An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1166


Filed: 1 June 2004


         v.                        Duplin County
                                No. 02 CRS 052772,
TERRY CURTIS HILL                     02 CRS 053008-10, 02 CRS 8539

    Appeal by defendant from judgments dated 8 May 2003 by Judge W. Allen Cobb, Jr. in Superior Court, Duplin County. Heard in the Court of Appeals 10 May 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Thomas H. Moore, for the State.

    Charns & Charns, by D. Tucker Charns, for defendant-appellant.

    McGEE, Judge.

    Terry Curtis Hill (defendant) was convicted on 8 May 2003 of two counts of felonious breaking and entering, two counts of malicious conduct by a prisoner, and one count each of felonious larceny, misdemeanor possession of marijuana, and possession of drug paraphernalia. Defendant was also adjudged to be an habitual felon. The trial court consolidated the convictions into two judgments, found defendant to have a prior record level IV, and sentenced defendant to two consecutive terms of a minimum of eighty months to a maximum of 105 months, active imprisonment. Defendant appeals.
    The evidence presented at trial tended to show that WilliamClark Johnson (Johnson) heard his dog barking in his backyard at approximately 10:38 p.m. on 15 November 2002. Johnson went to investigate and turned on the floodlights in his backyard. Johnson saw a man carrying a large, black plastic bag enter his storage shed and close the door. Johnson's wife called the police. James Marshburn (Officer Marshburn) and William E. Barnette (Officer Barnette) of the Warsaw Police Department arrived to investigate. Officer Barnette entered the shed, turned on the light, and discovered defendant behind the door. Once defendant was outside the shed, Officer Marshburn placed him under arrest.
    Officer Marshburn drove defendant to the Warsaw Police Department. He testified that defendant smelled of alcohol and "was in the back seat of the car cussing and hollering." Once at the police department, Officer Marshburn escorted defendant inside the building, and defendant tried to kick him. Officer Marshburn avoided the kick and regained control of defendant. Defendant was placed in a holding cell, where he "spit three or four times" on Officer Marshburn. Officer Marshburn left the area to calm down. Defendant was later discovered unconscious in his cell and was transported to the hospital. After regaining consciousness, defendant continued to act in a hostile manner. Officer Marshburn testified that defendant told him that "white people were the ruination of America, but that was okay because bin Laden had something for us and that bin Laden was a bad man and that he was going to kill all white people. " Michael Berger (Berger), Johnson's next door neighbor, heard somebody talking outside hiswindow at "about 10:30 or 11:00" the evening of 19 December 2002. Berger saw a man wearing a plaid shirt in Johnson's yard. At trial, Berger identified defendant as the man he saw in Johnson's yard. Defendant was carrying a leaf blower, walking from the general direction of the backyard towards the front of the house, and talking to himself. Berger called the police and told them that defendant was walking towards a street behind a nearby Piggly Wiggly store.
    Officer Marshburn, James Preston (Officer Preston) and Angela Dudley (Officer Dudley) responded to Berger's call. The three officers arrived at the back of the Piggly Wiggly, found defendant, who matched the description given by Berger, and took defendant into custody. Officer Marshburn frisked defendant and found two small car stereo speakers inside defendant's jacket pockets. A leaf blower was found beside a nearby light pole. Both items were later identified as belonging to Johnson.
    Defendant was taken to the police station. As Officer Preston was placing defendant in a holding cell, defendant turned around and "spit directly in [Officer Preston's] face." Officer Dudley later searched defendant while defendant was in his cell and found "a pack of rolling papers inside [his] wallet and a marijuana roach."
    During jury selection at trial, the State asked the following question: "[D]oes anybody have any reason, without telling me the reason, why you would rather not serve as a juror here today, either personal problems or other things . . . ?" One potentialjuror responded affirmatively and stated that "[w]hen [he] was working over at Duplin Correctional, [he] [thought] [he] had run into the defendant." After a brief bench conference, the potential juror was excused. Defendant subsequently moved for a mistrial, and the trial court denied the motion.
    We first note that defendant has failed to present an argument in support of assignments of error numbers two, five, and six and they are deemed abandoned pursuant to N.C.R. App. P. 28(b)(6).
    Defendant argues in assignment of error number one that the trial court erred by denying his motion for a mistrial. Defendant contends that it was "clear" to the jurors that the potential juror who had been excused had met defendant while defendant was in prison. Defendant asserts this was clear in light of the fact that the potential juror was immediately excused after his statement and a bench conference. Defendant argues this denial prejudiced his case, and he was entitled to a mistrial.
    After careful review of the record, briefs and contentions of the parties, we find no abuse of discretion. "Whether to grant a motion for mistrial is within the sound discretion of the trial court, and its ruling will not be disturbed on appeal unless it is so clearly erroneous as to amount to a manifest abuse of discretion." State v. McCarver, 341 N.C. 364, 383, 462 S.E.2d 25, 36 (1995), cert. denied, 517 U.S. 1110, 134 L. Ed. 2d 482 (1996). "'[A] mistrial is appropriate only when there are such serious improprieties as would make it impossible to attain a fair and impartial verdict under the law.'" State v. Mason, 159 N.C. App.691, 694, 583 S.E.2d 410, 412 (2003) (quoting State v. Calloway, 305 N.C. 747, 754, 291 S.E.2d 622, 627 (1982)    ).

