An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA14-240

NORTH CAROLINA COURT OF APPEALS

Filed: 7 October 2014

STATE OF NORTH CAROLINA

v. Mecklenburg County

Nos. 12 CRS 252339-341

JIMMY ANTONIO SEVILLA-BRIONES

Appeal by Defendant from judgments entered 24 July 2013 by 

Judge Jeffrey P. Hunt in Mecklenburg County Superior Court.

Heard in the Court of Appeals 27 August 2014.

Attorney General Roy Cooper, by Assistant Attorney General 

Matthew L. Liles, for the State.

Law Office of Margaret C. Lumsden PLLC, by Margaret C. 

Lumsden, for Defendant.

STEPHENS, Judge.

Evidence and Procedural Background

In the autumn of 2012, a confidential informant (“the CI”) 

paid by the Drug Enforcement Agency (“DEA”) reported to officers 

of the Charlotte-Mecklenburg Police Department (“CMPD”) that 

Defendant Jimmy Antonio Sevilla-Briones was claiming to have 

access to large amounts of methamphetamine. Beginning in 
-2-

November 2012, the CI initiated three purchases of 

methamphetamine from Defendant at the behest of CMPD Officer 

Eric Duft and DEA Agent James Billings. On 15 November 2012, 

the CI purchased 2.5 grams of methamphetamine from Defendant, 

and, on 29 November 2012, the CI bought two ounces of 

methamphetamine from Defendant (collectively, “the November 

sales”). The CI then set up a buy of 1 kilogram of 

methamphetamine to take place on 3 December 2012. The CI, 

wearing an audio transmitter that intermittently broadcast the 

transaction to law enforcement officers, met Defendant at a 

grocery store. They agreed to meet later that afternoon to 

complete the sale. Defendant arrived for completion of the 

transaction in a Toyota driven by Alberto Salizar. Following 

the sale to the CI, CMPD officers arrested Defendant and Salizar 

at the scene. Based on the 3 December 2012 transaction, 

Defendant was subsequently charged with trafficking 200 grams or 

more but less than 400 grams of methamphetamine by possession 

and transportation, and conspiracy to traffic 200 grams or more 

but less than 400 grams of methamphetamine. 

The jury convicted Defendant of all three charges, and the 

trial court sentenced him to two consecutive terms of 90-120 

months in prison. Defendant was also fined $300,000, and costs 
-3-

and attorney’s fees were assessed against him. Defendant gave 

notice of appeal in open court.

Discussion

On appeal, Defendant argues that the trial court erred in 

(1) denying his motion to identify the CI, (2) permitting 

witnesses to testify about out-of-court statements made by the 

CI, (3) permitting law enforcement officers to vouch for the 

credibility of the CI, (4) admitting evidence of the uncharged 

November drug sales between Defendant and the CI, and (5)

admitting video and audiotapes in evidence. We dismiss in part, 

find no error in part, and find no prejudicial error part.

I. Motion to identify the CI

Defendant first argues that the trial court erred in 

denying his motion to disclose the identity of the CI, alleging

violations of his constitutional due process rights and rights 

under State law. Defendant has failed to preserve these issues

for our review.

It is well established that “[c]onstitutional issues not 

raised and passed upon at trial will not be considered for the 

first time on appeal.” State v. Mack, 214 N.C. App. 169, 171,

718 S.E.2d 637, 638 (2011) (citations and internal quotation 

marks omitted). As for any alleged violations of Defendant’s 
-4-

rights under State law, our State’s appellate courts “will not 

consider arguments based upon matters not presented to or 

adjudicated by the trial court.” State v. Haselden, 357 N.C. 1, 

10, 577 S.E.2d 594, 600 (citations omitted), cert. denied, 540 

U.S. 988, 157 L. Ed. 2d 382 (2003); see also Mack, 214 N.C. App. 

at 171, 718 S.E.2d at 638 (noting that, “[a]s to [the] 

defendant’s argument that the trial court violated his rights 

under State law, [the] defendant properly preserved his 

appellate rights as to his motion to disclose the identity of 

the State’s CI by raising it before the trial court and 

obtaining a ruling on his motion. See N.C.R. App. P. 

10(b)(1).”) (emphasis added).

