Opinion
No. 07-1227.
Filed April 1, 2008.
Stokes County No. 06CRS50859.
Appeal by defendant from judgment entered 19 April 2007 by Judge William Z. Wood, Jr. in Stokes County Superior Court. Heard in the Court of Appeals 31 March 2008.
Attorney General Roy Cooper, by Assistant Attorney General Sueanna P. Sumpter, for the State. Glenn Gerding for defendant-appellant.
Rule 10(b) of the North Carolina Rules of Appellate Procedure requires dismissal of defendant's appeal because she failed to preserve the issue for appellate review by making the same argument before the trial court.
When viewed in the light most favorable to the State, the evidence at trial tended to show that Officer Sharon Lloyd was working as an undercover officer on 28 October 2005 in an attempt to make a controlled buy of cocaine from defendant. Officer Lloyd was wearing a transmitter, and Detectives Kirkman and Sands arranged to monitor those transmissions from separate vehicles. Officer Lloyd drove to defendant's house in Stokes County, got out of her car, and called out defendant's name. Officer Lloyd identified defendant as the person who came out of the house to speak with her. When Officer Lloyd asked for "some stuff[,]" defendant replied that she did not have any but knew where they could probably get some. Defendant retrieved her purse from the house and got into the officer's car. Upon defendant's directions, Officer Lloyd drove to another house, where a man called "Wally" climbed into the vehicle's backseat and gave Officer Lloyd directions to McArthur's Trailer Park.
At the trailer park, Wally got out of the vehicle and spoke with a younger man. Officer Lloyd handed $40.00 to defendant, who handed the money to Wally when he came back to the vehicle. After taking the money to the younger man, Wally got back into Officer Lloyd's vehicle and handed something to defendant. At Officer Lloyd's request, defendant placed the item, which was a thin, thumbnail-sized "rock," in a water bottle cap as they were leaving the trailer park. During the ride, both Wally and defendant pinched off a small piece of the "rock," which they smoked in a stem. Defendant handed the bottle cap to Officer Lloyd, who placed the cap in the car's console. At trial, over defendant's objection, Officer Lloyd testified that she took possession of the cocaine in defendant's driveway.
Defendant was indicted for the felonies of sale and delivery of cocaine and possession with intent to sell and deliver cocaine. These charges were tried before a jury at the 19 April 2007 session of Criminal Superior Court of Stokes County.
Officer Lloyd acknowledged that defendant did not "charge for her time." However, defendant did ask for, and received, a pinch of crack cocaine. At the close of the State's evidence, defendant moved to dismiss the charges on the basis that there was no evidence that the offenses occurred in Stokes County, and specifically, that if any sale of cocaine occurred, the sale occurred in Surry County. The trial court denied the motion.
Defendant presented alibi evidence and renewed her motion to dismiss at the close of all the evidence. The trial court again denied the motion and submitted the case to the jury. The jury found defendant guilty of both charges. The trial court found defendant to be a prior record level III for felony sentencing and imposed an active sentence of 16-20 months. Defendant appeals.
In her sole argument, defendant contends that the trial court erred by denying her motion to dismiss the charges at the close of all the evidence. We disagree.
Although she argued before the trial court that there was no evidence that the transaction occurred in Stokes County, defendant now asserts, for the first time, that the State failed to present substantial evidence that she sold or delivered cocaine or that she possessed cocaine with the intent to sell or deliver it.
"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 if the specific grounds were not apparent from the context." N.C.R. App. P. 10(b)(1)(2007). "The theory upon which a case is tried in the lower court must control in construing the record and determining the validity of the exceptions." State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982). A "defendant may not change [her] position from that taken at trial to obtain a `steadier mount' on appeal." State v. Woodard, 102 N.C. App. 687, 696, 404 S.E.2d 6, 11, appeal dismissed and disc. review denied, 329 N.C. 504, 407 S.E.2d 550 (1991). Because this Court will only consider arguments presented to the trial court and preserved for appeal, defendant's arguments that the State failed to present substantial evidence that she sold or delivered cocaine or that she possessed cocaine with the intent to sell or deliver it are dismissed.
To the extent that defendant's arguments could be broadly construed to present the question of whether the State presented substantial evidence that the offenses occurred in Stokes County, they are without merit. There was conflicting evidence as to when the cocaine came into the detective's possession. When that evidence is viewed in the light most favorable to the State, testimony that defendant handed the crack cocaine to Officer Lloyd at her home in Stokes County was substantial evidence as to where the offenses occurred. See State v. Davis, 325 N.C. 693, 696-97, 386 S.E.2d 187, 189 (1989). The trial court therefore properly denied defendant's motion and submitted the case to the jury. As defendant failed to argue her remaining assignments of error in her brief, they are deemed abandoned. See N.C.R. App. P. 28(b)(6) (2007).
NO ERROR.
Judges HUNTER and McCULLOUGH concur.
Report per Rule 30(e).