STATE v. TREVINO III (2019)

Defendant Hector Trevino, III, appeals judgments entered upon jury verdicts of guilty of assault with a deadly weapon with intent to kill inflicting serious injury, attempted robbery with a dangerous weapon, and conspiracy to commit robbery with a dangerous weapon. We find no merit in Defendant's claim that the trial court reversibly erred in admitting certain evidence because Defendant has shown no prejudice from its admission; thus, any error therefrom is harmless.

I. Procedural History

On 4 February 2016, Defendant was arrested and charged with assault with a deadly weapon with intent to kill inflicting serious injury, attempted robbery with a dangerous weapon, and conspiracy to commit robbery with a dangerous weapon. On 12 July 2016, a grand jury indicted Defendant on these charges.

Defendant's case was tried before a jury on 5 March 2018, and on 7 March 2018, the jury convicted Defendant of all three charges. Judgments were entered upon the jury's verdicts, and Defendant was sentenced to an active prison term of 58-82 months for the assault with a deadly weapon with intent to kill inflicting serious injury conviction; a consecutive active prison term of 51-74 months for the attempted robbery with a dangerous weapon conviction; and a suspended prison term of 20-36 months, with supervised probation for 36 months, for the conspiracy to commit robbery with a dangerous weapon conviction. From the trial court's entry of judgments, Defendant gave proper notice of appeal.

II. Factual Background

The evidence at trial tended to show the following: On 31 October 2015, Michael Pulley (“Pulley”) attempted to contact Jesus Vasquez (“Jesus”) to buy marijuana. Pulley sent a text message to the phone number Jesus had provided him, unaware that the number actually belonged to Jesus’ brother, Angel Vasquez (“Angel”). Angel responded to Pulley's text, agreeing to sell Pulley marijuana.

However, neither Jesus nor Angel had any marijuana to sell, so Angel called Defendant to ask if he had any marijuana to sell to Pulley. Defendant replied that he did not. The three men decided to meet up with Pulley and rob him instead. Defendant drove his black Nissan Altima to pick up Jesus and Angel at their apartment, and together all three men rode to meet Pulley. Defendant drove, Angel sat in the front passenger seat, and Jesus sat behind Angel in the rear passenger seat. Upon arrival, Angel rolled down his window and told Pulley to get into the car.

Pulley entered the car and sat in the backseat behind Defendant. Defendant then drove away with Pulley in the car. Angel pulled out a handgun and pointed it at Pulley, demanding money and telling Jesus to take the money from Pulley. Jesus reached for Pulley's pockets, and the two men began fighting in the backseat. Pulley opened the door and rolled out of the car. Jesus and Angel followed Pulley out of the car and continued fighting with him. Pulley was able to break free from Jesus and Angel; but as he ran away, Angel fired his gun twice and struck Pulley one time in the back.

Pulley, unaware that he had been shot, ran home to his apartment and told his girlfriend to call 911. Law enforcement officers from the Onslow County Sheriff's Office arrived at Pulley's home shortly thereafter. Pulley told Lieutenant Todd McAllister that “someone named Jesus” had shot him. When asked at trial if the name “Jesus” had sounded familiar to him, McAllister testified that “it did for that area. I spent two years as a detective, and I worked a stabbing case where a Jesus Vasquez was the suspect, and he lives in the area. So when they stated, ‘Jesus,’ it just kind of – I said, ‘Well, he lives within three blocks of here.’ So it kind of went from there.” Deputy Aaron Hernandez searched Pulley's phone for the number of the person with whom Pulley had texted. Hernandez traced the number to Angel.

McAllister went to Jesus and Angel's apartment, and spoke to Angel's girlfriend, Selena Mercado (“Mercado”). Mercado told McAllister where to find Jesus and Angel, and stated that they had been with Defendant that day. McAllister found Jesus and Angel in a neighborhood roughly five miles away. McAllister noticed the smell of alcohol and determined that they were both impaired. Jesus told McAllister that, due to his intoxication, he had vomited down the side of Defendant's car that evening. Law enforcement personnel transported Jesus and Angel to the Onslow County Sheriff's Office for questioning.

After locating Jesus and Angel, McAllister went to Defendant's home. McAllister observed a black Nissan Altima in the driveway, ran the license plate, and found that the car was registered to Defendant. McAllister spoke with Defendant briefly, but Defendant did not cooperate and did not admit to being with Jesus or Angel earlier that evening. McAllister noted that the black Nissan Altima in the driveway had vomit on the rear, passenger-side window and door of the car.

