IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-312

No. COA20-528

Filed 6 July 2021

Davie County, No. 17 CRS 246

STATE OF NORTH CAROLINA

v.

CARLOS GARCIA LOWERY, A/K/A CARLOS GARCIA LOWERY, Jr.

Appeal by Defendant from Judgment entered 24 January 2019 by Judge 

Joseph N. Crosswhite in Davie County Superior Court. Heard in the Court of Appeals

14 April 2021.

Attorney General Joshua H. Stein, by Solicitor General Fellow Heyward 

Earnhardt, Solicitor General Ryan Y. Park, and Assistant Solicitor General 

Nicholas S. Brod for the State. 

Attorney Paul F. Herzog for defendant-appellant.

HAMPSON, Judge.

Factual and Procedural Background

¶ 1 Carlos Lowery (Defendant) appeals from Judgment entered 24 January 2019 

upon his conviction of Second-Degree Murder. The Record before us, including 

evidence presented at trial, tends to show the following: 

¶ 2 Terry Smoot (Smoot) was “the neighborhood runner” for a neighborhood near 

downtown Mocksville. As the “neighborhood runner,” Smoot would sometimes buy 
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items, like beer, from the store for people in the neighborhood but would also obtain

“crack or weed” for people. Smoot also allegedly worked for Defendant as a runner

for drug sales in order to reduce the number of people coming and going from 

Defendant’s residence. 

¶ 3 On 25 October 2016, Smoot visited the “Soda Shop,” a convenience store in the 

neighborhood. Recordings from that day showed Smoot enter the store, purchase a 

pack of cigarettes, and leave at 3:08 p.m. 

¶ 4 Edgar Pozo (Pozo) and Smoot had been friends since 2004. At 4:30 p.m. on 25 

October 2016, Pozo finished his shift at Panel Service Component International (PSC) 

and began walking home. Pozo’s residence was approximately a five-minute walk 

from the PSC facility, and the walk required Pozo to cross some railroad tracks. As 

Pozo approached the railroad tracks, he heard someone call out “Ed.” “Ed” was a 

nickname given to Pozo by Smoot. Pozo saw Smoot “lying there” and bleeding from 

the mouth. 

¶ 5 Pozo asked Smoot what happened, to which Smoot replied, “Red beat me up.” 

Evidence at trial revealed Defendant was known to go by the nickname “Red.”

¶ 6 Smoot asked Pozo to “[t]ell [Smoot’s] dad to tell [Smoot’s] brother come get 

[Smoot].” Pozo left Smoot to inform Smoot’s father of Smoot’s condition, before 

heading home. After returning home, Pozo noticed that neither Smoot’s father nor 

brother had left to help Smoot. As a result, Pozo went back to where he had found 
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Smoot. Upon returning, Pozo found Smoot “hunched” over in the same spot. Pozo 

tried helping Smoot to his feet, but Smoot “screamed and fell back down.” Pozo 

realized Smoot was severely injured, prompting Pozo to call 9-1-1 around 4:55 p.m. 

¶ 7 Shortly after, around 5:00 p.m., EMTs and local law enforcement began 

arriving. Roger Spillman (Officer Spillman), an on-duty patrol officer with the 

Mocksville Police Department, was the first to arrive. At trial Officer Spillman 

testified that upon arriving and seeing Smoot, he asked “[w]hat happened[?]” and 

“who did this to you?” Smoot responded, “Carlos Lowery” and “Red beat me up.”

¶ 8 Around the same time Officer Spillman arrived, Detective Brian Nichols 

(Detective Nichols), with the Mocksville Police Department, also joined the scene.

Detective Nichols testified he also approached Smoot and asked what happened, to

which Smoot responded, again, by identifying Carlos Lowery as his attacker. The 

law enforcement officers then began securing the scene.

