Appeal by defendant from judgments entered 3 November 2005 by
Judge Ronald E. Spivey in Forsyth County Superior Court. Heard in
the Court of Appeals 12 October 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Sueanna P. Sumpter, for the State.
Glenn Gerding for defendant-appellant.
Defendant Janie Latonya Perkins appeals from her convictions
of obtaining property by false pretenses, felony larceny, and
felony breaking or entering. On appeal, defendant argues primarily
that the trial court erred in rejecting the jury's initial verdict
of misdemeanor breaking or entering, felony larceny, and obtainingproperty by false pretenses and ordering the jury to redeliberate.
Because the initial verdicts of misdemeanor breaking or entering
and felony larceny were not necessarily legally inconsistent, we
reverse and remand for entry of judgment on the jury's original
verdicts. We find defendant's remaining arguments unpersuasive
and, therefore, hold that defendant otherwise received a trial free
of prejudicial error.
Facts and Procedural History
The State presented evidence at trial that tended to show the
following facts. At around 8:30 a.m. on the morning of 18 August
2004, Michael Grace, an attorney with the law firm of Grace,
Holton, Tisdale, and Clifton, encountered defendant inside the
entryway of the firm's Winston-Salem office. Mr. Grace was
familiar with defendant from a time when he worked at a different
office. While at that office, Mr. Grace had instructed defendant
to stay away from his office. On the morning of 18 August 2004,
Mr. Grace reminded defendant that he did not want her in his
office. When, however, defendant mentioned that she was at the
firm to see a secretary, Mr. Grace assumed defendant was being
represented by another member of the firm and directed defendant to
one of the firm's office managers, Marilyn Moore.
Later that morning at about 10:30 a.m., Ms. Moore noticed a
black male wearing a sports jersey coming down a hallway from the
rear of the firm's office. As Ms. Moore stepped into the hallway,
she saw defendant in the hallway, beyond the public reception area,
as well. Ms. Moore asked defendant if she needed assistance, anddefendant responded by indicating that she was with the man in the
jersey. The man told Ms. Moore that he wanted to see attorney
Mireille Clough, but Ms. Moore informed him that Ms. Clough was
presently out of the office. Shortly thereafter, both defendant
and her male acquaintance left the premises. No testimony
presented at trial placed defendant at the firm after this point.
After having an early lunch on 18 August 2004, Ms. Clough
returned to the firm's office. Since she was scheduled to appear
in court at 1:00 p.m., she dropped off a bag of personal belongings
inside her office and then departed for court. Inside the bag was
a day planner that contained several of Ms. Clough's credit cards.
Around 1:30 p.m., Don Tisdale, another attorney with the firm,
was returning to the office from lunch when he spotted a black male
in a sports jersey coming out of Ms. Clough's office. When Ms.
Clough returned to the office after court, at approximately 3:30
p.m., she discovered the day planner missing. She contacted her
credit card companies and learned her cards had been used to make
multiple purchases that afternoon at a Food Lion store on Waughtown
Ms. Clough then contacted the police. She met with police
officers at the Food Lion and reviewed the store's surveillance
videotape. The videotape showed a woman, identified at trial as
defendant, and a black male in a jersey at the checkout counter
making purchases. Four separate transactions, in amounts ranging
from $79.15 to $178.57, were accomplished in less than fifteenminutes using Ms. Clough's cards. Store receipts revealed that
defendant had signed Ms. Clough's name to complete the purchases.
As two police officers, Detectives Gregory Dorn and Michael
Poe, were driving to interview a witness in connection with the
purchases at Food Lion, one of them noticed defendant coming out of
a house at 1424 Waughtown Street. They stopped and approached
defendant, explaining to her that they had seen her on a videotape
using a credit card to make purchases at the Food Lion. Defendant
at first denied having been at the Food Lion, but then admitted
being there, telling the officers that she had used a credit card
belonging to her aunt. Defendant then changed her story again,
telling the police that "a guy named Steve" let her use the card at
After defendant was placed under arrest, she led police to a
nearby wooded area where the day planner and customer receipts from
Food Lion were recovered. At 1424 Waughtown Street, a man named
Steven Brooks was also found and arrested. The police identified
Brooks from the videotape as the same man who accompanied defendant
at Food Lion. Ms. Clough's credit cards were later found in a
flower pot at the house on Waughtown Street.
