{ "id": 4278350, "name": "STATE OF NORTH CAROLINA v. KENIS RAY JOHNSON", "name_abbreviation": "State v. Johnson", "decision_date": "2011-08-16", "docket_number": "No. COA10-1410", "first_page": "436", "last_page": "447", "citations": [ { "type": "official", "cite": "214 N.C. App. 436" } ], "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": "620 S.E.2d 883", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634255 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "886" }, { "page": "886", "parenthetical": "citations omitted" }, { "parenthetical": "citation omitted" }, { "page": "886", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/620/0883-01" ] }, { "cite": "324 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1985, "pin_cites": [ { "page": "248", "parenthetical": "citations omitted" }, { "page": "248", "parenthetical": "citation omitted" }, { "parenthetical": "citation omitted" }, { "page": "248", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "312 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753359 ], "year": 1985, "pin_cites": [ { "page": "561-62", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0553-01" ] }, { "cite": "604 S.E.2d 850", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "876", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "359 N.C. 77", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3801733 ], "year": 2004, "pin_cites": [ { "page": "115", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0077-01" ] }, { "cite": "471 S.E.2d 398", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1996, "pin_cites": [ { "page": "455" }, { "page": "402" }, { "page": "456" }, { "page": "403" } ], "opinion_index": 0 }, { "cite": "343 N.C. 448", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798819 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/343/0448-01" ] }, { "cite": "174 N.C. App. 335", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352005 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "340" }, { "page": "340" }, { "page": "340" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0335-01" ] }, { "cite": "558 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "106", "parenthetical": "\"references to events and circumstances outside the evidence\" constitute improper closing arguments" }, { "page": "106" } ], "opinion_index": 0 }, { "cite": "355 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219899 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "131", "parenthetical": "\"references to events and circumstances outside the evidence\" constitute improper closing arguments" }, { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0117-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-90", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(l)(a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 90-91", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(d)(3)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2009, "pin_cites": [ { "page": "(h)(4)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "391 S.E.2d 165", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 2171202 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "167", "parenthetical": "citation omitted" }, { "page": "166-67", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/sc/301/0374-01" ] }, { "cite": "326 N.C. 576", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5308335 ], "year": 1990, "pin_cites": [ { "page": "578", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0576-01" ] }, { "cite": "699 S.E.2d 911", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "915", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "364 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152635 ], "year": 2010, "pin_cites": [ { "page": "400", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/364/0394-01" ] } ], "analysis": { "cardinality": 911, "char_count": 26942, "ocr_confidence": 0.743, "pagerank": { "raw": 5.782554514408498e-08, "percentile": 0.3609778021807449 }, "sha256": "f365c69c04ecfed0ad355ea14eeec86ee4fc78e06ed3012c11b665c9c680797d", "simhash": "1:8b2ad32e360e19d2", "word_count": 4225 }, "last_updated": "2023-07-14T17:33:33.584356+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STROUD and BEASLEY concur." ], "parties": [ "STATE OF NORTH CAROLINA v. KENIS RAY JOHNSON" ], "opinions": [ { "text": "McGEE, Judge.