An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-441


Filed: 17 January 2006


         v.                        Mitchell County
                                No. 04 CRS 50230

    Appeal by defendant from judgment entered 15 December 2004 by Judge C. Philip Ginn in Mitchell County Superior Court. Heard in the Court of Appeals 27 December 2005.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Richard H. Bradford, for the State.

    William B. Gibson, for defendant-appellant.

    JACKSON, Judge.

    William D. Tipton (“Defendant”) appeals from a judgment imposing an active sentence of imprisonment for his conviction by a jury of second degree rape.
    A summary of the evidence presented at trial is not necessary for an understanding of the sole assignment of error brought forward on appeal. Defendant contends the court committed plain error by instructing the jury during its opening remarks as follows: “The State has the burden of proof and we're going to be talking about that as we go forward to present sufficient evidence to convince you beyond a reasonable doubt of the defendant's guilt.” He argues this statement “calls into question the impartiality of the trial judge” by telling the jurors that “'we'_ i.e., the judge and the prosecutor _ were going to convict the Defendant.”
    Plain error may be found
        only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a “fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,” or “where [the error] is grave error which amounts to a denial of a fundamental right of the accused,” or the error has “'resulted in a miscarriage of justice or in the denial to appellant of a fair trial'” or where the error is such as to “seriously affect the fairness, integrity or public reputation of judicial proceedings” or where it can be fairly said “the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.”

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982) (footnotes omitted)) (emphasis in original). “ It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.” Henderson v. Kibbe, 431 U.S. 145, 154, 52 L. Ed. 2d 203, 212 (1977). In determining whether a judge's comments, statements or actions constitute reversible error, the reviewing court must consider the statements in the context in which they were made and in view of the circumstances disclosed by the record. State v. Blackstock, 314 N.C. 232, 236, 333 S.E.2d 245, 248 (1985). Reversible error may be found only when it can be reasonably inferred that the trial court intimated an opinion as to a factualissue, the defendant's guilt, the weight of the evidence, or a witness's credibility. Id.
    In the case at bar, the court made the statement at the call of the case for hearing before any jurors had been seated and any evidence had been presented. After making the statement at issue, the court stated:
        The defendant is not required under our laws to defend himself in the sense that he's required to testify because he doesn't have the burden of proof. The State of North Carolina has that burden and again we'll talk about what that means but suffice it to say at this point in time that it is a, a reasonable doubt is just a doubt based on your good common sense and that you must be entirely convinced and satisfied of the defendant's guilt for you to find him guilty.
By this statement the court clearly conveyed to the jury that the State had the burden of proof. Defendant's construction of the statement at issue disregards the syntax of the statement. Insertion of commas as to make the statement to read, “The State has the burden of proof[,] and we're going to be talking about that as we go forward[,] to present sufficient evidence to convince you beyond a reasonable doubt of the defendant's guilt,” clearly conveys to the jury that the State alone has the burden of proof. A “court reporter's punctuation[, or lack thereof,] of the judge's charge . . . is not sufficient evidence of error to warrant a new trial.” State v. Jarrette, 284 N.C. 625, 650, 202 S.E.2d 721, 737 (1974), vacated in part on other grounds, 428 U.S. 903, 49 L. Ed. 2d 1206 (1976).
    We conclude that the court's usage of the first person pluralwas intended to include everyone as a participant in the trial and was not an expression of opinion on a question of fact to be decided by the jury. See State v. Scercy, 159 N.C. App. 344, 351, 583 S.E.2d 339, 343 (holding judge's statement “that's what we'll do” was not an expression of opinion on a “question of fact to be decided by the jury” but was a comment on the roles of the court and the attorneys) , appeal dismissed and disc. rev. denied, 357 N.C. 581, 589 S.E.2d 363 (2003); State v. Wallace, 21 N.C. App. 523, 524-25, 204 S.E.2d 855, 856 (1974) (holding judge's statement “we are trying” was not inferring that the judge was a member of the prosecutorial team but was intended to include everyone in the courtroom as participants in the trial). We hold that the trial court did not commit plain error.
    No error.
    Judges WYNN and CALABRIA concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***