Even where a criminal defendant does seek disclosure of a 

CI’s identity in the trial court, he must still make a 

sufficient showing of the need for disclosure before the trial 

court is even required to consider the merits of the request:

In Roviaro v. United States, 353 U.S. 53, 77 

S. Ct. 623, 1 L. Ed. 2d 639 (1957), the 

United States Supreme Court held it was not 

error not to order the Government to reveal 

the name of an informant when it was alleged 

that the informant actually took part in the 

drug transaction for which the defendant was 

being tried. The Supreme Court recognized 

the State has the right to withhold the 

identity of persons who furnish information 

to law enforcement officers, but said this 

privilege is limited by the fundamental 
-5-

requirements of fairness. Roviaro held that 

no fixed rule with respect to disclosure is 

justifiable. Whether a proper balance 

renders nondisclosure erroneous must depend 

on the particular circumstances of each 

case, taking into consideration the crime 

charged, the possible defenses, the possible 

significance of the informer’s testimony, 

and other relevant factors.

The privilege of nondisclosure, however, 

ordinarily applies where the informant is 

neither a participant in the offense, nor 

helps arrange its commission, but is a mere 

tipster who only supplies a lead to law 

enforcement officers. Moreover, before the 

courts should even begin the balancing of 

competing interests which Roviaro envisions,

a defendant who requests that the identity 

of a confidential informant be revealed must 

make a sufficient showing that the 

particular circumstances of his case mandate 

such disclosure.

Id. at 171-72, 718 S.E.2d at 638 (certain citations, internal 

quotation marks, brackets, and ellipsis omitted; emphasis 

added). 

For example, in one of the leading cases cited by this 

Court in Mack, our Supreme Court declined to address a 

defendant’s arguments on appeal when he failed to make a 

sufficient showing at trial:

At the time the trial court sustained the 

district attorney’s objections to defense 

counsel’s questions concerning the identity 

and remuneration of the confidential 

informant, [the] defendant had not apprised 

the court of the particular need he had for 
-6-

the information. At that point in the 

trial, the trial judge could only speculate 

as to the need [the] defendant had for the 

information. In his brief, [the] defendant 

argues that the informant’s identity should 

have been revealed so that he could have a 

chance to make a full and complete defense 

before the jury. Yet, [the] defendant made 

no showing before the court at the time of 

the questions concerning the informant as to 

his particular need for knowing the identity 

of the source. The conflicts in the 

evidence to which [the] defendant now points 

were not apparent at that stage in the 

proceeding nor did [the] defendant forecast 

their appearance. On the basis of this 

conduct, we hold that [the] defendant has 

failed to establish that the identity of the 

informer was relevant and helpful to his 

defense or essential to a fair determination 

of the case.

State v. Watson, 303 N.C. 533, 537, 279 S.E.2d 580, 583 (1981)

(citation omitted). 

In contrast, in another case cited in Mack, the defendant 

did make an argument at trial about the need to obtain 

additional information about a confidential informant:

[The law enforcement officer] identified the 

informer as Earl Gray, but denied any 

knowledge of his present whereabouts. 

Following cross[-]examination, [the] 

defendant moved for the trial court to 

compel the state to produce Gray’s current 

address, telephone number, or contact him in

order “to see if he’s [sic] any exculpatory 

evidence that we might use.” Defendant 

justified this request based on [the 

officer’s] testimony that Gray was a witness 

to the occurrences inside the restaurant and 
-7-

remained in [the] defendant’s presence while

[the officer] and [one of the defendant’s 

acquaintances] consummated the alleged drug 

sale outside.

State v. Newkirk, 73 N.C. App. 83, 86-87, 325 S.E.2d 518, 521 

(reaching the merits of the defendant’s argument and holding 

that the trial court’s denial of the defendant’s motion to 

compel the State to locate a confidential informant was proper), 

disc. review denied, 313 N.C. 608, 332 S.E.2d 81 (1985). 

Here, just before jury selection began, the following 

exchange took place:

[DEFENSE COUNSEL]: Your Honor, there is one

issue that just popped in my mind in terms 

of questioning the jurors about who they 

know. There is the issue of the 

confidential informant. I think it would be 

unfortunate if someone does know the CI. 

Maybe there should be an inquiry of if 

anybody knows this person, who is the

confidential informant in this case.

THE COURT: I don’t know quite what you are 

asking.