Defendant was subsequently indicted on charges of obtaining
property by false pretenses, felony breaking or entering, felony
larceny, and having obtained the status of habitual felon. At
trial, the judge instructed the jury as to both misdemeanor and
felony breaking or entering and larceny. The jury returned
verdicts finding defendant guilty of misdemeanor breaking orentering, felony larceny, and obtaining property by false
pretenses. After reviewing these verdicts, the judge sent the jury
out and told the parties that the verdicts as to misdemeanor
breaking or entering and felony larceny were "legally
The judge then summoned the jurors back to the courtroom,
explained to them "that the verdicts are not legally consistent,"
and directed the jury to resume deliberations. After deliberating
for a second time, the jury returned a new verdict sheet finding
defendant guilty of felony breaking or entering and, again, of
felony larceny. Defendant was subsequently found guilty of being
a habitual felon. The trial court imposed two consecutive
sentences of 110 to 141 months imprisonment. Defendant gave timely
notice of appeal.
I. Indictment for Obtaining Property by False Pretenses
 Defendant argues that her indictment on the charge of
obtaining property by false pretenses was fatally defective,
depriving the trial court of jurisdiction. "[W]here an indictment
is alleged to be invalid on its face, thereby depriving the trial
court of its jurisdiction, a challenge to that indictment may be
made at any time, even if it was not contested in the trial court."
State v. Wallace
, 351 N.C. 481, 503, 528 S.E.2d 326, 341, cert.
, 531 U.S. 1018, 148 L. Ed. 2d 498, 121 S. Ct. 581 (2000).
A bill of indictment must contain:
[a] plain and concise factual statement in
each count which, without allegations of anevidentiary nature, asserts facts supporting
every element of a criminal offense and the
defendant's commission thereof with sufficient
precision clearly to apprise the defendant or
defendants of the conduct which is the subject
of the accusation.
N.C. Gen. Stat. § 15A-924(a)(5) (2005). The crime of obtaining
property by false pretenses is defined as "(1) a false
representation of a subsisting fact or a future fulfillment or
event, (2) which is calculated and intended to deceive, (3) which
does in fact deceive, and (4) by which one person obtains or
attempts to obtain value from another." State v. Cronin
, 299 N.C.
229, 242, 262 S.E.2d 277, 286 (1980). Defendant contends that the
indictment failed to allege a false representation of a subsisting
The indictment at issue alleged that defendant:
unlawfully, willfully and feloniously did
knowingly and designedly, with the intent to
cheat and defraud, attempted to obtain BEER
AND CIGARETTES from FOOD LION by means of a
false pretense which was calculated to
deceive. The false pretense consisted of the
following: THIS PROPERTY WAS OBTAINED BY MEANS
OF USING THE CREDIT CARD AND CKECK [sic] CARD
OF MIRIELLE CLOUGH WHEN IN FACT THE DEFENDANT
WRONGFULLY OBTAINED THE CARDS AND WAS NEVER
GIVEN PERMISSION TO USE THEM.
By alleging that defendant used a card that was issued in the name
of another person, that was wrongfully obtained, and that she had
no permission to use, the indictment sufficiently apprised
defendant that she was accused of falsely representing herself as
an authorized user of the cards. A "false pretense need not come
through spoken words, but instead may be by act or conduct." State
, 354 N.C. 268, 284, 553 S.E.2d 885, 897 (2001), cert.denied
, 535 U.S. 1114, 153 L. Ed. 2d 162, 122 S. Ct. 2332 (2002).
Here, the indictment adequately described the actions taken by
defendant _ i.e., her use of a card belonging to another person,
wrongfully obtained, and without authorization _ that led to the
acquisition of the merchandise. We accordingly hold that the
allegations in the indictment support the false representation
element of the offense.
As defendant was put on notice of the charge against her, we
do not find the indictment to be defective for a lack of detail or
specificity. See State v. Snyder
, 343 N.C. 61, 65, 468 S.E.2d 221,
224 (1996) (an indictment "'is constitutionally sufficient if it
apprises the defendant of the charge against him with enough
certainty to enable him to prepare his defense and to protect him
from subsequent prosecution for the same offense'" (quoting State
, 312 N.C. 432, 434-35, 323 S.E.2d 343, 346 (1984))). This
assignment of error is overruled.
