An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-1609


Filed: 4 October 2005


     v .                          Union County
                                 Nos. 02 CRS 55688    
RAYMOND TYRONE BOULWARE                     03 CRS 50328, 3226

    Appeal by defendant from judgment entered 1 July 2004 by Judge Erwin Spainhour in Union County Superior Court. Heard in the Court of Appeals 24 August 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Douglas W. Corkhill, for the State.

    Thorsen Law Offices, by Haakon Thorsen, for defendant appellant.

    MCCULLOUGH, Judge.

     Defendant appeals from a guilty jury verdict of misdemeanor breaking and entering and felonious larceny. After entering Alford pleas of guilty as to obtaining property by false pretenses and habitual felon status, the trial judge consolidated the charges and imposed a sentence of imprisonment for a minimum of 141 months and a maximum of 179 months. We find no error.

    On 3 February 2003, the Union County grand jury indicted defendant for one count of felonious breaking and entering and one count of felonious larceny. Then on 31 March 2003 he was indicted for habitual felon status. The State presented evidence atdefendant's trial tending to show the following: on 24 October 2002 Officers Craig Bradshaw, Donny Dixon and Mitchell Preslar and his bloodhound, Chipper, responded to a burglar alarm at the Buck Saver Food Mart. Upon arrival Officer Bradshaw noticed a hole in the glass front door, large enough for a person to crawl through, and a tan brick inside the broken door. The owner of the store, Mr. Sheth, was called and Officer Bradshaw entered upon his arrival.
    The evidence at trial showed that the owner of the store had installed two surveillance video cameras in the store in 1998. One of the video cameras taped the cash register and the other taped the back of the store. The camera was recording on the night of 24 October 2004 and upon arrival Officer Bradshaw and the store owner watched the videotape.
    Officer Bradshaw testified that in viewing the tape, he observed the defendant enter the store wearing a white t-shirt at 11:44 p.m., on 23 October 2002, and take some cigarettes and beer or soda. He then observed defendant return a second time at 12:49 a.m., on 24 October 2002, wearing a gray sweatshirt and returning to the cooler in the back of the store and taking something out. The tape from the surveillance video camera was shown to the jury. At trial, Officer Bradshaw identified defendant as the person he saw on the tape entering the store twice.
    Officer Preslar testified at trial that he and his trained bloodhound, Chipper, were called to the Buck Saver on 24 October 2002. After Officer Bradshaw viewed the surveillance tape, Chipper was given the tan brick to smell and given the command to begin thetrack. The track ended with Chipper jumping up on defendant's chest, which is the way the bloodhound indicates that he has found the person he is tracking.
    Officer Dixon testified at trial that while Officer Bradshaw watched the tape of the inside of the store, he was patrolling the area on 24 October 2002. Officer Dixon was notified by Officer Bradshaw to look for a black male wearing a gray shirt with writing on it and blue jeans. When Officer Dixon observed Chipper make the track on defendant, defendant was wearing a dark-colored knit shirt. Officer Dixon testified that he then began to talk to people in the area to determine if anyone had seen defendant change clothes. Officer Dixon talked to Kenny Sasser who told the officer that Sasser and defendant had changed clothes in an abandoned house and that if Officer Dixon went inside the house he would find what he was looking for. The statement of Kenny Sasser was admitted at trial over objection by defendant. The statement was offered with a limiting instruction that it was not to be considered for the truth of the matter asserted, but only to explain the actions of the officer after he had the discussion with Sasser. Defendant objected on the grounds of hearsay and conducted a voir dire out of the presence of the jury.
    Officer Bradshaw also testified at trial that when defendant was found, he was found with Budweiser beer. He was asked whether he could identify the Budweiser as beer from the Buck Saver and he stated that he could not. However, Officer Bradshaw testified that the store owner, Mr. Sheth, advised him that defendant was seen onthe tape in the Budweiser section of the store. Defendant objected to the statement of the store owner on hearsay grounds but the objection was overruled.
    Defendant did not present any evidence at trial. A motion to dismiss was brought by defendant at the close of all the evidence and all prior objections were renewed. The jury returned a verdict of guilty on one count of misdemeanor breaking and entering and one count of felonious larceny. After a guilty verdict was entered defendant entered Alford pleas as to habitual felon status and obtaining property by false pretenses. The sentences were consolidated for judgment and defendant was sentenced to imprisonment of a minimum of 141 months and a maximum of 179 months.
Defendant now appeals.
    In the first argument on appeal, defendant contends that the admission of the out-of-court statements of Kenny Sasser and Mr. Sheth violated his rights under the Confrontation Clause of the Sixth Amendment of the United States Constitution as well as Article I, Section 23 of the North Carolina Constitution. We disagree.
    Defendant argues for the first time on appeal that the admission of the statements made by Sasser and Sheth amounted to a denial of his constitutional rights as set forth in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004). “[C]onstitutional error will not be considered for the first timeon 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) (“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[.]”).
    Assuming arguendo that defendant had raised the objection at trial, the statement of Sasser is not hearsay and would not violate defendant's rights under the Confrontation Clause. Hearsay is defined by statute as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted[,]” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2003), and is “not admissible” except as provided either by statute or by the North Carolina Rules of Evidence. N.C. Gen. Stat. § 8C-1, Rule 802 (2003). However, “out-of-court statements offered for purposes other than to prove the truth of the matter asserted are not considered hearsay.” State v. Golphin, 352 N.C. 364, 440, 533 S.E.2d 168, 219 (2000), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001).
    Although the testimony provided by Officer Dixon involved the out-of-court statements of witnesses not present at trial, we find that these statements were not offered for the truth of the matter asserted. Rather, Officer Dixon's testimony was offered to explain his subsequent actions in conducting his investigation.Accordingly, we hold that the testimony did not amount to hearsay as defined by N.C. Gen. Stat. § 8C-1, Rule 801. See State v. Moore, 162 N.C. App. 268, 592 S.E.2d 562 (2004) (holding that out-of-court statements can be admitted as testimony when used to explain the subsequent actions of a law enforcement official). Likewise, as this testimony was not hearsay, its admission did not violate either the federal or state constitutions. See U.S. Const. Amend. VI; Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004) (holding the Confrontation Clause of the United States Constitution does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted). See also N.C. Const. Art. I, § 23 (2003). Therefore these assignments of error are overruled.

