STATE OF NORTH CAROLINA
v. Lincoln County
Nos. 05 CRS 53408-09
TIMOTHY DWAYNE SMITH
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).
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