An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1559
                                          &nb sp; 

Filed: 2 August 2005


         v.                        Beaufort County
                                Nos. 03 CRS 3552, 51655
JOHNNY EARL LITTLE                        

    Appeal by defendant from judgment entered 28 July 2004 by Judge Clifton W. Everett, Jr. in Beaufort County Superior Court. Heard in the Court of Appeals 25 July 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Donald R. Teeter, for the State.

    Bowen, Berry & Powers, PLLC, by Sue Genrich Berry for defendant.

    LEVINSON, Judge.

    Johnny Earl Little (defendant) was indicted on 6 October 2003 for possession with intent to sell or deliver a controlled substance and for being an habitual felon. On 22 July 2004, the State moved to correct the habitual felon indictment. The motion was allowed prior to trial. The case was tried at the 26 July 2004 Criminal Session of Henderson County Superior Court.
    The State presented evidence at trial which tended to show the following: In May 2003, defendant was arrested after a search warrant was executed on his residence. During the search, $162.00 was recovered from defendant's person and six clear baggies containing .9 grams of cocaine were found in the living room areaof the home. A plethora of additional evidence, unnecessary for the resolution of this appeal, was introduced by the State to support the charged offense. Defendant testified at trial and denied that the drugs were his.
     Defendant was convicted of possession with intent to sell or deliver cocaine and being an habitual felon and was sentenced to a term of 120 to 153 months imprisonment. Defendant appeals.
     Defendant first argues that the trial court erred by failing to remain an impartial and disinterested tribunal. Specifically, defendant cites several comments made by the trial judge and argues that these disparaging remarks indicate “a general tone or trend of hostility which has a cumulative effect of prejudice.”
    The first instance relates to a dog bite suffered by an officer involved in executing the search warrant. When the officer entered the home and began to chase the defendant, he was tripped by a dog on a leash that was in the hallway, and the dog bit him on the leg. During cross-examination, defendant's counsel asked the officer what type of dog it was. The officer replied that he did not know, but that “[i]t was a biting dog.” Counsel then asked if it was a small dog, and when the officer agreed, the trial judge added the comment “[l]ittle teeth.”
    The next instance was during defense counsel's cross- examination of Kelly Page, a forensic drug chemist with the State Bureau of Investigation. Counsel asked Page, “What would you equate the weight of the [.]9 grams to, of something not measured in the metric system?” After the prosecutor objected, the courtasked counsel what system he would want her to use. When counsel attempted to rephrase the question, the trial judge stated, “Yeah. Use the Chinese System. What would it equate for in that?” After counsel rephrased the question, Page testified that .9 grams was similar to the amount of sugar in a sugar packet at a restaurant.
    Third, during defendant's direct examination, he testified that on 2 May 2003, he slept until late afternoon and then went out and purchased a $40 money order. Counsel asked him if he ever told police that he purchased the money order to pay the phone bill. The following exchange occurred:
        [DEFENDANT]: They didn't give me time. No, I didn't get it - - I ain't never said a thing about a phone bill. I don't pay phone bills there. The phone bill is paid into the rent. Mr. Gibbs pays the phone bills. In other words, we pay - - I pay $75 a week for the apartment.

        [THE COURT]: A week?
        [DEFENDANT]: $75 a week for the apartment, and he pays the rent - - I mean, the phone bill - - I mean, the light bill.

        [THE COURT]: Which one? The light bill or the phone bill?

        [DEFENDANT]: I ain't had no phone.
        [THE COURT]: That solves that.
        [DEFENDANT]: I ain't had no phone.
        [THE COURT]: You don't have a phone?
        [DEFENDANT]: No, I didn't have a phone.
        [DEFENDANT'S COUNSEL]: So you wouldn't have been paying a phone bill with the money order.

        [DEFENDANT]: If I had one.        [THE COURT]: I'll tell you one thing. I wouldn't want my daughter living there if the man is going to pay the phone bill. Break him up.    

    The final exchange occurred when defendant was asked on re- direct whether a woman who was his resident had given him any money. Defendant denied that she had given him $80. Defendant further testified that if the six pieces of crack cocaine were worth $20 a piece, then there “would have had to be $120.” The following exchange then occurred:
        [DEFENDANT]: . . . And, if it were 15, and he had six pieces, ah - - what would that come to?

        [THE COURT]: You're getting into high finance now.

    Defendant claims that the trial judge's disparaging comments deprived him of a fair trial.
    After careful review of the record, briefs and contentions of the parties, we find no error. N.C.G.S. § 15A-1222 (2003) states 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.” Defendant claims that the trial judge's disparaging comments deprived him of a fair trial. Our Supreme Court has stated:
        It is indisputable that every person charged with a crime is “entitled to a trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm. . . . ”

        “The bare possibility, however, that an accused may have suffered prejudice from the conduct or language of the judge is not sufficient to overthrow an adverse verdict. The criterion for determining whether or notthe trial judge deprived an accused of his right to a fair trial by improper comments or remarks in the hearing of the jury is the probable effect of the language upon the jury. In applying this test, the utterance of the judge is to be considered in the light of the circumstances under which it was made.”

State v. Locklear, 349 N.C. 118, 143, 505 S.E.2d 277 , 292 (1998)(quoting State v. Carter, 233 N.C. 581, 583, 65 S.E.2d 9, 10- 11 (1951)). Here, there was no hint in the record of any possible prejudicial impact on the jury resulting from the judge's comments. The comments largely appear to be an attempt at levity during a full day's trial, and amount to a very small portion of the entire transcript. See State v. Weeks, 322 N.C. 152, 158, 367 S.E.2d 895, 899 (1988)( “an alleged improper statement will not be reviewed in isolation, but will be considered in light of the circumstances in which it was made.”). Thus, defendant has failed to meet his burden of establishing that the trial court's remarks were prejudicial. See State v. Green, 129 N.C. App. 539, 545, 500 S.E.2d 452, 456 (1998)(citing State v. Summerlin, 98 N.C. App. 167, 174, 390 S.E.2d 358, 361 (1990)). Accordingly, the assignment of error is overruled.
    Defendant next argues there was insufficient evidence of prior convictions to sustain the jury's finding that he was an habitual felon. We are not persuaded.
    To survive a motion to dismiss, the State must present substantial evidence of each essential element of the charged offense. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434 (1997). “'Substantial evidence is relevant evidence that areasonable mind might accept as adequate to support a conclusion.'” Id. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)). Here, the State presented evidence in the form of certified copies of criminal judgments that defendant had been convicted of the following felonies: (1) Sale and Delivery of Cocaine (86 CRS 3759); (2) Sale and Delivery of Cocaine (96 CRS 7407); and (3) Possession of Schedule II Controlled Substance (01 CRS 053456). The evidence was admitted without objection. In the light most favorable to the State, a jury could reasonably conclude from this evidence that defendant had attained habitual felon status. Accordingly, this assignment of error is overruled.
    No error.
    Judges McGEE and HUDSON concur.
    Report per Rule 30(e).

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