An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA 24-888
Filed 18 February 2026
McDowell County, Nos. 22CR000293-580, 22CR050679-580
STATE OF NORTH CAROLINA
v.
GLENDA DARLENE JAMES
Appeal by Defendant from Judgment entered 14 March 2023 by Judge J.
Thomas Davis in McDowell County Superior Court. Heard in the Court of Appeals 16
October 2025.
Attorney General Jeff Jackson, by Assistant Attorney General Reginaldo E. Williams, Jr., for the State.
MK Mann Law, by Mikayla K. Mann, for Defendant-Appellant.
HAMPSON, Judge.
Factual and Procedural Background
Glenda Darlene James (Defendant) appeals from a consolidated Judgment
entered pursuant to a jury verdict finding her guilty of Possession of
Methamphetamine and a guilty plea to the offense of Attaining the Status of a
Habitual Felon. The Record before us, including evidence adduced at trial, tends to STATE V. JAMES
Opinion of the Court
reflect the following:
On 19 May 2022, officers of the McDowell County Sheriff’s Office stopped a red
Chevrolet Impala for speeding. Defendant was a passenger in the car. After being
removed from the car, the driver, Jason Calloway, gave the officers a glass pipe that
had been tucked in his pants. Defendant informed the officers she had some “rigs,”
which the officers understood to mean syringes used for the injection of drugs. Later
during the traffic stop, Defendant retrieved a pink lunchbox from within the car,
opened it, and handed it to an officer. Inside the lunchbox, officers found a zippered
pouch, within which was a “crystal like substance” in a clear plastic bag. Forensic
testing at the North Carolina State Crime Lab later determined the substance was
methamphetamine. Defendant was subsequently indicted for Possession of
Methamphetamine and Attaining the Status of a Habitual Felon.
Defendant’s trial was set for 13 March 2023. On 12 March 2023, Defendant
was arrested at around 9:00 p.m. and booked into jail between 3:00 a.m. and 4:00 a.m.
on the morning of 13 March.1 Defendant’s trial began about five hours later at 9:30
a.m. Before the jury entered, the State informed the trial court that Defendant was
1 It is unclear why Defendant was arrested and jailed on the evening of 12 March 2023. At
trial the next morning, the prosecutor stated, “[w]hatever [Defendant] chose to do over the weekend that has led her to this position, that was on her own voluntary choice.” The trial court “tend[ed] to agree with the State” that Defendant’s predicament was due to her “own voluntary situation.” On appeal, Defendant states the charges for which she was arrested were “unnamed.” In any case, there is no evidence the events that resulted in Defendant’s arrest on 12 March 2023 had any connection to the Possession charge at issue in her trial, nor was any evidence heard by the jury about this apparently unrelated arrest.
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wearing the same clothes in which she had been arrested and jailed the prior night.
In its case-in-chief, the State called several officers of the McDowell County
Sheriff’s Office, who testified about the 19 May 2022 traffic stop, recovery of
contraband, and subsequent investigation. Lieutenant Kirk Hensley testified that
during the car search, the officers learned Defendant was on probation. Defense
counsel objected; the trial court overruled the objection “at this point,” and allowed
direct examination to continue. After the State finished questioning Lt. Hensley, the
trial court sustained defense counsel’s objection “in regard to the portion of the
answer . . . refer[ring] to probation” and instructed the jurors “to disregard that in
your deliberations[.]”
The State later called Lieutenant Jesse Hicks as a witness. The State elicited
testimony from Lt. Hicks related to the presence of probation officers at a search of
Defendant’s residence in connection with the investigation:
[The State]: And who all was present for the search [of Defendant’s residence]?
[Lt. Hicks]: Myself, Lieutenant Hensley, Detective Jones, and some probation officers.
....
[The State]: And do you know why probation officers were present for the search of this premises?
[Defense Counsel]: Objection.
[Trial Court]: Sustained at this point.
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After the State rested its case, defense counsel made a motion to dismiss for
insufficient evidence, which the trial court denied. Defense counsel next made a
Motion for Mistrial. In support of this Motion, defense counsel cited Defendant’s
arrest and incarceration the prior evening and resulting lack of sleep, since she was
“going through processing [at the jail] until almost 4 a.m.” As a specific concern,
defense counsel alleged the “jury ha[d] observed” Defendant “off and on sleeping”
during the trial.
