State v. Poole

• Court: Court of Appeals of North Carolina
• Decided: January 20, 2015
• Docket: 14-689
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA14-689 NORTH CAROLINA COURT OF APPEALS

Filed: 20 January 2015

STATE OF NORTH CAROLINA

v. Person County No. 12 CRS 51878 DWIGHT BRADSHER POOLE

Appeal by defendant from judgment entered 19 November 2013

by Judge Henry W. Hight, Jr., in Person County Superior Court.

Heard in the Court of Appeals 15 December 2014.

Attorney General Roy Cooper, by Assistant Attorney General Colin A. Justice, for the State.

Geeta N. Kapur for defendant-appellant.

STEELMAN, Judge.

Where the trial court correctly gave the jury supplemental

instructions on the law of fixtures, the trial court did not

express an opinion as to the facts of the case.

I. Factual and Procedural Background

In August 2012, Dwight Bradsher Poole (defendant) was

operating Greater Looks Clothing Store on property rented from

Hall’s Agri-Business (“Hall’s”) in Roxboro, North Carolina. On -2- 13 August 2012, Joe Berryhill, a manager with Hall’s, visited

defendant’s store. Berryhill testified that Hall’s was in the

process of terminating defendant’s lease because he was

delinquent in the payment of his rent, and that defendant was in

the process of moving out of the building. Berryhill noticed

that defendant was “taking down the rails and the shelves” and

he told defendant that they belonged to Hall’s. Defendant

disagreed and stated that he owned the rails and shelves.

Berryhill visited the premises on two other occasions; each time

he told defendant that the shelves belonged to Hall’s, and

defendant disagreed. Defendant took the shelves with him when he

vacated the property, and Berryhill reported the theft of the

shelves to the sheriff’s office.

On 14 January 2013, defendant was indicted for felony

larceny. A superseding indictment was returned on 14 October

2013. Defendant was found guilty as charged by the jury. The

trial court sentenced defendant to a term of 10 to 21 months

imprisonment. This sentence was suspended, and defendant was

placed on supervised probation for twenty-four months. Defendant

was ordered to pay restitution, attorneys’ fees, costs, and a

community service fee.

Defendant appeals.

II. Trial Court’s Response to Jury Question -3- In his sole argument on appeal, defendant contends that the

trial court’s response to the jury’s question about fixtures

constituted an improper expression of opinion as to a material

factual issue. We disagree.

A. Standard of Review

N.C. Gen. Stat. § 15A-1222 provides 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.” N.C. Gen. Stat. § 15A-1222 (2013). N.C. Gen. Stat. §

15A-1232 further provides that “[i]n instructing the jury, the

judge shall not express an opinion as to whether or not a fact

has been proved and shall not be required to state, summarize or

recapitulate the evidence, or to explain the application of the

law to the evidence.” N.C. Gen. Stat. § 15A-1232 (2013).

However, not every remark by the judge, if an impermissible

expression of opinion, is so prejudicial as to require a new

trial. State v. Herrin, 213 N.C. App. 68, 72, 711 S.E.2d 802,

806 (2011).

B. Analysis

During the jury’s deliberations, the jury submitted to the

trial court the following question: “If something is affixed to

the building, is it considered property of the said building?”

Over defendant’s objection, the trial court called the jury back -4- into the courtroom and instructed them:

Um, the law of North Carolina provides, “Unless there is something else appearing, that property that becomes affixed to a structure belongs to the owner of the structure.” With that, ladies and gentlemen, you may retire and continue your deliberations.

We hold that the trial court’s supplemental instruction to the

jury constituted a statement of law, not fact. The jury

requested that the trial court give further instructions on the

law relating to fixtures on real property. In response, the

trial court did not state, summarize or recapitulate the

evidence, or attempt to explain the application of the law to

the evidence. See N.C. Gen. Stat. § 15A-1232. Instead, the trial

court responded by summarily instructing the jury on the law of

fixtures. See Little by Davis v. Nat’l Servs. Indus., Inc., 79

N.C. App. 688, 694-95, 340 S.E.2d 510, 514 (1986) (“It is a

well-recognized rule that when articles of personal property

which are especially adapted and designed to be used in

connection with the realty, and essential to the convenient and

profitable enjoyment of the estate, are affixed to it, with an

intention to make them a permanent accession to the land, they

become a part of the realty, though not so fastened as to be

incapable of removal without serious injury to themselves or the

freehold.”) (quoting 1 Thompson on Real Property, 1980 -5- Replacement, § 62, at 221-22 (1980)).

Accordingly, we find no error.

NO ERROR.

Judges ELMORE and DILLON concur.

Report per Rule 30(e).