An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-482


Filed: 18 May 2004


         v.                        Robeson County
                                No. 01 CRS 54888

    Appeal by defendant from judgment entered 19 November 2002 by Judge David Beard in Robeson County Superior Court. Heard in the Court of Appeals 3 May 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Jane T. Hautin, for the State.

    Charns & Charns, by D. Tucker Charns, for defendant-appellant.

    CALABRIA, Judge.

    Defendant Charles Lamont Walker was charged with first-degree burglary. The State's evidence tends to show that an unidentified person entered the home of Howell Stevens on the evening of 30 September 2001. Stevens had gone to bed, when he heard several loud noises that sounded like someone kicking in the door to his den. Stevens got up, retrieved his pistol from under his pillow and went into the hallway of his home. When he entered the hallway, Stevens saw a figure coming towards him, and called out, “what are you doing in here.” When the figure did not respond and kept coming towards him, Stevens fired a shot at the figure, whereupon the figure ran screaming from the residence, flailingabout and knocking things over as he went. Stevens went to a neighbor's house to have someone call the police.
    After being told by defendant's mother on the evening of 30 September 2001 that defendant had been shot, Warren Graham, an acquaintance of defendant, traveled to the Texaco station on Elizabethtown Road, where he found defendant leaning across his bicycle with a gunshot to the abdomen. Defendant told Graham that “he was at somebody's house and got shot.” Graham took defendant to the hospital emergency room. Norman Howell, another acquaintance of defendant, was also told by defendant's mother that defendant had been shot. Howell then traveled to the Texaco station, where defendant confirmed that he had been shot and showed Howell the abdominal wound.
    Detective Sergeant Steve Sutton (“Detective Sutton”), of the Lumberton Police Department, responded to the call for assistance at Stevens' residence. Once there, Detective Sutton collected blood samples and took photographs of the damage to the residence. The detective also recovered a bloodstained curtain from the residence. When told by Officer Pittman that the county tracking dog had followed a blood trail from Stevens' home to the hospital emergency room, Detective Sutton went to Southeastern Regional Medical Center's emergency room, where he learned that defendant had been admitted with a gunshot wound to the abdomen. While at the hospital, Detective Sutton collected defendant's bloody shirt from the floor. Subsequent SBI laboratory tests determined thatthe blood from defendant's shirt and that from the bloodstained curtain from Stevens' residence were a match.
    A jury found defendant guilty as charged, and the trial court sentenced him to a minimum term of 117 months and a maximum term of 150 months in the North Carolina Department of Correction. Defendant appeals.
    Defendant argues, in his sole assignment of error on appeal, the trial court erred in allowing the State to elicit testimony from Detective Sutton that he tracked defendant from the victim's residence to the hospital. Defendant contends the evidence was inadmissible hearsay. We disagree.
    In the instant case, the prosecutor asked Detective Sutton what attempts he made “to determine the whereabouts of the suspect [in this case]?” The Detective responded, “I was told by Officer Pittman that the county tracking dog had followed the trail from the house to the emergency room. After leaving the house, I went to the emergency room and did in fact find that there was a subject who had come in recently with a gunshot.” Defendant did not object to the subject testimony at trial, and therefore, seeks review of this testimony under the plain error doctrine. See N.C.R. App. P. 10(b)(1) (requiring that a party must present the trial court with “a timely request, objection or motion” “to preserve a question for appellate review”); N.C.R. App. P. 10(c)(4)(allowing plain error review in criminal cases as to certain issues where a question is not properly “preserved by objection noted at trial”). To thatend, our Supreme Court, in adopting the plain error doctrine, long ago stated,
        [T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a "fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done," or "where [the error] is grave error which amounts to a denial of a fundamental right of the accused," or the error has "'resulted in a miscarriage of justice or in the denial to appellant of a fair trial'" or where the error is such as to "seriously affect the fairness, integrity or public reputation of judicial proceedings" or where it can be fairly said "the instructional mistake had a probable impact on the jury's finding that the defendant was guilty."
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982) (footnotes omitted) (emphasis in original)).
    Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2003). Hearsay is generally inadmissible. See N.C. Gen. Stat. § 8C-1, Rule 802 (2003). “However, out of court statements offered for purposes other than to prove the truth of the matter asserted are not considered hearsay,” State v. Thomas, 350 N.C. 315, 339, 514 S.E.2d 486, 501 (1999), and are, therefore, admissible. As the Supreme Court noted in Thomas, “[t]his Court has held that statements of one person to another to explain subsequent actions taken by the person to whom the statement was made are admissible as nonhearsay evidence.”Id. (citing State v. Morston, 336 N.C. 381, 399, 445 S.E.2d 1, 11 (1994); State v. Coffey, 326 N.C. 268, 282, 389 S.E.2d 48, 56 (1990)).
    We conclude that the statement elicited from Detective Sutton was not offered to prove that the tracking dog had in fact followed a trail from the crime scene to the hospital, but to explain Detective Sutton's reason for going to the hospital. The subject testimony is not hearsay, and therefore, was admissible. Accordingly, the trial court did not commit error-- plain or otherwise-- in allowing this testimony into evidence.
    Defendant also attempts to argue under this same assignment of error that Detective Sutton's testimony was inadmissible because it did not meet the standard for the admission of dog tracking evidence in this jurisdiction. We note, however, that defendant did not assign error to this particular issue, as required by N.C.R. App. P. 10.
    Defendant's assignment of error, under which he purports to base the subject argument is as follows:
        The trial court committed plain error by allowing the State to elicit testimony that was inadmissible hearsay to establish its case so as to deny the Defendant's right to due process of law as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and by Article I, Section 19 and 23 of the North Carolina Constitution.
This assignment of error in no way addresses the inadmissibility of Detective Sutton's testimony based upon its failure to meet the standard for admission of dog tracking evidence in North Carolina. Accordingly, defendant is not entitled to review of this argument.See N.C.R. App. P. 10(c)(1) (2003) (requiring that “[e]ach assignment of error shall, so far as practicable, be confined to a single issue of law; and shall state plainly, concisely and without argumentation the legal basis upon which error is assigned; see also N.C.R. App. P. 10(c)(4) (2003) (governing the assignment of plain error)). Moreover, even assuming arguendo that the issues were properly before the Court, as previously discussed, the State did not elicit the testimony to substantively establish defendant as the guilty party, but merely to show why the Detective Sutton acted as he did in going to the hospital. As such, there was no need for the State to meet the test for the admission of dog tracking evidence, and defendant's argument to the contrary fails.
    Having so concluded, we hold that defendant received a fair trial, free from prejudicial error.
    No error.
    Judges TIMMONS-GOODSON and ELMORE concur.
    Report per Rule 30(e).

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