STATE OF NORTH CAROLINA
v. Buncombe County
Nos. 01 CRS 52648
CLEVELAND WESLEY HELLER 02 CRS 7051-7057
04 CRS 02120, 2122
Attorney General Roy Cooper, by Assistant Attorney General
Neil Dalton, for the State.
David Childers for defendant.
LEVINSON, Judge.
Cleveland Wesley Heller (defendant) was convicted of attempted
second-degree rape, false imprisonment, possession of cocaine, and
two counts of common law robbery. Defendant was sentenced
consistent with his admitted status as an habitual felon.
Defendant appeals.
At trial, the State adduced evidence tending to show the
following: Defendant abducted complainant on Starnes Avenue in
Asheville, North Carolina at 10:30 p.m. on 25 February 2001. After
forcing complainant into her car, defendant covered her mouth with
his hand and threatened to cut her with a “sharp and cold” object
held to her neck. Defendant drove complainant around Asheville for
two hours before heading eastward on Interstate 40. Defendant leftthe highway and drove to the end of a dirt road, where he parked
the car in a field, produced a bag of crack cocaine and smoked it
through a glass crack pipe. After smoking the cocaine, defendant
ordered complainant to remove her clothes and started touching her
on the leg and knee. Complainant knocked defendant's hand away and
attempted to fight him off as he ripped her clothing. Defendant
grabbed her by the hair and punched her in the head and face until
she began to lose consciousness. Fearing for her life, complainant
agreed to stop resisting. After placing a condom on his penis,
defendant instructed complainant to get on top of him and had
vaginal intercourse with her. When he had finished, he “told
[complainant] that if [she] hadn't fought him that [she] wouldn't
have got beat up, and that the next time a guy wanted to rape [her,
she] should just tell him [she] had AIDS because nobody would want
to do anything then.”
Defendant drove to Statesville where he stopped in an
abandoned shopping mall and instructed complainant to remove $150
from her bank account at an automated teller machine (“ATM”) on
West Front Street. He then picked up a female passenger, Belinda,
and purchased crack cocaine at a house. Defendant and Belinda
smoked some of the cocaine in a building behind a school before
deciding to get a hotel room. The group remained at the hotel
until morning, leaving the room once so that defendant could
purchase additional drugs. On this occasion, defendant returned
complainant to the ATM machine to withdraw money from her account,
which he then used to buy crack cocaine and marijuana. Upon their return to Asheville the next morning, defendant and
Belinda bought a small amount of crack cocaine, which they divided
between them. Defendant then told complainant to stop the car at
his friend's house, where he took her into a shed and asked her
what she intended to do. After complainant assured defendant that
she “was going to go home . . . and not make a big deal of this,”
he allowed her to leave. Complainant drove to an apartment where
her friend, Angela Connor, lived and told her what had happened.
While Connor's boyfriend drove Belinda to the bus station, Connor
accompanied complainant to the police station. Asheville Police
Officer Dawn Dowdle spoke briefly to complainant at the station
before sending her to the hospital.
While waiting in the hospital's triage area, complainant saw
defendant standing outside and identified him to Detective Dowdle
as her assailant. Hospital security approached defendant and
advised him that he could not come inside. Defendant took a
security knife from a construction worker in order to cut a tag
from his sweatshirt. After removing the tag, he cut his wrist with
the knife. At Dowdle's direction, defendant gave the knife back to
the construction worker and was taken into custody. When advised
by Dowdle that he was being detained as a suspect in a rape case,
he replied, “[w]here's the black girl. She'll tell you I didn't
rape anyone.”
Defendant gave a detailed statement to Asheville Police
Officer Scott Lunsford on the afternoon of 26 February 2001,
claiming that he met complainant on the previous evening while hewas selling drugs on Starnes Avenue. After asking him for drugs,
complainant drove defendant to another location where they smoked
crack cocaine. When they had finished, she told defendant that she
wanted more cocaine and agreed to drive him to Statesville, where
he had “contacts[.]” When they reached Statesville, complainant
picked up defendant's friend, Belinda Bailey, and made several ATM
withdrawals to pay for their drugs. They rented a hotel room and
smoked crack cocaine and marijuana until morning, before returning
to Asheville. Defendant denied striking complainant, explaining
that she had the injuries to her face when he met her. He further
claimed that he and complainant attempted to have consensual
intercourse in her car, but he had been unable to obtain an
erection after smoking cocaine.
Asheville Police Officer Yvonne Johnson processed
complainant's car on the afternoon of 26 February 2001, recovering
a broken glass crack pipe from the front passenger floorboard and
a pair of underwear from the rear floorboard behind the driver's
seat. At trial, complainant identified the broken glass crack pipe
found in her car as “the pipe [defendant] originally had when he
first pushed [sic] into the car, and it's the one they used part of
the night for smoking.” An SBI lab report noted the presence of
cocaine base residue on the pipe.
Defendant did not testify. The trial court denied his motion
to dismiss at the conclusion of the evidence, as well as his motion
to set aside the jury verdict.
