An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA02-623


Filed: 7 January 2003


         v.                        Granville County
                                Nos. 95 CRS 4516
SCOTT DEON BROOKS                        01 CRS 1728

    Appeal by defendant from judgment entered 24 January 2002 by Judge Evelyn W. Hill in Granville County Superior Court. Heard in the Court of Appeals 23 December 2002.

    Attorney General Roy Cooper, by Special Deputy Attorney General Lars F. Nance, for the State.

    Samuel L. Bridges for defendant appellant.

    McCULLOUGH, Judge.

    Defendant was charged with possession of a Schedule II controlled substance. The State's evidence tended to show that on 13 April 2001, Deputy R.E. Winesett of the Granville County Sheriff's Department served an arrest warrant on defendant at his residence. Deputy Winesett brought defendant before a magistrate and took him to the jail booking area. Officer Allen and Sergeant Boyd were in the booking area, which is a secured area within the jail. Detective Winesett did not observe any items on the booking station counter when he brought defendant to the counter for booking. As part of booking, defendant emptied his pockets and placed a pack of Newport cigarettes on the counter. Detective Winesett remembered defendant having the green and white pack ofcigarettes with him at his residence.
    Officer Allen took defendant's cigarettes to the control room to destroy them because the jail is a non-smoking environment. In the cigarette pack, Officer Allen found a folded piece of paper containing what appeared to be a rock of crack cocaine. Officer Allen immediately returned to the booking area with the pack of cigarettes and reported her discovery to Sergeant Boyd. Sergeant Boyd set the cigarette pack containing the rock of crack cocaine by the computer until Investigator Noblin arrived to conduct a field test of the off-white rock substance. The substance tested positive for cocaine.
    Johnny Kimball, who was incarcerated at the Granville County Jail on forgery charges, testified on defendant's behalf. Kimball testified that while he was cleaning in the booking area, he saw defendant at the desk placing his personal items, including a “green and white cigarette pack,” on the counter. Defendant testified that he was arrested by Deputy Winesett on a communicating threats domestic warrant and taken to the Granville County Jail. He testified that Officer Allen “check[ed] my cigarettes right there in front of me. And she threw them in the trash can.” Defendant further testified that when Sergeant Boyd told him about the drugs found in the cigarette pack, he told Sergeant Boyd they could not have been his.
    Defendant first contends the evidence as submitted to the jury was insufficient with regard to his possession or control of the cigarette pack in which the contraband was found. Defendant argueshis insufficiency of the evidence claim is reviewable pursuant to N.C. Gen. Stat. § 15A-1227(d) (2001) even though he did not move to dismiss or object to the evidence at trial. We disagree.
    N.C.R. App. P. 10(b)(3) (2002) provides that a defendant who fails to make a motion to dismiss at the close of all of the evidence may not attack on appeal the sufficiency of the evidence at trial. Our Supreme Court has held that “'[t]o the extent that N.C.G.S. 15A-1446(d)(5) is inconsistent with N.C.R. App. P. 10(b)(3), the statute must fail.'” State v. Spaugh, 321 N.C. 550, 552, 364 S.E.2d 368, 370 (1988) (quoting State v. Stocks, 319 N.C. 437, 439, 355 S.E.2d 492, 493 (1987)). Accordingly, this assignment of error is dismissed.
    Defendant next assigns error to the trial court giving “non- standard, confusing and erroneous preliminary instructions to the jury prior to trial.” After the jury was impaneled, the trial court told the jury that evidence would come in the form of testimony from witnesses, admissions of parties and physical exhibits; that exhibits would be given to the jury to be examined, that the lawyers had a right to object to evidence; and that the jury should disregard an answer or evidence stricken by the court. In explaining the jury's obligation to disregard excluded evidence, the trial court stated:
            Now, here is one of those places where if you don't use your mind, you think the law is stupid, because as soon as somebody tells you not to think about something, what do you do? That's right, you think about it. So, the law doesn't say you can't think about it, it says, you must disregard it and not consider it asevidence. So, in other words, when you go back in the jury room, you can't consider that as part of the evidence. If someone were to say, well, what about that pink elephant, you would have to say, well, yes, but we were told not to regard that as part of the evidence, and we have to put that over here. It doesn't mean you have to forget it.

            We only forget those things we need to remember anyway, which -- like, where our car keys are and stuff.
    Because defendant did not object to the jury instructions, this Court must review defendant's assigned error using the "plain error" rule. State v. Cummings, 346 N.C. 291, 313-14, 488 S.E.2d 550, 563 (1997), cert. denied, 522 U.S. 1092, 139 L. Ed. 2d 873 (1998) (issues not properly preserved for appeal may be reviewed on appeal for plain error when the issue involves either errors in the trial judge's instructions to the jury or rulings on the admissibility of evidence). Plain error is error "so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached." State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988).
    Here, the trial judge simply gave the jury an overview of what to expect during the trial proceedings, including the jury's responsibility when the trial court strikes an answer. These were preliminary remarks given by the trial court without objection from either party. Accordingly, the trial court did not commit error, much less "plain error."
    Defendant also contends the trial court erred by making“unprovoked, unprofessional and degrading remarks to defense counsel in the presence of the jury[.]” The trial court's first remarks occurred during Johnny Kimball's direct testimony. Mr. Kimball testified that while he was at the sergeant's desk, officers brought in “Mr. Ragland, Scott Ragland.” Defense counsel then asked if he was sure that was defendant's name. When the State objected, the following colloquy occurred:
            THE COURT: Sustained. He never testified that was the Defendant.