¶ 9 William Frye (Frye), a volunteer EMT, arrived on the scene near the time when 

Officer Spillman and Detective Nichols arrived. According to Frye, prior to 

conducting an initial medical assessment, he overheard Smoot tell Detective Nichols 

the name “Carlos Lowery” and “[he] jumped me.” He further testified Smoot’s speech 

had become garbled indicating Smoot was in pain, as he was unable to speak in 

complete sentences. Upon his initial assessment Frye observed Smoot was suffering 

from “labored breathing,” “bleeding from the face,” and “his cheeks [were] swollen 
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and around his eyes.” However, Smoot remained adamant he wanted to go home 

rather than to the hospital. Chris Hefner (Lieutenant Hefner), a patrol supervisor 

for the Mocksville Police Department, was also at the scene that day. He also heard 

Smoot identify “Carlos Lowery” as his attacker. 

¶ 10 Last at the scene were paramedics Brian Williams (Williams) and Kristie 

McManus (McManus). Williams described Smoot’s mental state as “somewhat 

altered,” as a result of his severe injuries. Williams and McManus placed Smoot in 

an ambulance to be transferred to Wake Forest Baptist Hospital for treatment.

Before the ambulance left, Detective Nichols got in the ambulance and again asked 

Smoot who attacked him, to which Smoot again responded, “Carlos Lowery.”

¶ 11 After the ambulance left, Detective Nichols canvassed the neighborhood to try 

and locate any potential witnesses. While canvassing, Detective Nichols came across 

two men sitting in front of a house near the scene. Detective Nichols asked the men 

if they knew a “Carlos Lowery,” to which both men responded they did not. Detective

Nichols later discovered one of the two men was, in fact, Carlos Lowery. 

¶ 12 Smoot died at Wake Forest Baptist Hospital at 11:39 p.m. An autopsy found 

numerous abrasions and bruises on the exterior of Smoot’s body. An internal 

examination revealed multiple rib fractures, likely caused by “blunt force injury,” 

which would have made it difficult for Smoot to breathe. Smoot’s lungs contained 
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substantial amounts of blood, and both his liver and kidneys were lacerated. The

blood vessels to Smoot’s kidney were also transected. 

¶ 13 A Davie County Grand Jury indicted Defendant on charges of First-Degree 

Murder and Common Law Robbery. Defendant’s case came for trial in Davie County 

Superior Court on 14 January 2019.

¶ 14 Prior to trial, Defendant filed a Motion to Limit Evidence/Testimony to exclude 

testimony of the statements Smoot made to Pozo, EMTs, and law enforcement on the 

bases these statements were inadmissible hearsay and their admission would violate

Defendant’s constitutional rights to due process and to confront witnesses. On 10 

January 2019, the trial court entered an Order denying Defendant’s Motion to Limit 

Evidence/Testimony. Specifically, the trial court determined the statements made by 

Smoot to Pozo and Detective Nichols were “admissible under the excited utterance 

exception to the hearsay rule.” The trial court further concluded the testimony of the 

other law enforcement officers and EMTs was admissible as corroborative of the 

statements to Pozo and Detective Nichols. The trial court did not separately address 

the constitutional grounds alleged in Defendant’s Motion. 

¶ 15 At trial, Pozo, the EMTs, and law enforcement officers testified as to the 

statements Smoot made to them at the scene of the incident. Defendant made general 

objections to the testimony regarding Smoot’s statements about the identity of his 

assailant to Pozo, the EMTs, and law enforcement officers. 
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¶ 16 The State also presented testimony from Major Koula Black (Major Black), an 

Operations Manager for the Mocksville Police Department. In October 2016, Major 

Black was an undercover narcotics detective. Through the course of her employment, 

Major Black had become familiar with the phone system at the Davie County jail, 

including the use of PIN numbers and voice recognition to identify an inmate making 

a call. Major Black was called, in part, to testify about a phone call made from the 

