STATE OF NORTH CAROLINA
v
.
Columbus County
Nos. 98 CRS 3197, 98 CRS 3202,
RHASSAN SMALL a/k/a 98 CRS 3597-98, 98 CRS 3611,
GREGORY DAVID JORDAN, 98 CRS 5649-57
Defendant-Appellant.
Attorney General Roy Cooper, by Assistant Attorney General
Tracy C. Curtner, for the State.
Edwin L. West, III, P.L.L.C., by Edwin L. West, III, for
defendant-appellant.
MARTIN, Judge.
On 11 December 2000, defendant pled no contest, pursuant to a
plea arrangement, to fourteen counts of obtaining property by false
pretenses. After consolidating several of the counts for judgment,
the trial court imposed five consecutive sentences having a total
minimum term of thirty months and a total maximum term of forty
months imprisonment. The trial court then suspended the sentences
and placed defendant on supervised probation for thirty-six months.
On 3 January 2001, defendant's probation officer filed a
violation report which alleged defendant had violated three
conditions of his probation: (1) moving without informing his
probation officer; (2) violating his curfew on three dates; and (3)failing to report on 2 January 2001 and failing to report a change
in his employment status. Judge James F. Ammons, Jr., held a
probation violation hearing on 25 May 2001. While defendant
admitted through counsel failing to report and violating curfew, he
denied doing so willfully. He denied moving without informing his
probation officer and also asserted he had been fired from his job
because of repeated calls from the probation office.
During the State's cross-examination of defendant, the
following exchange occurred:
Q. [Y]ou tested positive, sir, for cocaine on
November second of the year 2000; is that
correct?
[Defense counsel]: Objection.
COURT: Overruled.
. . . .
Q. Is it correct that you have tested positive
for cocaine on November 2, 2000 and that a
violation report exist[s] that says that?
A. I'm not aware of that.
Q. Are you aware of this violation report,
sir; would you like to read it?
A. Yes, I would.
Q. May I approach?
[Defense counsel]: Judge, I'd like to see it
first.
COURT: All right. I'm going to sustain the
objection. Anything else?
The State then asked defendant about charges in South Carolina of
obtaining property by false pretense, of financial identity fraud,
and of possession of a stolen automobile. Defense counsel objectedat that time, and the following exchange occurred:
COURT: Are these pending charges in South
Carolina?
[State]: Yes, sir.
COURT: All right. Sustained.
[Defense counsel]: Motion to strike.
COURT: Allowed. All right, any further
questions?
At the close of the evidence, the trial court found that
defendant had willfully and without valid excuse violated each of
the three conditions of probation alleged in the violation report.
The trial court then revoked defendant's probation and activated
his five suspended judgments. From the trial court's judgments,
defendant appeals.
Defendant contends the trial court erred in overruling his
objections to the introduction of inadmissible and prejudicial
evidence at his probation violation hearing. He argues the
resulting prejudice was not cured when the trial court subsequently
sustained his objections. We disagree.
The trial court did initially overrule defendant's objections
to the State's questions about a positive drug test and about
pending charges against him. However, in each instance, the trial
court subsequently sustained defendant's objections and allowed
defendant's motion to strike the testimony as to the pending
charges. Because the trial court sustained defendant's objection
to the questions about the pending charges and struck the
objectionable testimony, defendant has no grounds to assignerror. State v. Hill, 139 N.C. App. 471, 479, 534 S.E.2d 606, 612
(2000).
As for the State's questions about the positive drug test,
defendant waived his right to assert error on appeal by failing to
move to strike the objectionable testimony. See State v. Jones,
347 N.C. 193, 491 S.E.2d 641 (1997). Assuming defendant had
properly preserved this second issue for appeal, it would be
without merit.
When the trial court hears a matter without a
jury and allows both competent and incompetent
evidence to be admitted, it is presumed that
the trial court ignores the incompetent
evidence and considers only that which is
competent and that the findings of fact of the
court are in no way influenced by hearing the
incompetent evidence.
State v. Baines, 40 N.C. App. 545, 548, 253 S.E.2d 300, 302 (1979).
Accordingly, defendant's arguments as to both objections are
overruled.
Defendant failed to set out his eight remaining assignments of
error in his brief. Because he has neither cited any authority nor
stated any reason or argument in support of those assignments of
error, they are deemed abandoned. N.C.R. App. P. 28(b)(5) (2001).
The trial court's judgments are affirmed.
Affirmed.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).
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