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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 20 February 2007
STATE OF NORTH CAROLINA
No. 03 CRS 50223-25
Appeal by Defendant from judgment entered 25 March 2004 by
Judge Gary E. Trawick in Superior Court, Pender County. Heard in
the Court of Appeals 12 December 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Donna D. Smith, for the State.
James F. Rutherford and Bruce A. Mason, for the defendant-
Defendant Jeanne Sutcliff appeals from criminal convictions of
misdemeanor possession of marijuana, felony possession of cocaine,
and the felony of intentionally maintaining a dwelling for the
purpose of keeping or selling controlled substances. After careful
review of her arguments on appeal, we conclude that her arguments
are without merit and accordingly uphold her convictions.
At trial, the bulk of the State's evidence concerned items
found during a search on 29 January 2003 of a residence on Country
Club Road in Hampstead, North Carolina, executed by the Pender
County Sheriff's Department pursuant to a warrant. The State also
presented evidence concerning controlled drug buys at that
residence, in which an informant working for the Sheriff'sDepartment purchased drugs in the house from Defendant's husband.
Narcotics agent Jeffrey Grant of the Pender County Sheriff's
Department testified for the State concerning what and whom a
confidential informant for the police had seen when he went to the
residence to purchase dr ugs. Additionally, State Bureau of
Investigation (SBI) Special Agent Robert W. Evans testified for the
State as a forensic chemistry expert witness and outlined the tests
performed on and conclusions reached regarding the substances found
at the residence.
At the conclusion of the trial, the jury returned verdicts
finding Defendant guilty of possession of marijuana, guilty of
possession of cocaine, and guilty of intentionally maintaining a
dwelling for the purpose of keeping or selling controlled
substances. The trial court sentenced Defendant to six to eight
months imprisonment and then suspended the sentence, placing
Defendant on supervised probation for twenty-four months, with
provisions for testing for use of controlled substances, as well as
a requirement to complete two hundred hours of community service in
the first year of her probation.
Defendant appeals that judgment, arguing that the trial court
committed reversible error by (I) allowing SBI Agent Evans to
testify regarding a SBI laboratory report prepared by a non-
testifying SBI agent, and admitting the report into evidence; (II)
denying Defendant's motion to dismiss the charge of felony
maintaining a dwelling for the keeping of a controlled substance,
and, (III) allowing the introduction of an out-of-court statementby a non-testifying governmental informant.
Defendant contends on appeal the trial court erred by allowing
SBI Agent Evans to testify as to the opinion of a non-testifying
SBI agent; admitting an SBI laboratory report prepared by a non-
testifying SBI agent; and, allowing SBI Agent Evans to testify as
to his opinions based solely on the SBI laboratory results and
notes prepared by a non-testifying SBI agent. In essence,
Defendant challenges the allegedly improper testimony of SBI Agent
Evans as to the testing and identification of the substances found
at the Country Club Road residence. Defendant argues that this
testimony violated her right of confrontation under the Sixth
Amendment's Confrontation Clause and the United States Supreme
Court's decision in Crawford v. Washington
, 541 U.S. 36, 158 L. Ed.
2d 177 (2004), because she did not have the opportunity to cross-
examine the SBI agent who actually performed the tests in question.
Preliminarily, we note that our State Supreme Court has
consistently held that [c]onstitutional issues not raised and
passed upon at trial will not be considered for the first time on
appeal. State v. Lloyd
, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607
(2001). Moreover, to preserve a question for appellate review, our
appellate rules require a party to 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. N.C. R. App.P. 10(b)(1). Nevertheless, a criminal defendant may still trigger
appellate review of an issue not so preserved by assigning plain
error to the trial court's action in her brief and arguments to
this Court. N.C. R. App. P. 10(c)(4). However, because [t]he
plain error rule applies only in truly exceptional cases, the
bare assertion of plain error in an assignment of error, without
accompanying explanation, analysis, or specific contentions in a
defendant's brief, is insufficient to show plain error. State v.