Davie County jail between Defendant and Tanisha Gaither (Gaither). Major Black

testified she was familiar with the voices of both Defendant and Gaither from her 

time in undercover work where she observed Defendant “very regular[ly]” at an 

address in the same Mocksville neighborhood where Smoot was assaulted, and 

identified Defendant as “the person [Major Black] came to know as Red or Carlos 

Lowery.” The State then elicited testimony from Major Black about “general topics 

of conversation” in the call, before playing the call for the jury. Over Defendant’s 

general objection, the trial court allowed Major Black to testify that during the call, 

Defendant said that on the day of the Smoot’s death Defendant “got the cigarettes 

and the change, but not the phone.” Major Black confirmed a “cell phone, U.S. 

currency and cigarettes” were items alleged to have been stolen from Smoot in the 

attack. 

¶ 17 The jury found Defendant guilty of Second-Degree Murder, but acquitted 

Defendant on the charge of Common Law Robbery. The trial court sentenced 
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Defendant to 339 to 419 months in prison. Defendant gave oral Notice of Appeal in 

open court. 

Issues

¶ 18 The issues raised by Defendant on appeal are whether the trial court erred in 

admitting: (I) testimony from Pozo of statements made to him by Smoot identifying 

Defendant as the assailant under the excited utterance exception to the hearsay rule; 

(II) testimony from Officer Spillman, Detective Nichols, and Frye as to Smoot’s 

statements identifying Defendant as the assailant in violation of Defendant’s 

constitutional rights under the Confrontation Clause; and (III) testimony from Major 

Black about the contents of the recorded telephone call between Defendant and 

Gaither.

Analysis

I. Excited Utterance 

¶ 19 Defendant first contends the trial court committed prejudicial error by 

admitting Pozo’s testimony that Smoot identified Defendant by Defendant’s 

nickname “Red” as Smoot’s assailant under the “excited utterance” exception to the 

hearsay rule pursuant to N.C. R. Evid 803(3). “When preserved by an objection, a 

trial court’s decision with regard to the admission of evidence alleged to be hearsay 

is reviewed de novo.” State v. Johnson, 209 N.C. App. 682, 692, 706 S.E.2d 790, 797 

(2011).
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¶ 20 “ ‘Hearsay’ is a statement, other than one made by the declarant while 

testifying at the trial or hearing, offered in evidence to prove the truth of the matter 

asserted.” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2019). Generally, “[h]earsay is not 

admissible, except as provided by statute[.]” N.C. Gen. Stat. § 8C-1, Rule 802 (2019). 

One such exception are statements that may be classified as “excited utterances.”

Excited utterances are defined by statute as “statement[s] relating to a startling 

event or condition made while the declarant was under the stress of excitement 

caused by the event or condition.” N.C. Gen. Stat. § 8C-1, Rule 803(2) (2019). “In 

order to fall within this hearsay exception, there must be (1) a sufficiently startling 

experience suspending reflective thought and (2) a spontaneous reaction, not one 

resulting from reflection or fabrication.” State v. Smith, 315 N.C. 76, 86, 337 S.E.2d 

833, 841 (1985). 

¶ 21 First, on appeal, Defendant makes no argument the alleged assault on Smoot 

would not qualify as a “sufficiently startling experience” under the excited utterance 

exception. See generally State v. Coria, 131 N.C. App. 449, 508 S.E.2d 1(1998) 

(statements following an assault qualifying as an excited utterance). Rather,

Defendant argues Smoot’s statements to Pozo were sufficiently remote in time from 

the assault and that Smoot was not in a condition of excitement when he made the 

statements such that Smoot’s statements were not “a spontaneous reaction,” but 

instead “one resulting from reflection or fabrication.” Specifically, Defendant 
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contends because it is impossible to pinpoint the exact time of the attack given the 

approximate hour and a half between the time Smoot left the Soda Shop and when 

Smoot made the statements to Pozo, after Pozo first discovered Smoot, it is possible 

the assault had occurred “perhaps as much as 75 to 90 minutes” earlier. Defendant’s 

argument, however, rests on a speculative assessment of the facts precisely because 

the Record does not disclose how much time elapsed from the assault until the 

statements were made. Put another way, the assault may have occurred just minutes 

before Pozo found Smoot but no more than approximately 75-90 minutes before. 

