              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                      No. COA15-278

                                Filed: 15 March 2016

Guilford County, No. 12CRS086543

STATE OF NORTH CAROLINA

             v.

LARRY COOK, Defendant.


      Appeal by defendant from judgment entered on 23 May 2014 by Judge A.

Moses Massey in Superior Court, Guilford County. Heard in the Court of Appeals on

23 September 2015.


      Attorney General Roy A. Cooper III, by Special Deputy Attorney General David
      P. Brenskelle, for the State.

      Michael E. Casterline, for defendant-appellant.


      STROUD, Judge.


      Larry Cook (“defendant”) appeals from a judgment entered on a jury verdict

finding him guilty of first-degree murder. Defendant argues that (1) his trial counsel

rendered ineffective assistance of counsel; and (2) the trial court erred in admitting

hearsay testimony of the victim’s sister. We find no error.

                                 I.       Background

      In 2007, defendant approached Brittney Turner (“the victim”) at a bus stop and

offered to give her money for lunch. Brittney accepted, and the two began a romantic
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relationship which lasted for the next five years. Brittney allowed defendant to

borrow her car until 15 August 2012, when the car overheated while defendant was

driving it. While Brittney was at work, defendant and another man attempted to fix

the car at the house of Brittney’s mother, Pamela Turner, but they were unsuccessful.

Pamela and Daisha Turner, the victim’s sister, dropped off defendant at his residence

at a motel. That night, while Pamela was at work, Brittney and Daisha stayed at

Pamela’s house. During this time, defendant made numerous threatening phone calls

to Brittney, and Brittney told Daisha that she was afraid of defendant.

      The next morning, defendant repeatedly called Pamela to tell her that he was

hungry. After Brittney and Pamela had run some errands, Brittney, Pamela, Daisha,

and John Turner,1 Daisha’s four-year-old son, drove to defendant’s residence at the

motel to deliver some groceries and the clothes that defendant had left in Brittney’s

car. After Pamela parked the car, Brittney grabbed defendant’s clothes, walked alone

to defendant’s door, and knocked on his door.                Defendant opened the door and,

without warning, began repeatedly stabbing Brittney in the neck with a screwdriver

and a knife. Pamela and Daisha immediately ran to Brittney’s aid. Defendant

stabbed Pamela in the neck while Brittney and Daisha ran toward the motel lobby.

Defendant chased Brittney into the motel lobby and continued stabbing her there.

Pamela and Daisha again ran to Brittney’s aid. Defendant stabbed Pamela in her



      1   We use a pseudonym to protect the identity of the juvenile.

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abdomen twice and stabbed Daisha in her neck while Brittney ran to the highway to

stop a car for help. After Brittney stopped a car on the highway, she collapsed,

succumbing to her numerous injuries.         During these events, John was running

around in the motel parking lot. While Pamela grabbed John and placed him back in

her car, defendant walked up to her car, slit her tires, and broke her car windows and

then walked back up to his room.

      On 1 October 2012, a grand jury indicted defendant for first-degree murder

and two counts of assault with a deadly weapon with intent to kill inflicting serious

injury. See N.C. Gen. Stat. §§ 14-17, -32(a) (2011). Before trial, defendant admitted

that he had killed Brittney Turner and was culpable for “some criminal conduct”

during an inquiry pursuant to State v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985),

cert. denied, 476 U.S. 1123, 90 L. Ed. 2d 672 (1986). At trial, both Pamela Turner

and Daisha Turner testified, and the State proffered video recordings of defendant’s

attack, taken from the motel’s surveillance system.       On 23 May 2014, the jury

convicted defendant of first-degree murder under theories of both premeditation and

deliberation and felony murder. The jury also convicted defendant of assault with a

deadly weapon with intent to kill inflicting serious injury with respect to Pamela

Turner and assault with a deadly weapon inflicting serious injury with respect to

Daisha Turner. The trial court sentenced defendant to life imprisonment without




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parole for the first-degree murder conviction and arrested judgment on defendant’s

other convictions. Defendant gave timely notice of appeal.

