon after arriving.\nDefendant\u2019s conduct did not seem to be a part of his normal pattern of behavior and could be viewed as steps to avoid apprehension. Moreover, regardless of whether defendant\u2019s home can be regarded as his girlfriend\u2019s or his relative\u2019s home, he returned to neither immediately after leaving the scene of the crime. This evidence provides a sufficient basis for finding that defendant made efforts to avoid apprehension after leaving the scene of the crime. That defendant argues another reasonable explanation for his conduct does not, in itself, render a flight instruction improper.\nEven if improper, it was not unduly prejudicial so as to amount to reversible error. In light of the overwhelming evidence against defendant, which we have already noted, we find no reasonable possibility that a different result would have been reached had the error been excluded. See N.C. Gen. Stat. \u00a7 15A-1443(a) (2005). We therefore overrule this assignment of error.\nHaving conducted a thorough review of the record and briefs, we find no prejudicial error.\nNo prejudicial error.\nJudges WYNN and BRYANT concur.\n. Though the State raises a colorable argument that defendant is barred from challenging this line of questioning on appeal due to failure to object to an earlier line of questioning. Even assuming arguendo that defendant failed to properly object in the first instance, the questioning is not unduly prejudicial for the reasons already stated.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Solicitor General John R Maddrey, for the State.", "Brian Michael Aus, for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JBARRE JEQUIZ HOPE\nNo. COA07-702\n(Filed 18 March 2008)\n1. Evidence\u2014 prior crimes or bad acts \u2014 victim\u2019s history of involvement with drugs\nThe trial court did not err in a first-degree murder case by admitting the testimony of the victim\u2019s mother relating to the victim\u2019s history of involvement with drugs because: (1) the testimony relating to the victim\u2019s involvement with drugs bolstered the prosecution\u2019s theory that the victim\u2019s murder was drug-related and was relevant to show motive; (2) the victim\u2019s drug use was a threshold matter in the chain of events that ultimately led to his murder, including showing the victim\u2019s connection with defendant; (3) omission of testimony concerning the victim\u2019s drug use would have given the jury an incomplete understanding of the circumstances and connections among the players that led to the murder; and (4) even if the evidence was inadmissible, the testimony was not unduly prejudicial when it was offered to show proof of motive.\n2. Evidence\u2014 photographs \u2014 illustrative purposes \u2014 victim\u2019s appearance and health before death\nThe trial court did not err in a first-degree murder case by admitting a photograph of the victim because: (1) photographs used to illustrate a witness\u2019s testimony about a victim-relative\u2019s appearance and health prior to death have been held admissible, and the purpose of the photograph was to illustrate the testimony of the victim\u2019s mother about her son\u2019s appearance before he got involved with drugs; (2) contrary to defendant\u2019s contention, the trial court was not required to conduct a voir dire hearing as part of the N.C.G.S. \u00a7 8C-1, Rule 403 balancing test; and (3) although defendant contends the trial court abused its discretion by overruling defendant\u2019s objections in a summary manner and failing to conduct a voir dire hearing to determine admissibility, defendant failed to cite any support for this argument and cannot show the trial court\u2019s ruling was manifestly unsupported by reason or was so arbitrary that it could not have been the result of a reasoned decision.\n3. Evidence\u2014 cross-examination \u2014 gang activity \u2014 relevancy\nThe trial court did not commit prejudicial error in a first-degree murder case by admitting during the cross-examination of defendant testimony relating to gang activity including questions about whether tattoos and bum marks on defendant\u2019s body indicated any connection to gang activity, because although the line of questioning was irrelevant when the State presented no evidence that gang activity was responsible for the victim\u2019s death, the State presented overwhelming undisputed evidence of defendant\u2019s guilt including: (1) eyewitness testimony placing defendant at the scene of the murder armed with a handgun as well as additional testimony that defendant and the second intrader were picked up by a taxi driver and driven from Raleigh to Durham less than an hour after the murder; (2) testimony by a co-conspirator providing the link between the second intruder and the victim, and the fact the second intruder\u2019s fingexprints were found inside the victim\u2019s bedroom; and (3) circumstantial evidence derived from extensive cell phone records documenting a series of calls between the second intruder and a phone identified as having been used by defendant as well as indicating defendant\u2019s whereabouts before and after the crime. There was no reasonable possibility that the jury would have reached a different result had the State not presented this irrelevant evidence.\n4. Evidence\u2014 opinion testimony \u2014 pictures from cell phone were defendant\nThe trial court did not err in a first-degree murder case by allowing a State\u2019s witness to state that pictures taken from a cell phone were of defendant rather than that they \u201cappeared to be\u201d defendant because: (1) defendant waived this argument since the basis for objection claimed at trial differed from the basis for objection claimed on appeal; (2) even if the objection to admissibility was properly before the Court of Appeals, it was not unduly prejudicial when the jury had the opportunity to examine and make its own determination as to the probative value of the cell phone pictures; and (3) defendant has not and cannot show a reasonable possibility that a different result would have been reached at trial had the objections to the testimony been sustained.\n5. Criminal Law\u2014 instruction \u2014 flight\nThe trial court did not err in a first-degree murder case by instructing the jury on flight, even though defendant contends there was insufficient evidence that he took steps to avoid apprehension, because: (1) although defendant claims law enforcement knew he had family in the Grifton area and had no trouble locating him at his aunt\u2019s house, law enforcement testimony indicated that despite continuous search efforts it took thirty-four days to locate defendant at a relative\u2019s home in Grifton; (2) trial testimony established that defendant and his accomplice sped off immediately after the murder and that less than an hour later they arranged for a taxi to pick them up at a Raleigh hotel across town from the crime scene and take them to Durham; (3) phone calls made less than eight hours after the crime on a cell phone linked to defendant originated in Greenville (near Grifton), indicating that he had left Durham soon after arriving; (4) defendant\u2019s conduct did not seem to be a part of his normal pattern of behavior and could be viewed as steps to avoid apprehension; (5) regardless of whether defendant\u2019s home was his girlfriend\u2019s or relative\u2019s home, he returned to neither immediately after leaving the scene of the crime; (6) the fact that defendant argues another reasonable explanation for his conduct does not, in itself, render a flight instruction improper; and (7) even if improper, it was not unduly prejudicial in light of the overwhelming evidence of defendant\u2019s guilt, and there was no reasonable possibility that a different result would have been reached absent the error.\nAppeal by defendant from judgment entered 18 May 2006 by Judge A. Leon Stanback in Wake County Superior Court. Heard in the Court of Appeals 27 November 2007.\nAttorney General Roy Cooper, by Assistant Solicitor General John R Maddrey, for the State.\nBrian Michael Aus, for defendant." }, "file_name": "0309-01", "first_page_order": 341, "last_page_order": 352 }