On appeal, defendant first claims the trial court erred inrefusing to admit evidence of a prior allegation of rape made by
complainant in 1997. The transcript reflects that defendant raised
the issue of the 1997 incident during a recess in the middle of
complainant's direct examination. The trial court held a voir dire
hearing on the matter. After defense counsel questioned
complainant briefly about the circumstances of the 1997 incident,
characterized by complainant as an act of “date rape[,]” the court
announced as follows:
For the time being I'm not going to allow you
to ask those questions. I may change my mind
about it. It's a close question, and if I
continue to think it's a close question, real
close, I think the benefit of the doubt goes
to the defendant and I'll probably let you ask
it.
The court then allowed the prosecutor to question complainant
further to “explain the circumstances” of the 1997 case.
Complainant testified that she intended to have sex with a male
acquaintance at a friend's house but ultimately “told him we
couldn't” because he did not have “any protection.” The
acquaintance then overpowered complainant and had forcible
intercourse with her. At the conclusion of the State's proffer,
the court engaged in the following exchange with defense counsel:
COURT: Why is this probative?
[DEFENSE COUNSEL]: Because in the cross-
examination the condom is going to be an issue
in this case. She says that in [the prior]
case she made an allegation of rape, and the
reason she didn't have sex was because he
didn't have a condom. In this case a condom
is the focal point of this case. I think the
evidence will show that she didn't say it in
her direct testimony.
COURT: She did not.
[DEFENSE COUNSEL]: But in cross it's going
to come out that she said [defendant] used a
condom, and officers looked for it and
couldn't find it.
. . . .
COURT: Again, I may change my mind about this
because I want to think about it, but for now,
the Court finds that the evidence is more
prejudicial to the State than it is probative
to the case, and therefore, is not going to
let you ask that.
Following the voir dire proceeding, the prosecutor continued
his direct examination of complainant. Thereafter, despite the
repeated statements by the trial judge emphasizing that his ruling
on voir dire was preliminary and subject to change, defense counsel
did not attempt to cross-examine complainant about the 1997
incident.
Defendant argued at trial, and now argues on appeal, that the
evidence of the 1997 incident, in which complainant withheld
consent to sex activity with a male acquaintance due to the absence
of contraception, was admissible to show her consent to sexual
activity with defendant, inasmuch as she claimed that defendant had
used a condom during their encounter. We conclude the issue is not
properly before this Court.
“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. It is also necessary for the complaining party toobtain a ruling upon the party's request, objection or motion.”
N.C.R. App. P. 10(b)(1). Where the party seeks to introduce
evidence, it must obtain a “definitive ruling” from the court that
the evidence is inadmissible in order to challenge its exclusion on
appeal. N.C.R. Evid. 103(a)(2).
Here, defendant was on notice that the trial court's ruling on
voir dire was provisional and subject to change upon further
consideration by the judge. Having made no attempt to question
complainant regarding the 1997 rape, or to obtain a definitive
ruling on its admissibility from the trial court, defendant cannot
show error below and has not preserved the issue for review on
appeal. See Condellone v. Condellone, 129 N.C. App. 675, 681, 501
S.E.2d 690, 695 (1998). Inasmuch as defendant has neither assigned
nor argued plain error on appeal, his assignment of error is
overruled. See State v. Wilson, 340 N.C. 720, 734-35, 459 S.E.2d
192, 200-01 (1995) (citing State v. Hamilton, 338 N.C. 193, 208,
449 S.E.2d 402, 411 (1994); N.C.R. App. P. 10(c)(4)).
Defendant also assigns error to the trial court's denial of
his motion to dismiss the charge of possession of cocaine, as well
as his motion to set aside the jury's guilty verdict on this count,
absent sufficient evidence linking him to the glass crack pipe
found in complainant's car, or to the cocaine residue found on the
pipe. “The standard of review of a trial court's denial of a
motion to set aside a verdict for lack of substantial evidence is
the same as reviewing its denial of a motion to dismiss, i.e.,
whether there is substantial evidence of each essential element ofthe crime.” State v. Duncan, 136 N.C. App. 515, 520, 524 S.E.2d
808, 811 (2000) (citing State v. Young, 120 N.C. App. 456, 462
S.E.2d 683 (1995)).
During complainant's testimony, she identified the broken
glass crack pipe found in her car as “the pipe [defendant]
originally had when he first pushed [sic] into the car, and it's
the one they used part of the night for smoking.” She stated
defendant possessed and smoked multiple quantities of what appeared
to be crack cocaine during their time together. Officer Lunsford
noted a “strong odor” of crack cocaine on defendant's person while
transporting him from the hospital to the police station on 26
February 2001. Defendant acknowledged to Lunsford that he
purchased and smoked crack cocaine while with complainant.
Finally, the SBI lab confirmed that the residue on defendant's
glass crack pipe was cocaine base. Such evidence is sufficient to
show defendant's actual possession of crack cocaine on the morning
of 26 February 2001, as found on the pipe. See State v. Williams,
149 N.C. App. 795, 798-99, 561 S.E.2d 925, 927 (2002) (noting that
“a residue quantity of a controlled substance. . . is sufficient to
convict a defendant of possession”) (citing State v. Thomas, 20
N.C. App. 255, 201 S.E.2d 201 (1973)).
The record on appeal contains additional assignments of error
not addressed by defendant in his brief to this Court. Pursuant to
N.C.R. App. P. 28(b)(6), we deem them abandoned.
No error.
Judges McGEE and HUDSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***