An unpublished opinion of the North Carolina Court of Appeals does not constitute 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. COA13-1000

NORTH CAROLINA COURT OF APPEALS

Filed: 15 April 2014

STATE OF NORTH CAROLINA

v. Person County

Nos. 12 CRS 1794—95

NATHANIEL HAWTHORNE SMITH, II,

Defendant.

Appeal by defendant from judgment entered 27 March 2013 by 

Judge Michael R. Morgan in Person County Superior Court. Heard 

in the Court of Appeals 22 January 2014.

Attorney General Roy Cooper, by Assistant Attorney General 

Thomas D. Henry, for the State.

Unti & Lumsden LLP, by Sharon L. Smith, for defendantappellant.

BRYANT, Judge.

Where defendant introduces evidence of a prior arrest, the 

State is entitled to introduce evidence in explanation or 

rebuttal thereof, even though the rebuttal evidence would be 

otherwise inadmissible. Defendant cannot claim ineffective 
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assistance of counsel where it cannot be demonstrated that the 

actions of his counsel fell below an objective standard of

reasonableness or were so prejudicial as to affect the outcome 

of his trial.

On 20 March 2012, a confidential informant notified 

Investigator Gill of the Person County Sheriff’s Office that he 

had spoken with defendant Nathaniel Hawthorne Smith about 

purchasing marijuana. After an exchange of text messages, the 

informant arranged to buy marijuana from defendant that 

afternoon at a nearby park. Investigator Gill met with the 

informant for a “pre-buy meeting” during which a small video 

camera was affixed to the informant’s shirt. The informant was 

then driven to a drop-off point to walk to the park. 

As the informant entered the park, he saw defendant exit a 

car, place a bag on the ground near the car, and then get back 

into the car. The informant approached the car, asked defendant 

for a “quarter bag,” and after handing defendant $60.00, was 

directed to pick-up the bag lying on the ground. Upon 

completing the sale, defendant drove away, and the informant 

contacted Investigator Gill. 

Investigator Gill returned to the park to pick-up the 

informant and conduct a “post-buy meeting.” At this meeting,
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the informant told Investigator Gill what had transpired during 

the buy, gave him the bag, and was relieved of the video camera. 

The bag was determined to contain 7.9 grams of marijuana. 

On 10 September 2012, defendant was indicted on one count 

each for sale and delivery of a schedule VI controlled 

substance; possession with intent to sell and deliver a schedule 

VI controlled substance; sale and delivery of a controlled 

substance within 1000 feet of a public park; and possession of 

drug paraphernalia. On 27 March 2013, defendant was convicted 

of all four charges and sentenced to a prison term of 36 to 56 

months. Defendant appeals.

_____________________________

On appeal, defendant argues (I) that the trial court erred 

in allowing the State to inquire about defendant’s prior arrest 

and (II) that the trial court deprived defendant of effective 

assistance of counsel.

I.

Defendant first argues that the trial court erred in 

allowing the State to inquire into his prior arrest involving

marijuana. We disagree.

In arguing that the trial court erred in permitting the 

State to question Investigator Gill about defendant’s prior 
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arrest involving marijuana, defendant contends that the trial 

court violated Rule 404(b) of our Rules of Evidence by 

improperly admitting character evidence. We disagree, as it was 

defendant himself who opened the door to permitting the State to 

question Investigator Gill about his prior arrest.

[E]vidence which is otherwise 

inadmissible is admissible to explain or 

rebut evidence introduced by defendant. 

This is true even if a defendant admits 

evidence during cross-examination of a 

State's witness, prompting the State to 

introduce otherwise inadmissible evidence in 

rebuttal. Therefore, where a defendant 

examines a witness so as to raise an 

inference favorable to defendant, which is 

contrary to the facts, defendant opens the 

door to the introduction of the 

State's rebuttal or explanatory evidence 

about the matter. 

State v. O’Hanlan, 153 N.C. App. 546, 561, 570 S.E.2d 751, 761 

(2002) (citations omitted). “The phrase ‘opening the door’

refers to the principle that where one party introduces evidence 

as to a particular fact or transaction, the other party is 

entitled to introduce evidence in explanation or rebuttal 

thereof, even though such latter evidence would be incompetent 

or irrelevant had it been offered initially.” State v. Rose, 335 

N.C. 301, 337, 439 S.E.2d 518, 538 (1994) (citation, quotation 

and bracket omitted), overruled on other grounds by State v. 

Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001). 
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Here, defendant opened the door during his crossexamination of Investigator Gill:

Q. Okay. Investigator Gill, you would admit 

that the suspect who allegedly sold this 

marijuana was on camera in this video for a 

matter of seconds?

A. Correct.

Q. And at the time it was kind of dark. They 

were sitting in a vehicle when it happened, 

correct?

A. Correct.

Q. And at times, really, only part of their 

face was showing, correct?

A. Yup. One side of the face.

Q. And it was just based on those few 

seconds that you say you identified 

[defendant] as being the person on that

video?

A. That's correct.

Q. And when had been the last time you had 

seen [defendant] in person prior to watching 

that video?

A. I'm not exactly sure on the date. The 

last time I seen him, he was actually in my 

office talking to me.

Q. But you don't know how long that had 

been?

A. No, sir. I don't. He was in there talking 

to me in reference to assisting us. 
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Through this line of questioning, defendant sought to undermine 

Investigator Gill’s credibility by attempting to create the 

impression that Investigator Gill’s identification of defendant 

was not clear and positive. Defendant did not object nor move 

to strike Investigator Gill’s testimony that defendant had been 

“in [my office] talking to me in reference to assisting us.” 

Before beginning redirect, the State announced its intent to 

question Investigator Gill about his comments concerning 

defendant being “in [my office] talking to me in reference to 

assisting us.” The trial court noted the following in its Rule 

403 analysis:

Well, I do recall that when the 

question was asked by defense counsel of the 

witness, when was the last time that the 

witness had seen the defendant, the response 

was by the witness that the witness saw the 

defendant last in the witness' office and 

then the witness added at the very end when 

the witness offered himself as a 

confidential informant. There was no 

objection based on nonresponsive [sic] or 

irrelevancy. So, that's on the record. The 

State has got a right to explore whatever 

comes out on cross. That is in the record. 

So, that's there. So, I got [sic] to afford 

the State an opportunity to do that, 

exploration if it so desires on redirect. 

So, I will allow that.

Now, to the extent that I got fuller 

information concerning what happened as a 

result, the State can explore it if it 

wishes. If there's an objection on it, I'll 
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rule on it in the context in which it 

occurs. If it does come out that there was a 

matter that was ultimately resolved by way 

of dismissal, then, if it gets to that 

extent on the record, then certainly, um, 

I'll allow [counsel for defendant] to tie up 

what the ultimate resolution of that was, 

but because it was explored to some extent 

on cross, then I've got to allow the State 

the opportunity to say what it has to say 

about it on redirect.

So, I will allow the subject to be 

explored on redirect because it was explored 

on cross, and I'll take whatever objections 

may occur based on the context in which it 

arises.

On redirect, Investigator Gill testified that the reason 

defendant came into his office offering assistance was because 

defendant had been arrested after marijuana was found in his car 

during a traffic stop. Investigator Gill stated that defendant 

offered to assist with another investigation and signed a 

confidential informant packet. 

“[T]he objective of redirect examination is to clarify the 

subject matter of the direct examination and any new matter

elicited on cross-examination[.]” State v. Price, 301 N.C. 437, 

452, 272 S.E.2d 103, 113 (1980) (citation omitted). By 

eliciting testimony as to how Investigator Gill could have been

positive in his identification of defendant as the person seen 

on camera selling marijuana, defendant opened the door for the 
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State to seek an explanation of this testimony on redirect. 

Accordingly, the trial court did not err in allowing the State 

to inquire into the circumstances under which Investigator Gill 

had seen and talked to defendant.

Defendant further argues that he was unfairly prejudiced by 

the trial court’s allowing the State to question Investigator 

Gill about defendant’s prior arrest involving marijuana. 

Defendant contends that had the testimony concerning defendant’s 

prior arrest involving marijuana not been admitted, a different 

result would have been reached at his trial. We disagree, as 

the case against defendant for the 20 March 2012 marijuana 

offense was not based solely on his prior arrest involving 

marijuana. 

The State presented evidence to the jury which tended to 

show that defendant had sold marijuana to the confidential 

informant by means of testimony by Investigator Gill, testimony 

by the confidential informant, and a video recording captured by 

a video camera attached to the informant’s shirt during his 

purchase of marijuana from defendant. As such, the State 

presented sufficient evidence for the jury to find beyond a 

reasonable doubt that defendant was the individual who sold 

marijuana to the informant. Further, the jury specifically 
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requested to see the segment of the video recording of the 

controlled buy where defendant’s face was visible in the car. 

