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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA06-1199


Filed: 01 May 2007


         v.                        Northampton County
                                Nos. 05 CRS 1434-35

    Appeal by defendant from judgments entered 25 April 2006 by Judge Thomas D. Haigwood in Northampton County Superior Court. Heard in the Court of Appeals 9 April 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Ann W. Matthews, for the State.

    Sue Genrich Berry for defendant-appellant.

    STEELMAN, Judge.

    Yvette Pamela Jackson (“defendant”) contends on appeal that the trial court erred by admitting allegedly testimonial, hearsay evidence in violation of Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 177 (2004), despite defendant's failure to object at trial or preserve the question for our review. We find no error.
    The State presented evidence tending to show that on 21 January 2005, law enforcement officers were executing a search warrant at Richard Wheeler's residence on the basis of information from an informant that drugs were being sold. Because the telephone at the residence continued to ring while the police officers were there , the officers decided to initiate an undercoveroperation to arrest people who came to buy or sell drugs while their search continued.
    Defendant called the residence around 6:00 or 7:00 p.m. that evening and asked to speak with Wheeler. Agent Roy Ball spoke with defendant and initially identified himself as Wheeler. When defendant challenged his identification, Agent Ball then said he was a neighbor of Wheeler. Defendant said Wheeler had called her earlier and wanted some Ecstasy. She told Agent Ball that she had twenty tablets and that she might be able to obtain more. Approximately ten minutes after the first conversation, Agent Ball called defendant back. As a result of their conversation, defendant came to the residence with fourteen “buttons” of Ecstasy and informed Agent Ball that the price was twenty dollars apiece. Agent Ball handed money to defendant, and she handed the pills to him. As defendant was counting the money, Agent Ball informed her that she was under arrest.
    Captain George Reed, who was also at the residence executing the search warrant, entered the room at that time and took possession of the pills. He placed them in a plastic bag and ultimately sent the pills to the SBI laboratory to be analyzed. Captain Reed later received the pills from the SBI laboratory along with a lab sheet which stated the weight and content of the pills. He testified, “[t]he results of the examination . . . shows three and four MED for Ecstasy. It tested positive.” Following defendant's cross-examination of Captain Reed, the State moved to admit the envelope, the plastic bag, the pills and the SBIlaboratory report into evidence. The trial court received those exhibits into evidence without objection from defendant.
    At the close of the State's evidence, defendant moved to dismiss the charges. Following the trial court's denial of the motion, defendant testified on her own behalf. Defendant renewed her motion to dismiss at the close of all the evidence, and the trial court again denied her motion.
    On 25 April 2006, a jury found defendant to be guilty of possession with intent to sell or deliver methylenedioxyamphetamine, sale and delivery of methylenedioxyamphetamine, and possession of drug paraphernalia. The trial court imposed an active sentence of ten to twelve months for the sale charge and a consecutive sentence of six to eight months on the remaining charges. The second sentence was suspended, and defendant was placed on supervised probation. Defendant appeals.
    In her sole argument on appeal, defendant contends the trial court erred by denying her motion at the close of the evidence to dismiss the charges of possession with the intent to sell and deliver and of sale or delivery of methylenedioxyamphetamine for insufficiency of the evidence. We disagree.
    Citing Crawford v. Washington, 541 U.S. 36, 61, 158 L. Ed. 177, 199 (2004), defendant asserts the introduction of the SBI laboratory report violated her Sixth Amendment right to confront the witnesses against her. She reasons that the “admission at trial of testimonial evidence made by a non-testifying person”violated her confrontation rights. State v. Forte, 360 N.C. 427, 434, 629 S.E.2d 137, 142-43 (2006) (citing Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004)). Specifically, she argues that the laboratory report, which was the only proof that the drug she possessed and distributed was three, four methylenedioxyamphetamine, was not competent and admissible evidence because the SBI chemist who prepared the report did not testify at trial. Defendant's argument is not persuasive.
    “The constitutional right of an accused to be confronted by the witnesses against him is a personal privilege which he may waive expressly or by a failure to assert it in apt time even in a capital case.” State v. Braswell, 312 N.C. 553, 558, 324 S.E.2d 241, 246 (1985) (emphasis added). Defendant here failed to object to the introduction of the laboratory report at the time of its introduction despite being given an opportunity to do so by the trial court.
    Because defendant concedes that she failed to object to the admissibility of the laboratory report at trial, our Court can only review the trial court's admission of the evidence for plain error under N.C.R. App. P. 10(c)(4): “In order to prevail under the plain error rule, [the] defendant must convince this Court that there was error and that absent the error, the jury probably would have reached a different verdict.” State v. Thomas, 350 N.C. 315, 348, 514 S.E.2d 486, 506, cert. denied, Thomas v. North Carolina, 528 U.S. 1006, 145 L. Ed. 2d 388 (1999)). When a defendant offers no objection to evidence at trial, she must show “there was noproper purpose for which the evidence could be admitted.” State v. Golphin, 352 N.C. 364, 440, 533 S.E.2d 168, 219 (2000), cert. denied, Golphin v. North Carolina, 532 U.S. 931, 149 L. Ed. 2d 305 (2001)).
    Defendant has waived her opportunity for plain error review of this issue. N.C. R. App. P. 10(c)(4) requires that an assignment of error be “specifically and distinctly contended to amount to plain error.” See Id.; State v. Bell, 359 N.C. 1, 27, 603 S.E.2d 93, 111 (2004). Defendant altogether failed to assert plain error in her assignment of error. She therefore failed to properly preserve this issue for appellate review.
    We further note that defendant failed to raise her constitutional claim at trial, claiming for the first time on appeal a violation of his constitutional right to confrontation under Crawford. “[C]onstitutional 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).
    We conclude that the trial court did not err by denying defendant's motion at the close of the evidence to dismiss the charges for insufficiency of the evidence, because defendant did not properly object to the admissibility of the evidence at trial, or properly preserve the constitutional question for our review.
    Judges MCCULLOUGH and LEVINSON concur.
    Report per Rule 30(e).

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