An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1551
                                          &nb sp; 

Filed: 2 August 2005


         v.                        Buncombe County
                                Nos.    01 CRS 52648
CLEVELAND WESLEY HELLER                    02 CRS 7051-7057
                                    04 CRS 02120, 2122

    Appeal by defendant from judgments entered 21 April 2004 by Judge Dennis J. Winner in Buncombe County Superior Court. Heard in the Court of Appeals 25 July 2005.

    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).

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