An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-1392


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.

    McCULLOUGH, Judge.

    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 controlled substance.
    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 make[.]”).
    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- 79.
    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 videotape.     
    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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