NO. COA04-192

NORTH CAROLINA COURT OF APPEALS

Filed: 5 July 2005

    Appeal by defendant from judgment dated 2 October 2003 by Judge Robert F. Floyd, Jr., in Cumberland County Superior Court. Heard in the Court of Appeals 21 October 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Jane Oliver and Assistant Attorney General N. Morgan Whitney, Jr., for the State.
    Haral E. Carlin for the defendant-appellant.

    BRYANT, Judge.

    Enrique Silva, II (defendant) appeals from a judgment dated 2 October 2003 consistent with a guilty verdict of taking indecent liberties with a child and sentencing defendant to 13 to 16 months imprisonment.
    The State's evidence tended to show the mother of the victim met defendant in August 2000. They dated from October 2000 untildefendant was deployed to Paraguay. Upon defendant's return to North Carolina in 2001, the two no longer dated, but remained acquaintances. On one occasion between 18 May and 30 June 2001, the mother, who attended night classes, asked defendant to babysit for her six-year-old daughter as her regular babysitter was unavailable. When the mother called to inform defendant she was coming to pick up her daughter, defendant encouraged her to let the daughter spend the night as it was late, the daughter was sleeping and it was raining. When the mother picked her daughter up the next morning, her daughter did not mention that anything unusual happened to her while in defendant's care. However, over the next month, the daughter began to exhibit signs of withdrawal and started having nightmares.
    Several months later, the mother was again unable to find a babysitter and asked defendant to watch her daughter. The daughter objected to going to defendant's home and became very upset. During the conversation, the daughter revealed that the night she stayed at defendant's, he laid her sleeping bag out on the floor and she went to sleep. During the night, she felt defendant touch her when he put his hand inside her panties and fondled her vagina.
    Upon being confronted by the mother, defendant denied the allegations. In subsequent interviews with law enforcement, the daughter stated defendant had penetrated her with his fingers butdefendant denied he had touched her.
    Defendant presented no evidence and now appeals his conviction.
    
    As a preliminary matter, we note defendant has brought forth nineteen assignments of error, and argues all but three in his brief. “Assignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.” N.C. R. App. P. 28(b)(6). Pursuant to Rule 28(b)(6) we note defendant has abandoned assignments of error 13, 17 and 18.
    Defendant's numerous assignments of error are centered around three main issues: whether the trial court erred in (I) denying defendant's motion in limine to exclude certain statements of defendant; (II) admitting into evidence statements made by defendant, the victim's mother and Detective Farnham; and (III) allowing the State to make improper remarks during opening statements.

I

    Defendant argues the trial court erred in denying his motion in limine and admitting defendant's statements regarding his “fantasy woman” and his statements that his “ex-wife tried to say he did the same thing to her children.”     Prior to trial, defendant filed a motion in limine to exclude the above referenced statements. On 29 September 2003, the trial court denied the motion. Thereafter, defendant failed to object when the same evidence was introduced at trial. By failing to object to the introduction of evidence contemplated by the motion in limine, defendant has failed to properly preserve this issue for review. N.C. R. App. P. 10(b)(1); see also State v. Conaway, 339 N.C. 487, 507, 453 S.E.2d 824, 837 (1995). “[Our Supreme Court] has held that a motion in limine is not sufficient to preserve for appeal the question of admissibility of evidence if the defendant does not object to that evidence at the time it is offered at trial.” State v. Roache, 358 N.C. 243, 292, 595 S.E.2d 381, 413 (2004). Therefore, we hold defendant has failed to properly preserve this issue for appellate review   (See footnote 1)  . Further defendant has failed to allege plain error. This assignment of error is overruled.

II

    In several assignments of error, defendant argues the trial court committed plain error in admitting statements made by defendant, the victim's mother and Detective Farnham. Specifically, defendant challenges the following:
        (1)    Defendant told victim's mother that “[m]y wife went to my command and told them I had snuck into my daughter's bedroom”; (2)    The victim's mother testified that defendant had “physically put his fingers inside her” daughter's vagina; (3)    Defendant “would look at all kinds of women whether they are 60 or 70 years old and say I wonder what it would be like to have anal sex with them” and comment on their breasts; (4)    Defendant had asked victim's mother for anal sex while they were dating; (5)    Defendant said “I would like to stick it in her butt”; (6)    That defendant kept nude pictures of his ex-wife in his wallet; (7)    Victim's mother said “the big issue, sir, is the fact that he said it is legal to have sex with 13 year olds [in Paraguay] and that's what he preferred”; (8)    Defendant said “he liked to have quad sex”; (9)    That defendant and his ex-wife would do all kinds of sexual relations with other married couples; (10)    That defendant had a stripper that rented the room from him, but his ex-wife got so mad he asked her to leave; (11)    Defendant told the female detective that defendant was “every woman's fantasy and because of that he did not want to settle down and women went crazy and stalked him”; (12)    Female detective testified that defendant told her that his fantasy woman was no older than 19 [years old], had certain lip size, being brunette, taller than him and willing to try anything sexually; and (13)    The female detective testified that defendant was flirting with her.
    