\nKenis Ray Johnson (Defendant) was found guilty on 23 July 2010 of: selling and delivering, and possession with the intent to sell and deliver a schedule III controlled substance; trafficking in opium by transporting, selling, and delivering more than 28 grams of an opium derivative; maintaining a vehicle for the purpose of selling controlled substances; and possession of drug paraphernalia. Defendant was found not guilty of child abuse. The trial court sentenced Defendant to a prison term of 225 to 279 months on 23 July 2010, and ordered Defendant to pay a fine of $500,000.00 for trafficking in opium by delivering more than 28 grams of an opium derivative. The trial court also sentenced Defendant to a consecutive prison term of 225 to 279 months, and ordered Defendant to pay an additional fine of $500,000.00 for trafficking in opium by transporting and selling more than 28 grams of an opium derivative, and for selling and possession with intent to sell and deliver a schedule III controlled substance. The trial court arrested judgment on Defendant\u2019s guilty verdict for delivery of a schedule III controlled substance. Defendant appeals.\nDefendant was arrested in a \u201cbuy-bust sting operation\u201d conducted by the Onslow County Sheriff\u2019s Office. An informant, Joshua Burgess (Mr. Burgess), called Detective Vishaud Samlall (Detective Samlall) of the Onslow County Sheriff\u2019s Office on 17 July 2009 to inform Detective Samlall that he could set up a deal the following day to buy Vicodin pills from Defendant. Detective Samlall authorized the deal and the following morning, he met with Mr. Burgess and several officers of the Onslow County Sheriffs Office, including Sergeant Robert Ides (Sergeant Ides). In preparation for the operation, the officers searched Mr. Burgess and his vehicle; the searches revealed no drugs or money. The officers then equipped Mr. Burgess with a \u201cbutton camera[,]\u201d a small camera made to look like a button and worn in place of a button on a person\u2019s clothing. Mr. Burgess was to use the button camera to record audio and video of the anticipated drug purchase. The officers also issued $350.00 of \u201cbuy money\u201d to Mr. Burgess to purchase 180 Vicodin pills from Defendant. Detective Samlall had previously photocopied the $350.00 to make it identifiable.\nThe officers and Mr. Burgess drove to a grocery store parking lot in Swansboro, North Carolina, the site of the anticipated drug purchase. Mr. Burgess met Defendant in the grocery store parking lot and interacted with him for about a minute. Although several officers observed the interaction, no officers observed Mr. Burgess and Defendant exchange any money or drugs. Mr. Burgess testified that he purchased a bottle of pills from Defendant for $350.00, signaled to the officers that the deal was complete, and then drove away. After the officers observed Mr. Burgess signal that the deal was complete, the officers converged on Defendant\u2019s vehicle and arrested Defendant. Defendant\u2019s seven-year-old son was also in Defendant\u2019s vehicle. Detective Samlall testified that he searched Defendant\u2019s vehicle and found the $350.00 that had been issued to Mr. Burgess. Sergeant Ides testified that he followed Mr. Burgess and stopped him a short distance away from the parking lot. Sergeant Ides searched Mr. Burgess and his vehicle, locating a pill bottle containing 169.5 pills, but no additional drugs and no money. Sergeant Ides took possession of the pill bottle and the button camera worn by Mr. Burgess during the interaction.\nMelanie Thornton (Ms. Thornton), a forensic chemist with the N.C. State Bureau of Investigation (SBI), testified that she analyzed and identified the pills \u201cas a mixture of acetaminophen and Hydrocodone.\u201d Ms. Thornton also testified that the pills constituted \u201ca Schedule III preparation of an opiate derivative, dihydrocodeinone, with a total weight of 118 grams.\u201d It is apparent from the record, and the parties agree, that Hydrocodone and dihydrocodeinone are synonymous.\nDefendant testified that he received \u201c180 pills every 30 days\u201d for pain caused by his diabetes. During Defendant\u2019s cross-examination, the State asked Defendant if he got \u201cVicodin or dihydrocodeinone from the VA\u201d and Defendant responded \u201c[t]hat is correct.\u201d Defendant testified that he and Mr. Burgess attended a cookout on 17 July 2009, where Mr. Burgess, aware of the pain Defendant\u2019s diabetes caused Defendant, offered to give Defendant several Percocet pills the following day. Defendant testified that he met Mr. Burgess in a grocery store parking lot on 18 July 2009, and that Mr. Burgess approached Defendant\u2019s vehicle and dropped an empty pill bottle into Defendant\u2019s lap, which Defendant immediately gave back to Mr. Burgess. Defendant denied ever selling any pills to Mr. Burgess and denied that the $350.00 \u201cbuy money\u201d was ever in his possession or in his vehicle.