An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA02-1259


Filed: 3 June 2003


         v.                        Durham County
                                No. 01 CRS 13260

    Appeal by defendant from judgment entered 2 May 2002 by Judge Henry W. Hight, Jr. in Durham County Superior Court. Heard in the Court of Appeals 2 June 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Judith Tillman, for the State.

    Mark A. Key for defendant-appellant.

    TYSON, Judge.

    Michael Brandon Oliver (“defendant”) was found guilty of violating a local noise ordinance, and he was sentenced to an active term of ten days. The sentence was suspended and defendant was placed on supervised probation for twelve months. We find no error.

I. Background

    The State presented evidence tending to show that at approximately 9:20 a.m. on 20 June 2001, David Williams contacted the Durham Police Department to report that his neighbor across the street was playing loud music. Officer K.L. Roberts responded to the dispatch. As she drove towards the Williams' residence, she heard loud music emanating from the residence across the streetthrough her vehicle's closed windows. She met with Williams, who told her the loud music was a continuous problem and was very annoying. After talking to Williams, she went to the house across the street where the music was being played extremely loud. She entered the residence and asked defendant, who lived there, to lower the volume of the music. Defendant complied with her request. Officer Roberts observed in a back bedroom of the residence an extensive amount of audio equipment, including large stereo speakers. Defendant told Officer Roberts that he did not know the noise ordinance applied to daytime hours.
    Defendant presented evidence tending to show that the music was not loud. Defendant testified that the music was playing around 40 decibels or about the volume of his voice. The jury found defendant not guilty of resisting, obstructing and delaying, but guilty of the noise code violation. Defendant appeals.
II. Issues

    Defendant contends (1) that the noise ordinance with which he was convicted of violating is unconstitutionally vague and overbroad, (2) that the court erred by denying his motion to dismiss at the close of the State's evidence, and (3) that the court erred by denying his motion to sequester the State's witnesses.
III. Constitutional Issue

    Defendant failed to raise the issue of the constitutionality of the ordinance in the trial court. A constitutional issue not raised in the trial court will not be considered for the first timeon appeal. State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988). This contention is dismissed.
IV. Waiver of Motion to Dismiss

    Defendant contends the court erred by denying his motion to dismiss at the close of the State's evidence. However, by presenting evidence, defendant waived his motion to dismiss made at the close of the State's evidence. State v. Griffin, 136 N.C. App. 531, 544, 525 S.E.2d 793, 802-03, disc. review denied, 351 N.C. 644, 543 S.E.2d 877 (2000). He did not renew the motion at the close of all the evidence. By not renewing the motion, he waived appellate review of the question of the sufficiency of the evidence to support the conviction. State v. Spaugh, 321 N.C. 550, 552, 364 S.E.2d 368, 370 (1988). Consequently, this assignment of error is dismissed.
V. Motion to Sequester

    Defendant contends that the court erred by denying his motion to sequester the State's witnesses. “A ruling on a motion to sequester witnesses rests within the sound discretion of the trial court, and the court's denial of the motion will not be disturbed in the absence of a showing that the ruling was so arbitrary that it could not have been the result of a reasoned decision.” State v. Call, 349 N.C. 382, 400, 508 S.E.2d 496, 507-08 (1998). One reason for sequestering witnesses is to prevent them from tailoring their testimony to that of prior witnesses. State v. Pittman, 332 N.C. 244, 254, 420 S.E.2d 437, 442 (1992). Although defendant alleged in his motion that witnesses “may tailor his or herrecollection to fit the majority view,” he has cited nothing in the record to show any such tailoring of testimony. No abuse of discretion having been shown, this assignment of error is overruled.
V. Conclusion

    We have carefully reviewed the record, brief, and arguments and find no error in defendant's conviction or sentence.
    No error.
    Judges WYNN and STEELMAN concur.
    Report per Rule 30(e).

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