State v. Mills
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-497 NORTH CAROLINA COURT OF APPEALS Filed: 15 October 2013 STATE OF NORTH CAROLINA v. McDowell County No. 09 CRS 51654 TIMOTHY GLEN MILLS Appeal by defendant from judgment entered 11 October 2012 by Judge James U. Downs in McDowell County Superior Court. Heard in the Court of Appeals 25 September 2013. Attorney General Roy Cooper, by Assistant Attorney General David Gordon, for the State. Attorney Michael E. Casterline, for defendant. Elmore, Judge. On 11 October 2012, judgment was entered against Timothy Glen Mills (defendant) for the offenses of statutory sexual offense, sex offense by a substitute parent, indecent liberties with a child, and sexual battery. Defendant was sentenced in the presumptive range at a prior record level II to 288-355 months active incarceration. Defendant now appeals and raises -2as error the trial court s admission of 404(b) evidence concerning prior alleged sexual acts perpetrated by defendant. After careful consideration, we dismiss the appeal because defendant failed to preserve this issue for our review. I. Facts The State alleged that between August 2008 and July 2009, defendant victim. engaged in numerous unlawful sexual acts with the Defendant filed three motions in limine to preclude the State from presenting 404(b) evidence under the North Carolina Rules of Evidence concerning prior defendant and other individuals. sexual encounters between The first motion in limine concerned sexual conduct with Travis Miller, defendant s nephew, that allegedly occurred in 1984 when Miller was 10 years old. The second and third motions in limine addressed two sexual encounters by defendant with Miranda Fender, his niece, that occurred sometime between 1986 and 1988 when Fender was 12 or 13 years old. These motions were heard by the trial court outside the presence of the jury when the State sought to call Fender and Miller as witnesses during its case-in-chief. court denied all of defendant s motions The trial in limine, and both Fender and Miller were permitted to testify for the purpose of establishing a common scheme or plan by defendant. At trial, -3all of Fender s statements about defendant s prior sexual acts with her Miller s were admitted testimony was into also evidence, admitted without without objection. objection by defendant. II. Analysis Defendant argues that the trial court erred in admitting Miller and Fender s testimony under Rule 404(b) of the North Carolina Rules of Evidence. However, because defendant failed to preserve this issue for our review, we dismiss defendant s appeal. [A] motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial. State v. Reaves, 196 N.C. App. 683, 686, 676 S.E.2d 74, 77 (2009) (citation and quotations omitted). Thus, a defendant must object at trial to evidence that was the subject of the motion in limine[.] Id. at 686-87, 676 S.E.2d at 77 (citation and quotations omitted). Nevertheless, an issue not preserved by objection at trial can be reviewed on appeal under the plain error standard. State v. Ortiz-Zape, ___ N.C. ___, ___, 743 S.E.2d 156, 162 (2013). However, this Court will not review an appeal for plain error where the defendant does -4not specifically and distinctly contend that the alleged error constitutes plain error. Id. (citation and quotations omitted). Here, both Fender and Miller testified as to the details of defendant s prior conduct with them. Fender stated that on two separate occasions while in a mutual relative s trailer, performed engaged oral in sex vaginal on defendant intercourse at with his her. request and Similarly, then she he Miller testified that he visited his grandmother s house and shared a bedroom with defendant. intercourse with Miller. On one occasion, defendant had anal Defendant neither raised any objections to this testimony at trial, nor did he assert plain error by the trial court on appeal. Thus, defendant waived his right to appellate review regarding the admitted testimony. Ortiz-Zape, supra. See Accordingly, we dismiss defendant s argument on appeal. III. Conclusion In sum, defendant did not object at trial to the testimony of Miller or Fender with regard to his prior sexual conduct. Furthermore, defendant failed to allege plain error in his brief on appeal. Thus, we dismiss defendant s appeal. Dismissed. -5Judges CALABRIA and STEPHENS concur. Report per Rule 30(e).
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