, 352 N.C. 600, 636-37, 536 S.E.2d 36, 60-61 (2000), cert.
, 532 U.S. 997, 149 L. Ed. 2d 641 (2001).
Here, Defendant objected at trial at only one point during the
testimony of SBI Agent Evans, when he was asked by the prosecutor
what the opinion of the non-testifying SBI agent was as to the
nature of one of the substances seized at the Country Club Road
residence. Defense counsel objected to the question as hearsay,
and the trial court overruled the objection.
(See footnote 1)
cited no constitutional basis for the objection and made no motions
to that effect. Additionally, Defendant makes no reference to
hearsay in her brief or arguments to this Court, only to her right
of confrontation. See
N.C. R. App. P. 28(b)(6) (Assignments of
error . . . in support of which no reason or argument is stated orauthority is cited, will be taken as abandoned.). Given that
[a]n appeal has to follow the theory of the trial, and where a
cause is heard on one theory at trial, appellant cannot switch to
a different theory on appeal, Grissom v. Dept. of Revenue
, 34 N.C.
App. 381, 383, 238 S.E.2d 311, 312-13 (1977), disc. review denied
294 N.C. 183, 241 S.E.2d 517 (1978), we find that Defendant has
failed to preserve these constitutional questions for appellate
review, and has abandoned her argument as to hearsay.
Furthermore, Defendant alleges plain error in only one of her
assignments of error, namely, the one concerning the admission of
the SBI laboratory report prepared by a non-testifying agent. But,
plain error is not argued anywhere in her brief, either with
respect to the laboratory report or to her arguments concerning the
testimony of SBI Agent Evans. Without any such argument from
Defendant, we are not persuaded that the claimed error
fundamental, so basic, so prejudicial, or so lacking in its
elements that absent the error the jury probably would have reached
a different verdict. State v. Fleming
, 350 N.C. 109, 132, 512
S.E.2d 720, 736, cert. denied
, 528 U.S. 941, 145 L. Ed. 2d 274
For the foregoing reasons, Defendant's assignments of error as
to the testimony of SBI Agent Evans and the admission of the
laboratory report are overruled.
Defendant next argues that the trial court erred by denying
her motions to dismiss the charge of maintaining and keeping adwelling used for keeping or selling a controlled substance under
North Carolina General Statute § 90-108(a)(7), made at the close of
the State's evidence and all the evidence. Defendant specifically
contends that the State failed to present sufficient evidence to
prove that she kept or maintained the Country Club Road residence
where the drugs were found. We disagree.
When a defendant moves to dismiss a charge against him on the
ground of insufficiency of the evidence, the trial court must
determine whether there is substantial evidence of each essential
element of the offense charged and of the defendant being the
perpetrator of the offense. State v. Garcia, 358 N.C. 382, 412,
597 S.E.2d 724, 746 (2004) (citation and quotations omitted), cert.
denied, 543 U.S. 1156, 161 L. Ed. 2d 122 (2005)
evidence is defined
as relevant evidence that a reasonable person
might accept as adequate, or would consider necessary to support a
particular conclusion. Id. at 412, 597 S.E.2d at 746 (citations
Moreover, [c]ircumstantial evidence may withstand a
motion to dismiss and support a conviction even when the evidence
does not rule out every hypothesis of innocence. State v.
Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455 (citation and
quotation omitted), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150
Such evidence must be taken in the light most favorable
to the state . . . [which is] entitled to all reasonable inferences
that may be drawn from the evidence. State v. Sumpter, 318 N.C.
102, 107, 347 S.E.2d 396, 399 (1986).
At trial, the State presented evidence that Defendant waspresent when the police executed the search warrant on the Country
Club Road residence; the vehicle that she usually drove was at the
residence during the search; she was present when the confidential
informant made at least one controlled drug buy at the residence;
a payroll stub with Defendant's name was found in the master
bedroom; and feminine hygiene products and electrical hair rollers
were found in the bathroom. Additionally, Defendant's three
children testified on her behalf and responded affirmatively to
defense counsel's questions about Defendant's son's mom and dad's
bedroom, about Defendant's daughter's living at [her] mom and
dad's and [her] parents' room, and elicited an answer from
Defendant's other daughter about [her] mom's bathroom. One of
Defendant's daughters also testified about seeing the confidential
informant at the house, talking to her father while her mother was
cooking dinner in the kitchen.
