STATE OF NORTH CAROLINA
v. Robeson County
No. 02 CRS 51753
JO LYNN HUNT
Attorney General Roy Cooper, by Special Deputy Attorney
General Elizabeth Leonard McKay, for the State
Haakon Thorsen for defendant-appellant.
ELMORE, Judge.
On 18 March 2002, a warrant was issued charging defendant Jo
Lynn Hunt with wantonly injuring personal property causing damage
in excess of $200.00. On 15 April 2002, defendant was convicted in
district court and sentenced to forty-five days imprisonment.
Defendant appealed.
The case was tried at the 14 February 2006
Criminal Session of Robeson County Superior Court.
The State presented evidence at trial which tended to show the
following:
On 17 March 2002, Laquanda Smith was living in
Lumberton. Smith owned a 1990 Ford Probe, and had parked it in
front of the balcony of her apartment. Smith's car had been
recently vandalized, so she went out on the balcony to check on itthree or four times. The last time she went out to check on it,
she saw defendant leaving the passenger side of her car. Smith
called the police and then went out to look at her car which was
covered in paint. She also saw the defendant leaving in a red Ford
Escort. Afterwards, Smith went by defendant's residence to get her
address for the police, and discovered a red Ford Escort parked
behind her house.
At trial, during the State's direct examination of Smith, the
following exchange occurred:
Q: And when did these incidents of damage to
your automobile, when did they start, if you
recall?
A: When she first found out that I was
pregnant from James.
[Defendant's Counsel]: Objection.
THE COURT: The objection is overruled.
THE WITNESS: When she first found out I was
pregnant from James.
During the State's cross-examination of defendant, the following
exchange occurred:
Q : . . . Ms. Hunt, what have you been
convicted of in the last ten years that
carries a sentence of more than sixty days in
jail?
A: Nothing
Q: So, you wouldn't be the Jo Lynn Hunt who
has been convicted of trespassing, would you?
A: That was --
[Defendant's Counsel]: Objection, Your Honor.
THE COURT: Overruled.
The WITNESS: That was some time ago.
At the close of the evidence, defendant moved for a mistrial
based on the allowance of the question regarding her prior
conviction for trespassing. The motion was denied.
Defendant was
convicted of committing willful and wanton injury to personal
property causing damage of more than $200.00. Defendant was given
a suspended thirty day sentence and placed on supervised probation
for eighteen months.
Defendant appeals.
Defendant first argues that the trial court erred in allowing
the State to cross-examine her regarding a prior conviction for
trespassing. Defendant notes that second-degree trespass is a
Class 3 misdemeanor and may not be used for the purpose of
impeachment regarding prior convictions. Thus, defendant contends
that the questioning to which she was subjected exceeded the
limitations set by Rule 609(a). Defendant further argues that the
trial court should have granted a mistrial, because the improper
question was highly prejudicial. Defendant claims that the
question destroyed her credibility.
After careful review of the record, briefs and contentions of
the parties, we find no error.
There is a presumption that a trial
court's evidentiary rulings are proper, and defendant bears the
burden of demonstrating that a particular ruling was incorrect.
State v. Herring, 322 N.C. 733, 749, 370 S.E.2d 363, 373 (1988).
Defendant claims that the State's questioning regarding her prior
conviction for trespassing exceeded the limits of Rule 609(a).
“For the purpose of attacking the credibility of a witness,evidence that the witness has been convicted of a felony, or of a
Class A1, Class 1, or Class 2 misdemeanor, shall be admitted if
elicited from the witness or established by public record during
cross-examination or thereafter.” State v. Renfro, 174 N.C. App.
402, 412, 621 S.E.2d 221, 227 (2005)(quoting
N.C. Gen. Stat. §
8C-1, Rule 609(a) (2003)). First-degree trespass under N.C. Gen.
Stat. § 14-159.12 is designated a Class 2 misdemeanor. Second
degree trespass is a Class 3 misdemeanor. N.C. Gen. Stat. § 14-
159.13(b). Here, however, the record is silent as to whether the
defendant was convicted of first or second-degree trespassing.
Thus, defendant has failed to carry her burden of proving error in
the trial court's ruling.
Moreover, even assuming arguendo that the trial court erred by
admitting the evidence of trespassing conviction, we conclude there
was no prejudicial error in light of the overwhelming evidence of
her guilt. See State v. Patterson, 103 N.C. App. 195, 205-06, 405
S.E.2d 200, 207 (1991)(stating that [u]nder G.S. 15A-1443(a) a
defendant must demonstrate that 'there is a reasonable possibility
that, had the error in question not been committed, a different
result would have been reached at the trial out of which the appeal
arises.') (quotations omitted). Smith testified that she saw
defendant standing by her car, saw defendant leave the scene in a
red Ford Escort, and then discovered paint on her car. Smith later
saw a red Ford Escort parked behind defendant's residence. Smith
further testified that she had known defendant for eight or nine
years, knew her when she saw her “very well,” and that the parkinglot where her car was parked was brightly lit and had “plenty of
light around.” Smith also identified defendant in court. Thus, we
hold that there was no prejudicial error.
We also conclude that the trial court did not abuse its
discretion by refusing to declare a mistrial. Whether to declare
a mistrial is a decision:
. . . within the sound discretion of the trial
court and its ruling will not be disturbed on
appeal unless it is so clearly erroneous as to
amount to a manifest abuse of discretion.'”
It is appropriate for a trial court to declare
a mistrial “'only when there are such serious
improprieties as would make it impossible to
attain a fair and impartial verdict under the
law.
State v. Bowman, 349 N.C. 459, 472, 509 S.E.2d 428, 436
(1998)(citations and quotations omitted). Defendant argued that
the trial court should have declared a mistrial due to the question
regarding her prior conviction for trespassing. As explained
above, we have concluded that there was no error. However, even if
admission of the evidence was in error, the trial court gave a
curative instruction. The court instructed the jury:
Ladies and gentlemen, during the cross
examination of the defendant, the prosecutor
referred to the defendant's conviction of
trespassing. You will disregard the question
and answer of the defendant and not consider
it in your deliberations in any way.
“Jurors are presumed to follow the trial court's instructions.”
State v. McNeil, 350 N.C. 657, 689, 518 S.E.2d 486, 506
(1999)(citing
State v. Jennings, 333 N.C. 579, 618, 430 S.E.2d 188,
208, cert. denied, 510 U.S. 1028, 126 L. Ed. 2d 602 (1993). Thus,
any prejudice to defendant was cured. Furthermore,
the questionregarding defendant's prior conviction for trespassing did not
result in “substantial and irreparable prejudice to the defendant's
case
,” State v. Harris, 145 N.C. App. 570, 576, 551 S.E.2d 499, 503
(2001), in light of the overwhelming evidence of her guilt.
Accordingly, the assignments of error are overruled.
Finally, defendant argues that the trial court erred by
allowing Smith to testify that someone started damaging her vehicle
at the time defendant learned that Smith was pregnant by the father
of defendant's children. Defendant contends that there was no
foundation to show that Smith had personal knowledge of when
defendant learned about this information and that Smith's testimony
was speculative.
However, even if admission of this testimony was
error, there can be no prejudicial error in light of our
conclusion, discussed above, that the evidence of defendant's guilt
was overwhelming. Accordingly, we find no error.
No error.
Judges WYNN and GEER concur.
Report per Rule 30(e).
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