\nA DVD copy of the audio and video recording made by the button camera worn by Mr. Burgess (the recording) was admitted into evidence and published to the jury at trial. During closing arguments, the trial court allowed the State to republish the recording and the trial court made the following remarks:\nThe republication of [the recording] was done in a manner differently from the way it was presented to the jury during the [S]tate's case in chief. That difference was that it was presented in a frame-by-frame manner and, at times, he had enlarged it. It was done, ostensibly, because, at regular speed, it was unable to be seen \u2014 certain items, such as the money and the pill bottle in that \u2014 in that video.\nAt the jury\u2019s request, the recording was again republished, in a frame-by-frame manner, during jury deliberations. Further facts will be introduced in the opinion as necessary.\nI.\nDefendant\u2019s first argument is that the trial court erred in entering judgments for both trafficking in opium and for selling and possession with intent to sell and deliver a schedule III controlled substance because the judgments \u201care mutually exclusive for the same conduct.\u201d We disagree.\n\u201cVerdicts are mutually exclusive when a verdict \u2018purports to establish that the [defendant] is guilty of two separate and distinct criminal offenses, the nature of which is such that guilt of one necessarily excludes guilt of the other.\u2019 \u201d State v. Mumford, 364 N.C. 394, 400, 699 S.E.2d 911, 915 (2010) (citation omitted). For example, our Supreme Court concluded in State v. Speckman, 326 N.C. 576, 578, 391 S.E.2d 165, 167 (1990) (citation omitted), that \u201ca defendant may not be convicted of both embezzlement and false pretenses arising from the same act or transaction, due to the mutually exclusive nature of those offenses[.]\u201d The Speekman Court explained:\nThis Court has held that to constitute embezzlement, the property in question initially must be acquired lawfully, pursuant to a trust relationship, and then wrongfully converted. On the other hand, to constitute false pretenses the property must be acquired unlawfully at the outset, pursuant to a false representation. This Court has previously held that, since property cannot be obtained simultaneously pursuant to both lawful and unlawful means, guilt of either embezzlement or false pretenses necessarily excludes guilt of the other.\nId. at 578, 391 S.E.2d at 166-67 (citations omitted).\nIn the present case, Defendant specifically argues:\nRead together, the [relevant] statutes evince a legislative intent that sale, delivery, and possession with intent to sell or deliver therapeutic amounts of prescription pain pills containing the opium derivative dihydrocodeinone be punished as Class H or Class I felonies under Schedule III, and not as the synonymous opium derivative hydrocodone under Schedule II subject to elevated punishment under the trafficking provisions.\nSchedule III includes \u201ccontrolled substances . . . [with] currently accepted medical use in the United States\u201d, N.C.G.S. \u00a790-91, and the quantitative inclusion in Schedule III of \u201crecognized therapeutic amounts\u201d of specified mixtures containing dihydrocodeinone shows legislative intent to except such amounts of such medicines from trafficking penalties through the \u201cexcept as otherwise provided in this Article\u201d clause of N.C.G.S. \u00a790-95(h) \u2014 while the same opium derivative is otherwise subject to ordinary and trafficking penalties as Schedule II hydrocodone, N.C.G.S. \u00a790-90(l)(a)(10).\nThe trial court entered judgments against Defendant for trafficking in opium. In relevant part, N.C. Gen. Stat. \u00a7 90-95(h)(4) (2009) provides:\n(h) Notwithstanding any other provision of law, the following provisions apply except as otherwise provided in this Article.\n(4) Any person who sells, manufactures, delivers, transports, or possesses four grams or more of opium or . . . derivative, or preparation of opium ... shall be guilty of a felony which felony shall be known as \u201ctrafficking in opium or heroin\u201d and if the quantity of such controlled substance or mixture involved:\nc. Is 28 grams or more, such person shall be punished as a Class C felon and shall be sentenced to a minimum term of 225 months and a maximum term of 279 months in the State\u2019s prison and shall be fined not less than five hundred thousand dollars ($500,000).