An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-619
NORTH CAROLINA COURT OF APPEALS
Filed: 20 January 2015
STATE OF NORTH CAROLINA
v. Cabarrus County
Nos. 12 CRS 54772, 13 CRS 1190
JAMES ALLAN MORRIS
Appeal by defendant from judgment entered 8 January 2014 by
Judge Christopher W. Bragg in Cabarrus County Superior Court.
Heard in the Court of Appeals 15 December 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Thomas H. Moore, for the State.
Unti & Smith, PLLC, by Sharon L. Smith for defendant-
appellant.
STEELMAN, Judge.
Where the testimony of an officer was offered to explain
his subsequent actions and the trial court gave the jury a
limiting instruction to that effect, the admission of the
testimony was not error.
I. Factual and Procedural Background
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On 11 August 2012, Officer Anthony Vandevoorde of the
Concord Police Department was on routine patrol when he stopped
at the magistrate’s office to retrieve some papers. As he
approached the building housing the magistrate’s office, he
observed a white male standing on the sidewalk and watching him.
Officer Vandevoorde entered the magistrate’s office, where
he was approached by a bondsman. The bondsman gave Officer
Vandevoorde the name and description of James Allan Morris
(defendant) and told him that she was looking for defendant.
Officer Vandevoorde told her he had not seen him, and then
returned to his vehicle and searched for defendant on his laptop
computer. When he saw defendant’s Department of Motor Vehicle
photo, he realized that it looked just like the man he had seen
earlier on the street. Officer Vandevoorde then confirmed that
there was an outstanding warrant for defendant’s arrest.
Officer Vandevoorde began circling the area looking for
defendant. When he observed a moped parked across the street
from What-a-Burger, he recalled that the bondsman had mentioned
that defendant drove a moped, and circled back to What-a-Burger.
The moped was gone, but the bondsman was standing in the parking
lot. Officer Vandevoorde asked the bondsman if she had any
additional information about defendant, and she responded that
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she had just spoken with him, and he was at Danny’s, a local gas
station.
Officer Vandevoorde went to Danny’s and found defendant,
who attempted to drive away on his moped. He drove ten or
fifteen feet, when he was forced to stop by another officer who
had entered Danny’s parking lot. Officer Vandevoorde placed
defendant under arrest. While talking with defendant, Officer
Vandevoorde noticed an odor of alcohol upon his breath, and
asked defendant if he had been drinking. Defendant told him he
had been drinking the night before. Officer Vandevoorde observed
that defendant had “glassy red eyes” and smelled like alcohol.
He administered field sobriety tests to defendant, and defendant
performed poorly on the tests. Officer Vandevoorde determined
that defendant was impaired, arrested him for driving while
impaired, and transported him to the Cabarrus County Jail.
Defendant was administered an intoxilyzer which showed that he
had a blood alcohol concentration of .10.
Defendant was indicted for the felony of habitual impaired
driving, and for having attained the status of habitual felon.
On 8 January 2014, defendant stipulated to the existence of
three prior convictions for driving while impaired. A jury found
defendant guilty of driving while impaired, and defendant was
thus guilty of habitual impaired driving. Defendant then pled
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guilty to having attained the status of an habitual felon. The
trial court sentenced defendant to an active term of 90 to 120
months imprisonment.
Defendant appeals.
II. Admission of Statements of Bondsman
In his sole argument on appeal, defendant contends that the
trial court erred by admitting the statements made by the
bondsman to Officer Vandevoorde. We disagree.
Officer Vandevoorde testified that the bondsman:
asked me if I noticed a gentleman outside,
gave me a brief description of him. [I]
[t]old her kind of sort of, not really,
didn’t see that person in particularly
[sic]. She gave me his name, said that she
was looking for him. I retrieved my papers,
went back to my patrol car. We have a laptop
in our car. We can access DMV databases,
NCIC, which is a national database, and we
can also access all warrants in the state of
North Carolina. Ran the name and date of
birth, which time gave me a person. And
we’re also able to retrieve your DMV photos
from when they take your photo when you get
your license. When I pulled up the DMV
photo, it looked just like the gentleman
that I saw earlier standing on Church Street
near Corban. Took that information, had
communications check. I also checked to see
if there was in fact a warrant for his
arrest, and at which time it was confirmed
that he did actually have a warrant for his
arrest.
Defendant contends that the bondsman’s conversation with Officer
Vandevoorde constituted inadmissible hearsay and conveyed to the
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jury that defendant was involved in another criminal matter.
Defendant further asserts that the admission of this testimony
was reversible error requiring a new trial.
N.C. Gen. Stat. § 8C–1, Rule 801(c) (2013) defines
“hearsay” as “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.” While hearsay is
generally inadmissible, an out-of-court statement offered for
some purpose other than to prove the truth of the matter
asserted is admissible as non-hearsay evidence. State v. Gainey,
355 N.C. 73, 87, 558 S.E.2d 463, 473, cert. denied, 537 U.S.
896, 154 L. Ed. 2d 165 (2002). “Specifically, statements are not
hearsay if they are made to explain the subsequent conduct of
the person to whom the statement was directed.” Id. “When
preserved by an objection, a trial court’s decision with regard
to the admission of evidence alleged to be hearsay is reviewed
de novo.” State v. Johnson, 209 N.C. App. 682, 692, 706 S.E.2d
790, 797 (2011).
We hold that Officer Vandevoorde’s testimony regarding his
conversation with the bondsman was not hearsay because it was
admitted solely to provide a context for the officer’s
subsequent course of conduct and explain why he went in search
of defendant. Additionally, Officer Vandevoorde’s testimony
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about his conversation with the bondsman was devoid of any
prejudicial information regarding the reason the bondsman was
looking for defendant. Moreover, the trial court gave a limiting
instruction to the jury, directing it that “any statements
Officer Vandevoorde gives you concerning what the bondsman, what
she told him, are not being offered for the truth of the matter
asserted. They are being offered to explain what Officer
Vandevoorde’s actions were in response to these statements.”
“The law presumes that the jury heeds limiting instructions that
the trial judge gives regarding the evidence.” State v. Riley,
202 N.C. App. 299, 303, 688 S.E.2d 477, 480 (2010). Accordingly,
we conclude the trial court did not err by admitting this
testimony.
Defendant also contends that the challenged portions of
Officer Vandevoorde’s testimony were irrelevant and unfairly
prejudicial under North Carolina Rules of Evidence 401 and 403,
or constituted prior bad acts that should not have been admitted
in accordance with Rule 404(b). However, defendant’s objection
at trial was not based upon irrelevancy, unfair prejudice or
prior bad acts. These arguments were not preserved for appellate
review, and are dismissed. N.C. Rule of Appellate Procedure
28(b)(6).
We hold that defendant received a trial free from error.
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NO ERROR.
Judges ELMORE and DILLON concur.
Report per Rule 30(e).