[DEFENSE COUNSEL]: I would be more than 

happy to make the inquiry if someone knows 

this person.

THE COURT: This person is apparently not

going to testify.

[THE STATE]: No, Your Honor, he is not. I

can tell the [c]ourt I don’t actually know 

his full name. I don’t know his name.
-8-

THE COURT: I am not going to let you ask

that question. I don’t think it’s proper to

ask that. If you want to get on the record

your objection to that, that is fine.

[DEFENSE COUNSEL]: I think for the record 

we will object.

THE COURT: Yes. Note your exception.

Defendant raised no constitutional issue, and, just as in 

Watson, Defendant utterly “failed to establish that the identity 

of the informer was relevant and helpful to his defense or 

essential to a fair determination of the case.” 303 N.C. at 

537, 279 S.E.2d at 583. Unlike the defendant in Newkirk, 

Defendant did not request disclosure of the CI’s identity in 

order to prepare his defense. Rather, he only sought the CI’s 

identity in order to question prospective jurors about whether 

any of them knew the CI, presumably so that, if a prospective 

juror admitted knowing the CI, Defendant could seek to excuse 

that juror for cause or use a peremptory challenge to excuse him 

or her. However, the trial court denied Defendant’s request 

because the State did not intend to, and, indeed, did not, call 

the CI as a witness and his identity was obviously not disclosed 

to the jury. Accordingly, there was simply no need to question

the prospective jurors about their familiarity with the CI. 

Since the CI’s identity was never disclosed to the jurors, they 
-9-

cannot have been influenced by any familiarity with him. Simply 

put, the factual circumstance underlying Defendant’s only stated 

reason for wanting to know the CI’s identity never arose. 

We also reject Defendant’s argument in his reply brief 

that, “[a]fter the State’s evidence was presented, trial counsel 

noted that the CI was a critical witness because he was the only 

person with knowledge of the entire transaction, because police 

witnesses knew only some of the facts.” The transcript page 

cited by Defendant in support of this contention is part of 

Defendant’s argument that evidence of the November sales should 

not be admitted under Rules of Evidence 403 and 404(b). See

N.C. Gen. Stat. § 8C-1, Rules 403, 404(b) (2013). Defense 

counsel stated, 

this [evidence] would confuse the jury about 

making a decision about whether or not this 

actually happened. We have got a big 

question here. We don’t have the only 

person with actual personal knowledge of 

everything of what was said and what was 

heard, including the video. Bits and pieces 

of law enforcement standing off, listening 

or observing and seeing and saying, trust 

me. We know what we are doing.

Thus, while defense counsel did allude to the CI’s importance, 

he did not request disclosure of the CI’s identity or make any

constitutional or State law based argument about the need for 

Defendant or the jury to know the CI’s identity. On the 
-10-

contrary, his sole reference to the CI was made to support his 

argument that the Rule 404(b) evidence regarding the November 

sales should be excluded.

Further, unlike the defendant in Mack, Defendant did not 

present his appellate arguments regarding the identity of the CI

to the trial court. We are wholly unpersuaded by Defendant’s 

argument before this Court that seeking to ask prospective 

jurors if they knew the CI — an “issue that popped in [trial 

counsel’s] head” as jury selection began — constituted a motion 

for the State to identify the CI based on an articulated need 

for such information to prepare Defendant’s case. Thus, we 

decline to consider Defendant’s arguments on appeal concerning 

this issue. See Haselden, 357 N.C. at 10, 577 S.E.2d at 600.

Defendant did not argue plain error in his brief to this 

Court, but in his reply brief, Defendant contends that, if “[the 

State is correct that] the proper standard of review on this 

issue is plain error[,] . . . . Defendant would still be 

entitled to a new trial, because the failure to identify the CI 

deprived Defendant of a fair trial and had a probable impact on 

the jury’s verdict[.]” However, “plain error review in North 

Carolina is normally limited to instructional and evidentiary 

error.” State v. Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326, 
-11-

333 (2012) (citation omitted). This Court has held that, 

because the denial of a motion to disclose the identity of a 

confidential informant “does not involve instructional or 

evidentiary error, it will not be reviewed for plain error on 

appeal.” State v. Reid, __ N.C. App. __, __, 735 S.E.2d 389, 

395 (2012). Accordingly, we dismiss Defendant’s arguments

regarding the identity of the CI.