\nThe trial court also entered judgment against Defendant for selling and possession with intent to sell and deliver a schedule III preparation of an opium derivative. In relevant part, N.C. Gen. Stat. \u00a7 90-95(a)-(b) (2009) provides:\n(a) Except as authorized by this Article, it is unlawful for any person:\n(1) To manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance;\n(b) Except as provided in subsections (h) and (i) of this section, any person who violates G.S. 90-95(a)(l) with respect to:\n(2) A controlled substance classified in Schedule III . . . shall be punished as a Class I felon, except that the sale of a controlled substance classified in Schedule III . . . shall be punished as a Class H felon.\nWe find no support for Defendant\u2019s argument that a schedule III preparation of an opium derivative does not qualify as a \u201cderivative ... or preparation of opium\u201d for the purposes of the trafficking statute, N.C.G.S. \u00a7 90-95(h)(4). Schedule III preparations of the opium derivative dihydrocodeinone are differentiated from schedule II preparations of the same opium derivative by the quantitative ratio of dihydrocodeinone to nonnarcotic ingredients per dosage unit. See N.C. Gen. Stat. \u00a7 90-91(d)(3)-(5) (providing descriptions of schedule III preparations of dihydrocodeinone); N.C. Gen. Stat. \u00a7 90-90(l)(a)-(b) (providing description of schedule II controlled substances including \u201cany . . . derivative ... or preparation of opium\u201d). In contrast, the quantitative requirements of the trafficking statute refer to the total weight of the opium derivative at issue, and not the quantitative measure of the opium derivative per dosage unit. See N.C.G.S. \u00a7 90-95(h)(4) (referring to \u201c[a]ny person who sells, manufactures, delivers, transports, or possesses four grams or more of opium or . . . derivative, or preparation of opium\u201d). Accordingly, the \u201cexcept as otherwise provided in this Article\u201d clause of N.C.G.S. \u00a7 90-95(h) does not impact that statute\u2019s applicability to schedule III controlled substances.\nDefendant makes no additional arguments regarding his assertion that the judgments for trafficking in opium and for selling and possession with intent to sell and deliver a schedule III controlled substance are mutually exclusive for the same conduct. Defendant\u2019s argument is without merit.\nII.\nDefendant\u2019s second argument is that the trial court \u201cerred in allowing the [State], over objection, to display an enhanced version of a video recording during closing argument and during jury deliberation, which enhanced version had not been offered into evidence [.]\" We disagree.\n\u201cDuring a closing argument to the jury an attorney may not . . . make arguments on the basis of matters outside the record except for matters concerning which the court may take judicial notice.\u201d N.C. Gen. Stat. \u00a7 15A-1230 (2009). See also State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002) (\u201creferences to events and circumstances outside the evidence\u201d constitute improper closing arguments). During jury deliberations, the trial court may, in its discretion, \u201cpermit the jury to reexamine in open court . . . materials admitted into evidence.\u201d N.C. Gen. Stat. \u00a7 15A-1233(a) (2009). We review appeals regarding improper closing arguments and appeals regarding the reexamination of evidence during jury deliberations for an abuse of discretion by the trial court. See Jones, 355 N.C. at 131, 558 S.E.2d at 106; State v. McVay, 174 N.C. App. 335, 340, 620 S.E.2d 883, 886 (2005). \u201cA court\u2019s complete failure to exercise discretion amounts to reversible error.\u201d McVay, 174 N.C. App. at 340, 620 S.E.2d at 886 (citations omitted). Where a trial court has exercised its discretion, we find an abuse of discretion only \u201c \u2018where the [trial] court\u2019s ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.\u2019 \u201d Id. (citation omitted).\nIn the present case, Defendant argues that the trial court erred by permitting the State to republish the recording both during closing argument and during jury deliberation because the two republications of the recording constituted \u201cnew evidence.\u201d Regarding the republication of the recording during closing argument, the trial court made the following statement:\nThe republication of [the recording] was done in a manner differently from the way it was presented to the jury during the [S]tate\u2019s case in chief. That difference was that it was presented in a frame-by-frame manner and, at times, he had enlarged it. It was done, ostensibly, because, at regular speed, it was unable to be seen \u2014 certain items, such as the money and the pill bottle in that \u2014 in that video. The court, in its discretion \u2014 [defense counsel] objected timely, at the time that it was being done. The court overruled that objection.