¶ 22 “Moreover, ‘[w]hile the period of time between the event and the statement is 

without a doubt a relevant factor, the element of time is not always material,’ and the 

‘modern trend is to consider whether the delay in making the statement provided an 

opportunity to manufacture or fabricate the statement.’ ” Coria, 131 N.C. App. at

451, 508 S.E.2d at 3 (alterations in original) (quoting State v. Thomas, 119 N.C. App. 

708, 712-13, 460 S.E.2d 349, 352 (1995)). As the Official Commentary to Rule 803 

notes: “the standard of measurement is the duration of the state of excitement. ‘How 

long can excitement prevail? Obviously there are no pat answers and the character 

of the transaction or event will largely determine the significance of the time factor.’ 

” N.C. Gen. Stat. Ann. § 8C-1, Rule 803 cmt. (2019). For example, in State v. Hamlette, 

our Supreme Court concluded statements were properly admitted as excited 

utterances where: 
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only three minutes passed between the witness Betterton’s 

hearing of the shots and [the victim’s] statement that defendant 

shot him. Within thirteen minutes after the shooting, [the victim]

told [Officer] Clayton that defendant had shot him. When he 

made these statements, he was suffering from three gunshot 

wounds, was bleeding from the mouth and chest, was at the crime 

scene and, at the time of the second statement, was being 

prepared by ambulance attendants for the trip to the hospital.

302 N.C. 490, 495, 276 S.E.2d 338, 342 (1981). The Court reasoned: “These 

circumstances support the trustworthiness of these statements made while the victim 

was under the immediate influence of the act.” Id. Notably, the Court also observed: 

“The statements do not in any way lose their spontaneous character because they 

were in response to questions such as: ‘What is wrong?’ ‘Who shot you?’ ‘How did they 

leave?’ ” Id. (citations omitted).

¶ 23 This Court has focused the temporal inquiry in terms of whether the declarant 

“was still under the stress of a startling event and . . . therefore had no opportunity 

to reflect on her statements.” Coria, 131 N.C. App. at 452, 508 S.E.2d at 3. Coria is 

particularly instructive in this case because there, as here, the record did not disclose 

the lapse in time between the assault and the declarant’s statements first to a witness 

and later to a law enforcement officer. Id. at 450, 508 S.E.2d at 2. In that case, a 

witness observed the female victim running out of the woods having crossed a ravine. 

Id. The victim was upset and had a bruised and swollen face and bloody nose and lip. 

The victim told the witness the defendant had assaulted her while they were at the 
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defendant’s home, and she had subsequently fled. Id. The victim also recounted 

similar statements to a law enforcement officer who later responded to the witness’s 

home. Id. Our Court determined these statements were made while the victim was 

still under the stress of a startling event and properly admitted as excited utterances 

where, in part, the victim was “very excited and upset, had obviously been hit about 

the face, and at times lapsed into her native tongue[.]” Id. at 452, 508 S.E.2d at 3.

¶ 24 Here, the witness, Pozo ̧ found the victim, Smoot, at the apparent crime scene, 

injured and bloody following the assault, hunched on the ground requesting help. 

Defendant nevertheless argues because Pozo initially described Smoot as “calm” and 

that although Smoot was in pain, Pozo’s first observation was that he “didn’t think it 

was that bad really,” Smoot was neither excited nor in such pain from his injuries 

that he made these statements under the stress or excitement of the assault. 

Defendant’s arguments, however, ignore the facts that at the time Smoot had 

sustained multiple rib fractures, internal bleeding, damage to internal organs, and 

was aspirating blood. These injuries made it difficult for Smoot to breathe or move, 

and eventually contributed to his death. On these facts, we cannot conclude Smoot

no longer acted under the stress of excitement caused by the assault, when he made 
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the statements to Pozo.

