State v. Isom , 52 N.C. App. 331 ( 1981 )

278 S.E.2d 327 (1981)

STATE of North Carolina
v.
Martha ISOM.

No. 8126SC19.

Court of Appeals of North Carolina.

June 2, 1981.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Elizabeth C. Bunting, Raleigh, for State.

Asst. Public Defender Cherie Cox, Charlotte, for defendant.

ROBERT M. MARTIN, Judge.

Defendant presents multiple assignments of error on this appeal. Assignments of Error Numbers 3, 4, 5, 6, 7, 8, 10, 12 and 13 are based upon Exceptions Numbers 3, 4, 5, 8, 9, 12, 14, 15 and 16. None of these exceptions, except Number 8, were properly preserved for review by noting an objection, nor were they deemed preserved or taken by rule or law. Rule 10(b)(1), N.C.Rules App.Proc. When there is no objection to an offer of evidence or a motion to strike after its admission, any objection or exception is lost. Unless objection is made at the proper time, it is waived. Dunn v. Brookshire, 8 N.C.App. 284, 174 S.E.2d 294 (1970). Although Exception Number 8 was properly preserved for review by noting an objection, we find no prejudicial error in the admission of the testimony challenged by that exception. These assignments of error are overruled.

Defendant's Assignment of Error Number 14 does not comply with Rule 10(b)(2), N.C.Rules App.Proc., in that the exceptions upon which the assignments are based fail to identify the portion of the charge in question by setting it within brackets or by any other clear means of reference. This assignment of error is therefore overruled.

By her first assignment of error, defendant contends the arrest warrant charging her with violation of N.C.Gen.Stat. § 14-226 is defective. The warrant reads in pertinent part as follows:

THE UNDERSIGNED FINDS THAT THERE IS PROBABLE CAUSE TO BELIEVE THAT ON OR ABOUT THE 15 DAY OF MAY, 1980 IN THE COUNTY NAMED ABOVE, THE DEFENDANT NAMED ABOVE DID UNLAWFULLY, WILFULLY & FELONIOUSLY THREATEN OR IN ANY OTHER MANNER INTIMIDATE OR ATTEMPT TO INTIMIDATE NANCIE PHILLIPS WHO HAD BEEN SUMMONED AS A WITNESS IN DISTRICT COURT OF THIS STATE, IN AN ATTEMPT TO PREVENT OR DETER THE SAID NANCIE PHILLIPS FROM ATTENDING COURT BY THREATENING BY TELEPHONE TO PHYSICALLY INJURE THE TEN YEAR OLD DAUGHTER OF THE SAID NANCIE PHILLIPS IF THE VICTIM DID NOT DROP CHARGES PREFERRED AGAINST THE DEFENDANT FOR COMMUNICATING THREATS IN VIOLATION OF THE FOLLOWING LAW: G.S. 14-226. (0)(0)(0). (Emphasis added.)

Defendant contends that the warrant, specifically the italicized language, is defective because it charges the offense disjunctively and failed to inform the defendant of the exact crime of which she was accused. We disagree.

We note initially that defendant never filed a motion to quash the warrant and never raised an objection to it prior to or during trial. Where the defendant seeks clarification of the State's theory for prosecution, the proper procedure is a motion for a bill of particulars. N.C.Gen.Stat. § 15A-925; State v. May, 292 N.C. 644, 235 S.E.2d 178, cert. denied, 434 U.S. 928, 98 S. Ct. 414, 54 L. Ed. 2d 288 (1977).

Assuming defendant did not waive her argument, it has no merit. The purpose of a criminal process is to give the defendant notice of the charge against her so that she may prepare a defense and to enable the trial court to know what judgment to pronounce in case of conviction. See State v. Squire, 292 N.C. 494, 234 S.E.2d 563, cert. denied, 434 U.S. 998, 98 S. Ct. 638, 54 L. Ed. 2d 493 (1977). The warrant in question clearly charged the defendant with violation of N.C.Gen.Stat. § 14-226 and specifically noted the criminal conduct to be tried. It met every requirement of N.C. Gen.Stat. §§ 15A-304 and 924. It is not fatally defective because the statutory language was utilized. This assignment of error is overruled.

By her ninth assignment of error, defendant attacks the testimony elicited from William Cody, Ms. Phillips' brother, during the following exchange:

Q. Since that time, since May 14, have you received any type calls from Martha Isom?

MR. ACTON: OBJECTION.

EXCEPTION NO. 10

THE COURT: OVERRULED.

A. Yes, I have. The next day, she called my number, which was the only number that she had for Nancy.

MR. ACTON: OBJECTION, MOVE TO STRIKE. He has no way of knowing that.

THE COURT: OVERRULED. Go ahead.

EXCEPTION NO. 11

Although we do not agree with defendant that the challenged testimony was hearsay, we are of the opinion that the trial court erred by failing to strike the challenged testimony, as no foundation had been laid for it. We fail to see, however, how the error prejudiced defendant's case. Ms. Phillips had previously testified, without objection, that defendant had called her while she was living with her brother. Mr. Cody had previously testified, without objection, that he had talked with defendant on the telephone many times and that he was familiar with her voice. The challenged testimony was not necessary to establish the caller's identity and, in fact, tended to impeach Ms. Phillips' previous testimony that defendant had called her at work. As defendant has failed to show that there is a reasonable probability that, had the error in question not been committed, a different result would have been reached at trial, N.C.Gen.Stat. § 15A-1443, the error is not grounds for a new trial. N.C.Gen.Stat. § 15A-1442(4)(c).

By her 11th assignment of error, defendant contends her motion to dismiss should have been allowed. We disagree. On a motion for nonsuit all the evidence must be taken in the light most favorable to the State. State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967). When thus viewed the evidence of the State was sufficient to carry the case to the jury, and the motion of the defendant for judgment of nonsuit was properly denied.

Defendant abandoned her second and fifteenth assignments of error in her appellate brief. After carefully reviewing the record on appeal, we find that defendant received a fair trial, free of prejudicial error.

No error.

WHICHARD and BECTON, JJ., concur.