An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-1375


Filed: 19 July 2005


v .                         Durham County
                            No. 02 CRS 044625

    Appeal by defendant from judgment entered 16 April 2004 by Judge Henry W. Hight, Jr., in Durham County Superior Court. Heard in the Court of Appeals 8 June 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Robert R. Gelblum, for the State.

    Jarvis John Edgerton, IV, for defendant-appellant.

    TYSON, Judge.

    Marcus Dontavin Alexa Beatty (“defendant”) appeals from judgment entered after a jury found him to be guilty of possessing a handgun after having been convicted of a felony. We find no prejudicial error at trial but remand for resentencing.

I. Background
    On 19 March 2002, Durham Police Officers K.E. Stephens (“Officer Stephens”) and J.A. Friedrick (“Officer Friedrick”) (collectively, the “Officers”) responded to a request for assistance from another Durham Police Officer investigating an armed robbery on Canal Street. The suspects were described as two black males wearing all dark clothing walking south on GurleyStreet. The Officers proceeded down Canal Street, turned onto Gurley Street, and spotted two black males wearing dark clothing.
    Defendant was standing on the porch of a house located at 601 Gurley Street as the Officers approached. Defendant bent over, placed something onto the porch with his right hand, stood up, and knocked on the door. The resident of the house answered the door. The Officers motioned defendant to descend from the porch and requested his identification. Defendant walked down the steps and gave Officer Stephens a North Carolina Division of Motor Vehicles Identification Card issued to him. Officer Stephens asked the occupants of the house, who had come outside their home, if anything was located on the porch that did not belong to them. The resident's niece, Tonia Williams (“Ms. Williams”), responded, “there is a gun on the porch.”
    When Ms. Williams made this statement, defendant fled. The Officers did not apprehend defendant immediately. The Officers recovered a black “North Face” jacket defendant had dropped during the pursuit. The jacket contained a white piece of paper with a gang reference to “Blood Creed” on it, three OxyContin tablets, and a package of Newport cigarettes containing one cigarette. Defendant was later apprehended.
    On 3 September 2002, defendant was indicted for possession of a firearm by a felon in violation of N.C. Gen. Stat. § 14-415.1. After trial, the jury found defendant guilty of possessing a handgun after having been convicted of a felony. Defendant wassentenced to a minimum term of twenty-five months and a maximum term of thirty months. Defendant appeals.
II. Issues
    Defendant argues the trial court erred by: (1) not granting his motion for mistrial; (2) not intervening ex mero motu with curative instructions or declaring a mistrial; and (3) not submitting aggravating factors to the jury amounting to plain error.
    Defendant failed to argue the remaining assignment of error in his brief. Without citation to any authority or argument in support of that assignment of error, it is deemed abandoned. N.C.R. App. P. 28(b)(5) (2004).
III. Standard of Review
    Our standard of review of the State's statements depends on whether defendant objected at trial.
        If defendant objected, this Court must determine whether the trial court abused its discretion by failing to sustain the objection. When defendant fails to object to an argument, this Court must determine if the argument was so grossly improper that the trial court erred in failing to intervene ex mero motu.
State v. Frink
, 158 N.C. App. 581, 589, 582 S.E.2d 617, 622 (2003) (internal quotations and citations omitted).
    IV. Motion for Mistrial
    Defendant argues the trial court erred by not granting his motion for a mistrial when the State made improper comments in its closing argument.
        [A] mistrial should be declared upon the defendant's motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case . . . . The scope of our review therefore is limited to whether in denying the motion for a mistrial there has been an abuse of judicial discretion.
State v. Brown, 64 N.C. App. 637, 643, 308 S.E.2d 346, 350 (1983), aff'd, 310 N.C. 563, 313 S.E.2d 585 (1984).
    We have previously stated how we apply our review to defendant's argument:
        Application of the abuse of discretion standard to closing argument requires this Court to first determine if the remarks were improper. Improper remarks include statements of personal opinion, personal conclusions, name-calling, and references to events and circumstances outside the evidence, such as the infamous acts of others. Upon finding improper remarks were made, we determine if the remarks were of such a magnitude that their inclusion prejudiced defendant, and thus should have been excluded by the trial court. In order to demonstrate prejudicial error, a defendant must show that there is a reasonable possibility a different result would have been reached had the error not occurred.
Frink, 158 N.C. App. at 591, 582 S.E.2d at 623 (internal citations and quotations omitted).
    Defendant relies largely on State v. Rivera, 350 N.C. 285, 514 S.E.2d 720 (1999), to support his assertion of prejudicial error. In Rivera, our Supreme Court held:
        It is well established that the jury arguments of trial counsel are left largely to the control and discretion of the trial court, and counsel will be granted wide latitude in the argument of hotly contested cases. State v. Robinson, 346 N.C. 586, 488 S.E.2d 174 (1997).Nevertheless, “a trial attorney may not make uncomplimentary comments about opposing counsel, and should 'refrain from abusive, vituperative, and opprobrious language, or from indulging in invectives.'” State v. Sanderson, 336 N.C. 1, 10, 442 S.E.2d 33, 39 (1994) (quoting State v. Miller, 271 N.C. 646, 659, 157 S.E.2d 335, 346 (1967)); see also Gen. R. Pract. Super. and Dist. Ct. 12, 1999 Ann. R. N.C. 10 (“All personalities between counsel should be avoided. The personal history or peculiarities of counsel on the opposing side should not be alluded to. Colloquies between counsel should be avoided.”).

