State v. Earle ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1237
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
STATE OF NORTH CAROLINA
v. Madison County
No. 12 CRS 50550
THEODORE JAMES EARLE
Appeal by Defendant from judgment entered 6 May 2013 by
Judge Bradley B. Letts in Superior Court, Madison County. Heard
in the Court of Appeals 3 June 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Elizabeth N. Strickland, for the State.
Jarvis John Edgerton, IV for Defendant.
McGEE, Judge.
Theodore James Earle (“Defendant”) was convicted of making
a false bomb report and misuse of the 911 system. Defendant
received a minimum sentence of four months and a maximum of
fourteen months, suspended. Defendant appeals.
The evidence at trial tended to show that, on the morning
of 30 June 2012, Defendant was camping with two friends at the
Hot Springs campground (“the campground”) in Madison County.
Defendant called 911 to report seeing “a bomb type item stuck
-2-
underneath the railroad trestle.” Local law enforcement
officers responded to the campground to investigate. The
officers searched the area for approximately an hour, but did
not find a bomb. The officers escorted Defendant to the
railroad trestle (“the trestle”) and Defendant identified the
area where he claimed to have seen the bomb. However, no bomb
was located in that area. Once the officers determined there
was no “bomb type item” under the trestle, they arrested
Defendant and his two friends. At the time of Defendant’s
arrest, he was administered an alka-sensor test that indicated
the presence of alcohol in his system.
At trial, Defendant’s psychiatrist, Dr. Ricardo Bierrnbach
(“Dr. Bierrnbach”), testified that Defendant suffered from
“attention deficit, hypertension disorder, major depression
disorder, and general anxiety with panic attacks[,]” and that he
had prescribed “a number of medications . . . includ[ing]
Vyvanse[,]” for Defendant to help address his symptoms. Dr.
Bierrnbach testified that Vyvanse, particularly when combined
with alcohol, could cause a “[p]sychosis [] present[ed] [] in
the form of hallucinations.”
Defendant asked Dr. Bierrnbach if, in his expert opinion,
he believed Defendant was, in fact, “suffering [from] some sort
of hallucination” at the time of the incident. The State
-3-
objected and the trial court sustained the objection.
Subsequently, the trial court allowed Dr. Bierrnbach to testify
to the possibility of hallucinations occurring when prescription
drugs and alcohol were mixed.
In Defendant’s sole argument on appeal, he contends the
trial court erred by preventing Dr. Bierrnbach from giving his
expert opinion concerning whether Defendant was suffering from
hallucinations at the time Defendant placed his call to 911. We
disagree.
We must first determine if Defendant has preserved this
argument for appellate review. It is well settled that “[t]o
prevail on a contention that evidence was improperly excluded,
either a defendant must make an offer of proof as to what the
evidence would have shown or the relevance and content of the
answer must be obvious from the context of the questioning.”
State v. Geddie, 345 N.C. 73, 95, 478 S.E.2d 146, 157 (1996)
(citation omitted). “This Court has explained that ‘[t]he
reason for such a rule is that the essential content or
substance of the witness’ testimony must be shown before we can
ascertain whether prejudicial error occurred.’” State v.
Jacobs, 195 N.C. App. 599, 609, 673 S.E.2d 724, 730 (2009)
(citation omitted).
-4-
Specifically, Defendant argues that Dr. Bierrnbach should
have been allowed to answer the following question: “Based on
your expert knowledge and your experience in treating
[Defendant] and knowing what happened on [30 June 2012], do you
believe, in spite of the event, he was suffering some sort of
hallucination?”
Defendant contends Dr. Bierrnbach’s excluded testimony
would have tended to show that Defendant “suffered from
hallucinations during a psychotic episode on [30 June 2012]
caused by the mixture of the legally prescribed drug Vyvanse and
alcohol.” The trial court sustained the State’s objection,
preventing Dr. Bierrnbach from answering the question. “In the
absence of an adequate offer of proof, ‘[w]e can only speculate
as to what [Dr. Bierrnbach’s] answer would have been.’” State
v. Barton, 335 N.C. 741, 749, 441 S.E.2d 306, 310-311 (1994)
(citation omitted). Although it is clear the answer Defendant
was attempting to elicit from Dr. Bierrnbach, and while
Defendant contends Dr. Bierrnbach’s excluded expert testimony
was readily apparent, Dr. Bierrnbach might have responded to the
inquiry in a different manner than Defendant expected. “It is
speculative for this Court to attempt to presume [a witness’]
testimony.” State v. Atkins, 349 N.C. 62, 79, 505 S.E.2d 97,
108 (1998); see State. v. Lawrence, 352 N.C. 1, 21-22, 530
-5-
S.E.2d 807, 820 (2000).
Because “[t]he answer to [D]efendant’s question was not
evident, and ‘[t]he substance of the excluded testimony was not
necessarily apparent from the context within which the question
was asked[,]’” State v. Williams, 355 N.C. 501, 534, 565 S.E.2d
609, 629 (2002) (citation omitted), “[D]efendant has waived his
right to challenge th[is] ruling[] on appeal.” Jacobs, 195 N.C.
App. at 609, 673 S.E.2d at 730 (citation omitted). Defendant’s
argument is without merit.
No error.
Judges HUNTER, Robert C. and ELMORE concur.
Report per Rule 30(e).