State v. Horn

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-141 NORTH CAROLINA COURT OF APPEALS Filed: 15 October 2013 STATE OF NORTH CAROLINA v. Wayne County No. 10 CRS 52590 NORMAN JOSEPH HORN Appeal by defendant from judgment entered 5 September 2012 by Judge Arnold O. Jones, II in Wayne County Superior Court. Heard in the Court of Appeals 30 September 2013. Attorney General Roy Cooper, by Special Deputy General Terence D. Friedman, for the State. Attorney Appellate Defender Staples Hughes, by Assistant Appellate Defenders John F. Carella and Benjamin Dowling-Sendor, for defendant-appellant. HUNTER, Robert C., Judge. Defendant imposed upon Norman a jury indecent exposure. Joseph Horn appeals verdict finding him from guilty a judgment of felony The trial court sentenced defendant to a term of five to six months imprisonment and ordered defendant to register as a sex offender for thirty years. Defendant gave -2notice of appeal in open court. After careful review, we dismiss defendant s appeal. Defendant first argues the trial court erred in allowing an investigating detective to testify that he determined defendant was twenty-nine years old through a background check performed using an unidentified database. Defendant, however, has not preserved this issue for appeal because his trial counsel made only a general objection to the detective s testimony. In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or ruling party the motion, stating desired the the court specific to make grounds for if specific grounds were not apparent from the context. 10(a)(1). the the N.C.R. App. P. A general objection, when overruled, is ordinarily not adequate unless the evidence, considered as a whole, makes it clear that there is no purpose to be served from admitting the evidence. State v. Perkins, 154 N.C. App. 148, 152, 571 S.E.2d 645, 648 (2002) (quoting State v. Jones, 342 N.C. 523, 535, 467 S.E.2d 12, 20 (1996)). Here, defendant was charged with felony indecent exposure, which requires the State to prove defendant eighteen years old at the time of the offense. was at least N.C. Gen. Stat. -3§ 14-190.9(a1) (2011). To prove defendant s age, the State asked the following of Detective Sergeant Larry Mitchell, who had been involved in the investigation of the underlying case: Q. Now, Detective Mitchell, in the course of this investigation at all, did you inquire into the defendant s age? A. Yes, ma am, I did. Q. And how did you do that? A. Through a background check. We have a database we can just pull up people s names and get, you know, a history on it. Q. And through that background check, how old did you find the defendant to be? A. He was -[Defense Counsel]: Objection. THE COURT: Overruled. Answer the question. A. He was 29 years old. Q. And would this be at the time of the event? A. Yes, ma am. That was in 2010, the time of the event. Defense counsel s objection does not state the specific ground for the objection and the ground is not apparent from the context of the inquiry. The evidence of defendant s age was directly relevant to an element of the crime, and thus counsel s general objection failed to properly preserve this issue for -4appeal. Perkins, 154 N.C. App. at 152, 571 S.E.2d at 648. This argument is dismissed. Defendant also argues the trial court erred in denying his motion to dismiss the charge of felony indecent exposure because the State presented insufficient evidence of defendant s age. However, this argument is also not properly before this Court because at trial defendant s argument in support of his motion to dismiss was that the State did not present sufficient evidence that the exposure occurred in a public place. It is well established that where a theory argued on appeal was not raised before the trial court, the law does not permit parties to swap horses between courts in order to get a better mount in the appellate courts. State v. Holliman, 155 N.C. App. 120, 123, 573 S.E.2d 682, 685 (2002) (citations and quotation marks omitted). This precludes a defendant from presenting on appeal a different theory to support his motion to dismiss than that he presented at trial[.] Valle, 182 N.C. App. 268, 272, 641 S.E.2d State v. Euceda858, 862, appeal dismissed and cert. denied, 361 N.C. 698, 652 S.E.2d 923 (2007); see also State v. Shelly, 181 N.C. App. 196, 205-06, 638 S.E.2d 516, 524 (holding a similar argument was waived on appeal where the defendant argued lack of premeditation and deliberation at -5the trial level, but presented an argument based on the rule of corpus delicti on appeal), disc. review denied, 361 N.C. 367, 646 S.E.2d 768 (2007). Because neither of Accordingly, this argument is dismissed. defendant s arguments this Court, we dismiss defendant s appeal. DISMISSED. Judges BRYANT and McCULLOUGH concur. Report per Rule 30(e). are properly before

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