350 N.C. at 291, 514 S.E.2d at 723.
    In Rivera during the State's closing argument, the prosecutor remarked over defendant's objection that defense counsel “displayed one of the best poker faces as we introduced Dr. Bissett in the history of this courthouse.” Id. The defendant contended that the prosecutor's comment “improperly implied that defense counsel had personal knowledge of both the validity and the damaging nature of the State's evidence concerning [defendant's] whereabouts . . . and was attempting to conceal this knowledge by not reacting to the presentation of Dr. Bissett's testimony.” Id. The trial court overruled the defendant's objection and remarked that “the jury would decide the case based upon the evidence and not the personalities of the lawyers.” Id. The Supreme Court acknowledged the prosecutor made an improper comment and the trial court's response thereto was lacking. Id. The Court further held, “the comment of the prosecutor in this case was not extreme, it did not meet the standard of 'dignity and propriety' required of all trial counsel by Rule 12 of the General Rules of Practice for theSuperior and District Courts.” Id. (quoting Gen. R. Pract. Super. and Dist. Ct. 12, 1999 Ann. R. N.C. 10 (“Counsel are at all times to conduct themselves with dignity and propriety.”)). The Court concluded it would be in the best interest of the courts and the public that our trial courts hold counselors to the proper standard and “impose appropriate sanctions” for deviations. Id.
    Here, defendant argues the prosecutor made improper comments during the State's closing arguments.
        Well, you heard Mr. Bradley say that Mr. Beatty didn't go to the police and tell them about his I.D.'s had been stolen. Well, you know what, Mr. Beatty is not the only one that didn't go to Officer Stephens about his I.D. being stolen. Where did this come from? [During this statement the prosecutor held up a newly discovered lighter and keys to the jury.] This magically appeared yesterday in this courtroom in this jacket. You heard me ask . . . Officer Stephens, “did Mr. Bradley ever come to you and tell you about this new evidence, this magic new evidence that appeared yesterday?”
Defendant asserts the prosecutor's statements implied defense counsel had planted evidence.
        What's up with that? He checked the coat. Officer Friedrick checked the coat. What did he find in the coat? Little itty-bitty pills, flimsy little paper, bulky cigarette pack. Missed this? Keys? In the big pocket, not the zipper pocket, [defense counsel] went right up to the big pocket in that jacket, pulled this out, like a rabbit out of a hat.
Defendant also avers the prosecutor again implied impropriety on defense counsel:
        State:         Plan A, Plan B, run like Hershall Walker; Plan C, lost your ID five, six times; Plan D, handwriting, this is myhandwriting, this is my handwriting right here. Plan D stuff in jacket nobody else found. Didn't tell anybody about it.

        Mr. Bradley:    Objection.

        The Court:     Overruled.

        State:         Why does an innocent person need to have a plan, or second plan, or all these plans. They don't. Innocent people don't need plans, excuses, explanations. But Mr. Beatty does, because he's guilty.

    We hold the prosecutor's comments were inappropriate. These statements were “uncomplimentary comments about opposing counsel” and in the trial court in its discretion could have appropriately sanctioned counsel. Rivera, 350 N.C. at 291, 514 S.E.2d at 723; see also Frink, 158 N.C. App. at 592, 582 S.E.2d at 623. We admonish the prosecutor to avoid any repetition of this conduct in the future. While the prosecutor's statements do not meet the standard of “dignity and propriety” required, they are not so “extreme” to prejudice defendant and warrant a new trial. Rivera, 350 N.C. at 291, 514 S.E.2d at 723.
    “The improper comments were not so prejudicial to defendant [in light of overwhelming evidence of defendant's guilt or] show a reasonable possibly the jury would have reached a different result had the error not occurred.” Frink, 158 N.C. App. at 591, 582 S.E.2d at 623. Defendant failed to show these comments and the trial court's response constituted an abuse of its discretion in denying defendant's motion for mistrial.
V. Ex Mero Motu
    Defendant argues the trial court erred by not intervening ex mero motu with curative instructions or declaring a mistrial.
    Having previously held the trial court did not abuse its discretion in not allowing defendant's motion for mistrial, we decline to review defendant's assertions regarding the State's improper comments under the higher standard of “grossly improper.” Id. at 589, 582 S.E.2d at 622.
VI. Aggravating Factors
    Defendant argues the trial court erred by not submitting aggravating factors to the jury. Our Supreme Court recently held in State v. Allen, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed presumptive range must be submitted to a jury and proved beyond a reasonable doubt.” ___ N.C. ___, ___, ___ S.E.2d ___, ___ (July 1, 2005) (485PA04).
    The Court later stated in State v. Speight, “the rationale in Allen applies to all cases in which (1) a defendant is constitutionally entitled to a jury trial, and (2) a trial court has found one or more aggravating factors and increased a defendant's sentence beyond the presumptive range without submitting the aggravating factors to a jury.” ___ N.C. ___, ___, 614 S.E.2d 262, 264 (2005).
    Here, the trial court found defendant was on pretrial release to support an aggravated sentence and did not submit this factor to the jury. See Id. This case is remanded for imposition of asentence consistent with our Supreme Court's decisions in Allen and Speight.
VII. Conclusion
    The trial court did not err when it denied defendant's motion for mistrial. The prosecutor's comments were improper and could have subjected him to sanctions. Defendant failed to show these comments were so prejudicial that the jury would have reached a different result if the comments had not been made.
    In light of our holding on defendant's motion for mistrial, we do not address defendant's assignment of error asserting the trial court erred by not declaring a mistrial ex mero motu. Because we find no “abuse of discretion,” the higher standard of “grossly improper” review is unnecessary. Frink, 158 N.C. App. at 591, 582 S.E.2d at 623.
    Defendant's sentence is vacated and this case is remanded for resentencing consistent with our Supreme Court's decisions in Allen and Speight.
    No Prejudicial Error at Trial; Remanded for Resentencing.
    Judges MCCULLOUGH and BRYANT concur.
    Report per Rule 30(e).

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