Taken together, we find this to be substantial evidence,
sufficient for a reasonable jury to conclude that Defendant kept or
maintained the Country Club Road residence. See State v. Rich, 87
N.C. App. 380, 384, 361 S.E.2d 321, 324 (1987) (upholding a
conviction for maintaining a dwelling used for the keeping or
selling of controlled substances based on evidence showing that the
defendant cooked dinner and resided in the house where the drugs
were found). Accordingly, this assignment of error is overruled.
Lastly, Defendant argues that the trial court committed error
by allowing narcotics agent Jeffrey Grant of the Pender CountySheriff's Department to testify for the State concerning what and
whom a confidential informant for the police had seen when he went
to the residence to purchase dr
ugs. We disagree.
Defendant contends that the testimony should not have been
admitted because it was hearsay, and also violated her right to
confrontation under the Confrontation Clause and Crawford
trial, defense counsel objected twice during the State's redirect
examination of Agent Grant following questions concerning the
confidential informant. Contrary to her assertions in her brief to
this Court, defense counsel did not state the grounds for his
objection in either instance.
The first was sustained by the trial
court, then an off-the-record bench conference was held between the
trial judge and attorneys. Questioning then resumed, and when
defense counsel again objected to a question as to whom the
confidential informant saw when making his controlled drug buys,
the trial court overruled the objection.
First, because Defendant failed at trial to raise the
constitutional issue of her right to confrontation with respect to
the confidential informant, we find that she has failed to preserve
that argument on appeal. See Lloyd
, 354 N.C. at 86-87, 552 S.E.2d
at 607 (Constitutional issues not raised and passed upon at trial
will not be considered for the first time on appeal.).
Moreover, because defense counsel did not specify the grounds
for the objection at trial, Defendant has likewise failed to
preserve her hearsay argument for appellate review. See
App. P. 10(b)(1). However, even assuming arguendo
that the groundswere apparent from the context of the State's questions and defense
counsel's objections at trial, we find this argument to be without
Under the North Carolina Rules of Evidence, [o]ut-of-court
statements that are offered for purposes other than to prove the
truth of the matter asserted are not considered hearsay. State v.
, 355 N.C. 73, 87, 558 S.E.2d 463, 473, cert. denied
U.S. 896, 154 L. Ed. 2d 165 (2002); see also
N.C. Gen. Stat. § 8C-
1, Rule 801(c) (2005). Specifically, statements are not hearsay
if they are made to explain the subsequent conduct of the person to
whom the statement was directed. Gainey
, 355 N.C. at 87, 558
S.E.2d at 473.
Here, the prosecutor's question concerning what the
confidential informant told Agent Grant came in the context of
establishing why Defendant's name was included on the search
warrant for the Country Club Road residence.
As such, the
testimony was properly offered to explain Agent Grant's actions in
applying and obtaining a warrant for Defendant, her husband, and
the Country Club Road residence, rather than for the truth of the
matter asserted. This assignment of error is accordingly
In sum, we uphold Defendant's convictions for
possession of marijuana, felony possession of cocaine, and the
felony of intentionally maintaining a dwelling for the purpose of
keeping or selling controlled substances
Judges HUNTER and STEELMAN concur.
Report per rule 30(e).
We also note that, when SBI Agent Evans answered the
question, he stated that the opinion of the non-testifying agent,
and after review of his notes SBI Agent Evans concurred,
indicated that it [wa]s the Scheduled [sic] II substance known
as cocaine hydrocholoride, with a weight of 0.5 grams.
of that response, which included Agent Evans's own opinion, and
the strength of the other evidence against Defendant, admission
of this testimony was not prejudicial, even if it was indeed
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