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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