            [DEFENSE COUNSEL]: That's true, Your Honor.

            THE COURT: Sir, if I need you to make a comment, I'll let you know. How many more times do you want me to tell you that? Would you like me to leave, and you can come up here and sit. And stop acting like you do, okay? Thank you.

The following remarks occurred at the end of Mr. Kimball's testimony:
            THE COURT: Excellent. You're free to go. Please call your next witness.

            [DEFENSE COUNSEL]: Nothing further.

            THE COURT: Oh, yes, there is, unless you need to be heard out of the presence of the jury.

            [DEFENSE COUNSEL]: I do, Your Honor.

            THE COURT: Don't you think that would be a good idea to tell the Court that?

Finally, the following exchange took place before defendant took the stand:
            THE COURT: Let the record reflect all 13 jurors are with us.
            You may call your next witness.
            [DEFENSE COUNSEL]: Your Honor, Mr. Brooks states that he wishes to testify.

            THE COURT: I believe, sir, that I said you may call your next witness[.]

            [DEFENSE COUNSEL]: I call Mr. Brooks.

            THE COURT: All right. That's right. Apparently, you don't understand the procedure.

    “[A] judge may not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury.” N.C. Gen. Stat. § 15A-1222 (2001). Trial judges therefore have a duty of absolute impartiality, State v. Fleming, 350 N.C. 109, 125-26, 512 S.E.2d 720, 732, cert. denied, 528 U.S. 941, 145 L. Ed. 2d 274 (1999), as "every defendant in a criminal case is entitled to a trial before an impartial judge and an unbiased jury." State v. Sidbury, 64 N.C. App. 177, 178-79, 306 S.E.2d 844, 845 (1983). Nonetheless, not every expression of opinion by the trial court constitutes prejudicial error. State v. Blackstock, 314 N.C. 232, 236, 333 S.E.2d 245, 248 (1985). Our Supreme Court further stated in Blackstock:
        Whether the judge's comments, questions or actions constitute reversible error is a question to be considered in light of the factors and circumstances disclosed by the record, the burden of showing prejudice being upon the defendant. Thus, in a criminal case it is only when the jury may reasonably infer from the evidence before it that the trial judge's action intimated an opinion as to a factual issue, the defendant's guilt, the weight of the evidence or a witness's credibility that prejudicial error results.
Id. (citations omitted). The burden rests upon defendant to show that the remarks of the trial judge deprived him of a fair trial. State v. Greene, 285 N.C. 482, 206 S.E.2d 229 (1974).
    After careful examination of the transcript, we hold that defendant has in no way shown that he was prejudiced by the trial judge's remarks. The statements do not reflect on the credibility of the witnesses or the weight of the evidence. We discern no prejudicial error.
    Lastly, defendant contends the trial court erred in its instruction to the jury in response to its question regarding the meaning of intent and possession. During jury deliberations, the jury sent a note to the trial court asking the trial court to define the parameters of intent to possess. In response, the trial court read the pattern jury instruction for possession of cocaine and for intent. When the jury foreman indicated that the jury needed more assistance, the trial court gave a hypothetical involving a bank teller in a bank. The jury foreperson then described the jury's question by stating that the jury was “struggling with [] possession and intent surrounding possession versus intent to transport[.]” The trial court responded:
        Okay. I understand where you're coming from. The issue you are to decide is whether or not the Defendant, on the date alleged, possessed cocaine. You are not being asked to decide whether or not he possessed it at any time - time, like transported it to the jail. Did he, on that date, at any time, under the law, possess cocaine? That's what you're being asked to answer.

            Some of you may be familiar with otherlaws that involve that, and -- but he is not charged with any other offense, other than simply it's called simple possession, possessing -- did he, has the State proved beyond a reasonable doubt that on or about the alleged date, the Defendant on or about the alleged date, at any time on that date, possessed cocaine.

Defense counsel objected and asked the trial court to reiterate that “it's knowingly possess, not just possess.” The trial court agreed and reinstructed the jury as follows:
        I want to remind you that possession by definition is this: A person possesses cocaine when he is aware of its presence, that's knowingly possesses, and has both the power and intent to control the disposition and use of that substance.

    Defendant claims the trial court erred when it “varied widely from the pattern instructions[.]” However, the trial court's charge to the jury must be construed contextually and isolated portions of it will not be held prejudicial error when the charge as a whole is correct. State v. Hardy, 353 N.C. 122, 131-32, 540 S.E.2d 334, 342 (2000), cert. denied, ___ U.S. ___, 151 L. Ed. 2d 56 (2001). “'If the charge presents the law fairly and clearly to the jury, the fact that some expressions, standing alone, might be considered erroneous will afford no ground for reversal.'” State v. Rich, 351 N.C. 386, 394, 527 S.E.2d 299, 303 (2000) (quoting State v. Lee, 277 N.C. 205, 214, 176 S.E.2d 765, 770 (1970)).
    After reviewing the trial court's jury instructions as a whole, we conclude that the trial court correctly instructed the jury that defendant must have knowingly possessed the cocaine. The trial court properly read from the pattern instructions forpossession of cocaine and for intent and, upon defendant's objection, reinstructed the jury on “knowingly possess.” Accordingly, this assignment of error is overruled.
    After careful review of the record, transcript, and the arguments presented by the parties, we conclude defendant received a fair trial free from error.
    No error.
    Chief Judge EAGLES and Judge HUDSON concur.
    Report per Rule 30(e).

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