\nRegarding the same republication of the recording during closing argument, Defendant specifically objected\nto the [S]tate\u2019s closing argument and the fact that they used the video in a way that was not presented as evidence to the jury; and that way was, they slowed it down and first did a still-by-still, picture-by-picture frame, and then they slowed it down and did it in slow motion, in an enhanced version.\nThe trial court \u201cagree[d] that they did that\u201d but nevertheless overruled Defendant\u2019s objection.\nBefore the recording was republished during jury deliberations, the trial court overruled Defendant\u2019s renewed objection to the republication of the recording, stating: \u201cWell, because the court believes that it\u2019s the same evidence that was being offered, albeit in a slowed down manner, because the court also believes that a lawsuit is a search for the truth, the court is going to overrule the objection and permit it.\u201d (Emphasis added). The State accordingly republished the recording, and the following exchange between defense counsel and the trial court occurred.\n[DEFENSE COUNSEL]: I just want to make comments about the video. Frame by frame, there was no money shown, so I don\u2019t know what he did during his closing to actually show that money, and I\u2019m trying to figure that out now, because, this is frame by frame, and I didn\u2019t see any money.\nTHE COURT: I did.\n[DEFENSE COUNSEL]: You saw the money?\nTHE COURT: I saw the money.\n[PROSECUTOR]: I can go back to that section, if you like.\nTHE COURT: If you would. Go back[.]\n[PROSECUTOR]: I\u2019m starting at [the relevant time], and I\u2019ll tap through it.\n(THE ABOVE-REFERRED-TO PORTION OF [THE RECORDING] WAS PLAYED.)\nTHE COURT: Stop right there. All right.\n[DEFENSE COUNSEL]: Thank you, Your Honor.\nThe foregoing excerpts from the record make clear that the trial court exercised discretion when overruling Defendant\u2019s objections to the two republications of the recording. Moreover, Defendant has not met his burden of demonstrating that the trial court abused its discretion when it determined that the versions of the recording displayed during closing argument and during jury deliberations constituted the same evidence that had previously been admitted during the State\u2019s case-in-chief. The record reveals that there were two differences between the original display of the recording and the displays during closing argument and jury deliberations: during closing argument and during jury deliberations, the recording \u201cwas presented in a frame-by-frame manner.\u201d During closing argument, the video recording was \u201cenlarged\u201d and shown in \u201cslow motion, in an enhanced version.\u201d We note, initially, that we consider the displays of the recording in \u201cslow motion\u201d and in a \u201cframe-by-frame manner\u201d to be essentially equivalent, and we will refer to both, collectively, as the display of the recording in a frame-by-frame manner.\nRegarding the display of the recording in a frame-by-frame manner, we find useful the analysis in State v. Brewington, 343 N.C. 448, 471 S.E.2d 398 (1996). In Brewington, the trial court admitted an incriminating videotape into evidence for substantive purposes without objection from the defendant. Id. at 455, 471 S.E.2d at 402. Later, the defendant objected when the State moved to publish the videotape to the jury in slow motion; the trial court overruled the objection. Id. On appeal, our Supreme Court stated, \u201c[i]n light of the probative value of this videotape, we conclude the trial court did not abuse its discretion in permitting the jury to view the videotape in real time or in slow motion.\u201d Id. at 456, 471 S.E.2d at 403.\nIn the present case, the trial court concluded that the display of the recording in a frame-by-frame manner constituted the same evidence which had already been admitted during the State\u2019s case-in-chief. Although Brewington is not dispositive on the precise issue before this Court, the Brewington Court\u2019s analysis lends further support to the trial court\u2019s determination that the display of the recording in a frame-by-frame manner did not constitute \u201cnew evidence.