# State v. Jones

> Court of Appeals of North Carolina · October 4, 2011 · 216 N.C. App. 225

URL: https://www.frixlaw.com/law-library/cases/9781271

## Case

- **Full name:** State of North Carolina v. Levy Jones III
- **Court:** Court of Appeals of North Carolina
- **Decided:** October 4, 2011
- **Citations:** 216 N.C. App. 225; 715 S.E.2d 896; 2011 N.C. App. LEXIS 2156
- **Precedential status:** Published
- **Opinion:** Concurrence by Steelman
- **Judges:** McCullough, Steelman, Hunter
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9781271

## Opinion text

STEELMAN, Judge
concurring in the result.
At trial, defendant did not object to the admission of the identification of defendant from the photograph provided by principal Hart. Neither did he raise the constitutional arguments now raised on appeal. *237 Constitutional arguments not preserved at trial cannot be raised on appeal. See State v. Maness, 363 N.C. 261, 279 , 677 S.E.2d 796, 808 (2009) (“A constitutional issue not raised at trial will generally not be considered for the first time on appeal.” (quotation and alteration omitted)), cert. denied,_U.S._, 176 L. Ed. 2d 568 (2010); State v. Cummings, 353 N.C. 281, 292 , 543 S.E.2d 849, 856 (“Constitutional questions that are not raised and passed upon in the trial court will not ordinarily be considered on appeal.” (citations omitted)), cert. denied, 534 U.S. 965 , 151 L. Ed. 2d 286 (2001); N.C.R. App. P. 10(a)(1) (“In order to preserve an issue for appellate review, a 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.”).
The majority asserts that defendant’s constitutional claims, which were not raised at trial, can be considered on their merits for two reasons: (1) the “constitutional right at issue involves the admissibility of evidence[;]” and (2) defendant has raised a claim of ineffective assistance of counsel. While defendant has a right to plain error review of an evidentiary ruling, he does not have the right to use this to bootstrap an unpreserved constitutional issue before this Court. The majority opinion has the consequence of allowing defendant to appeal what is not appealable. Veazey v. Durham, 231 N.C. 357, 364 , 57 S.E.2d 377, 383 (1950). Under the rationale of the majority, by combining an evidentiary issue together with a constitutional issue so that they are difficult to separate, a defendant can obtain review of a constitutional issue that was not preserved at trial. N.C.R. App. P. 10(a)(1). The only limitation upon this approach, now sanctioned by the majority, would be the creativity of appellate counsel. The evidentiary ruling should be separated from the constitutional issue, and ruled upon under plain error review. The constitutional issue should be dismissed.
While raising a claim of ineffective assistance of counsel may entitle defendant to the review of the constitutional question in the context of the first prong of an analysis under Strickland v. Washington, 466 U.S. 668, 687 , 80 L. Ed. 2d 674, 693 (1984), it does not entitle defendant to raise the claim upon its merits.
The constitutional arguments of defendant should be dismissed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9781271. Public record. Not legal advice.