                   II.   Ineffective Assistance of Counsel (“IAC”)

      Defendant argues that his trial counsel rendered ineffective assistance of

counsel, because in closing argument, his trial counsel (1) stated that he was not

advocating that the jury find defendant not guilty; and (2) “repeatedly emphasiz[ed]

the dreadfulness of the crime[s].”

A.    Concession of Guilt

      Defendant argues that his trial counsel’s statement in closing argument that

he was not advocating that the jury find defendant not guilty exceeded the scope of

the consent he gave during the Harbison inquiry. “[I]neffective assistance of counsel,

per se in violation of the Sixth Amendment, has been established in every criminal

case in which the defendant’s counsel admits the defendant’s guilt to the jury without

the defendant’s consent.” Harbison, 315 N.C. at 180, 337 S.E.2d at 507-08.

      In Harbison, the defendant, who was charged with murder, “steadfastly

maintained that he acted in self-defense” throughout the trial. Id. at 177, 337 S.E.2d

at 506. But in closing argument, his counsel, without his knowledge or consent,

“express[ed] his personal opinion that [the defendant] should not be found innocent

but should be found guilty of manslaughter.” Id., 337 S.E.2d at 506. Our Supreme




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Court held that trial counsel had rendered per se ineffective assistance of counsel for

the following reason:

             [T]he gravity of the consequences demands that the
             decision to plead guilty remain in the defendant’s hands.
             When counsel admits his client’s guilt without first
             obtaining the client’s consent, the client’s rights to a fair
             trial and to put the State to the burden of proof are
             completely swept away. The practical effect is the same as
             if counsel had entered a plea of guilty without the client’s
             consent. Counsel in such situations denies the client’s
             right to have the issue of guilt or innocence decided by a
             jury.

Id. at 180, 337 S.E.2d at 507.

      Similarly, in State v. Matthews, in closing argument, the defendant’s trial

counsel argued that the jury “ought not to even consider” acquitting the defendant

but that they should find the defendant guilty of second-degree murder. State v.

Matthews, 358 N.C. 102, 106, 591 S.E.2d 535, 539 (2004). The defendant moved for

appropriate relief based on ineffective assistance of counsel, but the trial court denied

the motion, because it concluded that the “defendant [had] implicitly allowed his trial

counsel to concede his guilt” by consenting to his counsel’s overall trial strategy “to

convince the jury that [the] defendant was guilty of something other than first degree

murder” and because his IQ was high. Id. at 105-08, 538-40. Our Supreme Court

disagreed with the trial court and held:

             For us to conclude that a defendant permitted his counsel
             to concede his guilt to a lesser-included crime, the facts
             must show, at a minimum, that defendant knew his counsel


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             were going to make such a concession. Because the record
             does not indicate defendant knew his attorney was going to
             concede his guilt to second-degree murder, we must
             conclude defendant’s attorney made this concession
             without defendant’s consent, in violation of Harbison.

Id. at 109, 591 S.E.2d at 540.

      In contrast, in State v. McNeill, the defendant stipulated in writing that he

“did inflict multiple stab wounds” on the victim and that “these wounds caused her

death.” State v. McNeill, 346 N.C. 233, 237, 485 S.E.2d 284, 286 (1997) (brackets

omitted), cert. denied, 522 U.S. 1053, 139 L. Ed. 2d 647 (1998). The trial court

conducted a Harbison inquiry and determined that the defendant had “knowingly,

voluntarily, and understandingly consented to the stipulation[.]” Id. at 238, 485

S.E.2d at 287. In closing argument, the defendant’s counsel argued that “this is not

a case of first degree murder; it’s a case of second degree murder,” and that counsel

“has the permission of [the] defendant to tell you that he’s guilty of second degree

murder.” Id. at 237, 485 S.E.2d at 286 (brackets omitted). The defendant on appeal

argued that his trial counsel had rendered ineffective assistance of counsel under

Harbison, because his “stipulation was not intended to be a concession to second-

degree murder.” Id., 485 S.E.2d at 286. Our Supreme Court rejected the defendant’s

argument and distinguished Harbison:

                    Harbison is distinguishable. Significantly, there the
             defendant claimed self-defense. By contrast, defendant
             here stipulated in writing to having stabbed the victim and
             proximately caused her death. Second-degree murder is


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             the unlawful killing of another human being with malice
             but without premeditation and deliberation. The intent
             necessary to support a conviction for second-degree murder
             is the intent to inflict the wound which produces the
             homicide. Indeed, malice is presumed where the defendant
             intentionally assaults another with a deadly weapon,
             thereby causing the other’s death.         The stipulation
             defendant entered concedes each of these elements and
             therefore supports a verdict of second-degree murder. In
             arguing in accord with defendant’s stipulation, defense
             counsel cannot be said to have rendered ineffective legal
             assistance.

Id. at 237-38, 485 S.E.2d at 287 (citations omitted). Our Supreme Court concluded:

“Where, as here, a defendant stipulates to the elements of an offense, defense counsel

may infer consent to admit defendant’s guilt of that offense.” Id. at 238, 485 S.E.2d

at 287.

      Similarly, here, the trial court conducted the following Harbison inquiry:

             THE COURT:           ....
                    Your lawyer, Mr. Carpenter, has indicated this
             morning that in his—in jury selection that he intends to
             concede or admit in front of the jury that, if I understood
             him correctly—
                    And please don’t hesitate to interrupt me, Mr.
             Carpenter, if I say something that indicates to you that I
             misunderstood what you were saying.
                    —but as I understand it, [defendant], your lawyer is
             intending to admit during jury selection that you killed [the
             victim], and I don’t know if he’s going to go into—if he’ll—
             during jury selection what questions might arise about lack
             of mental capacity, but with the understanding that the
             defense, then, during the case will be that you lacked the
             mental capacity to form the intent to premeditate and to
             deliberate, and, therefore, you would not be guilty of first
             degree murder. Is this—has Mr. Carpenter discussed with


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you this strategy?

DEFENDANT:           Yes, sir.

THE COURT:           And do you agree with it?

DEFENDANT:           Yes, sir.

THE COURT:         Do you understand that, even if Mr.
Carpenter recommends this, that you’re not bound by his
recommendation? Do you understand that if you feel that
nothing should be admitted that Mr. Carpenter would not
be allowed to admit anything, that that’s your—ultimately,
you—I encourage you to have considered the advice of your
lawyer, but do you understand ultimately that is your
decision and your decision alone as to whether any element
of any crime is admitted to the jury? Do you understand
that?

DEFENDANT:           Yes, sir.

THE COURT:           And have you given your consent and
do you still give your consent for your lawyer to make that
admission before the jury during opening statements
and/or during jury selection?

DEFENDANT:           Yes, sir.

THE COURT:         Do you understand that if he makes
that admission that it makes it very likely that the jury
may find you guilty of some offense?

DEFENDANT:           Yes, sir.

THE COURT:         Thank you, [defendant]. You may be
seated.
      Based upon my inquiry of [defendant], I find as a fact
and conclude as a matter of law that [defendant] has
knowingly, intelligently, and voluntarily, and with full
knowledge and awareness of the possible consequences,


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             agreed and consented to a trial strategy whereby his
             attorney, Mr. Carpenter, acknowledges the defendant’s
             culpability for some criminal conduct in the actions now on
             trial, and that [defendant] has made this decision after
             having been fully advised and [apprised] of the possible
             consequences of such a strategy.

(Emphasis added.)

      In closing argument, defendant’s counsel stated:

                    With the mental health issues that we presented to
             you, ladies and gentlemen, today, are we saying to you that
             [defendant] committed no crime and he should somehow
             walk, or something to that effect? Absolutely not.
                    On a charge of first-degree murder, you’ll also
             receive a second charge of second-degree murder, also a
             very serious felony charge. Those will be the two charges
             for your consideration for the homicide.

(Emphasis added.)