Lieutenant David Evans performed a gunshot residue test on both Jesus and Angel; Angel tested positive for gunshot residue. Evans then performed a Cellebrite forensic exam of Angel's phone. The exam extracted all cellular data, including previously deleted data, and generated a report of the findings. Evans recovered a deleted text message on the phone from Mercado which read, “let your dumbass get caught cause I ain't bailing you out and neither is your mom cause it really takes 3 to rob one person but go ahead and be dumb.” Mercado testified at trial, “I told him that it doesn't take three people to rob one person.” Law enforcement officers also found numerous texts between Pulley and Angel regarding the potential drug transaction.

On 4 February 2016, Detective Eric Bailey executed a search warrant on Defendant's home. The search warrant identified the items to be seized as a “red hooded sweatshirt with a United States Marine Corps emblem on the hood and a gray small in caliber revolver hand gun, [and] any and all evidence of an assault, shooting related to this case.” Bailey did not find the sweatshirt or the gun identified in the search warrant. However, Bailey did find two small jars of marijuana, two glass pipes, two digital scales, a grinder, and a partially smoked marijuana blunt cigarette.

III. Discussion

Defendant argues the trial court committed reversible error by admitting testimony about, and photographs of, marijuana and marijuana paraphernalia found in Defendant's home.

A. Preservation of Issues

As a threshold matter, we first determine whether Defendant has preserved his argument for appellate review. “In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.” N.C. R. App. P. 10(a)(1) (2018). “If parties do not timely object, they waive the right to raise the alleged error on appeal.” State v. Lawrence, 365 N.C. 506, 512, 723 S.E.2d 326, 330 (2012) (citations omitted). Moreover, “[w]here evidence is admitted over objection, and the same evidence ․ is later admitted without objection, the benefit of the objection is lost.” State v. Whitley, 311 N.C. 656, 661, 319 S.E.2d 584, 588 (1984).

“In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.” N.C. R. App. P. 10(a)(4) (2018). However, a defendant must “specifically and distinctly assign plain error” to be entitled to plain error review. State v. Gainey, 355 N.C. 73, 97, 558 S.E.2d 463, 479 (2002).

On appeal, Defendant challenges the admission of Exhibits 18 and 20-26, along with Bailey's testimony about the marijuana and marijuana paraphernalia found in Defendant's home. The challenged exhibits are:

• Exhibit 18: A photograph of a marijuana blunt cigarette.

• Exhibit 20: A photograph of a nightstand with two scales, two pipes, a marijuana grinder, and a jar containing marijuana.

• Exhibit 21: A photograph of the edge of Defendant's bed with an ashtray and grinder on top.

• Exhibit 22: A close-up photograph of Exhibit 21.

• Exhibit 23: A photograph of an end table.

• Exhibit 24: A photograph of a drawer containing the contents of Exhibit 20.

• Exhibit 25: A photograph of a small jar containing marijuana, and a grinder.

• Exhibit 26: A second photograph of marijuana, a grinder, and a pipe.

At trial, Defendant objected to Bailey's testimony regarding what Exhibit 18 depicted. After a bench conference, Defendant's objection was overruled and the following exchange took place:

[State]: What does 18 depict?

[Bailey]: A blunt cigarette.

[State]: For the jury's information, what do you mean by blunt cigarette?

[Bailey]: A blunt is when they use -- they take a cigar, they will hollow it out and insert marijuana along with that, and use it to smoke.

[State]: Okay. Is that a fair and accurate representation of the marijuana blunt cigarette that was located at 265 Easy Street during the search warrant?

[Bailey]: Yes, sir.

Defendant did not object to Bailey's testimony regarding Exhibits 20-26.¹ Moreover, Defendant stated he had “[n]o objection” when the State moved to admit Exhibits 14-26 ² into evidence, including Exhibit 18, and did not object to the State's request to publish Exhibits 14-26 to the jury. Defendant has thus failed to preserve for our review arguments related to the admission of the testimony regarding Exhibits 20-26 and the admission into evidence and publication to the jury of Exhibits 18 and 20-26. Moreover, Defendant is not entitled to plain error review of the admission of this evidence because he did not specifically and distinctly contend on appeal that the trial court's decision to admit the evidence amounted to plain error. Gainey, 355 N.C. at 97, 558 S.E.2d at 479.

We will address Defendant's argument that the trial court committed reversible error by admitting irrelevant testimony about the photograph of the marijuana blunt cigarette.

