An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1290

NORTH CAROLINA COURT OF APPEALS

Filed: 20 September 2005

STATE OF NORTH CAROLINA

     v .                              Durham County
                                     No. 03 CRS 050926
SHAWN NICHOLAS MCRAE

    Appeal by defendant from judgment entered 2 April 2004 by Judge Abraham P. Jones in Durham County Superior Court. Heard in the Court of Appeals 15 June 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Elizabeth J. Weese, for the State.

    Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Kelly D. Miller, for defendant appellant.

    McCULLOUGH, Judge.

    Defendant (Shawn Nicholas McRae) appeals from conviction and judgment for common law robbery. We hold that he received a fair trial, free of prejudicial error, but remand for resentencing.

Facts
    At defendant's trial, the State presented evidence tending to show that on 24 February 2003 defendant and Larry McWilliams robbed convenience store owner Altaf Hussain in the parking lot of a Durham bank. While Hussain was preparing to deposit money from his convenience stores, McWilliams drove up in a white van, and defendant exited the van, used a water gun to spray ammonia into Hussain's eyes, and took his money. Hussain identified theperpetrators of this offense as “black males” and specifically identified defendant as being the person who attacked him and took his money. Defendant presented evidence tending to show that he could not have been involved in the robbery of Hussain because he was in Fayetteville with a friend who was buying a car at the time the crime occurred.
    At defendant's trial, defense counsel also attempted to show that two witnesses to the robbery, Quinton Green and Jurea Holloway, told Durham Police Officer Jonathan Friedrick that the person who attacked and robbed Hussain was a man of Middle Eastern descent. Defendant is a black male. On cross-examination by defendant during the State's case-in-chief, Officer Friedrick testified, without objection, that it was his recollection that “[t]he witnesses described the robber as [a man] of [M]iddle [E]astern descent and the driver of the van as a black male.” However, the trial court excluded as hearsay testimony from Officer Friedrick concerning exactly what Green and Holloway had said about the robber, and excluded as hearsay Officer's Friedrick's report, which contained references to the descriptions made by Green and Holloway. Defendant contended that the descriptions given by Green and Holloway were excited utterances and/or present sense impressions and, therefore, admissible hearsay. During defendant's presentation of evidence, Officer Friedrick was again called to testify, and the trial court again excluded as hearsay statements made by Green and Holloway describing Hussain's robber and again excluded the report because it contained hearsay.     Prior to the close of defendant's evidence and outside of the presence of the jury, the trial court told defense counsel that it was “wide open to . . . bringing in [Green and/or Holloway] to testify if you want to bring them in. . . . I'm not stopping you from bringing [them] in.” Defendant did not attempt to procure the testimony of either Green or Holloway before the close of his evidence. After the State had already begun to present rebuttal evidence, defendant sought to reopen his case to call Holloway. The trial court denied this request.
    A jury convicted defendant of common law robbery, for which the trial court imposed an aggravated sentence of twenty-five to thirty months' imprisonment. Defendant appeals.
Defendant's Arguments Concerning
Alleged Trial Error

