An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-597

NORTH CAROLINA COURT OF APPEALS

Filed: 4 April 2006

STATE OF NORTH CAROLINA

v .                         Cabarrus County
                            No. 02 CRS 53583
BOBBY RAY WOODARD, JR.,
        Defendant.

    Appeal by defendant from judgment entered 19 March 2004 by Judge W. David Lee in Cabarrus County Superior Court. Heard in the Court of Appeals 30 November 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Francis W. Crawley, for the State.
    
    Kathryn L. VandenBerg for defendant-appellant.

    GEER, Judge.

    Defendant Bobby Ray Woodard, Jr. appeals from his conviction for first degree murder. On appeal, he argues primarily that certain testimony repeating statements made by the victim, which (1) indicated defendant owed the victim money and (2) expressed the victim's intent to go to defendant's house, constituted inadmissible hearsay. We disagree and, accordingly, hold that there was no error in defendant's trial.

Facts

    The State's evidence tended to show the following facts. During November 2002, defendant regularly purchased crack cocaine from the victim, Damian Douglas, and from Douglas' associate, Kimberly Hedrick. Usually, when defendant wanted cocaine, he would telephone Douglas or Hedrick, and one or both of them would drive to defendant's house at 1211 Rainbow Drive in Kannapolis, North Carolina. Defendant would meet them at the door and pay in cash. Up until the week before Thanksgiving, Tracy Crawford lived at defendant's house. She testified that she saw defendant smoking crack cocaine, purchased from Douglas and Hedrick, almost every day. According to Crawford, on one occasion, defendant said to her that he "ought to take out one of those n****rs and take their shit."
    Defendant's work supervisor stated that through the fall of 2002, defendant's attendance at work began to suffer. Defendant would often leave work early and began to miss one or two days per week. The supervisor also stated that defendant appeared to be losing weight. In addition, two weeks before Thanksgiving, defendant borrowed $250.00 from a friend. He also tried to sell his fishing equipment to raise money. After he bounced two checks at a bar, the bar refused to cash a third check from defendant on 25 November 2002.
    On Tuesday, 26 November 2002, Hedrick went to deliver $100.00 worth of cocaine to defendant at his house. After Hedrick handed him the cocaine, he told her he did not have any money himself, but that "somebody else was going to pay for it later." When Hedrick told Douglas the next morning that defendant had not paid her for the cocaine, Douglas told Hedrick that defendant also owed him money and that he was planning to go to defendant's house to collect it.    On 27 November 2002, the day after defendant failed to pay Hedrick, defendant called his workplace to ask where he could pick up his paycheck. At approximately 5:00 p.m. that day, Douglas received a phone call. After he hung up, Douglas told Johnnie Kay Melton that defendant owed him $200.00 and that defendant was calling to ask Douglas if he could borrow $10.00 for gas to drive to pick up his paycheck in Charlotte so that he could pay Douglas. Douglas, Melton, and two other people _ Melissa Gee and Cedrick Kennedy _ drove to defendant's home on Rainbow Drive. A black truck that Douglas said belonged to defendant was parked in the driveway. Douglas knocked on defendant's door and, when defendant answered, Douglas handed him $10.00. Douglas and his friends then left. At 7:00 or 8:00 p.m., however, defendant's supervisor telephoned defendant at home and terminated his employment because defendant had been absent from work for three consecutive days.
    An hour or two later, at approximately 9:00 p.m., Douglas received another phone call. Gee was able to hear the conversation and testified that she heard someone tell Douglas to come get $200.00. Douglas told Melton that they needed to go back to Rainbow Drive because defendant now had his money and wanted to buy an additional $200.00 worth of crack cocaine. Douglas, Melton, Gee, and Kennedy drove to the Rainbow Drive house and pulled into the driveway, blocking defendant's black truck. Douglas got out of the car, told his friends not to leave without him, and went into the house. At the time, Douglas had with him about $2,500.00 in cash and about $4,000.00 in crack cocaine.    Douglas' three friends remained in their car with the radio playing and the windows rolled up because of the cold. About five minutes later, defendant came out of the house and approached the car containing Melton, Gee, and Kennedy. He told them that Douglas was around the side of the house on the phone. He asked if they would move their car so he could go to the store. After they unblocked his truck, defendant left, spinning his wheels on his way out of the driveway.
    Douglas' friends waited in the driveway for another hour. Calls to Douglas' cell phone went unanswered. They knocked on the door of the house, tried the doorknob, and walked around the house, trying to find a way in. Eventually, since they could not get into the house or find Douglas, they left.
    The next day (28 November 2002), which was Thanksgiving, defendant's 18-year-old daughter Shana stopped by the Rainbow Drive address between noon and 1:00 p.m. on her way to her mother's house for Thanksgiving dinner. When she opened the door of her father's house, she found Douglas lying dead on the living room floor. He had been shot twice in the head. A .25 caliber pistol, which was later determined to be the gun that shot Douglas, was on a coffee table near the body. Douglas' pockets held only a tube of lip balm and a cell phone.
    Defendant was apprehended on Saturday, 30 November 2002, when he crashed his truck into a guard rail on Interstate 40 in Davie County. A nurse and an EMS worker testified that defendant told them he was trying to kill himself. The police found a motelreceipt in the truck showing that defendant had arrived at a High Point motel on 28 November 2002. They also discovered that defendant had made calls from that motel room to houses and businesses involving prostitutes and escort services.
    Defendant was indicted for the first degree murder of Damian Douglas. He pled not guilty and was tried non-capitally in Cabarrus County Superior Court. After the jury convicted him on 22 March 2004, he was sentenced to life imprisonment without parole.
I