B. Analysis

“Evidence which is not relevant is not admissible.” N.C. Gen. Stat. § 8C-1, Rule 402 (2018). “ ‘Relevant evidence’ means evidence having any 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.” N.C. Gen. Stat. § 8C-1, Rule 401 (2018). “Whether evidence is relevant is a question of law that we review de novo.” State v. Broussard, 239 N.C. App. 382, 387, 768 S.E.2d 367, 371 (2015) (citation omitted). The “admission of evidence which is technically inadmissible will be treated as harmless unless prejudice is shown such that a different result likely would have ensued had the evidence been excluded.” State v. Moses, 350 N.C. 741, 762, 517 S.E.2d 853, 867 (1999) (citation omitted).

Even assuming arguendo that Bailey's testimony about the marijuana blunt cigarette was irrelevant and, thus, erroneously admitted, Defendant has failed to show “that a different result likely would have ensued had the evidence been excluded.” Id.

Abundant evidence was admitted, without objection, that Defendant had marijuana and drug paraphernalia in his home when officers executed the search warrant. Admitted into evidence and published to the jury were photographs of the following: the marijuana blunt cigarette; a nightstand with two scales, two pipes, a marijuana grinder; two small jars containing marijuana; and Defendant's bed with an ashtray and grinder on top. Moreover, Bailey testified to what was depicted in the photographs of the nightstand with two scales, two pipes, a marijuana grinder; two small jars containing marijuana; and Defendant's bed with an ashtray and grinder on top. Given the abundant admitted evidence of marijuana and drug paraphernalia, Defendant cannot show prejudice from the admission of the testimony regarding the marijuana blunt cigarette. See State v. McKnight, 239 N.C. App. 108, 122, 767 S.E.2d 689, 699 (2015) (holding that defendant was not prejudiced when the trial court erroneously admitted irrelevant evidence of marijuana found in his home because other admitted evidence showed that law enforcement found defendant with ten pounds of marijuana in his vehicle).

Additionally, there was ample evidence before the jury to support Defendant's convictions of each offense. Pulley, Mercado, and Jesus all testified that Defendant was the driver of the vehicle used during the crime, and that Defendant used his Nissan Altima in the attempted robbery and shooting. Mercado testified that she overheard Defendant, Angel, and Jesus plan the robbery and even scolded Angel that it did not “take three people to rob one person.” A forensic examination of Angel's cell phone revealed text messages between Angel and Defendant wherein they discussed the plan for Defendant to pick up Angel and Jesus on the night 31 October 2015.

Further, Jesus told McAllister that, due to his intoxication, he had vomited down the side of Defendant's car on the night of the shooting. After receiving this information, McAllister immediately went to Defendant's home, verified that Defendant owned the black Nissan Altima parked outside the home, and noted that there was vomit on Defendant's car, as Jesus indicated. As there was ample evidence before the jury of Defendant's guilt of the crimes charged, admission of the testimony regarding the marijuana blunt cigarette was not prejudicial error. See State v. Macon, 346 N.C. 109, 117, 484 S.E.2d 538, 542-43 (1997) (holding that a defendant charged with first-degree murder was not prejudiced by the admission of evidence which showed that he “may have made hang-up” calls to a victim because there was “overwhelming evidence” that he shot the victim in the head).

IV. Conclusion

As abundant evidence was admitted without objection that Defendant had marijuana and drug paraphernalia in his home when officers executed the search warrant, and ample evidence was before the jury to support Defendant's convictions of each offense, Defendant has failed to show prejudice such that “a different result likely would have ensued had the evidence been excluded.” Moses, 350 N.C. at 762, 517 S.E.2d at 867. Accordingly, the trial court did not commit reversible error by admitting testimony about the marijuana blunt cigarette. We conclude that Defendant received a fair trial, free from prejudicial error.

NO PREJUDICIAL ERROR.

Report per Rule 30(e).

FOOTNOTES

1.   Contrary to Defendant's assertion on appeal, Defendant did not object to Detective Bailey's testimony at trial that Exhibit 24 depicted “an up-close picture of the same thing, of the items that were inside the drawer, and you can clearly see both scales, the grinder, a folded-up pack of foil, two smoking pipes and the jar containing marijuana.” Defendant objected only to the State's follow-up question, “Are you familiar with the use of scales in the drug trade?” This objection was sustained.

2.   The State moved into evidence Exhibits 14-26. Exhibits 14-17 and 19 are not at issue in this appeal.

COLLINS, Judge.

Judges DILLON and INMAN concur.