I.
    In his first argument concerning his trial, defendant contends that the trial court erred by excluding as hearsay evidence of statements given by two eyewitnesses to the robbery, Green and Holloway, in which the robber was described as being of Middle Eastern descent. Defendant insists that this evidence was admissible hearsay because the witness statements were present sense impressions and/or excited utterances and that the exclusion of this evidence violated his constitutional rights. We disagree.
A. Defendant's Hearsay Arguments
    “'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered inevidence to prove the truth of the matter asserted.” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2003). “Hearsay is not admissible except as provided by statute or by the[] [R]ules [of Evidence].” N.C. Gen. Stat. § 8C-1, Rule 802 (2003). Pursuant to the Rules of Evidence, a statement which qualifies as a “present sense impression” or an “excited utterance,” although hearsay, is admissible. N.C. Gen. Stat. § 8C-1, Rule 803(1), (2) (2003).
    A “present sense impression” is “[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” N.C. Gen. Stat. § 8C-1, Rule 803(1). “The underlying theory of the present sense [impression] exception to the hearsay rule is that closeness in time between the event and the declarant's statement reduces the likelihood of deliberate or conscious misrepresentation.” State v. Reid, 322 N.C. 309, 315, 367 S.E.2d 672, 675 (1988). “There is no rigid rule about how long is too long to be 'immediately thereafter.'” State v. Clark, 128 N.C. App. 722, 725, 496 S.E.2d 604, 606 (1998). The admissibility of a particular statement, made shortly after the declarant witnessed the event, will depend upon the facts and circumstances surrounding the particular statement. See, e.g., State v. Odom, 316 N.C. 306, 313, 341 S.E.2d 332, 336 (1986) (“Under the facts of this particular case, [the declarant]'s statement was not too remote to be admissible under Rule 803(1).”). Thus, our Supreme Court has held that a statement could be admissible as a present sense impression where the declarant went to notify the policeimmediately after witnessing a crime and an officer, to whom the declarant immediately gave a statement, was on the scene in ten minutes. Id.
    An “excited utterance” is “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” N.C. Gen. Stat. § 8C-1, Rule 803(2). “The reason for allowing this exception is that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces 'spontaneous and sincere' utterances. 'The trustworthiness of this type of utterance lies in its spontaneity . . . .'” State v. Reid, 335 N.C. 647, 662, 440 S.E.2d 776, 784 (1994) (citations omitted). For a statement to qualify as an excited utterance, “there must be (1) a sufficiently startling experience suspending reflective thought and (2) a spontaneous reaction, not one resulting from reflection or fabrication.” State v. Smith, 315 N.C. 76, 86, 337 S.E.2d 833, 841 (1985). Whether the statement qualifies will depend upon the facts and circumstances surrounding the particular statement. See, e.g., State v. Guice, 141 N.C. App. 177, 201, 541 S.E.2d 474, 489 (2000) (“Based on the circumstances surrounding the statement, we find no error in the trial court's determination that this oral statement was an excited utterance, and its admission . . . was not improper.”), appeal dismissed, disc. review denied in part and allowed in part, 353 N.C. 731, 551 S.E.2d 112-13 (2001).    In the instant case, Hussain was robbed at approximately 9:35 a.m. on 24 February 2003. Officer Friedrick arrived at the crime scene “[l]ess than five minutes” after the robbery.” After arriving, the officer spoke with Hussain, Green, Holloway, and another person who was an employee of the bank. Officer Friedrick interviewed Green and Holloway in the bank parking lot, and according to the officer, they were excited at the time of the interview. After he finished talking to Hussain, Green, Holloway, and the bank employee, Officer Friedrick began typing a report based on these interviews. According to the report, Green and Holloway stated that the person who robbed Hussain was of Middle Eastern descent. Defendant sought to have Officer Friedrick testify that Green and Holloway had stated that the robber was of Middle Eastern descent and sought to have the report containing these statements admitted. On cross-examination by defendant during the State's case-in-chief, Officer Friedrick testified, without objection, that it was his recollection that “[t]he witnesses described the robber as of [M]iddle [E]astern descent and the driver of the van as a black male.” Thereafter, the trial court sustained objections by the prosecution and excluded testimony by Officer Friedrick concerning the witness descriptions as well as the report that contained the descriptions.
    Given the facts and circumstances of the instant case, we are unpersuaded that the trial court erred by excluding this evidence. Our review of the transcript reveals that defendant did little to demonstrate that only a slight lapse had occurred between the timethat Green and Holloway saw the robber and the time that they gave their descriptions to Officer Friedrick. Merely asking the officer for a chronological recitation of his investigation may have provided this information. Moreover, defendant merely asked Officer Friedrick if Green and Holloway were excited and why they were excited. Defendant did not attempt to have the officer testify further as to what made him conclude that the witnesses were excited and did not ask for details concerning how the witnesses were behaving. Thus, defendant did not demonstrate that the proffered hearsay statements were spontaneous in character or the product of excitement. As such, the trial court did not err by precluding Officer Friedrick from repeating these statements or by excluding his report, which referenced them.
    Further, even assuming arguendo that the trial court did err by excluding the hearsay evidence, defendant cannot show that the error prejudiced him because Officer Friedrick was permitted, at one point, to testify that “[t]he witnesses described the robber as of [M]iddle [E]astern descent and the driver of the van as a black male.” See N.C. Gen. Stat. § 15A-1443(a) (2003) (“A defendant is prejudiced by [non-constitutional] errors . . . when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. The burden of showing such prejudice . . . is upon the defendant.”).