    Defendant first argues that the trial court erred in allowing the State's witnesses to testify regarding certain statements made by Douglas.   (See footnote 1)  Defendant contends that these statements were inadmissible hearsay. After reviewing each of the challenged excerpts, we hold that the testimony either did not constitute hearsay or fell within the exception to the hearsay rule set out in N.C.R. Evid. 803(3).
    The first category of testimony involves statements by Douglas that he wanted or needed to go to defendant's house. Our courts have consistently held that such testimony is admissible under Rule 803(3) of the Rules of Evidence. That rule provides:            The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

            . . . .

            (3)    Then Existing Mental, Emotional, or Physical Condition. _ A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

N.C.R. Evid. 803(3).
    The North Carolina Supreme Court has long recognized "the exception to the hearsay rule permitting the admission of declarations of a decedent to show his intention, when the intention is relevant per se and the declaration is not so unreasonably remote in time as to suggest the possibility of a change of mind." State v. Vestal, 278 N.C. 561, 587, 180 S.E.2d 755, 772 (1971). In Vestal, for example, in which the decedent had been found dead in defendant's warehouse in Delaware, the Supreme Court held that the trial court properly admitted the decedent's prior statement to his wife that he was planning to go on a trip with the defendant to Delaware. Id. at 581, 180 S.E.2d at 768. See also State v. Sneed, 327 N.C. 266, 271, 393 S.E.2d 531, 534 (1990) (finding admissible testimony by a witness that a man other than the defendant had told the witness that he planned to rob a store and had asked the witness to drive him to the store); Statev. McElrath, 322 N.C. 1, 19, 366 S.E.2d 442, 452 (1988) (victim's statement that he planned to go on a trip with defendant admissible as a "then-existing intent to engage in a future act"). Since the challenged testimony involved Douglas' statement of his desire and intent to go to defendant's house, it was admissible under Rule 803(3) as an expression of the victim's then-existing intent to engage in a future act.
    Defendant also challenges the admission of statements by Douglas explaining to his friends why he needed to go to defendant's house. For example, Melton testified that Douglas told him that they needed to take defendant $10.00 for gas so that defendant could get his paycheck and pay Douglas the $200.00 that defendant owed him. Additionally, Melton later testified that Douglas told them that they needed to return to the Rainbow Drive residence because defendant "was back, he had his money and wanted to spend two hundred more dollars" on crack cocaine. Three other witnesses all reported similar statements by Douglas.
    We disagree with defendant's characterization of this testimony as hearsay. Hearsay is "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.R. Evid. 801(c) (emphasis added). If such statements are offered for other purposes, they are not hearsay. Thus, it is well-established that the statements of one person to another are admissible to explain subsequent conduct. See State v. Chapman, 359 N.C. 328, 355, 611 S.E.2d 794, 816 (2005) ("Evidence of the phone call wasadmitted to show defendant's response to receiving the call . . . [and] [t]hus, the phone call was admissible to explain defendant's subsequent conduct on leaving Mr. Yarborough's house."); State v. Walden, 311 N.C. 667, 672, 319 S.E.2d 577, 581 (1984) (statements that decedent asked witnesses to come by her house were admissible to explain witnesses' conduct in going to the house); State v. Tate, 307 N.C. 242, 244, 297 S.E.2d 581, 583 (1982) (admitting as non-hearsay statement of defendant that she rushed from a friend's office because the friend told her he had urgent business and needed her to leave).
