State v. Kay
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-570 NORTH CAROLINA COURT OF APPEALS Filed: 21 January 2014 STATE OF NORTH CAROLINA v. Wayne County No. 11 CRS 5499 TAMMY LYNN KAY Appeal by defendant from judgment entered 31 May 2012 by Judge W. Allen Cobb in Wayne County Superior Court. Heard in the Court of Appeals 30 December 2013. Attorney General Roy Cooper, by Assistant Attorney General Ebony J. Pittman, for the State. Gilda C. Rodriguez for defendant-appellant. HUNTER, JR., Robert N., Judge. A jury larceny. found defendant guilty of attempted misdemeanor The trial court sentenced her to thirty days in jail, suspended, and placed her on eighteen months of probation. supervised Defendant filed timely notice of appeal. On the morning of 16 September 2011, John Tyndall observed a white pickup truck parked in the driveway of a vacant house at 665 Vail Road owned by his friend, Facie Denning, who lived -2across the street from the property. The truck was backed into the driveway at a 45 degree angle to the back corner of the house. Knowing that Denning did Tyndall decided to investigate. not drive a white truck, To the left of the vehicle, he saw an unfamiliar male and female subsequently identified as Marvin Aldridge and defendant slouched down in a leaning forward position as though grabbing ahold of something [and] pulling it. When they saw Tyndall, defendant and Aldridge stood up with a deer in the headlight look and started walking toward him. When Tyndall asked why they were on the property, [t]hey kind of hemmed and hawed around and . . . said oh we re we were just checking out the house and and ah, somebody had told us it was for rent. After telling the pair that they had been misinformed and that the owner of the property lived across the street, Tyndall phoned Denning and saw him step out of his house onto his driveway. As defendant and Aldridge walked back to their truck, Tyndall spotted Denning s tiller sitting behind where they had been standing. The tiller had been moved five or six feet from its usual location under a piece of sheet metal behind a shed in the back yard. Fresh dirt along the grass leading to the tiller made it pretty evident that it had just been moved. Tyndall -3noted the department truck s as license defendant and number and Aldridge phoned drove the across sheriff s the road toward Denning s residence. Defendant driveway. and Aldridge spoke to Denning briefly in his They claimed to be from Pikeville and said that they had heard that the house was for rent and they were interested in renting the house. Denning, who bought the property in 1958 and had never rented it or advertised it for rent, told them the house was not in a condition for renting. Defendant and Aldridge backed out of Denning s driveway and drove away just before a sheriff s deputy arrived. When Denning joined Tyndall to look over the property, they discovered that a piece of copper going from [an] oil drum to [the] house . . . had been broken off and some more other pieces of metal previously strewn around the barn had been grouped together and laid in a pile in the walkway between the barn and the house. Denning acknowledged that he had not been to the property in a day or two but noted the freshly moved earth and marks on the grass where the tiller had been dragged. Captain Richard Lewis of the Wayne County Sheriff s Department responded to 665 Vail Road within five minutes of Tyndall s call. Tyndall and Denning described their encounter -4with the occupants of the white pickup truck and showed Lewis the tiller, copper tubing, and scrap metal that had been moved. Captain Lewis conveyed the information to Detective Lieutenant Keith Harris, who had located the white pickup truck on U.S. 117 North in the Belfast community. Aldridge was vehicle, and defendant was in the passenger seat. driving the Defendant and Aldridge told Harris that they were looking for a house to rent, and that defendant had been told [by] someone that [Denning s] house was for Detective rent. Harris After wrote conferring both of with them a Captain citation Lewis, for the erred in attempted larceny of the scrap metal and the tiller. On appeal, defendant overruling her objection testimony describing his claims to a the trial court of Detective portion investigation of the Harris incident. Specifically, she challenges the detective s statement that he consulted the records of local scrap dealers to whether they had previous interactions with Aldridge: Q. What else [defendant]? did you discuss with A. How long she had been, you know, dating . . . this gentleman. Q. And what did you do after that? A. Based on what I had found out from Captain Lewis and reviewing what they had determine -5told me about being there at the home I also did a records check with local scrap yards to find out information on Mr. Aldridge, and based on the information I was able to find there, and also the information I found from Captain Lewis, and inconsistencies in the story and, you know, everything that happened there at the scene I [DEFENSE COUNSEL]: Objection, your Honor. Mr. Aldridge is not on trial in this case. I d object on relevance grounds THE COURT: Overruled. . . . . [PROSECUTOR]: Go ahead, sir. A. I wrote both of them a citation for the attempted larceny of the scrap metal and the tiller. (Emphasis allusion added). to his Defendant contact with contends local that scrap Detective yards was Harris either irrelevant to the charge against her or unduly prejudicial in view of its limited probative value. See N.C. R. Evid. 401, 403. Notwithstanding her objection immediately following the contested testimony, we conclude that defendant has failed to preserve this issue for appellate review: Where inadmissibility of testimony is not indicated by the question, but appears only in the witness response, the proper form of objection is a motion to strike the answer, or the objectionable part of it, made as -6soon as the inadmissibility is evident. When counsel objects after a witness has answered the question and fails to make a motion to strike, the objection is waived. State v. Gamez, __ N.C. App. __, __, 745 S.E.2d 876, 877 (2013) (quoting State v. Goss, 293 N.C. 147, 155, 235 S.E.2d 844, 850 (1977); citing State v. Curry, S.E.2d 129, 138 (2010)). made no motion to 203 N.C. App. 375, 387, 692 The transcript shows that defendant strike Detective Accordingly, she waived her objection. Harris testimony. Because she has not sought plain error review pursuant to N.C. R. App. P. 10(a)(4), her argument is overruled. Id. at __, 745 S.E.2d at 878. No error. Chief Judge MARTIN and Judge DILLON concur. Report per Rule 30(e).
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