An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA 05-801
NORTH CAROLINA COURT OF APPEALS
Filed: 20 June 2006
STATE OF NORTH CAROLINA
v. Onslow County
No. 03 CRS 60393
Defendant appeals from judgment entered 20 January 2005 by
Judge Jay D. Hockenbury in the Superior Court in Onslow County.
Heard in the Court of Appeals 9 February 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Gregory P. Roney, for the State.
Sue Genrich Berry, for defendant-appellant.
On 25 January 2005, a jury convicted defendant of conspiracy
to commit felony robbery with a dangerous weapon and attempted
robbery with a dangerous weapon. The trial court sentenced
defendant to an active term of 51 to 71 months. Defendant appeals.
We conclude that there was no error.
The evidence tends to show that on 15 December 2003, at 11:35
a.m., defendant entered the Handy Mart convenience store in Holly
Ridge and asked the clerk, Deborah Silance, for driving directions.
Silance reviewed a map with defendant and discussed driving
directions with her. Defendant bought a drink and left the store. The store's surveillance camera recorded the interaction between
defendant and Silance. At 11:54 a.m., the surveillance camera
recorded defendant's boyfriend, Raphael Gonzalez, and an unrelated
member of defendant's household, Mathew Avery, entering the store
with a handgun and ordering Silance to the ground. Avery and
Gonzalez were unable to open the cash register before new customers
approached the store. They ordered Silance to help the customers
as if nothing had happened. Holly Ridge Police Sergeant James Otto
arrived at the store after being summoned by the store's silent
hold-up panic alarm. Otto detained Gonzalez as Gonzalez and Avery
exited the store. Avery ran to a nearby wooded area. Defendant
and Patrick Connolly, another unrelated member of defendant's
household, were waiting near the store in Connolly's car and drove
after Avery, who entered the backseat of the car and quickly
removed his outer layer of clothing. Police approached the car and
asked Connolly to drive to the store to answer questions. Connolly
let Avery out of the car and drove to the store with defendant.
Silance suffered a heart attack immediately following the attempted
robbery and was hospitalized.
At trial, Connolly testified that after defendant entered the
Handy Mart and returned to the car, she described the location of
the store's surveillance cameras to Connolly, Gonzalez and Avery.
Connolly testified that he, defendant, Avery and Gonzalez plannedthe robbery while still in Connolly's car. Connolly moved into the
household with defendant as a teenager after he refused to follow
the rules in his parents' home. He has a low IQ and at trial his
mother, Melissa Connolly, testified about his mental disabilities
and prescription medication.
Defendant argues that the trial court erred by admitting
improper character testimony from Melissa Connolly and that this
error prejudiced defendant. In particular, defendant objects to
Ms. Connolly's testimony that her son has difficulty getting his
thoughts across and that he gets confused when talking about time
frames, distances, and similar concepts. Defendant asserts that
the State called Ms. Connolly in order to shore up the
believability of her son's trial testimony, to explain away any
weaknesses in his trial testimony, by testifying about his
cognitive difficulties. Defendant contends that this testimony
should have been excluded pursuant to rules 404(a) and 608(b) of
the North Carolina rules of evidence. N.C. Gen. Stat. 8C-1, Rules
404 (a) and 608(b) (2004).
N.C. Gen. Stat. § 8C-1, Rule 404(a), provides that [e]vidence
of a person's character or a trait of his character is not
admissible for the purpose of proving that he acted in conformity
therewith, except as provided in Rules 607, 608, and 609. Id.
Rule 608(b) provides that extrinsic evidence of specific instancesof conduct of a witness is not admissible for the purpose of
attacking or supporting the witness's credibility, other than
convictions of crimes as provided in Rule 609. Id. We first note
that defendant did not properly preserve this alleged error for
appeal. To preserve the right to assign error on appeal, the
defendant must make an appropriate and timely objection, and the
objection must clearly present the alleged error to the trial
court. N.C. Gen. Stat. § 15A-1446(a) (2004); N.C. Gen. Stat §
8C-1, Rule 103 (2004); N.C. R. App. P. 10(b)(1) (2004). A general
objection, if overruled, is ordinarily no good, unless, on the face
of the evidence, there is no purpose whatever for which it could
have been admissible." State v. Shamsid-Deen, 324 N.C. 437, 444,
379 S.E.2d 842, 846 (1989).
Here, during Ms. Connolly's testimony, defendant made the
following general objection: I'm going to object to the line of
questioning. I'm not sure exactly what this is for. Defendant
did not specify any grounds for this objection and the trial court
overruled it. On appeal, defendant has not argued that there is
no purpose whatever for which [the evidence] could have been
admissible. Shamsid-Deen at 444, 379 S.E.2d at 846. Although our
courts recognize an objection to a specified line of questioning,
N.C. Gen. Stat. § 15A-1446(d)(10) (2004), defendant has failed to
specify the line of questioning and failed to specify the grounds. See State v. Hunter, 290 N.C. 556, 573, 227 S.E.2d 535, 545 (1976)
(holding that defendant failed to object to a specified line of
questioning so as to bring himself within the scope of the rule by
asserting, for example, that the line of questions involves
testimony irrelevant for stated reason). We conclude that
defendant has not properly preserved this issue for appellate
Moreover, we conclude that even if defendant had properly
preserved his objection, his arguments lack merit. Character
refers to a generalized description of a person's disposition or a
general trait, such as honesty, temperance, or peacefulness: Is a
man honest; is he good natured; is he of a violent temper; is he
modest and retiring, or impudent and forward; these all constitute
traits of character. Bottoms v. Kent, 48 N.C. 161, 167 (1855).
Ms. Connolly testified regarding factual matters such as her son's
IQ, ability to communicate, and use of prescription medicine, not
specific instances of conduct by characteristics, as asserted by
defendant. Additionally, even if Ms. Connolly's testimony had
included character evidence, and even if it had been improperly
admitted, we conclude that defendant did not meet her burden of
proving prejudice. We are not persuaded that there is a reasonable
possibility that had the contested testimony been excluded that a
different result would have been reached at trial. N.C. Gen. Stat.§ 15A-1443(a) (2004).
Judges TYSON and GEER concur.
Report per Rule 30(e).
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