1 See State v. Kerley, 87 N.C. App. 240, 243, 360 S.E.2d 464, 

466 (1987). Thus, Pozo’s testimony as to Smoot’s statements identifying Defendant 

as the assailant were properly admitted as excited utterances. Therefore, the trial 

court did not err in denying Defendant’s pre-trial Motion to exclude these statements 

or by overruling Defendant’s objection to this testimony at trial.

II. Confrontation Clause

¶ 25 Defendant contends the trial court violated his constitutional right to confront 

witnesses under the Confrontation Clause, when it admitted the statements by Smoot 

identifying him as the assailant through the testimony of Officer Spillman, Detective 

Nichols, and Frye. 

¶ 26 However, as a threshold matter: 

 

1 Defendant cites State v. Riley, 154 N.C. App. 692, 572 S.E.2d 857 (2002), and State 

v. Little, 191 N.C. App. 655, 664 S.E.2d 432 (2008), as support for his position. Both cases 

are, however, inapposite to this case. In both of those cases, we affirmed instances where the 

trial court sustained an objection to hearsay and excluded statements as not constituting 

excited utterances. Furthermore, in Riley, the defendant, who was charged with felony 

speeding to elude arrest, told the officer who arrested him following a crash that another 

occupant of the car told [the] defendant to flee because the person “had warrants against 

him” and had a gun at the time. Riley, 154 N.C. App. at 694, 572 S.E.2d at 858. Our Court 

stated: “defendant had only minor injuries and did not require medical treatment. Although 

the record does not indicate the amount of time between [the] defendant’s crashing the 

vehicle and making the statement, the record is clear that a sufficient amount of time had 

lapsed to provide [the] defendant with an opportunity to fabricate a statement.” Id. at 695,

572 S.E.2d at 859. Likewise in Little, we upheld the trial court’s exclusion of a witness 

statement given to a SBI agent “several hours” after the shooting in that case where the 

statement was “[c]learly . . . not the product of a ‘spontaneous reaction, not one resulting from 

reflection or fabrication.’ ” Little, 191 N.C. App. at 665, 664 S.E.2d at 439. 
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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. It is also necessary for the 

complaining party to obtain a ruling upon the party’s request, 

objection, or motion. 

N.C.R. App. P. 10(a)(1) (2021). More specifically, our Courts consistently recognize 

“[c]onstitutional issues not raised and passed upon at trial will not be considered for 

the first time on appeal.” State v. Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 

(2001). 

¶ 27 Here, Defendant did raise the Confrontation Clause objection in his pretrial 

Motion to Limit Evidence/Testimony. However, in ruling on that Motion, the trial 

court based its decision solely on the statutory hearsay objection and made no 

reference to any state or federal constitutional provision, including the Sixth 

Amendment or the Confrontation Clause. Moreover, although Defendant also 

objected to the testimony at trial, the objection was general and did not specifically 

raise any constitutional ground for the exclusion of Smoot’s statements. Thus, 

Defendant has not preserved this constitutional issue for appeal. See N.C.R. App. P. 

10(a)(1) (2021); see also State v. Lemons, 352 N.C. 87, 91, 530 S.E.2d 542, 544 (2000) 

(“While [the] defendant clearly objected to the admission of . . . statements . . . on 

evidentiary grounds, we are unable to find any indication that at trial [the] defendant 

cited the Sixth Amendment or any constitutional grounds as the basis for his 
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objection to the admission of . . . [these] statements into evidence.”); State v. Mobley, 

