State v. Earle
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 -2underneath officers the railroad responded to trestle. the Local campground to law enforcement 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 under no bomb Defendant and type his item two friends. the At trestle, the time they of arrested 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 ), attention testified deficit, that hypertension Defendant disorder, suffered major from 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. Bierrnbach testified that Vyvanse, particularly when Dr. 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 -3objected 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). reason for such a This Court has explained that rule substance of the witness ascertain Jacobs, whether 195 N.C. (citation omitted). is that essential content or testimony must be shown before we can prejudicial App. the [t]he 599, error 609, 673 occurred. S.E.2d 724, State 730 v. (2009) -4Specifically, 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 would have contends tended hallucinations to during Dr. Bierrnbach s show a that psychotic excluded Defendant episode on testimony suffered [30 June from 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 elicit attempting to 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 see (1998); State. v. Lawrence, 352 N.C. 1, 21-22, 530 -5S.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). argument is without merit. No error. Judges HUNTER, Robert C. and ELMORE concur. Report per Rule 30(e). Defendant s
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