In this Guilford County case, defendant appealed her conviction for trafficking methamphetamine, arguing (1) plain error in admitting testimony from an expert without a sufficient foundation for reliability under Rule of Evidence 702, and (2) error in failing to intervene ex mero motu when the prosecutor made improper remarks during closing argument about her past convictions. The Court of Appeals found no plain error in (1), and no error in (2). 

In November of 2018, law enforcement officers set up an undercover investigation of a suspected drug dealer. At a meeting set up by an undercover officer to purchase methamphetamine, defendant was the driver of the vehicle with the drug dealer. After officers found methamphetamine in the vehicle, defendant was charged and ultimately convicted of trafficking methamphetamine by possession. 

Looking to (1), the Court of Appeals found error in admitting the State’s expert testimony under Rule 702, as “the court failed to exercise its gatekeeping function” when admitting the expert’s testimony. Slip Op. at 7. Although the expert offered testimony about the type of analysis she performed to identify the methamphetamine, “she did not explain the methodology of that analysis.” Id. However, the court noted that this error did not rise to the level of plain error as the expert “identified the tests she performed and the result of those tests,” and she did not engage in “baseless speculation.” Id. 

Turning to (2), the court noted that defendant testified on her own behalf and opened the door to character evidence about her past convictions, and that she did not object at trial to the improper argument. The court found the majority of the closing argument to be unobjectionable, but did agree that the prosecutor “improperly suggested that Defendant was more likely to be guilty of the charged offenses based on her past convictions.” Id. at 9. However, this improper suggestion was only “a few lines of the prosecutor’s eighteen-page closing argument” and “was not so grossly improper that it warranted judicial intervention.” Id. 

In this case involving convictions of felony murder, discharging a firearm into an occupied vehicle, and possession of marijuana with intent to sell, the trial court did not err by admitting certain photographs at trial. Two of the photographs (“Gun Photos”) were of firearms; the photos were found on the defendant’s cell phone. A third photograph (“Mustang Photo”) also was recovered from the defendant’s phone; it showed the defendant and another man leaning against the hood of a Silver Mustang with a black racing stripe on the street where the victim was shot. Both men were displaying the hand sign for the number “4” with their left hands, while the man on the right displayed a closed right hand with his middle finger extended.

     The defendant argued that the photos should have been excluded under Evidence Rule 404 because possession of a firearm and flashing gang signs show bad character and bad acts. The court found itself unable to conclude that possession of a firearm is indicative of bad acts or character given that gun ownership is protected by the Second Amendment and that the defendant’s own brief fails to identify any basis for such a conclusion. The court failed to see how the hand signals in the Mustang Photo indicate gang affiliation. Nothing in the record suggests that either gesture indicates gang affiliation, and the trial court instructed the prosecutor not to ask any questions about signs or gang affiliation based on the picture. Thus, neither photograph falls within the scope of Rule 404.

     The court rejected the defendant’s argument that the photographs were inadmissible under Rules 401 and 402. The court rejected the defendant’s argument that no evidence connected the gun at issue to the weapon used in the crime. There was an evidentiary connection between the photos, the crime, and the accused; specifically, the photos were obtained from the defendant’s phone, showed that he had access to firearms and to the vehicle in question, and depict him at almost the precise location where the shooting occurred. One of the gun photos shows the defendant in possession of a firearm resembling the one used in the shooting. The evidence was relevant and the trial court did not err by admitting the photographs.

     The trial court did not abuse its discretion in conducting the Rule 403 balancing test with respect to the photographs. The defendant’s brief assumes that the photographs are irrelevant but because the court concluded to the contrary it rejected this argument as well.

(1) In a child sexual assault case, the trial court did not err by refusing the defendant’s request to instruct the jury that it could consider evidence concerning his character for honesty and trustworthiness as substantive evidence of his guilt or innocence. At trial, five witnesses testified that the defendant was honest and trustworthy. The defendant requested an instruction in accordance with N.C.P.J.I. 105.60, informing the jury that a person having a particular character trait “may be less likely to commit the alleged crime(s) than one who lacks the character trait” and telling the jury that, if it “believe[d] from the evidence [that the defendant] possessed the character trait” in question, it “may consider this in [its] determination of [Defendant’s] guilt or innocence[.]” The trial court would have been required to deliver the requested instruction if the jury could reasonably find that an honest and trustworthy person was less likely to commit the crimes at issue in this case than a person who lacked those character traits. Although “an individual’s honesty and trustworthiness are certainly relevant to an individual’s credibility, we are unable to say that a person exhibiting those character traits is less likely than others to commit a sexual offense [such as the ones charged in this case].” (2) In a child sexual assault case, in which the defendant was charged with having sexual contact with student athletes who came to him for help with sports injuries, the trial court did not err by refusing to allow a defense witness to testify that the defendant possessed the character trait of working well with children and not having an unnatural lust or desire to have sexual relations with children. The defendant argued that the evidence should have been admitted since it related to a pertinent character trait that had a special relationship to the charged crimes. Citing State v. Wagoner, 131 N.C. App. 285, 293 (1998) (the trial court properly excluded evidence showing the defendant’s “psychological make-up,” including testimony that he was not a high-risk sexual offender, on the theory that such evidence, which amounted to proof of the defendant’s normality, did not tend to show the existence or non-existence of a pertinent character trait), the court concluded that the evidence in question “constituted nothing more than an attestation to Defendant’s normalcy” and was properly excluded.