An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1062
                         NORTH CAROLINA COURT OF APPEALS

                             Filed: 18 February 2014


STATE OF NORTH CAROLINA

      v.                                      New Hanover County
                                              Nos. 11 CRS 10578, 58357,
                                              58850; 12 CRS 9327
KENDALE TYRONE STRANGE



      Appeal by Defendant from judgments entered 30 May 2013 by

Judge Arnold O. Jones in New Hanover                  County Superior       Court.

Heard in the Court of Appeals 27 January 2014.


      Attorney General Roy Cooper, by Special                   Deputy    Attorney
      General Anne J. Brown, for the State.

      Irving Joyner for Defendant.


      DILLON, Judge.


      Kendale Tyrone Strange (“Defendant”) appeals from judgments

entered upon a jury verdict finding him guilty of possession of

a   firearm    by    a   felon,    driving    while    license     revoked,     and

resisting a public officer, and his subsequent guilty plea to

trafficking in opium or heroin and attaining the status of an

habitual    felon.        The   trial   court    sentenced      Defendant     to   a
                                               -2-
mandatory       term    of   70    to      84        months     imprisonment      for    his

trafficking       conviction.            The    court     consolidated        Defendant’s

remaining       convictions       into     a     single       judgment    and    sentenced

Defendant as an habitual felon to a concurrent term of 88 to 115

months imprisonment.             Defendant filed timely written notice of

appeal from the judgments.

       Defendant’s sole argument on appeal is that the trial court

erred   when     it    refused    to     dismiss       the    charge     of   resisting    a

public officer.         Defendant, however, has failed to preserve this

issue for appellate review.

       At trial, Defendant’s trial counsel moved to dismiss only

the charge of possession of a firearm by a felon.                               It is well

established that “where a theory argued on appeal was not raised

before the trial court, the law does not permit parties to swap

horses between courts in order to get a better mount in the

appellate courts.”           State v. Holliman, 155 N.C. App. 120, 123,

573    S.E.2d    682,    685      (2002)       (citations        and   quotation        marks

omitted).       This precludes a defendant from presenting on appeal

“a different theory to support his motion to dismiss than that

he presented at trial[.]”                State v. Euceda-Valle, 182 N.C. App.

268,    272,    641    S.E.2d     858,     862,        appeal    dismissed      and     cert.

denied, 361 N.C. 698, 652 S.E.2d 923 (2007); see also N.C.R.
                                    -3-
App.   P.   10(a)(3)   (providing   that   “[i]n   a   criminal   case,   a

defendant may not make insufficiency of the evidence to prove

the crime charged the basis of an issue presented on appeal

unless a motion to dismiss the action . . . is made at trial”).

Defendant’s counsel did not make a motion to dismiss the charge

of resisting a public officer, and Defendant has thus waived

review of this argument.        Because Defendant’s sole argument on

appeal is not properly before this Court, we dismiss his appeal.

       DISMISSED.

       Chief Judge MARTIN and Judge HUNTER, JR., concur.

       Report per Rule 30(e).
