NO. COA02-658

STATE OF NORTH CAROLINA

         v.                        Pitt County
                                No. 00 CRS 058959
CECIL STYRON KING
    

    Appeal by defendant from judgment entered 19 September 2001 by Judge W. Russell Duke, Jr., in Pitt County Superior Court. Heard in the Court of Appeals 20 January 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Deborrah L. Newton, for the State.

    Lisa Miles for defendant-appellant.

    TYSON, Judge.

    

    The State's evidence tended to show that in the early morning hours of 12 August 2000, Cecil Styron King (“defendant”) rode his motorcycle to Rufus Cooper's (Cooper) roadside fish vending business. Defendant ordered a fish sandwich and shrimp. Defendant paid for his order with a $20 bill. After Cooper gave defendant his fish dinner and change from the $20 bill, defendant drove off on his motorcycle.
    Officer W.L. Terry of the Greenville Police Department saw defendant fail to stop at a stop sign and pulled him over. Officer Terry discovered defendant had two active warrants, placeddefendant under arrest and put defendant in the back of his patrol vehicle. When Robert Brewington arrived at the scene, he directed Officer Terry's attention to defendant, who was squirming in the back seat. Officer Terry looked into the vehicle and observed “a large amount of cash by [defendant's] right leg.” The money seized by Officer Terry totaled $733.00. While counting the money, the police officers noticed that the bills had common serial numbers and only $13 was true currency.
    The fish dinner located on the motorcycle was still hot, so the officers concluded that the fish dinner came from Cooper's fish stand, which was located around the corner and the only place selling hot fish at 4:00 a.m. A police officer went to Cooper's fish stand, inspected Cooper's twenty dollar bills, and picked out one bill, which matched one of the serial numbers of the bills seized from defendant. Defendant was charged with obtaining property by false pretenses.
    A jury found defendant guilty as charged. The trial court entered judgment on 19 September 2001 and sentenced defendant to a minimum of eight months and a maximum of ten months imprisonment. Defendant noticed appeal to this Court on 26 September 2001. That same day, defendant filed “a motion for appropriate relief under G.S. 15A-1415” with the superior court alleging that the State failed to disclose an exculpatory statement made by him in violation of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215 (1963). The trial court denied the motion for appropriate relief on 26 November 2001.

    On appeal, defendant first contends the trial court erred by (1) denying his motion to dismiss based on insufficiency of the evidence and (2) denying his motion for appropriate relief.

    At trial, defendant argued that the State failed to present sufficient evidence that defendant “must have known [the money] was counterfeit[.]” On appeal, the defense adopts a new theory, arguing that there was insufficient evidence that Mr. Cooper, the victim, was actually deceived by defendant. Rule of Appellate Procedure 10(b)(1) requires that in order to preserve a question for appellate review, the party must state the specific grounds for the ruling the party desires the court to make. N.C.R. App. P. 10(b)(1) (2002). After the State rested, defense counsel move to dismiss the charge of obtaining property by false pretense. Counsel argued to the court “the jury has got to determine from looking at that evidence as I see it Your Honor that [defendant] must have known that was counterfeit money. I just don't know how they can do that.” At the close of all the evidence, defense counsel again stated, “the State has to prove by circumstantial evidence that [] defendant knew and intended to deceive so they still again have to show that he knew that it was counterfeit money.”
    Defendant never gave any indication that the basis for the request was because the jury could find that the victim was not deceived by him. "The theory upon which a case is tried in thelower court must control in construing the record and determining the validity of the exceptions." State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982). “[D]efendant may not change his position from that taken at trial to obtain a 'steadier mount' on appeal.” State v. Woodard, 102 N.C. App. 687, 696, 404 S.E.2d 6, 11 (1991). This assignment of error is overruled.

    Defendant also contends the trial court erred by denying his motion for appropriate relief. We note that defendant filed his motion for appropriate relief pursuant to N.C. Gen. Stat. § 15A- 1415 in the trial court on 26 September 2001 and the trial judge entered an order filed 26 November 2001 denying the motion. This order was entered after defendant had given notice of appeal, and the trial court thus had been divested of jurisdiction to pass on the motion. See N.C. Gen. Stat. § 15A-1418(a) (2001)( “When a case is in the appellate division for review, a motion for appropriate relief based upon grounds set out in G.S. 15A-1415 must be made in the appellate division”). We vacate the order entered by the trial court. This Court's decision is without prejudice to defendant to file another motion for appropriate relief with the trial court.
    No error.
    Order entered 26 November 2001 denying defendant's motion for appropriate relief is vacated.
    Judges TIMMONS-GOODSON and BRYANT concur.
    Report per Rule 30(e).

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