State v. Kay ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-570
NORTH CAROLINA COURT OF APPEALS
Filed: 21 January 2014
STATE OF NORTH CAROLINA
v. Wayne County
No. 11 CRS 5499
TAMMY LYNN KAY
Appeal by defendant from judgment entered 31 May 2012 by
Judge W. Allen Cobb in Wayne County Superior Court. Heard in
the Court of Appeals 30 December 2013.
Attorney General Roy Cooper, by Assistant Attorney General
Ebony J. Pittman, for the State.
Gilda C. Rodriguez for defendant-appellant.
HUNTER, JR., Robert N., Judge.
A jury found defendant guilty of attempted misdemeanor
larceny. The trial court sentenced her to thirty days in jail,
suspended, and placed her on eighteen months of supervised
probation. Defendant filed timely notice of appeal.
On the morning of 16 September 2011, John Tyndall observed
a white pickup truck parked in the driveway of a vacant house at
665 Vail Road owned by his friend, Facie Denning, who lived
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across the street from the property. The truck was backed into
the driveway “at a 45 degree angle to the back corner of the
house.” Knowing that Denning did not drive a white truck,
Tyndall decided to investigate. To the left of the vehicle, he
saw an unfamiliar male and female – subsequently identified as
Marvin Aldridge and defendant – “slouched down in a leaning
forward position” as though “grabbing ahold of something [and]
pulling it.” When they saw Tyndall, defendant and Aldridge
stood up with a “deer in the headlight look” and started walking
toward him. When Tyndall asked why they were on the property,
“[t]hey kind of hemmed and hawed around and . . . said oh we’re
– we were just checking out the house and – and ah, somebody had
told us it was for rent.” After telling the pair that they had
been misinformed and that the owner of the property lived across
the street, Tyndall phoned Denning and saw him step out of his
house onto his driveway.
As defendant and Aldridge walked back to their truck,
Tyndall spotted Denning’s “tiller sitting behind” where they had
been standing. The tiller had been moved five or six feet from
its usual location under a piece of sheet metal behind a shed in
the back yard. Fresh dirt along the grass leading to the tiller
made it “pretty evident that it had just been moved.” Tyndall
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noted the truck’s license number and phoned the sheriff’s
department as defendant and Aldridge drove across the road
toward Denning’s residence.
Defendant and Aldridge spoke to Denning briefly in his
driveway. They claimed to be from Pikeville and “said that they
had heard that the house was for rent and they were interested
in renting the house.” Denning, who bought the property in 1958
and had never rented it or advertised it for rent, told them the
house was not in a condition for renting. Defendant and
Aldridge backed out of Denning’s driveway and drove away just
before a sheriff’s deputy arrived.
When Denning joined Tyndall to look over the property, they
discovered that “a piece of copper going from [an] oil drum to
[the] house . . . had been broken off and some more other pieces
of metal” previously strewn around the barn “had been grouped
together and laid in a pile” in the walkway between the barn and
the house. Denning acknowledged that he had not been to the
property in “a day or two” but noted the “freshly moved” earth
and marks on the grass where the tiller had been dragged.
Captain Richard Lewis of the Wayne County Sheriff’s
Department responded to 665 Vail Road within five minutes of
Tyndall’s call. Tyndall and Denning described their encounter
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with the occupants of the white pickup truck and showed Lewis
the tiller, copper tubing, and scrap metal that had been moved.
Captain Lewis conveyed the information to Detective Lieutenant
Keith Harris, who had located the white pickup truck on U.S. 117
North in the Belfast community. Aldridge was driving the
vehicle, and defendant was in the passenger seat. Defendant and
Aldridge told Harris that they were looking for a house to rent,
and that defendant “had been told [by] someone that [Denning’s]
house was for rent.” After conferring with Captain Lewis,
Detective Harris “wrote both of them a citation for the
attempted larceny of the scrap metal and the tiller.”
On appeal, defendant claims the trial court erred in
overruling her objection to a portion of Detective Harris’
testimony describing his investigation of the incident.
Specifically, she challenges the detective’s statement that he
consulted the records of local scrap dealers to determine
whether they had previous interactions with Aldridge:
Q. What else did you discuss with
[defendant]?
A. How long she had been, you know, dating
. . . this gentleman.
Q. And what did you do after that?
A. Based on what I had found out from
Captain Lewis and reviewing what they had
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told me about being there at the home I also
did a records check with local scrap yards
to find out information on Mr. Aldridge, and
based on the information I was able to find
there, and also the information I found from
Captain Lewis, and inconsistencies in the
story and, you know, everything that
happened there at the scene I –
[DEFENSE COUNSEL]: Objection, your Honor.
Mr. Aldridge is not on trial in this case.
I’d object on relevance grounds –
THE COURT: Overruled.
. . . .
[PROSECUTOR]: Go ahead, sir.
A. I wrote both of them a citation for the
attempted larceny of the scrap metal and the
tiller.
(Emphasis added). Defendant contends that Detective Harris’
allusion to his contact with local scrap yards was either
irrelevant to the charge against her or unduly prejudicial in
view of its limited probative value. See N.C. R. Evid. 401,
403.
Notwithstanding her objection immediately following the
contested testimony, we conclude that defendant has failed to
preserve this issue for appellate review:
“Where inadmissibility of testimony is not
indicated by the question, but appears only
in the witness’ response, the proper form of
objection is a motion to strike the answer,
or the objectionable part of it, made as
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soon as the inadmissibility is evident.”
When counsel objects after a witness has
answered the question and fails to make a
motion to strike, the objection is waived.
State v. Gamez, __ N.C. App. __, __, 745 S.E.2d 876, 877 (2013)
(quoting State v. Goss, 293 N.C. 147, 155, 235 S.E.2d 844, 850
(1977); citing State v. Curry, 203 N.C. App. 375, 387, 692
S.E.2d 129, 138 (2010)). The transcript shows that defendant
made no motion to strike Detective Harris’ testimony.
Accordingly, she waived her objection. Because she has not
sought plain error review pursuant to N.C. R. App. P. 10(a)(4),
her argument is overruled. Id. at __, 745 S.E.2d at 878.
No error.
Chief Judge MARTIN and Judge DILLON concur.
Report per Rule 30(e).