An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1584


Filed: 18 January 2005


         v.                        Rowan County
                                Nos. 02 CRS 50724-25

    Appeal by defendant from judgments entered 6 August 2003 by Judge W. Erwin Spainhour in Rowan County Superior Court. Heard in the Court of Appeals 3 January 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Jeffrey R. Edwards, for the State.

    Charlotte Gail Blake, for defendant-appellant.

    CALABRIA, Judge.

    On 8 July 2002, the Rowan County Grand Jury indicted Robert Eric Nichols (“defendant”) on a charge of felony speeding to elude arrest. At the start of trial on 5 August 2003, defendant consented to the State's motion to join for trial the felony speeding charge with an assault on a government official/employee conviction that he had appealed from district court.
    At trial, the State presented evidence tending to show the following: On 30 January 2002 at approximately 5:00 p.m., a car ran a red light at an intersection and almost collided with a vehicle driven by Officer N. T. Sides (“Officer Sides”). Officer Sides observed that the car's driver was a male wearing a brownvisor. Officer Sides activated his blue lights and pursued the car for about one and a half blocks until the driver pulled over on a side street. Officer Sides parked eight or nine feet behind the car, exited his vehicle, and walked toward the car. Officer Sides noticed the driver watching him in the rear view mirror and as soon as Officer Sides came within four or five feet of the car, he drove away.
    Officer Sides ran back to his vehicle and again began pursuing the car, which had advanced about fifty or sixty feet. Officer Sides testified that the driver ran a stop sign and at one point was traveling sixty-five to seventy miles per hour in a thirty-five miles-per-hour speed limit zone. The driver subsequently lost control of his car, and it collided with a metal-encased concrete pole. The car spun around and landed in the middle of the street. Officer Sides saw the defendant, wearing the brown visor, open the door on the driver's side and started running. Officer Sides exited his vehicle and began chasing defendant. After running about 200 yards, Officer Sides tackled defendant. Defendant then stood up and used his heel to kick Officer Sides in his shin and stomach. After other officers arrived, they secured defendant and took him into custody.
    A bystander, Robert Morgan, (“Mr. Morgan”) testified the car was out of control and hit a pole. Mr. Morgan first saw a man, whom he believed was defendant, jump out of the driver's side door of the car. Next he saw Officer Sides start running after him. Asecond man got out of the car about five or ten seconds after the first man and ran in a different direction.
     Defendant testified that his acquaintance Pumpkin was driving at the time and that Pumpkin exited the car two or three seconds before him. Defendant said he exited the car on the driver's side before Officer Sides arrived and that he panicked and ran because of the sirens. Defendant said he continued running until he encountered Mr. Morgan, then he stopped and put up his hands. Defendant testified that he began struggling only after Officer Sides placed him in a choke hold. He denied kicking Officer Sides in the shin or stomach. He also stated that he last saw Pumpkin on 30 January 2002 and had been unable to locate him.
    At trial, defendant testified that he did not remember being placed in the back of Officer Sides police car. The prosecutor asked, “So that wasn't your drugs found in the back of the patrol cruiser, was it?” Defense counsel objected, and the trial court sustained the objection, stating “Ladies and gentlemen, disregard that[]” to the jury. Defendant then moved to strike, and the trial court allowed the motion and stated again, “Disregard that, ladies and gentlemen.”
    The prosecutor next asked if defendant told Officer Sides at any time that night that Pumpkin was driving the car. Defendant said he had not. When the prosecutor asked if defendant told Officer Sides at any point in time that he was not driving the car, defendant said Officer Sides came in while he was telling three other officers. After the prosecutor asked if defendant toldOfficer Sides that he would help him find the driver, defense counsel objected on the basis that the question had been asked and answered. The trial court overruled the objection, and defendant responded that “I didn't have to. I told the other three officers.” During redirect, defense counsel elicited information that defendant had been advised by his legal counsel not to talk to the police about the case. Defendant also testified that he was not searched at any time.
