Opinion
No. COA12–1197.
2013-06-4
STATE of North Carolina v. Mary Elizabeth LAYTON.
Attorney General Roy Cooper, by Assistant Attorney General Brian R. Berman, for the State. Anna S. Lucas for defendant-appellant.
Appeal by defendant from judgment entered 21 March 2012 by Judge Joseph N. Crosswhite in Cabarrus County Superior Court. Heard in the Court of Appeals 25 April 2013. Attorney General Roy Cooper, by Assistant Attorney General Brian R. Berman, for the State. Anna S. Lucas for defendant-appellant.
ELMORE, Judge.
Mary Elizabeth Layton (defendant) appeals from judgment consistent with jury verdicts finding her guilty of obtaining property by false pretenses and forgery of an instrument, and her guilty plea to attaining habitual felon status. After careful consideration, we find no error, because defendant did not properly preserve her sole issue on appeal.
The State's evidence tended to show that in September 2009, defendant signed a lease to rent a mobile home from Robert Faggart for $550.00 per month. After defendant gave Robert two rent checks that were returned for insufficient funds, Robert initiated eviction proceedings against defendant. Robert waived the proceedings when defendant gave him a check dated 20 July 2010 for $2,310.00, which would pay for four months of rent and court costs. Robert attempted to cash the July 2010 check at his bank, but was told that the check was drawn on a nonexistent account. A Cabarrus County Sheriff's detective confirmed that the routing number on the July 2010 check did not exist. When the detective interviewed defendant, she made a written statement in which she admitted using a check-writing computer program to make the July 2010 check.
At trial, the State proffered the testimony of Cabarrus County Sheriff's Department Sergeant Tessa Burchett, who had investigated defendant for an identity theft crime in 2007. The trial court conducted a voir dire examination of Sergeant Burchett's testimony. Defendant objected to the testimony being admitted into evidence, arguing that prior crime testimony was inadmissible under North Carolina Rule of Evidence, Rule 404(b). The trial court allowed the testimony and Sergeant Burchett later testified in front of the jury about her investigation of defendant.
Defendant testified that her husband gave her the July 2010 check; that she did not know the details of how the check was created; and that she made the statement implicating herself because her husband was ill. On cross-examination, defendant admitted to her prior convictions, which included the 2007 attempted identity theft conviction. Defendant testified that the conviction arose from her use of her sister-in-law's date of birth and social security number to apply for a credit card online.
A jury found defendant guilty of obtaining property by false pretenses and forgery of an instrument. Defendant subsequently pled guilty to attaining habitual felon status. The trial court sentenced defendant as a Class C felon to 72 to 96 months imprisonment.
In her sole argument on appeal, defendant contends that the trial court erred in allowing Sergeant Burchett to testify about defendant's 2007 crime of identity theft. We decline to address this argument.
A party must present a “timely request, objection, or motion” to preserve an issue for appeal. N.C.R.App. P. 10(a)(1). Our Supreme Court has stated:
Generally speaking, the appellate courts of this state will not review a trial court's decision to admit evidence unless there has been a timely objection. To be timely, an objection to the admission of evidence must be made “at the time it is actually introduced at trial.” ... As such, in order to preserve for appellate review a trial court's decision to admit testimony, “objections to [that] testimony must be contemporaneous with the time such testimony is offered into evidence” and not made only during a hearing out of the jury's presence prior to the actual introduction of the testimony.
State v. Ray, 364 N.C. 272, 277, 697 S.E.2d 319, 322 (2010) (internal citations and footnote omitted) (alteration original).
Here, defendant argued before the trial court that the evidence concerning her 2007 conviction should not be admitted at trial; however, defendant failed to object to the admission of this evidence in the presence of the jury when the evidence was offered. Therefore, defendant's argument is waived. We note that even if defendant had objected to Sergeant Burchett's testimony in the presence of the jury, the issue was not preserved for appellate review because the same evidence was admitted without objection during defendant's cross-examination. See State v. Whitley, 311 N.C. 656, 660–61, 319 S.E.2d 584, 587–88 (1984) (standing for the proposition that evidence admitted over objection after the same evidence had been previously admitted or is later admitted without objection loses the benefit of the objection). Finally, defendant has not argued that the trial court's admission of Sergeant Burchett's testimony amounted to plain error, and we therefore hold that this issue is not properly before us. See State v. Oglesby, 361 N.C. 550, 554, 648 S.E.2d 819, 821 (2007); see alsoN.C.R.App. P. 10(a)(4) (“In criminal cases, an issue that was not preserved by objection noted at trial ... may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.”)
In sum, we conclude that defendant has waived the right to have this issue reviewed because she 1) failed to object to the admission of the challenged evidence in the presence of the jury, 2) failed to object to the admission of the challenged evidence during cross-examination, and 3) failed to argue plain error on appeal.
No error. Judges GEER and DILLON concur.
Report per Rule 30(e).