      Like in McNeill, defendant here “knowingly, intelligently, and voluntarily, and

with full knowledge and awareness of the possible consequences” admitted that he

had killed the victim and that he had “culpability for some criminal conduct[.]” See

id. at 237-38, 485 S.E.2d at 286-87. Defendant’s counsel’s trial strategy was to

convince the jury that defendant lacked the mental capacity necessary for

premeditation and deliberation and was therefore not guilty of first-degree murder.

Defendant’s counsel called only two witnesses, both of whom were psychologists and

testified as expert witnesses. The first expert witness opined that defendant suffered

from a mild neurocognitive disorder, and the second expert witness opined that



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defendant “lacked the mental capacity to consider the consequences of his behavior

when he killed [the victim.]” By admitting that he killed the victim and that he was

guilty of “some criminal conduct[,]” defendant conceded that he was guilty of a

homicide offense. See id. at 238, 485 S.E.2d at 287 (“Where, as here, a defendant

stipulates to the elements of an offense, defense counsel may infer consent to admit

defendant’s guilt of that offense.”).

      Defendant responds that although he acknowledged that he had “culpability

for some criminal conduct[,]” he did not specifically admit that he was guilty of

second-degree murder. But defendant’s trial counsel did not argue that defendant

was guilty of second-degree murder; rather, defendant’s trial counsel stated that he

was not advocating that the jury find defendant not guilty. At first blush, this

distinction may seem to be too fine a point given that second-degree murder and first-

degree murder were the only homicide offenses submitted to the jury. But defendant

never requested that any other homicide offense be submitted to the jury. On appeal,

defendant argues that the evidence supported a conviction of voluntary

manslaughter. But defendant does not argue that the trial court erred in failing to

submit a jury instruction on the lesser offense of voluntary manslaughter, nor does

defendant argue that his trial counsel rendered ineffective assistance of counsel by

not requesting this instruction. Defendant admitted that he had killed the victim

and that he was culpable “for some criminal conduct[,]” and in closing argument,



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defendant’s trial counsel stated that he was not advocating that the jury find

defendant not guilty. Accordingly, we hold that defendant’s trial counsel did not

argue beyond the scope of defendant’s concession of guilt.

      We note that in McNeill, the defendant’s stipulation that he “did inflict

multiple stab wounds” on the victim and that “these wounds caused her death” is very

similar to defendant’s concession here, and our Supreme Court held that that

stipulation conceded each of the elements of second-degree murder. See id. at 237-

38, 485 S.E.2d at 286-87 (brackets omitted).

      Defendant also argues that the facts here are analogous to the facts in

Harbison and Matthews. See Harbison, 315 N.C. at 177-78, 337 S.E.2d at 506;

Matthews, 358 N.C. at 106-09, 591 S.E.2d at 539-40. But we distinguish Harbison

and Matthews, because in both of those cases, the defendant never expressly

consented to any concession of guilt, but here the trial court conducted an inquiry and

concluded that defendant “knowingly, intelligently, and voluntarily, and with full

knowledge and awareness of the possible consequences” admitted that he had killed

the victim and was culpable “for some criminal conduct[.]” See Harbison, 315 N.C. at

177-78, 337 S.E.2d at 506; Matthews, 358 N.C. at 106-09, 591 S.E.2d at 539-40.

Following McNeill, we hold that defendant’s trial counsel did not deprive defendant

of effective assistance of counsel by stating in closing argument that he was not

advocating that the jury find defendant not guilty. See McNeill, 346 N.C. at 237-38,



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485 S.E.2d at 286-87.

B.    Emphasis of Dreadfulness of Crimes

      Defendant next argues that his trial counsel rendered ineffective assistance of

counsel by “repeatedly emphasizing the dreadfulness of the crime[s]” in closing

argument.    Defendant characterizes his trial counsel’s emphasis as a Harbison

violation, because his trial counsel’s statements exceeded the scope of the consent he

gave during a Harbison-like inquiry in which he consented to his trial counsel

describing the video recordings of the crimes as “very graphic and very upsetting.”

