An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1331


Filed: 18 November 2003


v .                         Rowan County
                            Nos. 01 CRS 57186
                                01 CRS 57187


    Appeal by defendant from judgment entered 2 May 2002 by Judge Larry G. Ford in Rowan County Superior Court. Heard in the Court of Appeals 11 June 2003.

    Attorney General Roy Cooper, by Assistant Attorney General M. Lynne Weaver for the State.

    Hall & Hall, P.C., by Douglas L. Hall for the defendant- appellant.

    ELMORE, Judge.

    Joshua Dane Knight (defendant) lived with his mother, Sheila Coughenour, and arrived home on the evening of the crime, apparently intoxicated. After defendant went to his room, defendant's mother and the victim, Deron Coughenour, her husband, sat in the living room talking. Mr. Coughenour heard his truck start and ran out the front door to see defendant in the driver's seat. While attempting to stop defendant from driving off, Mr. Coughenour, partially in and partially out of the driver's side door, was dragged along with the truck as defendant drove it off a five foot drop and into the foundation wall of a house. Mr.Coughenour blacked out and woke up two days later in intensive care with a collapsed lung, a head injury, and permanent paralysis.
    Defendant was charged with felony larceny, felony possession of stolen goods, and assault with a deadly weapon inflicting serious injury. After trial, the jury returned a verdict finding defendant guilty of misdemeanor possession of stolen property and unauthorized use of a motor vehicle, and assault with a deadly weapon inflicting serious injury. Defendant now appeals.

    Defendant first assigns error to the trial court's denial of his motion to dismiss the charges of felony larceny and felony possession of stolen goods at the close of the State's evidence, and at the close of all the evidence.
    The Supreme Court has examined the standard of review for motions to dismiss in criminal trials. In State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980), the Court held:
        Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.

State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980).
    When ruling on a motion to dismiss, the trial court must consider the evidence in the light most favorable to the State; and the State is entitled to every reasonable inference to be drawn therefrom. State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998). The State must present substantial evidence of eachelement of the offense charged. Id. The standard is the same regardless of what point in the trial the motion is raised, whether at the close of the State's evidence or at the end of all the evidence. See N.C. Gen. Stat. § 15A-1227; State v. Scott, 356 N.C. 591, 573 S.E.2d 866 (2002).
    Defendant assigns error to the trial court's denial of his motion to dismiss the charges of felony larceny and felony possession of stolen goods. Defendant cannot establish that this was prejudicial error when he was not convicted of those charges by the jury. The jury verdict sheets show that the jury returned verdicts of “[g]uilty of non-felonious possession of stolen property” and “[g]uilty of unauthorized use of a conveyance.”
    Assuming arguendo that it was error to submit the felony charges to the jury, it is well established in North Carolina that a conviction on a lesser offense renders any error in submission of a greater offense harmless. State v. Williams, 100 N.C. App. 567, 397 S.E.2d 364 (1990). See, e.g., State v. Casper, 256 N.C. 99, 122 S.E.2d 805 (1961), cert. denied, 376 U.S. 927, 11 L. Ed. 2d 622, 84 S. Ct. 691 (1964). We therefore overrule this assignment of error.
    Defendant next assigns error to the trial court's hearing and denying the motion to dismiss in the presence of the jury.
    In evaluating whether a judge's comments cross into the realm of impermissible opinion, a totality of the circumstances test is utilized. “Unless it is apparent that such infraction of the rulesmight reasonably have had a prejudicial effect on the result of the trial, the error will be considered harmless.” State v. Larrimore, 340 N.C. 119, 155, 456 S.E.2d 789, 808 (1995) (citations omitted). Defendant bears the burden of establishing that the trial judge's remarks were prejudicial. State v. Summerlin, 98 N.C. App. 167, 174, 390 S.E.2d 358, 361, disc. review denied, 327 N.C. 143, 394 S.E.2d 183 (1990). In weighing whether an expression by the trial court prejudiced a defendant's case, our Supreme Court has taken into account the trial court's instructions as to its own impartiality. State v. Porter, 340 N.C. 320, 330-31, 457 S.E.2d 716, 721 (1995); State v. Green, 129 N.C. App. 539, 545-46, 500 S.E.2d 452, 456 (1998), cert. denied, 528 U.S. 846, 145 L. Ed. 2d 100, 120 S. Ct. 118 (1999).
    The case of State v. Welch, 65 N.C. App. 390, 308 S.E.2d 910 (1983) speaks to the issue before us:
        Defendant finally contends the court expressed an opinion, in violation of G.S. 15A-1222, by summarily denying his motion to dismiss in the presence of the jury. The record, however, does not affirmatively disclose that the ruling was in fact audible to the jurors. Defendant did not seek to have the ruling made out of the presence of the jury, nor did he object or move for mistrial on this account at trial. Generally, ordinary rulings by the court in the course of trial do not amount to an impermissible expression of opinion. At most the ruling here merely informed the jury that the evidence was sufficient to allow it to decide the case. On this record no prejudice to defendant appears.

State v. Welch, 65 N.C. App. 390, 393-94, 308 S.E.2d 910, 912-13 (1983) (citations omitted).    In Welch, there was no indication that the jury actually heard the denial of the motion, and so it was non-prejudicial. Although the ruling on the motion seemed to take place within the hearing of the jury in the case at bar, it was done summarily and without argument, as a formality. After the close of the State's evidence, and the motion by the defense, the court ruled thus:
        THE COURT: All right, then. At the close of the State's evidence, the Court will deny that motion. You will have an opportunity to make it later. At the close of all the evidence, we will know that the burden is less on the State at this point that it is at the end of all the evidence. Now, Mr. Shoaf, do you wish to offer any evidence?

    In the case at bar, the judge also gave an instruction that cured any possible prejudice:
        The law, as indeed it should, requires the presiding judge to be impartial. You are not to draw any inference from any ruling that I have made, any inflection in my voice, expression on my face, or any question I may have asked a witness or anything else I may have said or done during this trial that I have an opinion or have intimated an opinion as to whether any part of the evidence should be believed or disbelieved and as to whether any fact had or had not been proven, or what your findings ought to be.

    If there was any prejudice, it was cured by this instruction. See e.g. State v. Carroll, 356 N.C. 526, 573 S.E.2d 899 (2002); State v. Larrimore, 340 N.C. 119, 456 S.E.2d 789 (1995); State v. Green, 129 N.C. App. 539, 500 S.E.2d 452 (1998). We discern no error.
    Defendant lastly assigns error to the trial court's refusal to admit into evidence a letter written by the defendant to the victim of the assault.
    Whether to exclude evidence is a matter within the sound discretion of the trial judge, State v. Mason, 315 N.C. 724, 340 S.E.2d 430 (1986), and we conclude that the trial judge did not abuse his discretion.
    Testimony of a self-serving declaration made by a defendant following an alleged crime is incompetent as substantive evidence. State v. Stanton, 319 N.C. 180, 191, 353 S.E.2d 385, 392 (1987). The evidence sought to be entered here was a letter written over twenty days after the crime to the victim, in which the defendant said he was sorry and it was an accident. This is not probative as to defendant's state of mind at the time of the crime, but only self-serving hearsay. The State did not open the door to admission of the letter, rather the only testimony up to that point had been about the letter's existence and not its content. The trial court did not err in excluding the evidence.
    No error.
    Judges TIMMONS-GOODSON and HUNTER concur.
    Report per Rule 30(e).

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