As part of its consideration of Defendant’s Motion, the trial court conducted a
colloquy with Defendant about her decision not to testify. Turning back to the Mistrial
Motion, the trial court stated Defendant had answered its questions “clearly, and
openly, and appropriately.”
Defense counsel reiterated that his concern was with the potential effect on the
jury of watching his client “nodding off.” The trial court disagreed with this
characterization of Defendant’s actions:
[Trial Court]: I don’t think [Defendant is] nodding off. It just appeared to me that she’s sitting there. She may have put her head down and close[d] her eyes, but I may do that during a trial. I don’t know that that’s any indication of anything in this particular case, but I have not observed anything that I would feel would be of such detrimental issue. Furthermore, too, so what? It doesn’t have anything to do with it. It’s totally irrelevant to the – to the situation back on May 19, 2022. So how in the world would she be prejudiced in any way?
[Defense Counsel]: . . . Your Honor, I think just a normal juror, they just take her head nodding as to say, “Oh, well, she’s – she’s exhibiting behavior of – of a drug addict, so; therefore, she must
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have had those drugs back – back in May.”
Defense counsel continued this argument by mentioning an excused juror who,
during jury selection, allegedly stated, “ ‘Hey, I’ve already made my opinion of this
case based upon observing’ ” Defendant in the courtroom. In response, the trial court
agreed the excused juror had “rendered an opinion” on Defendant’s guilt or innocence
but pointed out the juror had not stated the factual basis for or nature of that opinion.
The trial court asked the prosecutor if he “recall[ed] if this particular juror ma[de]
any indication as to whether she had rendered an opinion of guilt or innocence.” The
prosecutor replied that the juror “didn’t say which way,” and the trial court agreed.
The trial court then denied Defendant’s Motion for Mistrial.
The jury convicted Defendant of Possession of Methamphetamine on 14 March
2023. The same day, Defendant pleaded guilty to Attaining the Status of a Habitual
Felon. The trial court consolidated the two convictions into one Judgment and
imposed a prison sentence of 50 to 72 months. Defendant gave oral Notice of Appeal
in open court.
Issues
The issues on appeal are whether the trial court: (I) abused its discretion by
denying Defendant’s Motion for Mistrial; (II) erred by not sua sponte conducting a
competency hearing or ordering a competency evaluation of Defendant; and (III)
abused its discretion by not ex mero motu providing a curative jury instruction or
declaring a mistrial after the jury heard questions and testimony related to
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Defendant’s probation status.
Analysis
I. Denial of Motion for Mistrial
As a threshold matter, on appeal, Defendant asks this Court to consider
additional arguments not raised at trial in her Motion for Mistrial as grounds to
conclude the trial court’s ruling was an abuse of discretion: (1) Defendant did not
receive her prescription medication during the trial; and (2) on the first day of trial,
she wore the same “dirty” clothes in which she had been arrested and jailed overnight.
“In order to preserve an issue for appellate review, a party must have
presented to the trial court a timely request, objection, or motion, stating the specific
grounds for the ruling the party desired the court to make if the specific grounds were
not apparent from the context.” N.C. R. App. P. 10(a)(1) (2025). The party must also
“obtain a ruling” from the trial court on the request, objection, or motion. Id.
At trial, defense counsel argued a mistrial was proper on the basis that
Defendant had been falling asleep and “nodding off” in view of the jury. However, on
appeal, as Defendant concedes in Reply Briefing, the medication and clothing issues
were “not specifically before the [trial] court and included in the motion for mistrial[.]”
Nonetheless, Defendant claims her “behavior,” “appearance,” and “demeanor,” were
“clearly before the court during trial” and these factors “made it clear that there was
a major issue and the trial court failed to address it.” Citing no authority, Defendant
apparently contends the denial of her Motion was an abuse of discretion because her
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behavior, demeanor, and appearance were literally “before” the trial court—in the
sense that the trial court could observe Defendant in the courtroom.
As defense counsel did not present Defendant’s behavior, appearance, or
demeanor as “specific grounds” for the Motion, i.e., reasons the trial court should
declare a mistrial, see N.C. R. App. P. 10(a)(1) (2025), any arguments about
Defendant’s behavior, appearance, and demeanor were not preserved as grounds for
appellate review of the denial of her Motion. Therefore, Defendant may not raise
these arguments for the first time on appeal. See Kabasan v. Kabasan, 257 N.C. App.