      In closing argument, defendant’s trial counsel argued:

                    We talked about the surveillance video during jury
             selection. We talked about how graphic it would be. It was
             horrible. It was scary. No human being should ever have
             to go through what any of the people who were there went
             through, especially [the victim]. There’s no disputing that.
             But a trial is not a popularity contest. It’s not about who
             you like or don’t like. It’s not about emotions. It’s not about
             who your heart goes out for.
                    This trial’s not about whether or not what
             [defendant] did on August 16th, 2012 was a horrible,
             terrible crime. It was. This trial is about [defendant’s]
             mental capacity on August 16th, 2012.
                    ....
                    I can’t stand here before you and put into words or
             to justice how difficult I’m sure it was for [the victim’s
             family] to sit here and live through this and go through
             this, and I can tell you that I’m sorry. That’s an
             understatement, ladies and gentlemen.
                    At the same time, I’m representing [defendant], and
             we believe that on that day, August 16th, 2012, [defendant]
             had mental disorders on the day that he killed [the victim]
             and on the day of the assaults, and I had a duty to present


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             those mental disorders to you in this case, and I hope you
             can understand that.
                    Why is the mental health of a person who’s
             committed a crime important? It’s important because our
             legislature and our courts say it is. It is the law of our
             state. Our law says it matters.
                    ....
                    I’m not [going to] talk about the videos again because
             the videos are very clear. You’ve seen them with your own
             eyes. I don’t need to tell you what they look like; you saw
             how horrible they were.
                    ....
                    And certainly I do not—I’ll say it again. I don’t
             ignore the fact that these crimes that you saw on the
             videotape were horrible for every person [who] was there,
             including that little boy who was right in the middle of it,
             but that’s not for deliberation.
                    We’re not deciding how horrible it is. We’re trying
             to decide mental capacity, whether or not [defendant] had
             the mental capacity to commit the crime—the three crimes
             that he’s charged with, and I would contend that he did not.

      We preliminarily note that although we appreciate the caution exercised by

defendant’s trial counsel and the trial court in conducting a Harbison-like inquiry,

Harbison is inapposite to this issue as this issue does not relate to any concession of

guilt made by defendant’s trial counsel. See Harbison, 315 N.C. at 180, 337 S.E.2d

at 507-08. Rather, defendant is challenging his counsel’s trial strategy in describing

defendant’s crimes as “horrible.” Accordingly, we employ the two-part Strickland v.

Washington analysis to this component of defendant’s IAC claim:

                     To prevail in a claim for IAC, a defendant must show
             that his (1) counsel’s performance was deficient, meaning
             it fell below an objective standard of reasonableness, and
             (2) the deficient performance prejudiced the defense,


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             meaning counsel’s errors were so serious as to deprive the
             defendant of a fair trial, a trial whose result is reliable. As
             to the first prong of the IAC test, a strong presumption
             exists that a counsel’s conduct falls within the range of
             reasonable professional assistance. Further, if there is no
             reasonable probability that in the absence of counsel’s
             alleged errors the result of the proceeding would have been
             different, then the court need not determine whether
             counsel’s performance was actually deficient.

State v. Smith, 230 N.C. App. 387, 390, 749 S.E.2d 507, 509 (2013) (citations,

quotation marks, and brackets omitted) (applying IAC analysis from Strickland v.

Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984)), cert. denied, 367 N.C. 532, 762

S.E.2d 221 (2014).

      Here, in closing argument, defendant’s trial counsel pointed out to the jury that

while defendant’s crimes were “horrible[,]” the gravity of his crimes was not the issue

they had to determine. Rather, defendant’s trial counsel was impressing on the jury

that they should base their decision on whether they believed defendant lacked the

mental capacity necessary for premeditation and deliberation. We therefore hold that

defendant has failed to rebut the “strong presumption . . . that a counsel’s conduct

falls within the range of reasonable professional assistance.” See id., 749 S.E.2d at

509 (citation omitted).