B
. Defendant's Constitutional Argument
    Defendant argues for the first time on appeal that the exclusion of the statements made by Green and Holloway amounted to a denial of his constitutional rights as set forth in Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297 (1973). “[C]onstitutional error will not be considered for the first time on appeal.” State v. Chapman, 359 N.C. 328, 366, 611 S.E.2d 794, 822 (2005). Because defendant did not raise his constitutional argument at trial, he has failed to preserve it for appellate review, and it is waived. See id; N.C. R. App. P. 10(b)(1) (2005) (“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 . . . .”).
    The corresponding assignments of error are overruled.
II.
    Defendant next argues that the trial court erred by refusing his request to reopen his case to present live testimony from one of the eyewitnesses to the robbery, Jurea Holloway. Specifically, defendant contends that the denial of his motion to present additional evidence deprived him of the right to confront his accusers by presenting his own evidence in violation of N.C. Const. art. I, § 23 and U.S. Const. amend. VI. We disagree.
    “The [trial] judge in his discretion may permit any party to introduce additional evidence at any time prior to verdict.” N.C. Gen. Stat. § 15A-1226(b) (2003). This decision is consigned to thediscretion of the trial court and will not be disturbed absent an abuse of discretion. State v. Jackson, 306 N.C. 642, 652-53, 295 S.E.2d 383, 389 (1982). Further, this Court has held the denial of a motion to present additional evidence does not deny a criminal defendant his constitutional rights where “[a defendant is] given ample opportunity to present evidence in his defense[,] [and]. . . [t]he record reveals that [the witness sought to be called] was available and could have been called by [defendant] at any time before [defendant] rested.” State v. Shelton, 53 N.C. App. 632, 648, 281 S.E.2d 684, 695 (1981), appeal dismissed, disc. review denied, 305 N.C. 306, 290 S.E.2d 707 (1982).
    In the instant case, the trial court specifically told the defense prior to the close of defendant's evidence that the court was “wide open to . . . bringing in people to testify if [defendant] want[ed] to bring them in.” Nevertheless, defendant did not attempt to procure Holloway's testimony before the close of his evidence, and instead later sought to reopen his case to call Holloway. On these facts, we hold that defendant waived any constitutional right to call Holloway as a witness by failing to procure her testimony prior to the close of his evidence, and we discern no abuse of discretion in the trial court's denial of defendant's motion to reopen his case.
    This assignment of error is overruled.
III.
    Defendant next argues that the trial court erred by “refusing to exercise its discretion” in response to a jury request for atranscript of Hussain's testimony. We are not persuaded.
    After deliberating for approximately twenty-five minutes, the jury sent a note to the trial court requesting “testimony[/] transcript victim.” Once the jury was summoned to the courtroom, the foreperson confirmed that the jury had some questions with regard to Hussain's testimony. The trial court instructed the jury as follows:
    [A]s to the request for a transcript of the testimony of Mr. Hussain, or as to anyone else, let me just get this out front now. Those requests . . . [are] totally in the discretion of the trial judge. So I don't want you to put my response on either one of these fine lawyers. This is my decision. It's been my practice for nine years being on the Bench not to do that. There are a lot of reasons for it and I don't need to go into a long explanation of it, but just the simplest one is that, if I ever granted that for any witness in any case, I'd have to grant it for every witness that the jury requested, I'd have to give a whole transcript of the trial before the trial was over if the jury wanted it. So by saying no it keeps me out of that quandary.

        You have twelve collective memories, and I'm sure they're all quite good when they're pooled. So you do the best you can when you remember the testimony. That's your duty and responsibility, and I'm sure when you go back and attempt to recall it, you'll be able to work it out.

