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.
II
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.
III
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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