At 1:59 p.m., the jury sent a note to the trial court asking: 

“the jury would like to review the video. [sic] @ the car to see 

a closer picture of the Defendant.” After discussing the jury’s 

request with counsel, the trial court permitted the jury to 

watch this portion of the video which showed, albeit briefly, 

defendant’s face inside the car. The jury then returned to its 

deliberations, reaching its verdicts at 2:31 p.m. This request 

by the jury clearly shows an intent to ascertain for themselves

whether defendant was the person shown in the car. From this 

record there is no evidence that the jury was unfairly

prejudiced by testimony concerning defendant’s prior arrest 

involving marijuana.

Defendant further argues that the admission of testimony 

concerning his prior arrest involving marijuana was prejudicial 

because the trial court failed to give a limiting instruction 

regarding permissible uses of Rule 404(b) evidence of prior bad 

acts. Although the trial court failed to give a limiting 

instruction regarding the jury’s consideration of defendant’s 

prior arrest involving marijuana, there is nothing in the record 

to indicate that, but for the absence of the limiting 
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instruction, defendant’s trial would have reached a different 

outcome. As discussed above, there is no evidence to suggest 

that the jury was unfairly prejudiced by Investigator Gill’s 

testimony concerning defendant’s prior arrest involving 

marijuana. We find nothing in the trial court’s failure to give 

a limiting instruction that is "so fundamental as to amount to a 

miscarriage of justice or which probably resulted in the jury 

reaching a different verdict than it otherwise would have 

reached." State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 

251 (1987) (citations omitted). Accordingly, defendant’s 

argument is overruled.

II.

Defendant next argues that his counsel deprived him of 

effective assistance of counsel. We disagree.

“A defendant's right to counsel includes the right to 

effective assistance of counsel." State v. Grooms, 353 N.C. 50, 

64, 540 S.E.2d 713, 722 (2000) (citation omitted). This court 

analyzes claims of ineffective assistance of counsel using a 

two-part test, as articulated in Strickland v. Washington, 466 

U.S. 668 (1984). See State v. Braswell, 312 N.C. 553, 562—63, 

324 S.E.2d 241, 248 (1985). First, defendant must show that 

his "counsel's performance fell below an objective standard of 
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reasonableness as defined by professional norms." State v. Lee, 

348 N.C. 474, 491, 501 S.E.2d 334, 345 (1998). Secondly, 

defendant must show he was prejudiced by the error such that "a 

reasonable probability exists that the trial result would have 

been different absent the error." Id.

Defendant contends that his “counsel’s failure to object 

to, to move to strike, and to request a limiting instruction 

regarding the nonresponsive testimony offered by [Investigator] 

Gill and [the confidential informant] was objectively 

deficient.” Specifically, defendant argues that his counsel was 

deficient because by not objecting to, moving to strike, or 

requesting a limiting instruction for Investigator Gill’s 

nonresponsive testimony concerning defendant’s prior arrest 

involving marijuana, defendant’s counsel exposed defendant to 

prejudice. We disagree, as defendant has not demonstrated such 

prejudice that "a reasonable probability exists that the trial 

result would have been different absent the error." Id. 

In reviewing a claim of ineffective assistance of counsel, 

“if a reviewing court can determine at the outset that there is 

no reasonable probability that in the absence of counsel's 

alleged errors the result of the proceeding would have been 

different, then the court need not determine whether counsel's 
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performance was actually deficient.” Braswell, 312 N.C. at 563, 

324 S.E.2d at 249. Here, as discussed in Issue I, defendant has 

not demonstrated that, absent the nonresponsive testimony by 

Investigator Gill concerning defendant’ prior arrest involving 

marijuana, the jury would have reached a different conclusion. 

In reviewing the record before this Court, we find nothing to 

suggest that defendant’s counsel failed to act within reasonable 

standards. 

Judicial review of counsel's performance 

must be highly deferential so as to avoid 

the prejudicial effects of hindsight. 

Because of the difficulties inherent in 

determining if counsel's conduct was within 

reasonable standards, a court must indulge a 

strong presumption that counsel's conduct 

falls within the broad range of what is 

reasonable assistance. 

State v. Fisher, 318 N.C. 512, 532, 350 S.E.2d 334, 346 (1986) 

(citing Strickland, 466 U.S. at 689). As defendant has not 

demonstrated that his counsel acted outside of reasonable 

standards or exposed him to prejudice such that it affected the 

outcome of his trial, defendant’s argument is overruled.

No error.

Judges CALABRIA and GEER concur. 

Report per Rule 30(e).