II. Testimony about the CI’s out-of-court statements 

Defendant next argues that the trial court erred in 

permitting witnesses to testify about out-of-court statements 

made by the CI. We must dismiss this argument because Defendant 

has again failed to preserve the issue for appellate review.

“‘Hearsay’ is a statement, other than the one made by the 

declarant while testifying at trial or hearing offered in 

evidence to prove the truth of the matter asserted.” N.C. Gen. 

Stat. § 8C-1, Rule 801(c). A “[d]efendant cannot assign error 

to hearsay testimony which he elicited[,]” State v. Mitchell, 

342 N.C. 797, 806, 467 S.E.2d 416, 421 (1996) (citation 

omitted), and where a defendant fails to object to hearsay 

testimony, he is only entitled to plain error review on appeal. 

State v. Dyson, 165 N.C. App. 648, 651, 599 S.E.2d 73, 76 

(2004), disc. review denied, 359 N.C. 412, 612 S.E.2d 325
-12-

(2005). However, where a defendant fails to specifically argue 

plain error, he waives any consideration of the alleged error. 

State v. Waring, 364 N.C. 443, 508, 701 S.E.2d 615, 656 (2010),

cert. denied, __ U.S. __, 181 L. Ed. 2d 53 (2011). 

Here, Defendant identifies five statements which he 

contends were inadmissible hearsay. However, Defendant elicited 

three of the statements during his cross-examination of Officer 

Duft and failed to object to any of the five statements at 

trial. Defendant further fails to argue plain error in the 

admission of the statements. Accordingly, we dismiss this 

argument. 

III. Testimony vouching for the CI’s credibility

Defendant next argues that the trial court committed plain 

error in permitting law enforcement officers to vouch for the 

credibility of the CI. We disagree.

When

an [evidentiary] issue is not preserved in a 

criminal case, we apply plain error review. 

We find plain error only in exceptional 

cases where, after reviewing the entire 

record, it can be said the claimed error is 

a fundamental error, something so basic, so 

prejudicial, so lacking in its elements that 

justice cannot have been done. Thus, the 

appellate court must study the whole record 

to determine if the error had such an impact 

on the guilt determination, therefore 

constituting plain error. Accordingly, we 
-13-

must determine whether the jury would 

probably have reached a different verdict if 

this testimony had not been admitted.

State v. Hammett, 361 N.C. 92, 98, 637 S.E.2d 518, 522 (2006) 

(citations and internal quotation marks omitted; emphasis in 

original). 

“A lay witness is entitled to testify ‘in the form of 

opinions or inferences . . . [which are] (a) rationally based on 

[his] perception . . . and (b) helpful to a clear understanding 

of his testimony or the determination of a fact in issue.’” 

State v. Dew, __ N.C. App. __, __, 738 S.E.2d 215, 219 (quoting 

N.C. Gen. Stat. § 8C-1, Rule 701), disc. review denied, __ N.C. 

__, 743 S.E.2d 187 (2013). Under Rule 701, one witness may not 

“vouch for the veracity of another witness.” State v. Robinson, 

355 N.C. 320, 334, 561 S.E.2d 245, 255, cert. denied, 537 U.S. 

1006, 154 L. Ed. 2d 404 (2002). However, a law enforcement 

officer may offer testimony that will assist the jury in

understanding his investigative process. State v. Wallace, 179 

N.C. App. 710, 715, 635 S.E.2d 455, 460 (2006), disc. review 

denied and appeal dismissed, 361 N.C. 436, 649 S.E.2d 896

(2007).

On direct examination, Agent Billings testified as follows:

Q For the purposes of this, I will just 

ask you about the prior dealings you had 
-14-

with [D]efendant and the substance of the 

deal you witnessed on 12 — start with 

November 15. What were you doing that day? 

A On November 15, 2012, I participated in

something we call a buy walk, where we used 

a confidential source to purchase a small 

amount of meth[]amphetamines from 

[Defendant].

Q This CI, had you ever used that person

before?

A Yes.

Q About how many times?

A I have known this particular individual

about five-and-a-half years in my time here 

in Charlotte. It’s difficult to say, but 

numerous times on numerous different 

case[s].

Q The information that you have received

from him, were you able ever to corroborate 

as true?

A Yes. He has been proven to be very 

truthful.

Q You said on November 15, he set up the

deal?

