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STATE v. FLETCHER, COA10-1418. (2011)

Court: Court of Appeals of North Carolina Number: inncco20110621533 Visitors: 25
Filed: Jun. 21, 2011
Latest Update: Jun. 21, 2011
Summary: UNPUBLISHED OPINION STEELMAN, Judge. Where defendant failed to object to the admission into evidence of letters from defendant to the victim of the crime, this issue is not preserved for appellate review. Where defendant fails to properly argue plain error in his brief, we do not apply that standard of review in this case. I. Factual and Procedural Background F.G. met Mark Fletcher (defendant) in May of 2008 and a romantic relationship developed. During the summer of 2008, they began living
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UNPUBLISHED OPINION

STEELMAN, Judge.

Where defendant failed to object to the admission into evidence of letters from defendant to the victim of the crime, this issue is not preserved for appellate review. Where defendant fails to properly argue plain error in his brief, we do not apply that standard of review in this case.

I. Factual and Procedural Background

F.G. met Mark Fletcher (defendant) in May of 2008 and a romantic relationship developed. During the summer of 2008, they began living together. In August 2008, defendant was arrested and incarcerated. Defendant was released from jail on 15 September 2008. On 17 September 2008, defendant, while intoxicated, struck F.G. for the first time.

Although defendant continued to have problems with alcohol abuse and to exhibit violent behavior toward F.G., she continued to live with him. In late January of 2009, F.G. got a tax refund and together with defendant moved into a motel. After a few days at the motel, defendant and F.G. were involved in a domestic violence incident to which police responded. F.G. was arrested based upon an unrelated outstanding warrant.

On 31 January 2009, F.G. was released on bond and returned to the motel. Defendant was sitting in a parking lot across the street from the motel when F.G. returned. Defendant spoke with F.G., and followed her to the motel room. Defendant appeared to be intoxicated and told F.G. that he had used ecstasy the previous night. Defendant accused F.G. of sleeping with the bail bondsman. An argument ensued. When F.G. threatened to call the police, defendant left.

Defendant later returned and knocked on the door. F.G. opened the door, and defendant forced his way into the room. Defendant made more allegations of F.G.'s infidelity and struck her in the head and shoulders. Defendant pulled down F.G.'s pants and underwear. Defendant forced F.G. to engage in sexual acts and vaginal intercourse. F.G. repeatedly begged defendant to stop.

When defendant went to the bathroom, F.G. fled from the motel room and sought help by knocking on the doors of other guest rooms. Another motel guest, Juanita Hadwin (Hadwin), opened her door for F.G. Hadwin observed that F.G. was "very frightened" and "bruised on the side of her face[.]" F.G. told Hadwin that her boyfriend had beaten her and forced her to have sex. F.G. was wearing a t-shirt, with no shoes or underwear. Hadwin called 911, and F.G. stayed in her room until the police responded.

Defendant was indicted for the felonies of second-degree rape and sexual offense, and the misdemeanor of assault on a female. On 9 February 2010, a jury found defendant guilty of attempted second-degree rape, second-degree sexual offense, and assault on a female. The trial court sentenced defendant from the presumptive range to an active prison term of 135 to 171 months imprisonment for the second-degree sexual offense, and consecutive active terms of 117 to 150 months for the attempted rape charge and 150 days for the assault on a female charge.

Defendant appeals.

II. Failure to Object at Trial

In his sole argument on appeal, defendant contends that the trial court improperly admitted certain unredacted statements contained in letters sent by defendant to F.G. while he was incarcerated awaiting trial. We disagree.

A party must present a "timely request, objection, or motion" to preserve an issue for appeal. N.C.R. App. P. 10(a)(1). Our Supreme Court recently reaffirmed the appellant's burden to preserve evidentiary issues for appellate review:

Generally speaking, the appellate courts of this state will not review a trial court's decision to admit evidence unless there has been a timely objection. To be timely, an objection to the admission of evidence must be made "at the time it is actually introduced at trial." . . . As such, in order to preserve for appellate review a trial court's decision to admit testimony, "objections to [that] testimony must be contemporaneous with the time such testimony is offered into evidence" and not made only during a hearing out of the jury's presence prior to the actual introduction of the testimony.

State v. Ray, 364 N.C. 272, 277, 697 S.E.2d 319, 322 (2010) (internal quotations and footnote omitted) (alteration original).

In this case, defendant filed his motion to redact portions of the letters after the evidence had already been admitted without objection. Nevertheless, the trial court considered defendant's motion and redacted much of the requested material. Defendant failed to object to the trial court's ruling on his motion to redact, even though the trial court admitted some of the statements that defendant sought to redact. Defendant also failed to object when the redacted version of the letters was published to the jury. The trial transcript reveals that defense counsel and the prosecutor worked together to prepare the redacted version in accordance with the trial court's ruling. Despite having several opportunities to object, defendant never expressed any dissatisfaction with the trial court's ruling on his motion to redact or with the redacted version of the letters. We hold that defendant failed to preserve this issue for appellate review through a timely objection at trial.

Further, we hold that defendant failed to sufficiently allege plain error. "In criminal cases, an issue that was not preserved by objection noted at trial . . . nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error." N.C.R. App. P. 10(a)(4). In the final sentence of his brief, defendant contends that even if he failed to preserve this issue for appeal, the trial court committed plain error in admitting the unredacted statements. Defendant, however,

provides no explanation, analysis or specific contention in his brief supporting the bare assertion that the claimed error is so fundamental that justice could not have been done. The right and requirement to specifically and distinctly contend an error amounts to plain error does not obviate the requirement that a party provide argument supporting the contention that the trial court's actions amounted to plain error, as required by subsections (a) and (b)[(6)] of Rule 28.

State v. Cummings, 352 N.C. 600, 636, 536 S.E.2d 36, 61 (2000), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001).

We hold that defendant has waived the right to plain error review of this issue and we dismiss his argument.

DISMISSED.

Judges CALABRIA and STROUD concur.

Report per Rule 30(e).

Source:  Leagle

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