State v. Ewart ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-782
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Jackson County
No. 11 CRS 1364
PATRICK LEE EWART
Appeal by defendant from judgment entered 8 August 2012 by
Judge Alan Z. Thornburg in Jackson County Superior Court. Heard
in the Court of Appeals on 31 March 2014.
Roy Cooper, Attorney General, by Lauren M. Clemmons,
Special Deputy Attorney General, for the State.
David Belser for defendant-appellant.
DAVIS, Judge.
Defendant Patrick Lee Ewart (“Defendant”) appeals from the
judgment entered after a jury found him guilty of taking
indecent liberties with a child. Defendant contends the trial
court erred in admitting evidence of a previous sexual assault
committed by him. After careful review, we conclude that
Defendant received a fair trial free from error.
Factual Background
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Brenda1, the victim in this case, babysat Defendant’s sons
during the summer and fall of 2010, when she was fifteen years
old. On 8 October 2010, Brenda was babysitting one of
Defendant’s sons at his home. Brenda took her younger brother
with her for the evening. Defendant and his wife were expected
to arrive home late, so Brenda and her brother planned to spend
the night. Brenda went to bed but woke up during the night
because she could sense someone else was in the room. When she
awoke, she saw Defendant. Defendant pulled back the covers and
touched Brenda on her right breast and in her vaginal area.
Later that day, Brenda told her boyfriend and family members
about the incident, and her family contacted the Jackson County
Sheriff’s Department.
Prior to trial, the State filed written notice of its
intent to introduce evidence of prior bad acts by Defendant
pursuant to Rule 404(b) of the North Carolina Rules of Evidence.
Defendant filed a motion in limine seeking to prevent the State
from presenting the Rule 404(b) evidence. On the second day of
trial, the trial court permitted both parties to conduct a voir
dire examination of a witness, “Samantha,” through which the
1
Pseudonyms are used throughout the opinion to protect the
identities of individuals who were minors at the time of the
incident.
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State intended to offer Rule 404(b) evidence. Samantha
described an incident in which Defendant had allegedly groped
her breast and attempted to touch her vaginal area approximately
four years earlier. Following voir dire, the trial court ruled
the evidence was admissible pursuant to Rules 404(b) and 403.
Defendant noted an exception to the trial court’s ruling outside
the presence of the jury but did not object when Samantha
described the incident to the jury. The jury found Defendant
guilty of indecent liberties with a child. Defendant appealed
to this Court.
Analysis
In his sole argument on appeal, Defendant contends the
trial court erred by admitting Samantha’s testimony pursuant to
Rules 404(b) and 403. We first note that “to preserve for
appellate review a trial court’s decision to admit testimony,
objections to [that] testimony must be contemporaneous with the
time such testimony is offered into evidence and not made only
during a hearing out of the jury’s presence prior to the actual
introduction of the testimony.” State v. Ray, 364 N.C. 272,
277, 697 S.E.2d 319, 322 (2010) (citation and quotation marks
omitted); N.C.R. App. P.10(a).
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Here, Defendant did not object to Samantha’s testimony in
the presence of the jury and, therefore, did not preserve the
issue of the admissibility of that evidence for appellate
review. Id. Nevertheless, in criminal cases, issues that are
not preserved by a timely objection may still be raised on
appeal if the “judicial action questioned is specifically and
distinctly contended to amount to plain error.” N.C.R. App.
P.10(a)(4). Where a defendant does not “specifically and
distinctly” allege plain error, however, he is not entitled to
plain error review. State v. Davis, 202 N.C. App. 490, 497, 688
S.E.2d 829, 834 (2010), appeal dismissed, 365 N.C. 366, 719
S.E.2d 623 (2011); see also Ray, 364 N.C. at 278, 697 S.E.2d at
322.
Here, Defendant has not specifically and distinctly alleged
that the admission of Samantha’s testimony amounted to plain
error. In fact, Defendant’s brief contains no reference to the
plain error standard. Accordingly, we hold that Defendant has
waived his right to appellate review of this issue.
Conclusion
For the reasons stated above, we find that Defendant
received a fair trial free from error.
NO ERROR.
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Judges McGEE and ELMORE concur.
Report per Rule 30(e).