\u201d Notably, the decisive factor in Brewington, the probative value of the slow motion display of the videotape recording, id., is also present in the case before us. Defendant repeatedly denied that the $350.00 \u201cbuy money\u201d was ever in his vehicle. The record reveals that the display of the video in a frame-by-frame manner may have showed \u201cthe money\u201d during the interaction between Mr. Burgess and Defendant. The display of the recording in a frame-by-frame manner, like the slow motion display of the videotape in Brewington, was therefore particularly probative. In any event, we are unable to conclude that the trial court\u2019s determination on this matter was \u201c \u2018manifestly unsupported by reason or [wa]s so arbitrary that it could not have been the result of a reasoned decision.\u2019 \u201d McVay, 174 N.C. App. at 340, 620 S.E.2d at 886 (citation omitted). The trial court did not abuse its discretion in determining that the republication of the recording in a frame-by-frame manner did not constitute new evidence.\nThe record further reveals, however, that during closing argument the recording was additionally displayed in an \u201cenlarged\u201d or otherwise \u201cenhanced version.\u201d As the above excerpts highlight, there is confusion in the record as to the exact nature of this additional \u201cenhance[ment.]\u201d The trial court stated that the State had \u201cat times ... enlarged\u201d the display of the recording. The trial court also agreed that the recording was displayed \u201cin slow motion, in an enhanced version.\u201d It is unclear, however, what exactly constituted this additional \u201cenhance[ment.]\u201d Accordingly, the record has not been sufficiently preserved for us to make a determination that any additional \u201cenhance [ment]\u201d of the recording was such that the display of the recording in such a manner constituted new evidence. We conclude that the trial court did not abuse its discretion in overruling Defendant\u2019s objections to the display of the recording during closing argument and during jury deliberation. Defendant\u2019s argument is without merit.\nIII.\nDefendant\u2019s third argument is that Defendant\u2019s trial \u201ccounsel failed to function as the \u2018counsel for defense\u2019 guarant\u00e9ed by Article I, Section 23, of the Constitution of North Carolina and by the Sixth and Fourteenth Amendments to the Constitution of the United Statesf.]\u201d We disagree.\nThe \u201ctest for ineffective assistance of counsel is the same under both the state and federal constitutions.\u201d State v. Thompson, 359 N.C. 77, 115, 604 S.E.2d 850, 876 (2004) (citation omitted).\nWhen a defendant attacks his conviction on the basis that counsel was ineffective, he must show that his counsel\u2019s conduct fell below an objective standard of reasonableness. In order to meet this burden [a] defendant must satisfy a two part test.\nFirst, the defendant must show that counsel\u2019s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the \u201ccounsel\u201d guaranteed the defendant by the Sixth Amendment. Second, the defendant m\u00fast show that the deficient performance prejudiced the defense. This requires showing that counsel\u2019s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.\nState v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985) (citations omitted).\nIn the present case, Defendant argues that he received ineffective assistance of counsel at trial for two reasons. First, Defendant argues that his trial counsel \u201cneglect[ed] to object to and joinfed] in repeated characterizations of the police informant as a \u2018confidential and reliable informant\u2019 or \u2018CRI[.]' \u201d Defendant reasons that because no \u201cpolice officer witnessed an exchange of money for pills[,]\u201d the \u201cquestion for the jury was whether to believe the testimony of [Mr.] Burgess asserting or the testimony of [Defendant] denying such exchange.\u201d Defendant concludes that to \u201cdetermine whether the State met its burden of proof, the jury had to decide whether or not [Mr.] Burgess was reliable.\u201d We disagree.