State v. Ewart

• Court: Court of Appeals of North Carolina
• Decided: May 6, 2014
• Docket: 13-782
• Status: Unpublished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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-782 NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

STATE OF NORTH CAROLINA

v. Jackson County No. 11 CRS 1364 PATRICK LEE EWART

Appeal by defendant from judgment entered 8 August 2012 by

Judge Alan Z. Thornburg in Jackson County Superior Court. Heard

in the Court of Appeals on 31 March 2014.

Roy Cooper, Attorney General, by Lauren M. Clemmons, Special Deputy Attorney General, for the State.

David Belser for defendant-appellant.

DAVIS, Judge.

Defendant Patrick Lee Ewart (“Defendant”) appeals from the

judgment entered after a jury found him guilty of taking

indecent liberties with a child. Defendant contends the trial

court erred in admitting evidence of a previous sexual assault

committed by him. After careful review, we conclude that

Defendant received a fair trial free from error.

Factual Background -2- Brenda1, the victim in this case, babysat Defendant’s sons

during the summer and fall of 2010, when she was fifteen years

old. On 8 October 2010, Brenda was babysitting one of

Defendant’s sons at his home. Brenda took her younger brother

with her for the evening. Defendant and his wife were expected

to arrive home late, so Brenda and her brother planned to spend

the night. Brenda went to bed but woke up during the night

because she could sense someone else was in the room. When she

awoke, she saw Defendant. Defendant pulled back the covers and

touched Brenda on her right breast and in her vaginal area.

Later that day, Brenda told her boyfriend and family members

about the incident, and her family contacted the Jackson County

Sheriff’s Department.

Prior to trial, the State filed written notice of its

intent to introduce evidence of prior bad acts by Defendant

pursuant to Rule 404(b) of the North Carolina Rules of Evidence.

Defendant filed a motion in limine seeking to prevent the State

from presenting the Rule 404(b) evidence. On the second day of

trial, the trial court permitted both parties to conduct a voir

dire examination of a witness, “Samantha,” through which the

1 Pseudonyms are used throughout the opinion to protect the identities of individuals who were minors at the time of the incident. -3- State intended to offer Rule 404(b) evidence. Samantha

described an incident in which Defendant had allegedly groped

her breast and attempted to touch her vaginal area approximately

four years earlier. Following voir dire, the trial court ruled

the evidence was admissible pursuant to Rules 404(b) and 403.

Defendant noted an exception to the trial court’s ruling outside

the presence of the jury but did not object when Samantha

described the incident to the jury. The jury found Defendant

guilty of indecent liberties with a child. Defendant appealed

to this Court.

Analysis

In his sole argument on appeal, Defendant contends the

trial court erred by admitting Samantha’s testimony pursuant to

Rules 404(b) and 403. We first note that “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) (citation and quotation marks

omitted); N.C.R. App. P.10(a). -4- Here, Defendant did not object to Samantha’s testimony in

the presence of the jury and, therefore, did not preserve the

issue of the admissibility of that evidence for appellate

review. Id. Nevertheless, in criminal cases, issues that are

not preserved by a timely objection may still be raised on

appeal if the “judicial action questioned is specifically and

distinctly contended to amount to plain error.” N.C.R. App.

P.10(a)(4). Where a defendant does not “specifically and

distinctly” allege plain error, however, he is not entitled to

plain error review. State v. Davis, 202 N.C. App. 490, 497, 688

S.E.2d 829, 834 (2010), appeal dismissed, 365 N.C. 366, 719

S.E.2d 623 (2011); see also Ray, 364 N.C. at 278, 697 S.E.2d at

322.

Here, Defendant has not specifically and distinctly alleged

that the admission of Samantha’s testimony amounted to plain

error. In fact, Defendant’s brief contains no reference to the

plain error standard. Accordingly, we hold that Defendant has

waived his right to appellate review of this issue.

Conclusion

For the reasons stated above, we find that Defendant

received a fair trial free from error.

NO ERROR. -5- Judges McGEE and ELMORE concur.

Report per Rule 30(e).