An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-186

NORTH CAROLINA COURT OF APPEALS

Filed: 6 January 2004

STATE OF NORTH CAROLINA

v.                            New Hanover County
                                No. 99 CrS 27798
JAMES ELROY BUTLER

    Appeal by Defendant from judgment entered 28 March 2002 by Judge Jay D. Hockenbury in Superior Court, New Hanover County. Heard in the Court of Appeals 18 November 2003.

    Roy Cooper, Attorney General, by John G. Barnwell, Assistant Attorney General, for the State.

    Staples Hughes, Appellate Defender, by Constance E. Widenhouse, Assistant Appellate Defender, for defendant- appellant.

    WYNN, Judge.

    From his conviction for first degree murder and sentence to life imprisonment without parole, Defendant James Elroy Butler argues on appeal that the trial court erred by (I) denying his motion to dismiss for insufficiency of the evidence, (II) overruling his objections to the prosecutor's improper voir dire questioning of jurors, (III) instructing prospective jurors that there is no distinction between direct and circumstantial evidence, and (IV) denying his motion for a mistrial after a witness revealed Defendant had previously been in prison. After careful review, we find no error.    At trial, the State's evidence tended to show that on the morning of her death, Queenie Brown Ray was seen being led by Defendant with his arm around her shoulders. Less than three hours later, Rudy Warren discovered Ms. Ray's body next to his home in the same area.
    Although Ms. Ray had dated Defendant on and off since 1996, witnesses testified that Ms. Ray had ended her relationship with Defendant and was being stalked by Defendant. Ms. Ray's sister, Lucille Jacobs, testified that Defendant admitted “he was watching [Ms. Ray], he knew . . . when she left her house, where she went, how long she stayed and who she saw . . ..” Ms. Jacobs testified that she heard Defendant say nobody could have “Queenie” if he could not have her. Elliot Thompson, rear neighbor to Ms. Ray's mother, saw Defendant hiding in bushes near his home on several occasions, watching the home of Ms. Ray's mother. Once Mr. Thompson spoke with the Defendant and asked “[w]hy don't you just let her go,” to which Defendant responded: “You don't understand. That dirty bitch hurt me so I'm going to kill the bitch.”     
    Several witnesses testified that Ms. Ray told them she wanted to end her relationship with Defendant, apparently against his wishes. Stephan Council, Ms. Ray's boyfriend for nearly two months prior to her death, testified that on two separate occasions, Defendant chased him through Ms. Ray's house with a knife after forcing his way past Ms. Ray into her home. During the week of her murder, Defendant had knocked on her front and back doors. In response, Ms. Ray told Defendant, “I don't want to see you no more,just go away.” Defendant left. According to Mr. Council, the following night Ms. Ray came home scared and shaken because Defendant had just threatened to kill her.
    On the day of her death, Ms. Ray visited her mother around dusk and was followed by Defendant, who was heard to say “I'll kill you if you mess around with my mind.” Around 11:00 p.m., Ms. Ray left her home promising to return by 2:00 a.m. Thereafter, she visited with Elliot Thompson but left around 12:30 a.m. telling him she was going to a club with her cousin. Mr. Thompson noticed Defendant was across the street when Ms. Ray arrived at his home and was gone when she left.
    Sometime later, Rose Fanning witnessed Ms. Ray get out of a vehicle belonging to a man named “Shakee”; however, as Ms. Ray started across the street toward her mother's house, she was intercepted by Defendant while he rode a bicycle. Upon hearing Defendant and Ms. Ray begin to argue, several individuals nearby began to walk away from the area, worried that police might be attracted by the commotion. Ms. Fanning testified that she heard one final “cut-off” scream as she walked away.
    Defendant presented testimony from Danny Dailey who testified that he and Defendant spent the entire night of Ms. Ray's murder together buying and selling crack cocaine and getting high. According to Mr. Dailey, Defendant never left his side because he was not accustomed to street hustling. He testified that Defendant was surprised when he heard of Ms. Ray's death and that at no point during the night did Defendant have a bicycle.    From his conviction on the charge of first degree murder, Defendant appeals to this Court arguing first that the circumstantial evidence presented by the State was insufficient to sustain his conviction. We disagree.
    As articulated by our Supreme Court, the test for sufficiency of the evidence is the same whether the evidence is direct or circumstantial.
        Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence. If the evidence presented is circumstantial, the court must consider whether a reasonable inference of defendant's guilt may be drawn from the circumstances. Once the court decides that a reasonable inference of defendant's guilt may be drawn from the circumstances, then it is for the jury to decide whether the acts, taken singly or in combination, satisfy [it] beyond a reasonable doubt that the defendant is actually guilty.

