Summary
holding the defendant did not preserve a challenge to the sufficiency of the evidence for a possession of a firearm by a felon charge, when at trial the defendant argued only that there was insufficient evidence for a first-degree kidnapping charge
Summary of this case from State v. WalkerOpinion
No. COA10-465
Filed 1 March 2011 This case not for publication
Appeal by defendant from judgment entered 17 November 2009 by Judge Christopher M. Collier in Gaston County Superior Court. Heard in the Court of Appeals 2 November 2010.
Attorney General Roy Cooper, by Assistant Attorney General Douglas W. Corkhill, for the State. Michael E. Casterline for defendant.
Gaston County Nos. 06 CRS 68475, 06 CRS 68478, 06 CRS 68483, 06 CRS 68683, 08 CRS 9927.
Where the State's cross examination of a witness was not too lengthy or harassing, there was no violation of Rule 611, nor an abuse of discretion. Where a defendant on appeal presents a different theory supporting his motion to dismiss than that he argued at trial, he waives review of the issue, and we must dismiss. Where a defendant argues error in the trial court's denial of his motion to dismiss a charge for which the trial court later arrested judgment, the issue is not properly before the Court and must be dismissed.
Facts
The evidence at trial tended to show the following. On 17 December 2006, J.D. was asleep in the home she shared with her boyfriend, Dontarius Hall. Hall, a drug dealer with a criminal history, who kept crack cocaine in the house, was out at a nightclub. At about 3 a.m., J.D. was awakened by someone knocking on the door. She called Hall on his cell phone to ask if he was expecting anyone. As they spoke, the front door was kicked in, and defendant Anthony Adolphious Williams, his cousin Dominique Davis and another man, Columbus Washington, entered the home. The men were armed and wore hooded sweatshirts to obscure their faces. They planned to steal money and drugs from the home. J.D. dropped her phone and Hall then dialed 911 and asked that police be sent to the house. The men ordered J.D. to remove her shirt and lie on the floor as they searched the house. After one of men struck J.D. in the head with a gun, she retrieved crack cocaine and a handgun concealed behind a ceiling tile. Davis and Washington then went outside to search J.D.'s car for other items. Defendant forced J.D. at gunpoint to have oral sex and vaginal intercourse with him. Davis then re-entered the house to tell defendant the police were outside. The three men fled on foot with the police in pursuit. Davis dropped his shotgun as he ran but still had crack cocaine and J.D.'s cell phone on his person, when the police caught him. The other two men were not caught, although two handguns were found in neighbors' yards. The police searched a black Suzuki the men had driven to and left in front of J.D.'s home. The following day, defendant's girlfriend reported her black Suzuki missing. Defendant was arrested after Davis identified him during a police interview.
Initials are used to protect the identity of the rape victim in this case.
On 16 January 2007, defendant was indicted on charges of robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, first-degree burglary, first-degree kidnapping, and first-degree rape. On 19 March 2007, he was indicted for possession of a firearm by a felon. On 23 June 2008, defendant was indicted for first-degree sexual offense. At trial, the defense introduced a letter purportedly written by J.D. to defendant while he was in jail. In the letter, J.D. apologized for accusing defendant of rape and implied that the two had a romantic relationship (unbeknownst to Hall) and that any sexual contact during the robbery had been consensual. The defense also presented testimony from an expert witness in handwriting analysis and comparison who concluded the letter had been written by J.D. However, on rebuttal, J.D. denied writing the letter and denied its contents were true.
Defendant was found not guilty of robbery with a dangerous weapon, but guilty on the remaining five charges. The trial court arrested judgment on the kidnapping conviction and consolidated the remaining convictions for judgment. The trial court sentenced defendant to a prison term of 384 to 470 months. Defendant appeals.
On appeal, defendant presents three arguments: (I) the trial court committed plain error in failing to intervene during the State's cross-examination of the expert witness on handwriting; (II) the trial court erred in entering a conviction for possession of a firearm by a felon; and (III) the trial court erred in denying defendant's motion to dismiss the first-degree kidnapping charge for insufficiency of the evidence.
I
Defendant first argues the trial court committed plain error in failing to intervene during the State's cross-examination of an expert witness. We disagree.
At trial, the defense called Haywood R. Starling as an expert witness in handwriting comparison. Starling testified that he concluded the letter had been written by J.D. The State then cross-examined Starling about the context of his comparison of handwriting samples to determine who wrote the letter:
[The State]: Okay, I was just indicating, when you formed your opinion you didn't take into account the co-defendant, Dominique Davis' testimony that three men approached the house in the dead of night with guns, did you.
Starling: No.
[The State]: And you didn't take into account that the victim's door was kicked in with such force that it was knocked off the hinges; you didn't take that into account, did you.
Starling: No.
The State continued in this manner to ask about whether Starling had taken into account other details of the home invasion, defendant's rape of J.D., that defendant's DNA was found inside J.D., and so forth. Eventually, defense counsel objected, the trial court sustained the objection and no further questions in this vein were asked. On appeal, defendant contends that the trial court committed plain error in failing to intervene ex mero motu to halt the State's cross-examination prior to his objection. Defendant asserts that the cross-examination was so prejudicial to him that, without it, the jury would likely have reached a different result.