Defendant did not object to the admission of these statements during trial. “When there is no objection to an offer of evidence or a motion to strike after its admission, any objection or exception is lost. Unless objection is made at the proper time, it is waived.” State v. Isom, 52 N.C. App. 331, 333, 278 S.E.2d 327, 328 (1981)(citation omitted). “In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. ” N.C. R. App. P. 10(b)(1) . “Failure to make timely objection or exception at trial waives the right to assert error on appeal, . . . and a party may not, after trial and judgment, comb through the transcript of theproceedings and randomly insert an exception notation in disregard of mandates of [N.C. R. App. P.] 10(b).” State v. Shamsid-Deen, 324 N.C. 437, 445-46, 379 S.E.2d 842, 847 (1989) (citations omitted). Defendant has waived appellate review by his failure to object to these statements at trial. See N.C. R. App. P. 10(b)(1). However, because defendant distinctly alleges plain error, we review this issue for plain error pursuant to N.C. R. App. P. 10(c)(4).
    Plain error is a fundamental error “so basic, so prejudicial, so lacking in its elements that justice cannot have been done .” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). To prevail on plain error review, the “'defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.'” State v. Roseboro, 351 N.C. 536, 553, 528 S.E.2d 1, 12 (quoting State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993)), cert. denied, 531 U.S. 1019, 148 L. Ed. 2d 498 (2000).
        [T]he essence of the plain error rule is that it be obvious and apparent that the error affected defendant's substantial rights. If we were to adopt defendant's proposition . . . [a] trial judge would be required to review all evidence cumulatively for errors of admissibility even though defendant had made no objections to any evidence during trial. . . . A defendant could fail to make any objection to the admission of evidence at trial, but could then require this Court tocumulatively review the evidence for possible errors amounting to plain error. Such rule would [contradict] our Rules of Civil Procedure and Rules of Appellate Procedure, and the plain error doctrine as defined by the North Carolina Supreme Court.

State v. Holbrook, 137 N.C. App. 766, 769, 529 S.E.2d 510, 511-12 (2000). As in Holbrook, by not objecting to the admission of statements and evidence, defendant in the instant case denied the trial court an opportunity to rule on the admissibility of those statements he now challenges. Furthermore, on this record defendant has failed to show absent the alleged error the jury probably would have reached a different verdict. Defendant's assignments of error as to this issue are overruled.

III

    In his remaining assignment of error, defendant argues the trial court committed error in allowing the State to make inappropriate remarks during the State's opening statement. Specifically, defendant challenges the propriety of the statement that defendant had “girly magazines laying on the table in the kitchen, Victoria's Secret and that sort of thing, women in bikinis.”
    N.C. Gen. Stat. § 15A-1221(a)(4) provides “[e]ach party in a criminal jury trial has the opportunity to make a brief opening statement . . . to set forth a 'general forecast' of the evidence.” State v. Ackerman, 144 N.C. App. 452, 462, 551 S.E.2d 139, 146 (2001) (citation omitted); N.C. Gen. Stat. § 15A-1221(a)(4) (2003). If a defendant fails to object to a portion of the State's opening statement, he must show the statement was so grossly improper that the trial court abused its discretion by failing to intervene ex mero motu. State v. Barden, 356 N.C. 316, 346, 572 S.E.2d 108, 129 (2002) (citations omitted); see also State v. Cummings, 352 N.C. 600, 616-17, 536 S.E.2d 36, 49 (2000) (applying “plain error” analysis where the defendant failed to object to opening statement).
    In the case sub judice, defendant has made no showing that any portion of the State's opening statement was “grossly improper.” Accordingly, this assignment of error is overruled.
    No error.
    Judges TYSON and LEVINSON concur.
    Report per Rule 30(e).

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Footnote: 1

    Recently, the General Assembly amended Rule 103(a) of the Rules of Evidence to provide: “Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” N.C. Gen. Stat. § 8C-1, Rule 103(a)(2) (2003). “This amendment, however, applies only to rulings made on or after 1 October 2003. . . . Since the pre-existing rule applies to this case, we must hold that defendant failed to fully preserve the issue . . . for appellate review.” State v. Pullen, 163 N.C. App. 696, 701, 594 S.E.2d 248, 251-52 (2004)(citing 2003 N.C. Sess. Laws ch. 101).

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