State v Penn, 156 NC App 217 (02-488) 02/04/2003

Appeal by defendant from judgments entered 20 and 21 August 2001 by Judge Jerry Cash Martin in Forsyth County Superior Court. Heard in the Court of Appeals 8 January 2003.

Attorney General Roy Cooper, by Assistant Attorney General Jeffrey B. Parsons, for the State.

David Childers for defendant appellant.

    TIMMONS-GOODSON, Judge.

    Delmar Stacy Penn (“defendant”) appeals from his convictions and resulting sentences entered upon jury verdicts finding defendant guilty of twenty-one counts of securities and investment advisor fraud. Because defendant failed to preserve any issue for appellate review, we are unable to find error by the trial court.
    At trial, the State presented evidence tending to show that, beginning in August and continuing through December of 1998, defendant met with numerous individuals (“the victims”) in Forsyth County to discuss and arrange purchases of stock options. Although defendant represented himself to be a licensed stock broker doingbusiness as “BTL Worldwide Unlimited, Inc.,” the State presented evidence tending to show that defendant was not registered as a stockbroker, dealer, or investment advisor in North Carolina, nor in any other state. The evidence likewise showed that BTL Worldwide Unlimited, Inc. was not an organized or registered corporation existing in North Carolina or any other state. Based on defendant's assurances that he had a “ninety-seven percent success rate” on prior investment trades, and that he would “double” their investments “in a short while” with “no risk,” the victims entrusted defendant with monies totaling hundreds of thousands of dollars for investment purposes. Most of the victims received little, if any, return on their investments with defendant.
    On 29 March 1999, the Deputy Securities Administrator of the North Carolina Securities Division issued defendant a “Summary Order To Cease and Desist” in connection with his securities investments and sales. The order prohibited defendant from “offering for sale, soliciting offers to purchase, or selling, in or from North Carolina, securities” unless and until such securities and defendant were registered pursuant to the provisions of the North Carolina Securities Act. Despite this order, defendant continued to solicit investments.
    At the close of the evidence, the jury found defendant guilty of twenty-one counts of securities and investment advisor fraud under the North Carolina Securities Act. Pursuant to the jury verdicts, the trial court sentenced defendant to eight consecutiveterms of imprisonment, with six months as the minimum term and eight months as the maximum term for each conviction. In the remaining cases, defendant received suspended sentences and probation. The trial court moreover ordered defendant to pay restitution to the victims in the amount of $424,700.00. Defendant appeals to this Court.
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    Defendant's sole assignment of error on appeal is his contention that the trial court committed reversible error by allowing a witness for the State to testify as to ultimate facts and conclusions in the case without first being qualified as an expert witness. For the reasons stated herein, we uphold defendant's convictions.
    At trial, the State offered testimony by John Curry (“Investigator Curry”), the Chief Investigator in the Securities Division of the Office of the North Carolina Secretary of State. Although the State tendered Investigator Curry as an expert in the area of securities law, the trial court denied such motion and restricted his testimony to events surrounding the investigation of defendant. The trial court also permitted Investigator Curry to testify concerning financial records seized from defendant's residence pursuant to a search warrant. Defendant objected in several instances to Investigator Curry's testimony on the ground that the financial records were the best evidence of the information therein contained, which objections the trial court often sustained. Defendant made no other objection to InvestigatorCurry's testimony. Investigator Curry further testified regarding computer database research he conducted while investigating defendant. Defendant now argues that, as Investigator Curry was not an expert witness, his testimony regarding defendant's financial records was inadmissible. Defendant moreover contends that, because Investigator Curry was not the custodian of the information gathered from numerous computer databases, such information was inadmissible hearsay. We disagree.
    At trial, defendant did not object to Investigator Curry's testimony on the grounds that it constituted hearsay or was outside the scope of permissible lay testimony. Instead, defendant objected solely on the basis of the “best evidence” rule, and the trial court sustained these objections in several instances. As such, defendant has failed to preserve this alleged error for appellate review. See N.C.R. App. P. 10(b)(1) (2002) (requiring that “[i]n order to preserve a question 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” (emphasis added)); State v. Petty, 132 N.C. App. 453, 459-60, 512 S.E.2d 428, 432-33 (concluding that, as the defendant had failed to object to certain testimony at trial on the grounds that it was contradictory rather than corroborative, or that it constituted multiple hearsay, he was precluded from appellate review of these issues), appeal dismissed and disc. review denied, 350 N.C. 598, 537 S.E.2d 490 (1999). Defendant'sfailure at trial to object to Investigator Curry's testimony on the grounds of hearsay and impermissible lay testimony gave the trial court no opportunity to correct the perceived error, thereby precluding our review of the matter. See State v. Hoffman, 349 N.C. 167, 177, 505 S.E.2d 80, 86 (1998), cert. denied, 526 U.S. 1053, 143 L. Ed. 2d 522 (1999). We therefore overrule this assignment of error.
    No error.
    Judges TYSON and LEVINSON concur.
    Report per Rule 30(e).

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