An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-782
                       NORTH CAROLINA COURT OF APPEALS

                                  Filed:   6 May 2014


STATE OF NORTH CAROLINA

      v.                                      Jackson County
                                              No. 11 CRS 1364
PATRICK LEE EWART



      Appeal by defendant from judgment entered 8 August 2012 by

Judge Alan Z. Thornburg in Jackson County Superior Court.                     Heard

in the Court of Appeals on 31 March 2014.


      Roy Cooper, Attorney General, by Lauren M.                        Clemmons,
      Special Deputy Attorney General, for the State.

      David Belser for defendant-appellant.


      DAVIS, Judge.


      Defendant Patrick Lee Ewart (“Defendant”) appeals from the

judgment     entered      after    a   jury   found   him    guilty    of   taking

indecent liberties with a child.               Defendant contends the trial

court erred in admitting evidence of a previous sexual assault

committed     by   him.      After     careful   review,     we   conclude     that

Defendant received a fair trial free from error.

                              Factual Background
                                       -2-
       Brenda1, the victim in this case, babysat Defendant’s sons

during the summer and fall of 2010, when she was fifteen years

old.      On   8    October    2010,   Brenda    was    babysitting      one   of

Defendant’s sons at his home.           Brenda took her younger brother

with her for the evening.           Defendant and his wife were expected

to arrive home late, so Brenda and her brother planned to spend

the night.         Brenda went to bed but woke up during the night

because she could sense someone else was in the room.                   When she

awoke, she saw Defendant.           Defendant pulled back the covers and

touched Brenda on her right breast and in her vaginal area.

Later that day, Brenda told her boyfriend and family members

about the incident, and her family contacted the Jackson County

Sheriff’s Department.

       Prior   to   trial,    the   State    filed   written   notice    of    its

intent to introduce          evidence of prior bad acts by Defendant

pursuant to Rule 404(b) of the North Carolina Rules of Evidence.

Defendant filed a motion in limine seeking to prevent the State

from presenting the Rule 404(b) evidence.              On the second day of

trial, the trial court permitted both parties to conduct a voir

dire examination of a witness, “Samantha,” through which the



1
  Pseudonyms are used throughout the opinion to protect the
identities of individuals who were minors at the time of the
incident.
                                            -3-
State      intended      to    offer   Rule       404(b)     evidence.        Samantha

described an incident in which Defendant had allegedly groped

her breast and attempted to touch her vaginal area approximately

four years earlier.            Following voir dire, the trial court ruled

the evidence was admissible pursuant to Rules 404(b) and 403.

Defendant noted an exception to the trial court’s ruling outside

the   presence     of    the    jury   but    did    not    object     when   Samantha

described the incident to the jury.                    The jury found Defendant

guilty of indecent liberties with a child.                      Defendant appealed

to this Court.

                                       Analysis

      In    his   sole    argument     on    appeal,       Defendant    contends   the

trial court erred by admitting Samantha’s testimony pursuant to

Rules 404(b) and 403.              We first note that “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) (citation and quotation marks

omitted); N.C.R. App. P.10(a).
                                            -4-
       Here, Defendant did not object to Samantha’s testimony in

the presence of the jury and, therefore, did not preserve the

issue    of    the   admissibility          of    that    evidence      for    appellate

review.       Id.    Nevertheless, in criminal cases, issues that are

not    preserved     by   a   timely    objection         may   still    be    raised   on

appeal if the “judicial action questioned is specifically and

distinctly contended to amount to plain error.”                            N.C.R. App.

P.10(a)(4).          Where     a    defendant      does       not   “specifically       and

distinctly” allege plain error, however, he is not entitled to

plain error review.           State v. Davis, 202 N.C. App. 490, 497, 688

S.E.2d 829, 834 (2010),              appeal dismissed, 365 N.C. 366, 719

S.E.2d 623 (2011); see also Ray, 364 N.C. at 278, 697 S.E.2d at

322.

       Here, Defendant has not specifically and distinctly alleged

that the admission of Samantha’s testimony amounted to plain

error.       In fact, Defendant’s brief contains no reference to the

plain error standard.              Accordingly, we hold that Defendant has

waived his right to appellate review of this issue.

                                      Conclusion

       For    the    reasons       stated   above,       we     find    that   Defendant

received a fair trial free from error.

       NO ERROR.
                          -5-
Judges McGEE and ELMORE concur.

Report per Rule 30(e).