    In the second argument on appeal, defendant contends that the trial court erred in denying defendant's motion to dismiss for lack of sufficient evidence to identify defendant as the perpetrator of the crime. We disagree.
    “In ruling on a motion to dismiss for insufficient evidence, the trial court must consider the evidence in the light most favorable to the state, which is entitled to every reasonable inference which can be drawn from the evidence.” State v. McNicholas, 322 N.C. 548, 556-57, 369 S.E.2d 569, 574 (1988). “There must, however, be substantial evidence of each essential element of the offense charged, together with evidence that defendant was the perpetrator of the offense.” Id. “Substantialevidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992). “'Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence.'” State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455 (citation omitted), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). If the evidence presented is circumstantial, the Court must consider whether a reasonable inference of defendant's guilt may be drawn from the circumstances. Id. Once the court decides that a reasonable inference of defendant's guilt may be drawn from the circumstances, then “'it is for the jury to decide whether the facts, taken singly or in combination, satisfy [it] beyond a reasonable doubt that the defendant is actually guilty.'” Id.
    In the instant case, there was sufficient evidence to draw a reasonable inference of defendant's guilt from the circumstances. The evidence showed that defendant was identified at trial as the person on the store surveillance video tape by Officer Bradshaw. There was also evidence of a bloodhound track which ended with the dog indicating that defendant was the person he was tracking. Moreover, defendant was found with Budweiser beer only a few blocks from the convenience store which was robbed. The surveillance video that was shown to the jury tended to show that the person who entered the store took something from the case where the Budweiser was kept. These facts taken together would allow a reasonableinference of guilt to be drawn from the circumstances. This assignment of error is overruled.

    Next, defendant contends that the trial court committed plain error in imposing a sentence of 179 months. We find defendant's claim lacks merit.
    Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure provides, in pertinent part, that “in order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion . . . .” N.C. R. App. P. 10(b)(1)(2004). Under the plain error rule, errors or defects affecting substantial rights may be addressed even though they were not brought to the attention of the trial court. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). The North Carolina Supreme Court has only applied the plain error rule to instructional errors or errors involving the admissibility of evidence. State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109 (1998), cert. denied, 526 U.S. 1147, 143 L. Ed. 2d 1036 (1999), cert. denied, 353 N.C. 382, 547 S.E.2d 443 (2001).
    In the present case, defendant failed to object during trial. Furthermore, since this does not involve an instructional error or an evidentiary matter, defendant is not entitled to plain error review. We overrule this assignment of error.
     Accordingly, we find no error.
    In addition, we have carefully reviewed the remaining assignments of error that defendant has brought forward in hisbrief and have found them to be without merit. They are, therefore, overruled.
    No error.
    Judges McGEE and JACKSON concur.
    Report per Rule 30(e).

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