State v. Howard ( 2013 )

STEELMAN, Judge.

Where defendant objected upon one basis before the trial court, he cannot “swap horses” and argue a different theory on appeal. Where defendant does not argue the objection made before the trial court on appeal, we must dismiss his appeal.

I. Factual and Procedural Background

At about 10:53 P.M. on 20 November 2010, Kannapolis Police Department Officer Christopher D. Hill (Officer Hill) observed a Cadillac De Ville traveling east on Dale Earnhardt Boulevard in Kannapolis. Officer Hill stopped the vehicle because the license plate light was not working. Brandon Eugene Martin (Martin) was in the driver’s seat, and Mason Howard (defendant) was in the front passenger seat. The vehicle was owned by Martin’s girlfriend.

Officer Hill approached the vehicle and asked both Martin and defendant for identification. Defendant gave Officer Hill a North Carolina identification card; Martin provided a North Carolina driver’s license. Martin and defendant told Officer Hill they were driving from Charlotte to Kannapolis for a cook-out. Officer Hill ran their names through the Kannapolis Police Department Communication Center. There was an outstanding warrant for defendant’s arrest from Mecklenburg County for possession of a firearm by a felon. The information stated that defendant was considered armed and dangerous. Officer Hill called for backup and Officer Carpenter responded to the scene of the stop.

With Officer Carpenter present, Officer Hill approached the passenger side of the vehicle and asked defendant to exit the vehicle. When defendant stepped out of the vehicle, Officer Hill noticed an open vodka bottle in a paper bag at defendant’s feet. Officer Hill advised defendant of the outstanding arrest warrant. Defendant was arrested and placed inside a patrol car.

Officer Hill called another Kannapolis police officer, Officer Hamilton, to bring a drug-sniffing dog to the scene of the stop. When Officer Hamilton arrived, he had Martin exit the vehicle and then led the dog around the vehicle. At the driver’s side door, the dog indicated that the vehicle contained drugs. After the dog alerted to the presence of drugs, Martin admitted he had marijuana on the rear seat of the vehicle. Officer Hamilton then searched the vehicle and found thirteen grams of marijuana inside Martin’s baseball cap on the driver’s side rear seat. After Officer Hamilton confiscated the marijuana, Officer Hill searched the rest of the vehicle.

When Officer Hill searched the front passenger area, he confiscated the open vodka bottle from the front floorboard. While collecting the vodka bottle, Officer Hill discovered a loaded 38-caliber revolver underneath the passenger seat where defendant had been sitting. After Officer Hill found the revolver, he placed Martin in handcuffs. Martin denied any knowledge of the revolver. Officer Hill charged Martin with: (1) driving while impaired; and (2) possession of marijuana. Martin was then taken to the Kannapolis Police Department for processing.

Officer Hill also took defendant to the Kannapolis Police Department to process him for the outstanding Mecklenburg County arrest warrant. A criminal record check at the police department revealed that defendant had previously been convicted of a felony in 2007: conspiracy to commit robbery with a dangerous weapon. Officer Hill also discovered defendant had another outstanding Mecklenburg County arrest warrant for carrying a concealed weapon.

On 13 December 2010, defendant was indicted for: (1) possession of a firearm by a felon; (2) carrying a concealed weapon; and (3) possession of an open container of alcohol (for the vodka bottle).

Defendant was tried at the 7 February 2012 Criminal Session of Cabarrus County Superior Court. The State called Officer Sean Parker (Officer Parker) of the Charlotte-Mecklenburg Police Department to testify about a previous encounter with defendant in Charlotte a few months earlier. The State offered Officer Parker’s testimony pursuant to Rule 404(b) of the North Carolina Rules of Evidence. At the conclusion of a voir dire hearing, the trial court overruled defendant’s objection, determining that “the probative value of the testimony outweighs any unfair prejudice to the defendant under Rule 403.”

The jury found defendant guilty of: (1) carrying a concealed weapon; and (2) possession of a firearm by a felon. The trial court dismissed the charge of possession of an open container of alcohol. Defendant was sentenced to an active sentence of 14-17 months for possession of a firearm by a felon and a consecutive active sentence of 45 days for carrying a concealed weapon.

Defendant appeals.

II. Standard of Review

“In order to preserve a question for appellate review, a party must have presented the trial court with a timely request, objection or motion, stating the specific grounds for the ruling sought if the specific grounds are not apparent.” State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991); see also N.C.R. App. P. 10(a)(1).

III. Analysis

In his arguments on appeal, defendant contends that the trial court erred in admitting Officer Parker’s testimony concerning defendant’s prior acts. We disagree.

The trial court conducted a hearing outside of the presence of the jury to determine the admissibility of Officer Parker’s testimony concerning the incident that occurred on 14 July 2010 in Mecklenburg County.

Officer Parker testified that on 14 July 2010 he was dispatched to a breaking and entering in progress. When he arrived, Officer Parker saw defendant talking to another police officer. As Officer Parker approached, he saw defendant flee, tossing a black semi-automatic handgun into nearby bushes. Officer Parker chased defendant for about 200 yards. He eventually caught defendant and arrested him for: (1) possession of a firearm by a felon; (2) carrying a concealed weapon; and (3) resisting a public officer.

Following the State’s proffer, counsel for defendant made the following objection:

MR. COOK: I apologize for my voice. I’m having a difficulty this week. Thank you. No further questions, but, Your Honor, I do object to the proffer of all the evidence under 404(B) as being prejudicial. The prejudice to my client would outweigh the probative value in regard to the facts of this case.

THE COURT: You’re making your objection under Rule 403.

MR. COOK: I am.

The trial court made two rulings at the conclusion of the voir dire hearing: first, that the testimony was admissible under Rule 404(b) of the North Carolina Rules of Evidence; and second, that “the probative value of the testimony outweighs any unfair prejudice to the defendant under Rule 403.” Defendant’s objection to the evidence was only as to its prejudicial effect, not its admissibility. The objection was phrased in terms that the “prejudice to my client would outweigh the probative valué in regard to the facts of this case.” The court then specifically confirmed with counsel that the objection was being made under Rule 403.

Although defendant mentioned Rule 404(b) in his objection, it is clear that the objection was made pursuant to Rule 403. As defendant did not object pursuant to Rule 404(b), such objection is not preserved on appeal, unless plain error is argued. See State v. Lawrence,_N.C. _,_, 723 S.E.2d 326, 334 (2012). Defendant has not argued plain error on appeal.

Defendant objected pursuant to Rule 403. However, in his brief to this Court, defendant fails to argue error under Rule 403, and makes his entire argument under Rule 404(b). Any argument pertaining to Rule 403 is deemed abandoned. See N.C. R. App. P. 28(b)(6).

A defendant cannot “swap horses between courts in order to get a better mount[.]” Wood v. Weldon, 160 N.C. App. 697, 699, 586 S.E.2d 801, 803 (2003) (quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)). Defendant cannot object under Rule 403 at trial and then argue under Rule 404(b) on appeal.

Because defendant failed to object under Rule 404(b) at trial, and failed to argue under Rule 403 on appeal, we dismiss defendant’s appeal.

DISMISSED.

Judge GEER concurs. Judge HUNTER, Jr., Robert N., dissents in a separate opinion.