An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-87

NORTH CAROLINA COURT OF APPEALS

Filed: 18 October 2005

STATE OF NORTH CAROLINA

v .                         Franklin County
                            Nos. 04 CRS 003461
ROGER WAYNE FRANKLIN                04 CRS 050105

    Appeal by defendant from judgment entered 6 October 2004 by Judge Stafford G. Bullock in Franklin County Superior Court. Heard in the Court of Appeals 21 September 2005.

    Attorney General Roy Cooper, by Director, Victims and Citizens Services Section William M. Polk, for the State.

    James M. Bell, for defendant-appellant.

    TYSON, Judge.

    Roger Wayne Franklin (“defendant”) appeals from judgment entered after a jury found him to be guilty of assault inflicting serious bodily injury in violation of N.C. Gen. Stat. § 14-32.4 and attaining the status of being an habitual felon. We find no error.

    I. Background
    On 11 January 2004, two volunteers with the Youngsville Rescue Squad (“EMTs”) responded to a call to 45 Buckridge Road, Louisburg, North Carolina. They found Alice Mingia (“Ms. Mingia”), defendant's mother, sitting in a chair, bleeding from her mouth. Ms. Mingia told the EMTs that defendant had hit her. Defendant remained at the residence. One EMT requested assistance from the Franklin County Sheriff's Office.    Franklin County Deputy Sheriff Ernest Smith, Jr. (“Deputy Smith”) arrived and arrested defendant for assaulting his mother. The EMTs took Ms. Mingia to the emergency room where she was diagnosed with a fractured jaw and compression fractures in her lower back. Ms. Mingia told two nurses that defendant had assaulted her.
    At trial, the jury heard testimony from Deputy Smith, the EMTs, and two nurses concerning how Ms. Mingia sustained her injuries. Defendant, acting pro se with standby counsel, called Ms. Mingia to the stand. Ms. Mingia testified she did not remember how she was injured on 11 January 2004. Defendant was found guilty and sentenced to an active sentence of ninety-three to 121 months as an habitual felon. Defendant appeals.
II. Issues
    Defendant argues the trial court erred by: (1) failing to dismiss the charges against him due to a lack of sufficient evidence upon which a jury could find guilt beyond a reasonable doubt; (2) admitting hearsay statements Ms. Mingia made over his objection; (3) allowing a non-physician witness to testify beyond her medical expertise; and (4) admitting and publishing to the jury four State exhibits without a proper foundation.
    III. Sufficiency of Evidence
    Defendant argues the charges against him should have been dismissed due to a lack of sufficient evidence upon which a jury could find guilt beyond a reasonable doubt. We disagree.    Our Supreme Court has stated, “[u]pon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.” State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980) (citing State v. Roseman, 279 N.C. 573, 184 S.E.2d 289 (1971); State v. Mason, 279 N.C. 435, 183 S.E.2d 661 (1971)). However, N.C.R. App. P. 10(b)(3) (2004) provides “a defendant in a criminal case may not assign as error the insufficiency of the evidence to prove the crime charged unless he moves to dismiss the action, or for judgment as in the case of nonsuit, at trial.”
    Defendant neither moved to dismiss for insufficiency of the evidence at the close of the State's evidence, nor did he move to dismiss at the close of all the evidence. Defendant waived his right to assign error to the State's failure to dismiss the charges against him due to insufficiency of the evidence . This assignment of error is dismissed.
IV. Hearsay Statements
    Defendant argues the trial court erred when it admitted alleged hearsay statements of Ms. Mingia over his objection. We disagree.
    The State presented evidence of Deputy Smith, the EMTs, and two nurses. All testified Ms. Mingia told them defendant had struck her. After the State asked Deputy Smith to testify to thestatement Ms. Mingia made to him, defendant objected. The trial court sustained the objection and allowed Deputy Smith to testify for “purposes of corroboration.” The two EMTs and the two nurses each testified that Ms. Mingia told them defendant had hit her. The State did not call Ms. Mingia to testify. Defendant argues Deputy Smith's testimony was improperly admitted because it failed to corroborate trial testimony.
    Our Supreme Court has stated, “It is always a question for the jury to determine whether or not the testimony of one witness does corroborate the testimony of another witness.” Lassiter v. Seaboard A.L.R. Co., 171 N.C. 283 (1916). Deputy Smith's testimony corroborated the EMTs' and the two nurses' trial testimonies regarding the statements Ms. Mingia made to him about her injuries.
    Defendant failed to object to the subsequent testimonies by the EMTs and the two nurses and has not assigned or argued plain error. State v. Truesdale, 340 N.C. 229, 233, 456 S.E.2d 299, 301 (1995) (“Defendant has failed specifically and distinctly to contend that the trial court's instruction on first-degree and second-degree murder constituted plain error. Accordingly, he has waived his right to appellate review of this issue.” (citation omitted)). Defendant argues he made a “line objection” to the testimonies given by all of the State's witnesses regarding Ms. Mingia's statements, which preserves his assignment of error for appellate review.
    N.C. Gen. Stat. § 1A-1, Rule 46(a)(1) (2003) states, “ when there is objection to the admission of evidence involving aspecified line of questioning, it shall be deemed that a like objection has been taken to any subsequent admission of evidence involving the same line of questioning.” This Rule of Civil Procedure operates “ to preserve the continued effect of a specific objection, once made, to a particular line of questioning.” Power Co. v. Winebarger, 300 N.C. 57, 68, 265 S.E.2d 227, 233 (1980). No Rule of Criminal Procedure corresponds to N.C. Gen. Stat. § 1A-1, Rule 46(a)(1) .
    Under the Rules of Criminal Procedure, to preserve error to be reviewed on appeal regarding the admissibility of the hearsay statements, defendant would have to object during testimony of each of the five witnesses.
        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 to obtain a ruling upon the party's request, objection or motion. Any such question which was properly preserved for review by action of counsel taken during the course of proceedings in the trial tribunal by objection noted or which by rule or law was deemed preserved or taken without any such action, may be made the basis of an assignment of error in the record on appeal.