      In addition, “there is no reasonable probability that in the absence of counsel’s

alleged errors the result of the proceeding would have been different,” since the State

proffered overwhelming evidence of defendant’s guilt of the first-degree murder



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offense. See id., 749 S.E.2d at 509. In addition to the video recordings showing

defendant repeatedly stabbing the victim, the State proffered the testimony of the

victim’s mother and sister. See State v. Taylor, 337 N.C. 597, 608, 447 S.E.2d 360,

367 (1994) (“From the vicious assault and from the multiple wounds, many of which

must have been inflicted after the victim had been felled and rendered helpless, the

jury could reasonably infer that the defendant acted with premeditation and

deliberation.”). We also note that the jury found defendant guilty of first-degree

murder under both a theory of premeditation and deliberation and a theory of felony

murder based on either of defendant’s felony assault offenses on the victim’s mother

and sister. Since defendant’s trial counsel’s performance was not deficient and “there

is no reasonable probability that in the absence of counsel’s alleged errors the result

of the proceeding would have been different,” we hold that defendant has failed to

demonstrate that he was deprived of effective assistance of counsel. See Smith, 230

N.C. App. at 390, 749 S.E.2d at 509 (citation omitted).

                            III.   Admission of Evidence

      Defendant next argues that the trial court erred in admitting hearsay

testimony of the victim’s sister, Daisha Turner, over his counsel’s objection.

A.    Preservation of Error

      The State argues that defendant waived this issue, as his counsel did not state

the ground for his objection. “In order to preserve an issue for appellate review, a



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party must have presented to the trial court a timely request, objection, or motion,

stating the specific grounds for the ruling the party desired the court to make if the

specific grounds were not apparent from the context.”        N.C.R. App. P. 10(a)(1)

(emphasis added). We examine defendant’s objection in context:

             [Prosecutor]:      So [you and the victim] were relaxing
             and sitting around[?]

             [Daisha Turner]: Yes, and at one point [the victim]
             confided in me. At one point she confided in me, and she
             was telling me about the relationship more than what I
             knew, and that she was scared of [defendant].

             [Defendant’s counsel]:      Objection.

             [Prosecutor]:       Present sense impression.

             THE COURT:          Objection overruled.

             [Prosecutor]:       Okay. She had told you that she was
             scared of him[?]

             [Daisha Turner]:    Yes.

(Emphasis added.)

      Viewed in context, it is “apparent” that defendant’s objection was based on

hearsay. See id. The prosecutor immediately understood this ground for defendant’s

objection, as evidenced by his argument that Ms. Turner’s testimony fit within the

present-sense-impression hearsay exception. See N.C. Gen. Stat. § 8C-1, Rule 803(1)

(2013) (providing that a “statement describing or explaining an event or condition

made while the declarant was perceiving the event or condition, or immediately


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thereafter” is an exception to the general rule that hearsay evidence is inadmissible).

In addition, defendant had made several hearsay objections immediately before this

particular objection, and the trial court had cautioned Ms. Turner three times not to

say what the victim said. Accordingly, we hold that the ground for defendant’s

objection was “apparent from the context.” See N.C.R. App. P. 10(a)(1).

      Relying on State v. Atkinson and State v. Teeter, the State next argues that

defendant waived this issue because his counsel did not move to strike Ms. Turner’s

testimony. See State v. Atkinson, 309 N.C. 186, 189, 305 S.E.2d 700, 703 (1983) (“The

failure to move to strike the answer waives any objection to the information elicited

when the inadmissibility of the testimony appears only in the response of the

witness.”); State v. Teeter, 85 N.C. App. 624, 630, 355 S.E.2d 804, 808, appeal

dismissed and disc. review denied, 320 N.C. 175, 358 S.E.2d 67 (1987).              We

distinguish Atkinson and Teeter.

      In Atkinson, on cross-examination, the prosecutor sought “to elicit from [the]

defendant the admission that he was avoiding a criminal charge in New Jersey.”