    Here, the challenged statements were not offered to prove the actual existence of defendant's debt to Douglas or the method by which defendant would obtain money to pay the debt. Nor was the testimony that defendant needed $10.00 for gas to retrieve his paycheck offered to establish that defendant in fact needed the money for that reason. Rather, this testimony was offered to explain why Douglas and the witnesses went to defendant's house. As such, the testimony was admissible as non-hearsay.   (See footnote 2) 
    Defendant further claims that admission of the challenged statements violates his rights under the Confrontation Clause of the United States Constitution. We note that defendant's arguments of constitutional error were not raised at trial and are thus deemed waived on appeal. State v. Anderson, 350 N.C. 152, 175, 513S.E.2d 296, 310, cert. denied, 528 U.S. 973, 145 L. Ed. 2d 326, 120 S. Ct. 417 (1999); see N.C.R. App. P. 10(b)(1). Defendant's first assignment of error is, therefore, overruled.

II

    Defendant's remaining argument on appeal is that the trial court erred in its instructions to the jury upon the jury's announcement of a deadlock. Defendant concedes that his trial counsel did not object to these instructions at trial, but, in his brief, requests that we review the instructions for plain error. Defendant did not, however, rely upon plain error in his assignment of error addressing this issue. Our Supreme Court has held that, in these circumstances, a defendant is "not entitled to plain error review of [the] issue." State v. Dennison, 359 N.C. 312, 313, 608 S.E.2d 756, 757 (2005). This assignment of error is, therefore, overruled.
    We note, in conclusion, that according to the verdict sheet and the transcript of the trial, defendant was convicted on 22 March 2004. The date on the judgment imposing a life sentence is 19 March 2004. That date appears to be a clerical error that should be corrected on remand. State v. Cagle, 241 N.C. 134, 139, 84 S.E.2d 649, 654 (1954).

    No error; remanded with instructions.
    Judges HUNTER and McCULLOUGH concur.
    Report per Rule 30(e).


Footnote: 1
    In his brief, defendant refers to some testimony not referenced in his assignments of error. Under N.C.R. App. P. 10(c)(1), "[a]n assignment of error is sufficient if it directs the attention of the appellate court to the particular error about which the question is made, with clear and specific record or transcript references." (Emphasis added.) We do not address any of the testimony not specifically identified in the assignments of error.
Footnote: 2
    Gee also testified that Douglas had told her on a prior occasion, unrelated to the drives to defendant's house, that defendant owed Douglas $200.00. Even assuming, arguendo, that this testimony was inadmissible hearsay, we hold that its admission was harmless given the other admissible testimony.

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