\nAssuming, arguendo, that Defendant has presented a situation where defense counsel \u201c \u2018made errors so serious that counsel was not functioning as the \u201ccounsel\u201d guaranteed\u2019 \u201d by the federal and state constitutions, id. at 562, 324 S.E.2d at 248 (citation omitted), Defendant has failed to show prejudice from the alleged errors. Defendant's argument presumes that the State could not meet its burden of proof without proving that Mr. Burgess was a more credible witness than Defendant. However, Defendant\u2019s argument fails to take account of the fact that the jury also viewed a recording of the interaction between Defendant and Mr. Burgess. As stated by the trial court, that recording featured \u201ccertain items, such as the money and the pill bottle[,]\u201d which, alongside the testimony of State\u2019s witnesses other than Mr. Burgess, would have allowed the State to meet its burden of proof regarding Defendant\u2019s guilt. Accordingly, Defendant has failed to show that these alleged errors \u201c \u2018were so serious as to deprive . . . [DJefendant of a fair trial[.]\u2019 \u201d Id. (citation omitted).\nDefendant also argues that he received ineffective assistance of counsel because his trial counsel failed to object to \u201chearsay and non-expert opinion\u201d that characterized Mr. Burgess as a prescription medication addict who was not a potential threat to other people but characterized Defendant as a drug dealer who posed a greater threat to other people. We note that, as stated by Defendant, there was no objection to the alleged \u201chearsay and non-expert opinion\u201d testimony at trial. Defendant does not argue that the testimony at issue fails the plain error standard. Accordingly, we make no determination as to whether the admission into evidence of the testimony at issue was in error.\nAssuming, arguendo, that defense counsel\u2019s failure to object to the \u201chearsay and non-expert opinion\u201d testimony at issue presents a situation where defense counsel \u201c \u2018made errors so serious that counsel was not functioning as the \u201ccounsel\u201d guaranteed\u2019 \u201d by the federal and state constitutions, id. at 562, 324 S.E.2d at 248 (citation omitted), Defendant has failed to show prejudice from the alleged error. In his brief, Defendant argues why defense counsel should have objected to the testimony at issue, under the applicable evidentiary rule, and then simply asserts: \u201cTrial counsel\u2019s failure to object prejudiced fair determination whether to believe [Mr.] Burgess\u2019[] testimony or [Defendant\u2019s] testimony.\u201d Like Defendant\u2019s first argument regarding ineffective assistance, this argument fails to take into account the probative value of the recording which depicted the interaction between Mr. Burgess and Defendant. We also note that, despite Defendant\u2019s arguments that his trial counsel\u2019s alleged errors bolstered Mr. Burgess\u2019 credibility with the jury, Defendant\u2019s trial counsel repeatedly attacked Mr. Burgess\u2019 credibility throughout the trial. Because the State could meet its burden of proof regardless of the credibility of Mr. Burgess\u2019 testimony, Defendant has failed to show prejudice in this matter. Defendant\u2019s argument is without merit.\nNo error.\nJudges STROUD and BEASLEY concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Charles G. Whitehead, for the State.", "Kevin P. Bradley for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KENIS RAY JOHNSON\nNo. COA10-1410\n(Filed 16 August 2011)\n1. Drugs \u2014 trafficking\u2014sale of opium derivative \u2014 sale of schedule III substance \u2014 not mutually exclusive\nJudgments against defendant for both trafficking in opium and the possession and sale of a schedule III substance were not mutually exclusive. The trafficking statute refers to the total weight of the opium derivative at issue rather than the quantitative measure per dosage unit.\n2. Evidence \u2014 video\u2014replayed during closing and deliberations\nA narcotics trafficking defendant did not meet his burden of showing that the trial court abused its discretion by determining that the versions of a video recording played during closing argument and during jury deliberations constituted the same evidence that had been admitted during the State\u2019s case-in-chief. The video was enlarged and shown in slow motion during the closing argument and frame-by-frame during deliberations.\n3. Constitutional Law \u2014 effective assistance of counsel\u2014 necessity of prejudice\nDefense counsel was not ineffective during a narcotics trafficking prosecution where defense counsel did not object to characterizations of an informant as reliable. Defendant did not show prejudice from the alleged errors.\nAppeal by Defendant from judgments entered 23 July 2010 by Judge Benjamin G. Alford in Superior Court, Onslow County. Heard in the Court of Appeals 12 April 2011.\nAttorney General Roy Cooper, by Assistant Attorney General Charles G. Whitehead, for the State.\nKevin P. Bradley for Defendant." }, "file_name": "0436-01", "first_page_order": 446, "last_page_order": 457 }