Return to nccourts.org
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1451

NORTH CAROLINA COURT OF APPEALS

Filed: 4 September 2007

STATE OF NORTH CAROLINA

         v.                    Lincoln County
                            Nos. 05 CRS 53408-09
TIMOTHY DWAYNE SMITH
    

    Appeal by defendant from judgment entered 19 April 2006 by Judge Ronald K. Payne in Lincoln County Superior Court. Heard in the Court of Appeals 20 August 2007.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Linda Kimbell, for the State.

    Nancy R. Gaines, for defendant-appellant.


    JACKSON, Judge.

    
    On 19 April 2006, Timothy Dwayne Smith (“defendant”) was convicted of first-degree burglary and second-degree kidnapping. The trial court sentenced defendant to sixty-six months to eighty- nine months imprisonment, and defendant gave notice of appeal.
    In his sole argument on appeal, defendant contends that the trial court committed reversible error by overruling his objection at trial to the hearsay testimony of a witness in violation of his Sixth Amendment right to confront witnesses against him. Specifically, the testimony that is the subject of defendant's appeal is that of a neighbor of the victim called by the State. This witness testified as follows:        Q. Let's go to that Sunday morning, October 16th. What occurred that morning?

        A. She [victim] come over to my house early in the morning banging on the door. I still had my pajamas on. I had to get dressed. She went to my daughter's room and knocked on her window. My daughter went to her window and talked to her. My daughter come in there and told me what was going on; so she got my cell phone and took it to [victim]'s house. When my daughter went over there to give her the phone, she seen [defendant] run into the woods.

        Q. Your daughter did?

        A. My daughter did.

        [Defense Counsel]: Objection. Move to strike.
        
        THE COURT: Overruled.
Defendant asserts that the admission of the witness's testimony as to what her daughter said violated his Sixth Amendment rights. Defendant, however, has failed to preserve this issue for appellate review.
    Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure specifies that “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 if the specific grounds were not apparent from the context.” N.C. R. App. P. 10(b)(1) (2006). Further, it is well-established that this Court will not consider on appeal constitutional issues that were not raised before the trial court. See State v. West, __ N.C. App. __, __, 638S.E.2d 508, 512 (2006), disc. rev. denied and appeal dismissed, __ N.C. __, __ S.E.2d __ (Mar. 8, 2007) (No. 31P07).
    Additionally, defendant failed to raise this Sixth Amendment issue in his assignments of error in the record on appeal. Rule 10(c)(1) of the Rules of Appellate Procedure requires that “[e]ach assignment of error . . . shall state plainly, concisely and without argumentation the legal basis upon which error is assigned.” N.C. R. App. P. Rule 10(c)(1) (2006). Rule 10(a) further provides that “the scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal in accordance with this Rule 10.” N.C. R. App. P. Rule 10(a) (2006). As this Court has noted, “broad, vague, and unspecific” assignments of error are insufficient to satisfy Rule 10. See May v. Down East Homes of Beulaville, Inc., 175 N.C. App. 416, 418, 623 S.E.2d 345, 345, cert. denied, 360 N.C. 482, 632 S.E.2d 176 (2006).
    Defendant's assignment of error states only “[t]hat the Court committed reversible error in denying overruling [sic] Defendant's objection to the hearsay testimony of Michelle Dawn Heath.” This assignment of error is insufficient to preserve the Sixth Amendment challenge that defendant raised for the first time in his appellate brief.
    For the foregoing reasons, we hold that the issue presented in defendant's brief was not properly preserved for appeal. Accordingly, defendant's appeal is dismissed.
    Dismissed.
    Chief Judge MARTIN and Judge CALABRIA concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***