    Defense counsel moved for a mistrial at the close of all the evidence on the basis of the prosecutor's question about the drugs in the back of the police cruiser. Although the trial court agreed there was no evidence to support the question, the trial court concluded that its instruction to the jury to disregard the question was sufficient and denied the motion for a mistrial. Defendant then renewed his motion to dismiss the charges, and the trial court denied the motion. At defendant's request, the trial court again instructed the jury that they were not to consider a question or answer during their deliberations that the trial court had ordered stricken. The jury subsequently found defendant guilty of felony speeding to elude arrest and of assault on a law enforcement officer while discharging or attempting to discharge a duty of his office. The trial court imposed consecutive sentences of eight to ten months and 150 days imprisonment for the respective convictions. From the trial court's judgments, defendant appeals.
I.    Right to Remain Silent        Defendant first contends the trial court erred by allowing the prosecutor to question him over objection about his failure to inform officers that someone else was driving the car. He argues the prosecutors' questioning violated his right to remain silent. Defendant's argument is without merit.
    Defendant simply objected to the prosecutor's question before the trial court on the basis that it had been asked and answered. However, he now seeks to argue the question violated his right to remain silent. “[W]here a theory argued on appeal was not raised before the trial court, 'the law does not permit parties to swap horses between courts in order to get a better mount . . . .'” State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996) (quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)). Because defendant did not raise this constitutional issue at trial, he has waived it by his failure to preserve it for appellate review. See N.C.R. App. P. 10(b)(1). This assignment of error is overruled.
II.    Failure to Declare a Mistrial    
    Defendant next contends the trial court erred by failing to declare a mistrial after the prosecutor improperly questioned him about the presence of drugs found in the patrol vehicle in which he had been transported after his arrest. He argues the trial court abused its discretion by denying his request for a mistrial because the prosecutor did not have a good faith basis for asking the question. We disagree.    The decision to grant a motion for mistrial rests in the sound discretion of the trial court, and its ruling will not be disturbed on appeal unless it is so clearly erroneous so as to amount to a manifest abuse of discretion. State v. Ward, 338 N.C. 64, 92-93, 449 S.E.2d 709, 724 (1994), cert. denied, 514 U.S. 1134, 131 L. Ed. 2d 1013 (1995). The trial court here sustained defendant's objection to the prosecutor's question and instructed the jury to disregard it. When defendant moved to strike, the trial court allowed the motion and again instructed the jury to disregard the question. “It is well-settled that where the trial court withdraws incompetent evidence and instructs the jury not to consider that evidence, any prejudice is ordinarily cured.” State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). “Ordinarily, when incompetent or objectionable evidence is withdrawn from the jury's consideration by appropriate instructions from the trial judge, any error in the admission of the evidence is cured.” State v. Pruitt, 301 N.C. 683, 688, 273 S.E.2d 264, 268 (1981).
    In considering defendant's motion for a mistrial, the trial court agreed there was no evidence to support the prosecutor's question but concluded its instruction to disregard the question was sufficient. At defendant's request, the trial court in its final instructions again reminded the jurors that they were not to consider a question or answer which had been ordered stricken. “[O]ur legal system through trial by jury operates on the assumption that a jury is composed of men and women of sufficientintelligence to comply with the court's instructions and they are presumed to have done so.” State v. Glover, 77 N.C. App. 418, 421, 335 S.E.2d 86, 88 (1985). On appeal, an appellate court presumes that juries follow the trial court's instructions. State v. Richardson, 346 N.C. 520, 534, 488 S.E.2d 148, 156 (1997), cert. denied, 522 U.S. 1056, 139 L. Ed. 2d 652 (1998).
    “[A] mistrial is appropriate only when there are such serious improprieties as would make it impossible to achieve a fair and impartial verdict under the law.” State v. Black, 328 N.C. 191, 200, 400 S.E.2d 398, 403 (1991). The trial court's actions were sufficient to cure any prejudice to defendant, and we find no abuse of discretion by the trial court in denying the motion for a mistrial. Defendant received a fair trial, free from prejudicial error.
    No error.
    Judges TIMMONS-GOODSON and LEVINSON concur.
    Report per Rule 30(e).

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