436, 457-58, 810 S.E.2d 691, 705 (2018) (“Our Supreme Court has long held that
where a theory argued on appeal was not raised before the trial court, the law does
not permit parties to swap horses between courts in order to get a better mount in
the appellate courts.” (citation and quotation marks omitted)).
Defendant further contends the trial court’s denial of her Motion for Mistrial
based on her alleged falling asleep during trial after her arrest the prior night
constituted an abuse of discretion. “It is well settled that the decision of whether to
grant a mistrial rests in the sound discretion of the trial judge and will not be
disturbed on appeal absent a showing of an abuse of discretion.” State v. Barts, 316
N.C. 666, 682, 343 S.E.2d 828, 839 (1986) (citation omitted). “Abuse of discretion
results where the court’s ruling is manifestly unsupported by reason or is so arbitrary
that it could not have been the result of a reasoned decision.” State v. Hennis, 323
N.C. 279, 285, 372 S.E.2d 523, 527 (1988) (citation omitted).
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A trial court “must declare a mistrial upon [a criminal] 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 (2023). A mistrial “is a drastic
remedy, warranted only for such serious improprieties as would make it impossible
to attain a fair and impartial verdict.” State v. Jones, 241 N.C. App. 132, 138, 772
S.E.2d 470, 475 (2015) (citation and quotation marks omitted). On appeal, “the trial
court’s decision is to be given great deference because the trial court is in the best
position to determine whether the degree of influence on the jury was irreparable.”
State v. Hill, 347 N.C. 275, 297, 493 S.E.2d 264, 276 (1997) (citation omitted).
In the case sub judice, defense counsel argued for a mistrial due to Defendant’s
“off and on sleeping” and “nodding off” in view of the jury. In considering whether this
conduct required ordering a mistrial, the trial court made numerous Findings that
were responsive to defense counsel’s claims. The trial court stated, inter alia: (1) it
had “observed the defendant” throughout the trial; (2) it had “made inquiry” of
Defendant, who “answered the questions rationally”; (3) that while Defendant had
“lowered” her head and eyes, her head had “not hit the table,” which would indicate
“falling asleep”; (4) Defendant “ha[d] also opened her eyes and responded to [defense
counsel’s] questions throughout the trial”; and (5) it “appear[ed] to [the trial court]
that [Defendant] is . . . clearly able to deal with this matter.” Further, when defense
counsel clarified that his specific concern was with the jury “watching [Defendant] . .
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. nodding off,” the trial court disagreed with this characterization of her behavior.
Upon review of the Transcript, we are unable to say the trial court abused its
discretion by denying Defendant’s Motion. The trial court’s oral Findings
demonstrate its fair consideration of defense counsel’s arguments. The trial court
rooted these Findings in observations of and interactions with Defendant, including
a colloquy about her choice not to testify. The trial court cited its own observations in
rejecting defense counsel’s claim that Defendant had been falling asleep or nodding
off. The trial court also made affirmative Findings about Defendant’s conduct; for
example, it stated Defendant had answered questions “clearly” and “rationally.” We
give “great deference” to the trial court’s resolution of defense counsel’s concerns,
“because [it] is in the best position to determine whether the degree of influence on
the jury was irreparable.” Hill, 347 N.C. at 297, 493 S.E.2d at 276.
Thus, the trial court provided a sound basis for its decision to deny Defendant’s
Motion. Therefore, the trial court’s ruling was neither arbitrary nor manifestly
unsupported by reason. See Hennis, 323 N.C. at 285, 372 S.E.2d at 527. Consequently,
the trial court did not abuse its discretion by denying Defendant’s Motion for Mistrial.
II. Competency
Defendant next argues the trial court erred by not sua sponte conducting a
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competency hearing or ordering a competency evaluation.2 She alleges her “behavior
throughout trial raised significant doubt as to her competency to stand trial.”
Under our General Statutes,
[t]he question of the capacity of the defendant to proceed may be raised at any time on motion by the prosecutor, the defendant, the defense counsel, or the court. The motion shall detail the specific conduct that leads the moving party to question the defendant’s capacity to proceed. When the capacity of the defendant to proceed is questioned, the court shall hold a hearing to determine the defendant’s capacity to proceed.
N.C. Gen. Stat. § 15A-1002(a), (b)(1) (2023). Trial courts may order expert
examinations of a defendant as part of the capacity inquiry. Id. § 1002(b)(1a)-(2)
(2023).
