State v. Alston
| Citation | 508 S.E.2d 315,131 NC App. 514 |
| Decision Date | 01 December 1998 |
| Docket Number | No. COA97-1316.,COA97-1316. |
| Court | Court of Appeal of North Carolina (US) |
| Parties | STATE of North Carolina v. Michael Leon ALSTON. |
Attorney General Michael F. Easley by Associate Attorney General Stewart L. Johnson, for the State.
James Hill, Jr., Asheboro, for defendant-appellant.
Michael L. Alston (Defendant) appeals from his conviction of Possession of a Firearm by a Felon.
On 26 July 1997, Defendant was riding in an automobile driven by his wife, Krystal Alston (Mrs. Alston), in Asheboro, North Carolina. Three infants were also in the vehicle. Mrs. Alston stopped the vehicle in a nearby parking lot, and Officer Scott Messenger (Officer Messenger) of the Asheboro Police Department approached the vehicle by foot. Officer Messenger alleges that he approached the vehicle because he noticed that the children in the automobile were not properly restrained. As he questioned Mrs. Alston about her driver's license and vehicle registration, one of the children in the vehicle said, "Daddy's got a gun." Officer Messenger walked around to the passenger side where Defendant was sitting, and saw, in plain view, a .22 caliber pistol on the transmission console of the vehicle. He asked Defendant to hand him the gun, and Defendant complied. Shortly thereafter, Officer Messenger placed Defendant under arrest for Possession of a Firearm by a Felon.
The car in which Defendant was riding was registered to his brother Ricky Alston, and the handgun retrieved by Officer Messenger was purchased by and registered to Mrs. Alston.
At trial, Defendant objected to the introduction of the child's statement into evidence. Upon introduction of the statement into evidence, the trial court specifically instructed the jury that The trial court further warned the jury to "consider [the statement] for no other purposes." (emphasis added). During its jury charge, the court declined Defendant's request for it to re-instruct the jury regarding the use of the infant's statement.
Defendant also objected to the trial court allowing the jury to hear of his specific previous felony. The State first attempted to present this evidence through Officer Messenger, and Defendant made a timely objection on hearsay grounds. Later in the trial, the State presented Defendant's prior conviction of possession of a controlled substance with intent to manufacture, sell, or deliver through the testimony of the deputy clerk of the Superior Court. Defendant failed to object to this testimony. Because he had stipulated to the authenticity of the conviction, Defendant challenges both the trial court allowing the State to reveal the specific nature of his previous conviction, and also the trial court referring to the conviction in the jury instructions. The trial court's instructions limited the jury's use of Defendant's prior conviction solely to prove the "felon" element of the offense, and clarified the purpose for which the prior conviction evidence was admitted.
At the close of the State's evidence, Defendant moved to dismiss the case, arguing that the State had not offered sufficient evidence to prove that Defendant had constructive possession of the firearm, an essential element of the offense. This motion was denied. At the close of all the evidence, Defendant renewed his motion to dismiss the case, which also was denied. The jury returned a guilty verdict, and Defendant was sentenced to a minimum of four and maximum of five months in prison.
The issues are whether: (I) the infant's statement, "Daddy's got a gun," was inadmissible hearsay; (II) Defendant's underlying prior conviction should have been revealed to the jury; and (III) there was substantial evidence of Defendant's possession, control, or custody of the handgun.
Defendant first argues that the trial court's admission of the child's out-of-court statement, "Daddy's got a gun," was error because the statement constitutes hearsay evidence and does not fall within any of the statutory exceptions. We disagree.
We reject Defendant's argument because the evidence was not admitted for the truth of the matter asserted and thus does not constitute hearsay evidence. State v. White, 298 N.C. 430, 437, 259 S.E.2d 281, 286 (1979) (). The trial court specifically instructed the jury, at the time the statement was offered into evidence, that the statement was not to be used to prove its truth, but to be used only to the extent it would bear on the state of mind of Officer Messenger, and explain his subsequent conduct. Furthermore, the failure of the trial court to again inform the jury in its final instructions of the limited use of the child's statement is not material. State v. Crews, 284 N.C. 427, 440, 201 S.E.2d 840, 849 (1974) ().
Defendant next argues that the trial court erred in allowing the State to reveal, to the jury, the specific nature of his previous conviction of possession of a controlled substance with intent to manufacture, sell, or deliver. We do not address the merits of this argument because the issue has not been preserved properly.
"In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion stating the specific grounds for the ruling the party desired the court to make...." N.C.R.App. P. 10(b)(1). Additionally, where a party has not preserved a question for review, he must specifically and distinctly allege that the trial court's action amounted to plain error in order to have the error reviewed on appeal. See N.C.R.App. P. 10(c)(4); State v. Oliver, 309 N.C. 326, 307 S.E.2d 304 (1983); State v. Hamilton, 338 N.C. 193, 449 S.E.2d 402 (1994).
In this case, Defendant promptly objected when the State first attempted to introduce his prior conviction evidence through the testimony of Officer Messenger. Defendant failed to object, however, when the State brought the prior conviction record and judgment into evidence through the testimony of the deputy clerk of the Superior Court. Accordingly, Defendant has waived any objection to this evidence. Furthermore, because Defendant has not specifically and distinctly addressed the issue of plain error in his brief to this Court, we will not review whether the alleged error rises to the...
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