An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-398


Filed: 18 November 2003


         v.                        Orange County
                                No. 00 CRS 55667

    Appeal by defendant from judgment entered 7 June 2001 by Judge Wade Barber in Orange County Superior Court. Heard in the Court of Appeals 10 November 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General William H. Borden, for the State.

    Mary Exum Schaefer for defendant-appellant.

    LEVINSON, Judge.

    On 19 March 2001, defendant was indicted for larceny of a motor vehicle pursuant to N.C.G.S. 14-72(a). The case was tried at the 6 June 2001 Criminal Session of Orange County Superior Court.     Prior to jury selection, the trial court made opening remarks to the potential jurors regarding the presumption of innocence. The court instructed the jurors:
        But I will tell you some preliminary things about the law. One is, [defendant] has entered a plea of not guilty. Under our system as [sic] of justice when she plead [sic] not guilty, she is not required to prove her innocence. She is presumed to be innocent. This presumption remains with her throughout the trial until the jury is convinced from the facts and the law beyond a reasonable doubt of the guilt of thedefendant.

(emphasis added).
    Defendant was convicted of larceny of a motor vehicle and sentenced to a term of eight to ten months imprisonment. Defendant appeals.
    Defendant's sole argument on appeal is that the trial court's instruction that the jury was to presume her innocence until they were convinced by the evidence and the law of her guilt amounted to an improper expression of opinion by the trial judge upon her guilt. Defendant contends that by use of the word “until,” the trial court impermissibly suggested that at some point defendant's guilt would become a foregone conclusion. Defendant argues that she was prejudiced by this instruction and is entitled to a new trial.
    After careful review of the record, briefs and contentions of the parties, we find no error. Our Supreme Court has stated:
        Section 15A-1222 of the North Carolina General Statutes provides that [t]he 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. Similarly, section 15A-1232 of the North Carolina General Statutes requires that [i]n instructing the jury, the judge shall not express an opinion as to whether or not a fact has been proved and shall not be required to state, summarize or recapitulate the evidence, or to explain the application of the law to the evidence. In applying these statutes, we have stated that [i]n evaluating whether a judge's comments cross into the realm of impermissible opinion, a totality of the circumstances test is utilized. Further, a defendant claiming that he was deprived of a fair trial by the judge's remarks has the burden of showing prejudice in order toreceive a new trial.

State v. Anthony, 354 N.C. 372, 402, 555 S.E.2d 557, 578, cert. denied, 354 N.C. 575, 559 S.E.2d 184 (2001) (internal citations and quotation marks omitted); see also State v. Nicholson, 355 N.C. 1, 59, 558 S.E.2d 109, 147 (the trial court's words may not be detached from the context and the incidents of the trial and then critically examined for an interpretation from which erroneous expressions may be inferred.), cert. denied, 537 U.S. 845, 154 L. Ed. 2d 71 (2002) (internal citations and quotation marks omitted). In the case sub judice, defendant has failed to carry her burden of showing that she was prejudiced by the trial court's use of the word “until” during the judges opening remarks to the jury. The trial court's use of the word “until” was embedded in lengthy opening statements to the jury. Soon after making this statement, the court instructed the jury:
        There's no burden or duty of any kind upon the defendant. The mere fact that she has been charged with a crime is no evidence of guilt. It brings the matter to trial. [If] the State proves guilty beyond a reasonable doubt, then the function of the jury by its verdict is to say guilty. If the State fails to prove guilt beyond a reasonable doubt, then, of course, you must say not guilty.

Moreover, our review of the transcript reveals that the jury was thereafter fully and carefully instructed several times regarding the presumption of defendant's innocence and the State's burden of proof. After the evidence was presented, the trial court instructed the jury:
        If you do not find that the State has proven beyond a reasonable doubt under the law thatI've given you that she's guilty of felonious larceny, then you'll be instructed to determine whether or not she is guilty of [the lesser offense] of unauthorized use of a conveyance. And if you do not find that the State has proven beyond a reasonable doubt that she's guilty of unauthorized use of a conveyance, then you must find her not guilty.
(emphasis added). Furthermore, the court emphasized that it was within the exclusive province of the jury to determine the guilt of the defendant, and the jury should not draw any inference from the court as to the defendant's guilt. Accordingly, when considered in the context of all the comments made by the court during the trial, we conclude there was no error.
    No error.
    Chief Judge EAGLES and Judge BRYANT concur.
    Report per Rule 30(e).

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