Generally, “the trial court is only required to hold a hearing to determine the
defendant’s capacity to proceed if the question is raised.” State v. Badgett, 361 N.C.
234, 259, 644 S.E.2d 206, 221 (emphasis in original) (citation and quotation marks
omitted), cert. denied, 552 U.S. 997, 128 S. Ct. 502, 169 L. Ed. 2d 351 (2007) (Mem.).
Here, neither defense counsel nor the State requested a competency hearing.
However, “[t]he trial court has a ‘constitutional duty to institute, sua sponte, a
2 Defendant argues the trial court should have ordered “a competency evaluation” and/or held
a “competency hearing.” But these terms refer to different actions by the trial court. When a defendant’s capacity to proceed to trial is questioned on motion of the trial court, prosecutor, defendant, or defense counsel under N.C. Gen. Stat. § 15A-1002(a), the trial court “shall hold a hearing to determine the defendant’s capacity to proceed.” N.C. Gen. Stat. § 15A-1002 (b)(1) (2023). By contrast, a competency evaluation refers to expert or medical examinations the trial court may order upon initiating an inquiry into defendant’s capacity. See State v. Rich, 346 N.C. 50, 60, 484 S.E.2d 394, 401 (1997) (“A trial court may order a mental health evaluation when that defendant’s capacity to proceed is questioned.” (emphasis added) (citing N.C. Gen. Stat. § 15A-1002(b)(1) (1988)).
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competency hearing if there is substantial evidence before the court indicating the
accused may be mentally incompetent.’ ” State v. George, 289 N.C. App. 660, 663, 891
S.E.2d 324, 327 (2023) (emphasis in original) (quoting State v. Heptinstall, 309 N.C.
231, 236, 306 S.E.2d 109, 112 (1983)).
In the instant case, there is nothing in the Record to support Defendant’s
assertion that her behavior throughout trial amounted to substantial evidence
indicating she may have been mentally incompetent. Prior to trial, defense counsel
informed the trial court Defendant had not been able to take her medication that
morning. The trial court discussed this concern with Defendant; she stated her
medications were solely for pain and she had, at the time of their colloquy, missed
only one dose. The trial court, addressing Defendant, observed: “you’re obviously,
standing and you’re talking clearly. You look a little disheveled, but, at the same time
. . . there’s nothing about it I would say would be prejudicial.”
The only evidence Defendant points to which allegedly demonstrates a lack of
capacity on her part is the assertion that she allegedly struggled to remain awake
during trial. But “a defendant does not have to be at the highest stage of mental
alertness to be competent to be tried. So long as a defendant can confer with his or
her attorney . . . the defendant is able to assist his or her defense in a rational
manner.” State v. Shytle, 323 N.C. 684, 689, 374 S.E.2d 573, 575 (1989). Here, the
trial court acknowledged having observed Defendant lower her head and close her
eyes at times, but added Defendant had also “opened her eyes and responded to
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[defense counsel’s] questions throughout the trial.” Additionally, as part of hearing
defense counsel’s Motion for Mistrial, the trial court held a colloquy with Defendant
about her right not to testify; on its conclusion, the trial court stated she had
“answered my questions clearly, and openly, and appropriately.”
Thus, there was not substantial evidence before the trial court indicating
Defendant may have been mentally incompetent. See George, 289 N.C. App. at 663,
891 S.E.2d at 327. Therefore, the trial court did not have a constitutional duty to sua
sponte institute a hearing to determine Defendant’s capacity. See id. Consequently,
the trial court did not err by not sua sponte conducting a competency hearing.
III. Probation Evidence
In her final argument, Defendant contends the trial court erred by failing to ex
mero motu issue a curative jury instruction after testimony about her probation
status was heard by the jury or subsequently declare a mistrial.3
At the outset, we note the trial court did provide a curative instruction after
Lt. Hensley’s testimony—and did so sua sponte without a specific request by defense
counsel. However, Defendant asserts this one instruction was not enough, pointing
out: (1) no similar instruction was given during the subsequent direct examination of
3 To the extent Defendant argues the trial court should have given some type of curative
instruction as part of its final jury charge, we note that she made no such request at trial. “In the absence of an objection at trial, jury instructions may be challenged on appeal only for plain error, and the defendant must ‘specifically and distinctly’ argue plain error on appeal.” State v. Leopard, _ N.C. App. _, _, 920 S.E.2d 390, 394 (2025) (quoting N.C. R. App. P. 10(a)(4) (2024)) (citing State v. Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326, 333 (2012)). Accordingly, because Defendant has not argued plain error on appeal, we consider any argument regarding the final jury instructions abandoned. See id.