Atkinson, 309 N.C. at 188, 305 S.E.2d at 702. The prosecutor “did not seek to put

before the jury the specific nature of the charge; rather, he was attempting to question

[the] defendant about an act of misconduct, i.e., avoiding criminal prosecution.” Id.,

305 S.E.2d at 702. The defendant’s counsel objected to the prosecutor’s question, and

the trial court overruled the objection.     Id. at 187, 305 S.E.2d at 701-02.      The



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defendant then volunteered the details of the criminal charge, and his counsel did not

object or move to strike his answer. Id. at 187-88, 305 S.E.2d at 702. Our Supreme

Court held that the prosecutor’s question was proper but that “[t]he issue of whether

the information actually given by defendant in response to the prosecutor’s question

was admissible, as distinguished from the propriety of the question itself, [was] not

properly before [the Court].” Id. at 188-89, 305 S.E.2d at 702-03. In Teeter, the

defendant on appeal argued that an expert witness “was improperly permitted to

state an opinion concerning the credibility of the prosecuting witness and the guilt or

innocence of [the] defendant[,]” but this Court held that the defendant had waived

this issue, because the “defendant neither objected to the question nor moved to strike

the answer.” Teeter, 85 N.C. App. at 628-30, 355 S.E.2d at 807-08.

      In contrast, here, defendant objected to Ms. Turner’s answer. Unlike the

defendants in Atkinson and Teeter who failed to object to the allegedly inadmissible

answers of the witnesses, defendant “presented to the trial court a timely request,

objection, or motion” to the testimony that he specifically challenges on appeal. See

N.C.R. App. P. 10(a)(1) (emphasis added); Atkinson, 309 N.C. at 187-88, 305 S.E.2d

at 701-02; Teeter, 85 N.C. App. at 630, 355 S.E.2d at 808.

      Relying on State v. Whitley, the State finally argues that defendant waived this

issue because after defendant’s objection, Ms. Turner immediately repeated the

challenged testimony. See State v. Whitley, 311 N.C. 656, 661, 319 S.E.2d 584, 588



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(1984) (“Where evidence is admitted over objection, and the same evidence has been

previously admitted or is later admitted without objection, the benefit of the objection

is lost.”). We distinguish Whitley.

         There, the defendant objected to a detective’s use of the term “crime scene” in

his testimony. Id. at 660, 319 S.E.2d at 587. Our Supreme Court held that the

defendant had waived this issue, because the defendant did not object to the

detective’s use of the term on four other occasions in his testimony. Id. at 660-61, 319

S.E.2d at 587-88. In contrast, here, the prosecutor asked Ms. Turner the following

clarifying question immediately after the trial court overruled defendant’s objection:

“[The victim] had told you that she was scared of him[?]” Ms. Turner responded:

“Yes.” Accordingly, we hold that defendant has preserved this issue for appellate

review. See State v. Dalton, ___ N.C. App. ___, ___, 776 S.E.2d 545, 550 (rejecting a

similar waiver argument in the context of a closing argument), temporary stay

allowed, ___ N.C. ___, 777 S.E.2d 72 (2015).

B.       Standard of Review

         “This Court reviews a trial court’s ruling on the admission of evidence over a

party’s hearsay objection de novo.” State v. Hicks, ___ N.C. App. ___, ___, 777 S.E.2d

341, 348 (2015), disc. review denied, ___ N.C. ___, ___ S.E.2d ___ (No. 396P15 Jan. 28,

2016).

C.       Analysis



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                                    STATE V. COOK

                                  Opinion of the Court



      On appeal, the State argues that Ms. Turner’s statement was admissible under

both the present-sense-impression hearsay exception and the state-of-mind hearsay

exception. See N.C. Gen. Stat. § 8C-1, Rule 803(1), (3). Because the state-of-mind

hearsay exception better fits the facts of this case, we will address only whether Ms.

Turner’s statement was admissible under that exception. We note that although the

trial court did not admit her statement under the state-of-mind hearsay exception,

we generally uphold a trial court’s ruling “if it is correct upon any theory of law[.]”