A Yes, at our direction.

Officer Duft also testified about his past work with the CI:

Q Detective Duft, how did you initially 

come into contact with the CI?

A The CI called the DEA office back in 

2007. He just said he was new to the area. 

He was familiar with drug trafficking and 
-15-

drug traffickers, and he was interested in 

providing information.

Q Have you worked with him consistently 

since 2007?

A I have worked with him since 2007.

Q Approximately how many times have you 

used him since then?

A I would say in the range of 20 

different times on cases. I would say 10 to 

20 cases. We are in contact with him almost 

weekly.

Q Has he been a reliable informant for 

you?

A Yes, he has.

The testimony of both officers was largely in the context of 

explaining the course of the investigative process which led to 

Defendant’s arrest. Even assuming arguendo that any portion of 

the above-quoted testimony was impermissible vouching, we cannot 

conclude that the passing references to the CI as “reliable” and 

“truthful” likely altered the outcome of Defendant’s trial. In 

Dew, we concluded that a defendant had failed to establish plain 

error where a mother testified that she believed her daughters 

when they told her the defendant had sexually abused them. __ 

N.C. App. at __, 738 S.E.2d at 219 (“Simply put, in view of 

. . . the fact that most jurors are likely to assume that a 

mother will believe accusations of sexual abuse made by her own 
-16-

children, we cannot conclude that the challenged portion of [the 

mother]’s testimony had any significant impact on the jury’s 

decision to convict [the d]efendant.”). Similarly, here, it is 

likely most jurors would assume that law enforcement officers 

believe in the truthfulness and reliability of their 

confidential informants, since officers would plainly not pursue 

investigations with informants they did not trust. This 

argument is overruled.

IV. Evidence of the November sales

Defendant next argues that the trial court erred in 

admitting evidence of the November sales in violation of Rules 

of Evidence 403 and 404(b). We disagree.

As our Supreme Court has recently clarified,

when analyzing rulings applying Rules 404(b) 

and 403, we conduct distinct inquiries with 

different standards of review. . . . We 

review de novo the legal conclusion that the 

evidence is, or is not, within the coverage 

of Rule 404(b). We then review the trial 

court’s Rule 403 determination for abuse of 

discretion.

State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159 

(2012) (italics added). Rule 404(b) provides that

[e]vidence of other crimes, wrongs, or acts 

is not admissible to prove the character of 

a person in order to show that he acted in 

conformity therewith. It may, however, be 

admissible for other purposes, such as proof 
-17-

of motive, opportunity, intent, preparation, 

plan, knowledge, identity, or absence of 

mistake, entrapment or accident. We have 

characterized Rule 404(b) as a general rule 

of inclusion of relevant evidence of other 

crimes, wrongs or acts by a defendant, 

subject to but one exception requiring its 

exclusion if its only probative value is to 

show that the defendant has the propensity 

or disposition to commit an offense of the 

nature of the crime charged. 

State v. Carpenter, 361 N.C. 382, 386, 646 S.E.2d 105, 109 

(2007) (citations and internal quotation marks omitted; emphasis 

in original). This general rule of inclusion

is constrained by the requirements of 

similarity and temporal proximity. This 

Court has stated that remoteness in time is 

less significant when the prior conduct is 

used to show intent, motive, knowledge, or 

lack of accident; remoteness in time 

generally affects only the weight to be 

given such evidence, not its admissibility. 

Nevertheless, we note that the two offenses 

in the case at bar are separated by eight 

years. Moreover, as to the similarity

component, evidence of a prior bad act must 

constitute substantial evidence tending to 

support a reasonable finding by the jury 

that the defendant committed a similar act. 

Under Rule 404(b) a prior act or crime is 

similar if there are some unusual facts 

present in both crimes. Finally, if the 

propounder of the evidence is able to 

establish that a prior bad act is both 

relevant and meets the requirements of Rule 

404(b), the trial court must balance the 

danger of undue prejudice against the 

probative value of the evidence, pursuant to 

Rule 403. 
-18-

Id. at 388-89, 646 S.E.2d at 110 (citations, internal quotation 

marks, and brackets omitted; emphasis in original). 

At trial, Defendant objected under Rule 404(b) to the 

admission of evidence about the November sales of 

methamphetamine by Defendant to the CI.