II. Motion to Dismiss
Defendant next contends that the trial court erred in denying
her motion to dismiss. In ruling on a criminal defendant's motion
to dismiss, the trial court must determine whether the State has
presented substantial evidence (1) of each essential element of the
offense and (2) of the defendant's being the perpetrator. State v.
, 355 N.C. 320, 336, 561 S.E.2d 245, 255, cert. denied
U.S. 1006, 154 L. Ed. 2d 404, 123 S. Ct. 488 (2002). "'Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.'" State v. Matias
, 354N.C. 549, 552, 556 S.E.2d 269, 270 (2001) (quoting State v. Brown
310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984)). When considering
the issue of substantial evidence, the trial court must view all of
the evidence presented "in the light most favorable to the State,
giving the State the benefit of every reasonable inference and
resolving any contradictions in its favor." State v. Rose
N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied
, 515 U.S.
1135, 132 L. Ed. 2d 818, 115 S. Ct. 2565 (1995).
 With respect to the charge of obtaining property by false
pretenses, defendant argues that the State failed to present
sufficient evidence of a false representation and of defendant's
intent to deceive the Food Lion store. In particular, defendant
contends that no evidence at trial showed any "verbal"
misrepresentations by defendant. As our Supreme Court recognized
, however, a false pretense may be established by conduct
alone and does not necessarily depend upon the utterance of false
or misleading words. 354 N.C. at 284, 553 S.E.2d at 897.
At trial, the State introduced videotape evidence showing
defendant at Food Lion making purchases. In addition, the store
receipts from those transactions showed that defendant accomplished
the purchases with cards belonging to Ms. Clough and, further, that
defendant had signed the receipts with the misspelled signature of
Ms. Clough. From this evidence, a jury could reasonably infer that
defendant, through her actions, falsely represented to Food Lion
her authority to use Ms. Clough's credit cards and that her intent
was to deceive Food Lion. See id.
at 285, 553 S.E.2d at 897-98(holding "defendant's actions constituted a false pretense" where
defendant drove to bank teller window and, while holding victim
hostage in passenger seat, presented victim's driver's license and
withdrawal slip to teller in order to obtain cash; Court concluded
that "[d]efendant falsely represented to the bank that the
withdrawal was legitimate and had the continuing support of the
victim"). Consequently, the trial court properly denied her motion
to dismiss the charge of obtaining property by false pretenses.
 With respect to the breaking or entering charge, N.C. Gen.
Stat. § 14-54(a) (2005) provides that it is a felony to "break or
enter any building with intent to commit any felony or larceny
therein . . . ." It is, however, a misdemeanor when one simply
"wrongfully breaks or enters any building" without the specified
intent. N.C. Gen. Stat. § 14-54(b). See State v. Boone
, 297 N.C.
652, 658, 256 S.E.2d 683, 686 (1979) ("[T]he only distinction
between [subsections (a) and (b) is] the lack of felonious intent
in the case of the misdemeanor."). Our Supreme Court has further
described breaking or entering:
In order to convict under [N.C. Gen.
Stat. § 14-54] the state must show that
defendant did break or enter a building
unlawfully. Where defendant enters a building
with the consent of the owner or anyone
empowered to give effective consent to enter,
such entry cannot be the basis for a
conviction of breaking or entering.
Conversely, a wrongful entry, i.e.
consent, will be punishable under this
State v. Locklear
, 320 N.C. 754, 758, 360 S.E.2d 682, 684 (1987)
(internal citations omitted). Defendant argues the evidence was insufficient to show that
her entry into the law firm was unauthorized or wrongful, given
that she entered the firm during regular business hours and the
firm was open to the public. This Court already addressed this
argument when considering the appeal of Steven Brooks. State v.
, 178 N.C. App. 211, 631 S.E.2d 54 (2006). Like defendant in
this case, Brooks argued that the State had failed to prove an
unlawful entry because he entered a law office that was open to
members of the public. In rejecting this argument, we explained
that even if an entry is initially legal, "subsequent conduct of
the entrant may render the consent to enter void ab initio
at 214, 631 S.E.2d at 57. Applying this principle to Brooks, we
In the instant case, the evidence tended
to show that defendant entered a law office
which was open to members of the public
seeking legal assistance. The firm had a
reception area where members of the public
were generally welcome and also areas beyond
this reception area which were not open to the
public. When defendant entered the reception
area of the firm, he did so with implied
consent from the firm. However, defendant
took action which rendered this consent void
when he went into areas of the firm
that were not open to the public so that he
could commit a theft, and when he misinformed
a member of the firm as to the reason for his
presence in these areas. Therefore, defendant
illegally entered the firm.
at 215, 631 S.E.2d at 57.
