State v. Morris

• Court: Court of Appeals of North Carolina
• Decided: January 20, 2015
• Docket: 14-619
• Status: Unpublished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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-619 NORTH CAROLINA COURT OF APPEALS

Filed: 20 January 2015

STATE OF NORTH CAROLINA

v. Cabarrus County Nos. 12 CRS 54772, 13 CRS 1190 JAMES ALLAN MORRIS

Appeal by defendant from judgment entered 8 January 2014 by

Judge Christopher W. Bragg in Cabarrus County Superior Court.

Heard in the Court of Appeals 15 December 2014.

Attorney General Roy Cooper, by Assistant Attorney General Thomas H. Moore, for the State.

Unti & Smith, PLLC, by Sharon L. Smith for defendant- appellant.

STEELMAN, Judge.

Where the testimony of an officer was offered to explain

his subsequent actions and the trial court gave the jury a

limiting instruction to that effect, the admission of the

testimony was not error.

I. Factual and Procedural Background -2- On 11 August 2012, Officer Anthony Vandevoorde of the

Concord Police Department was on routine patrol when he stopped

at the magistrate’s office to retrieve some papers. As he

approached the building housing the magistrate’s office, he

observed a white male standing on the sidewalk and watching him.

Officer Vandevoorde entered the magistrate’s office, where

he was approached by a bondsman. The bondsman gave Officer

Vandevoorde the name and description of James Allan Morris

(defendant) and told him that she was looking for defendant.

Officer Vandevoorde told her he had not seen him, and then

returned to his vehicle and searched for defendant on his laptop

computer. When he saw defendant’s Department of Motor Vehicle

photo, he realized that it looked just like the man he had seen

earlier on the street. Officer Vandevoorde then confirmed that

there was an outstanding warrant for defendant’s arrest.

Officer Vandevoorde began circling the area looking for

defendant. When he observed a moped parked across the street

from What-a-Burger, he recalled that the bondsman had mentioned

that defendant drove a moped, and circled back to What-a-Burger.

The moped was gone, but the bondsman was standing in the parking

lot. Officer Vandevoorde asked the bondsman if she had any

additional information about defendant, and she responded that -3- she had just spoken with him, and he was at Danny’s, a local gas

station.

Officer Vandevoorde went to Danny’s and found defendant,

who attempted to drive away on his moped. He drove ten or

fifteen feet, when he was forced to stop by another officer who

had entered Danny’s parking lot. Officer Vandevoorde placed

defendant under arrest. While talking with defendant, Officer

Vandevoorde noticed an odor of alcohol upon his breath, and

asked defendant if he had been drinking. Defendant told him he

had been drinking the night before. Officer Vandevoorde observed

that defendant had “glassy red eyes” and smelled like alcohol.

He administered field sobriety tests to defendant, and defendant

performed poorly on the tests. Officer Vandevoorde determined

that defendant was impaired, arrested him for driving while

impaired, and transported him to the Cabarrus County Jail.

Defendant was administered an intoxilyzer which showed that he

had a blood alcohol concentration of .10.

Defendant was indicted for the felony of habitual impaired

driving, and for having attained the status of habitual felon.

On 8 January 2014, defendant stipulated to the existence of

three prior convictions for driving while impaired. A jury found

defendant guilty of driving while impaired, and defendant was

thus guilty of habitual impaired driving. Defendant then pled -4- guilty to having attained the status of an habitual felon. The

trial court sentenced defendant to an active term of 90 to 120

months imprisonment.

Defendant appeals.

II. Admission of Statements of Bondsman

In his sole argument on appeal, defendant contends that the

trial court erred by admitting the statements made by the

bondsman to Officer Vandevoorde. We disagree.

Officer Vandevoorde testified that the bondsman:

asked me if I noticed a gentleman outside, gave me a brief description of him. [I] [t]old her kind of sort of, not really, didn’t see that person in particularly [sic]. She gave me his name, said that she was looking for him. I retrieved my papers, went back to my patrol car. We have a laptop in our car. We can access DMV databases, NCIC, which is a national database, and we can also access all warrants in the state of North Carolina. Ran the name and date of birth, which time gave me a person. And we’re also able to retrieve your DMV photos from when they take your photo when you get your license. When I pulled up the DMV photo, it looked just like the gentleman that I saw earlier standing on Church Street near Corban. Took that information, had communications check. I also checked to see if there was in fact a warrant for his arrest, and at which time it was confirmed that he did actually have a warrant for his arrest.

Defendant contends that the bondsman’s conversation with Officer

Vandevoorde constituted inadmissible hearsay and conveyed to the -5- jury that defendant was involved in another criminal matter.

Defendant further asserts that the admission of this testimony

was reversible error requiring a new trial.

N.C. Gen. Stat. § 8C–1, Rule 801(c) (2013) defines

“hearsay” as “a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to

prove the truth of the matter asserted.” While hearsay is

generally inadmissible, an out-of-court statement offered for

some purpose other than to prove the truth of the matter

asserted is admissible as non-hearsay evidence. State v. Gainey,

355 N.C. 73, 87, 558 S.E.2d 463, 473, cert. denied, 537 U.S.

896, 154 L. Ed. 2d 165 (2002). “Specifically, statements are not

hearsay if they are made to explain the subsequent conduct of

the person to whom the statement was directed.” Id. “When

preserved by an objection, a trial court’s decision with regard

to the admission of evidence alleged to be hearsay is reviewed

de novo.” State v. Johnson, 209 N.C. App. 682, 692, 706 S.E.2d

790, 797 (2011).

We hold that Officer Vandevoorde’s testimony regarding his

conversation with the bondsman was not hearsay because it was

admitted solely to provide a context for the officer’s

subsequent course of conduct and explain why he went in search

of defendant. Additionally, Officer Vandevoorde’s testimony -6- about his conversation with the bondsman was devoid of any

prejudicial information regarding the reason the bondsman was

looking for defendant. Moreover, the trial court gave a limiting

instruction to the jury, directing it that “any statements

Officer Vandevoorde gives you concerning what the bondsman, what

she told him, are not being offered for the truth of the matter

asserted. They are being offered to explain what Officer

Vandevoorde’s actions were in response to these statements.”

“The law presumes that the jury heeds limiting instructions that

the trial judge gives regarding the evidence.” State v. Riley,

202 N.C. App. 299, 303, 688 S.E.2d 477, 480 (2010). Accordingly,

we conclude the trial court did not err by admitting this

testimony.

Defendant also contends that the challenged portions of

Officer Vandevoorde’s testimony were irrelevant and unfairly

prejudicial under North Carolina Rules of Evidence 401 and 403,

or constituted prior bad acts that should not have been admitted

in accordance with Rule 404(b). However, defendant’s objection

at trial was not based upon irrelevancy, unfair prejudice or

prior bad acts. These arguments were not preserved for appellate

review, and are dismissed. N.C. Rule of Appellate Procedure

28(b)(6).

We hold that defendant received a trial free from error. -7- NO ERROR.

Judges ELMORE and DILLON concur.

Report per Rule 30(e).