North Carolina Rules of Evidence, Rule 611, requires the trial court to "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment." N.C. Gen Stat. § 8C-1, Rule 611(a) (2009). "Because the manner of the presentation of evidence is a matter resting primarily within the discretion of the trial judge, his control of the case will not be disturbed absent a manifest abuse of discretion." State v. Harris, 315 N.C. 556, 562, 340 S.E.2d 383, 387 (1986) (citations omitted). Defendant fails to argue any abuse of discretion and we see none. Even if the State was trying to remind jurors of the details of the crimes with which defendant was charged, all of this evidence had been previously admitted without objection, through the testimony of Davis and J.D. Given that the exchange on cross-examination was not lengthy or harassing, there could be no violation of Rule 611, nor any abuse of discretion. Further, the case cited by defendant, State v. Sanderson, 336 N.C. 1, 442 S.E.2d 33 (1994), is inapposite. In Sanderson, "the prosecutor undertook to discredit [the expert witness] through insults and unwarranted personal attacks rather than through legitimate cross-examination." Id. at 12, 442 S.E.2d at 40. Here, in contrast, the State did not engage in any insults or personal attacks on cross-examination. Thus, because defendant can show no error, this argument is overruled.
II
Defendant next argues the trial court erred by entering judgment on a conviction for possession of a firearm by a felon because the evidence was insufficient. Because defendant failed to preserve this matter for our review, we dismiss.
Defendant contends that his conviction on this charge must be vacated because the State did not present evidence of a prior felony conviction. At a pretrial hearing, defense counsel moved that the parties refer only to the charge of "illegal possession of a firearm" and told the trial court that, in return, defendant would stipulate to the prior felony for common law robbery listed in the indictment. Defendant apparently wished to keep the jury from being informed of the nature of the prior conviction. The trial court denied defendant's motion, ruling that the State could present evidence of a prior felony conviction at trial. However, the State never did so.
On the second day of trial, the trial court stated for the record:
There was a motion to prohibit the state [sic] from bringing evidence about [] defendant's prior conviction in respect to [the] possession-of-a-firearm-by-a-felon charge. The Court had ruled at an earlier time, off the record, that it was based on stipulation and would allow the state [sic] to present evidence that he is a convicted felon but not the nature of the felony.
Defendant did not make any objection to the trial court's statement that he had stipulated to a prior conviction nor did he move to dismiss the charge for insufficiency. During the charge conference, the trial court noted that it would instruct the jury that the defendant had stipulated to being a convicted felon. The trial court then so instructed the jury.
At the close of the State's evidence, the trial court inquired about motions. Defense counsel stated: "We would make a motion to dismiss all the charges at the end of the state's evidence. I will tell the Court the only one I wish to address will be the first-degree kidnapping." Defense counsel then made his argument on the kidnapping charge, and the trial court denied the motion. At the close of all evidence, the trial court inquired as to any motions, and defense counsel stated "Motion to dismiss all the charges at the close of all the evidence, your Honor." The trial court denied the motion.
In his brief, defendant argues that the trial court erred in denying his motion to dismiss the charge of possession of a firearm by a felon based on insufficiency of the evidence, in that there was no evidence of a prior conviction. Under Rule 10(a)(1) of the Rules of Appellate Procedure, "[i]n 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) (2009). As noted above, while defendant made specific arguments about the grounds for dismissal, as to the kidnapping charge, he made no specific argument about the sufficiency of the firearm possession charge. Given defendant's failure to object to the trial court's statements about his alleged stipulation, the specific grounds would not have been apparent to the trial court. We have long held that "where a theory argued on appeal was not raised before the trial court, the law does not permit parties to swap horses between courts in order to get a better mount in the appellate courts." State v. Holliman, 155 N.C. App. 120, 123, 573 S.E.2d 682, 685 (2002) (internal quotations and citations omitted). When on appeal, a "defendant presents a different theory to support his motion to dismiss than that he presented at trial, this assignment of error is waived." State v. Euceda-Valle, 182 N.C. App. 268, 272, 641 S.E.2d 858, 862 (2007) (citation omitted); see also State v. Baldwin, 117 N.C. App. 713, 717, 453 S.E.2d 193, 195, cert. denied, 341 N.C. 653, 462 S.E.2d 518 (1995) (holding a defendant's motion to dismiss was insufficient to preserve the issue of a fatal variance where the defendant did not assert the variance as the specific basis for his motion). Thus, defendant has failed to preserve this argument for our review. This argument is dismissed.
III
Defendant also argues that the trial court erred in denying his motion to dismiss the first-degree kidnapping charge for insufficiency of the evidence. We dismiss.
As discussed above, the trial court arrested judgment on the kidnapping charge immediately after accepting the jury's verdicts. "The legal effect of arresting the judgment is to vacate the verdict and sentence of imprisonment[.]" State v. Marshall, 188 N.C. App. 744, 752, 656 S.E.2d 709, 715 (quoting State v. Fowler, 266 N.C. 528, 531, 146 S.E.2d 418, 420 (1966)), disc. review denied, 362 N.C. 368, 661 S.E.2d 890 (2008). Thus, this issue is not properly before the Court. See State v. Roman, ___ N.C. App. ___, ___, 692 S.E.2d 431, 434 (2010). Defendant's argument is dismissed.
No error in part, Dismissed in part.
Judges STROUD and BEASLEY concur.
Report per Rule 30(e).