    “If the jury after retiring for deliberation requests a review of certain testimony or other evidence . . . [,] [t]he judge in his discretion . . . may direct that requested parts of the testimony be read to the jury and may permit the jury to reexamine in open
court the requested materials admitted into evidence.” N.C. Gen. Stat. § 15A-1233(a) (2003). The trial court has a duty to actually exercise its discretion in determining whether to permit requested evidence to be read to the jury. State v. Ashe, 314 N.C. 28, 34,331 S.E.2d 652, 656 (1985). In analyzing whether the trial court exercised its discretion in refusing to allow the requested evidence to be read to the jury, we do not review any statement of the trial court in isolation; rather, the ruling must be reviewed in context. See, e.g., State v. White, 163 N.C. App. 765, 770-71, 594 S.E.2d 450, 453 (reviewing the transcript and the record in concluding the trial court exercised its discretion in denying the jury's request to review a transcript of a witness' testimony even where the trial court stated it could not grant the request), disc. review denied, 358 N.C. 738, 602 S.E.2d 681 (2004). “When the trial court states for the record that, in its discretion, it is allowing or denying a jury's request to review testimony, it is presumed that the trial court did so in accordance with [N.C. Gen. Stat]. § 15A-1233.” State v. Weddington, 329 N.C. 202, 208, 404 S.E.2d 671, 675 (1991). Further, our Supreme Court has held that a post-request instruction from the trial court specifying the jury's duty to remember all evidence indicates the trial court exercised its discretion. State v. Harden, 344 N.C. 542, 563, 476 S.E.2d 658, 669 (1996), cert. denied, 520 U.S. 1147, 137 L. Ed. 2d 483 (1997).
    In the instant case, the trial court's ruling permits an inference that he saw no reason to deviate from his practice of not granting jury requests for transcripts. Furthermore, the trial court specifically mentioned that the decision was in his discretion, and reinstructed the jury concerning its duty to remember all of the evidence. Therefore, the record reveals thatthe trial court properly exercised its discretion in denying the jury's request for a transcript of Hussain's testimony.
    This assignment of error is overruled.
Defendant's Arguments Concerning
Alleged Sentencing Error

IV.    
    With respect to his sentence, defendant contends that the trial court unconstitutionally determined that he was a prior record level IV for sentencing purposes. The trial court found that defendant committed the common law robbery for which he was convicted while he was on probation, parole, or post-release supervision. Pursuant to this finding, defendant received one prior record level point, which elevated his prior record level for sentencing purposes from III to IV. Defendant asserts that he is entitled to a new sentencing hearing because his indictment did not allege that he was on probation, parole, or post-release supervision at the time he committed the robbery. This contention lacks merit.
    Recently, this Court held that a defendant's constitutional right to a trial by jury may be violated if his prior record level is increased by a judicial finding that he committed the offense for which he is being sentenced while on probation, parole, or post-release supervision. State v. Wissink, COA04-1081, slip op. at 12, __ N.C. __, __, __ S.E.2d __, __ (filed 16 August 2005). Though we might decide this issue differently if it were before us for the first time, we note that defendant has not alleged that the finding that he was on probation, parole, or post-release supervision was unconstitutional. Rather, defendant has merely argued that the fact that he was on parole, probation, or post- release supervision had to be charged in an indictment. In Wissink, this Court also held that “it was not necessary for the fact that defendant committed the offense while on probation[,] [parole, or post-release supervision] to have been alleged in an indictment. ” Id., slip op. at 11, __ N.C. App. at __, __ S.E.2d at __; accord State v. Speight, 359 N.C. 602, 607, __ S.E.2d __, __ (2005) (“[A]ggravating factors need not be alleged in an indictment.”).
    This assignment or error is overruled.
V.
    Defendant also contends that he was unconstitutionally sentenced to a term in the aggravated range based on a judicial finding that an aggravating factor existed and warranted enhanced punishment. Specifically, the trial court found by a preponderance of the evidence that “the offense involved . . . an attempted taking of property of great monetary value,” and based on this finding, imposed a sentence in the aggravated range. Defendant contends that his sentence could not be aggravated in the absence of a jury finding beyond a reasonable doubt that the alleged aggravating factor existed. We agree and remand for defendant to be sentenced in accordance with the principles set forth in Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, reh'g denied, __ U.S.__, 159 L. Ed. 2d 851 (2004), and State v. Allen, 359 N.C. 425, 449, 615 S.E.2d 256, __ (2005).
    No error in trial; affirmed with respect to prior record level determination; remanded for resentencing.
    Judges TYSON and BRYANT concur.
    Report per Rule 30(e).

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