Our analysis in Brooks
applies with equal force here.
Defendant was spotted inside the law firm at two separate times on
the morning of 18 August 2004. A jury could find, based on Mr.Grace's prohibiting defendant from coming to his office, that the
first entry was nonconsensual. Even if that directive is
disregarded, however, a jury could also reasonably find that
defendant falsely told Mr. Grace that she was in the office to see
a secretary in order to obtain access to the private areas of the
Further, when defendant was spotted the second time in the law
offices, she was no longer in the public reception area, but in a
back hallway of the nonpublic space reserved for firm employees.
Defendant explained that she was merely accompanying the man in the
jersey also seen walking in the nonpublic area of the office, an
explanation inconsistent with her earlier statement to Mr. Grace
that she needed to see a secretary at the firm. As in Brooks
evidence showed that defendant ventured into the nonpublic space of
the office and gave a false explanation for her presence. In
accord with our decision in Brooks
, we hold that such evidence was
sufficient to permit a jury to find that defendant committed an
unlawful breaking or entering.
Since defendant's own entries into the law offices were
sufficient to defeat her motion to dismiss the breaking or entering
charge, we need not address her argument that the State failed to
present substantial evidence that defendant acted in concert with
Brooks to enter Ms. Clough's personal office without consent.
Further, we also need not address defendant's contention that there
was insufficient evidence to show an intent to commit larcenybecause of our holding, discussed below, that the guilty verdict on
misdemeanor breaking or entering must be reinstated.
 Turning finally to the larceny charge, "[t]he essential
elements of larceny are that defendant (1) took the property of
another; (2) carried it away; (3) without the owner's consent; and
(4) with the intent to permanently deprive the owner of the
property." State v. Coats
, 74 N.C. App. 110, 112, 327 S.E.2d 298,
300, cert. denied
, 314 N.C. 118, 332 S.E.2d 492 (1985). "The crime
of larceny is a felony, without regard to the value of the property
in question, if the larceny is committed pursuant to a breaking or
entering in violation of section 14-54 of the General Statutes."
, 178 N.C. App. at 215, 631 S.E.2d at 57.
Here, the State relied upon the theory that defendant acted in
concert with Brooks with respect to the larceny charge. "'Under
the doctrine of acting in concert, if two or more persons act
together in pursuit of a common plan or purpose, each of them, if
actually or constructively present, is guilty of any crime
committed by any of the others in pursuit of the common plan.'"
State v. McCullers
, 341 N.C. 19, 29-30, 460 S.E.2d 163, 169 (1995)
(quoting State v. Abraham
, 338 N.C. 315, 328-29, 451 S.E.2d 131,
Based on the evidence offered at trial, we believe that a jury
could reasonably determine that defendant acted in concert with
Steven Brooks to commit larceny. In the morning, defendant and
Brooks were both found in the private section of the law office
without permission, conduct that the jury could view aspreparations for the larceny. Later, a man matching Brooks'
description was seen coming out of Ms. Clough's office, where her
day planner had been left. Very shortly thereafter, defendant,
accompanied by Brooks, was using Ms. Clough's credit cards at the
Food Lion. Defendant ultimately admitted that she had been given
the cards by "Steve." Defendant also led police to a wooded area
where the stolen day planner was recovered, and the missing cards
were found at the same house where defendant and Brooks were both
found and arrested. This is substantial evidence that defendant
and Brooks acted together in pursuit of a common plan or purpose
and that defendant is, therefore, guilty of larceny, even though
the breaking or entering to steal the credit cards was actually
committed by Brooks. See State v. Dow
, 70 N.C. App. 82, 86, 318
S.E.2d 883, 886 (1984) (holding that "jury could reasonably find
that defendant committed the offense of larceny . . . by reason
of aiding and abetting or acting in concert" where evidence showed
that two accomplices entered store while defendant remained outside
in car with motor running; accomplices exited store with stolen
property; and all three men were later apprehended in same vehicle
along with stolen items). The trial court, therefore, properly
denied defendant's motion to dismiss.