200 N.C. App. 570, 572, 684 S.E.2d 508, 510 (2009) (objection on hearsay grounds did 

not invoke the Confrontation Clause). Furthermore, Defendant has not requested we 

invoke N.C.R. App. P. 2 or apply plain error review to this issue. Therefore, as the 

issue was not preserved for appeal, we do not address it.2

III. Telephone Call 

¶ 28 Defendant also contends the trial court erred in admitting testimony from 

Major Black regarding the contents of Defendant’s telephone call to Gaither made 

from the Davie County jail. Specifically, Defendant argues the testimony constituted 

improper lay opinion testimony under Rule 701 of the North Carolina Rules of 

Evidence in that the recording itself was available and played for the jury and, thus, 

Major Black’s testimony would not have been helpful to the jury’s determination as 

to the content of the telephone conversation. First, however, Defendant raised only 

a general objection to this testimony. Thus, the basis for Defendant’s objection at 

 

2 In a footnote in his brief to this Court, Defendant submits he is also renewing his 

hearsay arguments raised as to Pozo’s testimony to the testimony of these three witnesses. 

However, Defendant makes no specific argument the trial court erred in admitting the 

testimony of these witnesses. Moreover, unlike Pozo’s testimony, the trial court did not 

expressly ground admission of the law enforcement and EMT witnesses in the excited 

utterance hearsay exception. We deem those arguments abandoned. N.C.R. App. P. 28(b)(6)

(2021).
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trial is unclear and this argument could also be deemed unpreserved. See N.C.R. 

App. P. 10(a)(1) (2021). 

¶ 29 Nevertheless, assuming Defendant’s general objection preserved this issue for

review, Rule 701 states: “If [a] witness is not testifying as an expert, [the witness’s] 

testimony in the form of opinions or inferences is limited to those opinions or 

inferences which are (a) rationally based on the perception of the witness and (b) 

helpful to a clear understanding of [the witness’s] testimony or the determination of 

a fact in issue.” N.C. Gen. Stat. § 8C-1, Rule 701 (2019). “[W]hether a lay witness 

may testify as to an opinion is reviewed for abuse of discretion.” State v. Washington, 

141 N.C. App. 354, 362, 540 S.E.2d 388, 395 (2000), disc. rev. denied, 353 N.C. 396, 

547 S.E.2d 427 (2001). “Abuse of discretion results where the court’s ruling is 

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

result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 

527 (1988) (citation omitted).

¶ 30 As a general proposition: 

For a court to allow a witness in a criminal case to testify to the 

content of a telephone conversation, the identity of the person 

with whom the witness was speaking must be established. In 

such cases identity may be established by testimony that the 

witness recognized the other person’s voice, or by circumstantial 

evidence.
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State v. Dial, 122 N.C. App. 298, 309, 470 S.E.2d 84, 91 (1996) (citations omitted). 

Here, Major Black opined the speakers in the recorded telephone call were Defendant 

and Gaither based on both her familiarity with the procedures employed in the jail’s 

telephone system used to identify the inmate making the call—Defendant—along 

with her own familiarity with both Defendant and Gaither and their respective 

voices. Major Black’s lay opinion as to the identity of the speakers was therefore 

based on her own knowledge and perceptions. Indeed, Defendant did not object at 

trial and raises no argument on appeal about Major Black’s identification of 

Defendant and Gaither as the speakers in the recording, instead focusing solely on 

Major Black’s testimony about the general topics discussed in the telephone call. 

Thus, Major Black’s testimony about the contents of the recorded telephone call was 

admissible on this basis.

¶ 31 Assuming further that Major Black’s testimony about the general topics of 

conversation in the telephone call, based on Major Black’s direct personal knowledge 

of the content of the recording, in fact, constitutes a lay opinion, it was plainly 

rationally based in Major Black’s perception from listening to the recorded call. 

Again, Defendant does not contest this point. Instead, Defendant argues the trial 

court abused its discretion in admitting the testimony because Major Black’s 

testimony was not helpful to the jury’s clear understanding of the content of the call 
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or its determination of any fact in issue where the jury heard the recording and could 

draw its own conclusions as to the content of the conversation.

