An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NORTH CAROLINA COURT OF APPEALS
Filed: 01 October 2002
STATE OF NORTH CAROLINA
Nos. 00 CRS 53833
00 CRS 53834
BRIAN KEITH PERSON
Appeal by defendant from judgments entered 25 July 2001 by
Judge W. Russell Duke, Jr. in Pitt County Superior Court.
the Court of Appeals 30 September 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Gaines M. Weaver, for the State.
James M. Bell for defendant-appellant.
marijuana possession, keeping and maintaining a motor vehicle used
for the purpose of unlawfully keeping or selling a controlled
substance, and possession of drug paraphernalia.
The trial court
sentenced defendant to two consecutive forty-five day terms of
On 31 March 2000, Officer J.C. Curry and Sergeant Phipps were
in their patrol vehicle.
Curry noticed a man approaching the
driver’s side of a burgundy Nissan Sentra, which was occupied by
The driver of the Nissan looked up, saw the marked police
communications and was notified that the Nissan was registered to
defendant and was not covered by insurance.
Curry activated the
patrol vehicle’s blue lights and pulled the Nissan over.
As Curry and Phipps walked toward the Nissan, it sped off.
They eventually pulled the car over again.
Defendant remained in
the passenger’s seat while the driver of the Nissan, defendant’s
brother, ran. Curry observed defendant’s brother drop a small item
on the ground when he exited the vehicle.
Curry also noticed a
small bag of marijuana under one of defendant’s legs.
Police located a cigarette pack containing a bag of marijuana
and four small purple zip-lock bags containing crack on the ground
near the Nissan.
They also found two zip-lock bags of crack inside
After Curry gave defendant his Miranda rights, defendant made
He initially said that all of the drugs were his, but
later claimed the crack was not his.
Defendant said that he had
initially told them the drugs were his because he did not want his
brother to go to jail for three years.
At trial, Curry testified that police seized $41 in cash and
a pager from defendant and $34 from defendant’s brother.
defendant’s objection, Curry testified that “[i]t’s not uncommon to
see people that we arrest for violations of controlled substances
have a pager[.]”
Defendant testified that his mother gave him the pager so
-3“[s]he [could] get in touch with me.”
He said when he and his
brother were in the police vehicle, his brother told him “to take
the blame for him because he was facing time.”
The trial court
sustained the State’s objection to defense counsel’s question
defendant “to take the blame for.”
By defendant’s first assignment of error, he argues the trial
court erred by allowing Curry to testify about defendant’s pager.
During direct examination of Curry, the following questioning
Q: Based upon your training and experience,
finding a pager on the subject, is that on a
subject that’s in possession of controlled
substances, would that suggest anything to
[DEFENSE COUNSEL]: Objection.
THE COURT: The objection is overruled.
A: It’s not uncommon to-to see people that we
arrest for violations of controlled substances
have a pager or some type of communications
with them. As a matter of fact, it’s very –
it’s very rare that they do not have some type
of communications system with them. They use
it on – several operations that I’ve done in
THE COURT: Sustained as to your portion.
Defendant asserts Curry’s response led the jury “to believe that
mere possession of a pager implicated defendant as a member of the
illegal drug trade.”
He argues that the
“prejudicial weight of
-4police opinion as to what a pager suggested far outweighed any
legitimate ground for admission of such testimony[.]”
We first address the State's argument that defendant did not
preserve this issue for appellate review. Generally, "[t]his Court
will not consider arguments based upon matters not presented to or
adjudicated by the trial tribunal."
State v. Eason, 328 N.C. 409,
420, 402 S.E.2d 809, 814 (1991); see also N.C. R. App. P. 10(b)(1).
Here, defendant did not object to the testimony based on it
being improper opinion testimony as he now asserts for the first
Rather, defendant only objected on the grounds of hearsay.
The trial court ruled in defendant’s favor by sustaining defense
counsel’s objection as to the hearsay portion of Curry’s testimony.
Moreover, defendant did not ask for the hearsay portion of the
defendant's objection, and the defendant fails to move to strike
the objectionable testimony, he waives his right to assert on
appeal error arising from the objectionable testimony. State v.
Barton, 335 N.C. 696, 709-10, 441 S.E.2d 295, 302 (1994).
reject this argument.
By defendant’s second assignment of error, he argues the trial
court erred by excluding hearsay statements allegedly made by
defendant’s brother to defendant when the two men were being
defendant testified that his brother “told me to take the blame for
him because he was facing time.”
The State objected when defense
counsel asked defendant what kind of time his brother asked him “to
-5take the blame for.”
The trial court sustained the State’s
objection and further objections regarding statements made to
defendant by his brother.
Defendant asserts that his brother’s
statements should have been admitted under Rule 804(b)(3) of the
North Carolina Rules of Evidence.
Rule 804(b)(3) states that the following is not excluded by
the hearsay rule if the declarant is unavailable as a witness:
A statement which was at the time of its
making so far contrary to the declarant’s
pecuniary or proprietary interest, or so far
tended to subject him to civil or criminal
liability, or to render invalid a claim by him
against another, that a reasonable man in his
position would not have made the statement
unless he believed it to be true. A statement
tending to expose the declarant to criminal
liability is not admissible in a criminal case
unless corroborating circumstances clearly
indicate the trustworthiness of the statement.
N.C. Gen. Stat. § 8C-1, Rule 804(b)(3)(1999).
requires a two-pronged analysis.
134, 367 S.E.2d 589, 599 (1988).
State v. Wilson, 322 N.C. 117,
First, the statement must be
“deemed to be against the declarant’s penal interest.” Id. Second,
“the trial judge must be satisfied that corroborating circumstances
clearly indicate the trustworthiness of the statement if it exposes
the declarant to criminal liability.” Id.
Here, the trial court allowed defendant to testify that his
brother asked him to “take the blame” because his brother was
facing jail time.
The fact that defendant’s brother was facing a
specific amount of jail time does not subject him to criminal
Furthermore, there were no corroborating circumstances
-6defendant has failed to show that there exists any reasonable
possibility that the outcome of the trial would have been any
different had the testimony been allowed.
N.C. Gen. Stat. § 15A-
State v. Hardy, 104 N.C. App. 226, 238, 409 S.E.2d
96, 102 (1991)(“An error is not prejudicial unless a different
result would have been reached at the trial if the error in
question had not been committed.”)
Accordingly, the trial court
properly excluded the statements.
Defendant has abandoned his remaining assignments of error.
Judges WALKER and BIGGS concur.
Report per Rule 30(e).