State v. Earle

• Court: Court of Appeals of North Carolina
• Decided: June 17, 2014
• Docket: 13-1237
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1237 NORTH CAROLINA COURT OF APPEALS

Filed: 17 June 2014 STATE OF NORTH CAROLINA

v. Madison County No. 12 CRS 50550 THEODORE JAMES EARLE

Appeal by Defendant from judgment entered 6 May 2013 by

Judge Bradley B. Letts in Superior Court, Madison County. Heard

in the Court of Appeals 3 June 2014.

Attorney General Roy Cooper, by Assistant Attorney General Elizabeth N. Strickland, for the State.

Jarvis John Edgerton, IV for Defendant.

McGEE, Judge.

Theodore James Earle (“Defendant”) was convicted of making

a false bomb report and misuse of the 911 system. Defendant

received a minimum sentence of four months and a maximum of

fourteen months, suspended. Defendant appeals.

The evidence at trial tended to show that, on the morning

of 30 June 2012, Defendant was camping with two friends at the

Hot Springs campground (“the campground”) in Madison County.

Defendant called 911 to report seeing “a bomb type item stuck -2- underneath the railroad trestle.” Local law enforcement

officers responded to the campground to investigate. The

officers searched the area for approximately an hour, but did

not find a bomb. The officers escorted Defendant to the

railroad trestle (“the trestle”) and Defendant identified the

area where he claimed to have seen the bomb. However, no bomb

was located in that area. Once the officers determined there

was no “bomb type item” under the trestle, they arrested

Defendant and his two friends. At the time of Defendant’s

arrest, he was administered an alka-sensor test that indicated

the presence of alcohol in his system.

At trial, Defendant’s psychiatrist, Dr. Ricardo Bierrnbach

(“Dr. Bierrnbach”), testified that Defendant suffered from

“attention deficit, hypertension disorder, major depression

disorder, and general anxiety with panic attacks[,]” and that he

had prescribed “a number of medications . . . includ[ing]

Vyvanse[,]” for Defendant to help address his symptoms. Dr.

Bierrnbach testified that Vyvanse, particularly when combined

with alcohol, could cause a “[p]sychosis [] present[ed] [] in

the form of hallucinations.”

Defendant asked Dr. Bierrnbach if, in his expert opinion,

he believed Defendant was, in fact, “suffering [from] some sort

of hallucination” at the time of the incident. The State -3- objected and the trial court sustained the objection.

Subsequently, the trial court allowed Dr. Bierrnbach to testify

to the possibility of hallucinations occurring when prescription

drugs and alcohol were mixed.

In Defendant’s sole argument on appeal, he contends the

trial court erred by preventing Dr. Bierrnbach from giving his

expert opinion concerning whether Defendant was suffering from

hallucinations at the time Defendant placed his call to 911. We

disagree.

We must first determine if Defendant has preserved this

argument for appellate review. It is well settled that “[t]o

prevail on a contention that evidence was improperly excluded,

either a defendant must make an offer of proof as to what the

evidence would have shown or the relevance and content of the

answer must be obvious from the context of the questioning.”

State v. Geddie, 345 N.C. 73, 95, 478 S.E.2d 146, 157 (1996)

(citation omitted). “This Court has explained that ‘[t]he

reason for such a rule is that the essential content or

substance of the witness’ testimony must be shown before we can

ascertain whether prejudicial error occurred.’” State v.

Jacobs, 195 N.C. App. 599, 609, 673 S.E.2d 724, 730 (2009)

(citation omitted). -4- Specifically, Defendant argues that Dr. Bierrnbach should

have been allowed to answer the following question: “Based on

your expert knowledge and your experience in treating

[Defendant] and knowing what happened on [30 June 2012], do you

believe, in spite of the event, he was suffering some sort of

hallucination?”

Defendant contends Dr. Bierrnbach’s excluded testimony

would have tended to show that Defendant “suffered from

hallucinations during a psychotic episode on [30 June 2012]

caused by the mixture of the legally prescribed drug Vyvanse and

alcohol.” The trial court sustained the State’s objection,

preventing Dr. Bierrnbach from answering the question. “In the

absence of an adequate offer of proof, ‘[w]e can only speculate

as to what [Dr. Bierrnbach’s] answer would have been.’” State

v. Barton, 335 N.C. 741, 749, 441 S.E.2d 306, 310-311 (1994)

(citation omitted). Although it is clear the answer Defendant

was attempting to elicit from Dr. Bierrnbach, and while

Defendant contends Dr. Bierrnbach’s excluded expert testimony

was readily apparent, Dr. Bierrnbach might have responded to the

inquiry in a different manner than Defendant expected. “It is

speculative for this Court to attempt to presume [a witness’]

testimony.” State v. Atkins, 349 N.C. 62, 79, 505 S.E.2d 97,

108 (1998); see State. v. Lawrence, 352 N.C. 1, 21-22, 530 -5- S.E.2d 807, 820 (2000).

Because “[t]he answer to [D]efendant’s question was not

evident, and ‘[t]he substance of the excluded testimony was not

necessarily apparent from the context within which the question

was asked[,]’” State v. Williams, 355 N.C. 501, 534, 565 S.E.2d

609, 629 (2002) (citation omitted), “[D]efendant has waived his

right to challenge th[is] ruling[] on appeal.” Jacobs, 195 N.C.

App. at 609, 673 S.E.2d at 730 (citation omitted). Defendant’s

argument is without merit.

No error.

Judges HUNTER, Robert C. and ELMORE concur.

Report per Rule 30(e).