State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455 (citations omitted) (emphasis in original), cert. denied, 531 U.S. 890 (2000); State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61 (1991) (“The trial court's function is to determine whether the evidence will permit a reasonable inference that the defendant is guilty of the crimes charged”).
    Thus, since circumstantial evidence can support a reasonable inference of guilt, to defeat a motion to dismiss, the State need only present substantial evidence of (1) each element of the charged offense and (2) defendant being the perpetrator of such offense. State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (citations omitted). Moreover, the State may offercircumstantial evidence of Defendant's motive and opportunity to commit the crime to demonstrate that Defendant was in fact the perpetrator. See State v. Taylor, 337 N.C. 597, 604, 447 S.E.2d 360, 365 (1994) (“Once the court determines that a reasonable inference of the defendant's guilt may be drawn from the circumstances, it is for the jury to decide whether the facts, taken singly or in combination, satisfy them beyond a reasonable doubt that the defendant is actually guilty. Courts making such determinations may resort to circumstantial evidence of motive, opportunity and capability to identify the accused as the perpetrator of the crime”). (citations omitted).
    In the instant case, the testimony of several witnesses establishes that Defendant's jealousy motivated his murder of Ms. Ray. For instance, Defendant's statement to Elliot Thompson that “[t]hat dirty bitch hurt me so I'm going to kill the bitch,” is just one such piece of evidence. Moreover, the State presented substantial evidence of Defendant's opportunity to kill Ms. Ray; namely, that on the night she was murdered, Defendant followed her, intercepted her before she could get to her mother's house, and coerced her down an empty street where she was last seen alive. Finally, Defendant's attempt to rebut the inference that he killed Ms. Ray with Danny Dailey's alibi testimony must fail because it is inconsistent with the State's evidence. See State v. Taylor, 337 N.C. at 604, 447 S.E.2d at 365 (On a motion to dismiss testing the sufficiency of the evidence, “Defendant's evidence rebutting the inference of guilt may be considered only insofar as it explains orclarifies evidence offered by the State or is not inconsistent with the State's evidence”) (citations omitted). In sum, although circumstantial, the State's evidence, when taken together and in the light most favorable to the State, supported the jury's conclusion that Defendant perpetrated Ms. Ray's brutal murder.
    Defendant next argues that, during voir dire, the prosecutor in his case misrepresented the definition of reasonable doubt by asking the jurors:
        Do you understand that is not the State's burden of proof, we do not have to prove this beyond all doubt: We have to prove this beyond a reasonable doubt. A reasonable doubt is a doubt that comes from facts, or the lack thereof, based on common sense and reason. It's not a doubt based on vain and fancifulness. It could have been that some roving band killed Queenie Ray Brown and, in the grand possibility, that's a possibility, but unless it comes from the facts or the lack thereof, that's not reasonable doubt. Do ya'll understand that? The State does not have to eliminate all the questions you might have about this case. Do you understand this?