III. Validity and Consistency of the Verdicts
 In one assignment of error, defendant argues that the
trial court should have accepted the initial guilty verdict for
misdemeanor breaking or entering and erred by ordering the jury to
reinitiate deliberations. In a related assignment of error,defendant argues that the jury's verdict on misdemeanor breaking or
entering in turn precluded defendant's conviction of felony larceny
and instead required entry of judgment on misdemeanor larceny. We
agree that the trial court erred in ordering the jury to
redeliberate. We disagree, however, with defendant's contention
that the initial verdicts were legally incompatible and required
that judgment be entered on misdemeanor larceny.
"'When and only when, an incomplete, imperfect, insensible, or
repugnant verdict, or a verdict which is not responsive to the
issues or indictment is returned, the court may decline to accept
it and direct the jury to retire, reconsider the matter, and bring
in a proper verdict.'" State v. Sumner
, 269 N.C. 555, 557, 153
S.E.2d 111, 112 (1967) (quoting State v. Perry
, 225 N.C. 174, 176,
33 S.E.2d 869, 870 (1945)). The Supreme Court in Sumner
went on to
While the general rule is that a verdict is
not complete until it is accepted by the
court, nevertheless the rule seems to be that
if a proper verdict is returned, one that is
permissible under the charge and complete in
itself . . . the court should have accepted it
and directed its entry into the records as the
verdict of the jury.
, 153 S.E.2d at 112-13 (internal citations omitted). The
question before this Court, therefore, is whether the initial
verdicts as to misdemeanor breaking or entering and felony larceny
were permissible under the charge and complete in themselves.
In this case, the State offered evidence of three separate
entries into the law firm. Defendant was involved in the first two
entries in the morning, during a time frame when Ms. Clough's dayplanner was not on the premises and, therefore, could not have been
stolen. Defendant was not seen at the firm the rest of that day.
The third entry, later in the afternoon, after Ms. Clough had left
her day planner in her office, was accomplished by a man matching
Brooks' description. As we concluded above, in connection with the
motion to dismiss, a jury could reasonably find that defendant had
committed an unauthorized entry into the firm during the morning.
In addition, however, the jury could also have reasonably decided
that the State failed to prove defendant's intent to commit a
larceny when she entered the firm that morning. For that reason,
the jury could _ as it did _ appropriately find defendant guilty of
misdemeanor breaking or entering based on her morning entries.
 Contrary to the trial court's and defendant's reasoning,
a guilty verdict on misdemeanor breaking or entering did not, given
the evidence in this case, necessarily preclude the jury from
convicting defendant of felony larceny. When a jury is instructed
that a defendant may be guilty of felony larceny because she acted
in concert with another individual following a breaking or
entering, a conviction for felony larceny is legitimate even though
the defendant may be found not guilty of felony breaking or
entering. See State v. Pearcy
, 50 N.C. App. 210, 211, 272 S.E.2d
610, 611 (1980) (in considering "whether a defendant who is tried
for acting in concert with others to commit felonious larceny,
after a felonious breaking or entering, may be convicted of
felonious larceny if the jury does not reach a verdict as to the
felonious breaking or entering[,]" this Court held the jury couldfind defendant did not act in concert with others to break or
enter, but did act in concert to commit larceny), disc. review
, 302 N.C. 400, 279 S.E.2d 355 (1981). See also State v.
, 288 N.C. 312, 317-19, 218 S.E.2d 374, 377-78 (1975) (guilty
verdict on felony larceny not inconsistent with acquittal of felony
breaking or entering where defendant is tried on theory of aiding
and abetting principal perpetrators); State v. Marlowe
, 73 N.C.
App. 443, 446, 326 S.E.2d 351, 353 (1985) (applying Pearcy
to conclude that guilty verdict on felony larceny not
inconsistent with acquittal of felony breaking or entering when
defendant is tried on theory of acting "together" with others).
Here, the jury could have determined that defendant did not
act in concert with respect to the afternoon entry into Ms.
Clough's office, but that she did act in concert with respect to
the larceny. In light of Curry
, and Marlowe
, the jury's
initial verdicts on the breaking or entering and larceny counts
were thus permissible under the charge and complete. The trial
court erred in refusing to accept the verdicts as originally
We must, therefore, vacate defendant's conviction of felony
breaking or entering, and remand for entry of judgment upon the
original verdict of misdemeanor breaking or entering and for
resentencing. We find no error with respect to the felony larceny
IV. Motion for Mistrial
 Lastly, we consider defendant's argument that the trial
court should have granted her motion for a mistrial. The
transcript reveals that the following events took place during the
trial. While riding in the courthouse elevator, defendant
whispered to a juror standing near her that she was innocent. Upon
learning of this incident, the trial judge described defendant's
conduct as "highly improper," discharged the juror to whom
defendant had whispered, and substituted the lone alternate.