Cf. Opsahl v. Pinehurst Inc., 81 N.C. App. 56, 63, 344 S.E.2d 68, 73 (1986) (citation

omitted) (discussing this general rule in the context of contract law), disc. review

improvidently allowed per curiam, 319 N.C. 222, 353 S.E.2d 400 (1987); State v.

Coffey, 326 N.C. 268, 285-86, 389 S.E.2d 48, 58 (1990) (upholding the trial court’s

evidentiary ruling despite finding that the trial court had admitted the challenged

statement under the wrong hearsay exception); State v. McElrath, 322 N.C. 1, 15, 19,

366 S.E.2d 442, 450, 452 (1988) (same).

                    Hearsay is defined 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. As a general rule, hearsay is inadmissible at
             trial. [North Carolina Rules of Evidence] 803 and 804,
             however, provide exceptions and permit the admission of
             hearsay statements under certain circumstances.

State v. Morgan, 359 N.C. 131, 154, 604 S.E.2d 886, 900 (2004) (citations and

quotation marks omitted), cert. denied, 546 U.S. 830, 163 L. Ed. 2d 79 (2005); see also



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                                   STATE V. COOK

                                  Opinion of the Court



N.C. Gen. Stat. § 8C-1, Rules 801, 802, 803, 804 (2013). North Carolina Rule of

Evidence 803(3) provides that a “statement of the declarant’s then existing state of

mind, emotion, sensation, or physical condition (such as intent, plan, motive, design,

mental feeling, pain, and bodily health), but not including a statement of memory or

belief to prove the fact remembered or believed unless it relates to the execution,

revocation, identification, or terms of declarant’s will” is admissible as a hearsay

exception. N.C. Gen. Stat. § 8C-1, Rule 803(3).

                    “It is well established in North Carolina that a
             murder victim’s statements falling within the state of mind
             exception to the hearsay rule are highly relevant to show
             the status of the victim’s relationship to the defendant.”
             State v. Alston, 341 N.C. 198, 230, 461 S.E.2d 687, 704
             (1995), cert. denied, [516 U.S. 1148], 134 L. Ed. 2d 100
             (1996); see State v. McHone, 334 N.C. 627, 637, 435 S.E.2d
             296, 301-02 (1993) (state of mind relevant to show a stormy
             relationship between the victim and the defendant prior to
             the murder), cert. denied, [511 U.S. 1046], 128 L. Ed. 2d
             220 (1994); State v. Lynch, 327 N.C. 210, 222, 393 S.E.2d
             811, 818-19 (1990) (the defendant’s threats to the victim
             shortly before the murder admissible to show the victim’s
             then-existing state of mind); State v. Cummings, 326 N.C.
             298, 313, 389 S.E.2d 66, 74 (1990) (the victim’s statements
             regarding the defendant’s threats relevant to the issue of
             her relationship with the defendant).

State v. Crawford, 344 N.C. 65, 76, 472 S.E.2d 920, 927 (1996).

      The victim’s statement that she “was scared of” defendant unequivocally

demonstrates her state of mind and is “highly relevant to show the status” of her

relationship with defendant on the night before she was killed. See id., 472 S.E.2d at



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                                      STATE V. COOK

                                     Opinion of the Court



927. Accordingly, we hold that this statement was admissible under the state-of-

mind hearsay exception. See N.C. Gen. Stat. § 8C-1, Rule 803(3).

      But even assuming arguendo that this statement was inadmissible, we hold

that defendant has failed to demonstrate that “there is a reasonable possibility that,

had the [alleged] error in question not been committed, a different result would have

been reached at the trial[.]” See N.C. Gen. Stat. § 15A-1443(a) (2013). As discussed

above, the State proffered overwhelming evidence supporting defendant’s conviction

of first-degree murder under theories of both premeditation and deliberation and

felony murder. Accordingly, we hold that defendant has failed to demonstrate that

this alleged error prejudiced him.

                                     IV.    Conclusion

      For the foregoing reasons, we hold defendant was not deprived of effective

assistance of counsel and that the trial court committed no error.

      NO ERROR.

      Judges CALABRIA and INMAN concur.




                                            - 22 -