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Lt. Hicks; and (2) the trial court did not instruct the jury on this issue again during
the jury charge. Nonetheless, Defendant does not cite a single case in which a North
Carolina appellate court has discerned error in a trial court’s failure to issue ex mero
motu a curative jury instruction absent a request from the defense—nor has our
research revealed such a case.
“A trial court does not err by failing to give a curative jury instruction when,
as here, it is not requested by the defense.” State v. Williamson, 333 N.C. 128, 139,
423 S.E.2d 766, 772 (1992) (citation omitted); see also State v. Locklear, 322 N.C. 349,
359-60, 368 S.E.2d 377, 383-84 (1988) (no error where the trial court did not instruct
jury to disregard emotional display of murder victim’s widow, when defendant did not
request a curative instruction).
Here, the trial court initially overruled defense counsel’s objection and allowed
the State to question Lt. Hensley about the officers’ discovery of Defendant’s
probation status during the traffic stop. However, the trial court subsequently
reversed its own ruling, sustained the objection, and instructed the jury to disregard
Lt. Hensley’s references to probation in its deliberations. This curative instruction
was “timely and specific” and “[t]here is no evidence to indicate the jury was incapable
of following the court’s instructions.” State v. Eanes, _ N.C. App. _, _, 920 S.E.2d 914,
919 (2025) (citation omitted).
Moreover, the trial court sustained each of defense counsel’s additional
objections to the mentions of probation during the testimony of State’s witnesses. “It
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is a well settled principle that one may not suffer prejudice where his objections are
sustained.” State v. Banks, 210 N.C. App. 30, 43, 706 S.E.2d 807, 817 (2011) (citing
State v. Call, 349 N.C. 382, 413, 508 S.E.2d 496, 515 (1998)). Thus, there was no need
for the trial court to issue a second curative instruction after defense counsel objected
to Lt. Hicks’ mention of a “probation officer” because the trial court immediately
sustained that objection and no further testimony was elicited from Lt. Hicks on the
subject. See Banks, 210 N.C. App. at 43, 706 S.E.2d at 817.
Further, after the testimony of Lieutenants Hensley and Hicks, Jason
Calloway, the driver of the car in which Defendant was a passenger on 19 May 2022,
testified on cross-examination by the State that Defendant was on probation at the
time of the events at issue. Defendant did not object to the admission of this
testimony. Thus, Defendant has failed to show prejudice. See State v. Reed, 153 N.C.
App. 462, 466, 570 S.E.2d 116, 119 (2002) (“[O]ur Supreme Court has long held that
when ‘evidence is admitted over objection, and the same evidence has been previously
admitted or is later admitted without objection, the benefit of the objection is lost.’ ”
(quoting State v. Maccia, 311 N.C. 222, 229, 316 S.E.2d 241, 245 (1984)).
Defendant further contends, in the absence of a second curative instruction,
the trial court should have declared a mistrial after the State asked Lt. Hicks why
probation officers were present for the search of Defendant’s residence. However, “[a]
mistrial may be granted only when the case has been prejudiced at trial to such an
extent that a fair and impartial verdict is impossible.” State v. Jaynes, 342 N.C. 249,
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280, 464 S.E.2d 448, 467 (1995) (citations omitted). As we have just explained,
Defendant has not shown she has suffered prejudice from any alleged improperly
admitted testimony about her probation status.
In sum, although the trial court initially allowed some testimony to come in
about Defendant’s probation status, it subsequently instructed the jury not to
consider that evidence and it sustained all of defense counsel’s further objections on
the matter. Additionally, evidence that Defendant was on probation at the time of the
events at issue was admitted through the testimony of Jason Calloway without
objection. Accordingly, Defendant has failed to demonstrate the prejudice requisite to
justify a mistrial. See id. Thus, the trial court did not err by not choosing to issue
additional curative jury instructions or to declare a mistrial ex mero motu on the basis
of questions and testimony referencing Defendant’s probation status.
Conclusion
Accordingly, for the foregoing reasons, we conclude there was no error at
Defendant’s trial and affirm the Judgment of the trial court.
NO ERROR.
Judges CARPENTER and FREEMAN concur.
Report per Rule 30(e).
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