1 The trial court 

overruled Defendant’s objection and admitted evidence of the 

November sales to show that Defendant had the knowledge and 

intent to traffic methamphetamine. The court also issued a 

limiting instruction, specifically directing the jury that the 

evidence of the November sales “was received solely for the 

purpose of showing the intent and knowledge that might be

necessary as an element in the crimes that are charged in this 

case. Also, that [D]efendant may have had in his mind a plan, 

scheme, system, or design involving the crimes that are charged 

in this case.”

On appeal, Defendant contends that the November sales were 

not sufficiently similar and were too remote in time because the 

sales took place over three weeks, different amounts of 

methamphetamine were sold, Defendant drove a different car for 

one of the November sales, the sales took place in different 

 

1 Defendant was not charged in connection with the November 

sales.
-19-

locations, and Defendant was accompanied by different people for

each sale. However, the sales all involved the same drug sold 

at the same price, Defendant used the same phone to set up the 

sales, the sales were concluded in the same apartment parking 

lot, and all sales were between Defendant and the same 

confidential informant. These similarities are greater than 

those present in State v. Houston, 169 N.C. App. 367, 610 S.E.2d 

777, disc. review denied and appeal dismissed, 359 N.C. 639, 617 

S.E.2d 281 (2005), the case on which the trial court relied in 

admitting the evidence of the November sales. In Houston, the 

defendant was charged with trafficking cocaine by possession,

and the State sought to introduce evidence of previous uncharged 

drug sales by the defendant to an informant. Id. at 372, 610 

S.E.2d at 781. We held the prior sales were admissible under 

Rule 404(b) because the prior sales also involved the defendant 

and the informant, primarily included the sale of cocaine at the 

same price, mainly occurred in the same location, were for the 

same amount of drugs, and the final prior sale had taken place 

within the preceding four months. Id. at 373, 610 S.E.2d at 

782. Here, although the amounts of methamphetamine increased 

with each sale by Defendant, every sale involved the same drug 

and occurred within a much shorter timeframe, to wit, three 
-20-

weeks. Accordingly, as in Houston, we conclude that the prior 

sales were sufficiently similar and not too remote in time to 

show Defendant’s knowledge and intent to sell methamphetamine.

Rule 403 provides that, “[a]lthough relevant, evidence may 

be excluded if its probative value is substantially outweighed 

by the danger of unfair prejudice, confusion of the issues, or 

misleading the jury, or by considerations of undue delay, waste 

of time, or needless presentation of cumulative evidence.” 

N.C. Gen. Stat. § 8C-1, Rule 403. “Necessarily, evidence which 

is probative in the State’s case will have a prejudicial effect 

on the defendant; the question, then, is one of degree.” State 

v. Mercer, 317 N.C. 87, 93-94, 343 S.E.2d 885, 889 (1986). “The 

exclusion of evidence under Rule 403 is a matter generally left 

to the sound discretion of the trial court, which is left 

undisturbed unless the trial court’s ruling is manifestly 

unsupported by reason or is so arbitrary it could not have been 

the result of a reasoned decision.” State v. Badgett, 361 N.C. 

234, 244-45, 644 S.E.2d 206, 212-13 (citation and internal 

quotation marks omitted), cert. denied, 552 U.S. 997, 169 L. Ed. 

2d 351 (2007). Further, our Supreme Court has repeatedly held 

that the admission of prior bad acts is not unfairly prejudicial 

under Rule 403 in cases where the trial court gave a specific 
-21-

limiting instruction regarding permissible uses of Rule 404(b) 

evidence. See, e.g., id.; see also State v. Hyatt, 355 N.C. 

642, 662, 566 S.E.2d 61, 74-75 (2002), cert. denied, 537 U.S. 

1133, 154 L. Ed. 2d 823 (2003); State v. Lemons, 348 N.C. 335, 

353, 501 S.E.2d 309, 320 (1998), vacated and remanded on other 

grounds, 527 U.S. 1018, 144 L. Ed. 2d 768 (1999).

On appeal, Defendant contends that admission of the 

November sales was unfairly prejudicial because it led the jury 

to believe a statement the CI made to the police “that Defendant 

bragged about his access to large quantities of 

meth[amphetamine].” We believe the trial court’s specific 

instruction to the jury that evidence of the November sales 

could be considered only to the extent it shed light on

Defendant’s “intent[,] knowledge[,] . . . . plan, scheme, 

system, or design” in committing the crimes for which he was 

charged effectively blunted any possibility of undue prejudice. 