N.C.R. App. P. 10(b)(1) (2004).
    Because defendant failed to object to the statements made by the EMTs and the nurses, and failed to assign or argue plain error, he has waived his right to appellate review of these issues. “In criminal cases . . . where the judicial action questioned is specifically and distinctly contended to amount to plain error,” itmay be made the basis of an assignment of error. Truesdale, 340 N.C. at 232, 456 S.E.2d at 301.
    This Court has repeatedly stated, “It is our opinion that a defendant who elects to appear [pro se] cannot expect the trial judge to relinquish his role as impartial arbiter in exchange for the dual capacity of judge and guardian angel of defendant.” State v. Lashley, 21 N.C. App. 83, 85, 203 S.E.2d 71, 72 (1974) (citing State v. McDougald, 18 N.C. App. 407, 197 S.E.2d 11, cert. denied, 283 N.C. 756, 198 S.E.2d 726 (1973)). This assignment of error is dismissed.
V. Expert Testimony
    Defendant argues the trial court erred when it allowed a non- physician witness to testify beyond her medical expertise. We disagree.
    The trial court has wide discretion in allowing an expert to testify. State v. White, 340 N.C. 264, 457 S.E.2d 841, cert. denied, 516 U.S. 994, 133 L. Ed. 2d 436 (1995). Rule 702 of the North Carolina Rules of Evidence states, “If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion.” N.C. Gen. Stat. § 8C-1, Rule 702(a) (2003); Howerton v. Arai Helmet, LTD., 358 N.C. 440, 448, 597 S.E.2d 674, 686 (2004) (“a trial court's ruling on the qualifications of an expert or the admissibility of an expert's opinion will not be reversed on appealabsent a showing of abuse of discretion.” (citing State v. Anderson, 322 N.C. 22, 28, 366 S.E.2d 459, 463, cert. denied, 488 U.S. 975, 102 L. Ed. 2d 548 (1988))).
    Our Supreme Court has stated, “[n]urses are qualified to render expert opinions as to the cause of a physical injury even though they are not licensed to diagnose illnesses or prescribe treatment, and there is no basis for any preference of licensed physicians for such medical testimony.” White, 340 N.C. at 293, 457 S.E.2d at 858 (citing Maloney v. Wake Hospital Systems, Inc., 45 N.C. App. 172, 178-79, 262 S.E.2d 680, 684, disc. rev. denied, 300 N.C. 375, 267 S.E.2d 676 (1980)).
    The State called one of Ms. Mingia's nurses following the assault, Leanne Ball (“Nurse Ball”), to testify as an expert witness. Defendant objected to her being qualified and permitted to testify as an expert. Nurse Ball testified she was a registered nurse and had received an Associate Degree in Nursing Applied Science in 1991. When asked to give a description of Ms. Mingia's injuries, she explained the extent of the injuries and classified the injuries as “significant” and “serious.” As a registered nurse, Nurse Ball's expert opinion regarding the severity of Ms. Mingia's injuries assisted the trier of fact in understanding and determining a fact in issue, the seriousness of the assault. The court did not err in admitting into evidence Nurse Ball's testimony. This assignment of error is overruled.
VI.     Exhibits    
    Defendant argues the trial court erred when it admitted and published to the jury four State exhibits without a proper foundation. We disagree.
    The State introduced four photographs of Ms. Mingia's injuries to assist Ms. Evelyn Blackwell (“Ms. Blackwell”), a social worker for the Franklin County Department of Social Services, in her testimony. The State moved to admit the photographs into evidence as substantive evidence to prove the seriousness of Ms. Mingia's injuries. Defendant objected to the photographs being admitted into evidence. The court required the State to provide a better foundation prior to admitting the photographs into evidence.
    N.C. Gen. Stat. § 8-97 (2003) states, “Any party may introduce a photograph, video tape, motion picture, X-ray or other photographic representation as substantive evidence upon laying a proper foundation and meeting other applicable evidentiary requirements.” In State v. Alston, this court held that where a witness testified the photographs accurately portrayed what he observed, the photographs were properly authenticated for illustrative purposes. 91 N.C. App. 707, 713, 373 S.E.2d 306, 311 (1988).
    Here, the record indicates Ms. Blackwell testified that each photograph was a fair and accurate picture of how Ms. Mingia looked when Ms. Blackwell visited her on 15 January 2004. The State laid a sufficient foundation to enter the photographs into evidence and to publish the exhibits to the jury. This assignment of error is overruled.
VII. Conclusion
    Defendant waived his right to assign error to the State's failure to dismiss the charges against him. Defendant neither moved to dismiss for insufficiency of the evidence at the close of the State's case, nor did he move to dismiss at the close of all the evidence. The witnesses' testimonies regarding Ms. Mingia's statements were properly admitted. Deputy Smith's testimony corroborated the two EMTs' and the two nurses' testimonies. Defendant failed to object to the testimonies of the two EMTs and the two nurses. The photographs of Ms. Mingia's injuries were properly admitted. The State laid a sufficient foundation for the exhibits to be entered into evidence and published to the jury. Defendant received a fair trial free from errors he preserved, assigned, and argued.
    No error.
    Judges HUNTER and STEELMAN concur.
    Report per Rule 30(e).

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