An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 18 July 2006
IN THE MATTER OF: Wilkes County
L.E.J. No. 03 J 122
Appeal by juvenile-defendant from order entered 11 May 2005 by
Judge Jeanie R. Houston in Wilkes County District Court. Heard in
the Court of Appeals 11 May 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Kathleen U. Baldwin, for the State.
James N. Freeman, Jr., for juvenile appellant.
Juvenile-defendant appeals from a delinquency adjudication
after being found responsible for the offense of selling and
delivering a controlled substance and a sentence of one-year
probation. We affirm.
On 4 May 2005, a delinquent juvenile petition was filed in
Wilkes County District Court alleging that L.E.J. (defendant) did
unlawfully, willfully, and feloniously sell and deliver to J.C.E.
the controlled substance of marijuana. On 9 May 2005, the State
presented the following evidence to the court:
On 28 April 2005, Officer Graybeal was working as a School
Resource Officer at Wilkes Central High School. Earlier in the day,
Officer Graybeal received a call reporting the observation of onestudent selling marijuana to another student, subsequently leading
to the surveillance of defendant through the use of cameras
positioned throughout the school. While watching the cameras,
Officer Graybeal observed defendant and another student, J.E.,
acting suspiciously. She then saw J.E. take what appeared to be
money out of his back pocket and hand it to defendant. Defendant
then reached into his back pocket and pulled out what appeared to
be a baggie and brought it to his mouth. Defendant and J.E. then
went into the restroom out of the sight of the camera.
The videotape from the camera was introduced at trial and
shown for the trial court with an explanation provided by Officer
Graybeal. After observing the transaction between defendant and
J.E., Officer Graybeal waited outside the bathroom for the two
juveniles to exit. Officer Graybeal detained J.E. upon exiting the
restroom but allowed defendant to go. Upon detention of J.E., the
officer found four small baggies of marijuana on his person
weighing approximately 1.1 grams. The officer and the principal
were unable to locate defendant after detaining J.E.
At trial, Officer Graybeal testified to the contents of a
statement offered by J.E. at the time of apprehension. She
testified that J.E. stated that defendant approached him and asked:
'Do you want to buy some grass?' 'I've got nickels, dimes and
quarters.' J.E. further stated that defendant attempted to open
the bag of marijuana outside with his mouth but was unable to, and
therefore the two juveniles proceeded to the bathroom where
defendant opened the bag of marijuana and gave some to J.E. J.E.stated that he paid defendant twenty-five dollars which defendant
placed in his back pocket. No objection was made to the
introduction of such evidence at trial.
At the close of the State's evidence, defendant made a motion
to dismiss the charges which was denied by the trial judge. The
defense then presented evidence calling L.E.J., the juvenile-
defendant, to the stand who denied selling the marijuana to J.E. At
the close of the trial, counsel for defendant failed to renew the
motion to dismiss. The court found defendant to be a delinquent
juvenile having committed the offense of selling and delivering a
Defendant now appeals.
Juvenile-defendant first contends on appeal that the trial
court committed plain error in allowing an officer to testify to
out-of-court inadmissible hearsay statements in violation of
defendant's Sixth Amendment Right to Confrontation. We disagree.
Initially, we note that defendant argues for the first time on
appeal that the admission of J.E.'s statement through the testimony
of Officer Graybeal amounted to a violation of his constitutional
rights of confrontation as set forth in Crawford v. Washington, 541
U.S. 36, 158 L. Ed. 2d 177 (2004). However, constitutional error
will not be considered for the first time on 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, hehas failed to preserve it for appellate review, and it is waived.
See id; N.C.R. App. P. 10(b)(1) (2006) (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
Furthermore, where defendant failed to object to the admission
of the evidence at trial, we review defendant's contention that the
testimony was inadmissible hearsay under a standard of plain error.
State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997).
Plain error is defined as 'fundamental error, something so basic,
so prejudicial, so lacking in its elements that justice cannot have
been done.' State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378
(1983) (citation omitted).
Even assuming arguendo that the testimony was admitted as
inadmissible hearsay evidence, it would have to rise to the level
of plain error to warrant a reversal, and thus the burden is on
defendant to establish that without the error a different result
probably would have been reached. See State v. Bellamy, 159 N.C.
App. 143, 147, 582 S.E.2d 663, 667, cert. denied, 357 N.C. 579, 589
S.E.2d 130 (2003). Thus, admission of the evidence would only
amount to 'plain error' if the evidence had a probable impact
on the finding of guilt. Odom, 307 N.C. at 661, 300 S.E.2d at 378-
In the instant case it cannot be said that but for the
admission of J.E.'s statement through the testimony of OfficerGraybeal, defendant would not have been found guilty. In stark
contrast, the trial transcript is replete with circumstantial
evidence of defendant's guilt. Officer Graybeal testified to
observing J.E. take what appeared to be money out of his pocket and
give it to defendant, followed by defendant taking what appeared to
be a baggie out of his pocket and placing it to his mouth. She
further testified that the two juveniles went into the bathroom,
and after they came out, J.E. was immediately detained and found
to be in possession of marijuana. Further, the videotape depicting
the events was introduced into evidence and viewed at trial.
The defendant's evidence consisted solely of his own
contradictory and uncorroborated testimony that J.E. was the one
trying to sell the marijuana and that defendant was simply smelling
the marijuana in the act seen on the videotape. The trial judge
expressly stated that he did not believe defendant's statements of
the events as they were contradictory to the events shown on the
Thus, even assuming admission of this testimony was error, it
does not rise to the level of plain error where it cannot be said
that a different outcome likely would have resulted and therefore
this assignment of error is overruled.
Juvenile-defendant further contends that the trial court
committed reversible error in failing to dismiss the charges
against him where there was insufficient evidence to support aconviction. We find that this error has not properly been preserved
for appeal and therefore is not properly before this Court.
While defendant moved to dismiss the charges after the close
of the State's evidence, he failed to renew that motion following
the close of all evidence. N.C.R. App. P. 10(b)(3) provides in
pertinent part that a defendant who moves to dismiss a charge based
on insufficiency of the evidence after the close of the State's
evidence waives the benefit of that objection if, after the motion
is denied, the defendant presents his own evidence, and such waiver
precludes him from urging the denial of the motion as a ground for
appeal. The defendant may preserve that argument for appeal only by
renewing the motion at the close of all of the evidence. However,
if a defendant fails to move to dismiss the action . . . at the
close of all the evidence, he may not challenge on appeal the
sufficiency of the evidence to prove the crime charged. N.C.R.
App. P. 10(b)(3).
In the instant case, defendant presented evidence following
the close of the State's case, but failed to renew his motion to
dismiss following the close of all evidence, and he therefore
cannot assert the denial of his motion as grounds for relief on
appeal. See In re Davis
, 126 N.C. App. 64, 66, 483 S.E.2d 440, 442
(1997) (The appellate court will not entertain a juvenile's
argument that the State failed to prove a charge where the juvenile
did not renew his motion to dismiss at the close of all evidence.).
We therefore do not address this argument. Accordingly, the trial court did not commit plain error in
admitting the statements of J.E. through the testimony of Officer
Graybeal, and defendant failed to properly preserve all other
issues for appeal. Therefore we affirm.
Judges HUDSON and TYSON concur.
Report per Rule 30(e).
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