State v. Long

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-295 NORTH CAROLINA COURT OF APPEALS Filed: 2 December 2014 STATE OF NORTH CAROLINA v. Mecklenburg County No. 11CRS244995 STEPHEN MORRIS LONG, Defendant. Appeal by defendant from judgment entered on 4 October 2013 by Judge James W. Morgan in Superior Court, Mecklenburg County. Heard in the Court of Appeals 25 September 2014. Attorney General Roy A. Cooper, III, by Assistant Attorney General Rajeev K. Premakumar, for the State. Richard J. Costanza, for defendant-appellant. STROUD, Judge. Defendant appeals from judgment convicting him of malicious use of an explosive or incendiary device damaging property. Defendant contends the trial court erred by admitting hearsay testimony that rebutted his alibi. For the following reasons, we find no error. I. Background -2The State’s evidence tended to show that on 24 September 2011, a police officer gave Cornelius, North Carolina. in the Microtel Inn in defendant a speeding ticket in On 28 September 2011, at 8:50 a.m., Cornelius, a video camera recorded defendant taking a milk jug from the breakfast area. A short time later, defendant left the hotel with the milk jug. At approximately 10:30 a.m., a defendant entered a Rite Aid near the police department carrying a brown paper bag that was dripping a clear liquid; defendant also picked up a vaccination flyer while he was in the Rite Aid. The Rite Aid store manager noticed the store smelled like gasoline; a carpet sample from the Rite Aid tested positive for gasoline. Around noon, a police car parked in the Rite Aid parking lot caught on fire. According to a fire investigator, the fire was intentionally set and originated from a milk jug filled with gasoline and ignited by a vaccination flyer. A video showed defendant nearby, looking in the direction of the burning car. When police canvassed the area immediately after the fire, an officer encountered defendant in the town hall parking lot across the street from the Rite Aid parking lot. Defendant told the officer he was packing his car for a return trip home. When an officer contacted defendant by telephone, defendant claimed -3he was in a coin shop at the time the fire started; when the officer contacted the owner of the coin shop, the shop owner could not recall Defendant was whether indicted defendant for burning had of been in personal the shop. property and malicious damage by explosives. A jury found defendant guilty of both charges. court arrested conviction and imprisonment property. for judgment on sentenced the burning defendant malicious use of The trial personal to 12 to an explosive property 15 months damaging Defendant appeals. II. Hearsay Testimony Defendant contends “the trial court erred in allowing the introduction of hearsay testimony that contradicted . . . [his] alibi” when an officer testified that the owner of the coin shop where defendant claimed to be at the time the fire was set could not remember if defendant was there or not. The testimony was as follows: Q. Were you able to develop any sort of information from the coin shop or whoever you spoke with at that coin –- strike that. Who did you speak with at the coin shop, do you remember? A. Mike, I think it’s Mike or Michael Young. He’s the owner. It’s kind of a one man show. contested -4Q. And after speaking with him and doing your investigation, did you ever make any sort of determination about whether or not the Defendant had actually been there? A. Mike could not say that. [DEFENSE COUNSEL]: your Honor. THE COURT: Objection, Overruled. . . . . Q. Were you able to determine Defendant had been there? if A. No. Q. So did you follow up on that lead? A. Yes. Q. And come to a dead end? A. the Yes. “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Stat. § 8C-1, Rule 801(c) (2011). “Hearsay is not admissible except as provided by statute or by these rules.” Stat. § 8C-1, Rule 802 (2011). N.C. Gen. N.C. Gen. However, even “[t]he erroneous admission of hearsay is not always so prejudicial as to require a new trial. The defendant must still show that there was a reasonable possibility that a different result would have been -5reached at trial if the error had not been committed.” State v. Hickey, 317 N.C. 457, 473, 346 S.E.2d 646, 657 (1986) (citation omitted). Thus, even if we assume arguendo that the trial court erred in allowing inadmissible hearsay testimony we must still review the hearsay statement to determine if “there was a reasonable possibility that a different result would have been reached at trial if the error had not been committed.” Here, we do not believe that without the Id. officer’s contested testimony “there was a reasonable possibility that a different result would have been reached at trial[.]” Id. We first note that contrary to defendant’s argument, the officer’s testimony does not contradict his alibi. The officer testified that the coin shop owner “could not say” whether defendant had been in the coin shop. The testimony merely shows that the police investigated the alibi claim and that the shop owner was unable to support or refute it; such testimony from the officer is as likely to be prejudicial against the State as against defendant, as jurors were informed the coin shop owner did not state defendant had not been there. But even further assuming arguendo that hearsay testimony was presented that directly contradicted defendant’s alibi, we still do not conclude that “there was a reasonable possibility -6that a different result would have been reached at trial[.]” Id. The elements of malicious use of explosive or incendiary are “[(1) [a]ny person [(2)] who willfully [(3)] and maliciously [(4)] damages nature [(5)] any real or personal belonging to another explosive or incendiary device[.]” (2011). property [(6)] by of the any use kind or of any N.C. Gen. Stat. § 14-49(b) The State’s evidence tended to show that on the morning of the fire, defendant had a milk jug filled with a clear liquid and a Rite Aid vaccination flyer, the very items used to start the fire. A Rite Aid employee testified the liquid smelled like gasoline, and gasoline. the carpet in Rite Aid tested positive for Video evidence documented defendant’s presence near the scene of the fire, and an officer spoke to defendant near the scene of the fire when he canvassed the area. the State’s evidence, we In light of do not conclude that defendant has shown that without the contested hearsay evidence “there was a reasonable possibility that a different result would have been reached at trial[.]” Id. As such, we overrule this argument. III. Conclusion For the foregoing reasons, we find no prejudicial error. NO ERROR. Chief Judge MCGEE and Judge GEER concur. -7Report per Rule 30(e).

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