 An unpublished opinion of the North Carolina Court of Appeals does not constitute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.


               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                      No. COA15-74

                                Filed: 1 September 2015

Guilford County, Nos. 13 CRS 88035, 14 CRS 24219

STATE OF NORTH CAROLINA

              v.

BRANDON TYRONE CURTIS


       Appeal by Defendant from judgments entered 27 August 2014 by Judge R.

Stuart Albright in Guilford County Superior Court. Heard in the Court of Appeals

11 August 2015.


       Attorney General Roy Cooper, by Assistant Attorney General Phillip T.
       Reynolds, for the State.

       Sharon L. Smith for Defendant.


       STEPHENS, Judge.


                           I. Factual and Procedural History

       On 18 November 2013, a Guilford County grand jury indicted Defendant

Brandon Tyrone Curtis for breaking and/or entering, larceny after breaking/entering,

and possession of stolen property. On 7 April 2014, the grand jury indicted Curtis for

attaining the status of an habitual felon. These charges were joined for a jury trial

during the 18 August 2014 criminal session of Guilford County Superior Court.
                                  STATE V. CURTIS

                                 Opinion of the Court



      Before the trial began, Curtis filed a motion in limine to suppress evidence and

testimony that he contended were the product of an unreasonable search of his

bedroom. The evidence introduced during the voir dire hearing that followed tended

to show that at around 11:00 a.m. on 15 August 2013, Theresa Donovan was at her

home on Olympia Drive in Greensboro when she heard a crash outside, looked out

her window, and saw a light-skinned black man with dreadlocks wearing white

jogging pants and a black top walking down the driveway of her neighbors, Henry

and Diane Chrisco, while pushing a garbage can containing a flat screen television

toward a vacant house across the street. Donovan called the police and identified the

man she saw as Curtis, who had lived on Olympia Drive as her neighbor for at least

10 years. Later that day, when police informed her that they had apprehended a

suspect and staged a show-up identification, Donovan confirmed that the man in their

custody was the same man she had seen in the Chriscos’ driveway, and identified him

as Curtis.

      The trial court also received voir dire testimony from several members of the

Greensboro Police Department who responded to Donovan’s call. Officer Holly Smith

testified that she investigated the Chrisco residence and discovered that the back

door had been broken into; that the Chriscos’ garbage can was missing; that when

she interviewed the Chriscos they reported that two flat screen televisions, fifteen

video games, two digital cameras, and miscellaneous jewelry had been taken; and



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                                  Opinion of the Court



that she subsequently located several of these items inside a garbage can she found

beside the vacant house across the street that Donovan had seen Curtis pushing a

garbage can toward.

      Officer Travis Cole testified that he and another officer attempted to locate

Curtis by knocking at the front door of his home on Olympia Drive. As they waited

for someone to answer, a car pulled into the driveway and the driver stated that he

had received a call from Curtis, who had asked him for a ride. At that point, the front

door opened and a light-skinned black man with dreadlocks who identified himself as

Curtis came outside wearing a white undershirt and black shorts. Shortly thereafter,

Curtis’s brother, Sheron, and his stepfather, David Morris, also emerged from inside

the house. The officers separated the men and obtained consent to search the

residence from Morris after he confirmed that he owned it. Officer Cole testified that

to determine whether anyone else was inside and assure officer safety, he conducted

a brief protective sweep of the residence. During that protective sweep, Officer Cole

looked into a bedroom and noticed clothing lying on the bed in plain view that

appeared to match Donovan’s description of the clothing worn by the suspect. Instead

of entering the bedroom, which was later identified as Curtis’s bedroom, Officer Cole

alerted his colleagues to what he had seen and then stood by the doorway to guard

this potential evidence until consent or a warrant could be obtained to conduct a

search.



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                                  Opinion of the Court



      Detective Mark Riddle testified that, when he questioned Curtis at the police

station, Curtis gave written consent for officers to search his bedroom and also waived

his Miranda rights. Detective Riddle testified further that although Curtis initially

denied any involvement in the break-in at the Chriscos’ house, he eventually

confessed his guilt.

      At the close of the voir dire hearing, the trial court denied Curtis’s motion to

suppress the clothing that the officers found in his bedroom. In a written order

entered 20 August 2014 nunc pro tunc 18 August 2014, the trial court provided

findings of fact to support its conclusions of law that Morris had apparent authority

to give consent to search the residence and did so freely, voluntarily, and without

limitation; that Officer Cole “was in a place where he had a right to be when he saw

what he reasonably believed to be evidence in this case in plain view” while

conducting the protective sweep of the residence; and that Curtis freely and

voluntarily gave consent to search his bedroom to Detective Riddle. When the State

sought to admit the evidence found in Curtis’s bedroom at trial, Curtis made no

objection.

      On 20 August 2014, the jury returned verdicts finding Curtis guilty of breaking

and/or entering, larceny after breaking/entering, and possession of stolen property.

Curtis then pled guilty to attaining the status of an habitual felon. After arresting

judgment on the conviction for possession of stolen property, the trial court sentenced



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                                   Opinion of the Court



Curtis to two consecutive terms of 84 to 113 months imprisonment. On 21 August

2014, Curtis’s trial counsel filed a “Motion for Notice Appeal” [sic] with the trial court

in which he “respectfully provide[d] notice of the appeal of the above entitled Motion

to Suppress . . . .” Upon receiving this motion, the trial court stated:

             Let the record reflect that I just received a motion for notice
             of appeal in the Brandon Curtis case. [His attorney]
             indicated to me he was doing it.