    In the case before us, defendant argues that the trial court should have declared a mistrial because of the statement made by the potential juror who was subsequently excused. The trial court denied the motion based on findings and a conclusion that "the juror's equivocation and his lack of certainty in his response and the subsequent dismissal from the panel for cause of the challenged juror did not result in substantial and irreparable prejudice to the defendant." We note that the potential juror did not specify whether defendant was an inmate, a co-worker, or a visitor.
     "Not every disruptive event which occurs during trial automatically requires the court to declare a mistrial." State v. Allen, 141 N.C. App. 610, 617, 541 S.E.2d 490, 496 (2000), disc. review denied, 353 N.C. 382, 547 S.E.2d 816 (2001). "'[I]f in the sound discretion of the trial judge it is possible despite the untoward event, to preserve defendant's basic right to receive a fair trial before an unbiased jury, then the motion for mistrial should be denied.'" State v. Parker, 119 N.C. App. 328, 335, 459 S.E.2d 9, 13 (1995) (quoting State v. Moore, 335 N.C. 567, 598, 440 S.E.2d 797, 815, cert. denied, 513 U.S. 898, 130 L. Ed. 2d 174 (1994) (citations omitted)).
        "On appeal, the decision of the trial judge in this regard is entitled to the greatest respect. He is present while the events unfold and is in a position to know far better than the printed record can ever reflect, just how far the jury may have been influenced by the events occurring during the trial and whether it has been possible to erase theprejudicial effect . . . . Therefore, unless his ruling is so clearly erroneous so as to amount to a manifest abuse of discretion, it will not be disturbed on appeal."

State v. McCollum, 157 N.C. App. 408, 415, 579 S.E.2d 467, 471 (2003), aff'd, 358 N.C. 132, 591 S.E.2d 519 (2004) (quoting State v. Newton, 82 N.C. App. 555, 559, 347 S.E.2d 81, 84 (1986), disc. review denied, 318 N.C. 699, 351 S.E.2d 756 (1987) (citations omitted)). Accordingly, this assignment of error is overruled.
    Defendant next argues in assignment of error number three that the trial court erred by admitting Johnson's testimony regarding the emotional state of his wife following the break-in of their shed. Defendant contends that the testimony was not relevant. Defendant similarly argues in assignment of error number four that the trial court erred by admitting statements made by defendant which were irrelevant. Officer Marshburn testified that defendant stated that "white people were the ruination of America" and "bin Laden was a bad man and that he was going to kill all white people." Defendant contends that the only relevant reason to offer the statements to the jury was "to inflame the jury's passions" and to paint defendant as a "vile and repulsive person."
    Initially, we note that we agree with defendant that the evidence was not relevant and should not have been admitted. "However, admission of irrelevant evidence will be treated as harmless unless the defendant shows that he was so prejudiced by the erroneous admission that a different result would have ensued if the evidence had been excluded." State v. Harper, 96 N.C. App. 36, 42, 384 S.E.2d 297, 300 (1989). In light of the substantialevidence against defendant, he has failed to show that there was a reasonable possibility that the outcome of the trial would have been different without the error. Accordingly, we find no error.
    No error.
    Chief Judge MARTIN and Judge BRYANT concur.
    Report per Rule 30(e).

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