¶ 32 In support of his position, Defendant relies on our decision in State v. Belk, 201 

N.C. App. 412, 689 S.E.2d 439 (2009). In Belk, the defendant argued that the trial 

court erred in allowing a police officer to testify to the defendant’s identity in a 

surveillance video tape. Belk, 201 N.C. App. at 413, 689 S.E.2d at 440. This Court 

recognized lay opinion testimony identifying a criminal defendant may be admissible

where the testimony “would be helpful to the jury in the jury’s fact-finding function 

rather than invasive of that function, and the helpfulness outweighs the possible 

prejudice to the defendant from an admission of the testimony.” Id. at 415, 689 S.E.2d 

at 441 (citation omitted).

¶ 33 However, there, the officer’s familiarity with the defendant’s appearance was 

confined to a few brief encounters of “minimal contact.” Id. at 417, 689 S.E.2d at 442. 

Furthermore, “there was no evidence presented by either party tending to show that 

the individual depicted in the surveillance footage had disguised his appearance at 

the time of the offense or that Defendant had altered his appearance prior to trial.” 

Id. Additionally, although the video initially was “ ‘very fuzzy’ when shown on the 

large projection screen to the jury,” any prejudice to the defendant was abated as the 

jurors also “had the opportunity to view the video footage on a personal computer.” 

Id. at 417, 689 S.E.2d at 443. Thus, “[t]he only factor supporting the trial court’s 
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conclusion [was the officer’s] familiarity with Defendant’s appearance, based on . . . 

brief encounters.” Id. at 418, 689 S.E.2d at 443. This Court determined: “there was 

no basis for the trial court to conclude that the officer was more likely than the jury 

to correctly identify Defendant as the individual in the surveillance footage.” Id. 

Accordingly, we held “the trial court erred by allowing [the officer] to testify that, in 

her opinion, the individual depicted in the surveillance video was Defendant.” Id.

¶ 34 Belk is not applicable here. First, the issue in Belk was the officer’s 

identification of the defendant. Identity—specifically, whether Major Black was 

better positioned to identify Defendant as the caller than the jury because of Major 

Black’s familiarity with Defendant and Gaither or her ability to identify them or their 

voices on the call—is not at issue here. Further, unlike Belk where there were no 

issues of the clarity of the surveillance video and any issues with the projection to the 

jury were ameliorated, here, Defendant describes the recording of the call and 

Defendant’s voice as “garbled,” and the State describes the recording as “distorted.” 

Given Major Black’s familiarity with both the telephone system and with Defendant 

and Gaither and their voices, we cannot say then that there was “no basis for the trial 

court to conclude that the officer was more likely than the jury to correctly identify” 

the contents of the recording of the telephone call between Defendant and Gaither. 

Id.
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¶ 35 Moreover, in Belk, we concluded the error in admitting the officer’s testimony 

was prejudicial where “the State’s case rested exclusively on the surveillance video 

and [the officer’s] identification testimony.” Id. Here, Major Black’s testimony and 

the recording were not the only evidence from which the jury could conclude 

Defendant was Smoot’s assailant. Indeed, as noted, there were numerous instances 

of witnesses identifying Defendant at trial. Thus, we cannot conclude there is a 

reasonable possibility that, had this testimony been excluded, the jury would have 

reached a different result. See N.C. Gen. Stat. § 15A-1443(a) (2019) (“A defendant is 

prejudiced by errors relating to rights arising other than under the Constitution of 

the United States when there is a reasonable possibility that, had the error in 

question not been committed, a different result would have been reached at the trial 

out of which the appeal arises.”). Therefore, even if admission of Major Black’s 

testimony constituted error, it did not rise to the level of prejudicial error requiring 

reversal or a new trial. Consequently, the trial court did not abuse its discretion or 

commit reversible error in admitting Major Black’s testimony.

Conclusion

¶ 36 Accordingly, for the foregoing reasons, there was no error in Defendant’s trial 

and the Judgment is affirmed.

NO ERROR. 

¶ 37 Judges DIETZ and ZACHARY concur.