             Notwithstanding all that, it’s been filed. I’m going to treat
             it as a notice of appeal. I’m going to enter appellate entries.
             I’m taking the position that they have in fact appealed his
             conviction. I will appoint the appellate defender. Appeal
             bond is denied. . . .


                                      II. Analysis

      As an initial matter, we must address the contents of Curtis’s notice of appeal.

Our General Statutes provide that “[a]n order finally denying a motion to suppress

evidence may be reviewed upon an appeal from a judgment of conviction[,]” N.C. Gen.

Stat. § 15A-979(b) (2013), and our Rules of Appellate Procedure require that a written

notice of appeal “shall designate the judgment or order from which appeal is taken .

. . .” N.C.R. App. P. 4(b). In the present case, however, Curtis’s notice of appeal only

references “the above entitled Motion to Suppress.” Thus, in addition to an appellate

brief, Curtis’s appellate counsel has filed a petition for writ of certiorari seeking to

appeal from the trial court’s final judgment pursuant to Rule 21, which permits

review “when the right to prosecute an appeal has been lost by failure to take timely


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                                   Opinion of the Court



action[.]” N.C.R. App. P. 21(a)(1). The State opposes this petition, contending that

although Curtis’s notice of appeal did not fully comply with Rule 4’s technical

requirements, the deficiencies have nothing whatsoever to do with any failure by

Curtis to take timely action in prosecuting his appeal. The State argues further that

because the trial court treated the notice Curtis did provide as one applicable to its

final judgment, in light of sections 7A-27(b) and 15A-1444 of our General Statutes,

this Court should conclude that Curtis has not lost his right to prosecute this appeal,

and therefore we should deny his petition for certiorari review as unnecessary.

      Our prior decisions demonstrate that where a defendant expresses his intent

to appeal from the denial of a motion to suppress during trial but then fails to timely

file notice of appeal from the court’s final judgment, absent a petition for a writ of

certiorari, we are without jurisdiction to hear the appeal and must dismiss it. See,

e.g., State v. Miller, 205 N.C. App. 724, 726, 696 S.E.2d 542, 543 (2010) (dismissing

appeal where defendant noted his intent to appeal the denial of his motion to suppress

prior to pleading guilty but failed to appeal from the trial court’s final judgment); see

also State v. Franklin, 224 N.C. App. 337, 339, 736 S.E.2d 218, 220 (2012) (granting

petition for certiorari review where defendant failed to provide timely notice of appeal

from final judgment), affirmed per curiam, 367 N.C. 183, 752 S.E.2d 143 (2013). Here,

however, we agree with the State that certiorari review pursuant to Rule 21 is

unnecessary, given that Curtis’s “Motion for Notice Appeal” was timely filed and the



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                                   Opinion of the Court



trial court explicitly stated that it would treat it as a notice of appeal from final

judgment. Accordingly, although Curtis’s petition for a writ of certiorari is denied, we

now address the issues raised in his brief.

      Counsel appointed to represent Curtis is unable to identify any issue with

sufficient merit to support a meaningful argument for relief on appeal and asks that

this Court conduct its own review of the record for possible prejudicial error. Curtis’s

counsel has shown to the satisfaction of this Court that she has complied with the

requirements of Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493 (1967), and State

v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985), by advising Curtis of his right to file

written arguments with this Court and providing him with the documents necessary

for him to do so.

      In addition, Curtis’s counsel directs our attention to a potential issue on

appeal, namely, whether the trial court erred in denying the motion to suppress

evidence and testimony related to the search of Curtis’s bedroom. However, our

review of the record establishes that, after his motion in limine was denied, Curtis

failed to object when this evidence was admitted at trial. As precedent makes clear,

             [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. A criminal defendant is required to
             interpose at least a general objection to the evidence at the
             time it is offered.




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                                   Opinion of the Court



State v. Conaway, 339 N.C. 487, 521, 453 S.E.2d 824, 845-46 (citations omitted), cert.

denied, 516 U.S. 884, 133 L. Ed. 2d 153 (1995). Where a defendant fails to object

when such evidence is offered at trial, appellate review is limited to plain error. Id.

at 521, 453 S.E.2d at 846 (citation omitted); see also N.C.R. App. P. 10(a)(4) (providing

that an issue that was not properly preserved for appellate review “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”). Here, however, after

failing to properly preserve this issue for our review through a timely objection at

trial, Curtis has also failed to argue plain error, and has thus waived any right to

appeal the trial court’s denial of his motion to suppress. See, e.g., State v. Wright, 210

N.C. App. 697, 703, 709 S.E.2d 471, 475, disc. review denied, 365 N.C. 332, 717 S.E.2d

394 (2011).

      Curtis has not filed any written arguments on his own behalf with this Court,

and a reasonable time for him to do so has expired. In accordance with Anders, we

have fully examined the record to determine whether any issues of arguable merit

appear therefrom. We have been unable to find any possible prejudicial error and

conclude that the appeal is wholly frivolous.

      NO ERROR.

      Judges BRYANT and DIETZ concur.

      Report per Rule 30(e).



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