Thereafter, defense counsel objected, arguing that “to start talking about certainties is to totally mislead the jury.” The trial court overruled the objection, but instructed both attorneys to frame future questions in terms of the definitions to be used in the jury instructions. Later, the prosecutor discussed the concept of reasonable doubt again, saying: “The fact that somebody gets on the stand and tells you something doesn't create reasonable doubt.” Defendant contends these statements about reasonable doubt “suggested that something more than the testimony of one person was required to create a reasonable doubt” and that the comments “weremisstatements of law that impermissibly lowered the state's burden of proof.” Relying upon Cage v. Louisiana, 498 U.S. 39, 112 L. Ed.2d 339 (1991), Defendant argues a new trial is warranted because of the Due Process Clause violation.
    As stated in State v. Roseboro, “Cage . . . dealt with instructions the trial court gives to the jury. These cases are not controlling here, where the statements complained of were made by the prosecutor during jury arguments.” 344 N.C. 364, 377, 474 S.E.2d 314, 321 (1996) (citations omitted). Moreover, our Supreme Court in Roseboro concluded the trial court's correct statement of the law in its jury instruction on reasonable doubt meant any error of the prosecutor in defining reasonable doubt could not have denied the defendant due process and did not require a new trial. Id. In this case, the record shows the trial court properly instructed the jury on reasonable doubt prior to deliberations. Thus, even assuming the prosecutor's comments were improperly made, we hold that any error by the trial court in allowing the comments was subsequently cured by the trial court's correct instructions on reasonable doubt to the jury.
    Defendant also argues that the prosecutor violated his right to an impartial jury when he asked: “Would you be able to return a verdict of guilty based on the case that was in part or all on circumstantial evidence?” However, for reasons given in State v. Teague, 134 N.C. App. 702, 705, 518 S.E.2d 573, 575-76 (1999), appeal dismissed and cert. denied, 351 N.C. 368, 542 S.E.2d 655 (2000) (holding a prosecutor may properly question prospectivejurors about whether they would need more than circumstantial evidence to convict), we reject this assignment of error.
    Defendant next argues the trial court committed plain error by instructing prospective jurors during voir dire that there is no distinction between direct or circumstantial evidence and to consider them both the same. According to Defendant, this instruction was so prejudicial, we must grant him a new trial despite the fact that his counsel failed to object to the statements at trial. We disagree. Indeed, we are precluded from addressing the merits of Defendant's argument because the trial court's instructions to prospective jurors during voir dire are not subject to plain error analysis. See State v. Greene, 351 N.C. 562, 566-567, 528 S.E.2d 575, 578 (2000) (the trial court's failure to give an instruction during jury voir dire which has not been requested is not subject to plain error review); State v. Cummings, 352 N.C. 600, 613, 536 S.E.2d 36, 47 (2000)(the failure to object to statements made by the other party during jury voir dire is not subject to plain error analysis). By failing to object to the judge's statements during voir dire, Defense counsel has failed to properly preserve this issue for our review.
    Defendant last argues the trial court erred by failing to grant his motion for a mistrial following testimony by a witness revealing that he had previously served time in a prison. We disagree.
    N.C. Gen. Stat. § 15A-1061 (2003) requires a trial judge to declare a mistrial “if there occurs during the trial an error orlegal defect in the proceedings, or conduct inside . . . the courtroom resulting in substantial and irreparable prejudice to the defendant's case.” A trial court's decision to grant or deny a motion for mistrial is reviewable by this Court only in cases of gross abuse of discretion. State v. Darden, 48 N.C. App. 128, 133, 268 S.E.2d 225, 228 (1980).
    We hold that Defendant has failed to carry the burden of showing such abuse here. The record shows that the witness inadvertently mentioned that Defendant had been in jail. However, Defendant has failed to demonstrate the witness' statement substantially prejudiced him. We are not persuaded, as Defendant contends, that “this was a close case [such that] . . . evidence of defendant's prior incarceration was likely to have tipped the scales.” Rather, the fact that there were “no eye witnesses to the killing” does not make this a close case in light of the State's overwhelming, albeit circumstantial case against Defendant. We hold that the State presented sufficient evidence to support the jury's reasonable inference that Defendant killed Ms. Ray, as discussed above.
    No error.
    Judges TIMMONS-GOODSON and McCULLOUGH concur.
    Report per Rule 30(e).

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