Later, defendant was discussing her case with her attorney
prior to court commencing one morning, when she decided to leave
the courthouse. As defense counsel later explained to the trial
judge, he was trying to persuade defendant to stay in court when
"she bolted" and headed into a stairwell. Defense counsel followed
her, hollering: "Janie, come back up here. Come on. We've got to
get on with it." A member of the jury ("Mr. Johnson") also
happened to be in the stairwell during this incident.
When later questioned by the judge, in the presence of the
other eleven jurors, Mr. Johnson stated that he saw defendant and
her counsel in the stairwell and overheard defendant say "she
wasn't coming back in here, something like that." The trial judge
then asked Mr. Johnson whether he could remain fair and impartial
despite having witnessed this episode in the stairwell. Mr.
Johnson indicated that he could. Before resuming the trial, the
judge polled the entire jury, inquiring whether each juror could
remain fair and impartial. The jurors all asserted that they could
remain fair and impartial. Out of the presence of the jury, defendant argued that Mr.
Johnson must be dismissed from the jury panel and moved for a
mistrial. At this point, removal of Mr. Johnson would necessarily
have resulted in a mistrial, as no alternate jurors were available.
On appeal, defendant argues the trial court should have declared a
mistrial because Mr. Johnson not only overheard defendant's remark
that she was leaving her own trial, but he reported this in the
presence of the whole jury.
N.C. Gen. Stat. § 15A-1061 (2005) provides that a judge,
"[u]pon motion of a defendant or with his concurrence . . . may
declare a mistrial at any time during the trial." The statute
mandates that "[t]he judge must declare a mistrial 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." N.C. Gen. Stat. § 15A-1061.
Our Supreme Court has held that "'[a] mistrial should be
granted only when there are improprieties in the trial so serious
that they substantially and irreparably prejudice the defendant's
case and make it impossible for the defendant to receive a fair and
impartial verdict.'" State v. Bonney
, 329 N.C. 61, 73, 405 S.E.2d
145, 152 (1991) (quoting State v. Warren
, 327 N.C. 364, 376, 395
S.E.2d 116, 123 (1990)). The decision on a motion for mistrial is
committed to the sound discretion of the trial court, and the
decision will not be overturned on appeal unless an abuse ofdiscretion is shown. State v. Johnson
, 341 N.C. 104, 114, 459
S.E.2d 246, 252 (1995).
While it would have been the much better practice for the
trial judge to interview Mr. Johnson individually, rather than in
front of the entire jury, a review of the record indicates that the
trial court nonetheless acted within its discretion in denying the
motion for a mistrial. The situation was of defendant's own
making. She chose to flee from the trial after announcing her
intentions in the public stairwell. Further, the lack of an
alternate to substitute for Mr. Johnson was a direct consequence of
defendant's inappropriate remarks to a juror. It is well
established that arguments for a mistrial do not carry great weight
when the grounds relied upon arise from a defendant's own
misconduct. See State v. Marino
, 96 N.C. App. 506, 507, 386 S.E.2d
72, 73 (1989) (where defendant moved for a mistrial after his own
open-court "profane outburst," Court found no error in denial of
motion because "[i]f defendant was prejudiced in the eyes of the
jury by his own misconduct, he cannot be heard to complain").
Since the jurors each indicated, upon polling by the trial
court, that they could remain fair and impartial, we cannot
conclude that the trial court abused its discretion in denying the
motion for a mistrial based on circumstances caused by defendant's
own misconduct. See Johnson
, 341 N.C. at 114, 459 S.E.2d at 252
("trial court did not abuse its discretion in denying defendant's
motion for a mistrial" where the "trial court gave corrective
instructions to the jurors about th[e] incident and questioned themin order to determine if they were still able to give defendant a
fair trial"). We therefore overrule this assignment of error.
Vacated and remanded in part; no error in part.
Judges STEELMAN and STEPHENS concur.
Judge STEPHENS concurred prior to 31 December 2006.
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