An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1237
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 17 June 2014
STATE OF NORTH CAROLINA

      v.                                      Madison County
                                              No. 12 CRS 50550
THEODORE JAMES EARLE



      Appeal by Defendant from judgment entered 6 May 2013 by

Judge Bradley B. Letts in Superior Court, Madison County.                     Heard

in the Court of Appeals 3 June 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Elizabeth N. Strickland, for the State.

      Jarvis John Edgerton, IV for Defendant.


      McGEE, Judge.


      Theodore James Earle (“Defendant”) was convicted of making

a false bomb report and misuse of the 911 system.                       Defendant

received a minimum sentence of four months and a maximum of

fourteen months, suspended.          Defendant appeals.

      The evidence at trial tended to show that, on the morning

of 30 June 2012, Defendant was camping with two friends at the

Hot   Springs    campground     (“the    campground”)      in   Madison    County.

Defendant called 911 to report seeing “a bomb type item stuck
                                                  -2-
underneath         the     railroad         trestle.”            Local       law      enforcement

officers      responded         to     the    campground         to     investigate.                The

officers searched the area for approximately an hour, but did

not   find     a    bomb.            The    officers         escorted       Defendant         to   the

railroad trestle (“the trestle”) and Defendant identified the

area where he claimed to have seen the bomb.                                 However, no bomb

was located in that area.                     Once the officers determined there

was    no    “bomb       type    item”       under       the    trestle,         they    arrested

Defendant      and       his    two    friends.          At    the    time       of   Defendant’s

arrest, he was administered an alka-sensor test that indicated

the presence of alcohol in his system.

       At trial, Defendant’s psychiatrist, Dr. Ricardo Bierrnbach

(“Dr.       Bierrnbach”),            testified      that       Defendant         suffered          from

“attention         deficit,          hypertension        disorder,          major      depression

disorder, and general anxiety with panic attacks[,]” and that he

had   prescribed          “a    number       of    medications          .    .   .    includ[ing]

Vyvanse[,]” for Defendant to help address his symptoms.                                            Dr.

Bierrnbach testified that Vyvanse, particularly                                   when   combined

with alcohol, could cause a “[p]sychosis [] present[ed] [] in

the form of hallucinations.”

       Defendant asked Dr. Bierrnbach if, in his expert opinion,

he believed Defendant was, in fact, “suffering [from] some sort

of    hallucination”            at    the    time       of    the     incident.         The    State
                                            -3-
objected     and     the       trial     court       sustained     the     objection.

Subsequently, the trial court allowed Dr. Bierrnbach to testify

to the possibility of hallucinations occurring when prescription

drugs and alcohol were mixed.

    In Defendant’s sole argument on appeal, he contends the

trial court erred by preventing Dr. Bierrnbach from giving his

expert opinion concerning whether Defendant was suffering from

hallucinations at the time Defendant placed his call to 911.                        We

disagree.

    We must first determine if Defendant has preserved this

argument for appellate review.                    It is well settled that “[t]o

prevail on a contention that evidence was improperly excluded,

either a defendant must make an offer of proof as to what the

evidence would have shown or the relevance and content of the

answer must be obvious from the context of the questioning.”

State v. Geddie, 345 N.C. 73, 95, 478 S.E.2d 146, 157 (1996)

(citation omitted).             “This Court has explained that                  ‘[t]he

reason    for    such     a    rule    is    that    the    essential     content   or

substance of the witness’              testimony must be shown before we can

ascertain       whether       prejudicial     error       occurred.’”      State    v.

Jacobs,    195    N.C.    App.    599,      609,    673   S.E.2d   724,   730   (2009)

(citation omitted).
                                            -4-
       Specifically, Defendant argues that Dr. Bierrnbach should

have been allowed to answer the following question: “Based on

your     expert      knowledge        and     your      experience      in     treating

[Defendant] and knowing what happened on [30 June 2012], do you

believe, in spite of the event, he was suffering some sort of

hallucination?”

       Defendant       contends      Dr.     Bierrnbach’s      excluded       testimony

would     have    tended     to      show    that     Defendant       “suffered       from

hallucinations         during    a   psychotic       episode   on     [30   June     2012]

caused by the mixture of the legally prescribed drug Vyvanse and

alcohol.”        The    trial     court     sustained    the    State’s      objection,

preventing Dr. Bierrnbach from answering the question.                             “In the

absence of an adequate offer of proof, ‘[w]e can only speculate

as to what [Dr. Bierrnbach’s] answer would have been.’”                              State

v. Barton, 335 N.C. 741, 749, 441 S.E.2d 306, 310-311 (1994)

(citation omitted).             Although it is clear the answer Defendant

was     attempting      to   elicit        from   Dr.    Bierrnbach,         and     while

Defendant contends Dr. Bierrnbach’s excluded expert testimony

was readily apparent, Dr. Bierrnbach might have responded to the

inquiry in a different manner than Defendant expected.                             “It is

speculative for this Court to attempt to presume [a witness’]

testimony.”       State v. Atkins, 349 N.C. 62, 79, 505 S.E.2d 97,

108    (1998);    see    State.      v.    Lawrence,    352    N.C.    1,   21-22,     530
                                 -5-
S.E.2d 807, 820 (2000).

    Because   “[t]he   answer   to   [D]efendant’s   question   was   not

evident, and ‘[t]he substance of the excluded testimony was not

necessarily apparent from the context within which the question

was asked[,]’” State v. Williams, 355 N.C. 501, 534, 565 S.E.2d

609, 629 (2002) (citation omitted), “[D]efendant has waived his

right to challenge th[is] ruling[] on appeal.”        Jacobs, 195 N.C.

App. at 609, 673 S.E.2d at 730 (citation omitted).         Defendant’s

argument is without merit.

    No error.

    Judges HUNTER, Robert C. and ELMORE concur.

    Report per Rule 30(e).