Juries are presumed to follow instructions by our trial courts. 

State v. Tirado, 358 N.C. 551, 581, 599 S.E.2d 515, 535 (2004) 

(citation omitted), cert. denied sub nom. Queen v. North 

Carolina, 544 U.S. 909, 161 L. Ed. 2d 285 (2005). We conclude 

that the trial court’s decision to admit evidence of the 

November sales was not “manifestly unsupported by reason or . . 
-22-

. so arbitrary it could not have been the result of a reasoned 

decision.” Badgett, 361 N.C. at 245, 644 S.E.2d at 212-13. 

Accordingly, we overrule this argument.

V. Evidence from video and audiotapes

Defendant finally argues that the trial court erred in

admitting video and audiotape evidence. We disagree.

Defendant failed to object to admission of the recordings

he challenges on appeal, with the exception of one videotape. 

As for the other videotapes and all of the audiotapes, 

Defendant’s failure to object at trial limits him to plain error 

review regarding the unchallenged recordings. See N.C.R. App. 

P. 10(a)(4). However, Defendant has failed to argue plain error

in the admission of those recordings and thus has waived any 

appellate review. See Waring, 364 N.C. at 508, 701 S.E.2d at 

656. Accordingly, we consider Defendant’s argument on appeal 

only as to the one videotape to which he objected at trial, 

State’s exhibit 1. 

The prerequisite that the offeror lay a 

proper foundation for the videotape can be 

met by: (1) testimony that the motion 

picture or videotape fairly and accurately 

illustrates the events filmed, (2) proper 

testimony concerning the checking and 

operation of the video camera and the chain 

of evidence concerning the videotape, (3) 

testimony that the [videotapes] introduced 

at trial were the same as those the witness
-23-

had inspected immediately after processing, 

or (4) testimony that the videotape had not 

been edited, and that the picture fairly and 

accurately recorded the actual appearance of 

the area photographed.

State v. Cannon, 92 N.C. App. 246, 254, 374 S.E.2d 604, 608-09 

(1988) (citations, internal quotation marks, and ellipsis

omitted; emphasis added), reversed on other grounds, 326 N.C. 

37, 387 S.E.2d 450 (1990). 

Exhibit 1 is a videotape of a meeting between the CI and 

Defendant in the parking lot of Compare Foods, a grocery store. 

At trial, the State sought to introduce the recording during 

Officer Duft’s direct examination. Defendant objected, stating 

“Objection; lack of foundation, who played the video and whether 

or not [Officer Duft] actually saw what was shown on the video 

at the time.” The court sustained the objection, and the State 

then elicited the following testimony from Officer Duft:

Q Detective Duft, were you present when this

video was filmed?

A I was.

Q Were you at the same vantage point when this 

individual was being filmed?

A The video was shot in the parking lot of the 

Compare Foods. I was in the same parking lot.

Q How close do you estimate that you were next 

to the person who was filming this video?
-24-

A The same distance, from me to this wall.

Different angles, but seeing the same thing.

Q Have you reviewed this video yourself?

A I did.

Q Is it a fair and accurate representation of 

the scene that you saw on December 3 at the

Compare Foods?

A It is.

This testimony from Officer Duft indicates that “the videotape 

fairly and accurately illustrated the events filmed” and thus 

provided a proper foundation under Cannon. See id. Defendant 

contends that the State was also required to provide evidence 

about the maintenance and functioning of the video camera. 

However, the four methods listed in Cannon are joined with the 

disjunctive “or” plainly indicating that any one of the methods 

will suffice to establish a proper foundation for the admission 

of videotape evidence. See id.; see, e.g., State v. Ayscue, 169 

N.C. App. 548, 610 S.E.2d 389 (2005) (concluding that a 

videotape was properly admitted based on testimony solely 

regarding chain of custody, the second method listed in Cannon). 

Here, a proper foundation was laid for admission of the 

videotape, and we see no error in the trial court’s admission of 

it. Accordingly, this argument is overruled.
-25-

DISMISSED in part; NO ERROR in part; NO PREJUDICIAL ERROR

in part.

Judges CALABRIA and ELMORE concur.

Report per Rule 30(e).