An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1168


Filed: 1 June 2004


     v.                            Cumberland County
                                No. 03 CRS 52862

    Appeal by defendant from judgments dated 27 May 2003 by Judge Gary L. Locklear in Cumberland County Superior Court. Heard in the Court of Appeals 12 May 2004.

    Attorney General Roy Cooper, by Assistant Attorney General David G. Heeter, for the State.

    Richard Croutharmel for defendant-appellant.

    BRYANT, Judge.

    Christopher L. Brown (defendant) appeals judgments and commitments upon revocation of probation dated 27 May 2003.
    On 20 March 2003, defendant pled guilty in district court to assault on a female, communicating threats, and injury to personal property. After consolidating two of the charges, the district court imposed two consecutive, suspended sentences of 120 days imprisonment and placed defendant on probation for twelve months. On 11 April 2003, probation violation reports were filed alleging defendant had willfully violated three conditions of his probation: (1) that he report as directed to his probation officer, (2) that he not assault, communicate with, or be in the presence of his ex-girlfriend, and (3) that he not be found in or on the premises of his ex-girlfriend. On 25 April 2003, the district court found defendant to be in willful violation of the three conditions and activated defendant's suspended sentences. Defendant appealed his probation revocation to the superior court.
    At the start of the probation violation hearing in superior court on 27 May 2003, defendant's appointed counsel told the superior court that she was “ready to go forward.” Appointed counsel then informed the superior court that defendant had notified her earlier that morning of his intention to retain private counsel. Defendant told the superior court that his counsel had been appointed two weeks prior to the hearing and that his bond had been reinstated. Defendant further told the superior court that he had not yet hired private counsel but had spoken with an attorney in Lumberton. After finding that counsel had been appointed approximately two weeks earlier and that on the hearing date defendant asked for a continuance to hire private counsel, the superior court concluded defendant's request was merely a “last[-]moment” delay tactic. The superior court, in its discretion, denied defendant's request for a continuance. When the superior court asked if defendant wished to be represented by his appointed counsel or to represent himself, defendant stated that he wanted to proceed with his appointed counsel.
    Probation Officer Willie Christian testified defendant was subject to a special condition of probation that he not “assault, communicate with, be in the presence of[,] or be found on thepremises of Jeanette McCoy or McKenzie.” Yet, when defendant came to Officer Christian's office for processing on 11 April 2003, he was accompanied by Jeanette. While defendant was talking with Officer Christian, Jeanette was showing another officer as well as his chief bite marks that she accused defendant of having caused. She further accused defendant of hitting her with a pool stick. As Officer Christian stepped out of his office at his chief's request, defendant asked if he could go to the restroom. Instead of heading for the restroom, however, defendant left the courthouse. When Officer Christian and Jeanette stepped outside to look for defendant, they saw him drive away in Jeanette's vehicle. Approximately two minutes later, as they were returning to the courthouse, Officer Christian heard defendant call out Jeanette's name and observed him walking in the direction of the bus station. The next day, Officer Christian saw the Hope Mills police pick up defendant in the parking lot of the Wendy's where Jeanette worked.
    At the close of the State's evidence, the superior court dismissed the first and third alleged violations listed in the violation reports. Defendant offered no evidence, and the superior court found that: defendant had violated the remaining condition of probation alleged in the violation report; the violation was willful and without valid excuse; and the violation was a sufficient basis in and of itself upon which to revoke defendant's probation. The superior court then revoked defendant's probation and activated the two suspended sentences.

    The issues are whether the superior court committed plain error by: (I) failing to conduct an inquiry to determine defendant's reasons for requesting a continuance to retain counsel of his choice; (II) not dismissing the remaining allegation in the probation violation reports based on insufficient evidence; and (III) considering evidence not before the trial court in finding a willful violation of probation. Defendant contends in each of his supporting assignments of error that the trial court committed plain error. His reliance upon plain error is misplaced, however, for our appellate courts have applied plain error review only to jury instructions and evidentiary rulings. State v. Childress, 321 N.C. 226, 234, 362 S.E.2d 263, 268 (1987).

    Defendant made no motion or request of the trial court to inquire as to his reasons for requesting a continuance and therefore failed to preserve this argument. See N.C.R. App. P. 10(b)(1) (party must present a timely request, objection or motion to trial court to preserve question for appellate review). His assertion of plain error in this instance is inappropriate because the alleged error was neither an instructional error nor an error concerning the admissibility of evidence. See State v. Russell, 153 N.C. App. 508, 510 n.1, 570 S.E.2d 245, 247 (2002).

    Defendant also failed to preserve his second argument because he did not move to dismiss the remaining allegation against him at the close of the evidence. See N.C.R. App. P. 10(b)(3) (defendantmay not assign insufficiency of evidence as error unless he moved to dismiss the action). Because this second argument concerns the sufficiency of the evidence, plain error review again is inappropriate. State v. Bartley, 156 N.C. App. 490, 494, 577 S.E.2d 319, 322 (2003) (plain error review inappropriate for an assignment of error as to sufficiency of the evidence).

    While defendant asserts in his final argument that the trial court considered evidence which was not before it, the trial court's weighing of the State's evidence and its ruminations as to possible explanations which defendant might have offered to counter the State's evidence were not rulings on the admissibility of evidence. See State v. Robinson, 248 N.C. 282, 285, 103 S.E.2d 376, 379 (1958) (weighing of evidence and decision to revoke probation upon a finding of a willful violation are matters left to trial court's sound discretion). As a result, plain error review is inapplicable to this last argument. See Childress, 321 N.C. at 234, 362 S.E.2d at 268. For the reasons stated above, we find no error.
    No error.
    Chief Judge MARTIN and Judge McGEE concur.
    Report per Rule 30(e).

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